Centre for Internet and Society

CIS-A2K Communication Officer position

tito — 2019-06-04T06:45:28Z

The Centre for Internet & Society (CIS) is seeking applications only from prospective candidates who identify themselves as women, for the position of Programme Officer (Communications, the position is also known as Communication Officer), to support its Access to Knowledge (CIS-A2K) Programme. The job application is open to women only because we feel that a woman communications person will contribute more towards bridging the gender gap in the Wikimedia movement by emphasising on gender-sensitive communication apart from contributing internally for bringing a gender balance in the team.

Context of the CIS-A2K programme

As an affiliate of the Wikimedia Foundation, the nonprofit behind Wikipedia and Wikipedia’s sister project, we design and implement different projects with an aim to create high quality content and cultivate new contributors to Wikimedia projects. The projects will be premised on themes and seek to create a multilingual repository of knowledge using Wikimedia projects as a knowledge platform. You are encouraged to deeply engage with the CIS-A2K work plan before making the application. You will work cohesively with the Wikimedia community and the Wikimedia India Chapter to meet specific goals of each language community in India. You will be a part of a small team of 5 to 10 doing high visibility and high impact work. Please learn more about CIS-A2K here.

Position summary

As a Programme Officer, your job will be to support the Team’s larger goals -- growth of Indian-language Wikipedias and other Wikimedia projects (hereinafter Wikimedia projects), and the contributor communities (hereinafter Community). Your primary responsibility will be to support the Programme Associates -- that spearhead our on-ground programmatic activities -- with regular communications with the community and the world outside.

The position is full time and will be based in CIS’ Bengaluru office. Programme Officer will work closely with CIS-A2K Team (hereinafter Team) and would report to the Executive Director/any supervisor in Team.

Characteristics of the Programme Officer

High level of commitment: The Programme Officer should believe in the values of CIS and Wikimedia projects, exude enthusiasm for the mission and can powerfully embody and communicate the mission.
Intellectual curiosity and flexibility: Must enjoy tackling difficult, ambiguous problems and able to incorporate new knowledge into how one approaches situations and generates solutions, loves learning from others while expanding intellectual horizons.
Open and transparent: Have a high level of integrity and be comfortable working in a highly transparent fashion, open to input and feedback, a proactive and candid communicator who wants people to know what s/he is doing and isn't afraid to bring others in when things are off-track or when you need help and should able to handle criticism in a mature fashion.
Community builder: It is essential that the Programme Officer sees herself/himself as a partner to and supporter of the Wikimedians who have and will continue to be the leaders in building the Wikimedia projects. The Programme Officer must be willing and able to work with a diverse array of people, many of whom come from non-traditional backgrounds and have a fervent commitment to Wikimedia movement’s community-led nature.
Strong cultural competency: Able to navigate in a global movement and on a global team in addition to navigating the complexity of India.
Partnership developer: Able to initiate, negotiate and operate partnerships that advance the Wikimedia mission in Indic languages and English (as relevant to India) with a wide range of institutions across the public, NGO, universities, philanthropic and private sector.
Willing to travel: The Programme Officer must regularly travel within India to engage with Wikimedia communities and partner with institutions.

Responsibilities

You will be responsible for the overall communications of Team that include storytelling in the form of interviews, blogs, opinion pieces in newspaper/other platforms, regular coverage in both Indian language and English media, and anything beyond.
You will be exploring widely from conventional to new media to spread the stories of the hundreds and thousands of volunteers that make the Indian-language Wikipedia and Wikimedia projects such great knowledge repositories.
Creating original stories of challenges and learning, and successes of Wikimedia community in general and the ones that we closely work with in particular.
Function as an interface between A2K team and the community, and help the team better work collaboratively with the community.
Sharing the work of the community and A2k team in a regular basis in the monthly newsletters and other places.
Providing training on effective communications to the communities in a need basis, and supporting them to independently tell their own stories in their own languages.
Announcement of programmatic activities in the form of announcements, blogs and reports, and microblogging (social media, etc.).

Interviewing Wikimedians under the ambit of the WikipediansSpeak [1] project and beyond, and share the story of the Wikimedia community widely in the media

Required skills

Graduate with a strong track record of success in high performance organisations, preferably in non-profits.
Experience could be during studies or after, primarily in blogging, writing organisation reports, managing social media for organisations, interviewing and covering people’s stories in mainstream media.
Prior experience of working in a collaborative community, preferably and open one like Wikipedia and in online.
Good understanding of the basics of organisational programme design and management.
Strong understanding of the Internet and the forces that underpin the success of Wikipedia. Active participation as a Wikimedia volunteer would be an asset, though not a prerequisite (must be prepared to demonstrate knowledge of how Wikipedia works in interviews).
Experience working in a global, multicultural and diverse team environment will be preferred.
Must be fluent in English and at least in one Indian language.
A good understanding of the cultural and knowledge universe of the Indian language communities.

Location: The position is based out of the CIS’s Bangalore office.

Remuneration: Compensation structure will be determined by the level of expertise, experience and current remuneration.

To apply, please send your resume to Tito Dutta (tito+po2019@cis-india.org) by 4 June 2019. Please do not miss the +po2019 part in the email, that is an email filter for us)

For more details visit https://cis-india.org/a2k/cis-a2k-communication-officer-position

CIS's Statement at SCCR 24 on the Treaty for the Visually Impaired

pranesh — 2012-07-22T12:01:28Z

This was the statement read out by Pranesh Prakash at the 24th meeting of the WIPO Standing Committee for Copyright and Related Rights in Geneva, on Friday, July 20, 2012.

Thank you, Mr. Chairman.

I would like to associate CIS with the statements made by the WBU, eIFL, IFLA, KEI, ISOC, and CLA.

We NGOs been making statements at SCCR on this the topic of a treaty for the reading-disabled since 2009 now.

In this room there are a number of organizations that work with and for persons with disabilities which come here to Geneva, SCCR after SCCR. They do not come here to watch the enactment of an elaborate ritual, but to seek solutions for the very real knowledge drought that is being faced by the reading-disabled everywhere, and particularly in developing countries.

The way work on this treaty — or rather this binding-or-non-binding international instrument — has been stalled by some member states is a matter of shame. In India our Parliament recently passed an amendment to our copyright law that grants persons with disabilities, and those who are working for them, a strong yet simply-worded right to have equal access to copyrighted works as sighted persons.

An instrument that lays down detailed guidelines on rules and procedures to be followed by authorized entities will not work. An instrument that subjects the enjoyment of fundamental freedoms by persons with visual impairments to market forces and bureaucratic practices will not work.

Importantly, an instrument that ignores realities of the world: that the vast majority of persons with visual impairment live in developing countries just will not work.

I implore the delegations here to keep up the constructive spirit I have seen most of them display in the past two days, and ensure that the 2012 General Assembly convenes a Diplomatic Conference on this topic.

For more details visit https://cis-india.org/a2k/blogs/cis-statement-sccr24-treaty-visually-impaired

CIS's Statement at SCCR 24 on Exceptions & Limitations for Libraries and Archives

pranesh — 2012-07-25T10:54:38Z

This was the statement delivered by Pranesh Prakash on Wednesday, July 25, 2012, at the 24th session of the WIPO Standing Committee on Copyrights and Related Rights on the issue of exceptions and limitations for libraries and archives.

Thank you, Mr. Chair.

We would like to associate ourselves with the statements made by International Federation of Library Associations, Electronic Information for Libraries, Knowledge Ecology International, Conseil International des Archives, Library Copyright Alliance, Computer and Communications Industry Association, and the Canadian Library Association.

The Centre for Internet and Society would like to commend this house for adopting SCCR/23/8 as a working document on the issue of exceptions and limitations on libraries and archives. This issue is of paramount interest the world over, and particularly in developing countries. I would like to limit my oral intervention to three quick points, and will send a longer statement in via e-mail.

First, we feel that this committee should pay special attention to ensuring that digital works and online libraries and archives such as the Internet Archive, also receive the same protection as brick-and-mortar libraries.

Second, we are concerned that we have been seeing some delegations advancing a very narrow interpretation of the three-step test. Such a narrow interpretation is not supported by leading academics, nor by practices of member states. A narrow interpretation of the three-step test must be squarely rejected. In particular, I would like to associate CIS with the strong statements by IFLA and KEI to maintain flexibilities within exceptions and limitations, instead of overly prescriptive provisions encumbered by weighty procedures and specifications.

We have comments about parallel trade as well, drawing from our experience and research in India, and will send those in writing.

Libraries and archive enhance the value of the copyrighted works that they preserve and provide to the general public. They do not erode it. Exceptions and limitations that help them actually help copyright holders. The sooner copyright holders try not to muzzle libraries, especially when it comes to out-of-commerce works, electronic copies of works, and in developing countries, the better it will be for them, their commercial interests, as well as the global public interest.

Thank you.

For more details visit https://cis-india.org/a2k/blogs/cis-statement-sccr24-libraries-archives

CIS's Closing Statement at Marrakesh on the Treaty for the Blind

pranesh — 2013-07-03T12:01:25Z

Pranesh Prakash read out an abridged version of this statement as his closing remarks in Marrakesh, where the WIPO Treaty for the Blind (the "Marrakesh Treaty") has been successfully concluded. The Marrakesh Treaty aims to facilitate access to published works by blind persons, persons with visual impairment, and other print disabled persons, by requiring mandatory exceptions in copyright law to enable conversions of books into accessible formats, and by enabling cross-border transfer of accessible format books.

Thank you, Mr. President.

I am truly humbled to be here today representing the Centre for Internet and Society, an Indian civil society organization. If I may assume the privilege of speaking on behalf of my blind colleagues at CIS who led much of our work on this treaty, and the many blindness organizations we have been working with over the past five years who haven't the means of being here today, I would like to thank you and all the delegates here for this important achievement. And especially, I would like to thank the World Blind Union and Knowledge Ecology International who renewed focus on this issue more than 2 decades after WIPO and UNESCO first called attention to this problem and created a "Working Group on Access by the Visually and Auditory Handicapped to Material Reproducing Works Produced by Copyright".

While doing so, I would like to remember my friend Rahul Cherian — a young, physically impaired lawyer from India — who co-founded Inclusive Planet, was a fellow with the Centre for Internet and Society, and was a legal adviser to the World Blind Union. He worked hard on this treaty for many years, but very unfortunately did not live long enough to see it becoming a reality. His presence here is missed, but I would like to think that by concluding this treaty, all the distinguished delegations here managed to honour his memory and work.

I am grateful to all the distinguished delegations here for successfully concluding a reasonably workable treaty, but especially those — such as Brazil, India, Ecuador, Nigeria, Uruguay, Egypt, South Africa, Switzerland, and numerous others — who realized they were negotiating with blind people's lives, and regarded this treaty as a means of ensuring basic human rights and dignity of the visually impaired and the print disabled, instead of regarding it merely as "copyright flexibility" to be first denied and then grudgingly conceded. The current imbalance in terms of global royalty flows and in terms of the bargaining strength of richer countries within WIPO — many of who strongly opposed the access this treaty seeks to facilitate right till the very end — is for me a stark reminder of colonialism, and I see the conclusion of this treaty as a tiny victory against it.

It is historic that today WIPO and its members have collectively recognized in a treaty that copyright isn't just an "engine of free expression" but can pose a significant barrier to access to knowledge. Today we recognize that blind writers are currently curtailed more by copyright law than protected by it. Today we recognize that copyright not only may be curtailed in some circumstances, but that it must be curtailed in some circumstances, even beyond the few that have been listed in the Berne Convention. One of the original framers of the Berne Convention, Swiss jurist and president, Numa Droz, recognized this in 1884 when he emphasized that "limits to absolute protection are rightly set by the public interest". And as Debabrata Saha, India's delegate to WIPO during the adoption of the WIPO Development Agenda noted, "intellectual property rights have to be viewed not as a self contained and distinct domain, but rather as an effective policy instrument for wide ranging socio-economic and technological development. The primary objective of this instrument is to maximize public welfare."

When copyright doesn't serve public welfare, states must intervene, and the law must change to promote human rights, the freedom of expression and to receive and impart information, and to protect authors and consumers. Importantly, markets alone cannot be relied upon to achieve a just allocation of informational resources, as we have seen clearly from the book famine that the blind are experiencing. Marrakesh was the city in which, as Debabrata Saha noted, "the damage [of] TRIPS [was] wrought on developing countries". Now it has redeemed itself through this treaty.

This treaty is an important step in recognizing that exceptions and limitations are as important a part of the international copyright acquis as the granting of rights to copyright holders. This is an important step towards fulfilling the WIPO Development Agenda. This is an important step towards fulfilling the UN Convention on the Rights of Persons with Disabilities. This is an important step towards fulfilling Article 27 of the Universal Declaration of Human Rights, Article 15 of the International Covenant on Economic Social and Cultural Rights and Article 30 of the UN Convention on Persons with Disabilities, all of which affirm the right of everyone — including the differently-abled — to take part in cultural life of the community.

While this treaty is an important part of overcoming the book famine that the blind have faced, the fact remains that there is far more that needs to be done to bridge the access gap faced by persons with disabilities, including the print disabled.

We need to ensure that globally we tackle societal and economic discrimination against the print disabled, as does the important issue of their education. This treaty is a small but important cog in a much larger wheel through which we hope to achieve justice and equity. And finally, blind people can stop being forced to wear an eye-patch and being pirates to get access to the right to read.

I also thank the WIPO Secretariat, Director General Francis Gurry, Ambassador Trevor Clark, Michelle Woods, and the WIPO staff for pushing transparency and inclusiveness of civil society organizations in these deliberations, in stark contrast to the way many bilateral and plurilateral treaties such as Anti-Counterfeiting Trade Agreement, the India-EU Free Trade Agreement, and the Trans-Pacific Partnership Agreement have been, and are being, conducted. I hope we see even more transparency, and especially non-governmental participation in this area in the future.

I call upon all countries, and especially book-exporting countries like the USA, UK, France, Portugal, and Spain to ratify this treaty immediately, and would encourage various rightholders organizations, and the MPAA who have in the past campaigned against this treaty and now welcome this treaty, to show their support for it by publicly working to get all countries to ratify this treaty and letting us all know about it.

I congratulate you all for the "Miracle of Marrakesh", which shows, as my late colleague Rahul Cherian said, "when people are demanding their basic rights, no power in the world is strong enough to stop them getting what they want".

For more details visit https://cis-india.org/a2k/blogs/cis-closing-statement-marrakesh-treaty-for-the-blind

CIS' submission to Indian Patent Office on Examples of Excluded Patentable subject-matter under Section 3(k) for incorporation in the yet-to-be-released Guidelines for Computer Related Inventions

sinha — 2016-02-22T09:36:52Z

The Patent Office had put the Guidelines on Computer Related Inventions, 2015 in abeyance last month. This step was taken after several stakeholders including CIS made representations to the Office about serious substantive legal issues in the document. In furtherance of the consultative process, a meeting was conducted in Mumbai with various stakeholders, chaired by the Controller General of Patents Design Trademarks (“CGPTDM”). Anubha Sinha participated in the meeting, after which the CGPTDM invited submissions from stakeholders on specific examples on exclusions from patentability under section 3(k) of the Patents Act, 1970, for possible incorporation in the Guidelines for Examination of Computer Related Inventions.

This post contains CIS' submission on specific examples on exclusions from patentability under section 3(k). You may view the Guidelines here. To read the letter sent to the PMO, click here. To read CIS' analysis of the Guidelines, click here.

It is worth noting that the IPO requested for negative examples of patentability [CRIs that cannot be patented under the Act]. While it is commendable that the IPO sought inputs from stakeholders for negative examples, stakeholders have often requested the IPO to provide positive examples of patentable CRIs. The yet-to-be-released-Guidelines should also mention a sufficient number of positive examples to provide better clarity to stakeholders.

ILLUSTRATIVE EXAMPLES ON EXCLUSION FROM PATENTABILITY OF COMPUTER RELATED INVENTIONS
to
THE HON'BLE CONTROLLER GENERAL OF PATENTS DESIGNS AND TRADEMARKS
by
THE CENTRE FOR INTERNET AND SOCIETY, INDIA

I. PRELIMINARY

1. This submission presents specific examples on exclusions from patentability, under section 3(k) of the Patents Act, 1970, for possible incorporation in the Guidelines for Examination of Computer Related Inventions.

2. This submission is based on the Guidelines for Examination of Computer Related Inventions released in September 2015("2015 Guidelines/ Guidelines"). The Guidelines are in abeyance, presently.

3. The Centre for Internet and Society ("CIS") commends the Hon'ble Controller General of Patents Designs and Trademarks ("CGPTDM"), Department of Industrial Policy and Promotion, Ministry of Commerce and Industry, Government of India for its efforts at seeking inputs from various stakeholders. CIS is thankful for the opportunity to have been a part of this discussion since 2008; and to provide this submission in furtherance of of the feedback process continuing from the stakeholders' meeting conducted by the Hon'ble CGPTDM on 19.01.2016.

II. OVERVIEW

4. The Centre for Internet and Society is a non-governmental organization engaged in research and policy work in the areas of, inter alia, intellectual property rights, access to knowledge and openness.[1] This submission is consistent with CIS' commitment to safeguarding general public interest, and the interests and rights of various stakeholders involved. Accordingly, this submission aims to further these principles.

III. SUBMISSIONS

5. Broadly, we submit that the Guidelines narrowed the legal exclusions on patentable subject matter in section 3(k). Consequently, the Guidelines were arguably in violation of section 3(k).

6. To supply clarity to the examination procedure, CIS has proposed a definition to "computer programme per se" in its previous submissions to the Indian Patent Office :

"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."[2]

Further, 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 subject-matter 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." [3]

7. Accordingly, CIS would like to highlight examples of specific patent applications on exclusions from patentability, under section 3(k) of the Patents Act, 1970, for considering their possible incorporation in the Guidelines. The applications are:

7.1 Application No.: 112/CHE/2008

Title: Bill payment card method and system

The Asst. Controller General correctly examined and rejected the invention on the grounds of it purely relating to a business method and processor configured software. Applicant had contended, inter alia, that the method claimed a series of steps being executed with hardware features , including a communication network, communication link and other hardware peripherals intrinsic to the execution of the claimed method.

Further, in their reply to the objections in the FER, the applicants stated:

" There is present a database to perform the functions of the card electronically. The processor is configured to receive information, transmit information and/or authorize the card and associated information thereof. The processor may be configured to produce reports, issue reports, confirmation receipt etc.

It also consists of a card which may include electronic and/or magnetic features e.g. a microprocessor, memory and an electronic chip, a magnetic strip, a USB flash drive and a wireless communication device. The card may be configured to communicate with a wired devices, such as by USB, coaxial cable..."

"...The whole process brings out technical effect in a way that this system allows for the payment of bills without the use of a bank account, credit card, or money order. Hence it is a system with technical features producing technical effect. Hence, enhancement of a business or teaching a way in which a business is carried out is essentially not the the prime motive of the instant invention. With its technical character, technical features and enhancement in business comes as by-product of the implementation of the instant invention."

The invention was rejected.

7.2 Application No.: 48/CHE/2005

Title: Structured approach to software specification

The applicant asserted in their reply to the FER[4] that the claims related to an information managing system including at least on processing unit, a system memory, a system bus, a LAN, a remote computer, a video adapter and monitor and a software architecture performing a particular task or implement particular abstract data types. As a result, they contended that the said invention did not fall under the purview of section 3(k) of the Indian Patents Act, 1970.

The application was correctly rejected by the Controller in the first instance itself.

7.3 Application No.: 2019/CHENP/2004

Title: Apparatus and method of a distributed capital system

The FER included objections regarding lack of novelty, inventiveness, lack of constructive features, lack of support for the word "means" , objections towards a business method, computer program per- se towards an algorithm (objections incl. 3(k)) per se and also towards claims relating to mere medium etc.

Further, it was stated by the Office that even the amended claims failed to overcome the said objections because, inter alia, " the subject matter of the claims related to a method of carrying out financial transactions with one or more parties in a Distributed capital system implemented by pure software I algorithms per-se. The said method is a mere business method/algorithm which is implemented in a computer network through software modules."[5]

The invention was rejected.

7.4. Application No.: 4986/DELNP/2006

Title: A method of tracking a radio frequency signal by means of electronic equipment.

The objections in the FER were that, the subject matter claimed fell within the scope section 3(k) as amended by the Patents (Amendment) Act 2005, for being algorithm based method. Subject matter as described and claimed in computer program product claims as well fell within the scope of section 3(k), for being relating to computer program per se. The examination correctly disregarded the implementation of the invention on electronic equipment.

The invention was rejected.

7.5 Application No.: 1405/MUMNP/2008

Title: Method for determining an output value from a sensor in automation engineering

Order issued u/s 15 clearly pointed out that the contribution of the applicant was a mathematical method to determine the output variable from the input variable. And since mathematical methods were intellectual in nature, the invention lacked technical advancement.

The invention was rejected.

7.6. Application No.: 914/CHE/2007

Title: A system, method to generate transliteration and method for generating decision tree to obtain transliteration

One of the claims read:

"A system to generate transliteration of source language script into target language script using decision tree based technique with automated supervised learning, said system comprising of

i. a device having memory;

ii. an input device for entering text;

iii. transliteration engine to maintain patterns and predetermined rules used in transliteration of source language script into target language script;

iv. a display device for displaying entered text and transliterated textl and

v. an interface to enable typing in any language and optionally to integrate the transliteration system into existing web-pages."

The application was correctly rejected by the Examiner for on grounds of falling under section 3(k), inter alia.

8. CIS welcomes the initiative of the Hon'ble CGPTDM to provide said illustrative examples. CIS believes that it is essential that the Guidelines avoid violation of section 3(k), and are formed complying with the Indian Patents Act, 1970 and relevant judicial decisions; and keeping in mind the legislative intent.

9. CIS would be willing discuss these submissions with the Hon'ble CGPTDM; and supplement them with further submissions if necessary, and offer any other assistance towards the efforts at developing a Guidelines for Examination of Computer Related Inventions.

On behalf of the Centre for Internet and Society
Anubha Sinha
Programme Officer

[1] See www.cis-india.org for details about CIS' work.

[2] Pranesh Prakash, CIS' submission on Draft Patent Manual 2010 , available at < http://cis-india.org/a2k/blogs/cis-submission-draft-patent-manual-2010 >

[3] Ibid.

[4] See First Examination Report, available at <48-CHE-2005 EXAMINATION REPORT REPLY RECEIVED 31-05-2013.pdf>

[5] See First Examination Report for Application No.: 2019/CHENP/2004

For more details visit https://cis-india.org/a2k/blogs/cis-submission-to-indian-patent-office-on-examples-of-excluded-patentable-subject-matter-under-section-3-k-for-incorporation-in-the-yet-to-be-released-guidelines-for-computer-related-inventions

CIS' Submission to DIPP and CGPDTM at meeting with IP Stakeholders

sinha — 2017-12-13T14:31:54Z

The Office of the Controller General of Patents, Designs and Trademarks held a meeting with IP stakeholders on December 7, 2017, chaired by the Secretary, DIPP, to take suggestions on improving procedures and functioning of the Office. Anubha Sinha attended the meeting and requested the DIPP to improve compliance of uploading Form 27s by patentees and ensure proper enforcement of related provisions within the Indian Patent Act, 1970. Additionally, we sent a detailed submission to the Office, drawing from our recent research. Thanks to Rohini Lakshane and Aman Goyal for their inputs.

Submission to the Department of Industrial Planning and Promotion (DIPP) at Meeting with IP Stakeholders on 07 December, 2017

1. As the DIPP is aware, the Indian mobile device manufacturing industry is mired in issues related to licensing of standard essential patents (SEPs). Disputes have resulted in imposition of heavy interim royalty rates on Indian manufacturers, payable to foreign SEP holders. Section 146(2) of the Patent Act, 1970 mandates patentees to provide information on working of patents, which is crucial for willing licensees to access patent working information in a timely manner. This requirement, that the details of patent working be disclosed by patentees supports the goal of making unworked patents available for compulsory licensing in India, both to promote economic development and public access to patented products. Penalties for failing to furnish such information (via Form 27) are steep, potentially resulting in fines or imprisonment.

2. We note that in 2009, 2013 and 2015 the Controller issued public notices calling on patent owners to comply with their obligations to file statements of working on Form 27. Further, on February 12, 2013, the Indian Patent Office (IPO) announced plans to make Form 27 submissions for the year 2012 available to the public via the IPO website.

3. We commend the efforts of the IPO, however, our empirical research on ICT innovations[i] as well as by Prof. Shamnad Basheer (on ICT and pharmaceutical sector)[ii] reveals that there are serious lapses as far as compliance and enforcement of statutory provisions mandating filing of Form 27 are concerned.

4. In the past year, we studied data available from 2009- 2016 for the mobile device sector, and could only identify and access 4,916 valid Forms 27, corresponding to 3,126 mobile device patents, leaving 1,186 Indian patents for which a Form 27 could have been filed, but was not found.[iii] For a surprising number of Form 27s (3%) the working status of the relevant patent was not designated.

Even among the Form 27s that had been obtained, almost none contained useful information regarding the working of the subject patents or fully complying with the informational requirements of the Indian Patent Rules. Many patentees simply omitted required descriptive information from their forms without any explanation.[iv]

Via our research we also gathered complaints raised by patentees and industry observers regarding the structure of the Form 27 requirement itself. For example, patents covering complex, multi-component products that embody dozens of technical standards and thousands of patents may not necessarily be amenable to the individual-level data requested by Form 27.

5. Regardless, we submit that these technical difficulties should not hinder the critical statutory requirement placed on patent holders to diligently comply with Form 27 compliance. In the context of licensing of SEPs, several stakeholders recently suggested solutions as revealed from our study of the submissions made to the TRAI Consultation on Promoting Local Telecom Manufacturing[v]:

Two industry associations, namely Telecom Equipment Manufacturers Association of India (TEMA) and Telecom Equipment & Services Export Promotion Council (TEPC) and a telecommunication enabler Vihan Network Limited recommended that a modified and longer version of Form 27 (Form 27S) may be designed for SEP holders that should apply right at the filing stage. Section 159 of the Patent Act, 1970 empowers the central government to make such modifications to the form, as necessary.[vi]
Further, Prof. T Ramakrishna (MHRD Chair on Intellectual Property Rights) at NLSIU, specifically recommended that Form 27 may be amended to include a new column, which may require the patent holder to declare if their patent forms a part of any standard and in case of affirmative answer – the name of the Standard Setting Organisation and corresponding standard of which it is a part.

6. Further, we would like to draw attention to how our study was limited by the technical capabilities of the Indian Patent Office’s online Form 27 repository, such as[vii]:

IPAIRS returned either a 404 error or Connection Time Out ("site is taking too long to respond") http://ipindiaonline.gov.in/patentsearch/search/index.aspx. In our opinion, it could be redirected to InPASS as it uses the same search engine as InPASS. Further, http://ipindia.nic.in/patsea.htm returned a 404 error.
Some PDFs of the forms comprise scanned image files without OCR of the text. This makes them inaccessible to the visually impaired, and prevents search and discoverability of their content. This also makes them less usable by preventing copying and selection of text.
In some cases, it was difficult to identify which one in the list of documents associated with a patent is Form 27, because of obscure filenames.

For example, for Patent Number 262228, Form 27 was named 68.262228.pdf, as found on IPAIRS.
For Patent number 260603, the filename for Form 27 was "ipindiaonline.gov.in_epatentfiling_online_frmPreview.asp.pdf" on IPAIRS.

Inconsistency in search results found on IPAIRS. Searching for the peripheral documents of the patents, returned the results, "No PDF found" for one full week. The next week, the documents started showing. Some searches returned results for an entirely different patent number.
Sometimes, Form 27 found on InPASS was not found on IPAIRS and vice versa.
Runtime errors occur due to browser caching.

7. We are thankful to DIPP for the opportunity to make these submissions. It would be our pleasure and privilege to discuss these submissions and recommendations in details with the DIPP. We also offer our assistance on other matters aimed at developing a suitable policy framework for SEPs and FRAND in India, and, working towards sustained innovation, manufacture and availability of mobile technologies in India.

Annexure

Complete Data of CIS’ Study[i]

[i] See Contreras, Jorge L. and Lakshané, Rohini and Lewis, Paxton, Patent Working Requirements and Complex Products (October 1, 2017). NYU Journal of Intellectual Property & Entertainment Law; Available at SSRN: https://ssrn.com/abstract=3004283

[ii] See Shamnad Basheer, Making Patents Work: Of IP Duties and Deficient Disclosures, 7 QUEEN MARY J. INTELL. PROP. 3, 16-17 (2017).

[iii] Supra note 1.

[iv] Refer to Appendix for a breakdown of compliance of Form 27 by patent holders in the mobile device sector.

[v] See TRAI’s Consultation Paper on Promoting Local Telecom Equipment Manufacturing dated 18.09.2017 and the responses, available here: http://trai.gov.in/consultation-paper-promoting-local-telecom-equipment-manufacturing?page=2

[vi] Section 159 of the Patent Act, 1970 empowers the central government to make rules. Accordingly, the Rule 131 of the Patents Rules, 2003 prescribes Form 27 as the manner in which section 146(2) of the Act is to be implemented.

[vii] An email by Rohini Lakshane (CIS) compiling these issues was sent to Dr. K.S. Kardam (Senior Joint Controller of Patents and Designs - ‎Indian Patent Office) on 09.09.2017.

[viii] See Contreras, Jorge L. and Lakshané, Rohini and Lewis, Paxton, Patent Working Requirements and Complex Products (October 1, 2017). NYU Journal of Intellectual Property & Entertainment Law; Available at SSRN: https://ssrn.com/abstract=3004283

For more details visit https://cis-india.org/a2k/blogs/cis-submissions-to-dipp-and-cgptdm-at-meeting-with-ip-stakeholders

CIS' Submission on Statement of Working of Patents

sinha — 2018-04-21T15:32:00Z

The Centre for Internet & Society (CIS) made a submission to the Indian Patent Office on the issue of Statement of Working as per Form 27 under the Patents Act, 1970.

Select stakeholders were invited to the consultation meeting held on April 6, 2018. Anubha Sinha attended it along with a few other public-spirited stakeholders. She made a statement stressing on the requirement of the patent system to serve the welfare-purpose and not create mere non-working/ blocking monopolies; and that the argument of representatives of patentees about non-working of patents being the existing norm, and that they cannot be questioned about this, is absolutely against the central tenets of patent law. All written submissions can be accessed here.

Centre for Internet and Society - India’s (CIS) submission to the Controller General of Patents, Designs and Trademarks (CGPDTM) pertaining to Stakeholders Meeting regarding issues related to Working of patents under the Patents Act, 1970

As the CGPDTM is aware, the Indian mobile device manufacturing industry is mired in issues related to licensing of standard essential patents (SEPs). Disputes have resulted in imposition of heavy interim royalty rates on Indian manufacturers, payable to foreign SEP holders. Section 146 and Rule 131 of the Patents Act, 1970 mandate patentees to provide information on working of patents, which is crucial for willing licensees to access patent working information in a timely manner. This requirement, that the details of patent working be disclosed by patentees supports several policy goals, firstly, of making the Indian population benefit from commercial use of the invention; secondly, prevents patentees from creating blocking monopolies – from obtaining and maintaining patents for the purpose of blocking others from developing technologies in the vicinity of the patented inventions; and thirdly, by showing that reasonable requirements of the public are met (or not), directly impacts the implementation of the compulsory licensing scheme of the Patents Act, 1970.
We note that in 2009, 2013 and 2015 the CGPDTM issued public notices calling on patent owners to comply with their obligations to file statements of working on Form 27. Further, on February 12, 2013, the Indian Patent Office (IPO) announced plans to make Form 27 submissions for the year 2012 available to the public via the IPO website. However, these measures have not yielded any significant progress, as patentees and licensees continue to not comply or defectively comply with the statutory requirements.
CIS’ empirical research on ICT innovations reveals that there are serious lapses as far as compliance and enforcement of statutory provisions mandating filing of Form 27 are concerned. In the past year, we studied data available from 2009- 2016 for the mobile device sector, and could only identify and access 4,916 valid Forms 27, corresponding to 3,126 mobile device patents, leaving 1,186 Indian patents for which a Form 27 could have been filed, but was not found. For a surprising number of Form 27s (3%) the working status of the relevant patent was not even designated.

Even among the Form 27s that had been obtained, almost none contained useful information regarding the working of the subject patents or fully complying with the informational requirements of the Indian Patent Rules. Many patentees simply omitted required descriptive information from their forms without any explanation.

Via our research we also gathered complaints raised by patentees and industry observers regarding the structure of the Form 27 requirement itself. For example, patents covering complex, multi-component products that embody dozens of technical standards and thousands of patents may not necessarily be amenable to the individual-level data requested by Form 27.

Thus, our findings support the arguments and findings made by the petitioners in the ongoing matter of Shamnad Basheer v. Union of India and Ors.
Regardless, we submit that these technical difficulties should not hinder the critical statutory requirement placed on patent holders to diligently comply with Form 27 compliance. In the context of licensing of SEPs, several stakeholders recently suggested solutions as revealed from the submissions made to the TRAI Consultation on Promoting Local Telecom Manufacturing:

Two industry associations, namely Telecom Equipment Manufacturers Association of India (TEMA) and Telecom Equipment & Services Export Promotion Council (TEPC) and a telecommunication enabler Vihan Network Limited recommended that a modified and longer version of Form 27 (Form 27S) may be designed for SEP holders that should apply right at the filing stage. Section 159 of the Patent Act, 1970 empowers the central government to make such modifications to the form, as necessary.

Further, Prof. T Ramakrishna (MHRD Chair on Intellectual Property Rights) at NLSIU, specifically recommended that Form 27 may be amended to include a new column, which may require the patent holder to declare if their patent forms a part of any standard and in case of affirmative answer – the name of the Standard Setting Organisation and corresponding standard of which it is a part.

We recommend that the form may be amended to make it more comprehensive and suitable for obtaining necessary information. The same information should be made publicly accessible, in order to satisfy the Indian citizen that the patent is being properly worked.
Further, we would like to draw attention to our findings on deficient technical capabilities of the Indian Patent Office’s online Form 27 repository:
Some PDFs of the forms comprise scanned image files without OCR of the text. This makes them inaccessible to the visually impaired, and prevents search and discoverability of their content. This also makes them less usable by preventing copying and selection of text.

In some cases, it was difficult to identify which one in the list of documents associated with a patent is Form 27, because of obscure filenames.

For example, for Patent Number 262228, Form 27 was named 68.262228.pdf, as found on IPAIRS.

For Patent number 260603, the filename for Form 27 was "ipindiaonline.gov.in_epatentfiling_online_frmPreview.asp.pdf" on IPAIRS.

Inconsistency in search results found on IPAIRS. Searching for the peripheral documents of the patents, returned the results, "No PDF found" for one full week. The next week, the documents started showing. Some searches returned results for an entirely different patent number.

Sometimes, Form 27 found on InPASS was not found on IPAIRS and vice versa.

Runtime errors occur due to browser caching. IPAIRS returned either a 404 error or Connection Time Out ("site is taking too long to respond") http://ipindiaonline.gov.in/patentsearch/search/index.aspx. In our opinion, it could be redirected to InPASS as it uses the same search engine as InPASS. Further, http://ipindia.nic.in/patsea.htm returned a 404 error.
We are thankful to the Indian Patent Office for the opportunity to make these submissions. It would be our pleasure and privilege to discuss these submissions and recommendations in details at the Stakeholders’ Meeting on 21 March, 2018.

On behalf of the Centre for Internet and Society, March 16, 2018
Anubha Sinha, anubha@cis-india.org

See Trimble, Markela, Patent Working Requirements: Historical and Comparative Perspectives (2016). Available at http://www.law.uci.edu/lawreview/vol6/no3/Trimble.pdf

See Contreras, Jorge L. and Lakshané, Rohini and Lewis, Paxton, Patent Working Requirements and Complex Products (October 1, 2017). NYU Journal of Intellectual Property & Entertainment Law; Available at SSRN: https://ssrn.com/abstract=3004283

Supra note (ii).

Refer to Appendix for a breakdown of compliance of Form 27 by patent holders in the mobile device sector.

See Shamnad Basheer, Making Patents Work: Of IP Duties and Deficient Disclosures, 7 QUEEN MARY J. INTELL. PROP. 3, 6-17 (2017).

Also, see https://spicyip.com/shamnad-basheer-v-union-of-india-ors

See TRAI’s Consultation Paper on Promoting Local Telecom Equipment Manufacturing dated 18.09.2017 and the responses, available here: http://trai.gov.in/consultation-paper-promoting-local-telecom-equipment-manufacturing?page=2

Section 159 of the Patent Act, 1970 empowers the central government to make rules. Accordingly, the Rule 131 of the Patents Rules, 2003 prescribes Form 27 as the manner in which section 146(2) of the Act is to be implemented.

An email by Rohini Lakshane (CIS) compiling these issues was sent to Dr. K.S. Kardam (Senior Joint Controller of Patents and Designs - ‎Indian Patent Office) on 09.09.2017.

Click to download the submission by CIS made on March 16, 2018 here.

For more details visit https://cis-india.org/a2k/blogs/cis-submission-on-statement-of-working-of-patents

CIS Submission to the Expert Committee: Protection of Broadcasting Organisations under the Proposed Treaty as Compared to Other International Conventions

Amulya Purushothama and Nehaa Chaudhari — 2015-09-03T02:05:14Z

This is a submission made by Nehaa Chaudhari on behalf of the Centre for Internet and Society to the Expert Committee on the Broadcast Treaty constituted by the Ministry of Information and Broadcasting, Government of India. This submission compares provisions of the Proposed Treaty for the Protection of Broadcasting Organizations that is being deliberated at WIPO's SCCR at the moment, and provisions for the protection of rights of broadcasters that are already present in existing international instruments.

Special thanks to CIS intern, Amulya Purushothama for her research and writing on this subject.

I. Preliminary

1. This submission presents preliminary comments by the Centre for Internet and Society, India ("CIS") on the Proposed Treaty for the Protection of Broadcasting Organizations ("Broadcast Treaty") being deliberated by the Standing Committee on Copyright and Related Rights ("SCCR") of the World Intellectual Property Organization ("WIPO").

2. These comments are submitted pursuant to the request of the Hon'ble Secretary, Ministry of Information and Broadcasting [1], Government of India ("MI&B") at the First Meeting of the Expert Committee to Discuss the Treaty for Broadcasting Organizations at SCCR, WIPO ("Expert Committee"), held on 02 September, 2014 at New Delhi, India, which CIS attended as a member.

3. CIS commends the MI&B for its efforts at seeking inputs from various stakeholders prior to the framing of India's response to the Broadcast Treaty. CIS is thankful for the opportunity to be a part of the Expert Committee. It is a pleasure and privilege to provide this submission in furtherance of the feedback process initiated at the First Meeting of the Expert Committee on 02 September, 2014

II. Overview

4. This submission is divided into two substantive parts- the first part of this submission ("Part 1") presents an analysis on the need for the Broadcast Treaty and its Scope of Application; and the second part of this submission ("Part 2") discusses the shift from a 'signals based approach' to a 'rights based approach'. Part 1 presents an analysis on the need for such a treaty vis-à-vis the rights of broadcasters and authors already protected under the Berne Convention for the Protection of Literary and Artistic Works, 1886 ("Berne Convention"), the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, 1961 ("The Rome Convention"), the Brussels Convention Relating to the Distribution of Programme - Carrying Signals Transmitted by Satellite, 1974("Brussels Convention"), the WIPO Copyright Treaty, 1996("WCT"), the WIPO Performances and Phonograms Treaty,1996 ("WPPT"), and the Beijing Treaty on Audiovisual Performances, 2012 ("The Beijing Treaty"). In doing so, first, existing literature presented at the WIPO on the need for this treaty has been examined; second, provisions of the Broadcast Treaty have been compared with those in the earlier conventions; and third, the rights sought to be granted under the Broadcast Treaty have been examined to ascertain the need for possible additional lawyers of protection, when compared against those offered by earlier conventions.

5. Part 2 examines the Broadcast Treaty to identify a shift from a 'signals based approach' to a 'rights based approach' In so doing in this part first, discussions at the WIPO General Assembly of 2007 on the appropriateness of a 'signals based approach' have been examined to support the claim that a "signals based approach" is indeed appropriate; second, the possible costs of a rights based approach have been identified and third, various provisions of the Broadcast Treaty have been examined to demonstrate an inconsistency with a 'signals based approach'.

III. Detailed Comments

Part 1.The Need for a Broadcast Treaty

(a) Literature Review

6. The Draft Non Paper on the Broadcast Treaty circulated by the WIPO[2] and the background brief prepared by certain WIPO Member States[3] says that this treaty is necessary in order to update international rules to keep pace with technological developments.

7. A study sanctioned by the WIPO in 2010 enumerates the different ways in which signal piracy can take place and the harmful effects it has on revenues of the broadcasting organisations.[4] This study says that continued signal theft may result in dis-incentivizing broadcasting organisations from continuing their work which would in turn affect public interest adversely as important programmes would no longer be broadcast.[5]

8. The study also analyses how the Broadcast Treaty will positively affect different stakeholders like copyright holders and broadcasting organisations due to an additional layer of protection that it grants to them against signal theft and copyright infringement. [6]

9. However, the question of why the current protections provided to copyright holders and to broadcasting organisations under the Rome Convention, the Berne Convention and the Brussels Convention are inadequate when it comes to curbing unauthorized use of broadcast signals if they are implemented properly is still left unanswered. It has not been proved that the Broadcast Treaty fills any gaps left behind by the Berne Convention, the Rome Convention or the Brussels Convention.

10. The Broadcast Treaty is designed in essence, to combat problems with implementation that arose from the earlier treaties, [7] and it is submitted that this justification does not hold water as it is not so much an argument for a new treaty as it is for better implementation of the international conventions that already exist. Therefore, CIS is of the opinion that the reasons provided so far for the need for the Broadcast Treaty do not support the claim made by the broadcasters that the Broadcast Treaty is necessary.

(b) Comparative Analysis

11. In this part we will go through the protections granted in the Broadcast Treaty and compare them with equivalent provisions in other international treaties and a detailed table is provided at the end of this document for reference.

12. The nine focus areas we will concentrate on are, the right of performance, the right of fixation, the right of communication to the public, the right of retransmission, reproduction, distribution, the protection of rights management information, the term of protection, and limitations and exceptions to protections.

13. The argument here is simply that the protections offered under the Broadcast Treaty are either unnecessary as the underlying right is already protected in earlier international conventions or that they are excessive and offer a higher level of protection than previously offered by international conventions, and therefore must be justified.

14. Right of Performance: Under the proposed Broadcast Treaty, broadcasting organisations have an exclusive right to authorize performances of their signals for commercial purposes in places available to the public.[8] This right of public performance and of communication to the public of a performance with respect to dramatic or musical works rests with the copyright holder under the Berne Convention. [9] The Rome Convention states that "protection provided for the performers shall possibly include the prevention of broadcasting and communication to the public without their consent of their performance except where the performance used in the broadcasting or the public communication is itself already a broadcast performance or is made from a fixation".[10]Under the WPPT, performers enjoy the exclusive right of authorizing the broadcasting and communication to the public of their unfixed performances except where the performance is already a broadcast performance.[11] And under the Beijing Treaty, performers enjoy the exclusive right of authorizing the broadcasting and communication to the public of (1) their unfixed performances except where the performance is already a broadcast performance and (2) their performances fixed in audiovisual fixations.[12]

15. CIS therefore submits that the right of performance has been adequately granted to authors/ performers/ copyright h1olders under the earlier international conventions and that the proposed Broadcast Treaty only extends an unnecessary additional layer of protection over the same content.

16. Right of Fixation: The proposed Broadcast Treaty grants broadcasting organisations the exclusive right to authorize fixations of their broadcasts.[13] As fixation is defined as an "embodiment of sounds or images or representations thereof from which they can be perceived reproduced or communicated through a device",[14] this would realistically cover content underlying the signal as well. The Rome Convention states that the protection provided for performers by this convention possibly includes the preventing of fixation without their consent of their unfixed performances".[15]Further broadcasting organisations already enjoy the right to authorize or prohibit the fixation of their broadcasts under the Rome Convention. [16] The Brussels Convention limits this obligation to prevent distribution of signals in case of derived signals that are taken from signals which have already been distributed by a distributor for whom the emitted signals were intended. Derived signals are signals whose technical characteristics are modified whether or not there have been one or more intervening fixations. This allows for some limitation on the right of fixation granted by the Rome Convention.[17] The WPPT provides performers with the right of authorizing the fixation of their unfixed performances.[18]This is mirrored in the Beijing Treaty. [19]

17. Hence CIS submits that the right of fixation has already been adequately covered by international conventions, the provisions of the proposed Broadcast Treaty simply extend this right to possibly cover the content underlying the signal, this would add an extra layer of protection as performers and authors already are vested with a right to fixation under earlier international conventions and treaties, further, the granting of this right to broadcasters could potentially grant them control of content underlying their signals as well, and for these reasons the proposed provisions must be adequately justified.

18. Right of Communication to Public: The proposed Broadcast Treaty defines "communication to the public" as "making the transmissions… audible or visible."[20] And guarantees the exclusive right to authorize the communication to the public of their broadcasts to broadcasting organisations through any means including over computer networks[21] The right of communication to the public has also been guaranteed to authors of literary and artistic workers who can authorize the broadcasting of their works and communication of their work to the public by any means including rebroadcasting under the Berne Convention. [22] The Rome Convention grants a similar right to broadcasting organisations when the broadcast is made in places accessible to the public for a fee, [23]however, the Brussels Convention limits this right and excludes situations where the signals emitted by or on behalf of the originating organization are intended for direct reception from the satellite by the general public.[24] Further, under the WCT, the right to authorize communication to the public is vested with authors of literary and artistic works,[25] and under the WPPT performers enjoy a similar right to authorize broadcasting and communication to the public of their unfixed performances except where the performance is already a broadcast performance. [26] In the Beijing Treaty, performers enjoy the exclusive rights of authorizing the broadcasting and communication to the public of both their unfixed performances except where the performance is already a broadcast performance.[27]And their performances are fixed in audiovisual fixations. [28]

19. Therefore, CIS submits that the right to communicate to the public and even the right to broadcast are adequately guaranteed by the existing international conventions already, the proposed Broadcast Treaty, by vesting a similar right in broadcasting organisations, merely adds an extra layer of protection for the same and doesn't actually fill any existing gaps in the current international intellectual property regime. Further the extension of the right to cover communications made over computer networks is an additional right provided for under the treaty and must be adequately justified.

20. Right of Retransmission: Under the proposed Broadcast Treaty, broadcasting organisations enjoy the exclusive right of retransmission of their broadcast by any means including rebroadcasting, by wire or over computer networks, includes simultaneous retransmission or otherwise [29] the right to authorize broadcasting of their works to the public including any communication to the public by wire or by rebroadcasting the broadcast of the work is vested with the authors of literary and artistic works in the Berne Convention, [30] The Rome Convention already guarantees that broadcasting organisations have the right to authorize and prohibit the rebroadcasting of their broadcasts[31] and the Brussels Convention [32]enjoins contracting states to "take adequate measures to prevent the distribution of any Programme-carrying signal by any distributor for whom the signal emitted to or passing through the satellite is not intended on or from its territory".

21. Therefore, CIS submits that the right of retransmission was already well vested with broadcasting organisations and authors and the expansion of this right to include simultaneous retransmission, transmission over computer networks, cablecasting etc. under the proposed Broadcast Treaty must be adequately justified.

22. Right of Reproduction: The proposed Broadcast Treaty vests the right to authorize direct and indirect reproduction in any manner or form of fixations of their broadcasts with the broadcasting organization.[33] The right to authorize reproduction of copyrighted work[34] and the right to adaptation and alteration [35] is granted to authors of literary and artistic works under the Berne Convention, the Rome Convention allows for the protections provided for performers to include the preventing of reproduction of a fixation of their performance if the original fixation is made without the consent or if the reproduction is made for purposes different from those for which consent was begot, the reproduction is made for purposes that aren't in accordance with Article 15, of a fixation of their performance,[36] it further provides for broadcasting organisations to enjoy the exclusive right to authorize or prohibit the reproduction of fixations made without their consent of their broadcasts[37] and for producers of phonograms to enjoy the right to authorize or prohibit the direct or indirect reproduction of their phonograms,[38] performers enjoy the exclusive right of authorizing direct or indirect reproduction of their performances fixed in phonograms in any manner or form under the WPPT, [39] and producers of phonograms have the exclusive right of authorizing the direct or indirect reproduction of their phonograms in any manner or form under the WPPT.[40]And lastly under the Beijing Treaty performers enjoy the exclusive right authorizing the direct or indirect reproduction of their performances fixed in audiovisual fixations in any manner or form.[41]

23. CIS therefore submits that the right of reproduction has vested with authors and performers and producers of phonograms under several international treaties, the extension of this right to broadcasting organisations adds another layer of protection thereof, but fulfills no need or gap in the existing international intellectual property framework, further, the granting of this right to broadcasters could potentially grant them control over content underlying their signals as well. CIS therefore believes that the inclusion of this right must be adequately justified.

24. Right of Distribution: Under the proposed Broadcast Treaty, broadcasting organisations enjoy the exclusive right to make available to the public, the originals and copies of the fixations in such a way that they can access them from a time and place chosen by them individually, [42] in addition to making such a fixation available through sale or any other means of transfer of ownership.[43]The WCT vests the right of distribution of artistic or literary works with their authors,[44] performers enjoy an equivalent right under the WPPT, [45] as do producers of phonograms,[46] and lastly, performers enjoy the exclusive right of distribution of their performances in audiovisual fixations under the Beijing Treaty. [47]

25. Therefore, CIS submits that the right of distribution has been adequately protected by earlier conventions, the Broadcast Treaty, by extending this right to broadcasting organisations adds another layer of protection for the same right and doesn't necessarily fill any gaps in the international intellectual property framework.

26. Protection of Rights Management Information("RMI"): The proposed Broadcasting Treaty defines RMI as any information that identifies the broadcasting organization, the broadcast, the owner of any right in the broadcast, or information about the terms and conditions of use of the broadcast and any numbers or codes that represent such information when any of these items of information is attached to or associated with the broadcast or the pre broadcast signal or its use in accordance with Article 6.[48] These RMI could be attached to 1) the broadcast or the signal prior to broadcast, 2) the retransmission, 3) transmission following fixation of the broadcast, 4) making available of a fixed broadcast or 5) a copy of a fixed broadcast.[49] One alternative provides for an obligation on contracting parties to provide for "adequate and effective legal protection against unauthorized(a) decryption of an encrypted broadcast or circumvention of any technological protection measure ("TPM") having the same effect as encryption, (b) manufacture , importation, sale or any other act that makes available a device or system capable of decrypting an encrypted broadcast and (c) removal or alteration of any electronic RMI used for the application of the protection of broadcasting organization."[50] Another alternative provides for the same protection only against "(a) unauthorized decryption of an encrypted broadcast, (b) removal or alternation of any electronic RMI for the application of the protection of the broadcasting organisations."[51] Further one alternative also provides that states must ensure "adequate legal protection and effective legal remedies against the circumvention of effective technological measures used by broadcasting organisations in connection with the exercise of their rights under this treaty that restrict unauthorized acts in respect of their broadcasts" [52]. While another provides for this in addition to a provision that states "without limiting the forgoing, contracting parties shall provide legal protection against (i) unauthorized decryption of an encrypted broadcast signal and (ii) removal or alternation of any electronic RMI relevant for the application of the protection of the broadcasting organisations." [53]

27. The definition of RMI has been adopted from earlier conventions such as WCT[54] and WPPT[55] except for the inclusion of RMI attached to pre-broadcast signal. Under the WCT [56] and the WPPT[57], contracting parties have an obligation to provide for legal protection and effective legal remedies against circumvention of effective technological measures used by authors or performers or producers of phonograms in connection with exercise of their rights under these treaties to restrict the unauthorized and unlawful use of their work. Under the WCT[58] and the WPPT,[59] contracting parties have an obligation to provide for "adequate and effective legal remedies against any person knowingly performing (i) removal or alteration of any electronic RMI without authority or (ii) distribution or import for distribution or broadcast or communication to the public without authority works or copies of works knowing that electronic RMI has been removed or altered without authority knowing or with respect to civil remedies having reasonable grounds to know that it will induce, enable, facilitate or conceal an infringement of any right" under WCT, WPPT or the Berne Convention. Similar provisions are made for the protection of RMI attached to audiovisual fixations under the Beijing Treaty [60] under Article 16(2) which defines RMI as information that identifies the performer, the performance of the performer or the owner of any right in the performance or information about the terms and conditions of use of the performance, and any numbers or codes that represent such information, when any of these items of information is attached to a performance fixed in an audiovisual fixation.

28. CIS therefore submits that the provisions proposed in the Broadcast Treaty provide for a protection of RMI that is significantly higher than protection of RMI in earlier convention, not only does it now extend to pre broadcast signals, retransmission, transmissions following fixation of the broadcast making available of a fixed broadcasts or a copy of a fixed broadcasts, it also exists to decryption and encryption of these signals. Therefore, It is important that such extended protections need to be adequately justified.

29. Term of Protection: The proposed Broadcast Treaty provides for a term of protection that lasts for a minimum of 20-50 years computed from the end of the year in which the broadcast signal was broadcast.[61] The Berne Convention provides for a term of protection "life of the author and fifty years after his death" in case of literary and artistic works and 50 years after the work has been made available to the public or in case it hasn't been made available to public, fifty years after the making of the work in case of cinematographic works. [62] Under the Rome Convention the term of protection is calculated as a minimum of 20 years from when the broadcast first took place for broadcasts.[63] Under the WPPT, the term of protection granted to performers is at least 50 years from the end of the year in which the performance was fixed in a phonogram. The term of protection granted for producers is at least 50 years calculated from the end of the year in which the phonogram was published, if unpublished, 50 years from end of the year in which fixation of phonogram was made.[64] And under the Beijing Treaty, term of protection to be granted to performers is at least until the end of a period of 50 years from the end of the year in which the performance was fixed. [65]

30. CIS therefore submits that the term of protection envisioned under the Broadcast Treaty extends protection to copyrighted works as it is not calculated from when the first broadcast of the signal took place, but from when the last broadcast took place, this could potentially lead to ever-greening of copyright protections as broadcasting organisations could simply renew their rights by simply broadcasting their signals again and again. Clearly terms of protection already envisioned under other international conventions protected any content underlying the signal adequately; this provision simply provides an additional layer of protection and doesn't really fill any gaps in the current international intellectual property framework.

31. Limitations and Exceptions: The proposed Broadcast Treaty provided for exceptions and limitations for" (i) private use, (ii) use of short excerpts in connection with reporting of current events , (iii) use solely for purposes of education and scientific research and (iv) ephemeral fixation by a broadcasting organization by means of its own facilities and for its own broadcasts."[66] And for the same or other limitations as are applied in connection with copyrighted works as long as they are confined to special cases that do not conflict with normal exploitation and do not unreasonably prejudice the legitimate interests of the broadcasting organization. Under an alternative, the limitations and exceptions for protection of broadcasting signals can be similar to those for protection of literary and artistic works, provided they are confined to certain special cases that do not conflict with normal exploitation of work that doesn't unreasonably prejudice the legitimate interests of the broadcasting organization.[67] Under a further alternative, limitations and exceptions may extend to all this but further, exceptions of (a) private use, (b) excerpts in connection with reporting of current events (c) ephemeral fixation by a broadcasting organization by means of its own facilities and for its own broadcasts , (d) solely for the purpose of teaching or scientific research, (e) use to promote access by persons with impaired sight or hearing, learning disabilities or other special needs, (f) use by libraries , archivists or educational institutions to make publicly available copies of works that are protected by any rights of the broadcasting organization for preservation, education or research And (g) use of any kind in any manner or form of any part of a broadcast where the program or any part of it which is subject of the transmission is not protected by copyright or any related right, is presumed to constitute special cases that don't conflict with normal exploitation of the work and don't unreasonably prejudice the legitimate interests of the rights holder.[68]

32. The Berne Convention first laid down the "three step test" which stated that "countries of the Union can choose to permit the reproduction of such works in special cases, provided that such reproduction doesn't conflict with a normal exploitation of the work and doesn't unreasonably prejudice the legitimate interests of the author"[69]. Under the Rome Convention these exceptions could include (a) private use, (b) use of short excerpts in connection with reporting of current events, (c) ephemeral fixation by a broadcasting organization by means of its own facilities and for its own broadcasts and d) use solely for the purposes of teaching or scientific research, limitations on protection of copyright in literary and artistic works or compulsory licenses to an extent that is compatible with this convention keeping in mind the three step test [70] Under the Brussels Convention limitations and exceptions to protection of signals include (i) short excerpts of the programme consists of reports of current events , but only to the extent justified by the informatory purpose of such excerpts, (ii) quotations, or short excerpts of the programme carried by the emitted signal, provided that such quotations are compatible with fair practice and are justified by the informatory purpose of such quotations or (iii) the distribution is solely for the purpose of teaching including teaching in the framework of adult education or scientific research in a developing country.[71] Further, contracting states are not limited from applying domestic law to prevent abuses of monopoly in this regard.[72] The WCT follows the three step test formula for literary and artistic work[73] and the WPPT allows for similar limitations for protection of performers and producers of phonograms keeping in mind the three step test.[74] Similar provisions exist under the Beijing Treaty as well.[75]

33. CIS therefore submits that the limitations and exceptions to protections under the Broadcast Treaty could possibly be narrower than those in other international conventions. CIS is of the opinion that such a narrowing of limitations and exceptions must be justified adequately.

34.

Table Comparing Protections Provided under Broadcast Treaty with Protections Provided in Earlier International Conventions

Protection	Proposed Broadcast Treaty	Berne Convention, 1884	Rome Convention, 1961	Brussels Convention, 1974	WIPO Copyright Treaty, 1996	WIPO Performances and Phonograms Treaty, 1996	Beijing Treaty on Audiovisual Performances, 2012
Performance	Article 9 (1) (ii) (Alternative A), broadcasting organisations have an exclusive right to authorize performances of their signals for commercial purposes in places available to the public.	Article11, the right of public performance and of communication to the public of a performance with respect to dramatic or musical works rests with the copyright holder	Article 7(1) (a), protection provided for the performers shall include the possibility of preventing the broadcasting and communication to the public without their consent of their performance except where the performance used in the broadcasting or the public communication is itself already a broadcast performance or is made from a fixation.			Article 6 (i), Performers enjoy the exclusive right of authorizing the broadcasting and communication to the public of their unfixed performances except where the performance is already a broadcast performance	Article 6(i) performers enjoy the exclusive right of authorizing the broadcasting and communication to the public of their unfixed performances except where the performance is already a broadcast performance. Article 11, performers enjoy the exclusive right of authorizing the broadcasting and communication to the public of their performances fixed in audiovisual fixations.
Fixation	Article 9 (1) (i) (Alternative B), broadcasting organisations have the exclusive right to authorize fixation of their broadcasts. Article 5(e) (Alternative A) and 5(f) (Alternative B), Fixation is defined as an embodiment of sounds or images or representations thereof from which they can be perceived, reproduced or communicated through a device. This would realistically cover content in addition to the signal.		Article 7(1) (b), the protection provided for performers by this convention includes the possibility of preventing the fixation without their consent of their unfixed performances. Article 13(b). Broadcasting organisations enjoy the right to authorize or prohibit the fixation of their broadcasts.	Article 2(3), the obligation to prevent distribution of signals by any distributor for whom the signal emitted to or pasting through the satellite is not intended will not apply for the distribution of derived signals that are taken from signals which have already been distributed by a distributor for whom the emitted signals were intended. Derived signals are signals whose technical characteristics are modified whether or not there have been one or more intervening fixations. (Article 1(v)).		Article 6(ii), performers enjoy the exclusive right of authorizing the fixation of their unfixed performances.	Article 6(ii), performers enjoy the exclusive right of authorizing the fixation of their unfixed performances.
Communication to the Public	Article 9(1) (iv) (Alternative B), broadcasting organisations have the exclusive right to authorize the communication to the public of their broadcasts. Article 5 (e) (Alternative B), communication to the public can be defined as "making the transmissions… audible or visible."	Article 11 bis, authors of literary and artistic works enjoy the exclusive right of authorizing the broadcasting of their works and of communication thereof to the public by any means of wireless diffusion of signs, sounds or images. And rebroadcasting.	Article 13(d), Broadcasting organisations enjoy the right to authorize or prohibit the communication to the public of their broadcasts if it is made in places accessible to the public for a fee.	Article 3, the convention doesn't apply when signals emitted by or on behalf of the originating organization are intended for direct reception from the satellite by the general public.	Article 8, authors of literary and artistic works enjoy the exclusive right of authorizing any communication to the public of their works by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them	Article 6 (i), performers enjoy the exclusive right of authorizing the broadcasting and communication to the public of their unfixed performances except where the performance is already a broadcast performance	Article 6(i) performers enjoy the exclusive right of authorizing the broadcasting and communication to the public of their unfixed performances except where the performance is already a broadcast performance. Article 11, performers enjoy the exclusive right of authorizing the broadcasting and communication to the public of their performances fixed in audiovisual fixations.
Retransmission	Article 5 (d) (Alternative A) read with Article 9(1) (i) (Alternative A) and 9(1) (iii) (Alternative B), broadcasting organisations enjoy the exclusive right of retransmission of their broadcast by any means including rebroadcasting , by wire or over computer networks, includes simultaneous retransmission or otherwise	Article 11 bis, authors of literary and artistic works enjoy the exclusive right of authorizing the broadcasting of their works… to the public, and any communication to the public by wire or by rebroadcasting of the broadcast of the work.	Article 13(a), Broadcasting organisations enjoy the right to authorize or prohibit the rebroadcasting of their broadcasts.	Article 2(1), contracting states are required to take adequate measures to prevent the distribution of any programme-carrying signal by any distributor for whom the signal emitted to or passing through the satellite is not intended on or from its territory.
Reproduction	Article 9(1) (ii) (Alternative B), broadcasting organisations have the exclusive rights to authorize direct and indirect reproduction in any manner or form of fixations of their broadcasts.	Article 9, the right of reproduction is vested with the authors of the copyrighted work. Article 12, the right of adaptation and other alteration is vested in the copyright holder/ author.	Article 7 (1) (c), the protection provided for performers under this convention includes the possibility of preventing the reproduction of a fixation of their performance if the original fixation is made without their consent or if the reproduction is made for purposes different from those for which consent was begot, the reproduction is made for purposes that aren't in accordance with Article 15, of a fixation of their performance. Article 13(c), Broadcasting organisations enjoy the right to authorize or prohibit the reproduction of fixations made without their consent of their broadcasts. Articles 10, producers of phonograms enjoy the right to authorize or prohibit the direct or indirect reproduction of their phonograms.			Article 7, performers enjoy the exclusive right of authorizing direct or indirect reproduction of their performances fixed in phonograms in any manner or form. Articles 11, producers of phonograms have the exclusive right of authorizing the direct or indirect reproduction of their phonograms in any manner or form.	Article 7, performers enjoy the exclusive right authorizing the direct or indirect reproduction of their performances fixed in audiovisual fixations in any manner or form.
Distribution	Article 9 (1) (v) (Alternative B), broadcasting organisations enjoy the exclusive right to make available to the public, the original and copies of fixations of their broadcasts in such a way that the members of the public may access them from a place and time individually as chosen by them. Article 9 (1) (vii) (Alternative B), they have the exclusive right to make available to the public of the originals and copies of their broadcasts through sale or other transfer of ownership.				Article 6, Authors of literary and artistic works enjoy the exclusive right of authorizing the making available to the public of the original and copies of their works through sale or other transfers of ownership. Article 8, authors of literary and artistic works enjoy the exclusive right of authorizing any communication to the public of their works by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them.	Article 8, performers enjoy the exclusive right of authorizing the making available to the public of the original and copies of their performances fixed in phonograms through sale or other transfer of ownership. This doesn't affect the freedom of contracting parties to determine conditions to exhaustion of this right after the first sale or other transfer of ownership (Article 8 (ii)). Article 10, performers have the exclusive right to authorize the making available to the public of their performances fixed in phonograms , by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them. Article 12 and 14, this right extends to producers of phonograms.	Article 8 (1), performers enjoy the exclusive rights of authorizing the making available to the public of original and copies of their performances fixed in audiovisual fixations through sale or other transfer of ownership. Article 8(2) contracting parties have the freedom to determine conditions under which exhaustion of this right applies after first sale or other transfer of ownership of the original or a copy of a fixed performance with the authorization of the performer.
rights management information	Article 5, Alternative A to Article 5 (h), "rights management information" ("RMI") is defined as information that identifies the broadcasting organization, the broadcast, the owner of any right in the broadcast, or information about the terms and conditions of use of the broadcast and any numbers or codes that represent such information when any of these items of information is attached to or associated with the broadcast or the pre broadcast signal or its use in accordance with Article 6. Article 13(2), RMI is any information of the abovementioned nature that is associated with 1) the broadcast or the signal prior to broadcast, 2) the retransmission, 3) transmission following fixation of the broadcast, 4) making available of a fixed broadcast or 5) a copy of a fixed broadcast. Article 12, Alternative A1, contracting parties shall provide adequate and effective legal protection against unauthorized(a) decryption of an encrypted broadcast or circumvention of any technological protection measure ("TPM") having the same effect as encryption, (b) manufacture , importation, sale or any other act that makes available a device or system capable of decrypting an encrypted broadcast and (c) removal or alteration of any electronic RMI used for the application of the protection of broadcasting organization. Alternative A2, contracting parties shall provide adequate and effective legal protection against (a) unauthorized decryption of an encrypted broadcast, (b) removal or alternation of any electronic RMI for the application of the protection of the broadcasting organisations. Alternative B 1 and B2, contracting parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures used by broadcasting organisations in connection with the exercise of their rights under this treaty that restrict unauthorized acts in respect of their broadcasts. Alternative B2 (2), without limiting the forgoing, contracting parties shall provide legal protection against (i) unauthorized decryption of an encrypted broadcast signal and (ii) removal or alternation of any electronic RMI relevant for the application of the protection of the broadcasting organisations. Article 13 (1), contracting parties must provide for legal remedies against a violation of this right done knowingly and without proper authority.				Article 12(2), "rights management information" is defined in a similar way as it is in the Broadcast Treaty, excluding however, the RMI attached to pre-broadcast signal. Article 11, contracting parties have an obligation to provide for legal protection and effective legal remedies against circumvention of effective technological measures used by the authors in connection with exercise of their rights. Article 12 (1), contracting parties shall provide adequate and effective legal remedies against any person knowingly performing (i) removal or alteration of any electronic RMI without authority or (ii) distribute or import for distribution or broadcast or communicate to the public without authority works or copies of works knowing that electronic RMI has been removed or altered without authority knowing or with respect to civil remedies having reasonable grounds to know that it will induce, enable, facilitate or conceal an infringement of any right under WCT or the Berne Convention.	Article 19(2): "rights management information" is defined in a similar way as it is in the Broadcast Treaty. Article 18, contracting parties are obligated to provide adequate legal protection and effective legal remedies against circumvention of effective technological measures that are used by performers or producers of phonograms in connection with their rights under this treaty. Article 19, contracting parties shall provide for adequate and effective legal remedies against any person knowingly (i) removing or altering the electronic RMI without authority or (ii) distributing, importing for distribution, broadcasting or communicating or making available to public without authority performances, copies of fixed performances or phonograms knowing that electronic RMI has been removed or altered without authority knowing, or with respect to civil remedies, having reasonable grounds to know that it will induce, enable, facilitate or conceal an infringement of any right covered by this treaty.	Article 16(2): "rights management information" which identifies the performer, the performance of the performer or the owner of any right in the performance or information about the terms and conditions of use of the performance, and any numbers or codes that represent such information, when any of these items of information is attached to a performance fixed in an audiovisual fixation. Article 15, contracting parties have a duty to provide for adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by performers in connection with the exercise of their rights under this treaty and that restricts acts in respect of their performances which are not authorized by the performers concerned or permitted by the law, Article 16 (1), contracting parties shall provide adequate and effective legal remedies against any person knowingly (i) removing or altering any electronic EMI without authority (ii) distributing, importing for distribution, broadcasting , communication or making available to public, without authority, performances or copies of performances fixed in audiovisual fixations knowing that electronic rights management information has been removed or altered without authority, knowing or with respect to civil remedies, having reasonable grounds to know that it will induce, enable, facilitate or conceal an infringement of any right covered by this treaty.
Term of Protection	Article 11 (Alternative A), the term of Protection lasts for a minimum of 20-50 years computed from the end of the year in which the broadcast signal was broadcast.	Article 7 (1), term of protection is the life of the author and fifty years after his death. In case of cinematic works, 50 years after the work has been made available to the public or in case it hasn't been made available to public, fifty years after the making of the work.	Article 14(c), The term of protection is calculated as a minimum of 20 years from when the broadcast first took place for broadcasts. It shall last for a period of 20 years computed from the end of the year in which the performance took place for performances not incorporated in phonograms (Article 14 (b)), and Article 14(c), for twenty years from the end of the year in which the fixation was made for phonograms and performances incorporated therein,		Article 9, in respect of photographic works, the contracting parties shall not apply the provisions of Article 7(4) of the Berne Convention	Article 17, the term of protection granted to performers is at least 50 years from the end of the year in which the performance was fixed in a phonogram. The term of protection granted for producers is at least 50 years calculated from the end of the year in which the phonogram was published, if unpublished, 50 years from end of the year in which fixation of phonogram was made.	Article 14, term of protection to be granted to performers under this treaty shall last at least until the end of a period of 50 years from the end of the year in which the performance was fixed.
Limitations and Exceptions	Article 10, Alternative A, contracting states may provide for exceptions for (i) private use, (ii) use of short excerpts in connection with reporting of current events , (iii) use solely for purposes of education and scientific research and (iv) ephemeral fixation by a broadcasting organization by means of its own facilities and for its own broadcasts. And for the same or other limitations as are applied in connection with copyrighted works as long as they are confined to special cases that do not conflict with normal exploitation and do not unreasonably prejudice the legitimate interests of the broadcasting organization. Alternative B and C, contracting parties may provide for the same kinds of limitations or exceptions for protection of broadcasting organisations as they provide for in protection of copyright in literary and artistic works and protection of literary works. They shall confine limitations to rights provided for in this treaty to certain special cases that do not conflict with normal exploitation of work that doesn't unreasonably prejudice the legitimate interests of the broadcasting organization. Alternative C(2)(a), exceptions of (a) private use, (b) excerpts in connection with reporting of current events (c) ephemeral fixation by a broadcasting organization by means of its own facilities and for its own broadcasts , (d) solely for the purpose of teaching or scientific research, (e) use to promote access by persons with impaired sight or hearing, learning disabilities or other special needs, (f) use by libraries , archivists or educational institutions to make publicly available copies of works that are protected by any rights of the broadcasting organization for preservation, education or research. And (g) use of any kind in any manner or form of any part of a broadcast where the program or any part of it which is subject of the transmission is not protected by copyright or any related right, are presumed to constitute special cases that don't conflict with normal exploitation of the work and don't unreasonably prejudice the legitimate interests of the rights holder.	Article 9, countries of the union can choose to permit the reproduction of such works in special cases, provided that such reproduction doesn't conflict with a normal exploitation of the work and doesn't unreasonably prejudice the legitimate interests of the author.	Article 15 (1), contracting states may provide for exceptions to the protections guaranteed under this convention as regards (a) private use, (b) use of short excerpts in connection with reporting of current events, (c) ephemeral fixation by a broadcasting organization by means of its own facilities and for its own broadcasts and d) use solely for the purposes of teaching or scientific research. Article 15 (2), contracting states may provide for limitations that mirror limitations on protection of copyright in literary and artistic works or compulsory licenses to an extent that is compatible with this convention.	Article 4, the contracting states are not obliged to prevent the distribution of signals by a distributor for whom the signal is not intended if (i) it carries short excerpts of the programme carried by the emitted signal, consisting of reports of current events , but only to the extent justified by the informatory purpose of such excerpts, (ii) quotations, or short excerpts of the programme carried by the emitted signal, provided that such quotations are compatible with fair practice and are justified by the informatory purpose of such quotations or (iii) the distribution is solely for the purpose of teaching including teaching in the framework of adult education or scientific research in a developing country. Further, under Article 7, contracting states are not limited from applying domestic law to prevent abuses of monopoly in this regard.	Article 10, contracting parties may provide for limitations or exceptions to rights granted to authors under this treaty in special cases that do not conflict with normal exploitation of work and do not unreasonably prejudice the legitimate interests of the author via national legislation.	Article 16, contracting parties can provide for the same kinds of limitations or exceptions with regard to protection of performers and producers of phonograms as they provide for in their national legislation to the protection of copyright in literary and artistic works. Article 16 (ii), contracting parties shall confine limitations and exceptions to rights to certain special cases which do not conflict with a normal exploitation of the performance or phonogram and do not unreasonably prejudice the legitimate interests of the performer or of the producer of the phonogram.	Article 13(1), contracting parties may provide for the same kinds of limitations and exceptions with regard to protection of performers as they provide for in their national legislation in connection with the protection of copyright in literary and artistic works. Article 13(2), these limitations or exceptions must be confined to certain special cases which do not conflict with normal exploitation of the performance and do not unreasonably prejudice the legitimate interests of the performer.

35. In addition to this, the proposed Broadcast Treaty, broadcasting/cablecasting organisations now have certain rights that they find no parallel in other international conventions such as rights to pre broadcasting signals[76] etc., the necessity for the inclusion of these rights is yet to be proven.

(c) Analysis and Conclusions

36. CIS is of the opinion that that a higher level of protection is offered to the broadcasting organisations in the Broadcasting Treaty simply because they now have rights to authorize public performances, rights to authorize direct and indirect reproduction of their fixations, right to communication to the public and right to resale, rights that fall under the scope of rights already granted to copyright holders in the Berne Convention. [77] Therefore anyone hoping to use copyrighted material that has been broadcast will have to obtain authorization from the broadcasting organisations in addition to the author/performer.[78]

37. It can be observed from the above discussion that certain rights of broadcasting organisations with regard to signal theft are already protected under the Berne Convention, the Rome Convention and the Brussels Convention. Therefore, broadcasting organisations and copyright holders already have recourse under these conventions to combat certain kinds of signal theft.

38. Hence, CIS believes that any justification provided for the proposed Broadcast Treaty must explain why these provisions are not enough either through impact assessment or by enumerating in clear terms why additional protections are necessary for protection against signal theft, neither of which has been done by any study put forward by the WIPO to date.

39. CIS is therefore of the opinion that the WIPO should undertake a further impact assessment study or a theoretical report outlining the need for the treaty and justifying the introduction of an additional layer of protections against signal theft.

Part 2: Shift from Signals Based Approach to Rights Based Approach

(a) Need for a Signals-Based Approach

40. The WIPO General Assembly decided in 2007 that the focus of the Broadcast Treaty should be the piracy of signals which harms broadcasting organisations as they invest heavily in the production of these signals and therefore have a legitimate interest in the issue of unauthorized use of these signals. [79]

41. It further decided that the protections granted by the Broadcast Treaty should not extended to the content carried by the signals as this would amount to granting those rights to the broadcasting organisations that have already been granted to the copyright holders under the Berne Convention and the Rome Convention.[80] This was done keeping in mind especially that protections granted by the Broadcast Treaty should not extend to orphan works or works that are already in the public domain so as to not curb freedom of expression. [81]

42. CIS believes that the decision to frame the treaty along a signals based approach was taken keeping in mind the pitfalls of a rights based approach and with an intention to avoid harming legitimate and fair use of copyrighted material and is therefore, a well-considered decision which must be adhered to.

(b) Costs of a Rights Based Approach

43. The granting of these rights could act against public interest and curb freedom of speech.[82]

44. The study sanctioned by WIPO states that the Broadcast Treaty due to its limitations on retransmission of signals, reproduction, distribution, fixation and post fixation uses protects the methods of content transmission regardless of the content but doesn't adhere strictly to a signals based approach as the language of the treaty focuses on the rights of the broadcasting organization that often goes above and beyond mere signal theft. [83]

45. CIS believes that the direct result of this is that it will increase costs for the acquisition of the material underlying the signal. It will disadvantage those who would use the content underlying the broadcast signal for legal purposes such as fair use or personal reproduction because they will not have to approach not just the author/ the performer/ the copyright holder, but also the broadcasting organization unless a national law is put in place protecting the rights of the audience/consumer.[84]

46. CIS therefore believes that the shift to a rights based approach is harmful to legitimate use of copyrighted works and free speech and must be avoided in the framing of the treaty.

(c) Shift to a Rights Based Approach

47. While it could be argued that the broadcast treaty still continues the signals based approach as mandated by the 2007 WIPO General Assembly because the term "broadcast" is defined in Article 5 (b) (Alternative A) of the treaty as transmission of a signal, or transmission of a set of signals by wireless carrying a specific program for reception by the general public excluding signals over computer networks (Alternative to (b)). [85]CIS believes that there is in fact a palpable shift away from the signals based approach to an approach focused on providing broadcasters with exclusive rights in the language of the treaty.

48. The fact that "communication to the public" could be defined as "making the transmissions… audible or visible." as per Article 5 (e) (Alternative B) indicates an approach that focuses on content rather than mere signals. [86] Further, the term "embodiment" would realistically cover content as well as signal according to Article 5(e) of Alternative A and 5(f) of Alternative B. [87]

49. Even further, the treaty goes on to grant rights to broadcasting organisations that fall within the scope of rights are already granted to the copyright holder, such as the right of direct or indirect reproduction of the copyrighted work[88] and right of authorizing performances[89].

50. Furthermore, the Broadcast Treaty extends these rights with regard to term of protection[90] and with regard to works that are already in the public domain or orphan works.[91]

51. CIS therefore believes that the subtle shift in the language of the treaty indicates a shift from a signals based approach to a rights based approach, one that is not only against the mandate of the 2007 General Assembly, but also one that provides broadcasters with an extra layer of protection through these rights that were so far only granted to authors of the content under the Berne Convention and the Rome Convention.

52. As proved earlier[92] no well justified reasons have been provided so far for the necessity of these provisions or indeed this treaty, and therefore CIS believes that the WIPO consider conducting impact assessment studies and releasing a report outlining in clear terms why the provisions that currently exist in the earlier conventions have failed to protect against signal theft and why it is necessary for the Broadcast Treaty to contain this additional layer of protection granted through these rights to protect against signal piracy.

53. For all these reasons, CIS believes that the WIPO should restrict the proposed Broadcast Treaty to a signals based approach.

IV. Concluding Observations

54. The Centre for Internet and Society welcomes the opportunity to comment on the proposed Broadcast Treaty and commends the Ministry of Human Resource Development, Government of India for its initiative in seeking inputs from Stakeholders.

55. To that end, reiterating its commitment to the values of access to knowledge, freedom of information, equality, justice, protection of general public interest and safeguarding India's national interest at the international level, the Centre for Internet and Society presents the following concluding observations:

a) That the proposed Broadcast Treaty be restricted entirely to a signal based approach, in consonance with the mandate of the 2007 WIPO General Assembly.

b) That a Preamble be inserted forthwith to clearly lay out the intention of the parties and the scope, objectives and application of this treaty.

c) That certain definitions be suitably modified, as discussed in the preceding sections of these comments.

d) That the rights of broadcasting organizations be suitably modified so as to not curtail access to information.

e) That the limitations and exceptions be made mandatory and not subject to the same tests as those understood in copyright law.

f) That technological protection measures be deleted, so as to ensure the protection of the public domain.

The Centre for Internet and Society would be willing discuss these submissions with the Ministry of Information and Broadcasting, the Ministry of Human Resource Development and the Department of Industrial Policy and Promotion, Government of India; supplement these with further submissions if necessary and offer any other assistance towards the efforts at developing a Broadcast Treaty that would be most beneficial to the protection and promotion of access to knowledge and India's national interests.

[1] See ¶ 12 of the Amended Minutes of the First Meeting of Expert Committee to discuss draft treaty for Broadcasting Organization at SCCR, WIPO held on 2.9.2014 (sic.).

[2] See the Draft Non-Paper on the WIPO Treaty on the Protection of Broadcasting Organisations, Available at: http://www.wipo.int/edocs/mdocs/copyright/fr/sccr_s1/sccr_s1_www_75352.doc (Last Accessed: 19/11/14).

[3] See Also WIPO Background Brief, Available at: http://www.wipo.int/pressroom/en/briefs/broadcasting.html (Last Accessed: 19/11/14).

[4] WIPO in the report of the secretariat entitled "Study on Socioeconomic Dimension of the Unauthorized Use of Signals-Part II: Unauthorized Access to Broadcast Content- Cause and Effects: A Global Overview, SCCR 20^th Session, Geneva June 21-24, 2010, SCCR/20/2Rev.

[5] WIPO in the report of the secretariat entitled "Study on Socioeconomic Dimension of the Unauthorized Use of Signals-Part III: Study on the Social and Economic Effects of the Proposed Treaty on the Protection of Broadcasting Organisations, SCCR, 21^st Session, Geneva November 8-12, 2010,SCCR/21/2.

[6] WIPO in the report of the secretariat entitled "Study on Socioeconomic Dimension of the Unauthorized Use of Signals-Part III: Study on the Social and Economic Effects of the Proposed Treaty on the Protection of Broadcasting Organisations, SCCR, 21^st Session, Geneva November 8-12, 2010,SCCR/21/2.

[7] WIPO in the report of the secretariat entitled "Study on Socioeconomic Dimension of the Unauthorized Use of Signals-Part III: Study on the Social and Economic Effects of the Proposed Treaty on the Protection of Broadcasting Organisations, SCCR, 21^st Session, Geneva November 8-12, 2010, SCCR/21/2; the study posits the idea that it would be easier for broadcasters to enforce their rights and catch instances of unauthorized use than it would be for individual copyright holders as a justification.

[8] Article 9 (1) (ii) (Alternative A), the Broadcast Treaty.

[9] Article11, the Berne Convention for the Protection of Literary and Artistic Works, 1886 ("Berne Convention").

[10] Article 7(1) (a), International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, 1961 ("Rome Convention").

[11] Article 6(i), the WIPO Performances and Phonograms Treaty,1996 ("WPPT")

[12] Article 6 (i) and Article 11, the Beijing Treaty on Audiovisual Performances, 2012 ("The Beijing Treaty").

[13] Article 9 (1) (i) (Alternative B). the Broadcast Treaty.

[14] Article 5(e) (Alternative A) and 5(f) (Alternative B),

[15] Article 7(1) (b), the Rome Convention.

[16] Article 13(b), the Rome Convention.

[17] Article 2(3) read with Article 1(v), the Brussels Convention Relating to the Distribution of Programme - Carrying Signals Transmitted by Satellite, 1974("Brussels Convention").

[18] Article 6(ii), WPPT.

[19] Article 6(ii), the Beijing Treaty.

[20] Article 5 (e) (Alternative B), the Broadcast Treaty.

[21] Article 9(1) (iv) (Alternative B), the Broadcast Treaty.

[22] Article 11 bis, the Berne Convention.

[23] Article 13(d), the Rome Convention.

[24] Article 3, the Brussels Convention.

[25] Article 8, WIPO Copyright Treaty, 1996 ("WCT").

[26] Article 6 (i), WPPT.

[27] Article 6 (i), the Beijing Treaty.

[28] Article 11, the Beijing Treaty.

[29] Article 5 (d) (Alternative A) read with Article 9(1) (i) (Alternative A) and 9(1) (iii) (Alternative B), the Broadcast Treaty.

[30] Article 11 bis, the Berne Convention.

[31] Article 13(a), the Rome Convention

[32] Article 2(1), the Brussels Convention

[33] Article 9(1) (ii) (Alternative B), the Broadcast Treaty.

[34] Article 9, the Berne Convention.

[35] Article 12, the Berne Convention.

[36] Article 7 (1) (c), the Rome Convention.

[37] Article 13(c), the Rome Convention.

[38] Article 10, the Rome Convention.

[39] Article 7, WPPT.

[40] Article 11, WPPT.

[41] Article 11, the Beijing Treaty.

[42] Article 9 (1) (v) (Alternative B), the Broadcast Treaty

[43] Article 9 (1) (vii) (Alternative B), the Broadcast Treaty

[44] Article 6, WCT.

[45] Article 8, WPPT.

[46] Article 12, Article 14, WPPT.

[47] Article 8,the Beijing Treaty

[48] Article 5, Alternative A to Article 5 (h), the Broadcast Treaty.

[49] Article 13(2), the Broadcast Treaty.

[50] Article 12, Alternative A1, the Broadcast Treaty.

[51] Article 12, Alternative A2, the Broadcast Treaty.

[52] Article 12, Alternative B 1 and B2, the Broadcast Treaty.

[53] Article 12, Alternative B2 (2), the Broadcast Treaty.

[54] Article 12(2), WCT.

[55] Article 19(2), WPPT.

[56] Article 11, WCT.

[57] Article 18, WPPT.

[58] Article 12 (1), WCT.

[59] Article 19, WPPT.

[60] Article 15, Article 16, the Beijing Treaty.

[61] Article 11 (Alternative A), the Broadcast Treaty.

[62] Article 7 (1), the Berne Convention.

[63] Article 14(c), the Rome Convention.

[64] Article 17, WPPT.

[65] Article 14, the Beijing Treaty.

[66] Article 10, Alternative A, the Broadcast Treaty.

[67] Article 10, Alternative B, the Broadcast Treaty.

[68] Article 10, Alternative C, the Broadcast Treaty.

[69] Article 9, the Berne Convention.

[70] Article 15, the Rome Convention.

[71] Article 4, the Brussels Convention.

[72] Article 7, the Brussels Convention.

[73] Article 10, WCT.

[74] Article 16, WPPT.

[75] Article 13, the Beijing Treaty.

[76] Article 9 (1) (iii) (Alternative A) of the Broadcast Treaty

[77] See Articles 9, 11,11bis, 12 and 14 of The Berne Convention.

[78] That this is an additional layer of protection has been conceded by the WIPO in the report of the secretariat entitled "Study on Socioeconomic Dimension of the Unauthorized Use of Signals-Part III: Study on the Social and Economic Effects of the Proposed Treaty on the Protection of Broadcasting Organisations, SCCR, 21^st Session, Geneva November 8-12, 2010,SCCR/21/2.

[79] WIPO General Assembly, 33^rd (16^th Extraordinary Session Geneva, September 25- October 2, 2006, WO/GA/33/10, p.38. Further see WIPO in the report of the secretariat entitled "Study on Socioeconomic Dimension of the Unauthorized Use of Signals-Part III: Study on the Social and Economic Effects of the Proposed Treaty on the Protection of Broadcasting Organisations, SCCR, 21^st Session, Geneva November 8-12, 2010,SCCR/21/2.

[80] Id, Also See Further, Revised Consolidated Text for a Treaty on the Protection of Broadcasting Organisations, Standing Committee on Copyright and Related Rights, 12^th Session, Geneva , November 17-19,2004, SCCR/12/2, p. 15.

[81] Id. p. 35, see further, WIPO General Assembly, 34^th (18^th Ordinary Session, Geneva, September 24- October 3 2007,WO/GA/34/16, p. 55-56; Elements for a Draft Treaty on the Protection of Broadcasting Organisations, Standing Committee on Copyright and Related Rights, 22 ^nd Session, Geneva June 15-24, 2011,SCCR/22/11,p.4; and Proposal on the Draft Treaty on the Protection of Broadcasting Organization, Informal Consultation Meeting on the Protection of Broadcasting Organisations, Geneva, April 14-15, 2011, WIPO/CR/CONSULT/GE/11/2/2, p.5.

[82] Thomas Dreier, "Reflections on the Draft WIPO Broadcasting Treaty and Its Impact on Freedom of Expression," e-Copyright Bulletin, July-September, 2006. UNESCO

[83] "Study on Socioeconomic Dimension of the Unauthorized Use of Signals-Part III: Study on the Social and Economic Effects of the Proposed Treaty on the Protection of Broadcasting Organisations, SCCR, 21^st Session, Geneva November 8-12, 2010,SCCR/21/2.

[84] "Study on Socioeconomic Dimension of the Unauthorized Use of Signals-Part III: Study on the Social and Economic Effects of the Proposed Treaty on the Protection of Broadcasting Organisations, SCCR, 21^st Session, Geneva November 8-12, 2010,SCCR/21/2.

[85] Article 5(b) (Alternative A), (Alternative to (b)) of the Proposed WIPO Treaty for Protection of Broadcasting Organisations Available at: http://www.wipo.int/edocs/mdocs/copyright/en/sccr_27/sccr_27_2_rev.pdf (Hereafter, the Broadcast Treaty).

[86] Article 5(e) (Alternative B) of the Broadcast Treaty.

[87] Article 5(e) (Alternative A) and 5(f) (Alternative B) of the Broadcast Treaty.

[88] Article 9 (1) (ii) (Alternative B) of the Broadcast Treaty.

[89] Article 9 (1) (ii) (Alternative A) of the Broadcast Treaty.

[90] The term of protection set out would last for a minimum of 20-50 years from the end of the year in which the broadcast signal was broadcast under Article 11(Alternative A) of the Broadcast Treaty. This basically means that broadcasting organisations can renew their rights by simply re broadcasting the signals and thereby never allowing the content to come under public domain.

[91] Proposal on the Draft Treaty on the Protection of Broadcasting Organization, Informal Consultation Meeting on the Protection of Broadcasting Organisations, Geneva, April 14-15, 2011, WIPO/CR/CONSULT/GE/11/2/2, p.5,p.8.

[92] See Part 1.1.

For more details visit https://cis-india.org/a2k/blogs/protection-of-broadcasting-organisations-under-proposed-broadcast-treaty

CIS Submission to the Expert Committee: Comment on the Broadening of Definitions in the Proposed Broadcast Treaty Compared to Other International Conventions

Amulya Purushothama and Nehaa Chaudhari — 2015-09-03T02:08:34Z

This is a submission made by Nehaa Chaudhari on behalf of the Centre for Internet and Society to the Expert Committee on the Broadcast Treaty constituted by the Ministry of Information and Broadcasting, Government of India. This submission compares the definitions of various terms in the Proposed Treaty for the Protection of Broadcasting Organizations that is being deliberated at WIPO's SCCR at the moment, and definitions for these terms that are already present in existing international instruments.

Special thanks to CIS intern, Amulya Purushothama for her research and writing 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. Download the file of CIS submission here.

Introduction

This note analyses the differences in definitional clauses across six documents, the proposed Treaty on the Protection of Broadcasting Organisations [1] ("Broadcast Treaty"), the Proposal on the Draft Treaty on the Protection of Broadcasting Organization- The Proposal by the Delegation of South Africa[2] ("Proposal by South Africa"), The WIPO Copyright Treaty, 1996, the WIPO Performances and Phonograms Treaty,1996 ("WPPT"), the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, 1961 ("The Rome Convention"), and the Beijing Treaty on Audiovisual Performances, 2012 ("The Beijing Treaty")

The definitions for signal, broadcasting, broadcasting organization, retransmission, fixation, communication to the public and rights management information will be studied in detail as the definitions for these concepts has varied somewhat through the years. The rest of the definitions can be found in a detailed table that follows.

The argument here is simply that by subtly broadening the definition of certain terms, the broadcast treaty grants a higher level of protection to broadcasting organization, and that these protections could possibly extend to covering the content underlying the signals.

1. Signal

The proposed Broadcast Treaty defines a signal as an "electronically generated carrier consisting of sounds or images or sounds and images or representations thereof whether encrypted or not"[3], the alternative to this provision defines a signal as an "electronically generated carrier capable of transmitting a broadcast cablecast"[4]. The proposal by South Africa, on the other hand, defines a signal as "an electric current or electromagnetic field used to convey data". Clearly the definition in the Broadcast Treaty could be extended to cover the content underlying the signal and is not as technologically neutral as the alternative definitions.

2. Broadcasting

The proposed Broadcast Treaty defines broadcast as the "transmission of a signal by a broadcasting organization for reception by the public"[5], an alternative to this excludes signals sent over computer networks from the definition of a broadcast, [6] another alternative defines broadcasting as "the transmission by wireless means for the reception by the public of sounds or of images or of images and sounds or of the representations thereof". This definition includes satellite transmission, wireless transmission of encrypted signals where the means for decrypting are provided to the public by the broadcasting organization or with its consent. Transmission over computer networks is excluded from this definition as well.[7] This mirrors definitions of broadcasting set out in the WPPT[8], the Rome Convention[9] and the Beijing Treaty[10]. The proposal by South Africa defines "broadcasting" as the process whereby "the output signal of a broadcasting organization is taken from the point of origin, being the point where such signal is made available in its final content format and is conveyed to any broadcast target area by means of electronic communications" and "broadcast" is construed accordingly. Clearly the proposed definition under the Broadcast Treaty is less technologically neutral as compared to the proposal by South Africa. The proposed definition under the Broadcast Treaty also does not limit the protection granted by the treaty to the signal and unlike the proposal by South Africa does not ensure that definition excludes the underlying content being transmitted by the signal.

3. Broadcasting Organisations

The proposed Broadcast Treaty defines a broadcasting organization as "the legal entity that takes the initiative for packaging assembling and scheduling program content for which it has, where necessary, been authorized by rights holders and takes the legal and editorial responsibility for the communication to the public of everything which is included in its broadcast signal." Or alternatively[11], considers broadcasting organisations and cablecasting organisations as one and the same and defines them as "the legal entity that takes the initiative and has the responsibility for the transmission to the public of sounds or of images or of images and sounds or of the representation thereof and the assembly and scheduling of the content of the transmission." The proposal by South Africa defines a broadcasting organization as the "legal entity that has the responsibility for packaging, assembly and/or scheduling of program content for which it has legitimate license. Or rights of use for the transmission to the public, sections of the public or subscribers in the form of an unencrypted or encrypted output signal containing sounds, visual images or other visible signals whether with or without accompanying sounds". Clearly, in stark contrast to the proposed Broadcast Treaty, the proposal by South Africa ensures that cablecasting organisations aren't included within the definition of broadcasting organisations, this definition is also by far the most technologically neutral and ensures adequate protection for broadcasting organisations on all broadcasting platforms.

4. Retransmission

The proposed Broadcast Treaty defines "retransmission" as "the transmission by any means by any person other than the original broadcasting organization for reception by the public whether simultaneous or delayed";[12] or alternatively defines rebroadcast as "the simultaneous transmission for the reception by the public of a broadcast or a cablecast by any other person than the original broadcasting organization"; even simultaneous transmission of a rebroadcast is understood to be a rebroadcast under this definition. [13]

Under a further alternative[14] retransmission is defined as "the simultaneous transmission for the reception by the public by any means of a transmission … by any other person than the original broadcasting or cablecasting organization" this definition of retransmission also includes simultaneous transmission of a retransmission.

To contrast to this, the Rome convention defines rebroadcasting as the simultaneous broadcasting by one broadcasting organization of the broadcast of another broadcasting organization.[15] Clearly a higher level of protection is granted to broadcasting organisations under the proposed Broadcast Treaty, one that was so far not guaranteed to them by international conventions.

5. Fixation

The proposed Broadcast Treaty defines fixation as "the embodiment of sounds or images or sounds and images or representations thereof from which they can be perceived , reproduced or communicated through a device" [16] [17],the WPPT defines fixation as "the embodiment of sounds, or of the representations thereof, from which they can be perceived, reproduced or communicated through a device";[18] and the Beijing Treaty defines audiovisual fixation as "the embodiment of moving images, whether or not accompanied by sounds or by the representations thereof, from which they can be perceived reproduced or communicated through a device".[19] In this capacity, the definitions proposed in the Broadcast Treaty seem to be in line with the earlier international treaties.

6. Communication to the Public

The proposed Broadcast Treaty defines communication to the public as "any transmission or retransmission to the public of a broadcast signal or a fixation thereof by any medium or platform".[20]or alternatively as "making the transmissions … audible or visible or audible and visible in places accessible to the public.[21] Whereas the WPPT defined communication to the public as "the transmission to the public by any medium, otherwise than by broadcasting, of sounds of a performance or the sounds or the representations of sounds fixed in a phonogram… including making the sounds or representations of sounds fixed in a phonogram audible to the public."[22] The Beijing Treaty defined communication to the public as "the transmission to the public by any medium otherwise than by broadcasting, of an unfixed performance or of a performance fixed in an audio visual fixation… "communication to the public" includes making a performance fixed in an audiovisual fixation audible or visible or audible and visible to the public." [23] Clearly the definition has been broadened under the proposed treaty, which makes it plausible for the protection granted to broadcasters to cover the content underlying the signal as well.

7. Rights Management Information

The proposed Broadcast Treaty defines rights management information as "information that identifies the broadcasting organization, the broadcast, the owner of any right in the broadcast, or information about the terms and conditions of use of the broadcast and any numbers or codes that represent such information when any of these items of information is attached to or associated with the broadcast or the pre broadcast signal or its use in accordance with Article 6."[24] The WIPO Copyright Treaty, 1996, defines it as "information which identifies the work, the author of the work, the owner of any right in the work, or information about the terms and conditions of use of the work, and any numbers or codes that represent such information, when any of these items of information is attached to a copy of a work or appears in connection with the communication of a work to the public."[25]

The WPPT extends the same definition to performances and performers as it defines rights management information as "information which identifies the performer, the performance of the performer, the producer of the phonogram, the phonogram, the owner of any right in the performance or phonogram, or information about the terms and conditions of use of the performance or phonogram, and any numbers or codes that represent such information, when any of these items of information is attached to a copy of a fixed performance or a phonogram or appears in connection with the communication or making available of a fixed performance or a phonogram to the public."[26] And the Beijing Treaty defines rights management information as "information which identifies the performer, the performance of the performer or the owner of any right in the performance or information about the terms and conditions of use of the performance, and any numbers or codes that represent such information, when any of these items of information is attached to a performance fixed in an audiovisual fixation."[27]

Clearly the current treaty extends the protection offered to rights management information to pre-broadcasting signals in addition to broadcast signals, this represents a higher level of protection granted to broadcasters under the proposed Broadcast Treaty.

Detailed Table on Definitions in International Treaties

Definition	Broadcast Treaty 27/2 rev	Broadcast Treaty Proposal by South Africa WIPO/CR/Consult/GE/11/2/2	WIPO Copyright Treaty, 1996	WIPO Performances and Phonograms Treaty,1996	Rome Convention, 1961	Beijing Treaty on Audiovisual Performances, 2012
Signal	Article 5, Alternative A, 5(a): "signal" is an electronically generated carrier consisting of sounds or images or sounds and images or representations thereof, whether encrypted or not; Alternative to (a), "signal" means an electronically generated carrier capable of transmitting a broadcast or cablecast	"signal" is an electric current or electromagnetic field used to convey data;
Broadcast	Article 5, Alternative A : Article 5 (b): "broadcast" means the transmission of a signal by or on behalf of a broadcasting organization for reception by the public; Alternative to (b): "broadcast" means the transmission of a set of electronically generated signals by wireless and carrying a specific program for reception by the general public, broadcast shall not be understood as including transmission of such a set of signals over computer networks. Alternative B for Article 5, Article 5 (a) "broadcasting" means the transmission by wireless means for the reception by the public of sounds or of images or of images and sounds or of the representations thereof; such transmission by satellite is also "broadcasting". Wireless transmission of encrypted signals is "broadcasting" where the means for decrypting are provided to the public by the broadcasting organization or with its consent. "broadcasting" shall not be understood as including transmissions over computer networks	"broadcasting" means the process whereby the output signal of a broadcasting organization is taken from the point of origin, being the point where such signal is made available in its final content format and is conveyed to any broadcast target area by means of electronic communications and "broadcast" is construed accordingly"		Article 2(f): "broadcasting" means the transmission by wireless means for public reception of sounds or of images and sounds or of the representations thereof; such transmission by satellite is also "broadcasting"; transmission of encrypted signals is "broadcasting" where the means for decrypting are provided to the public by the broadcasting organization or with its consent;	Article 3 (f): "broadcasting" means the transmission by wireless means for public reception of sounds or of images and sounds;	Article 2(c): "broadcasting" means the transmission by wireless means for public reception of sounds or of images and sounds or of the representations thereof; such transmission by satellite is also "broadcasting", transmission of encrypted signals is "broadcasting where the means for decrypting are provided to the public by the broadcasting organization or with its consent.
Broadcasting Organization	Article 5, Alternative A to Article 5 (c): "broadcasting organization" means the legal entity that takes the initiative for packaging assembling and scheduling program content for which it has, where necessary, been authorized by rights holders and takes the legal and editorial responsibility for the communication to the public of everything which is included in its broadcast signal. Alternative B for Article 5, Article 5 (c): "broadcasting organization" and "cablecasting organization" mean the legal entity that takes the initiative and has the responsibility for the transmission to the public of sounds or of images or of images and sounds or of the representation thereof and the assembly and scheduling of the content of the transmission.	"broadcasting organization" means the legal entity that has the responsibility for packaging, assembly and/or scheduling of program content for which it has legitimate license. Or rights of use for the transmission to the public, sections of the public or subscribers in the form of an unencrypted or encrypted output signal containing sounds, visual images or other visible signals whether with or without accompanying sounds.
Retransmission	Article 5, Alternative A to Article 5(d): "retransmission" means the transmission by any means by any person other than the original broadcasting organization for reception by the public whether simultaneous or delayed; Alternative to (d) rebroadcast means the simultaneous transmission for the reception by the public of a broadcast or a cablecast by any other person than the original broadcasting organization; simultaneous transmission of a rebroadcast shall be understood as well to be a rebroadcast. Alternative B for Article 5, Article 5 (d): "retransmission" means the simultaneous transmission for the reception by the public by any means of a transmission referred to in provisions (a) or (b) of this article by any other person than the original broadcasting or cablecasting organization; simultaneous transmission of a retransmission shall be understood as well to mean a retransmission.				Article 3(g): "rebroadcasting" means the simultaneous broadcasting by one broadcasting organization of the broadcast of another broadcasting organization.
Fixation	Article 5, Alternative A to Article 5 (e) "fixation" means the embodiment of sounds or images or sounds and images or representations thereof from which they can be perceived , reproduced or communicated through a device Alternative B for Article 5, Article 5 (f) "fixation" means the embodiment of sounds or of images or of images and sounds or of the representations thereof from which they can be perceived, reproduced or communicated through a device.			Article 2(c): "fixation" means the embodiment of sounds, or of the representations thereof, from which they can be perceived, reproduced or communicated through a device;		Article 2(b): "audiovisual fixation" means the embodiment of moving images, whether or not accompanied by sounds or by the representations thereof, from which they can be perceived reproduced or communicated through a device.
Communication to the Public	Article 5, Alternative A to Article 5 (f): "communication to the public" means any transmission or retransmission to the public of a broadcast signal or a fixation thereof by any medium or platform. Alternative B for Article 5, Article 5 (e): "communication to the public" means making the transmissions referred to in provisions (a), (b) or (d) of this article audible or visible or audible and visible in places accessible to the public.			Article 2(g): "communication to the public" of a performance or a phonogram means the transmission to the public by any medium, otherwise than by broadcasting, of sounds of a performance or the sounds or the representations of sounds fixed in a phonogram. For the purposes of Article 15, "communication to the public" includes making the sounds or representations of sounds fixed in a phonogram audible to the public.		Article 2(d): "Communication to the public of a performance means the transmission to the public by any medium otherwise than by broadcasting, of an unfixed performance or of a performance fixed in an audiovisual fixation. For the purposes of Article 11, "communication to the public" includes making a performance fixed in an audiovisual fixation audible or visible or audible and visible to the public.
Pre-broadcast Signal	Article 5, Alternative A to Article 5 (g): "pre broadcast signal" means a transmission prior to broadcast that a broadcasting organization intends to include in its program schedule, which is not intended for direct reception by the public
Rights Management Information	Article 5, Alternative A to Article 5 (h) "rights management information" means information that identifies the broadcasting organization, the broadcast, the owner of any right in the broadcast, or information about the terms and conditions of use of the broadcast and any numbers or codes that represent such information when any of these items of information is attached to or associated with the broadcast or the pre broadcast signal or its use in accordance with Article 6.		Article 12(2): "rights management information" means information which identifies the work, the author of the work, the owner of any right in the work, or information about the terms and conditions of use of the work, and any numbers or codes that represent such information, when any of these items of information is attached to a copy of a work or appears in connection with the communication of a work to the public	Article 19(2): "rights management information" means information which identifies the performer, the performance of the performer, the producer of the phonogram, the phonogram, the owner of any right in the performance or phonogram, or information about the terms and conditions of use of the performance or phonogram, and any numbers or codes that represent such information, when any of these items of information is attached to a copy of a fixed performance or a phonogram or appears in connection with the communication or making available of a fixed performance or a phonogram to the public.		Article 16(2): "rights management information" which identifies the performer, the performance of the performer or the owner of any right in the performance or information about the terms and conditions of use of the performance, and any numbers or codes that represent such information, when any of these items of information is attached to a performance fixed in an audiovisual fixation.
Transmission	Article 5, Alternative A to Article 5 (i), "transmission" means the sending for reception by the public of visual images sounds or representations thereof by the way of an electronic carrier	"electronic communications" means the emission, transmission or reception of sounds , visual images or other visible signals whether with or without accompanying sounds by means of magnetism, radio or other electromagnetic waves, optical electromagnetic systems or any agency of a like nature, whether with or without the aid of tangible conduct.
Program	Article 5, Alternative A to Article 5 , alternative to (j), "program" means a discreet package of one or more works protected by copyright or related rights in the form of live or recorded material consisting of images, sounds or both.
Cablecast	Article 5, Alternative A to Article 5 (k) "cablecast" means the same as "broadcast" when the transmission is by wire and excluding transmission by satellite or over computer networks. Alternative B for Article 5, Article 5 (b): "cablecasting" means the transmission by wire for the reception by the public of sounds or of images or of images and sounds or of the representations thereof. Transmission by wire of encrypted signals is "cablecasting" where the means for decrypting are provided to the public by the cablecasting organization or with its consent. "cablecasting" shall not be understood as including transmissions over computer networks.
Performers				Article 2(a) :"performers" are actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in, interpret, or otherwise perform literary or artistic works or expressions of folklore	Article 3(a): "performers" means actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in, or otherwise perform literary or artistic works;	Article 2(a): "performers" are actors, singers, musicians, dancers, and other persons, who act, sing, deliver, declaim, play in, interpret or otherwise perform literary or artistic works or expressions of folklore.

[1] See Working Document for a Treaty on the Protection of Broadcasting Organisations, Prepared by the Secretariat, Standing Committee on Copyright and Related Rights, 27^th Session, Geneva, April 28- May 2, 2014, SCCR/27/2/REV. (Hereafter The Broadcast Treaty.)

[2] The Proposal on the Draft Treaty on the Protection of Broadcasting Organisations, Proposal by the Delegation of South Africa, Informal Consultation Meeting on the Protection of Broadcasting Organisations, Geneva, April 14 and 15, 2011, WIPO/CR/Consult/Ge/11/2/2. (Hereafter, The South African Proposal)

[3] Article 5, Alternative A, 5(a), the Broadcast Treaty.

[4] Article 5, Alternative A, Alternative to (a), The Broadcast Treaty.

[5] Article 5, Alternative A, Article 5 (b), The Broadcast Treaty.

[6] Article 5, Alternative A, Alternative to (b), The Broadcast Treaty.

[7] Alternative B for Article 5, Article 5 (a) The Broadcast Treaty.

[8] See Article 2(f) of the WIPO Performances and Phonograms Treaty, 1996.(Hereinafter, WPPT) that reads as: "broadcasting" means the transmission by wireless means for public reception of sounds or of images and sounds or of the representations thereof; such transmission by satellite is also "broadcasting"; transmission of encrypted signals is "broadcasting" where the means for decrypting are provided to the public by the broadcasting organization or with its consent"

[9] See Article 3 (f) of the Rome Convention, 1961 (Hereafter The Rome Convention), that reads as: '"broadcasting" means the transmission by wireless means for public reception of sounds or of images and sounds.'

[10] See Article 2(c) of the Beijing Treaty on Audiovisual Performances, 2012(Hereafter The Beijing Treaty), that reads as '"broadcasting" means the transmission by wireless means for public reception of sounds or of images and sounds or of the representations thereof; such transmission by satellite is also "broadcasting", transmission of encrypted signals is "broadcasting where the means for decrypting are provided to the public by the broadcasting organization or with its consent.'

[11] Alternative B for Article 5, Article 5 (c) The Broadcast Treaty.

[12] Article 5, Alternative A to Article 5(d) The Broadcast Treaty.

[13] Alternative to Article 5(d), The Broadcast Treaty.

[14] Alternative B for Article 5, Article 5 (d), The Broadcast Treaty.

[15] Article 3(g), The Rome Convention, 1961.

[16] Article 5, Alternative A to Article 5 (e), The Broadcast Treaty.

[17] Alternative B for Article 5, Article 5 (f), The Broadcast Treaty.

[18] Article 2(c), WPPT.

[19] Article 2(b), The Beijing Treaty

[20] Article 5, Alternative A to Article 5 (f), The Broadcast Treaty.

[21] Alternative B for Article 5, Article 5 (e), The Broadcast Treaty.

[22] Article 2(g), WPPT.

[23] Article 2(d), The Beijing Treaty.

[24] Article 5 (h), The Broadcast Treaty.

[26] Article 19(2), WPPT.

[27] Article 16(2), The Beijing Treaty.

For more details visit https://cis-india.org/a2k/blogs/the-broadening-of-definitions-in-the-proposed-broadcast-treaty-compared-to-other-international-conventions

CIS Statement on Limitations and Exceptions for Education, Teaching and Research Institutions and Persons with Other Disabilities

nehaa — 2013-12-30T06:17:50Z

Nehaa Chaudhari on behalf of the Centre for Internet and Society (CIS) made this statement at the WIPO-SCCR on December 20, 2013.

The Centre for Internet and Society believes in the universal access to knowledge/education for all, without the barriers of time, distance and costs. We believe that information and communication technologies provide us with the opportunities to achieve this universality for ALL learners, both, through formal and informal institutions and learning environments, in both, digital and non digital formats.

The adoption of limitations and exceptions for education and research is particularly significant from the perspective of developing and least developed nations, where prices of books and other learning material are high not just in absolute terms, but where consumers often have to commit higher proportions of their income to have access to these materials.

We are in agreement with some of the delegations before us, among others with Ecuador, Kenya and the African Group in our belief that the present international legal framework, does not sufficiently address the opportunities presented by these information and communication technologies. The compulsory licensing provisions in the Berne Appendix are complex, narrow, unworkable and of little value to developing nations.

We believe, therefore, Mr. Chair, that there is a need to adopt open ended exceptions for education, teaching and research compatible with the digital environment. In our opinion, Mister Chair, a narrow construction and application of the three step test to these limitations and exceptions would not be the ideal way forward especially for developing and least developed countries. We believe Mr. Chair, that these limitations and exceptions should be those that harmonize national practices; prescribe an international standard, facilitate a cross border exchange of books and other learning material.

Thank you, Mister Chair.

For more details visit https://cis-india.org/a2k/blogs/cis-statement-limitations-and-exceptions-education-training-research-institutions-persons-with-other-disabilities

CIS Statement in WIPO SCCR 43

Shweta Mohandas and Anubha Sinha — 2023-03-28T14:12:21Z

Shweta Mohandas delivered a statement on behalf of CIS, on day 1 of the 43rd WIPO SCCR session on the Broadcast Treaty.

Thank you, Mr. Chair.

I’m speaking on behalf of the Centre for Internet and Society, India.

The second revised draft text for the WIPO Broadcasting Organisations Treaty presents certain concerns.

The absence of a provision on term allows perpetual rights to both traditional broadcasters and streamers. Further, the provision on limitations and exceptions is narrow, and not mandatory. It undermines the existence of open-licensing models on the internet. In the absence of a strong mandatory limitations and exceptions provision, the text gives broadcasters rights over openly-licensed content and works in the public domain.

Thank you.

For more details visit https://cis-india.org/a2k/blogs/cis-statement-in-wipo-sccr-43

CIS Statement at 27th SCCR on the WIPO Proposed Treaty for the Protection of Broadcasting Organizations

nehaa — 2014-05-01T14:27:48Z

The 27th Session of the WIPO Standing Committee on Copyright and Related Rights is being held in Geneva from April 28, 2014 to May 2, 2014. Nehaa Chaudhari, on behalf of CIS made the following statement on April 29, 2014.

This statement was in response to the Chairperson seeking NGO inputs specifically on the Scope of the Treaty and the Rights of Broadcasting Organizations. The statement makes references to a specific Working Document available here. CIS statement is quoted in Knowledge Ecology International on April 29, 2014 and in the Intellectual Property Watch on May 1, 2014.

Thank you, Mister Chair.

We have some concerns regarding the intended scope and language of Article 9 in Working Document SCCR/27/2 Rev. We believe that this expands the scope of this proposed treaty and is likely to have the effect of granting broadcasters rights over the content being carried and not just the signal. On this issue, we have two brief observations to make:

First- Article 9 envisages fixation and post fixation rights for broadcasting organizations- for instance among others, those of reproduction, distribution and public performance This, we believe is not within the mandate of this Committee, being as it is, inconsistent with a signal based approach.

Second- we express our reservations on the inclusion of “communication to the public” reflected in Article 9 Alternative B, which also relates to the definition of communication to the public under alternative to d of Article 5 of this document. Communication to the public is an element of copyright and governs the content layer, as distinct from the “broadcast” or “transmission” of a signal. Therefore, attempts to regulate “communication to the public” would not be consistent with a signal based approach, which we believe is the mandate binding on this Committee.

That is all, Mr. Chair. Thank you very much.

In response to CIS' statement, the Chair had this to say:

Thank you, CIS,. That was a very clear statement and gave us a very clear explanation of the situation. We will indeed take due account of that in the course of this afternoon's further discussion.

For more details visit https://cis-india.org/a2k/blogs/cis-statement-27-sccr-on-wipo-proposed-treaty-for-protection-of-broadcasting-organizations

CIS Statement (on Technological Measures of Protection) at 27th SCCR on Limitations and Exceptions for Libraries and Archives

nehaa — 2014-05-02T11:18:23Z

This statement was in response to the Chairperson seeking NGO inputs specifically on "Technological Measures of Protection", which is topic 9 of Working Document SCCR 26/3.

Thank you, Mister Chair.

We believe that in an environment where much of the preservation and dissemination of knowledge by libraries and archives is in the digital format, having a limitation and exception provision as regards this particular provision of TPMs in this international instrument is integral; and we echo the Canadian Library Association and The Charted Institute of Library and Information Professionals among others on the need for such an exception.

TPMs have the potential to override any fair use or fair dealing exceptions in copyright; and would render much of the discussion that we have been having over the past two days and at earlier sessions of this Committee, redundant, were where such an exception not to be talked about along with other exceptions that we are discussing for libraries and archives. TPMs may prevent end users from using works in ways that are allowed under fair use or fair dealing provisions- permitted exceptions in copyright law. If for instance, TPMs were in place on master copies of files that were obtained by libraries and archives, these institutions would not be allowed to carry out basic preservation activities such as file format migration which in turn would limit the life span of the master files in question and also render access to these files difficult (if that's the word that I could use); which in turn defeats the very purpose of preservation and access to knowledge by libraries and archives.

Therefore Mr. Chair, we think that the suggestion echoed — that the suggestion made by KEI earlier, that Article 7 of the Marrakech Treaty that deals with TPMs would be a logical — could be a logical step forward, and we think that there is merit in that statement, and we would like to align ourselves with that statement.

Thank you, Mr. Chair.

For more details visit https://cis-india.org/a2k/blogs/cis-statement-on-technological-measures-of-protection-27-sccr-on-limitations-exceptions-for-libraries-and-archives

CIS Statement (on Orphan Works, Retracted and Withdrawn Works, and Works out of Commerce) at 27th SCCR on Limitations and Exceptions for Libraries and Archives

nehaa — 2014-05-02T11:21:05Z

This statement was in response to the Chairperson seeking NGO inputs specifically on "Orphan Works, Retracted and Withdrawn Works, and Works Out of Commerce", which is topic 7 of Working Document SCCR 26/3.

Thank you very much, Mister Chair.

Mister Chair, we will be addressing this topic on two levels:

First, the need for limitations and exceptions for libraries and archives for orphan, retracted and withdrawn works and works out of commerce.

Second, the need for these limitations and exceptions to be a part of an international legal instrument.

On the first level, Mr. Chair- we are of the opinion that this limitation and exception is necessary for libraries and archives to be able to perform their key functions- the preservation and dissemination of knowledge.

This exception speaks to a very complex environment- One where the owner of a work cannot be located despite an exhaustive search and therefore digitazation cannot take place because to do so would be copyright infringment; one where the volumes of works that we’re speaking of are anywhere between 10 and 70 percent of the collections of some libraries (these figures are based on reports released by various libraries, library associations and others, that are available online); one, where rights information of works is lacking; and an environment where works have been withdrawn for a variety of reasons. The outcome which commonly arises as a result of all of these is that works are not available to the public, in turn affecting access to and the dissemination of knowledge and information, which is one of the basic purposes of copyright. Any interpretation or understanding of copyright ought to be one that aids in the achievement of this purpose, as opposed to deviating from it.

On the second level, Mr. Chair- we believe that there is a need for an international legal instrument to govern these limitations and exceptions.

We have heard the statements made to this Committee by various Hon’ble delegations today and at earlier sessions of this Committee. What emerges, as KEI said earlier, is that there is a lack of uniformity in national legislations and approaches in addressing this issue. What also emerges is that the current copyright framework in some developing and least developed countries does not adequately address these issues. Therefore, Mr. Chair, as we have stated at earlier Sessions of this Committee- to be able to harmonize these limitations and exceptions, to ensure that these limitations and exceptions have a cross border effect, and hopefully to have discussions that we have here are influence national law making and state practice (also, as KEI said earlier), we believe that an international legal instrument that deals with among others the exception we are discussing in Topic 7, is very important.

That’s all we have to say at the moment, Mr. Chair. Thank you very much.

For more details visit https://cis-india.org/a2k/blogs/cis-statement-orphan-works-retracted-withdrawn-works-and-works-out-of-commerce-at-27-sccr-on-limitations-and-exceptions-for-libraries-and-archives

CIS Signs MOU with TISS, Mumbai

praskrishna — 2013-07-04T04:15:54Z

The Access to Knowledge (A2K) team from the Centre for Internet and Society (CIS) has signed a MOU with the Tata Institute of Social Science (TISS), Mumbai.

Institutional partnerships (especially in the higher education context) is a cross-cutting activity across A2K's various language plans and also the pilot project. A2K Team is happy to share with you an important outcome on this front.

CIS-A2K has signed a MoU with TISS as part of which we will collaboratively work towards building Digital Knowledge Partnerships with select higher education institutions. The objective is to enhance digital literacy in the Indian languages and facilitate collaborative knowledge production and free dissemination. A2K along with TISS will co-design and jointly implement relevant training programmes to achieve this. Further, within TISS campuses we will endeavour to bring teaching-learning processes onto free and open digital platforms, including Indian language Wikipedias. The A2K team would like to acknowledge the pivotal role played by our Adviser Dr. Tejaswini Niranjana in buildig this collaboration.

We'll keep you posted as and when new developments shape up and would like to actively involve Mumbai Wikipedians in planning, designing and rolling out Wikipedia training programmes.

For more details visit https://cis-india.org/a2k/blogs/cis-tiss-mou