Centre for Internet and Society

Comments to the Ministry on WIPO Broadcast Treaty (March 2011)

pranesh — 2012-12-14T10:29:20Z

As a follow up to a stakeholder meeting called by the MHRD on the WIPO Broadcast Treaty, CIS provided written comments on the April 2007 Non-Paper of the WIPO Broadcast Treaty, emphasising the need for a signal-based approach to be taken on the Broadcast Treaty, and making it clear that India should continue to oppose the creation of new rights for webcasters.

On February 22, 2011, the Ministry of Human Resource Development held a meeting to decide on the Indian position on the WIPO Broadcast Treaty. The Ministry asked the participants at the meeting to send in written submissions on four matters. We sent in submissions on those four issues, as well as a few others.

Comments on the non-paper for the WIPO Broadcast Treaty by the Centre for Internet and Society

On February 23, 2011, the Ministry of HRD had asked for comments on four matters:

Article 3 of the Non-paper which was circulated earlier
Term of protection for signal
Nature of limitations and exceptions
Protection of signal and retransmission

We have made submissions on those and a few other matters as well. Unless noted otherwise, all comments made in this note pertain to the final non-paper (April 2007) and not the draft non-paper (March 2007).

Article 3

Article 3 of the draft non-paper that was circulated (March 2007) for comments from country delegates stated:

3. Scope of Application

The provisions of this Treaty shall not provide any protection in respect of

(i) mere retransmissions;

(ii) any transmissions where the time of the transmission and the place of its reception may be individually chosen by members of the public (on-demand transmissions); or

(iii) any transmissions over computer networks (transmissions using the Internet

Protocol, “webcasting”, or “netcasting”).

A number of people present at the recent MHRD-organized meeting noted that “mere retransmissions” is a confusing term. In the revised non-paper (April 2007), it has been clarified that protection is not granted to third parties for merely retransmitting another’s signal (Art. 3(4)(i)).

3. Specific Scope and Object of Protection

(4) The provisions of this Treaty shall not provide any protection

(i) to retransmitting third parties in respect of their mere retransmissions by any means of broadcasts by broadcasting organizations;

(ii) to any person for transmissions where the time of the transmission and the place of its reception may be individually chosen by members of the public (on-demand transmissions); or

(iii) to any person for transmissions over computer networks

In addition, Art. 3(4)(iii) is currently ambiguous since it is not clear whether “retransmissions” are subsumed under the word transmission. By allowing for separate rights for retransmission over computer networks, the Treaty allows for the creation of two classes: traditional broadcasters who will have rights over retransmissions over computer networks, and all other persons who will have no rights over transmissions. Thus, if “retransmission” is not subsumed under the word “transmission”, it would be advisable to alter that clause to read “to any person for transmissions or retransmissions over computer networks”.

Lastly, Art. 3(4) should additional prevent protection for persons broadcasting materials for which they have not acquired copyright, or for broadcasting materials in the public domain.

Term of Protection of Signals

No term of protection should be provided. As was noted by the US government in its response to the draft non-paper, it is questionable “whether a 20-year term of protection is consistent with a signal-based approach”. The Brazilian delegation also states: “Article 13 should be deleted. A twenty-year term of protection is unnecessary. The agreed “signal-based” approach to the Treaty implies that the objected of protection is the signal, and therefore duration of protection must be linked with the ephemeral life of the signal itself.” Thus, a term is only needed if we stray away from a signal-based approach. As we do not wish to do so, there should be no term of protection.

Limitations and Exceptions

The limitations and exceptions (L&E) currently provided for allow for mirroring of copyright L&E limited by a Berne-like three-step test.

However, reasons for providing protection over broadcasting are not the same as those for copyright. For instance, a country may wish to make exceptions to signal protection for cases such as broadcast of a national sport, as India has done with the Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharati) Act.

This might well afoul of the three-step test proposed in Article 10(2). Furthermore, a country may wish to limit the application of broadcasters rights for national broadcasters (whose programming is paid for by taxpayers, and thus should be available to them), but may not be able to do so under the provisions of Article 10(2). Thus, Article 10(2) should be deleted, and Article 10(1) should be expanded to include issues of national interest and for free-to-air broadcast signals.

Protection of Signal and Retransmission

It should be a sine qua non condition of India’s that that this be a purely signal-based treaty with no fixation or post-fixation rights. Thus, it should restrict itself to protection of signals, and simultaneous retransmission.

As a result, no separate right to prevent unauthorized “decryption” should be granted, since signal-theft is already a crime. For instance, this provision would also cover decrypting an unauthorized retransmission without authorization from the retransmitter. This provides the unauthorized retransmitter rights, even though s/he has no right to retransmit. This leads to an absurd situation.

As stated by the Brazilian government:

“[Article 10 of the draft non-paper and Article 9 of the non-paper] is inconsistent with a “signal-based approach”. It creates unwarranted obstacles to technological development, to access to legitimate uses, flexibilities and exceptions and to access to the public domain. It does not focus on securing effective protection against an illicit act, but rather creates new exclusive rights so that they cover areas unrelated with the objective of the treaty, such as control by holder of industrial production of goods, the development and use of encryption technologies, and private uses. The prohibition of mere decryption of encrypted signals, without there having been unauthorized broadcasting activity, is abusive.”

Other comments

Article 7

Article 7 of the non-paper provides broadcasters rights post-fixation (“Broadcasting organizations shall enjoy the exclusive right of authorizing … the deferred transmission by any means to the public of their fixed broadcasts. ”). This is contrary to a signal-based approach. A signal-based approach would necessarily mean that it is only signal theft (which happens only via unauthorized simultaneous retransmission) that should be protected. Deferred transmission should implicate the rights of the owner of copyright, but not of the broadcasting organization.

Article 4

As suggested by the Brazilian government, Article 4(1) which proposes a non-prejudice clause should be amended to add the words “and access to the public domain” at its end. This is consistent with the WIPO Development Agenda.

Article 5

India should re-iterate its suggestion to add the following to the definition of “broadcast” under Art. 5(a): “‘broadcast’ shall not be understood as including transmission of such a set of signals over computer networks. ”

Further, the phrase “general public ” should be retained in Art.5 (as was present in the draft non-paper), and should not be made into “public”. The danger is that a limited public (say family members) could possibly be covered by the term “public”, while they will be excluded from “general public”, which in any case is the target audience of all broadcast.

For more details visit https://cis-india.org/a2k/blogs/wipo-broadcast-treaty-comments-march-2011

Comments to the MHRD on WIPO Broadcast Treaty (March 2013)

pranesh — 2013-04-23T06:39:36Z

The Centre for Internet and Society would like to make the following comments on the draft legal text of SCCR/24/10 (Working Document for a Treaty on the Protection of Broadcasting Organizations) at the stakeholders meeting to be held on March 21, 2013.

Article 1 – Preamble: The draft legal text of SCCR/24/10 (“Treaty”) in the Preamble should in clear terms capture the intent of the WIPO General Assembly as to the object of the Treaty. The SCCR reiterated the General Assembly’s mandate for a signal based approach treaty for the protection of broadcasting and cablecasting organizations. In this regard, the SCCR in its report to the 50th Session of the WIPO General Assembly (Oct. 1-9, 2012) noted:

“The Committee reaffirmed its commitment to continue work on a signal based approach, consistent with the 2007 General Assembly mandate, towards developing an international treaty to update the protection of broadcasting and cablecasting organizations in the traditional sense. The Committee also agreed to recommend to the WIPO General Assembly that the Committee continue its work toward a text that will enable a decision on whether to convene a diplomatic conference in 2014.” [emphasis added]

Therefore it is submitted that the Preamble should at the very outset establish that the Treaty aims at
- protection of a related right and a signal based approach is adopted to protect such a related right
- protection of the broadcasting and cablecasting organizations in the traditional sense.
Article 2 – General Principles: It is submitted that the Development Agenda under TRIPS should be declared as general principle under the Treaty where as a balance must be struck between the rights of the broadcasting organizations and the larger public interest.
Article 5 – Definitions: The Treaty in its current form proposes alternatives to the definitions. On a general observation, it is submitted that the alternatives are unsatisfactory and waivers from the WIPO General Assembly mandate to adopt a signal based approach.

In precise terms, the definition section attributes a broad definition to the “broadcast” and fails to define the means of broadcast. The alternative to 5(b) does reintroduce the phrase, “general public” instead of “public”, as anything lesser would not constitute a broadcast as it was in the Article 5 of the March, 2007 draft non-paper, but fails to adopt a signal based approach by adding the words, “and specific program”.

Similarly definition of “retransmission” under the Alternative A for Article 5 clause (d) uses the words, “transmission by any means” which is again in conflict with the signal based approach.

Apart from the instances mentions above there are many other inconsistencies in the definition section and therefore it is submitted that none of the alternatives to the definition section can be implements within the mandate of the General Assembly.
Article 6 – Scope of Application: We agree with the Alternative A of Article 6, insofar as the alternative to clause 1 is adopted.
Article 9 – Protection for Broadcasting Organizations: In reference to Alternative A for Article 9 it is submitted that the public performance of broadcast signals should not be covered. In many countries, especially lower-income countries, shared viewing of televisions and shared listening to radio are culturally established and it should not be equated with signal theft, which should be the primary focus of this Treaty. Further, free-to-air TV and radio channels and state-sponsored TV and radio channels depend on advertisements and other forms of income, not subscriber payments. Given this, there is no reason why public performance, the wrongfulness of which is very business-model dependent, should be included in this treaty.

We strongly suggest that Alternative B to Article 9 should struck down as it is in contravention of the mandate of the WIPO General Assembly to adopt a signal based approach for the development of the text of the Treaty. There cannot be any fixation or post fixation rights be given to the broadcasting organization if a signal based approach is adopted for the Treaty.
Article 10 – Limitations and Exception: The limitations and exceptions should be mandatory as well, as not balancing limitations and exceptions with the rights granted to the broadcasters would be violating the spirit of the WIPO Development Agenda.

Further, it will also in contravention of Article 3 of the Treaty in its current form. The UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expression recognizes the principles of equitable access and openness and balance. It also mandates implementation of “measures aimed at enhancing diversity of the media, including through public service broadcasting.

It is also reiterated that, reasons for providing exceptions for over broadcast rights are not the same as those for copyright. For instance, a country may wish to make exceptions to signal protection for cases such as broadcast of a national sport, as India has done with the Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharati) Act. This might well afoul of the three-step test proposed in Article 7(2), especially as it says “provide for the same or further limitations or exceptions...”.

Furthermore, a country may wish to limit the application of broadcasters rights for national broadcasters (whose programming is paid for by taxpayers, and thus should be available to them), but may not be able to do so under the provisions of Article 7(2). Thus, Article 10(2) should be deleted, and Article 10(1) should be expanded to include issues of national interest and for free-to-air broadcast signals.
Article 11 – Term of Protection: As submitted earlier by CIS, it is reiterated that no term of protection should be provided. As was noted by the US government in its response to the draft non-paper, it is questionable “whether a 20-year term of protection is consistent with a signal-based approach”. The Brazilian delegation also states: “Article 13 [of the previous draft treaty] should be deleted. A twenty-year term of protection is unnecessary. The agreed “signal-based” approach to the Treaty implies that the objected of protection is the signal, and therefore duration of protection must be linked with the ephemeral life of the signal itself.” Thus, a term is only needed if we stray away from a signal-based approach. As we do not wish to do so, there should be no term of protection.
Article 12 – Protection of Encryption and Rights Management Information: From our previous submission on this issue we reiterate that, No separate right to prevent unauthorized “decryption” should be granted, since signal-theft is already a crime. For instance, this provision would also cover decrypting an unauthorized retransmission without authorization from the retransmitter. This provides the unauthorized retransmitter rights, even though s/he has no right to retransmit. This leads to an absurd situation.

As stated by the Brazilian government with respect to the April 2007 non-paper:
“[Article 10 of the draft non-paper and Article 9 of the non-paper] is inconsistent with a “signal-based approach”. It creates unwarranted obstacles to technological development, to access to legitimate uses, flexibilities and exceptions and to access to the public domain. It does not focus on securing effective protection against an illicit act, but rather creates new exclusive rights so that they cover areas unrelated with the objective of the treaty, such as control by holder of industrial production of goods, the development and use of encryption technologies, and private uses. The prohibition of mere decryption of encrypted signals, without there having been unauthorized broadcasting activity, is abusive.”

If even the provision is to be retained, it should not grant the broadcasters any rights over and above that which is otherwise granted by the law, thus the following line is over-broad: “that are not authorized by the broadcasting organizations concerned or are not permitted by law.”

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

Comments on the Science, Technology and Innovation Policy (Draft)

snehashish — 2012-12-01T15:36:38Z

The Department of Science and Technology invited public comments on the Science, Technology and Innovation Policy (Draft). Accordingly, the Centre for Internet and Society has made the following comments on the draft policy document.

Department of Science and Technology,
Ministry of Science and Technology,
Government of India

Subject: Comments on the Science, Technology and Innovation Policy (Draft)

Dear Sir/Madam,

We at the Centre for Internet and Society commend the drafting of the Science, Technology and Innovation Policy 2013 (Draft). It is a well rounded policy which will pave the way for further informed policy decisions on innovation and research and development in the country.

Few of the notable and welcome policy statements are:

The Policy aims at ‘inclusive innovation’ and takes into consideration the “need to ensure access, availability and affordability of solutions to as large a population as possible”. It also aims at building a conducive environment for research and development by modifying the IPR policy to include marching rights with respect to social goods funded by public. This in line with the aim of the policy to provide access new technologies. The use of government funding in commercially viable research would not only assure better access to medicine and other technological innovations but also ensure knowledge transfer.

The policy decision to "foster data sharing and access" is most welcome and will act as a catalyst for further research and development through open and collaborative research and development.

Policy also lays emphasis on open source discoveries for "public and social good" and it is indeed a pleasure to note that the Policy wishes to build knowledge commons by collaborative generation of IPR. This will definitely go a long way in encouraging further innovation in the country.

It is also appreciated that the policy will aim at "increasing accessibility, availability and affordability of innovations" and will establish a fund for innovation in this direction.

The Policy also states that the "people" and "decision makers" should be made aware of the implications of emerging technologies, including their ethical, social and economic dimensions. Implementation of such policy is a necessity and will enable the government to make informed policy decisions in the future.

Suggestion:

It is submitted that the policy document should take into account that in order ensure ‘inclusive innovation’ and accessibility, the policy should specifically include mandates to encourage and foster innovation in technology related to accessibility tools for persons with disabilities.www.dst.gov.in/sti-policy.pdf

For more details visit https://cis-india.org/a2k/blogs/comments-on-science-technology-and-innovation-policy-draft

Comments on the Protection of Broadcasting Organizations: Technical Background Paper Prepared by the WIPO Secretariat

Nehaa Chaudhari and Amulya Purushothama — 2015-09-03T01:47:59Z

Technical Background Paper prepared by the WIPO Secretariat in relation to the Broadcast Treaty (“Technical Background Paper) provides information on new and emerging technologies and on legal developments in the broadcasting sector. This Technical Background Paper will be discussed at the upcoming 30th session of the SCCR in Geneva on 29th June- 3rd July 2015. The Ministry of Information and Broadcasting, Government of India had called for comments on the same. This is a submission made by Nehaa Chaudhari and Amulya Purushothama on behalf of the Centre for Internet and Society in this regard.

We thank Amulya Purushothama for her assistance with research and other assistance on this subject. While Amulya was acknowledged as the co author in the actual submission itself, the blurb didn't say so and this has now been changed. Click to view the PDF.

I. Preliminary

1. This submission presents preliminary comments by the Centre for Internet and Society ("CIS") on the Technical Background Paper prepared by the WIPO Secretariat in relation to the Proposed WIPO Treaty on the Protection of Broadcasting Organisations ("Broadcast Treaty").

2. This submission is based on the Technical Background Paper Submitted By the Secretariat at the Seventh Session of the Standing Committee on Copyright and Related Rights ("SCCR") held at Geneva from May 13 to 17 2002 (SCCR/7/8) dated April 4, 2002.[1]

3. CIS commends the Ministry of Information and Broadcasting, Government of India for its efforts at seeking inputs from various stakeholders prior to framing India's response to this document. CIS is thankful for the opportunity to provide this detailed submission.

II. Overview

Governing Principles

4. CIS is a non-governmental organization engaged in research and policy work in the areas of, inter alia, access to knowledge and openness. [2] CIS values the fundamental principles of justice, equality, freedom and economic development. This detailed submission is consistent with CIS' commitment to these values, the safeguarding of general public interest and the protection of India's National Interest at the International Level. Accordingly, the comments in this submission aim to further these principles and are limited to those sections of the document in question that most directly have an impact on these values.

Adoption of a Signals-Based Approach

5. CIS has consistently recommended the adoption of a Broadcast Treaty consistent with the signals based approach, [3] in consonance with the 2007 mandate of the WIPO General Assembly, binding on the SCCR. In this submission as well, we re-iterate our commitment to the same.

III. Detailed Comments

On the 'Introduction'

6. The Technical Background Paper was prepared twelve years ago, in 2002. Accordingly, more recent legal and technological developments, national approaches and industry practices would need to be addressed. Accordingly, it is submitted that at SCCR 30, the Indian delegation request that the SCCR be presented with an updated study. This would be in line with the stated aims of the Technical Background Paper itself, i.e., to focus on technological changes that affect the activities of broadcasting organizations.[4] Further CIS believes that the current Technical Background Paper reads as a justification for the Broadcast Treaty as opposed to a neutral study. It is submitted that an updated version of this paper with including inter alia, some of the safeguards discussed later in this submission might address this imbalance.

7. The Technical Background Paper excludes from its scope the rationale for protection as well as the scope of protection for broadcasters. [5] CIS is of the opinion that this limits the Technical Background Paper - issues such as the justification/ need for the treaty, the scope of protection to be offered and the kind of protection, go to the very heart of the issue and must be discussed in the Technical Background Paper if it is to inform a meaningful debate on the subject.

8. CIS further believes that the very need for a Broadcast Treaty has not been clearly established in the Technical Background Paper. As we have indicated earlier,[6] investments made by broadcasters in broadcasting infrastructure, licensing of copyrighted works and creation of copyrighted works are already protected under existing legal systems. While the licensing and creation of copyrighted works are protected under copyright law, the investment in broadcasting infrastructure might be construed to be a "broadcast right", which is enshrined [7] in the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, 1961.[8] A detailed discussion on the existing legal framework is available in the next section of this submission.

On 'Broadcasting Organizations and the Rome Convention'

The Legal Framework Applicable to Broadcasting

9. This part of the Technical Background Paper discusses in detail the various provisions of the Rome Convention. However, it is noted that there is a very limited discussion of legal developments that have happened since the Rome Convention.[9]

10. CIS believes that for a complete understanding of the legal framework applicable to broadcasting, it is important that the Technical Background Paper document the evolution of international law on the subject since the Rome Convention. This is particularly critical when the need for this treaty itself is disputed.[10] In this regard CIS believes that the Technical Background Paper is inadequate and must be revised and updated to include other legal developments[11] including but not limited to the WIPO Copyright Treaty, 1996 ("WCT"), WIPO Performances and Phonograms Treaty, 1996 ("WPPT"), the Convention Relating to the Distribution of Programme -Carrying Signals Transmitted by Satellite, 1974, ("Brussels Convention") and the Beijing Treaty on Audio-Visual Performances, 2012 ("Beijing Treaty").

11. CIS further believes that for a complete understanding of the legal framework applicable to broadcasting, it is imperative for the Technical Background Paper to document national level legal developments in all member countries on this issue. Precedent for this exercise exists in the form of the study conducted in related to the Proposed International Legal Instrument on Limitations and Exceptions for Libraries and Archives. [12] In this regard CIS calls for a comprehensive study on legislation surrounding broadcasters rights - both as related rights and as a separate right - and on the nature and extent of protection offered to broadcasters under the national legislations of all member states.

12. CIS believes that for a complete understanding of the legal framework applicable to broadcasting, it is important for the Technical Background Paper to further document any other widely followed industry practices and contractual arrangements that might have developed in the field. In this regard CIS believes that the present Background Paper should be edited and the above mentioned information be made available to the SCCR.

Signal, Content and Program

13. This part of the Technical Background Paper documents how a signal is defined and how it is different from the content carried on the signal. Further this part also states that it has been generally indicated that protections should be granted to broadcasting organisations for their signals independent of the copyright and related rights protection of the content.[13] In this regard CIS submits that definition of a signal is well settled under various international legal instruments, which have adopted uniform terminology that excludes content underlying the signal.[14] It is submitted that the Technical Background Paper must be edited to include all of this information to allow for informed debate on the matter. It is further submitted that technologically neutral terminology must be avoided and only terminology based on the "signals based approach" decided at the 2007 WIPO General Assembly must be adopted. [15] It is lastly submitted that any deviation from the signals based approach would lead to a Para-copyright regime for broadcaster's rights which would substantially harm public interest and increase costs to access to knowledge. [16]

14. This part of the Technical Background Paper also avers "during the discussions in the Standing Committee, it has generally been indicated that protection should be granted to broadcasting organizations for their signals independently of the copyright and related rights protection of the content." [17] It is submitted that this statement is not entirely accurate. Several Member States and Observers have submitted at various sessions of the SCCR that any protection granted must be limited to signal to address signal theft only; and that any other sort of protection would create a legal fiction that would lead to uncertainty, the creation of multiple rights holders, a Para-copyright regime and increased costs for legitimate use of copyrighted material.[18]

On 'Legal Issues to be Considered'

15. CIS reiterates the impetus to fully establish the need and the justification for the Broadcast Treaty, before considering other substantive legal issues. CIS strongly believes that the need for the treaty has not been fully established.[19]

16. It is also suggested that a recommendation be made for the Technical Background Paper to include a section on limitations and exceptions as 'legal issues to be considered', critical from the perspective of the protection of freedom of speech and expression and access to knowledge.

Broadcasting and Piracy

17. This part of the document discusses the signal piracy and its effect on markets in developing and developed countries. [20]

18. CIS submits that since the justification for this treaty is based on signal piracy, this section of the Technical Background Paper ought to be more detailed. Illustratively, this section must be updated to include studies on the losses that occur due to signal piracy in various countries, and the exact lacunae in the current legal system that render it inadequate to address this issue.

Program-Carrying Signals

19. In this part the Technical Background Paper discusses program carrying signals that are sent from point to point before the broadcast that could possibly be pirated.[21]

20. CIS believes that the claim that pre-broadcast signals have been stolen before[22] must be backed up by adequate data and studies. As of this document they remain assertions. CIS further believes that any steps taken in this regard must adopt the 'signals based approach' mandated by the 2007 WIPO General Assembly[23] and ensure that the underlying content is not subject to an additional layer of protection.[24]

The Object of Protection

21. This part of the paper provides a cursory overview of the different definitions adopted to define the object of protection, i.e., the broadcast under the Rome Convention, the Brussels Convention, and the WPPT.[25]

22. CIS believes that a more in-depth study of definitions of broadcast under all international instruments [26]is called for. CIS further believes that in keeping with the 2007 WIPO General Assembly mandate as mentioned above, 'signals based approach' is to be adopted which would preclude technologically neutral terminology from being adopted in the object of the protection.

The Subject of Protection

23. This part of the paper provides a cursory overview of the different definitions adopted to define the subject of protection, i.e., the broadcast under the Rome Convention, the Brussels Convention, the WPPT and the ITU Radio Regulations.[27]

24. CIS believes that the mandate of 'signals based approach' as mentioned in the 2007 WIPO General Assembly mandate must be adhered to (as stated earlier) and only those entities that broadcast signals and are therefore vulnerable to signal theft must be considered beneficiaries under the Broadcast Treaty. As stated above, technologically neutral terminology would fall outside of this mandate. CIS believes that this should be made clear in the Technical Background Paper.

IV. Concluding Observations

25. In conclusion, CIS submits the following recommendations on the Technical Background Paper.

a) Updating the Technical Background Paper to include legal and technological developments to better inform the discussion on the Broadcast Treaty.

b) Updating the Technical Background Paper with an expanded scope that explores all issues relevant to discussion including the scope for protection and the justification for protection.

c) Updating the Technical Background Paper to include provisions made under all relevant international conventions, even those that have come into existence after the Rome Convention.

d) Updating the Technical Background Paper to include widely prevalent industry practices that could affect the discussion around the Broadcast Treaty.

e) Conducting a comprehensive study on legislations regarding broadcasters' rights and broadcasting under all national regimes to enable a more informed discussion on the possible effects of the proposed treaty.

f) Updating the Technical Background Paper to include a discussion on limitations and exceptions under the proposed treaty.

g) Conducting a separate study on the extent of signal piracy and losses incurred due to signal piracy including a section that traces the causes behind signal piracy and explores whether or not a legal lacunae is to blame.

h) Updating the Technical Background Paper keeping in mind the WIPO 2007 General Assembly mandate on 'signals based approach' especially in parts relating to object, subject and scope of protection.

V. Other Resources

Statements made by CIS to the SCCR on Broadcast Treaty

1. 29^th Session of the WIPO SCCR :CIS 2^nd (brief) Intervention on the Broadcast Treaty, http://cis-india.org/a2k/blogs/wipo-sccr-29-cis-second-brief-intervention-on-broadcast-treaty (last accessed 25 June, 2015)

2. CIS Intervention on Proposed Treaty of Broadcasting Organizations, SCCR 29: http://cis-india.org/a2k/blogs/wipo-sccr-29-cis-intervention-on-proposed-treaty-for-protection-of-broadcasting-organizations (last accessed 25 June, 2015)

3. CIS Statement at SCCR 28 on the Proposed Treaty for Protection of Broadcasting Organisations, Available at: http://lists.keionline.org/pipermail/a2k_lists.keionline.org/2014-July/002720.html (last accessed 25 June, 2015)

4. CIS Statement at 27^th SCCR on the WIPO Proposed Treaty for the Protection of Broadcasting Organisations, Available at: http://cis-india.org/a2k/blogs/cis-statement-27-sccr-on-wipo-proposed-treaty-for-protection-of-broadcasting-organizations (last accessed 25 June, 2015)

5. CIS' Statement at SCCR 24 on WIPO Broadcast Treaty, Available at: http://cis-india.org/a2k/blogs/cis-statement-sccr24-broadcast-treaty (last accessed 25 June, 2015)

6. Statement of CIS on the WIPO Broadcast Treaty at the 23^rd SCCR, Available at: http://cis-india.org/a2k/blogs/sccr-23-broadcast-cis-statement (last accessed 25 June, 2015)

7. Statement of CIS, India on the WIPO Broadcast Treaty at the 22^nd SCCR, Available at: http://cis-india.org/a2k/blogs/sccr-22-broadcast-cis-statement (last accessed 25 June, 2015)

8. CIS Statement on the WIPO Broadcast Treaty at SCCR 19, Available at: http://cis-india.org/a2k/blogs/sccr19-broadcast-treaty (last accessed 25 June, 2015)

Submissions made by CIS on the Broadcast Treaty

1. CIS Submission to the Expert Committee: Protection of Broadcasting Organisations under the Proposed Treaty as Compared to Other International Conventions, 21 December 2014, Available at: http://cis-india.org/a2k/blogs/protection-of-broadcasting-organisations-under-proposed-broadcast-treaty (last accessed 25 June, 2015)

2. CIS Submission to the Expert Committee: Comment on the Broadening of Definitions in the Proposed Braodcast Treaty Compared to Other International Conventions, 11 December 2014, Available at: http://cis-india.org/a2k/blogs/the-broadening-of-definitions-in-the-proposed-broadcast-treaty-compared-to-other-international-conventions (last accessed 25 June, 2015)

3. CIS Comments to the Ministry of Human Resource Development on the Proposed WIPO Treaty for the Protection of Broadcasting Organisations, 7 December 2013, Available at: http://cis-india.org/a2k/blogs/comments-to-hrd-ministry-on-wipo-treaty-for-protection-of-broadcasting-organizations (last accessed 25 June, 2015)

4. Comments to MHRD on WIPO Broadcast Treaty, March 2013, Available at: http://cis-india.org/a2k/blogs/comments-on-wipo-broadcast-treaty

5. Comments on the Broadcast Treaty and Exceptions and Limitations for Libraries and Archives, 29 November 2012, Available at: http://cis-india.org/a2k/blogs/comments-on-broadcast-treaty-and-exceptions-and-limitations-for-libraries-and-archives (last accessed 25 June, 2015)

6. Comments to the Ministry on WIPO Broadcast Treaty, March 2011, Available at: http://cis-india.org/a2k/blogs/wipo-broadcast-treaty-comments-march-2011 (last accessed 25 June, 2015)

On behalf of the Centre for Internet and Society,

Nehaa Chaudhari Amulya Purushothama

Lawyer/Programme Officer Lawyer/Research Assistant

nehaa@cis-india.org amulyaindavar@gmail.com

[1] Hereafter "Technical Background Paper"

[2] See www.cis-india.org (last accessed 25 June, 2015) for details about CIS' work.

[3] WIPO General Assembly, 34th (18th Ordinary Session, Geneva, September 24- October 3 2007,WO/GA/34/16, p. 55-56;

[4] Protection of Broadcasting Organisations, Technical Background Paper Prepared by the Secretariat, WIPO, Seventh Session, Geneva , April 4 2002, SCCR/7/8, p.3.

[5] Id at p.2.

[6] See for Instance CIS' Statement at SCCR 24 on the WIPO Broadcast Treaty, Available at: http://cis-india.org/a2k/blog/cis-statement-sccr24-broadcast-treaty (last accessed 25 June, 2015).

[7] Id.

[8] Hereafter, the Rome Convention.

[9] Protection of Broadcasting Organisations, Technical Background Paper Prepared by the Secretariat, WIPO, Seventh Session, Geneva , April 4 2002, SCCR/7/8, p.4-5

[10] See 'Overview' of this submission.

[11] See for instance CIS Submission to the Expert Committee: Protection of Broadcasting Organisations under the Proposed Treaty as Compared to Other International Conventions, CIS, Available at: http://cis-india.org/a2k/blogs/protection-of-broadcasting-organisations-under-proposed-broadcast-treaty#_ftn79 (last accessed 25 June, 2015) ; See Also CIS Submission to the Expert Committee: Comment on the Broadening of Definitions in the Proposed Broadcast Treaty Compared to Other International Conventions, C IS, Available at: http://cis-india.org/a2k/blogs/the-broadening-of-definitions-in-the-proposed-broadcast-treaty-compared-to-other-international-conventions#_ftn1 (last accessed 25 June, 2015).

[12] See for example, Study on Copyright Limitations and Exceptions for Libraries and Archives, Available at: www.wpio.int/copyright/en/limitations/libraries_and_archives.html (last accessed 25 June, 2015).

[13] Protection of Broadcasting Organisations, Technical Background Paper Prepared by the Secretariat, WIPO, Seventh Session, Geneva , April 4 2002, SCCR/7/8, p.5

[14] CIS Submission to the Expert Committee: Comment on the Broadening of Definitions in the Proposed Broadcast Treaty Compared to Other International Conventions, C IS, Available at: http://cis-india.org/a2k/blogs/the-broadening-of-definitions-in-the-proposed-broadcast-treaty-compared-to-other-international-conventions#_ftn1 (last accessed 25 June, 2015).

[15] WIPO General Assembly, 34th (18th Ordinary Session, Geneva, September 24- October 3 2007,WO/GA/34/16, p. 55-56;

[16] CIS Submission to the Expert Committee: Protection of Broadcasting Organisations under the Proposed Treaty as Compared to Other International Conventions, CIS, Available at http://cis-india.org/a2k/blogs/protection-of-broadcasting-organisations-under-proposed-broadcast-treaty#_ftn79 : http://cis-india.org/a2k/blogs/protection-of-broadcasting-organisations-under-proposed-broadcast-treaty#_ftn79(last accessed 25 June, 2015) ; See Also CIS Submission to the Expert Committee: Comment on the Broadening of Definitions in the Proposed Broadcast Treaty Compared to Other International Conventions, C IS, Available at: http://cis-india.org/a2k/blogs/the-broadening-of-definitions-in-the-proposed-broadcast-treaty-compared-to-other-international-conventions#_ftn1 (last accessed 25 June, 2015)

[17] Protection of Broadcasting Organisations, Technical Background Paper Prepared by the Secretariat, WIPO, Seventh Session, Geneva , April 4 2002, SCCR/7/8, p.5

[18] For details see CIS Submission to the Expert Committee: Protection of Broadcasting Organisations under the Proposed Treaty as Compared to Other International Conventions, CIS, Available at: http://cis-india.org/a2k/blogs/protection-of-broadcasting-organisations-under-proposed-broadcast-treaty#_ftn79 (last accessed 25 June, 2015) ; See Also CIS Submission to the Expert Committee: Comment on the Broadening of Definitions in the Proposed Broadcast Treaty Compared to Other International Conventions, C IS, Available at: http://cis-india.org/a2k/blogs/the-broadening-of-definitions-in-the-proposed-broadcast-treaty-compared-to-other-international-conventions#_ftn1 (last accessed 25 June, 2015).

[19] See comments under Introduction in this submission.

[20] Protection of Broadcasting Organisations, Technical Background Paper Prepared by the Secretariat, WIPO, Seventh Session, Geneva , April 4 2002, SCCR/7/8, p.15

[21] Protection of Broadcasting Organisations, Technical Background Paper Prepared by the Secretariat, WIPO, Seventh Session, Geneva , April 4 2002, SCCR/7/8, p.15-16

[22] Protection of Broadcasting Organisations, Technical Background Paper Prepared by the Secretariat, WIPO, Seventh Session, Geneva , April 4 2002, SCCR/7/8, p.15

[23] WIPO General Assembly, 34th (18th Ordinary Session, Geneva, September 24- October 3 2007,WO/GA/34/16, p. 55-56;

[24] CIS Submission to the Expert Committee: Protection of Broadcasting Organisations under the Proposed Treaty as Compared to Other International Conventions, CIS, Available at: http://cis-india.org/a2k/blogs/protection-of-broadcasting-organisations-under-proposed-broadcast-treaty#_ftn79 (last accessed 25 June, 2015).

[25] Protection of Broadcasting Organisations, Technical Background Paper Prepared by the Secretariat, WIPO, Seventh Session, Geneva , April 4 2002, SCCR/7/8, p.16-17

[26] CIS Submission to the Expert Committee: Comment on the Broadening of Definitions in the Proposed Broadcast Treaty Compared to Other International Conventions, C IS, Available at: http://cis-india.org/a2k/blogs/the-broadening-of-definitions-in-the-proposed-broadcast-treaty-compared-to-other-international-conventions#_ftn (last accessed 25 June, 2015).

[27] Protection of Broadcasting Organisations, Technical Background Paper Prepared by the Secretariat, WIPO, Seventh Session, Geneva , April 4 2002, SCCR/7/8, p.17-18

For more details visit https://cis-india.org/a2k/blogs/comments-on-the-protection-of-broadcasting-organizations-technical-background-paper

Comments on the Open Licensing Policy Guidelines of the National Mission on Education through Information and Communication Technology

nehaa — 2014-06-30T11:26:44Z

The Centre for Internet and Society submitted its comments on the Open Licensing Policy Guidelines to the National Mission on Education through Information and Communication Technology (NMEICT), Ministry of Human Resource Development, Government of India, on May 28, 2014. The comments were prepared by Sunil Abraham and Nehaa Chaudhari.

I. PRELIMINARY

1.1 This submission presents comments from the Centre for Internet and Society (“CIS”)[1] on the Open Licensing Policy Guidelines (“Guidelines”) of the National Mission on Education through Information and Communication Technology (“NMEICT”).

1.2.The Guidelines provide a set of recommendations and procedures to ensure that content produced under the NMEICT is openly licensed.

1.3 CIS commends the NMEICT for this initiative, and appreciates the opportunity to provide feedback on the Guidelines. CIS’ comments are as stated hereafter.

II. SECTION-WISE COMMENTS

2.1 Preamble

2.1.1 Recognizing the role of intergovernmental agencies in promoting the use of open licenses, the Preamble makes a reference to the 2012 Paris OER Declaration.[2] CIS appreciates this inclusion and suggests that reference may also be made to another important declaration, i.e., the Cape Town Open Education Declaration, released in 2008,[3] which encourages the publishers and governments to make available, at no charge, via the internet, publicly funded educational materials.

2.2 Principles of Openness

2.2.1 The first principle[4] requires the treatment of information products as “national resources.” The phrase “national resource” most often used in connection with rivers, forests, mines and minerals or spectrum would imply specific legal connotations and might therefore prove to be a misnomer for information products. It is suggested that “national resources” be replaced with “commons” or, alternatively, the sentence be restructured to state that content, software and technology would be treated as “information commons”.

2.2.2 The third principle[5] states that “information and knowledge resources” shall be available “freely”. “Freely” has a wide array of connotations including the absence of restrictions and the absence of payment/costs. It is suggested that “freely” be further clarified and perhaps be replaced with “on a gratis basis”.

2.2.3. The fifth principle deals with the transfer of “all intellectual property rights” to the Government of India and the retention of “moral rights” with the contributor. Intellectual property rights is a wider term including among others copyright and related rights, patents, trademarks and industrial designs. There are two types of right under copyright- moral rights (of attribution for the work) and economic rights (which allow the owner to derive financial benefit and reward from the use of her/his work).[6] It is submitted that the intention behind the fifth principle is seemingly to transfer all economic rights to the Government of India while ensuring due credit to the author/contributor for her/his work. “Intellectual property rights” being a wider term would be a misnomer in this sense, as would the use of “copyright”, since this does not appreciate the distinction between economic and moral rights. Therefore, it is suggested that “intellectual property rights” be replaced with “economic rights” for the applicable branch of copyright law.

2.2.4. The sixth principle deals with the release of information and knowledge resources in a “suitable open licence”. “Suitable open licence” could include both indigenously developed as well as existing licences. It is submitted that in the interests of interoperability, one of the fundamental principles of open access, it would be appropriate to adopt an existing system of licensing. It is recommended therefore, that the Creative Commons approach could be adopted for content and the GNU or BSD licenses could be considered for software. It is strongly suggested that “suitable open licence” be replaced with a specific license framework to ensure interoperability, particularly between information and knowledge resources produced by other nations also funding and adopting OER.

2.3 Guidelines

2.3.1 The second guideline mandates a single portal/gateway for all knowledge resources under this project. It is suggested that this be replaced with the adoption of the principle ‘lots of copies keep stuff safe’, the basis for the LOCKSS Program of Stanford University.[7] The LOCKSS Program allows participating libraries to take custody of and preserve access to the content to which they have subscribed. It is suggested that a similar approach be adopted towards the content being developed under the NMEICT OER project.

2.3.2. The fourth guideline makes a reference to the possible adoption of a CC-BY-SA licence to make content available. The rationale behind a Share-Alike clause could be to prevent the appropriation of the education market by ‘rent seekers’. However, it is necessary to examine this further. The danger of appropriation and subsequent monopolization of content is one that needs to be addressed provided that the process of content creation itself is dependent on contributions from subsequent utilizers of content. Content under the NMEICT model is developed as a result of government contributions and is not dependent on subsequent utilizers feeding back into the system, thus invalidating the need for a Share -Alike clause. Additionally the absence of a Share-Alike clause is likely to incentivise private participation. Private players would have the freedom to utilize the content generated under this scheme, modify and develop it further and make it available in the market for sale. This would be extremely useful in meeting the last mile connectivity and ensuring the wider availability of content. It is therefore submitted that that the licence to be adopted should be CC-BY.

2.3.3. The fifth guideline places a requirement on the grantee/creator to intimate the NMEICT about the use of other open license materials. It is submitted that this could be excessive regulation. It is suggested that this guideline be modified and a two- fold requirement be placed on the content creator/grantee- one, to specify clearly and explicitly the licence being used and the licensing conditions in her/his work, and two, to attribute any and all content used to the rightful creator and holder of copyright.

2.3.4. The eighth guideline mandates the use of “open formats” for delivery of outputs. It is suggested that “open formats” be replaced with the mandatory adherence to “open standards” and a reference be made to the National Policy for Open Standards notified in 2010. The eighth guideline also discourages the use of proprietary software. It is submitted that the requirements of sharing the source file along with the relevant APIs need a more detailed explanation. It is suggested that the difference between a development platform/environment and the software written subsequently over this platform be clarified. Notwithstanding that the former may be proprietary if no other alternative is available, developers/creators/licensees would be obligated to openly license any code/software they create using the platform. It is suggested that it ought to be made explicit that there shall be no choice for the latter and that the choice was limited to the type of platform being employed.

2.3.5. It is suggested that a ninth guideline be included. This guideline would deal with accessibility for persons with disabilities. The Web Content Accessibility Guidelines 2.0[8] may be referenced and invoked.

CONCLUDING OBSERVATIONS

3.1. CIS welcomes the initiative of the NMEICT towards the adoption of an OER Policy. These Guidelines, while indeed addressing the important issues associated towards the end of adoption of an OER Policy, would be further strengthened by addressing the concerns enumerated above.

3.2. CIS is thankful to the NMEICT for the opportunity to provide feedback on this Policy. As a non-governmental research organization working in the areas of Openness and[9] and Access to Knowledge,[10] CIS appreciates this effort by the NMEICT, and would be privileged to work with the Government on this and other matters in these areas.

[1].See www.cis-india.org (last accessed 26 May, 2014).

[2].See http://www.unesco.org/new/fileadmin/MULTIMEDIA/HQ/CI/CI/pdf/Events/Paris%20OER%20Declaration_01.pdf (last accessed 26 May, 2014).

[3].See http://www.capetowndeclaration.org/read-the-declaration (last accessed 26 May, 2014).

[4].See 2(a), Principles of Openness of the Guidelines.

[5].See 2(c), Principles of Openness of the Guidelines.

[6]. See illustratively http://www.wipo.int/freepublications/en/intproperty/909/wipo_pub_909.html#moral_rights (last accessed 26 May, 2014); http://cyber.law.harvard.edu/property/library/moralprimer.html (last accessed 26 May, 2014); http://www.ipo.gov.uk/types/copy/c-otherprotect/c-moralrights.htm (last accessed 26 May, 2014).

[7]. See http://www.lockss.org/about/what-is-lockss/ (last accessed 26 May, 2014).

[8].See http://www.w3.org/TR/WCAG20/ (last accessed 28 May, 2014).

[9].See http://cis-india.org/openness (last accessed 26 May, 2014).

[10].See http://cis-india.org/a2k (last accessed 26 May, 2014).

For more details visit https://cis-india.org/openness/blog-old/comments-on-open-licensing-policy-guidelines-of-national-mission-on-education-through-information-and-communication-technology

Comments on the Guidelines for Examination of Computer Related Inventions (CRIs)

sinha — 2015-10-27T14:46:24Z

Recently, the Indian Patents Office released the Guidelines for Examination of Computer Related Inventions (“2015 Guidelines/ Guidelines”) in an attempt to clarify examination of software related patents in India. This post is a pure analysis of the 2015 Guidelines. The new Guidelines, essentially, narrow the exclusions of secttion 3(k), thereby enlarging the scope of software related applications eligible for a patent grant. More alarmingly, there is low emphasis on the application of the subject matter test, increased ambiguity on the nature of subject matter and an exclusionary list of examples appended to the document. In the following post, CIS highlights these concerns and presents solutions, and also proposes a definition of "computer programme per se". Read on to understand how the new guidelines will potentially lead to an increase in software patenting activity by expanding the scope of patentable subject matter – in negation of the legislative intent of section 3(k) of the Indian Patents Act, 1970.

(Prepared with comments from Pranesh Prakash)

The 2015 Guidelines were stuck in the pipeline for a long time. The first draft was released in 2013 and a round of public consultation later, it paved the way for the current guidelines. The guidelines exist to supplement the practices and procedures followed by the Patent Office (as prescribed in the Indian 'Manual of Patent Office Practice and Procedure')[1], with the specific objective of ensuring consistent and uniform examination of CRI applications.

To begin with, the Guidelines have been significantly trimmed down from their draft version. CIS had commented on the Draft Guidelines in 2013 and broadly observed/recommended the following:

That the explanation to section 3(k) (Para 2.4) include the subject matter test.
That the Guidelines clarify that section 3(k) intending to exclude “computer programs per se” means excluding computer programs by themselves.
Supplying clarifications to the meaning of Inventive Step

Para 5.3 stated: (ja) "inventive step" means a feature of an invention that involves technical advance as compared to the existing knowledge or having economic significance or both and that makes the invention not obvious to a person skilled in the art;

Ambiguity around the terms “technical advance” and “person skilled in the art” persists.

The Guidelines place CRIs in the same pool as other inventions, to the extent of suggesting that CRIs be evaluated on same standards of novelty, non-obviousness and industrial applicability as other inventions. This is problematic, because CRIs are inventions with features such as obsolence and being largely incremental innovations.
That the guidelines prescribing dictionary meanings for undefined terms (in Indian statutes) – was a dangerous prescription to make because the words “firmware”, “software”, “hardware” and “algorithm” have different meanings in different contexts.
That the guidelines had a misguided sense of ordering the paragraphs. The subject matter test (which should be undertaken first) was mentioned after the narrower test for computer programs per se. To ensure correct examination re CRIs the application of the subject matter test should precede all other patent criterion evaluations.[2]

All the above observations/recommendations still hold true – unfortunately, none of them have been incorporated into the 2015 Guidelines. The few unwanted changes that eventually made their way have nullified the progress the 2013 draft made in terms of providing clarity to section 3(k) and narrowing down the scope of software patents. For instance-

Instead of supplying clarity to terms such as “technical effect”, “technical advancement”, the 2015 Guidelines removethe definition of these terms. However, section 6 lists six questions that must be addressed by the examiner to determine the technical advancement of the invention.
Similarly, the explanation to section 3(k) has been deleted in the 2015 text.
The explanation to “inventive step” made reference to the Enercon case (thereby Windsurfing International Inc. and Pozzoli case), for the determination of inventive step. The explanation has also been discarded in the 2015 Guidelines.
Other changes include providing better definition of Algorithms, making thescope of mathematical model and business method claims under section 3(k) more expansive.

Narrowing down excluded subject matter relating to CRIs

Under the crucial section “Determination of excluded subject matter relating to CRIs” (section 5.4 in the draft Guidelines; section 4.5 in 2015 Guidelines), the 2013 draft deemed inventions consisting of computer programmes combined with general purpose computers as non-patentable. However, a computer programme couple with novel hardware was deemed possibly patentable subject matter. That version stated “5.4.6....In cases where the novelty resides in the device, machine or apparatus and if such devices are claimed in combination with the novel or known computer programmes to make their functionality definitive, the claims to these devices may be considered patentable, if the invention has passed the triple test of novelty, inventive step and industrial applicability. ” In the 2015 Guidelines, however, section 4.5 does not shed substantive light on the matter of patentability of software combined with novel hardware. Instead a new section titled “Determinants” has been introduced:

5. Determinants

5.1 For being considered patentable, the subject matter should involve either

- a novel hardware, or

-a novel hardware with a novel computer programme, or

-a novel computer programme with a known hardware which goes beyond the normal interaction with such hardware and affects a change in the functionality and/or performance of the existing hardware.

A computer program, when running on or loaded into a computer, going beyond the “normal” physical interactions between the software and the hardware on which it is run, and is capable of bringing further technical effect may not be considered as exclusion under these provisions.

And,

6. Indicators to determine technical advancement

6.1 While examining CRI applications, the examiner shall confirm that the claims have the requisite technical advancement. The following questions should be addressed by the examiner while determining the technical advancement of the inventions concerning CRIs:

(i) whether the claimed technical feature has a technical contribution on a process which is carried on outside the computer;

(ii) whether the claimed technical feature operates at the level of the architecture of the computer;

(iii) whether the technical contribution is by way of change in the hardware or the functionality of hardware.

(iv) whether the claimed technical contribution results in the computer being

made to operate in a new way;

(v) in case of a computer programme linked with hardware, whether the programme makes the computer a better computer in the sense of running more efficiently and effectively as a computer;

(vi) whether the change in the hardware or the functionality of hardware amounts to technical advancement.

If answer to ANY of the above questions is in affirmative, the invention may not be considered as exclusion under section 3 (k) of the Patents Act, 1970.

It is evident from section 5 that the Patent Office intends to expand the scope of patentable subject matter, and narrow down applicability of section 3(k). The clause “a novel computer programme with a known hardware which goes beyond the normal interaction with such hardware and affects a change in the functionality and/or performance of the existing hardware.” contributes to the expansion. There is no definition as to what will constitute“...normal interaction with such hardware...” Neither do the Guidelines set a standard for assessment of “normal interaction.” Should “normal interaction” be determined from the definition/perspective supplied by the vendor, or from the known universe of interactions possible from that device?

Further, as a stakeholder (Anand and Anand) in their comments on the 2013 draft pointed out, increasing the threshold to a novel hardware (and not just a general purpose computing machine) would go against the legislative intent as the requirement of a novel hardware was not mentioned anywhere in the Act.

These gaps may pave the path for a rather broad scope of patentable software inventions.

Secondary application of the subject matter test

“...Therefore, if a computer programme is not claimed by “in itself” rather, it has been claimed in such manner so as to establish industrial applicability of the invention and fulfills all other criterion of patentability, the patent should not be denied. In such a scenario, the claims in question shall have to be considered taking in to account whole of the claims. ”

The way 3(k) functions is that it's a subject matter test for what an invention is (with non-inventions excluded, since an application that has not been found to be in order may not be granted a patent
under s.43, and to be 'in order', the application has to be "for an invention" (s.6, s.10, etc.)). The tests for novelty, inventive step, and industrial applicability have to in any case be applied, regardless of the subject matter test. So what the above-quoted sentence does is removes the subject matter test, as it uses "in itself" to mean to the exclusion of patentability tests other than subject matter.

Proposed definition of “computer programme per se”

Further, CIS suggests a definition to "computer programme per se":

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

Furthermore, since the inclusion of computer programmes in a broader application should not render the application ineligible subject matter, CIS previously proposed an addition to the test:

"We propose a new part to the above test to make the clause clearer. The Manual should specify that “the computer programme portions of any claimed invention should be treated as if it were covered by prior art and patentability should thus be determined with respect to the other features of the invention”. This way, we can ensure that an invention which merely uses or implements a computer programme is not granted patent on the basis of the inventiveness of the computer programme per se."

Issues with illustrative examples

CIS observes that most of the examples provided in the document are things that should *not* be awarded patents as per section 3(k).

8.2 describes a computer programme per se, and awarding a patent to this would (additionally has no novelty, no inventive step)
8.4 describes a computer programme per se. General Purpose Computer. (additionally has no novelty, no inventive step)
8.5 describes a computer programme per se. The "repeaters", etc., are software. General Purpose Computer. (additionally has no novelty, no inventive step)
8.6 describes a computer programme per se. (additionally has no novelty, no inventive step)
8.8 describes a computer programme per se. It can be implemented on any general purpose computer. (additionally has no novelty, no inventive step)
8.1 is a simple algorithm, and forms the basis of parallel processing in a computer, of which a wireless device is a subset. (additionally has no novelty, no inventive step)
8.1, 8.3, 8.7 have no novelty, no inventive step, despite not being computer programmes per se.

This issue was also raised by stakeholders in their comments to the IPO on the 2013 draft.

Conclusion

The 2015 Guidelines have narrowed the exclusions in section 3(k) – which does not bode well for innovation, especially innovation by startup enterprises. The new guidelines will permit a larger scope of applications to be granted, which will lead to bigger players in the market amassing huger patent portfolios. There is also an urgent need for clarification on “ novel hardware”.

On a broader level, CIS has repeatedly argued for discarding patent protection for software inventions, because of the unique nature of such inventions and the repercussions software patenting has on subsequent innovative activity. The 2015 Guidelines disappoint on rolling back and clarifying software patenting in India.

[1]Chapter 08.03.05.10 of the Manual, containing provisions pertaining to section 3(k) of the Patents Act, 1970 shall stand deleted with coming into force of these Guidelines for examination of CRIs.

[2]The flow chart in the 2013 draft guidelines show a step by step process of examining CRIs. However, the subject matter determination is done towards the end. There is debate on whether there should be a set order for examining patents. However, in the case of CRIs there must be an exception as the statute explicitly prohibits certain types of patents (business method, algorithm etc). As argued earlier, in order to reduce transaction costs, the subject matter test must be made at the very beginning. There should at least be a preliminary determination as to Section 3(k) to reject patent applications for those inventions that can easily be classified under this provision.

For more details visit https://cis-india.org/a2k/blogs/comments-on-the-guidelines-for-examination-of-computer-related-inventions-cris

Comments on the Draft Outcome Document of the UN General Assembly’s Overall Review of the Implementation of WSIS Outcomes (WSIS+10)

geetha — 2015-11-18T06:33:13Z

Following the comment-period on the Zero Draft, the Draft Outcome Document of the UN General Assembly's Overall Review of implementation of WSIS Outcomes was released on 4 November 2015. Comments were sought on the Draft Outcome Document from diverse stakeholders. The Centre for Internet & Society's response to the call for comments is below.

The WSIS+10 Overall Review of the Implementation of WSIS Outcomes, scheduled for December 2015, comes as a review of the WSIS process initiated in 2003-05. At the December summit of the UN General Assembly, the WSIS vision and mandate of the IGF are to be discussed. The Draft Outcome Document, released on 4 November 2015, is towards an outcome document for the summit. Comments were sought on the Draft Outcome Document. Our comments are below.

The Draft Outcome Document of the UN General Assembly’s Overall Review of the Implementation of WSIS Outcomes (“the current Draft”) stands considerably altered from the Zero Draft. With references to development-related challenges, the Zero Draft covered areas of growth and challenges of the WSIS. It noted the persisting digital divide, the importance of innovation and investment, and of conducive legal and regulatory environments, and the inadequacy of financial mechanisms. Issues crucial to Internet governance such as net neutrality, privacy and the mandate of the IGF found mention in the Zero Draft.
The current Draft retains these, and adds to them. Some previously-omitted issues such as surveillance, the centrality of human rights and the intricate relationship of ICTs to the Sustainable Development Goals, now stand incorporated in the current Draft. This is most commendable. However, the current Draft still lacks teeth with regard to some of these issues, and fails to address several others.
In our comments to the Zero Draft, CIS had called for these issues to be addressed. We reiterate our call in the following paragraphs.

(1) ICT for Development

In the current Draft, paragraphs 14-36 deal with ICTs for development. While the draft contains rubrics like ‘Bridging the digital divide’, ‘Enabling environment’, and ‘Financial mechanisms’, the following issues are unaddressed:
Equitable development for all;
Accessibility to ICTs for persons with disabilities;
Access to knowledge and open data.

Equitable development

In the Geneva Declaration of Principles (2003), two goals are set forth as the Declaration’s “ambitious goal”: (a) the bridging of the digital divide; and (b) equitable development for all (¶ 17). The current Draft speaks in detail about the bridging of the digital divide, but the goal of equitable development is conspicuously absent. At WSIS+10, when the WSIS vision evolves to the creation of inclusive ‘knowledge societies’, equitable development should be both a key principle and a goal to stand by.
Indeed, inequitable development underscores the persistence of the digital divide. The current Draft itself refers to several instances of inequitable development; for ex., the uneven production capabilities and deployment of ICT infrastructure and technology in developing countries, landlocked countries, small island developing states, countries under occupation or suffering natural disasters, and other vulnerable states; lack of adequate financial mechanisms in vulnerable parts of the world; variably affordable (or in many cases, unaffordable) spread of ICT devices, technology and connectivity, etc.
What underscores these challenges is the inequitable and uneven spread of ICTs across states and communities, including in their production, capacity-building, technology transfers, gender-concentrated adoption of technology, and inclusiveness.
As such, it is essential that the WSIS+10 Draft Outcome Document reaffirm our commitment to equitable development for all peoples, communities and states.
We suggest the following inclusion to paragraph 5 of the current Draft:

“5. We reaffirm our common desire and commitment to the WSIS vision to build an equitable, people-centred, inclusive, and development-oriented Information Society…”

Accessibility for persons with disabilities

10. Paragraph 13 of the Geneva Declaration of Principles (2003) pledges to “pay particular attention to the special needs of marginalized and vulnerable groups of society” in the forging of an Information Society. Particularly, ¶ 13 recognises the special needs of older persons and persons with disabilities.

11. Moreover, ¶ 31 of the Geneva Declaration of Principles calls for the special needs of persons with disabilities, and also of disadvantaged and vulnerable groups, to be taken into account while promoting the use of ICTs for capacity-building. Accessibility for persons with disabilities is thus core to bridging the digital divide – as important as bridging the gender divide in access to ICTs.

12. Not only this, but the WSIS+10 Statement on the Implementation of WSIS Outcomes (June 2014) also reaffirms the commitment to “provide equitable access to information and knowledge for all… including… people with disabilities”, recognizing that it is “crucial to increase the participation of vulnerable people in the building process of Information Society…” (¶8).

13. In our previous submission, CIS had suggested language drawing attention to this. Now, the current Draft only acknowledges that “particular attention should be paid to the specific ICT challenges facing… persons with disabilities…” (paragraph 11). It acknowledges also that now, accessibility for persons with disabilities constitutes one of the core elements of quality (paragraph 22). However, there is a glaring omission of a call to action, or a reaffirmation of our commitment to bridging the divide experienced by persons with disabilities.

14. We suggest, therefore, the addition of the following language the addition of paragraph 24A to the current Draft. Sections of this suggestion are drawn from ¶8, WSIS+10 Statement on the Implementation of WSIS Outcomes.

"24A. Recalling the UN Convention on the rights of people with disabilities, the Geneva principles paragraph 11, 13, 14 and 15, Tunis Commitment paras 20, 22 and 24, and reaffirming the commitment to providing equitable access to information and knowledge for all, building ICT capacity for all and confidence in the use of ICTs by all, including youth, older persons, women, indigenous and nomadic peoples, people with disabilities, the unemployed, the poor, migrants, refugees and internally displaced people and remote and rural communities, it is crucial to increase the participation of vulnerable people in the building process of information Society and to make their voice heard by stakeholders and policy-makers at different levels. It can allow the most fragile groups of citizens worldwide to become an integrated part of their economies and also raise awareness of the target actors on the existing ICTs solution (such as tolls as e- participation, e-government, e-learning applications, etc.) designed to make their everyday life better. We recognise need for continued extension of access for people with disabilities and vulnerable people to ICTs, especially in developing countries and among marginalized communities, and reaffirm our commitment to promoting and ensuring accessibility for persons with disabilities. In particular, we call upon all stakeholders to honour and meet the targets set out in Target 2.5.B of the Connect 2020 Agenda that enabling environments ensuring accessible telecommunication/ICT for persons with disabilities should be established in all countries by 2020.”

Access to knowledge and open data

15. The Geneva Declaration of Principles dedicates a section to access to information and knowledge (B.3). It notes, in ¶26, that a “rich public domain” is essential to the growth of Information Society. It urges that public institutions be strengthened to ensure free and equitable access to information (¶26), and also that assistive technologies and universal design can remove barriers to access to information and knowledge (¶25). Particularly, the Geneva Declaration advocates the use of free and open source software, in addition to proprietary software, to meet these ends (¶27).

16. It was also recognized in the WSIS+10 Statement on the Implementation of WSIS Outcomes (‘Challenges-during implementation of Action Lines and new challenges that have emerged’) that there is a need to promote access to all information and knowledge, and to encourage open access to publications and information (C, ¶¶9 and 12).

17. In our previous submission, CIS had highlighted the importance of open access to knowledge thus: “…the implications of open access to data and knowledge (including open government data), and responsible collection and dissemination of data are much larger in light of the importance of ICTs in today’s world. As Para 7 of the Zero Draft indicates, ICTs are now becoming an indicator of development itself, as well as being a key facilitator for achieving other developmental goals. As Para 56 of the Zero Draft recognizes, in order to measure the impact of ICTs on the ground – undoubtedly within the mandate of WSIS – it is necessary that there be an enabling environment to collect and analyse reliable data. Efforts towards the same have already been undertaken by the United Nations in the form of ‘Data Revolution for Sustainable Development’. In this light, the Zero Draft rightly calls for enhancement of regional, national and local capacity to collect and conduct analyses of development and ICT statistics (Para 56). Achieving the central goals of the WSIS process requires that such data is collected and disseminated under open standards and open licenses, leading to creation of global open data on the ICT indicators concerned.”

18. This crucial element is missing from the current Draft of the WSIS+10 Outcome Document. Of course, the current Draft notes the importance of access to information and free flow of data. But it stops short of endorsing and advocating the importance of access to knowledge and free and open source software, which are essential to fostering competition and innovation, diversity of consumer/ user choice and ensuring universal access.

19. We suggest the following addition – of paragraph 23A to the current Draft:

"23A. We recognize the need to promote access for all to information and knowledge, open data, and open, affordable, and reliable technologies and services, while respecting individual privacy, and to encourage open access to publications and information, including scientific information and in the research sector, and particularly in developing and least developed countries.”

(2) Human Rights in Information Society

20. The current Draft recognizes that human rights have been central to the WSIS vision, and reaffirms that rights offline must be protected online as well. However, the current Draft omits to recognise the role played by corporations and intermediaries in facilitating access to and use of the Internet.

21. In our previous submission, CIS had noted that “the Internet is led largely by the private sector in the development and distribution of devices, protocols and content-platforms, corporations play a major role in facilitating – and sometimes, in restricting – human rights online”.

22. We reiterate our suggestion for the inclusion of paragraph 43A to the current Draft:

"43A. We recognize the critical role played by corporations and the private sector in facilitating human rights online. We affirm, in this regard, the responsibilities of the private sector set out in the Report of the Special Representative of the Secretary General on the issue of human rights and transnational corporations and other business enterprises, A/HRC/17/31 (21 March 2011), and encourage policies and commitments towards respect and remedies for human rights.”

(3) Internet Governance

The support for multilateral governance of the Internet

23. While the section on Internet governance is not considerably altered from the zero draft, there is a large substantive change in the current Draft. The current Draft states that the governance of the Internet should be “multilateral, transparent and democratic, with full involvement of all stakeholders” (¶50). Previously, the zero draft recognized the “the general agreement that the governance of the Internet should be open, inclusive, and transparent”.

24. A return to purely ‘multilateral’ Internet governance would be regressive. Governments are, without doubt, crucial in Internet governance. As scholarship and experience have both shown, governments have played a substantial role in shaping the Internet as it is today: whether this concerns the availability of content, spread of infrastructure, licensing and regulation, etc. However, these were and continue to remain contentious spaces.

25. As such, it is essential to recognize that a plurality of governance models serve the Internet, in which the private sector, civil society, the technical community and academia play important roles. We recommend returning to the language of the zero draft in ¶32: “open, inclusive and transparent governance of the Internet”.

Governance of Critical Internet Resources

26. It is curious that the section on Internet governance in both the zero and the current Draft makes no reference to ICANN, and in particular, to the ongoing transition of IANA stewardship and the discussions surrounding the accountability of ICANN and the IANA operator. The stewardship of critical Internet resources, such as the root, is crucial to the evolution and functioning of the Internet. Today, ICANN and a few other institutions have a monopoly over the management and policy-formulation of several critical Internet resources.

27. While the WSIS in 2003-05 considered this a troubling issue, this focus seems to have shifted entirely. Open, inclusive, transparent and global Internet are misnomer-principles when ICANN – and in effect, the United States – continues to have monopoly over critical Internet resources. The allocation and administration of these resources should be decentralized and distributed, and should not be within the disproportionate control of any one jurisdiction.

28. Therefore, we reiterate our suggestion to add paragraph 53A after Para 53:

"53A. We affirm that the allocation, administration and policy involving critical Internet resources must be inclusive and decentralized, and call upon all stakeholders and in particular, states and organizations responsible for essential tasks associated with the Internet, to take immediate measures to create an environment that facilitates this development.”

Inclusiveness and Diversity in Internet Governance

29. The current Draft, in ¶52, recognizes that there is a need to “promote greater participation and engagement in Internet governance of all stakeholders…”, and calls for “stable, transparent and voluntary funding mechanisms to this end.” This is most commendable.

30. The issue of inclusiveness and diversity in Internet governance is crucial: today, Internet governance organisations and platforms suffer from a lack of inclusiveness and diversity, extending across representation, participation and operations of these organisations. As CIS submitted previously, the mention of inclusiveness and diversity becomes tokenism or formal (but not operational) principle in many cases.

31. As we submitted before, the developing world is pitifully represented in standards organisations and in ICANN, and policy discussions in organisations like ISOC occur largely in cities like Geneva and New York. For ex., 307 out of 672 registries listed in ICANN’s registry directory are based in the United States, while 624 of the 1010 ICANN-accredited registrars are US-based.

32. Not only this, but 80% of the responses received by ICANN during the ICG’s call for proposals were male. A truly global and open, inclusive and transparent governance of the Internet must not be so skewed. Representation must include not only those from developing countries, but must also extend across gender and communities.

33. We propose, therefore, the addition of a paragraph 51A after Para 51:

"51A. We draw attention to the challenges surrounding diversity and inclusiveness in organisations involved in Internet governance, including in their representation, participation and operations. We note with concern that the representation of developing countries, of women, persons with disabilities and other vulnerable groups, is far from equitable and adequate. We call upon organisations involved in Internet governance to take immediate measures to ensure diversity and inclusiveness in a substantive manner.”

Prepared by Geetha Hariharan, with inputs from Sunil Abraham and Japreet Grewal. All comments submitted towards the Draft Outcome Document may be found at this link.

For more details visit https://cis-india.org/internet-governance/blog/comments-on-the-draft-outcome-document-of-the-un-general-assembly2019s-overall-review-of-the-implementation-of-wsis-outcomes-wsis-10

Comments on the Draft Guidelines for Computer Related Inventions

puneeth — 2013-08-02T08:27:03Z

The Centre for Internet and Society (CIS) submitted the below comments to the office of the Controller General of Patents Designs & Trademarks, Mumbai on July 26, 2013.

July 26, 2013

To,
The Office of the Controller General of Patents, Designs & Trade Marks
Bhoudhik Sampada Bhavan,
Antop Hill, S. M. Road,
Mumbai - 400 037

Subject: Comments on the Draft Guidelines for Computer Related Inventions
The Centre for Internet and Society (“CIS”) would like to commend the Office of Controller General of Patents, Designs and Trade Marks (“Controller General”) for preparing and inviting comments on the Draft Guidelines on Computer Related Inventions (“Guidelines”). With respect to the Guidelines, CIS would like to submit the following comments:

Background

The patent examiner is the most important link in the chain of patent law as he/she acts as the gatekeeper to defend the boundaries of patent law. This is especially so in the case of CRIs as the debate is centered on the question of the subject matter of patents. We are in full agreement with the position of excluding computer programs per se from patent protection. Especially given that they already qualify for protection under both copyright and trademark law. The question of patenting CRIs is problematic as such inventions have a high rate of obsolence. To avoid this, CRIs need to meet a higher standard during patent examination. It is in this interest that CIS presents the following comments on the Guidelines.

Scope of Section 3(k) , paragraph 2.4:
"Therefore, the re-instatement of the original phraseology of section 3 (k) clearly indicates that the legislature intended to retain the original scope of exclusion and did not approve its widening under this sub-section as attempted through the ordinance."

The Guidelines correctly identify the position of law as regards Section 3(k) and the evolution of the provision through the 2002 and 2004 amendments. However, it does not explain the meaning of the provision with regard to the way it applies to patent examination. The meaning of Section 3(k) is to exclude the grant of patents for computer programs per se based on the subject matter test.

So, the proposition here is that if a patent application were to fall in the category of nonpatentable subject matter, the patent should not be awarded. This should be made clearer for the benefit of prospective patent applicants and examiners. Our submission is that the explanation to Section 3(k) should include the subject matter test.
Definition of “per se”, paragraph 3.11:
The term “per se” is not defined in Indian statutes and hence, for interpretation of this term, the general dictionary meaning may be used.

In our comment on the 2010 Patent Manual, we had asked for clarification on the meaning of the phrase “per se” in Section 3(k).[1] While the Guidelines attempt to clarify the meaning, referring to the dictionary meaning of the phrase creates numerous issues. The phrase per se was first used in the European Patent Convention and the Proposed EU Directive on CRIs where per se was taken to mean on the face of it.

When similar phraseology was used in the Indian Act, some groups felt that this should be interpreted similarly rather than to mean by itself. The Guidelines do refer to the latter meaning. But the issue is with the use of the phrase in the provision and its cumulative meaning. So, it would help if the Guidelines, while explaining the meaning of the phrase also clarify that 3(k) means computer programs by themselves.
Definitions of “algorithm”, “software”, “hardware” and “firmware”, paragraph 3
Once again the Guidelines make reference to the Oxford Dictionary while defining these words. It is understandable that there is some difficulty in defining them as there are no statutes that explicitly define these words. However, the definitions in the Dictionary pertain to general usage and the implications of these words can change based on context. In this regard, it would be useful for the patent examiner to consult an expert while dealing with the usage of these terms or at least use a technical dictionary that defines these words as per their usages in that particular field.
Claims concerning CRIs- subject matter, paragraph 4
This Section correctly identifies the categories under which claims are made in patent applications for CRIs. However, even before making such categories, the applications must be tested on the question of subject matter. As pointed out earlier, if an invention falls outside defined subject matter, it should not be granted a patent.

The number of patents filed has gone up by almost 50% this year[2] and there is a need to dispose off, applications in a speedy but efficient manner. It must also be noted that there have been many cases where business methods and algorithms have been passed off as inventions and granted patents. [3] In order to avoid such errors and reduce transaction costs, it would help to carry out a preliminary subject matter evaluation at the outset.
Examination Procedure, paragraph 5
The examination procedure of patent applications relating to CRIs is common with other inventions to the extent of considering novelty, inventive step and industrial applicability.

The Guidelines suggest that CRIs can be tested on the same standards as other inventions on the above three questions. However, CRIs differ from other inventions. Most CRIs are an incremental innovation on existing CRIs. Many CRIs also become obsolete in a very short time. In the field of data storage for instance, the first CD was invented in 1982, DVD in 1995 and the flash drive in 1999. While each of these inventions was far superior to their predecessor, the time between each incremental innovation has drastically reduced.

If an invention can become obsolete in as little as 2 years, it would make little sense to grant monopoly rights for 20 years. So even if a CRI passes the three tests of novelty, inventive step and industrial applicability, it needs to be evaluated from the perspective of its possible obsolence. In such a scenario, the examiner should look at the history of innovation in that particular field to ascertain that the invention does not become obsolete in a short time.

Inventive Step, paragraph 5.3
(ja) "inventive step" means a feature of an invention that involves technical advance as compared to the existing knowledge or having economic significance or both and that makes the invention not obvious to a person skilled in the art;

The Guidelines quote Section 2(ja) of the Patents Act and refer to the IPAB decision in the Enercon case to explain the meaning of inventive step. But, the meaning of certain terms, like “technical advance” and “person skilled in the art” is unclear.

With respect to “technical advance”, one could infer the meaning from (4) of the quote from the Enercon case (citing Windsurfing and Pozzoli) which reads:
Imputing to a normally skilled but unimaginative addressee what was common general knowledge in the art at the priority date

However, as Prof. NS Gopalakrishnan notes, the standards for what is an inventive step differs based on the industry.[4] For instance, the pharmaceutical industry has a relatively lower standard for inventiveness when compared to other industries.[5] Given the unique nature of CRIs, it is important to clarify to what the standard for inventiveness or the “technical advance” is in this case.

In the same respect, the meaning of “person skilled in the arts” also needs explanation in relation to CRIs. This is especially so since the patentable subject matter as per the Guidelines are software attached to a hardware device. As per the case of Schlumberger v. EMGS[6] before the English Court of Appeals, in case of inventions which involve the “marriage of skills”, a person skilled of arts can be a team of persons. The case also held that the person who judges sufficiency and the person from whose standpoint nonobviousness is judged are different. Given the range of areas that are involved in CRIs, a person skilled of art would have no set description and would more often than not be a team of people.
Ordering of paragraphs 5.4.5 to 5.4.7
These paragraphs deal with the subject matter test. Paragraphs 5.4.5 and 5.4.6 deal with computer programs and the implications of the use of the phrase “per se”. Paragraph 5.4.7 deals with business method, mathematical method and other excluded patents as per law. As argued earlier, the subject matter evaluation needs to be made in the first instance. So a patent examiner must be made aware of the exclusions at first and then the exception or the dilution of such exclusion. These paragraphs seem to accomplish this in the reverse order. For greater clarity we propose that the paragraphs be ordered as: 5.4.7, 5.4.5 followed by 5.4.6.
Flow Chart Showing Procedure of Examination, paragraph 9
The flow chart shows a step by step process of examining CRIs. However, the subject matter determination is done towards the end. There is debate on whether there should be a set order for examining patents. However, in the case of CRIs there must be an exception as the statute explicitly prohibits certain types of patents (business method, algorithm etc). As argued earlier, in order to reduce transaction costs, the subject matter test must be made at the very beginning. There should at least be a preliminary determination as to Section 3(k) to reject patent applications for those inventions that can easily be classified under this provision.

[1]. See http://cis-india.org/a2k/blog/cis-submission-draft-patent-manual-2010 (Accessed on 23rd July, 2013).

[2]. See http://www.thehindubusinessline.com/news/science/number-of-patent-applications-up-nearly-50-thisyear/
article4508058.ece (Accessed on 23rd July, 2013).

[3]. See for business method patents granted in India: http://spicyipindia.blogspot.in/2013/01/guest-post-whyare-
business-method.html (Accessed on 19th July, 2013).

[4]. NS Gopalakrishnan and TG Agitha, “Principles of Intellectual Property” (1st ed. 2009), at 91.

[5]. Ibid.

[6]. [2010] EWCA Civ 819.

For more details visit https://cis-india.org/a2k/blogs/comments-on-draft-guidelines-for-computer-related-inventions

Comments on the Draft Copyright (Amendment) Rules, 2019 concerning Statutory Licensing

sinha — 2019-07-11T07:04:35Z

The Centre for Internet & Society gave its comments on the proposed rules 29,30,31 of the Draft Copyright (Amendment) Rules, 2019. The comments were made in response to Notification G.S.R 393(E) published in the Gazette of India on May 30, 2019.

Preliminary

1. This submission presents comments to the Department for Promotion of Industry and Internal Trade (“DPIIT”), Ministry of Commerce and Industry pertaining to the notification G.S.R 393(E) containing the draft Copyright (Amendment) Rules, 2019 issued on 30^th May 2019.

2. We commend DPIIT on the release of the draft Copyright (Amendment) Rules, 2019 (“Draft Rules”) and are thankful for the opportunity to put forth its views via this public consultation.

3. This submission is divided into three main parts. This part, ‘Preliminary’, introduces the document; the second part provides an overview of the organization and its research in the field of intellectual property rights; and the third part contains CIS’ comments on the Draft Rules 29, 30, 31.

4. The third part contains two sections. In the first section, we discuss the legal validity of the Draft Rules 29,30,31. In the second part we discuss the general implications of extending the legal regime of broadcasting rights under the Indian Copyright Act, 1957 (“Act”) to works on the Internet.

About The Centre for Internet and Society

5. The Centre for Internet and Society (“CIS”) is a non-profit organisation that undertakes interdisciplinary research on internet and digital technologies from policy and academic perspectives. The areas of focus in respect of intellectual property rights include research on domestic copyright and patent laws, international trade agreements and treaties pertaining to these subjects, promotion of creators’ and users’ rights with a view to furthering access to knowledge and openness in the public interest. CIS has also been participating at WIPO-SCCR negotiations in the capacity of an Observer since 2009.

6. CIS values the fundamental principles of justice, equality, freedom and economic development. This submission is consistent with CIS' commitment to these values including the safeguarding of general public interest. Accordingly, the comments in this submission aim to further these principles.

Comments

7. Draft Rules 29, 30 and 31 pertain to section 31D of the Indian Copyright Act, 1957. The proposed change in Rule 29 seeks to expand the modes of broadcast for which notice for invoking statutory license under section 31D may be issued - which previously was restricted to only radio and TV modes of broadcasting; and the change in Rule 31 will permit the Appellate Board to determine royalties for all modes of broadcast.

8. In view of current state of technological advancement, it is safe to deduce that the new mode of broadcasting whose inclusion is being contemplated in relation to s. 31D via the changes is “internet broadcasting”. The changes will allow entities that operate over the Internet medium to apply for a statutory license under s. 31D of the Act. In the following part, we submit our specific comments in respect of Draft Rules 29,30,31.

a) Legal validity of the Rules: Vires vis á vis the Parent Act

As per s. 78(2)(cD), the power of the Central Government to make rules in respect of s. 31D expressly exists in respect of “the manner in which prior notice may be given by a broadcasting organisation under sub-section (2) of section 3ID.” Apart from this clause, a general rule-making power is conferred via s. 78(1) only for carrying out the purposes of the Act. We submit that this general power should be exercised within limits of rule-making in the nature of administrative and procedural detail, and should be in consonance with purposes of the Act. In respect of s. 31D especially, the purpose can be inferred from the legislative history of the provision. This was analysed by the Bombay High Court in Tips Industries v. Wynk Music,[1] where the court noted that the concerns raised before the Rajya Sabha Parliamentary Standing Committee (on the Copyright Amendment Bill (2010)) related to radio and television industries only, and in the court’s opinion those two modes specifically were contemplated while introducing s. 31D.[2] Primarily basis this rationale, the court concluded that “internet broadcasters” offering on demand streaming services cannot avail of s. 31D. Further, s.31D(3) expressly permits the Appellate Board to fix royalty rates only in respect of radio broadcasting and television broadcasting.

Hence, we submit that there is no power under s.78 or any other provision in the Act afforded to the Central Government to expand the scope of s.31D, directly or indirectly. In State of Karnataka v. Ganesh Kamath[3] the Supreme Court held that “it is a well settled principle of interpretation of statutes that the conferment of rule-making power by an Act does not enable the rule-making authority to make a rule which travels beyond the scope of the enabling Act or which is inconsistent there with or repugnant thereto”.

Thus, the extent to which the Draft Rules 29,30,31 alter the intent and scope of s.31D clearly leaves them ultra vires the parent Act. Rules that are ultra vires the parent Act for exceeding the limits of subordinate executive power are void.[4] Hence, the proposed Draft Rules 29,30,31 are both ultra vires their parent Act and void.

b) Implications of extending legal regime of broadcasting rights to works on the public Internet

The release of the Draft Rules 29,30,31 is another attempt to extend the statutory licensing to “internet broadcasters”. The first attempt was when the Central Government released an Office Memorandum[5] (dated 5^th September 2016) to extend statutory licensing under s.31D to “internet broadcasting” companies. We submit that this was based on an incorrect statutory construction by the Department of Industrial Policy and Promotion (“DIPP”) and was arbitrary in nature. Noted academics and scholars have highlighted several constitutional infirmities in respect of this memorandum.[6] Unfortunately, the current Draft Rules (29,30,31) raise similar concerns.

Separately, in the context of introducing a broadcasting right for works shared over the Internet – we submit that if the line of argument taken by DIPP that s. 2(dd) read with s. 2(ff) supports the inclusion of “internet broadcasting” is taken to its logical conclusion, any person/ entity communicating to the general public via the public Internet can claim protection of their broadcasters’ reproduction right under our Copyright Act. This “broadcast” will happen via multiple platforms such as YouTube, Facebook Watch, live-streaming platforms, on-demand platforms, etc., and such entities will be entitled to enjoyment of this right. This will lead to a dangerous accumulation of undeserved property rights in Internet giants; unlike traditional broadcasters these companies never put up initial upfront economic investment to distribute works to the public. They were launched on the public internet, and currently thrive primarily off user-generated content. Even in respect of protecting content that is actually created with their investment, copyright law will suffice with its remedies for infringement. Hence, there is currently very little economic and legal basis for extending the legal regime of broadcasting rights for works on the Internet. Thus, we submit that in the domestic approach to modernising our copyright legislation, we must refrain from considering distribution of born-digital/ digitised works over the public Internet equivalent to the function of broadcasting works over cable/ satellite.

9. We are thankful to DPIIT and the Ministry of Commerce and Industry for the opportunity to make these submissions. It would be our pleasure and privilege to discuss these submissions and recommendations in detail with members of DPIIT if the opportunity presents itself.

[1] See Bom (HC) judgment in Case No. NMCD/72/2019

[2] See 227^th Report of the Rajya Sabha Parliamentary Standing Committee on the Copyright Amendment Bill (2010) available at http://164.100.47.5/newcommittee/reports/EnglishCommittees/Committee%20on%20HRD/227.pdf

[3] (1983) 2 SCC 40

[4] See Supreme Court Welfare Association (1989) 4 SCC 187 and State of Karnataka (1983) 2 SCC 402.

[5] See ‘Office Memorandum’ available at https://dipp.gov.in/sites/default/files/OM_CopyrightAct_05September2016.pdf

[6] See Letter to Government on Internet Broadcasts (2016) by Shamnad Basheer available at https://spicyip.com/2016/09/letter-to-government-on-internet-broadcasts.html ; and Licensing of Internet Broadcasts under the Copyright Act: Key Constitutional Issues (2019) available at https://indconlawphil.wordpress.com/2019/01/25/guest-post-licensing-of-internet-broadcasts-under-the-copyright-act-key-constitutional-issues/

For more details visit https://cis-india.org/a2k/blogs/comments-on-the-draft-copyright-amendment-rules-2019-concerning-statutory-licensing

Comments on the Broadcast Treaty and Exceptions and Limitations for Libraries and Archives

smita — 2012-12-04T23:11:34Z

This November at WIPO the Standing Committee on Copyright and Related Rights was witness to a tough negotiation on the proposed Treaty providing access to copyrighted materials to visually impaired persons. In between these discussions, the SCCR also found time to have two short plenary sessions on the proposed broadcast treaty as well as working documents on exceptions for libraries and archives.

Although we were unable to make a statement at the SCCR due to logistical constraints, CIS had the following comments prepared on both these issues:

Treaty for the Protection of Broadcasting Organizations:

The Centre for Internet and Society would like to reiterate the statement on principles provided in the 22nd SCCR by many civil society non-governmental organizations, cable casters and technology companies opposing a rights-based Broadcast Treaty. While we are encouraged by the inclusion of more suitable alternatives in many of the areas that civil society organizations had expressed concern, it is important that these alternatives be considered carefully. Some of the alternatives in the working document are not in keeping with the mandate of this Committee and we need to ensure that any new treaty provides a balanced protection to broadcast organizations.

We wish to enumerate a few key areas that need to be emphasized once again in this regard –

To begin with, the definition of ‘broadcast’ itself should not be too broad. The treaty needs a clear and precise definition that limits the protection to signals and does not extend to retransmissions or transmissions over computer networks.

Similarly, it is essential that the protection granted to a broadcasting organization should be limited to broadcast signals. The current working document extends this protection to public accessibility/performance of the broadcast signal and such restrictions might not be feasible in developing and least developed countries. One alternative even extends the protection available to fixations of the broadcasts and this is entirely unacceptable in a signals based treaty. The obligations with regard to technological protection measures, if any, should also be limited to protect only those broadcasts that are lawful.

Limitations and exceptions to the protections granted by this treaty are also of great importance, especially so in light of the Development Agenda. These exceptions and limitations should be made mandatory and be expanded to include issues of national interest and for free-to-air broadcast signals (such as the laws governing broadcast of cricket games in India).

Lastly, as pointed out many times already, we are of the opinion that a fixed term of protection, whether 20 or 50 years, is inconsistent with the idea of a signals based approach to the treaty.

Proposed Legal Instruments on Exceptions and Limitations for Libraries and Archives and Educational, Teaching and Research Institutions and Persons with Other Disabilities:

The Centre for Internet and Society would like to thank the Secretariat and the entire Committee for the hard work being put in this week at the SCCR.

International instruments that govern exceptions and limitations for libraries and archives as well as educational, teaching and research instruments and persons with other disabilities is key to ensure a balanced global copyright system that protects both right holders and users. Such instruments will not only allow the preservation of copyrighted works, but also provide greater access to these materials, especially in developing countries.

The working documents before us cover a number of issues and we would like to address a few of them today.

First, the three-step test. This has been a contentious issue with regard to all three instruments that are being discussed here this week. We would like to reiterate that a narrow interpretation of the three-step test should not be adopted, it is important that any and all flexibilities that can be made available to libraries and archives.

Second, libraries, archives, educational, research and teaching institutions should definitely be allowed to import and export copyrighted works and parallel trade in these works should be allowed. The language used in the current working document (SCCR/24/8) needs to be improved upon (Article 14, under 4.1 on page 12). This provision should indicate that as long as the copy of the work is lawfully produced, an educational institution, library, research organization or student is free to acquire, sell, import, export or otherwise dispose of that copy.

Thirdly, we wish to emphasize once again, the importance of protecting works that are in a digital format, as well as online libraries and archives. Additionally, the transmission of these works in a digital form as well as any internet service providers engaged in facilitating access to materials under this treaty should also be granted protection.

Thank you.

For more details visit https://cis-india.org/a2k/blogs/comments-on-broadcast-treaty-and-exceptions-and-limitations-for-libraries-and-archives

Comments on Department of Industrial Policy and Promotion Discussion Paper on Standard Essential Patents and their Availability on Frand Terms

Anubha Sinha, Nehaa Chaudhari and Rohini Lakshane — 2016-05-03T02:30:15Z

The Centre for Internet & Society gave its comments to the Department of Industrial Policy and Promotion. The comments were prepared by Anubha Sinha, Nehaa Chaudhari and Rohini Lakshané.

Download the PDF To access other submissions to the DIPP Discussion Paper on SEP and FRAND, please click here

Authors

I. PRELIMINARY

1. This submission presents comments by the Centre for Internet and Society, India ("CIS") on the Discussion Paper on Standard Essential Patents and their Availability on FRAND Terms (dated 01 March, 2016), released by the Department of Industrial Policy and Promotion ("the DIPP"), Ministry of Commerce and Industry, Government of India (" the discussion paper/ discussion paper").

2. CIS commends the DIPP for its efforts at seeking inputs from various stakeholders on this important and timely issue. CIS is thankful for the opportunity to put forth its views.

3. This submission is divided into three main parts. The first part, 'Preliminary', introduces the document; the second part, 'About CIS', is an overview of the organization; and, the third part, 'Submissions on the Issues', answers the questions raised in the discussion paper. A list of annexures and their URLs is included at the end of the document.

II. ABOUT CIS

4. CIS is a non-profit organisation that undertakes interdisciplinary research on internet and digital technologies from policy and academic perspectives. The areas of focus include digital accessibility for persons with diverse abilities, access to knowledge, intellectual property rights, openness (including open data, free and open source software, open standards, open access, open educational resources, and open video), internet governance, telecommunication reform, freedom of speech and expression, intermediary liability, digital privacy, and cyber-security.

5. CIS values the fundamental principles of justice, equality, freedom and economic development. This submission is consistent with CIS' commitment to these values, the safeguarding of general public interest and the protection of India's national interest at the international level. Accordingly, the comments in this submission aim to further these principles. In addition, the comments are in line with the aims of the Make in India and Digital India initiatives of the Government of India.

III. SUBMISSION ON THE ISSUES FOR RESOLUTION

6. The following sections provide CIS' views and recommendations on the issues enumerated in section 11 of the discussion paper:

a) Whether the existing provisions in the various IPR-related legislations, especially the Patents Act, 1970 and antitrust legislations, are adequate to address the issues related to SEPs and their availability on FRAND terms? If not, then can these issues be addressed through appropriate amendments to such IPR-related legislations? If so, what changes should be affected?

A.1. The issues related to Standard Essential Patents ("SEPs") and their licensing on a fair, reasonable and non-discriminatory ("FRAND") basis lie at the intersection of intellectual property ("IP") law and competition law . As such, in India, the Patents Act, 1970 ("the Patents Act") and, the Competition Act, 2002 ("the Competition Act") are the relevant legislations to be studied. These have been recently discussed, most recently, by Justice Bakhru in his comprehensive order inTelefonaktiebolaget LM Ericsson (Publ) v. Competition Commission of India and Another.

A.2. It is our submission that at the moment, amendments to the Patents Act and the Competition Act may not be preferred. As Justice Bakhru has noted in the aforesaid decision, there is no conflict between the remedies in the Patents Act and in the Competition Act, and, the pursuit of rights and remedies under one of these legislations does not bar a party from pursuing rights and remedies in the other. Further, under both legislations, there are scenarios for the respective authorities - the Controller General of Patents, Designs and Trademarks ("the Controller") and the Competition Commission of India (" the CCI") for the Patents Act and for the Competition Act respectively - to seek inputs from each other.

A.3. We also note that the CCI is a fairly nascent regulator; one whose jurisdiction is not yet a settled matter of law. While the judgment in the Ericsson-CCI case is indeed a good beginning, we do not believe that the matter has been conclusively decided. Accordingly, given the complex legal questions involved, over not just the interpretation of the Patents Act and the Competition Act, but also constitutional issues around the jurisdiction of regulators and the power of judicial review of the courts, we believe that it would be prudent to examine the ruling of the courts on these issues in some detail, before considering amendments.

A.4. In addition, we are of the opinion that our IP law, and, our competition law, fully honor our international commitments, including the requirements under the TRIPS Agreement. As such, we would urge the Government of India to not enter into free trade agreements including, inter alia, the Regional Comprehensive Economic Partnership, that threaten our use of TRIPS flexibilities, and, impose 'TRIPS-plus' obligations.

A.5. We also urge the Government of India to adopt a balanced National IPR Policy, and, a National Competition Policy, both of which has been in abeyance for a considerable amount of time. We believe that these policies are crucial to realize the objectives of the Make in India and Digital India initiatives. At the same time, we submit that these policies be balanced, taking into account the interests of all stakeholders, developed through an extensive consultative process, and, suitably modified based on feedback.

b) What should be the IPR policy of Indian Standard Setting Organizations in developing Standards for Telecommunication sector and other sectors in India where Standard Essential Patents are used?

B.1. The discussion paper identifies four Standard Setting Organizations ("SSOs") in India, namely, the Telecom Standards Development Society of India ("TSDSI"), the Telecommunication Engineering Center ("TEC"), the Bureau of Indian Standards (" BIS"), the Global ICT Standardization Forum for India ("GISFI"), and, the Development Organization of Standards for Telecommunications in India ("DOSTI"). Comments on each of their policies have been made in the following paragraphs.

B.2. The BIS does not have an intellectual property rights ("IPR") policy of its own. The BIS Act, 2016 does not include one either. As the discussion paper notes, the BIS refers to the IPR policies of the relevant international SSO in the context of technology implemented in India, that is the same or equivalent to the ones developed or maintained by the respective SSOs.We recommend that BIS adopt an IPR policy at the earliest, factoring in India specific requirements differences: a large and exponentially growing mobile device market makes it possible for manufacturers, patent owners and implementers alike to achieve financial gains even with a low margin ("India specific requirements"). In addition, our comments on the IPR policy of the TSDSI in paragraph B.4. of this submission (below), may also be considered for the content of the BIS' future policy on IPR.

B.3 . According to the discussion paper, the TEC considers the IPR policies of the International Telecommunication Union. We recommend that like the BIS, the TEC also adopt its own IPR policy, factoring in the India specific requirements detailed above. In addition, our comments on the IPR policy of the TSDSI in paragraph B.4. of this submission (below), may also be considered for the content of the BIS' future policy on IPR.

B.4. The TSDSI, a relatively new standards body, has defined an IPR policy . In respect of this policy, the following observations are presented. First, this policy notes that IPR owners should be adequately and fairly rewarded.Second, it requires members to disclose essential IPRs in a "timely fashion." Third, as per its policy, the TSDSI can request the owner of an essential IPR to undertake, within three months, to license it irrevocably on FRAND terms. At the same time, the policy also states that the (aforesaid) ask may be subject to the condition that licensees agree to reciprocate. Should such an undertaking not be forthcoming, the TSDSI may suspend work on the standard or technical specification in question, or, adopt another course of action. Fourth, the policy identifies two scenarios for the non availability of licences prior to publication, based on the existence, or, the lack thereof, of alternative technologies. In the event of a lack of alternative technology, the policy requires a member to disclose in writing its reasons for not licensing its patents. Following this, it is submitted that there is no clarity on the concrete steps that the TSDSI would adopt in case the efforts to convince a member to license their essential IPRs, fail. The policy only states that "the TSDSI shall take further action as deemed fit." The same is also true where the IPR owner is not a member of the TSDSI. Fifth, the policy also envisages a scenario of non-availability post publication. The procedure for dealing with this is akin to the one detailed above, with the TSDSI asking for a written explanation, considering further action, including the possible withdrawal of the standard or technical specification in question. Sixth, it is observed that the policy does not require a commitment from its members to refrain from seeking injunctive relief. Seventh, it is accordingly recommended that the policy be suitably modified (a) to include India specific requirements discussed above; (b) to require a commitment from its members, that they refrain from seeking injunctive relief; (c) to delete the condition where FRAND negotiations may be subject to a condition of reciprocity; (d) to identify in detail the procedure to be followed in case of patent 'hold-ups' and patent 'hold-outs'; (e) to identify in detail the procedure to be followed in case of refusal to license by TSDSI members, and, non-members, both; and, (f) to include a detailed process on the declassification of a standard or technical specification.

B.5. The IPR policy of GISFI, is substantially similar to the IPR policy of the TSDSI, discussed in paragraph B.4. of this submission (above). Inter alia, GISFI's IPR policy also does not indicate the specific steps to be taken in case an IPR owner refuses to license essential IPRs for which no alternative technology is available. This is true in the cases both, where the refusal is by a member, and, by a non-member. Our recommendations on the IPR policy of the TSDSI in paragraph B.4. of this submission (above), may also be considered for the GISFI's IPR policy.

B.6. According to the discussion paper, the IPR policy of the DOSTI resembles that of the GIFSI. It is submitted that these policies are similar in the context of refusal to license by a member or non-member, and, like the TSDSI and the GISFI, the DOSTI also requires the patent holder to license its IPR irrevocably on FRAND terms. Accordingly, we reiterate our comments on the IPR policy of the TSDSI in paragraph B.4. of this submission (above). The aforesaid recommendations may also be considered to be relevant for the DOSTI's IPR policy.

B.7. We are also of the opinion that it would be useful for Indian SSOs to consider recommending the use of royalty-free licenses for IPRs. Illustratively, the World Wide Web Consortium ("W3C") and the Open Mobile Alliance ("OMA") encourage royalty-free licensing.

c) Whether there is a need for prescribing guidelines on working and operation of Standard Setting Organizations by Government of India? If so, what all areas of working of SSOs should they cover?

C.1. In our opinion, in a milieu where instances of SEP litigation are becoming increasingly complex, and, there is a tangible threat of the abuse of the FRAND process, it might be useful for the Government of India to make suggestions on the working of Indian SSOs.

C.2. It is suggested that the Government of India develop Model Guidelines that may be adopted by Indian SSOs, taking into account India specific requirements, including the ones detailed in paragraph B.2. of this submission (above). We believe that this measure will also enable the fulfilment of the objectives of the Make in India and Digital India initiatives.

C.3. We recommend that various stakeholders, including IP holders, potential licensees and users of IP, civil society organizations, academics, and, government bodies, including the the Indian Patent Office ("IPO"), the Department of Telecommunications, the DIPP, TRAI, and, the CCI be consulted in the creation of these Model Guidelines.

C.4. In our opinion, the Model Guidelines may cover (a) the composition of the SSO; (b) the process of admitting members; (c) the process of the determination of a standard or technical specification; (d) the process of declassification of a standard or technical specification; (e) the IPR Policy; (f) resolution of disputes; (g) applicable law.

d) Whether there is a need for prescribing guidelines on setting or fixing the royalties in respect of Standard Essential Patents and defining FRAND terms by Government of India? If not, which would be appropriate authority to issue the guidelines and what could be the possible FRAND terms?

D.1. In light of the inadequacies in the IPR policies (discussed above) of various SSOs in India, as well the the spate of ongoing patent infringement lawsuits around mobile technologies, we recommend that the Government of India intervene in the setting of royalties and FRAND terms.

D.2. We propose that the Government of India initiate the formation of a patent pool of critical mobile technologies and apply a compulsory license with a five per cent royalty. Further details of this proposal have been enumerated in answer to question 'f' of the discussion paper (below).

D.3. Our motivations for this proposal are many-fold. In our opinion, it is near-impossible for potential licensees to avoid inadvertent patent infringement. As a part of our ongoing research on technical standards applicable to mobile phones sold in India, we have found nearly 300 standards so far . It is submitted that carrying out patent searches for all the standards would be extremely expensive for potential licensees. Further, even if such searches were to be carried out, different patent owners, SSOs and potential licensees disagree on valuation, essentiality, enforceability, validity, and coverage of patents. In addition, some patent owners are non-practising entities ("NPEs") and may not be members of SSOs. The patents held by them are not likely to be disclosed. More importantly, home-grown manufacturers that have no patents to leverage and may be new entrants in the market would be especially disadvantaged by such a scenario. Budget phone manufacturers, standing to incur losses either as a result of heavy licensing fees, or, potential litigation, may close down. Alternatively, they may pass on their losses to consumers, driving the now-affordable phones out of their financial reach. With the objectives of Make in India and Digital India in sight, it is essential that Indian consumers continue to have access to devices within their purchasing power.

e) On what basis should the royalty rates in SEPs be decided? Should it be based on Smallest Saleable Patent Practicing Component (SSPPC), or on the net price of the Downstream Product, or some other criterion?

E.1. It is our submission that royalty rates for SEPs should be based on the smallest saleable patent practising component ("SSPPC"). Most modern telecommunication and IT devices are complex with numerous technologies working in tandem. Different studies indicate that the number of patents in the US applicable to smartphones is between 200,000 and 250,000. A comprehensive patent landscape of mobile device technologies conducted by CIS reveals that nearly 4,000 patents are applicable to mobile phones sold in India. It is thus extremely difficult to quantify the exact extent of interaction and interdependence between technologies in any device, in such a way that the exact contribution of the patented technology to the entire device can be determined.

E.2. The net cost of the device is almost always several times that of the chipset that implements the patented technology. Armstrong et al have found that the cost of a 4G baseband chip costs up to $20 including royalties in a hypothetical $400 phone sold in the US. One of the litigating parties in the ongoing patent infringement lawsuits in India has stated that one of the reasons for preferring to leverage its patents as downstream as possible in the value chain is that it will earn the company more royalties . In instances where patent exhaustion occurs much earlier in the value chain, such as in the case of the company's cross-licenses with Qualcomm (another company that owns patents to chip technologies), the company does not try to obtain royalties from the selling prices of devices for the cross-licensed technologies. It is submitted that such market practices could be detrimental to the government's objectives such as providing a mobile handset to every Indian by 2020 as a part of the Digital India programme . It is also worth noting in this context that the mobile device is the first and only medium of access to the Internet and telecom services for a large number of Indians, and, consequently, the only gateway to access to knowledge, information and critical services, including banking.

E.3. The discussion paper notes that J. Gregory Sidak, having studied the proceedings before the Delhi High Court, approved of the manner in which the court determined royalties. In his paper, Sidak(2015) notes that in determining royalties, the court relied, inter alia, on the decision of CSIRO v.Cisco ("the CSIRO case"), a 2015 decision of the US Court of Appeals for the Federal Circuit. 2015. We humbly disagree with the opinion of the Delhi High Court on the manner of determining royalties, and, with Sidak's approval of the same.

E.4. It is our submission that the CSIRO case relied on a previous judgment, which we disagree with. The decision, a 2014 district court judgment, analogises the determination of royalties on SEPs to the determination of royalties on a copyrighted book. The court notes, "[b]asing a royalty solely on chip price is like valuing a copyrighted book based only on the costs of the binding, paper, and ink needed to actually produce the physical product. While such a calculation captures the cost of the physical product, it provides no indication of its actual value." In our opinion, this analogy is flawed. While a book is a distinct product as a whole, a mobile phone is a sum-total of its parts. If at all, a mobile phone could be compared with a book with several authors, as multiple technologies belonging to several patent holders are implemented in it. This judgement bases valuation for one set of technologies on the whole device, thus awarding compensation to the licensor even for those technologies implemented in the device that are not related to the licensed technologies. In our opinion, charging royalty on the net selling price of a device for one technology or one set of technologies is thus more like a referral scheme and less like actual compensation for the value added. Accordingly, royalties must be charged on the SSPPC principle.

f) Whether total payment of royalty in case of various SEPs used in one product should be capped? If so, then should this limit be fixed by Government of India or some other statutory body or left to be decided among the parties?

F.1. CIS has proposed a compulsory licensing fee of five per cent on a patent pool of critical mobile technologies. The rationale for this figure is the royalty cap imposed by India in the early 1990s.

F.2. As part of regulating foreign technology agreements, the (former) Department of Industrial Development (later merged with the DIPP) capped royalty rates in the early 1990s. Payment of royalties was capped at either a lump sum payment of $2 million, or, 5 percent on the royalty rates charged for domestic sale, and, 8 percent for export of goods pertaining to "high priority industries". Royalties higher than 5 percent or 8 percent, as the case may be, required securing approval from the government.

F.3. While the early 1990s (specifically, 1991) was too early for the mobile device manufacturing industry to be listed among high priority industries, the public announcement by the government covered computer software, consumer electronics, and electrical and electronic appliances for home use. The cap on royalty rates was lifted by the DIPP in 2009.

F.4. It is submitted in the case of mobile device technology, we are witnessing a situation similar to that of the 1990s. In this sphere, most of the patent holders are multinational corporations which results in large royalty amounts leaving India. At the same time, in our opinion, litigation over patent infringement in India has limited the manufacture and sale of mobile devices of homegrown brands.

F.5. We believe that the aforementioned developments are detrimental to the Make in India and Digital India initiatives of the Government of India, and, the government's aim of encouraging local manufacturing, facilitating indigenous innovation, as well as strengthening India's intellectual property regime. It is our submission, therefore, that the payment of royalties on SEPs be capped.

F.6. We submit that such a measure is particularly important, given the nature of SEP litigation in India. While SEP litigation in India is indeed comparable to international SEP litigation on broader issues raised, specifically competition law concerns, but differs crucially where the parties are concerned. International SEP litigation is largely between multinational corporations with substantial patent portfolios, capable of engaging in long drawn out litigations, or engaging in other strategies including setting off against each other's patent portfolios. Dynamics in the Indian market differ - with a larger SEP holder litigating against smaller manufacturers, many of whom are indigenous, home-grown.

F.7. In June, 2013, we had recommended to the erstwhile Hon'ble Minister for Human Resource Development that a patent pool of essential technologies be established, with the compulsory licensing mechanism. Subsequently, in February, 2015, we reiterated this request to the Hon'ble Prime Minister. We propose that the Government of India initiate the formation of a patent pool of critical mobile technologies and mandate a five percent compulsory license. As we have stated in our request to the Hon'ble Prime Minister, we believe that such a pool would "possibly avert patent disputes by ensuring that the owners' rights are not infringed on, that budget manufacturers are not put out of business owing to patent feuds, and that consumers continue to get access to inexpensive mobile devices. Several countries including the United States issue compulsory licenses on patents in the pharmaceutical, medical, defence, software, and engineering domains for reasons of public policy, or to thwart or correct anti-competitive practices."

F.8. We believe that such a measure is not in breach of our international obligations under the TRIPS Agreement.

g) Whether the practice of Non-Disclosure Agreements (NDA) leads to misuse of dominant position and is against the FRAND terms?

G.1. The issue of Non Disclosure Agreements ("NDAs") in SEP/FRAND litigation is a contentious one. Patent holders argue that they are essential to the license negotiation process to protect confidential information, whereas potential licensees submit that NDAs result in the imposition of onerous conditions.

G.2. In India's SEP litigation, the use of NDAs has been raised as an issue in at least two cases - separately by Intex and by iBall , in their cases against Ericsson. Intex and iBall have both claimed that the NDAs that Ericsson asked them to sign were onerous, and favoured Ericsson.

G.3. According to Intex, the NDA in question would result in high legal costs for Intex, and, would render it unable to disclose crucial information to its vendors (who had agreed to supply to Intex on the condition that Intex was not infringing on any patents).

G.4. According to iBall, the parties had agreed to enter a global patent license agreement ("GPLA") but Ericsson insisted on an NDA. Upon receiving the terms of the NDA, iBall claimed before the CCI that Ericsson's refusal to identify the allegedly infringed SEPs; the threat of patent infringement proceedings; the attempt to coax iBall to enter into a "one-sided and onerous NDA"; the tying and bundling patents irrelevant to iBall's products by way of a GPLA; demanding unreasonably high royalties by way of a certain percentage value of handset as opposed to the cost of actual patented technology used all constituted abuse of Ericsson's dominant position under Section 4 of the Competition Act.

G.5. In India, the law on misuse (abuse) of dominant position by an 'enterprise' is found primarily in Section 4 of the Competition Act (read with Section 2(h) of the Competition Act, which defines 'enterprise'). In its recent decision in the Ericsson-CCI case , the Delhi High Court has found Ericsson to be an 'enterprise' for the purposes of the Competition Act, and hence subject to an inquiry under Section 4 of the same legislation. In the same decision, the court has also recognised the jurisdiction of the CCI to examine Ericsson's conduct for abuse of behaviour, based on complaints by Micromax and Intex. The use of NDAs is one of the grounds on which the parties have complained to the CCI.

G.6. Pending a final determination by the CCI (and subsequent appeals), it would be premature to make an absolute claim on whether the use of NDAs results in an abuse of dominant position in all instances. However, the following submissions are made: First, the determination of misuse/abuse of dominant position is influenced by a number of factors , i.e., such a determination should be made on a case to case basis. Second, the market regulator, the CCI, is best situated to determine (a) abuse of dominance, and (b) whether the use of NDAs by an enterprise constitutes an abuse of its dominance. Third, the question of whether the use of NDAs constitutes misuse of dominance needs to be addressed in two parts - (a) whether the use of the NDA itself is abusive, irrespective of its terms and, (b) whether the use of certain specific terms renders the NDA abusive. Fourth, NDAs could potentially lead to the patent owner abusing its dominant position in the market, as well as result in an invalidation of FRAND commitments and terms. NDAs make it impossible to determine if a patent holder is engaging in discriminatory licensing practices. Fifth, NDAs are especially harmful in the case of NPEs-- companies that hold patents and monetise them but don't build or manufacture the components or devices that implement the technology associated with the patents.

h) What should be the appropriate mode and remedy for settlement of disputes in matters related to SEPs, especially while deciding FRAND terms? Whether Injunctions are a suitable remedy in cases pertaining to SEPs and their availability on FRAND terms?

H.1. The licensing of SEPs on FRAND terms requires the parties to negotiate "reasonable" royalty rates in good faith, and apply the terms uniformly to all willing licensees. It is our submission that if the parties cannot agree to FRAND terms, they may enter into binding arbitration. Further, if all efforts fail, there exist remedies under the Patents Act and the Competition Act, 2002 to address the issues.

H.2. Section 115 of the Patents Act empowers the court to appoint an independent scientific adviser " to assist the court or to inquire and report upon any such question of fact or of opinion (not involving a question of interpretation of law) as it may formulate for the purpose. " Such an independent adviser may inform the court on the technical nuances of the matter.

H.3. Further, under the Patents Act, pending the decision of infringement proceedings the Court may provide interim relief, if the plaintiff proves first, a prima facie case of infringement; second, that the balance of convenience tilts in plaintiff's favour; and, third, that if an injunction is not granted the plaintiff shall suffer irreparable damage. H.4. However, it is our suggestion that courts adopt a more cautious stance towards granting injunctions in the field of SEP litigation. First, in our opinion, injunctions may prove to be a deterrent to arrive at a FRAND commitment, in particular, egregiously harming the willing licensee. Second, especially in the Indian scenario, where litigating parties operate in vastly different price segments (thereby targeting consumers with different purchasing power), it is difficult to establish that "irreparable damage" has been caused to the patent owner on account of infringement. Third, we note the approach of the European Court of Justice, which prohibited the patent holder from enforcing an injunction provided a willing licensee makes an offer for the price it wishes to pay to use a patent under the condition that it deposited an amount in the bank as a security for the patent holder. Fourth, we also note the approach of the Federal Trade Commission in the USA, which only authorizes patent holders to seek injunctive relief against potential licensees who have either stated that they will not license a patent on any terms, or refuse to enter into a license agreement on terms that have been set in the final ruling of a court or arbitrator. Further, as Contreras (2015) observes, that the precise boundaries of what constitutes as an unwilling licensee remains to be seen. We observe a similar ambiguity in Indian jurisprudence, and accordingly submit that courts should carefully examine the conduct of the licensee to injunct them from the alleged infringement.

i) What steps can be taken to make the practice of Cross-Licensing transparent so that royalty rates are fair & reasonable?

I.1. The Patents Act requires patentees and licensees to submit a statement on commercial working of the invention to the Controller every year. Form 27 under section 146(2) of the Act lists the details necessary to be disclosed for compliance of the requirement of "working". A jurisprudential analysis reveals the rationale and objective behind this mandatory requirement. Undeniably, the scheme of the Indian patent regime makes it amply clear that "working" is a very important requirement, and the public as well as competitors have a right to access this information in a timely manner, without undue hurdles. Indeed, as the decision in Natco Pharma v. Bayer Corporation reveals, the disclosures in Form 27 were crucial to determining the imposition of a compulsory license on the patentee. Thus, broadly, Form 27 disclosures can critically enable willing licensees to access patent "working" information in a timely manner.

I.2. However, there has been little compliance of this requirement by the patentees, despite the IPO reiterating the importance of compliance through the issuance of multiple public notices (suo motu and in response to a public interest litigation filed in 2011 ), and, reminding the patentees that non-compliance is punishable with a heavy fine. Findings of research submitted by one of the parties in the writ of the 2011 public interest litigationShamnad Basheer v. Union of India and others reveal as follows. First, a large number of Form 27s are unavailable for download from the website of the IPO. This possibly indicates that the forms have either not been filed by the patentees with the IPO, or have not been uploaded (yet) by the IPO. Second, a large number of filings in the telecom sector remain incomplete.

I.3. In 2015, CIS queried the IPO website for Form 27s of nearly 4,400 patents. CIS' preliminary research (ongoing and unpublished) echoes findings similar to the ones disclosed in the case discussed in paragraph I.2. of this submission (above).

I.4. In view of the submissions above, CIS makes the following recommendations to make the practice of cross-licensing transparent so that royalty rates are fair & reasonable: first, that there be a strict enforcement of the submission of Form 27s on a regular and timely basis by the patentees; and, second, that guidelines may be drawn up on whether it was discriminatory to charge no royalties (whether on the SSPPU or on the whole device) for a patent holder in a cross-licensing arrangement with another, when it charges royalty on the selling price of the device from a non-cross-licensor.

j) What steps can be taken to make the practice of Patent Pooling transparent so that royalty rates are fair & reasonable?

J.1. Patent pools can be understood as an agreement between two or more patent owners to license one or more of their patents to one another or to third parties. Thus, the creation of a patent pool makes use of the legal instrument of licensing, similar to the practice of cross-licensing. Insofar, we reiterate our recommendations made in paragraph I.3. of this submission (above), which apply to the answer to the instant question.

J.2. In furtherance of the recommendation above, we also propose the alteration of the Form 27 template to include more disclosures. Presently, patentees are required to to declare number of licensees and sub-licensees. We specifically propose that the format of Form 27 filings be modified to include patent pool licenses, with an explicit declaration of the names of the licensees and not just the number.

J.3. It is also our submission that patent pools be required to offer FRAND licenses on the same terms to both members and non-members of the pool.

k) How should it be determined whether a patent declared as SEP is actually an Essential Patent, particularly when bouquets of patents are used in one device?

K.1. We submit that several studies on the essentiality of SEPs indicate that only a small percentage of SEPs are actually essential. A study conducted byGoodman and Myers (2004) showed that only 21% of SEPs pertaining to the 3G standard in the US were deemed to be actually essential. Another study conducted by the same authors in 2009 for WCDMA patents showed that 28% SEPs were essential.

K.2. In our opinion, first, the methodology adopted by Goodman and Myers could be replicated to determine the "essential" nature of an SEP. Second, while adopting their methodology, it would be useful to address some of the issues over which these studies were critiqued. Accordingly, we suggest that (a) laboratory tests may be conducted by an outside expert or by a commercial testing laboratory, and not at an in-house facility owned by either parties, so as to eliminate in the lab results; and, (b) expert opinions may be considered in order to determine essentiality.

l) Whether there is a need of setting up of an independent expert body to determine FRAND terms for SEPs and devising methodology for such purpose?

L.1. In our opinion, there is no need for an independent expert body to determine FRAND terms for SEPs and devising the methodology for such a purpose. The existing legal and regulatory framework is reasonably equipped to determine FRAND terms. A more detailed submission on the existing framework and suggested changes has been made in our answer to question 'a' of the discussion paper (above).

L.2. However, we observe that Indian courts, tribunals and the CCI are yet to endorse a methodology for making FRAND determinations. The judgments of the Delhi High Court do not provide a conclusive rationale or methodology for the imposition of royalty rates in the respective matters.

L.3. We submit that in the absence of definitive Indian jurisprudence for determination of FRAND terms, American jurisprudence provides certain guidance. Contreras (2015) informs us about the various case law American courts and regulators have developed and adhered to whilst making such determinations.The dominant analytical framework for determining "reasonable royalty" patent damages in the United States today was set out in 1970 by the District Court for the Southern District of New York in Georgia-Pacific Corp. v. U.S. Plywood Corp . While this may be used as a guiding framework, the question of methodology remains far from settled.

m) If certain Standards can be met without infringing any particular SEP, for instance by use of some alternative technology or because the patent is no longer in force, what should be the process to declassify such a SEP?

M.1. In our opinion, if a standard can be met without infringing a patent declared to be "essential" to it, then the patent is not actually "essential". In this instance, the methods suggested in response to question 'k' of the discussion paper (above) could be used to declassify the SEP.

M.2. We further submit that if a patent is no longer in force, that is, if it has expired, then it ceases to be patent, and therefore an SEP. The process to declassify such an SEP could be simply to declare it an expired patent.

M.3. In addition, if it is possible to implement a certain standard by using an alternative technology, then the SEP for such a standard is not actually an SEP. However, the scale of operations and that of mass manufacturing and compatibility requirements in devices and infrastructure mean that it is unlikely to have different methods of implementing the same standard.

M.4. In general, it is our submission that an Indian SSO could maintain a publicly accessible database of SEPs found to be invalid or non-essential in India.

7. We reiterate our gratitude to the DIPP for the opportunity to make these submissions. In addition to our comments above, we have shared some of our research on this issue, in the 'Annexures', below.

8. It would be our pleasure and privilege to discuss these comments with the DIPP; and, supplement these with further submissions if necessary. We also offer our assistance on other matters aimed at developing a suitable policy framework for SEPs and FRAND in India, and, working towards the sustained innovation, manufacture and availability of mobile technologies in India.

On behalf of the Centre for Internet and Society, 22 April, 2016

Anubha Sinha - anubha@cis-india.org | Nehaa Chaudhari - nehaa@cis-india.org

Rohini Lakshané - rohini@cis-india.org

___________________________________________________________________________

___________________________________________________________________________

ANNEXURES

___________________________________________________________________________

● Anubha Sinha, Fuelling the Affordable Smartphone Revolution in India, available at http://cis-india.org/a2k/blogs/digital-asia-hub-the-good-life-in-asias-21-st-century-anubha-sinha-fueling-the-affordable-smartphone-revolution-in-india (last accessed 22 April, 2016).

● Nehaa Chaudhari, Standard Essential Patents on Low-Cost Mobile Phones in India: A Case to Strengthen Competition Regulation?, available at http://www.manupatra.co.in/newsline/articles/Upload/08483340-C1B9-4BA4-B6A9-D6B6494391B8.pdf (last accessed 22 April, 2016).

● Nehaa Chaudhari, Pervasive Technologies:Patent Pools, available at http://cis-india.org/a2k/blogs/patent-pools (last accessed 22 April, 2016).

● Nehaa Chaudhari, The Curious Case of the CCI:Competition Law and SEP Regulation in India, presented at the 4th Global Congress on Intellectual Property and the Public Interest, available at http://cis-india.org/a2k/blogs/the-curious-case-of-the-cci-competition-law-and-sep-regulation-in-indi a (last accessed 22 April, 2016).

● Nehaa Chaudhari, Letter for Establishment of Patent Pool for Low Cost Access Devices through Compulsory Licences, available at http://cis-india.org/a2k/blogs/letter-for-establishment-of-patent-pool-for-low-cost-access-devices (last accessed 22 April, 2016).

● Prof Jorge L. Contreras and Rohini Lakshané, Patents and Mobile Devices in India: An Empirical Survey, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2756486 (last accessed 22 April, 2016).

● Rohini Lakshané, CIS, List of technical standards and IP types (Working document), available at https://drive.google.com/file/d/0B8SgjShAjhbtaml5eW50bS01d2s/view?usp=sharing (last accessed 22 April, 2016).

● Rohini Lakshané, Open Letter to Prime Minister Modi, February 2015, available at http://cis-india.org/a2k/blogs/open-letter-to-prime-minister-modi (last accessed 22 April, 2016).

● Rohini Lakshané, FAQ: CIS' proposal to form a patent pool of critical mobile technology, September 2015, available at http://cis-india.org/a2k/blogs/faq-cis-proposal-for-compulsory-licensing-of-critical-mobile-technologies (last accessed 22 April, 2016).

● Rohini Lakshané, Joining the dots in India's big-ticket mobile phone patent litigation, May 2015, last updated October 2015, available at http://cis-india.org/a2k/blogs/joining-the-dots-in-indias-big-ticket-mobile-phone-patent-litigation (last accessed 22 April, 2016).

● Rohini Lakshané, Compilation of Mobile Phone Patent Litigation Cases in India, March 2015, last updated April 2016, available at http://cis-india.org/a2k/blogs/compilation-of-mobile-phone-patent-litigation-cases-in-india , (last accessed April 22, 2016).

● Rohini Lakshané, Patent landscaping in the Indian Mobile Device Marketplace, presented at the 4th Global Congress on Intellectual Property and Public Interest, December 2015, available at https://drive.google.com/open?id=0B8SgjShAjhbtME45N245SmowOGs (last accessed 22 April, 2016).

● Vikrant Narayan Vasudeva, Patent Valuation and Licence Fee Determination in the Context of Patent Pools, available at http://cis-india.org/a2k/blogs/patent-valuation-and-license-fee-determination-in-context-of-patent-pools (last accessed 22 April, 2016).

************

This submission has been authored by (alphabetically) Anubha Sinha, Nehaa Chaudhari and Rohini Lakshané, on behalf of the Centre for Internet and Society, India.

See The Centre for Internet and Society, available at http://cis-india.org (last accessed 22 April, 2016) for details of the organization, and, our work.

Make in India, available at http://www.makeinindia.com/home (last accessed 22 April, 2016).

Digital India, available at http://www.digitalindia.gov.in/ (last accessed 22 April, 2016).

See Nehaa Chaudhari, The Curious Case of the CCI:Competition Law and SEP Regulation in India, presented at the 4th Global Congress on Intellectual Property and the Public Interest, available at http://cis-india.org/a2k/blogs/the-curious-case-of-the-cci-competition-law-and-sep-regulation-in-india (last accessed 21 April, 2016) for further details on relevant provisions.

In the High Court of Delhi, W.P.(C) 464/2014 & CM Nos. 911/2014 & 915/2014, judgment delivered on 30 March, 2016. Hereafter referred to as the Ericsson-CCI judgment.

Id.

Under Articles 226 and 227 of the Constitution of India, and, under Article 32 of the Constitution of India, for the High Courts and the Supreme Court, respectively.

Agreement on Trade-Related Aspects of Intellectual Property Rights, available at https://www.wto.org/english/tratop_e/trips_e/t_agm0_e.htm (last accessed 22 April, 2016).

KEI Staff, 2015 October 15 version: RCEP IP Chapter, available at http://keionline.org/node/2472 (last accessed 22 April, 2016).

BIS Act, 2016, available at http://www.bis.org.in/bs/bsindex.asp (last accessed 21 April, 2016).

TSDSI, Intellectual Property Rights Policy, available at http://www.tsdsi.org/media/Help/2014-12-17/TSDSI-PLD-40-V1.0.0-20141217.pdf (last accessed 22 April, 2016).

Id at Clause 3.1.

Id at Clause 5.1.

Id at Clause 5.2.

Id at Clause 5.5.

Id at Clauses 7.1. and 7.2.

Id at Clause 7.2.1.a (iii).

Id at Clause 7.2.1.b(iii).

Id at Clause 7.3.

GISFI, Intellectual Property Rights Policy, available at http://www.gisfi.org/ipr_policy/gisfi_intellectual_property_righ.htm (last accessed 22 April, 2016).

Id at Clauses 6.2.1.a(iii) and 6.2.1.b(iii).

See W3C, Patent Policy, available at https://www.w3.org/Consortium/Patent-Policy-20040205/ (last accessed 22 April, 2016) for more details on their royalty-free licences.

See OMA, Use Agreement, available at http://openmobilealliance.org/about-oma/policies-and-terms-of-use/use-agreement/ (last accessed 22 April, 2016) for more details on their royalty-free licences.

See Rohini Lakshané, Open Letter to PM Modi, available at http://cis-india.org/a2k/blogs/open-letter-to-prime-minister-modi (last accessed 22 April, 2016) for further details of CIS' proposal.

Rohini Lakshané, CIS, List of Technical Standards and IP Types (Working document), available at https://drive.google.com/file/d/0B8SgjShAjhbtaml5eW50bS01d2s/view?usp=sharing (last accessed 22 April, 2016).

Mark Lemley and Carl Shapiro, Patent Holdup and Royalty Stacking, 85 Tex. L. Rev. at 2015; See also, for e.g., RPX Corporation, Amendment No. 3 to Form S-l, 11 Apr. 2011, at 59, available at http://www.sec.gov/Archives/edgar/data/1509432/000119312511101007/ds1a.htm (last accessed 22 April, 2016), quoting - "Based on our research, we believe there are more than 250,000 active patents relevant to today's smartphones…".; See further Steve Lohr, Apple- Samsung Case Shows Smartphone as Legal Magnet, New York Times, 25 Aug. 2012, available at http://www.nytimes.com/2012/08/26/technology/apple-samsung-case-shows-smartphone-as-lawsuit-magnet.html (last accessed 22 April, 2016).

Jorge L. Contreras and Rohini Lakshané, Patents and Mobile Devices in India: An Empirical Survey, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2756486 (last accessed 22 April, 2016).

Ann Armstrong, Joseph J. Mueller and Timothy D. Syrett, The Smartphone- Royalty Stack:Surveying Royalty Demands for the Components Within Modern Smartphones, available at https://www.wilmerhale.com/uploadedFiles/Shared_Content/Editorial/Publications/Documents/The-Smartphone-Royalty-Stack-Armstrong-Mueller-Syrett.pdf (last accessed 22 April, 2016).

Florian Mueller, Ericsson Explained Publicly why it Collects Patent Royalties from Device (Not Chipset) Makers, available at http://www.fosspatents.com/2014/01/ericsson-explained-publicly-why-its.html (last accessed 22 April, 2016).

Romit Guha and Anandita Singh Masinkotia, PM Modi's Digital India Project:Government to Ensure that Every Indian has a Smartphone by 2019, available at http://articles.economictimes.indiatimes.com/2014-08-25/news/53205445_1_digital-india-india-today-financial-services (last accessed 22 April, 2016).

Nehaa Chaudhari, Standard Essential Patents on Low-Cost Mobile Phones in India: A Case to Strengthen Competition Regulation?, available at http://www.manupatra.co.in/newsline/articles/Upload/08483340-C1B9-4BA4-B6A9-D6B6494391B8.pdf (last accessed 22 April, 2016).

See part 10.2.2. of the Discussion Paper, at page 25.

J.Gregory Sidak, FRAND in India:The Delhi High Court's Emerging Jurisprudence on Royalties for Standard-Essential Patents, available at http://jiplp.oxfordjournals.org/content/early/2015/06/11/jiplp.jpv096.full (last accessed 22 April, 2016).

Appeal from the United States District Court for the Eastern District of Texas in No. 6:11-cv-00343-LED, decided on 03 December, 2015, available at. http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1066.Opinion.12-1-2015.1.PDF (last accessed 22 April, 2016).

Id.

Kumkum Sen, News on Royalty Payments Brings Cheer in New Year, available at http://www.business-standard.com/article/economy-policy/news-on-royalty-payment-brings-cheer-in-new-year-110010400044_1.html (last accessed 21 April, 2016).

See Sanjana Govil, Putting a Lid on Royalty Outflows- How the RBI Can Help Reduce India's IP Costs, available at http://cis-india.org/a2k/blogs/lid-on-royalty-outflows (last accessed 21 April, 2016), for a discussion on the introduction of royalty caps in the early 1990s, and its success in reducing the flow of money out of India.

Supra note 33.

Nehaa Chaudhari, Letter for Establishment of Patent Pool for Low-cost Access Devices through Compulsory Licenses, available at http://cis-india.org/a2k/blogs/letter-for-establishment-of-patent-pool-for-low-cost-access-devices (last accessed 21 April, 2016).

Supra note 26.

Rohini Lakshané, FAQ: CIS' proposal to form a patent pool of critical mobile technology, September 2015, available at http://cis-india.org/a2k/blogs/faq-cis-proposal-for-compulsory-licensing-of-critical-mobile-technologies (last accessed 22 April, 2016).

Id.

See the Ericsson-CCI case, supra note 6, for Intex's submissions as discussed by Justice Bakhru.

Id.

Rohini Lakshané, Compilation of Mobile Phone Patent Litigation Cases in India, available at http://cis-india.org/a2k/blogs/compilation-of-mobile-phone-patent-litigation-cases-in-india (last accessed 21 April, 2016).

See the Ericsson-CCI case, supra note 6, at paragraph 19.2.

Supra note 47.

See the Ericsson-CCI judgment, supra note 6, at paragraphs 88-105.

Section 19(4) of the Competition Act. See also Competition Commission of India v. Steel Authority of India and Another, (2010) 10 SCC 744.

Section 115 of the Patents Act, 1970.

Huawei Technologies Co. Ltd v. ZTE Corp. and ZTE Deutschland, Judgment of the Court (Fifth Chamber) of 16 July 2015 in GmbH C-170/13.

Third Party United States Fed. Trade Commission's Statement on the Public Interest, In re Certain Wireless Communication Devices, Portable Music and Data Processing Devices, Computers and Components Thereof, U.S. Int'l Trade Comm'n, Inv. No. 337-TA-745 (Jun. 6, 2012).

Jorge L. Contreras, A Brief History of FRAND: Analyzing Current Debates in Standard Setting and Antitrust Through a Historical Lens, 80 Antitrust Law Journal 39 (2015), available at http://ssrn.com/abstract=2374983 or http://dx.doi.org/10.2139/ssrn.2374983 (last accessed 22 April, 2016).

Section 146(2) of the Patents Act, 1970..

Sai Vinod, Patent Office Finally Takes Form 27s Seriously, available at http://spicyip.com/2013/02/patent-office-finally-takes-form-27s.html (last accessed 22 April, 2016).

Order No. 45/2013 (Intellectual Property Appellate Board, Chennai), available at http://www.ipab.tn.nic.in/045-2013.htm (last accessed 22 April, 2016).

Intellectual Property India, Public Notice, available at http://www.ipindia.nic.in/iponew/publicNotice_Form27_12Feb2013.pdf (last accessed 22 April, 2016) and Intellectual Property India, Public Notice, available at http://ipindia.nic.in/iponew/publicNotice_24December2009.pdf (last accessed 22 April, 2016).

Supra note 57.

Id.

See research findings available at http://spicyip.com/wp-content/uploads/2015/05/FORM-27-WP-1R-copy.pdf (last accessed 22 April, 2016).

In the High Court of Delhi, W.P.(C) 5590/2015. This litigation is currently ongoing. See, illustratively, Mathews P. George, Patent Working in India: Delhi HC issues notice in Shamnad Basheer v. Union of India & Ors. - I, available at http://spicyip.com/2015/09/patent-working-in-india-delhi-hc-issues-notice-in-shamnad-basheer-v-union-of-india-ors-i.html (last accessed 22 April, 2016).

In response to an RTI request made to the IPO in Mumbai for forms unavailable on the website, CIS received a reply stating, "As thousand [sic] of Form -27 are filed in this office, it is very difficult to segregate Form-27 for the patent numbers enlisted in your RTI application as it needs diversion of huge official staff/ manpower and it will affect day to day [sic] work of this office." This research is ongoing and unpublished. Please contact us for a copy of the RTI application and the response received.

WIPO Secretariat, Patent Pools and Antitrust - A Comparative Analysis, available at https://docs.google.com/viewer?url=http%3A%2F%2Fwww.wipo.int%2Fexport%2Fsites%2Fwww%2Fip-competition%2Fen%2Fstudies%2Fpatent_pools_report.pdf (last accessed 22 April, 2016).

Form 27, The Patents Act, available at http://ipindia.nic.in/ipr/patent/manual/HTML%20AND%20PDF/Manual%20of%20Patent%20Office%20Practice%20and%20Procedure%20-%20html/Forms/Form-27.pdf (last accessed 22 April, 2016).

David J. Goodman and Robert A. Myers, 3G Cellular Standards and Patents, available at http://patentlyo.com/media/docs/2009/03/wirelesscom2005.pdf (last accessed 22 April, 2016).

Darien CT, Review of Patents Declared as Essential to WCDMA through December, 2008, available at http://www.frlicense.com/wcdma1.pdf (last accessed 22 April, 2016).

Supra note 67.

Donald L. Martin and Carl De Meyer, Patent Counting, a Misleading Index of Patent Value: A Critique of Goodman & Myers and its Uses, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=949439 (last accessed 22 April, 2016).

Rohini Lakshané, Joining the Dots in India's Big-Ticket Mobile Phone Patent Litigation, available at http://cis-india.org/a2k/blogs/joining-the-dots-in-indias-big-ticket-mobile-phone-patent-litigation (last accessed 22 April, 2016). See also supra note 47 for more details.

Supra note 55.

318 F. Supp. 1116, 1120 (S.D.N.Y. 1970), modified and aff'd, 446 F. 2d 295 (2d Cir. 1971), cert. denied, 404 U.S. 870 (1971).

2015

They filed it in 2011

The 2011 filing only includes pharma, BTW: http://spicyip.com/docs/Form%2027s.pdf. Also, this writ is from May 2015: http://spicyip.com/wp-content/uploads/2015/05/FORM-27-WP-1R-copy.pdf Anyway, I'll leave it as it is.

For more details visit https://cis-india.org/a2k/blogs/comments-on-department-of-industrial-policy-and-promotion-discussion-paper-on-standard-essential-patents-and-their-availability-on-frand-terms

Comments and Suggestions to the Draft Patent Manual March 2019

Achal Prabhala, Feroz Ali, Ramya Sheshadri, Roshan John and Anubha Sinha — 2019-04-05T02:15:07Z

A coordinated civil society response to the consultation on the Patent Manual. CIS provided comments on patenting of computer related inventions.

On behalf of the accessibsa project (www.accessibsa.org), the Médecins Sans Frontières Access Campaign (https://msfaccess.org/) and the Centre for Internet and Society (www.cis-india.org) , as well as numerous endorsing organisations and individuals across Indian Civil Society, we are pleased to present our comments, feedback and suggestions on the draft Manual of Patent Office Practice and Procedure, Version 3, published on 1 March 2019, to which your office invited comment from all stakeholders.

The Indian Patent Office (IPO) on 1 March 2019, published a draft of the “Manual of Patent Office Practice and Procedure, Version 3.0” (hereafter, the “Manual”). This draft extends upon the previous Manual, Version 01.11, dated 22 March 2011, which is currently the Manual in force.

At the outset, we should note that the current draft Manual does not differ substantially from the version in force. Aside from a few updations (for instance, noting the Indian Supreme Court decision in the Novartis case of 2013, as regarding Section 3(d) of Indian patent law), the current Manual under consideration is similar in most aspects to the Manual in force. However, given that several provisions in the current Manual in force were insufficient to implement Indian patent law as it was intended even in 2011, as well as the fact that there have been numerous developments in law, scholarship and practice since the time the Manual was last updated in 2011, we urge the IPO to take this opportunity to reflect upon the developments in patent law and practice, as well as the extensive scholarship now available to us.

Preamble: Indian patent law was substantially amended in 2005, and we began the process of implementing this law a few years later. Today, in 2019, we have data and evidence from almost 14 years of practice, and we suggest that the IPO fully incorporate all learnings available to us, to bring the full force of Indian patent

law into effect, as originally intended. The Manual of the Patent Office has the potential to be a comprehensive handbook on implementing patent law for all stakeholders including patent agents, applicants and the courts. The current version, in the manner proposed, is not. Our suggestions, if adopted in entirety, would make this so: furthermore, our suggestions provide a much-needed opportunity to correct course, by understanding and correcting the failures of the system to implement the original and far-sighted provisions in the Indian patent law amendment of 2005.

Overarching themes: Several of our suggestions for the current Manual under consideration are systemic, and, as such, require broad and serious attention to completely overhaul.

Structure: The Manual under consideration is badly composed and incomplete. Tabular columns are an inappropriate format for a patent manual. Furthermore and separately, the IPO makes use of several instances of “Guidelines” when examining patents. The IPO currently consults, among others, Guidelines for pharmaceuticals, biotechnology and computer related inventions. These guidelines are randomly categorized, badly deployed, hard to locate and amended haphazardly, without notice or any attention. There is no excuse for the IPO Guidelines to not form a part of the Patent Office Manual, thus giving them stability, and subjecting them to a transparent and participative process, like the rest of the Manual. Lastly, the Guidelines should evolve to covering the examination of Biologics as a distinct category, as we should with other frontier technology, such as Artificial Intelligence and Synthetic Biology.

Coherence: We have three inter-locking layers in the patent system in India: the patents act, the patent rules and the patent manual (which should incorporate the patent examination guidelines). The IPO is currently soliciting suggestions for the draft Patent Office Manual, while it has an ongoing amendment to the Patents (Amendment) Rules, 2018. We expect the final Rules to be published shortly; however, we are also being asked to provide suggestions on the Manual, without any knowledge of what the IPO’s final version of the Rules will look like. (For instance, the Patent Rules have suggested a procedural change in how pre-grant patent oppositions will be conducted in India; however, since the Rules are not final, it is unclear how they integrate with the Manual, and how we can comment on the process, since the status of the Patent Rules remains unclear). Furthermore, the Manual makes no reference to the Rules. As such, the IPO should decide and publish a final version of the Rules, and only then solicit feedback on the Manual (which it could do in the current time by extending the date of feedback on the Manual). Regardless, the IPO must achieve coherence and cohesion between its many layers, including the patents act, the patent rules, and the patent manual. This coherence, if achieved, would allow the Manual to serve as a handbook for all stakeholders involved in the patent system, including serving as a basis for open-book exams for patent agents.

Updation: Patent law and practice are fast evolving fields. The IPO necessarily needs to keep up with the pace of technology, as well as evolving interpretations of existing patent law provisions. For instance, the Indian Supreme judgment in the Novartis case was announced in 2013; however, it has taken over 6 years for this important judgment to formally reflect in the work of the Patent Office Manual, despite being Indian law for these 6 years. The IPO, therefore, needs to update the Manual and the examination guidelines, frequently – at least as frequently as major events in technology and the law require.

Transparency & Accountability: In the current time, stakeholders in the Indian patent system, be they multinational corporations or ordinary members of Indian society, are faced with considerable challenges when attempting to view patent information. Despite the IPO having made information

available online for some years, the information on Indian patents is needlessly limited, often inaccurate, often incomplete, and frequently unavailable. On occasion, this is due to insufficient disclosure on the part of the applicant, but overwhelmingly, it is because the IPO is not well organized and insufficiently invested in transparency or accountability. For instance, mandating pharmaceutical patent applicants to provide an INN (International non-proprietary name) on all applications where the information is available, would invaluably assist in extending the transparency and utility of the IPO’s functioning with the Indian public. Patent information in India is the right of every Indian citizen to have, and we have made several suggestions by which the IPO can move towards complying with our constitutional right to information.

Specific themes: Drawing from law, scholarship and practice over the last 14 years of Indian patent law, we strongly urge the IPO to consider these very specific suggestions on having their work comply with the spirit and letter of Indian patent law.

Focus on Biologics: Biologics are a relatively new category of therapy that have quickly become the world’s most expensive medicines emerging as critical therapies in areas like cancer. 7 out of 10 of the world’s best-selling medicines are biologics, and they will play only an increasingly important part in public health in India. Therefore, identifying, understanding and examining patent applications on biologics is of crucial importance to Indian citizens. The IPO would benefit from identifying biologics as a critical category; providing them their distinct field of invention; as well as developing guidelines and practices for evaluating biologics, along with other frontier technology that emerges.

Expedited examination: Since 2016, expedited examination of patents has been the law. More recently, there are reports that the IPO is considering PPH partnerships with some rich country economies such as Japan. This is unwise, especially since even in the extended examination currently underway, the IPO has faced several challenges. We strongly suggest that the IPO needs to evidence the ability to manage the ordinary processes in place with accuracy and compliance with Indian law, before attempting to expedite the said processes, especially since the non-functioning of the patents side of the Intellectual Property Appellate Board (IPAB) has meant that India has not had a corrective mechanism for any incorrect grants that may have been made at the IPO since May 2016.

Check exceptions to patentability first: The law, as has evolved in the Novartis Case in the Supreme Court, and the Roche vs Cipla case before the Delhi High Court, clearly points towards applying all exceptions to patentability under Sections 3 & 4 of the Indian Patents Act, first, before applying the test of patentability under Section 2 (1)(j). Such a procedure would make the work of the IPO more efficient, as well as fair.

Making anti-evergreening provisions work: The Manual currently does not capture the guidelines explicitly laid out in the Indian Supreme Court’s judgment in the Novartis case. Specific principles relating to how to apply Section 3(d) were laid out in the judgment which have no reflection in the Manual. Like with Section 3(d), applicants also routinely circumvent other anti-evergreening provisions in Indian law, such as Section 3(e) and 3(i). Sometimes, these provisions are circumvented alone; other times, when combined, applicants take advantage of the confusion and adduce evidence on one ground, and then use that as a basis to circumvent the other grounds. To apply anti-evergreening provisions in Indian patent law efficiently and fairly, we suggest an anti-

evergreening checklist that will facilitate this process, and which we recommend be an official part of the examiner’s report, both within the process and as a reported output.

Computer related inventions: The Manual currently does not adequately regulate Computer Related Inventions (CRIs). We suggest the introduction of a 3-step test to comprehensively regulate the patentability of mathematical methods, business methods, computer programmes and algorithms as laid down in the Indian Patents Act. Furthermore, we suggest ways in which the law can be applied more carefully within the Manual to detect camouflaging of claims, with an intent to confuse the IPO and Indian patent examiners, especially when conjoined to computer technology, by noting that (1) mathematical methods may sometimes be claimed as “technological development”, (2) that business methods must be evaluated as such, regardless of their application through computers, computer programmes, computer networks or other programmable apparatus, and that (3) that the scope of algorithms needs to be extended to any invention where the function claimed to be performed can only be carried out by means of a computer programme.

Finally, while the nature of our comments and suggestions are deep and extensive, we are aware that we have also asked for the system to be evaluated in full, rather than in parts. As such, the Indian Patent ecosystem is large and complex, and the IPO has been engaged with setting the Patent Rules (under finalization), the Patent Office Manual (the subject of our commentary in this communication) as well as the Examining Guidelines (which we recommend move from being arbitrarily categorized and extended to becoming a formal part of the Patent Office Manual).

In order to comprehensively react to changes to the Indian Patent ecosystem, we require the opportunity to comment comprehensively on a range of inter-linked proposals.

In this spirit, we hope you will allow us – as civil society – to react, once more, to the Patent Rules (as connected to the Patent Office Manual) as well as each of the Examining Guidelines (old and new, i.e. including those intended such as for biologics), in the interests of fairness and transparency. We look forward to assisting you at every step of this process.

Thank you for your time. We trust that, as civil society researchers, activists and academics, who have devoted a considerable number of years towards the research of intellectual property, and the protection of public interests and human rights in India, our submission will be considered seriously and acted upon. We remain, of course, at your disposal, should you or your office have any questions – which we will gladly answer.

Sincerely,

Achal Prabhala, Feroz Ali, Ramya Sheshadri, Roshan John and Anubha Sinha

For more details visit https://cis-india.org/a2k/blogs/comments-and-suggestions-to-the-draft-patent-manual-march-2019

Comment: India's NTP 2018 gets digital makeover but needs complimentary policies

Admin — 2018-05-12T01:55:06Z

Criticism notwithstanding, Indian bureaucratic mandarins—babus as they are referred to in local lingo—do come up with draft policies that are contemporaneous, and at times when it’s least expected.

Comment: India's NTP 2018 gets digital makeover but needs complimentary policies | Indian Television Dot Com

The blog post was published in Indian Television on May 8, 2018.

The new digital avatar of the National Telecoms Policy 2018, slated to be operational later this year, could turn out to be just one such initiative—only if the political masters muster enough courage to push through with the proposed legislation and the will to follow up with complementary policies.

Though surprises are the new norms with this government led by the maverick PM Modi—remember the late evening 'Mitron' address to the nation by the premier few years back announcing high denomination currency notes were being made illegal—it caught many napping when the Department of Telecommunications (DoT) posted on its website the draft of the much-awaited National Telecommunications Policy 2018 very late in the evening on Labour Day. So, what?

The first surprise element was that the NTP 2018 had been rechristened National Digital Communications Policy 2018 (NDCP). The aim: put the draft in public domain to seek comments from key stakeholders and citizens, at large. But true to the government style—keeping things fluid—the deadline for comments is yet to be announced.

The renaming of the policy was welcomed by the industry as it converges with the overarching Digital India vision of the present government; hiccups along the way to implementation, notwithstanding. However, such tweaks in the suggestions made by the telecoms and broadcast carriage regulator TRAI goes not only beyond just the nomenclature but also attempts to actualise provisions of the policy.

What’s also important that while the government wants synergies between various organisations and ministries, it gives a thumb down to a TRAI proposal to make it—or any such other body—a converged regulator.

A Truly Digital Communications Policy

For quite some time, it was being felt by the government and industry alike that a specific road map is required to guide India’s successful movement into the emerging digital realm—to truly address the issue of convergence in the telecoms and broadcast services. To spark rapid all-round deployment of digital capable technologies, it is necessary all available mechanisms be looked at in a comprehensive manner; basically, shifting the focus from just wired and wireless telephony and broadband and expanding the horizons to areas such as satellite communications and broadcast carriage services.

The industry had been demanding that already existing infrastructure assets in sectors such as broadcast and power be utilised to efficiently achieve a demanding goal of laying down high speed fibre infrastructure across India. Thus, a digital-centric telecommunications policy was required to address the crucial aspect of infrastructure sharing and integration.

Furthermore, to firmly strengthen India’s position in the digital sphere, it is necessary that the web-hosting ecosystem, including data storage, be strengthened by implementing norms and standards that are in conformity with international best practices. This gains importance with increasing reports and instances of data breaches and leaks. Also, core principles such as separation of content/applications and infrastructure/carriage layer underlying network neutrality need to be crystallised and affirmed through statutory and policy provisions.

The present draft NTP 2018—or isn’t it better to call it from now on NDCP 2018? —has taken into account many concerns and challenges and seems like an earnest effort on the part of the government to ensure that India’s broadband and digital sectors are backed by sound policy norms and principles.

Has DoT Planned Well for India’s Digital Future?

The DoT has gone ahead and staked its claim to the entire swathe of telecommunications technologies and the methodologies through which government’s digital goals can be rapidly deployed, e-governance included. Now, this could turn out to be an asset as also a weakness, given inter-departmental politics and power play.

DoT has called for an overhaul of India’s archaic satcom policy in line with international standards and also advocated for greater participation by private players in commercial satellite operations --- a vision that needs to be matched with some liberalisation at Department of Space (DoS) and India’s space agency ISRO, both of which report directly to the Prime Minister’s Office. To spearhead the contribution of private satcom industry in providing broadband to far flung districts, there’s specific mention of opening Ka-band for private use and also for utilisation of high through-put (HTS) satellites.

With a view to reducing burden of laying down fresh wireline fibre infrastructure, there’s clear mention of recommendation for “leveraging existing assets of the broadcasting and power sector to improve connectivity, affordability and sustainability”. This could reduce the tendency of telecom industry to overbuild fibre and brings the vast amounts of broadband-capable digital cable infra created under Ministry of Information and Broadcasting (MIB)’s mandate of digitising cable networks across the country and within the purview of Digital India programme.

DoT has also realised the need to formulate a coherent approach to reap the benefit of technological convergence. It has specifically called for statutory amendments to the vintage Telegraph Act, 1885 for “enabling infrastructure convergence of IT, telecom and broadcasting sectors”. This highlights the department wants to create a defined policy structure for seamless use of all broadband capable infrastructure, irrespective of differences amongst sectors. It also reflects clear intent of DoT to focus only on convergence of infrastructure, rather than convergence of applications/media running on this layer.

Therefore, DoT has focused sharply (and some may say appropriately) only on enabling carriage services and the surrounding digital ecosystem rather than delve into other unrelated areas such as media. No wonder it has called for separation of infrastructure/carriage layer from applications/content layer. Moreover, it has called for recognising the need to uphold the core principles of network neutrality by “amending the licence agreements to incorporate the principles of non-discriminatory treatment of content, along with appropriate exclusions and exceptions as necessary”.

Furthermore, the DoT has gone a step ahead and acknowledged the primacy of principles and objectives contained in the National IPR Policy related to telecommunications and sought implementation to kick start development of indigenous IPRs.

The Road to the Final Draft

Though the industry, by and large, has welcomed the draft policy as it gears itself to fulfil the call for the now highly debatable “USD 100 billion” in investments, there are a few asks that still need to be fulfilled. The investment aspect itself is ambitious given the present health of the telecoms sector where a big downside of the business is the pink slips presently being handed out by telcos, big and small.

Another important aspect would be to simplify and streamline all departmental procedures such as windowing of satellite frequencies by the WPC, a part of the DoT, which has been a bottleneck in improving ease of doing business in satcom and broadcasting sectors.

Given that the DoT has already referred to National IPR Policy for the purpose of all IPRs, including patents, trademarks and copyrights, related to telecommunications, it is vital that it settles the debate between carriage and content industries once and for all and pursues the goal of harmonisation of telecom policy construct with the applicable domestic and international IPR regimes.

The key would be to now take all the constructive inputs from the industry and iron out the remaining creases to create an effective implementation framework to turn India into a truly digitally empowered society.

While we debate the National Digital Communications Policy 2018, it would be worthwhile to go back into history and attempt reading the Communications Convergence Bill that was introduced in Parliament in 2001. A real visionary piece of draft legislation, the policy was considered so futuristic at that point of time that a joint parliamentary committee red flagged it at 70-odd places, which effectively sounded the death knell for the proposed legislation that was aimed at promoting and developing the entire communications sector—encompassing the broadcasting, telecom and multimedia sectors—keeping in view emerging convergence of techs and services. Drafted by eminent jurist Fali S Nariman-headed panel, the draft still remains as one of the finest pieces of convergence regulations that never saw the light of the day.

In the end, one cannot but agree with lawyer-researcher at India’s Centre for Internet and Society Anubha Sinha’s observations. Writing for The Wire, an online news venture, Sinha highlighted: “While the policy [NTP 2018/NDCP 2018] is broad and forward-looking, the true intent and meaning of the listed steps will only be understood when complementary legislative and granular policy actions to support these strategies are crystallised. That will make all the difference.”

For more details visit https://cis-india.org/telecom/news/indian-television-may-8-2018-comment-indias-ntp-2018-gets-digital-makeover-but-needs-complimentary-policies

Comment by CIS at ACE on Presentation on French Charter on the Fight against Cyber-Counterfeiting

pranesh — 2011-12-01T11:59:45Z

The seventh session of the World Intellectual Property Organization's Advisory Committee on Enforcement is being held in Geneva on November 30 and December 1, 2011. Pranesh Prakash responded to a presentation by Prof. Pierre Sirinelli of the École de droit de la Sorbonne, Université Paris 1 on 'The French Charter on the Fight against Cyber-Counterfeiting of December 16, 2009' with this comment.

Thank you, Chair. I speak on behalf of the Centre for Internet and Society. First, I would like to congratulate you on your re-election.

And I would like to congratulate Prof. Sirenelli on his excellent presentation.

I would like to flag a few points, though:

One of the benefits of normal laws, as opposed to the soft/plastic laws, which he champions, is that normal laws are bound by procedures established by law, due process requirements, and principles of natural justice. Unfortunately, the soft/plastic laws, which in essence are private agreements, are not.
The report of the UN Special Rapporteur on the Freedom of Expression and Opinion made it clear in his report to the UN Human Rights Council that the Internet is now an intergral part of citizens exercising their right of freedom of speech under national constitutions and under the Universal Declaration of Human Rights. That report highlights that many initiatives on copyright infringement, including that of the French government with HADOPI and the UK, actually contravene the Universal Declaration of Human Rights
The right of privacy is also flagged by many as something that will have to be compromised if such private enforcement of copyright is encouraged.

I'd like to know Prof. Sirinelli's views on these three issues: due process, right of freedom of speech, and the right to privacy.

For more details visit https://cis-india.org/a2k/blogs/ace-7-french-charter-cis-comment

Commemorating Ulo Senthamizh Kodai (1945 - 2024): A Luminary of Tamil Open Knowledge Movement

pavan — 2024-02-08T14:59:50Z

பயன்தூக்கார் செய்த உதவி நயன்தூக்கின் நன்மை கடலின் பெரிது. (௱௩ - 103) திருவள்ளுவர் (Payandhookkaar Seydha Udhavi Nayandhookkin Nanmai Katalin Peridhu (Transliteration). The contribution made without weighing the return, When weighed, outweighs the sea. - Thiruvalluvar

With deep sorrow, we announce the passing of Ulo Senthamizh Kodai (December 22, 1945 – February 1, 2024), a distinguished technologist, author, academician, and prolific contributor to the Tamil Wikipedia community.[1] Born on December 22, 1945, in the village of Puducherrypalli in Thiruvallur district, Tamil Nadu, India, He devoted his life to engineering, science, and promoting scientific knowledge in Tamil.

Ulo Senthamizh Kodai earned his Bachelor's degree in Electrical Engineering from Guindy Engineering College and a Master's degree from PSG College of Technology in Coimbatore. His illustrious 33-year career at the Tamil Nadu Electricity Board included earning a Ph.D. He authored the acclaimed book "Makkal Ariviyal Ilakkiyam: Nokkum Pokkum" and received the Tamil Nadu Government's award for best book in engineering and technology in 2007.

Passionate about Tamil Nadu's science and technology history, Ulo Senthamizh Kodai contributed extensively to scientific vocabulary in Tamil. He served on the editorial board of the Bharathidasan University Journal of Science and Technology and significantly contributed to the Tamil Virtual Academy's glossary of technical terms.

In addition to academia, He was a luminary in the Tamil Wikipedia community, starting his contributions in 2014. He created over 2000 articles and had an edit count of 28513 in Tamil Wikipedia, focusing mainly on scientific articles. He was actively involved until his final days, participating in discussions and editing articles until January 29, 2024.

Ulo Senthamizh Kodai leaves behind a legacy continued by his son Vanchi. His impact on Tamil science and the Wikipedia community is immeasurable, with notable contributions to projects like the 100 WikiDays and the Tamil Teachers' Articles Cleanup Drive.

Members of the Tamil Wikipedia community mourn his passing. Fellow Wikipedian Mahalingam noted, "The passing of Ulo Senthamizh Kodai is a great loss to us all." Former colleague Jambulingam remembered his dedication and encouragement, while longtime contributor K. Murthy recalled Ulo Senthamizh Kodai's resilience despite physical challenges.

Ulo Senthamizh Kodai's contributions were recognized with accolades, including featuring on the main page of Tamil Wikipedia in 2016 and various barnstars and medals from fellow Wikipedians.

As we bid farewell to Ulo Senthamizh Kodai, we remember him not only for his significant contributions to Tamil science and Wikipedia but also for his unwavering dedication to knowledge, education, and the Tamil language. His passing leaves a void in the community, and he will be dearly missed.

We are planning to host a condolence meeting online and we will soon provide information about that. We encourage people to share their memories/experiences of their association with Ulo Senthamizh Kodai on this thread.

Tamil Wikimedians & CIS-A2K.

[1] Biographical Article about Ulo Senthamizh Kodai in Tamil Wikipedia

[2] Userpage of Ulo Senthamizh Kodai in Tamil Wikipedia

For more details visit https://cis-india.org/a2k/blogs/commemorating-ulo-senthamizh-kodai-1945-2024-a-luminary-of-tamil-open-knowledge-movement