Centre for Internet and Society

Pranesh Prakash: Influencing India's IP Laws

praskrishna — 2014-02-25T06:20:31Z

Pranesh Prakash believes intellectual property laws need to evolve and change with time.

Samar Srivastava's article was published in Forbes India Magazine on February 15, 2014.

At an age where his contemporaries are still junior litigators and aspiring lawyers, Pranesh Prakash, 28, is already a recognisable name in the filed of legal activism.

In 2013 he worked with the World Intellectual Property Organization to draft a treaty for the blind. It provides for an exception to copyright laws so that books can be converted into accessible formats for the blind and visually impaired, and exchanged across borders.

For Prakash the treaty capped a signal achievement in intellectual property and copyright—an area he has been working in since graduating from the National Law School, Bangalore. In his closing speech at the diplomatic conference at Marrakesh, Morocco, Prakash said: “When copyright doesn’t serve public welfare, states must intervene... 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.”

Prakash’s work on intellectual property has brought him recognition through affiliations: He is an Access to Knowledge Fellow at the Information Society Project at Yale Law School. In 2012, he was selected as an Internet Freedom Fellow by the US State Department.

“I was always interested in doing public interest work,” says Prakash. An internship with activist lawyer Rajeev Dhawan cemented his desire. Prakash is now prominent in a line of thinkers working in the area of freedom of expression, internet governance and intellectual property.

It is clear that existing laws in these areas are inadequate and a new jurisprudential setup needs to evolve. For example, the same standards often apply to print and internet media; they fail to recognise that, say, tweets have a different impact than newspapers headlines.

Prakash’s criticism of governments blocking websites stood out, but his recommendations were not accepted. He proposed that all intermediaries, like the ISP and the domain host, not be bunched, and separate standards be imposed on them, based on their editorial role in content creation.

“What distinguishes his work is the impact it has on the public at large,” says Gautam John, head, Karnataka Learning Partnership at the Akshara Foundation. “His work in the area is cutting edge. There is no one doing that work.”

Then there is his work with Section 66A of the IT Act. Under the section, anyone who sends false, offensive or inappropriate content by a computer or communication device can be punished with three years of imprisonment. This section has been misused by the police. Prakash has long argued that the law must be more specific in what it defines as offensive, and that the government needs to engage more with civil society and industry to end the antagonistic and selective manner in which the law is imposed.

Efforts of the Centre for Internet and Society (CIS), Bangalore, where Prakash is policy director, have resulted in rules being amended. Now, only officers of the rank of DCP and above can make an arrest. CIS, set up in 2008, has also made representations on the copyright law to Parliamentary Standing Committees.

Prakash’s activism has had another significant effect on intellectual property in India. By a 2008 Bill, the government had tried to privatise publicly-funded intellectual property. Prakash was part of a sustained campaign against the Bill, and in 2011 it was shelved.

For more details visit https://cis-india.org/news/forbes-india-february-15-2014-samar-srivastava-pranesh-prakash-influencing-indias-ip-laws

Pranay Raj record in 100 days-100 articles

pavan — 2016-12-19T18:16:03Z

Telugu Theatre scholar Pranay Raj Vangari from Motkur of Yadadri District, Telangana created record by completing a challenge that is famous worldwide in Wikimedia community - "100 Days-100 Articles". Pranay Raj is a theatre scholar and artist who used to travel length and breadth of Telangana & Andhra Pradesh for research and performances.

Even in that situations, he started first article in challenge on September 8th and completed 100 articles in December 16th. Telangana State Language & Cultural department director Mamidi Harikrishna felicitated Pranay Raj after completion on completing 100 Wikidays challenge. Pranay said that two other Telugu Wikipedians completed this challenge successfully before him and he told they inspired him to take this up and complete. Pranay agreed that he faced some difficulties in writing articles in places where network is low. He said that he wouldn't stop with 100 wikidays but would continue challenge for whole day by creating 365 days and also said he would create more Telangana related articles.

For more details visit https://cis-india.org/a2k/blogs/pranay-raj-record-in-100-days-100-articles

Postcolonial Digital Connections International Conference

Admin — 2018-05-18T06:35:20Z

Anubha Sinha was a speaker at this conference organized by Martin-Luther-Universitat Halle-Wittenberg, UCL and Fritz Thyssen Stiftung on May 16 and 17, 2018 at Center for Interdisciplinary Area Studies (ZIRS) in Halle, Germany. Anubha Sinha spoke on Property, Control and Copyright.

The conference “Postcolonial Digital Connections” will critically assess the ways in which new forms of digitization are affecting the governance, management, and circulation of cultural heritage. Researchers from social sciences (anthropology, history, geography etc.), digital humanities, museum and cultural heritage studies, as well as museum and archive professionals are invited to discuss practices and politics of digitization in a decidedly transnational context. One aim is to explore how digitization is creating new frameworks (and critiques) for intellectual property, indigenous and traditional knowledge and cultural rights, as a growing proliferation of digital content is conjoined with anxieties of ownership and circulation. Museums and archives with their collections are also confronted with new ways to engage with repatriation and new digital epistemologies. Another potential issue of the conference is the materiality of digital archives and the status of digital objects as collections are intertwined in production and circulation of digital collections; and how–in a more expanded, comparative context–the nature of participation and the role of users play out in the creation of digital cultural heritage.

The key themes guiding the conference are: (a) Digital cultural heritage in intercultural, transnational, and postcolonial contexts (b) New practices for museums and archives (c) New legal and epistemological frames for digital collections The conference will debate along these core strands shared challenges and constraints in processes of online dissemination of cultural heritage material. As this dissemination crosses borders, jurisdictions, conceptualisations and notions of what digital cultural heritage signifies and can bring about, it is important to facilitate conversation between professionals from the global South and Euro-America, to understand and discuss the relations between digital possibilities and on the ground realities of heritage collections, and to evaluate the distribution of digital skills and expertise. We are hereby inviting working professionals and researchers from the global South and Euro-America to contribute to a discourse of digitization intertwined with postcolonial agendas within museum and archives.

The organisers (Katja Müller, ZIRS Halle University, and Haidy Geismar, UCL Department of Anthropology) welcome abstracts of no more than 400 words, which should be submitted to katja.mueller@zirs.uni-halle.de by 28 February 2018. We will be able to provide up to four participants with a scholarship covering their travel and accommodation costs; this financial support will be prioritised for participants from the global South.

For more details visit https://cis-india.org/a2k/news/postcolonial-digital-connections-international-conference

Post More Articles on Kannada Wikipedia

praskrishna — 2016-01-05T06:38:06Z

The article was published in Indian Express, Mangaluru edition on December 12, 2015. Dr. U.B. Pavanaja was quoted. A scanned version of the article is given below.

For more details visit https://cis-india.org/a2k/news/post-more-articles-on-kannada-wikipedia

Pooja Tople on Wikimedia Projects

nitika — 2013-12-31T11:04:59Z

The Centre for Internet and Society's Access to Knowledge team (CIS-A2K) in collaboration with the Goa University is working to build Konkani Wikipedia. As part of this program it organised the Konkani Vishwakosh Digitization Program recently.

Video


Above: Participant of Konkani Vishwakosh Digitization Project, Pooja Tople, talks about her experiences with Wikimedia Projects

For more details visit https://cis-india.org/openness/blog-old/pooja-tople-wikipedia-projects

Poesis in the Information Age: Language and its Limit[ation]s

praskrishna — 2015-01-26T13:57:34Z

Alec Schachner, an independent scholar, translator, multi-genre musician and sound artist will give a talk on the limits/limitations of languages at the Centre for Internet & Society's office on January 30, 2015 at 5 p.m.

The Talk

An examination of the limits/limitations of language(s) through the lens of contemporary Vietnamese poetics and print culture, aiming to open a deeper dialogue on the nature of self/state expression and censorship in the age of internet connectivity.

Alec Schachner

Alec graduated from Columbia College with a degree in Sociocultural Anthropology, English & Comparative Literature, Creative Writing and Music Theory/Composition. Alec currently resides in Vietnam, where he has served as lecturer on literature for 5 years with the Faculty of English Linguistics and Literature at the Vietnam National University of Social Sciences and Humanities HCMC. He is working on English translations of several anthologies of Vietnamese poetry, one of which - the purification festival in April - just went to print across VN earlier this month. He is also pursuing research into contemporary Saigonese print culture and the social/cyber mileus surrounding literary circles/movements in the post-Socialist cultural sphere.

For more details visit https://cis-india.org/a2k/events/poesis-in-the-information-age

Plan for open access to science research

praskrishna — 2014-07-25T07:07:15Z

The policy is open to comments from the public till July 25.

The article by Renuka Phadnis was published in the Hindu on July 22, 2014. T. Vishnu Vardhan gave his inputs.

Ever felt frustrated while reading a science research journal online, only to see the message “to continue reading, subscribe now”? That may soon change.

The Department of Science and Technology and the Department of Biotechnology (DBt) under the Ministry of Science and Technology have drafted a policy that says publicly-funded scientific work published in science journals must adhere to open access (OA) norms, enabling anyone to read online content on science research for free.

OA is an initiative of Open Archives Initiative (OAI), an organisation which works for greater reach and free access to online science research funded by public money.

T. Vishnu Vardhan, Programme Director, Access to Knowledge, Centre for Internet and Society, Bangalore, which assisted DST in drawing up the draft policy, said that in the absence of OA norms, commercial publishers were making money with content generated by scientists who used public funds for research.

However, those sceptical of the DST initiative are asking whether availability on the Net is equivalent to “public domain”. Concerns have also been raised about the quality of content provided through OA, as honing raw research material into scholarly journals requires rigour that commands a cost. Ramakrishna Ramaswamy, Fellow of the Indian Academy of Sciences, Hyderabad, said it was much more important to make reliable information available to the public, at a reasonable charge, because “the price of keeping it free has a cost”. The draft of the DBT-DST Open Access Policy is open to comments from the public till July 25.

For more details visit https://cis-india.org/news/the-hindu-july-22-2014-renuka-phadnis-plan-for-open-access-to-science-research

Plagiarism is rampant in Indian food writing – but finally, bloggers have a way to fight it

praskrishna — 2017-07-06T15:53:46Z

“We have been cheated,” declared the headline of the blog post making the rounds of social media on April 25.

The blogpost by Chanpreet Khurana was published by Scroll.in on July 4, 2017. Sunil Abraham was quoted.

The post, written by Rajkumar Saxena, former head of Mumbai’s Institute of Hotel Management, alleged that passages from his 1997 book on Awadhi cuisine, Dastarkhwan-e-Awadh, had been plagiarised by Sunil Soni, a veteran chef, in his new book titled Jashn-e-Oudh: Romance of the Cuisine.

The blog’s text, like the headline, dripped with hurt and contempt: “Here is a case of… a learned, literate person who has no qualms about unhesitatingly lifting word-by-word the explanations, recipes etc. from [a] book authored by us and claiming it to be his original work…” Images from the two books were embedded to support the allegation. “We need to name and shame such so-called experts through social media. We seek your support…”

The support came almost immediately.

Celebrity chef Ranveer Brar, who had written the foreword for Soni’s book, announced on Facebook that he wanted the author to remove it. Outrage also erupted on the wall of Food Bloggers’ Hall of Shame, a closed Facebook group of 421 members dedicated to fighting plagiarism in food writing and photography in India. “How can people even think that they can get away with such a shameless act of plagiarising?” wrote Anushruti RK.

It was an organic reaction. By blogging about his grievance, Saxena had tapped into the one space that Indian food writers are increasingly using today to redress the alleged plagiarism in food writing – social media.

“As a community, we are now discovering an average of one or two plagiarist websites/aggregators every week,” said Rhea Mitra-Dalal, the administrator of the Food Bloggers’ Hall of Shame, which shares dos and don’ts with members to protect their work. “We’ve had several run-ins with celebrity chefs, big food brands, restaurants, and food businesses, especially on their social media pages, where we have found plagiarised images. Public outcry on those pages has usually worked and we have got the plagiarised content down, but these are episodic and the basic mind-set hasn’t changed: it is fine to plagiarise, just apologise and take it down when caught.”

Cease and desist

Saxena’s blog post was a last resort. He says he had first noticed the alleged plagiarism – “42 recipes, 24 explanatory notes and 12 chapter notes,” according to him – in Jashn-e-Oudh in January, and had informed his publisher HarperCollins India. HarperCollins responded by sending a cease-and-desist notice to Soni, copying his publisher Shubhi Publications, and set three demands: remove the offending material from Jashn-e-Oudh, acknowledge the copyright of the authors of Dastarkhwan-e-Awadh, and pay Rs 5 lakh.

Soni and Sanjay Arya of Shubhi Publications claim they never received this notice.

On April 10, Saxena says he got an email from HarperCollins telling him it will not be pursuing the matter further because “currently HCI has put on hold all litigations due to some business-related issues”. “The copyright is definitely in your favour,” declared the email. “You are free to litigate this matter and file a suit for injunction. As far as shaming the authors/publisher on social media is concerned, as a publisher, we cannot opine on that. It is your personal decision...”

So, a fortnight later, Saxena did just that: he took his complaint to the internet.

Around the same time, he and his co-author Sangeeta Bhatnagar sent a legal notice, through their lawyer, to Soni to cease and desist from further publication and distribution of Jashn-e-Oudh, and demanded Rs 15 lakh in compensation.

This time, they got a seven-page response from Soni’s lawyer.

While denying the accusation of plagiarism, the response from Soni’s lawyer said, “Your clients are liable to show their copyright in the alleged infringed work of our client as no copyright can be claimed in the traditional recipes and their preparation as same will be similar across the globe to get the same taste.” It added that no copyright can be claimed on the subject of Awadhi recipes since it is “a common topic and known and available to the general public at large. All the recipes mentioned in the alleged publication are known in the market”.

Soni also denied the allegation when contacted for comment by Scroll.in.

Looking West

The reply from Soni’s lawyer makes some sound legal points, all of which, according to food bloggers, are reasons why food plagiarism is so hard to prove: a recipe that is a list of ingredients cannot be copyrighted. Nor can a traditional cooking method be seen as the property of any author. Reproducing these, therefore, is not plagiarism.

However, substantial literary and artistic expressions are copyrightable, according to the US Copyright Office, and reproducing these is unlawful. Another suspect action is when a chef’s work is tweaked by changing just one or two ingredients. In 2012, the Food Network in the US cancelled chef Anne Thornton’s TV show Dessert First, because some of her recipes were only mildly different from those created by superchefs like Martha Stewart.

Bloggers like Mitra Dalal lean on these definitions to call their content original. “Most of us have unique styles of writing, and we often include anecdotes and other content to our posts,” she said. “So copy-pastes can often be quite correctly identified.”

Another useful metric, according to Mitra Dalal, are rules set in more mature markets where bloggers have already fought, and won, battles.

“There are international guidelines for this,” she explained. “Loosely put, if every third word is different, the text cannot be deemed plagiarised. Also, you cannot say that an ingredient list is plagiarised.”

Small wins

Mitra Dalal and other food bloggers often fight their battles outside the court of law, which is good and bad. On the plus side, it’s faster and easier for them to control the context – but on the minus side, the wins are relatively small.

In July last year, for instance, 20 food bloggers alleged that the recipe aggregating app The Frying Pan had plagiarised their work. They lawyered up, and got ready for a legal battle.

“The Frying Pan had published our recipes and photographs without proper attribution, and without our consent,” said Deeba Rajpal, one of the 20 complainants. “We were advised that if we sought compensation, it would be a long haul. So, we only asked The Frying Pan to take our content down and never to use our work again without permission.”

The case didn’t go to court. The lawyers met and reached an agreement, according to Rajpal. “The app took our content down. The case never had a proper conclusion – it fizzled out.”

Except on social media, where the Food Bloggers’ Hall of Shame kept the pressure up, slamming The Frying Pan – hard.

Can Google help?

Proving plagiarism in food writing is difficult at any rate, but there are factors that complicate the matter in India, according to Sunil Abraham of The Centre for Internet and Society.

The copyright law here, he says, has inbuilt exceptions and limitations that protect the rights of stakeholders, including entrepreneurs, content creators, consumers, the public who may not pay for the content, and the government.

Many times, copyright holders in India have conceded or withdrawn legal cases because of limitations to the copyright law or the doctrine of fair use, which states that “brief excerpts of copyright material may, under certain circumstances, be quoted verbatim”. Just in February, a handful of publishers took back a lawsuit against a photocopier shop in Delhi University that had been selling study packs with materials reproduced from the publishers’ books.

Abraham said that often there is an economic incentive for plagiarising – take that away, and you fix half the problem.

For bloggers, a major source of income is Google AdSense, a popular program that allows website publishers to display ads on their pages and “earn money when visitors view or click the ads”. The problem is: if the advertiser cares only about page views and not the origin of the content, there is no incentive against plagiarism.

For checking online copyright infringement, Abraham says, the onus should be on multinationals like Google, which host a large number of blogs and web versions of media articles. “Google is constantly indexing the internet,” he said in a phone interview from Bengaluru, so Google knows when a write-up or a photo has been published before.

To be fair, according to the Digital Millennium Copyright Act, Google does entertain requests to remove online posts where a complainant can show copyright infringement. It’s a recourse that Mitra Dalal and some members of her Facebook group have found useful. But Abraham says this is less effective than if Google created hurdles to publishing content it deems plagiarised.

Need for reforms

Where does all this leave Saxena? It’s hard to tell.

Social media has generated awareness about his case, and Saxena has filed a complaint with the Delhi Police under Section 63 of the Indian Copyright Act. He plans to follow it up with a legal case. One thing that has certainly resulted from the episode is the food writing community’s intensified demand for clarity in laws to protect intellectual property.

As Saee Koranne-Khandekar, who blogs at myjhola.in, wrote on Food Bloggers’ Hall of Shame: “What’s amazing is that the original work [by Saxena and Bhatnagar] has gone through three successful editions, is published by a major player, and is written by two prominent names in the industry. One would think theft of content would occur in the case of less lesser known works, but this is pure guts! I hope at least this incident marks the immediate need for reform in our laws.”

For more details visit https://cis-india.org/a2k/news/scroll-july-4-2017-chanpreet-khurana-plagiarism-is-rampant-in-indian-food-writing-but-finally-bloggers-have-a-way-to-fight-it

Pirates, Plagiarisers, Publishers

prashant — 2014-05-29T05:55:27Z

This article attempts to rescue not by denying the charges of plagiarism, but by charting an alternative trajectory of plagiarism so that each successive instance does not amplify our sense of embarrassment and crisis in the academy. The article by Prashant Iyengar was published in the Economic & Political Weekly, February 26, 2011, Vol XLVI No 9.

"Copying one book is plagiarism; copying several is research." Unknown 1

Someone must have slandered Indian academia, for, without having done anything new or different, allegations of plagiarism have suddenly been tumbling out of India’s ‘top’ universities in these past few years.

In October 2002, a group of physicists from Stanford University, including three Nobel laureates, addressed a letter to the (then) President Abdul Kalam complaining of plagiarism by the Vice Chancellor of Kumaon University.2 In January 2006, a professor from IIM Bangalore was dismissed for plagiarism.3 In February 2008, a professor from the Sri Venkateswara University in Tirupathi was accused of having plagiarized up to 70 papers between 2004 and 2007.4 In October 2010, IIT Kharagpur was forced to set up a committee to investigate allegations of plagiarism by one of its professors and three doctoral candidates.5

And so on. It seems Benjamin Franklin’s adage about originality being “the art of concealing your sources” thrives today in Indian academia. Something is rotten in the State of academic research. Evidently, we even know exactly what it is: Some years ago, the Association of Indian Universities invited students to a research contest. The pamphlet advertising the contest contained a remarkably prolix account of the causes of the general decline in academic research:

Of late, research has become a subservient component in the university functioning. It is not considered a lucrative career option. Apart from this, resource constraints, lack of commitment, lack of proper encouragement, etc., are the impediments that are affecting the quality of research in our institutions of higher education. Another important factor for the deterioration of the quality of research is the absence of adequate training and other capacity building endeavour in our system, which has restricted students’ creativity only to rote memory. 6 (emphasis mine)

Similarly, we are periodically reminded, as in this instance, by the chief of the Defence Research and Development Organisation that “India lacks quality academic organisations and research and development institutions that breed inventions in technology. This is the major reason behind India's failure in breaking new ground in inventions and innovations.”7 Other news reports bemoan the fact that “Indian patent filings lag behind global average" with the total “number of filings by residents being just three per million people in its population, compared with the world average of 250”8

Accounts such as these, which abound in the press and journals, typically trace a “decline” hypothesis according to which the quality of academic research in India, once rigorous and upright, has fallen precipitously in recent times. Poor quality of academic research is then portrayed as a function of the impoverishment of the academy itself. Concealed within this auto-critique is an envy of putatively ideal systems in other countries which exhibit values that are an inversion of those identified as ours: i.e. they privilege research, are well-resourced, file the statistically approved average number of patents, allow students’ creativity free rein, and do not restrict their creativity only to rote memory. Lurking underneath these criticisms is also the anxiety that the arrival of the internet has, far from invigorating indigenous research in India, facilitated plagiarism on a wider scale than previously imaginable. What do we make of all this self-slander?

In this essay I will attempt to rescue Indian academic research, not by denying the charges of plagiarism, but by charting an alternative trajectory of plagiarism so that each successive instance does not amplify our sense of embarrassment and crisis in the academy.

I begin by drawing on my own prior study on student research in law universities in India9 to provide a rough account of how law students approach research. However inappropriate, I use some of my observations in the course of that study as a microcosmic model for how research is conducted by students across the country today.

Next, I will attempt to show how the charge of plagiarism only acquires its pungency after the installation of a particularly western ‘Romantic’ conception of creativity that is hinged on the ‘genius’ figure. My point here is not one of cultural difference – we may or may not have conflicting traditions of (literary) creativity in India - but of heterogeneity of possible standpoints from which creativity can be judged, which have been deprecated or forgotten since this modern conception took root. While this idea is itself not ‘original’, having been made by numerous authors on whose work I draw upon here10 , I am interested here in how it can inform our reaction to quotidian reports of plagiarism in the contemporary. Specifically, I think our understanding of 'originality-as-genius’ is a relatively recent historical product, and is definitely not the 'natural' or universal parameter by which literature and arts have been judged. I would assert that contemporary practices on the Internet restore us to (or renew the salience of) some of these pre-modern practices of authorship where originality in its Cartesian sense may not necessarily be determinative of value.

I would however hasten to add that this does not lead us inexorably to the conclusion that our traditional understanding of plagiarism has to abandoned. In the case of academic writing, 'Romantic' standards of originality have been rigorously upheld and policed by the spectral might of the University. Here, the ritual demonstration of cartesian orginality is not only a condition of success, but a minimum qualification for survival and advancement in this domain. With the stakes being so high, the temptation to pass off others' works as one's own is great, in contrast to the risks of being caught. This does not mean that everyone resorts to it, only that there are structural factors in the academy that make practices of plagiarism more 'rational' than, perhaps, in other domains11 .

To begin, then with my conclusions, I think that dulling the keenness of ‘cartesian originality’ in the University could be an important component in the serious task of educational reform. Equally, I aim, in this article to rehabilitate the term plagiarism so as to diminish the sense of embarrassment that seems to come naturally to us when we speak of Indian research.

Student ‘research’ in Law Schools in India

The content and observations in this section draw from a study that I had conducted in 2006 on student research in national law universities in India. During the study I had interviewed 40 students and eleven faculty members across three National Law Universities. 12 I will focus here on the themes from those surveys that directly address the issue of research and plagiarism.

By way of background, in a typical national law university following a semester model, a student must submit up to 5 research papers (of lengths varying from 20 to 50 pages) a semester – or ten papers a year. In the duration of her five year legal education, a student from a national law university in India would have submitted anywhere between 48 (NALSAR) to 70 (NLIU Jodhpur) research papers of varying lengths. Given an average class-size of 80, and 5 batches in every university, a guesstimate indicates an average output of about 4000 papers of varying quality from every national law university annually. The table below contains a rough back-of-envelope enumeration of the research output of five national law universities in India, drawn from respective university prospectuses and websites.

	NALSAR	NLSIU	NLIU	NLU	GNLU
Intake	80	80	80	80	160
Max Strength	400	400	400	400	800
Academic Unit	Semester	Trisemester	Trisemester	Semester	Semester
Law Courses	40	51	48	54	51
Non-Law Courses	10	10	26	8	9
Number of research papers per student through the duration of the 5 year course	18	50-60	65-74	55-62	55-60
Max number of research papers per semester / trisemester	1900	1400	2000	2200	4000
Number of student research papers per year (approx)	3800	4200	6000	4400	8000

By any estimate, this volume of research is staggering and should ordinarily be a cause for pride. However law universities are also beset with the same anxieties of poor research ‘quality’ and plagiarism that characterize the broader academy. While my previous study contains a fuller discussion on the causes of poor legal research at these universities, I would like, here, to only reproduce some of my survey conclusions from that study that would feed the discussion for the later sections of this paper.

From my surveys it appeared that both students and faculty shared a sense that the research burden on students in these universities was excessive and too onerous to facilitate high quality research.
Students respond to the high research load by budgeting their efforts – working more intensely on some research assignments while neglecting others. This accorded with the responses from faculty members who reported an extremely low number of high quality research papers turned in. Responses from faculty indicate that a high percentage of papers received fall under a median category between ‘high quality’ and ‘abjectly low quality’ – i.e. there are a large number of papers which, while offering a cogent account of the topic do not add any insight of their own.
Both students and faculty reported generally, the existence of a high degree of plagiarism (defined as the inclusion of extrinsic material without attributing sources) sourced both from amongst their peers as well as from extrinsic sources. Although most students (78%) claimed never to have directly copied from other students’ papers, many (67%) admitted to having shared their papers with other students either for ‘reference’, or more commonly, for adaptation/reuse in their assignments. The responses to whether they had any reservations against the practice were diverse with more students in favour of the practice of plagiarism (47%) than against (30%). Without admitting to participating it in themselves, 60% of respondents characterised the prevalence of ‘copy/paste’ plagiarism in research on their campus as ‘Rampant’ or ‘High’. Many reasons were forthcoming for the prevalence of this practice among which the more frequently stated included: ‘High work pressure’, ‘lack of time’ ‘lack of incentive to do high quality research’, ‘lack of emphasis by evaluators on high quality academic work’, ‘pointlessness of repeating identical research from scratch’. Other less common reasons offered were ‘emphasis on sheer volume to the neglect of quality of analysis’ and ‘disingenuousness of topics’ and ‘Laziness’.
Over half the students surveyed had never published their research in journals. This despite the fact that 75% of respondents reported that at least 1 of their research papers was either publishable immediately or with modifications. More than half the respondents reported upwards of three papers that they themselves regarded as ‘publishable’.
One of the common reasons that the faculty identified for the incidence of plagiarism was that students had begun to stereotype teachers who were unlikely to check or be able to check for plagiarism and would submit entirely plagiarised papers to them. Other reasons included the difficulty of checking the huge number of papers they received individually for plagiarism and also the fact that students had an unreasonably high workload coupled with the lack of enough incentive to do thorough research.

“Intuition” and “checking the number of sources” was still the common mode of detecting plagiarism although some faculty made creative use of the internet – particularly Google.

Faculty was asked if a paper that appeared plagiarized to a high degree, but also indicated that the student had put in an intelligent compilation of materials, would be acceptable by them. The response to this was largely affirmative with some faculty members saying that most papers would correspond to that category and this standard was imperative for a majority of students to pass! Most faculty required that the source material at least be acknowledged.
With regard to their research sources, there was a clear bias in favour of online sources almost to the exclusion of other sources. One respondent even rated online sources as being “more important than libraries”, and even claimed that she always began her legal research on the internet.

It is evident then from the foregoing account that the law universities are poor representatives of ‘original’ scholarship. The career of students through the law school seems to be marked by a blithe collaboration with faculty in which a Nelson’s eye is turned to their less-obvious plagiarisms. Although it is possible to adopt a high moralistic tone and condemn these practices, in the remainder of this paper I would like to marshal resources that would lend some dignity to them. In the section that follows, I will argue firstly, that there are rival conceptions of originality which privilege the recombination of existing information, rather than being fixated on ivory-towered ex nihilo originality.
Under this conception, even the pastiche works by lazy law students emerge as eminently ‘original’. Secondly, I argue that slavish imitation is never always only that, and have long been recognized as an integral aspect of the creative process itself.

‘Originality’ is only a special effect of reception

In his fascinating book Original Copy, Robert Macfarlane draws on George Steiner’s vocabulary to contrast two different narratives of literary creation – The first, creatio, espouses “a hallowed vision of creation as generation” which “connotes some brief, noumenal moment of afflatus or inspiration’ during which the author composes her work.

..the creative urge is dramatized as pulsing deep within the fastness of the individual self, and the solitary writer is seen to conjure ideas into the influence proofed chamber of his or her imagination. 13

By contrast, the second conception of literary creativity, inventio, which is commonly found both in literary postmodernism and Augustan aesthetics, conceives of “creation as rearrangement” and “refuse[s] to believe in the possibility of creation out of nothing, or in the uninfluenced literary work”.14 Instead this view “privileges the act of making out of extant material”. According to these “recombinative theories”, the creating mind is conceived

“as a lumber-room in which are stored innumerable verbal odds and ends. The supposedly ‘original’ writer in fact works with ‘inherited lexical, grammatical, and semantic counters, combining and recombining them into expressive executive sequences’. 15

As an instance of this latter view, Macfarlane cites the example of Derrida who coined the term itérabilité to describe “the semantic drift which inevitably occurs between consecutive uses of the same text”. Derived from a combination of the Latin verb iterare (meaning ‘to repeat’) and the Sanskrit word itara (meaning ‘other’), the word “valuably emphasizes ‘the logic which links repetition to alterity’. For Derrida, the repetition of a text inescapably involves its alteration: you can never step twice in the same poem, paragraph, or word.”

I find this latter conception, especially Derrida’s concept of itérabilité to be a valuable tool with which to think through the practices of the law students I interviewed. While being derived from a plurality of (frequently unacknowledged sources), their papers were never mere ‘slavish’ repetitions, but always contained an element of alterity.

Paradoxically, the networked information age that we inhabit both facilitates and preempts the flourishing of ‘recombinative creativity’. On the one hand, the abundance of informational resources that the internet puts at a researcher’s disposal, as well as the ease of word-processing makes it easy to rapidly refashion materials into a pastiche of one’s own. On the other hand, the illusion of novelty that such work may produce is capable of being dispelled equally swiftly, and more efficiently than ever before through the use of special applications designed to detect plagiarism. If, as MacFarlane suggests, originality is not “an indwelling quality of writerly production, but instead a function of readerly perception, or more precisely readerly ignorance (the failure to discern a writer’s sources)”, then the emergence of the internet has nearly made this form of originality impossible, by making this reader ignorance extremely evanescent (lasting only until the reader’s next Google search). The ability of students to pass off plagiarised material as their own will hinge increasingly on their ability to alter it unrecognizably, at which point the output is no longer a mere slavish imitation, but something new altogether – ‘quality research’.

In an essay on pre-print culture16 , Lawrence Liang demonstrates that the notion that prior to print technology, the task of writing was reduced to that of slavish copying by scribes is false. As Liang notes, the real story is slightly more complicated.

Acting as annotators, compilers, and correctors, medieval bookowners and scribes actively shaped the texts they read. For instance, they might choose to leave out some of the Canterbury Tales, or contribute one of their own. They might correct Chaucer’s versification every now and then. They might produce whole new drafts of Chaucer by combining one or more of his published versions with others.17

With the arrival of print technology, however, a fundamental transformation occurs in the way the activities of writing and reading. Liang quotes an extended passage from Rebecca Lynn’s study of reading and writing practices in medieval England18 that captures this change:

the benefits readers derived from the press, in terms of better access to authorized texts, were countered by a profound loss of opportunity for inventive forms of reception. They were free to take with the texts they recopied. Manuscript culture encouraged readers to edit or adapt freely any text they wrote out, or to re-shape the texts they read with annotations that would take the same form as the scribe's initial work on the manuscript. The assumption that texts are mutable and available for adaptation by anyone is the basis, not only for this quotidian functioning of the average reader, but also for the composition of the great canonical works of the period.19

Is it possible, in the light of this insight about the creative element of copying in pre-print days, to revise our pathological accounts of contemporary plagiarism? 20 Can we view plagiarism not as an offence against the ‘author’ity of knowledge, but in a sense as a reversion to a more primordial tradition in which the availability of a text presumes and is premised upon its availability for adaptation. As described previously, responses from interviews with faculty indicates a grudging tolerance of plagiarism in student research.

This tolerance, stemming from an acknowledgement that even acts of compilation are not wholly without a creative element, seems to restore us to such an understanding of ‘creative’ reading akin to what has been described above.

Conclusion

Few years ago, a famous author of textbooks on Intellectual Property law in India was discovered to have plagiarised close to two hundred pages of his new book on the Right to Information. The pages had been lifted verbatim from the manuscript sent by a famous law professor to the same publisher. When the matter came to light, the first author pleaded ignorance. After an ugly out-of-court tussle between the professor and the publisher (who happen to be one of India’s more powerful legal-publishing houses), a compromise was reached wherein the professor’s book would be published with a note inserted stating that 200 of his pages had been included in the other ‘author’s’ book.

I conclude this essay with this piece of copyright ‘gossip’ in order to highlight a couple of ironies that it animates. The first is, of course, the delicious irony that a famous author, of IP books no less, would stoop to such lows. (Could academic writing in any discipline be above suspicion now that academic writing in IP, that guardian discipline of genius ‘originality’, has proven susceptible to plagiarism?) The second irony is that this person’s reputation as the ‘author’ of a book, and of a genre of books survives despite the fact that he may not have penned even a single word of his book – which prompts us to ponder what function the author truly serves here. Lastly, I find the fact curious that both books continue to be displayed – and sold - in various legal bookstores, frequently side-by- side. The ‘fact’ of the plagiarism seems not to have significantly impacted sales of either author’s tome.

Tempting as it may be, one must resist treating this example as either exceptional or paradigmatic. Publishers in India in many cases do lead authors by their nose, and this is particularly so in the case of text-book publishing. However, this does not mean that original – in the Cartesian sense - academic writing does not continue to be produced in India. I feel this instance points us to the limits of the argument I have made in the preceding section. As well as it may be to celebrate ‘recombinative’ accounts of creativity in students, wholesale plagiarism with impunity by big name authors backed by large publishing houses cannot be easy to endure. In our acceptance of a combinatorial ‘inventio’ theory of creativity, it would be unwise too hastily to jettison the more austere creatio theory. As Macfarlane points out, popular attitudes to originality and plagiarism have moved between the two narratives of originality in a dialectical fashion so that they can best be thought of as “enmeshed .., or existing in a kind of helical wrap: each requiring the other for its support, counter-definition, and continued existence. Neither ever obliterates the other.”21

However they may have been produced, we regard our ‘works’ not merely as our property but also relationally through ethics of propriety. In other words, what we write is our “own” not in the way that our shoe is our own, but in the sense that our friends are our own. Plagiarism in this context most closely approaches its original Latin roots – plaga: to convert a freeman into a slave22. – as the unjust enslavement or capture of our work by someone else.
What role has the internet played in this crisis of plagiarism? Despite the inherent promiscuity of the medium, I think that the arrival of the internet has not actually changed our practices in relation to plagiarism. So the fact that I may blithely pirate movies and music on the internet does not mean, automatically, that I adopt 'piracy' as my research methodology for academic writing. Our choices remain as they were – to acknowledge or not, with the latter being increasingly more risky in an age when exposure is only a google search away.

Finally, how does all of this relate to the question I posed at the start viz: what do we make of this self-slander? I think it will not do to simply declare ourselves innocent of the charge of plagiarism. (As Josef K’s prison chaplain says, that is what the guilty usually do.) But equally we must be careful, to continue with a Kafkaesque metaphor, not to see the gallows being constructed in the distance and hang ourselves on the presumption they are being erected solely for us. Kafka alone, of course, does not supply good grist for policy decisions. A possible way forward would be to import the cinematic notion of plagiarism into academic writing: Not all that is unacknowledged is unoriginal (as my
example from student research at law universities shows), but this does not extend to a license to appropriate all as one's own (the example of the famous IP author who plagiarised 200 pages from a professor). The former is a function of the dominant, awkward alien aesthetic imposed by the University, which requires academic writing to be dully impersonal and abstract. Finding it too taxing, most students resort to a clumsy pastiche rather than, for instance, shifting to a more narrative style which they may be more comfortable with. The internet allows their pastiche to be more colorful than before.

The latter is plainly an ethical failing by someone who believes they can get away with impunity. The internet does not impact them in any way except that their 'crime' once discovered circulates endlessly on the internet (As this IP author discovered to his dismay).

In deciding what is to be done, however, I would advise our policy makers to make haste, only slowly.

Notes

Lindey, A., 1952. Plagiarism and originality, Harper., New York, P.2

Chu, S. et al., 2002. Letter from the group of Professors of Physics of Stanford University to the President of India. Available at: http://www.stanford.edu/dept/physics/publications/PDFfiles/india.pdf [Accessed December 22, 2010].

Seethalakshmi, S., 2006. IIM-B prof held violating copyright. The Times of India. Available at: http://timesofindia.indiatimes.com/city/bangalore/IIM-B-prof-held-violatingcopyright/ articleshow/1359149.cms?curpg=2 [Accessed December 21, 2010].

Tewari, M., 2008. Indian professor guilty of plagiarism. DNA India. Available at: http://www.dnaindia.com/india/report_indian-professor-guilty-of-plagiarism_1152417 [Accessed December 21, 2010].

Singh, K., 2010. IIT-K sets up panel to probe plagiarism charges. Indian Express. Available at: http://www.expressindia.com/latest-news/iitk-sets-up-panel-to-probe-plagiarism-charges/695196/ [Accessed December 21, 2010].

"Anveshan: Student Research Convention." Association of Indian Universities. Apr 2008. Research Division. 30 Apr 2008 <http://www.aiuweb.org/Research/research.asp>.

Josy Joseph , ‘India lacks R&D base, laments DRDO chief ‘, (2000), [Internet], Available from: <http://www.rediff.com/news/2000/aug/11josy1.htm> [Accessed 21 April 2008]

‘Indian patent filings lag behind global average’, [Internet], Available from: <http://www.eetimes.com/news/latest/showArticle.jhtml?articleID=204702703> [Accessed 21 April 2008]

Iyengar, P., 2008. Open Information Policy for Student Research in Law Universities. SSRN eLibrary.
Available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1555689 [Accessed December 24, 2010].

See for instance, Rose, M., 1993. Authors and Owners: The Invention of Copyright, Cambridge, Mass:
Harvard University Press. Woodmansee, M., 1984. The Genius and the Copyright: Economic and Legal
Conditions of the Emergence of the 'Author'. Eighteenth-Century Studies, 17(4), 425-448.

For instance, the charge of plagiarism in the domain of cinema seems to have a significantly diluted charge. Bollywood has been accused frequently of aping Hollywood, although this does not stand in the way of it immense popularity and renown. Ramesh Sippy's Sholay is regarded as having been influenced by John Sturges' The Magnificent Seven, itself being similarly 'influenced' by Akira Kurosawa's The Seven Samurai. On the modern definition of originality which requires us all to be 'perfectly uninfluenced', this qualifies as plagiarism. This definition however did not stand in the way of Sholay becoming an iconic film for Indian cinema.

Respectively The National Academy of Legal Studies and Research (NALSAR), the National Law School of India University (NLSIU) and the National University of Juridical Sciences (NUJS).Although this sample is not sufficiently representative to make statistically kosher extrapolations – indeed, I make no such claim - I think the responses I received affirmed certain interesting observable trends about student research, that would seem commonsensical to anyone who teaches in India. To that extent, I think this data yields some interesting starting points for the theme of the current paper.

Macfarlane, R., 2007. Original Copy: Plagiarism and Originality in Nineteenth-Century Literature, Oxford: Oxford University Press. p.2

Ibid, p.4

Ibid

Liang, L., 2009. A Brief History of the Internet from the 15th to the 18th Century. In N. Rajan, ed. The Digitized Imagination. Routledge India, pp. 15-36.

Ibid

Schoff, R.L., 2004. Freedom from the Press: Reading and Writing in Late Medieval England. Harvard University. Available at: http://sunzi.lib.hku.hk/ER/detail/hkul/3516592. cited in Liang, L., 2009. A Brief History of the Internet from the 15th to the 18th Century. In N. Rajan, ed. The Digitized Imagination. Routledge India, pp. 15-36.

Ibid

For instance the ‘epidemic of plagiarism’ language typified in this BBC article Precey, Matt. “Study shows 'plagiarism epidemic'.” BBC 17 Jan 2008. 13 May 2008 <http://news.bbc.co.uk/1/hi/england/cambridgeshire/7194850.stm>.

Supra n. 12, at p. 17

See Voltaire, 1824. A philosophical dictionary: from the French, J. and H. L. Hunt. (Accessed from Google Books)

Also see these:

For more details visit https://cis-india.org/a2k/blogs/plagiarism-in-indian-academia

Photocopying the past

sunil — 2011-09-25T20:06:50Z

There is no single correct position when it comes to intellectual property or IP. In fact, there are at least five correct positions that you could possibly adopt based on who you are — a pro-creator position, a pro-entrepreneur position, a pro-government position, a pro-consumer position and a public interest position.

Therefore, before you progress any further, dear reader, you have to first decide which of the above you are. If you are an average Indian, then you are almost certainly a consumer or a member of the general public. Next, it would only be fair for me to tell you when I am coming from: I work for a policy research organisation that focuses on protecting consumer and public interest in the digital era. Before I proceed any further, also note that not all creators prefer profits to public adulation and therefore creators’ interests are not necessarily always opposed to consumer and public interest.

At this point, popular imagination is captivated by meta-regulation, issues of corruption and transparency. Few seem interested in the configuration details of property regimes that we are all implicated in: tangible property, capital and, in our increasingly dematerialised world, intangible property such as IP or spectrum. Unfortunately the complications of spectrum, banking and IP make our eyes glaze over and there is almost zero attention being paid to the copyright act amendment to be discussed in Parliament this week.

For the government, achieving a compromise is the primary objective, and then, perhaps a distant second, raising taxes. This is not a static compromise, since each generation of new technologies precipitates a new round of negotiations between the stakeholders. So while it is easy to be Anna Hazare, it is difficult to be Kapil Sibal. An optimal compromise position as in the world of capital and tangible property protects the production, circulation and consumption of IP. A sub-optimal position results in practices that are in conflict with policy — anti-competitive behaviour or infringement.

Unfortunately when it comes to evidence-based policy-making, there is little funding for public interest IP research in India and the pockets of the lobbyists of rights-holders are deep. The funded research that they tout claims that government loses significant taxes because of piracy or non-maximalist IP policies. Yet rights-holders, especially multinationals in the software business, are experts at tax avoidance through techniques with names like the “Double Irish” and the “Dutch Sandwich”.

Like any compromise, the latest amendment is a mixed bag for consumers and the general public. With regard to “digital rights management,” — or what consumers’ advocates refer to as “digital restrictions management” — the government has yielded to the TRIPS-plus agenda even though it is not a signatory to the WIPO Internet treaties. And with regard to the exception for the disabled, the Indian exception is both disability- and works-neutral making it much more robust when compared to the treaty for the visually impaired currently being discussed at the WIPO.

However, one particular compromise — the volte-face on Section 2 (m) on parallel imports of books — is particularly distressing for book-lovers and students. As part of the latest amendment, this new section was introduced in 2009. The standing committee report gave the section a thumbs-up, but strangely it has gone missing in the latest version of the bill circulated to the MPs in preparation for the Rajya Sabha debate this Friday.

Section 2 (m) is a provision that would have saved us from the uncertainty created by what some consider flawed jurisprudence around parallel importation of copyrighted works. As the standing committee report on the copyright amendment puts it, “nobody can deny the fact that the interests of students will be best protected if they have access to the latest editions of the books.” To date, I have never met an IIT or IIM graduate untainted by photocopied books. I would claim that the lack of quality education in our country is still at the level of an epidemic. The indigenous publication industry has benefited from our progressive copyright regime.

Wouldn’t it be appropriate to afford them maximum flexibility in a future rife with technological shifts? Are all the books that you wish to read available in the libraries and book shops you have access to? Have you ever been forced to photocopy a book because of time constraints? Would you like to see greater choice via increased free-market competition, and reduced state-sanctioned monopolies and enforcement? Does your definition of human rights include the “right to education” and the the “right to entertainment”? Shouldn’t the disabled in India benefit from the $500 million spent each year making books accessible in the US? And finally, shouldn’t a nation providing leadership to the development agenda at WIPO, walk the talk at home? If your answer to any of these questions is yes, you should demand that people are placed before the profits of foreign publishers.

This article by Sunil Abraham, Executive Director, Centre for Internet and Society was published in the Indian Express on 2 September 2011 in the Indian Express. Please read the original article here.

For more details visit https://cis-india.org/a2k/blogs/photocopying-the-past

Phone Spreadsheet

jdine — 2012-10-30T05:51:04Z

A documentation of the basic components and features of the mobile devices in a spreadsheet.

For more details visit https://cis-india.org/a2k/blogs/phone-spreadsheet.xlsx

Pervasive Technologies: Working Document Series – Updated Research Methodology – Applying the Actor Network Theory to Competition Law and Standard Essential Patent Litigation in India

nehaa — 2015-10-04T04:20:13Z

This document lays out the updated research methodology for the paper on competition law issues around standard essential patent litigation in India.

Read the earlier posts:

In New Delhi, as in Fascist Milan or Nazi Berlin, the individual is lost; the scale is not human but super human; not national, but super-national: it is, in a word, Imperial.[1]

Twenty plus years later, written after he was awe-struck by the grandeur of the Rashtrapati Bhawan in New Delhi, Dalrymple’s delightful choice of words on the similarities between Lutyen’s Delhi and Speer’s Nuremberg[2] rather aptly describe today’s globalized narrative of intellectual property (“IP”) rights determination and ownership. The process of determination of standards applied in mobile devices, claims of IP ownership in these standards and the subsequent enforcement (globally) of these IP claims are all instances of this narrative.

The increasingly global nature of both – innovation and intellectual property has been well documented by researchers over the years and needs no further exploration in this article. This article will seek to examine how this narrative influences (either overtly or covertly) the application of competition law to the regulation of standard essential patents (SEPs) in India. More specifically, this article seeks to study the role of various human and non-human actors involved were competition law to be considered as a potential solution to the matter of SEP litigation in India.

This article examines four research questions. First, how does the globalized narrative of intellectual property influence the determination of standards around mobile devices, their IP protection, licensing and enforcement? Second, what are the important competition law issues in SEP litigation in the United States of America (“USA”) and the European Union (“EU”), and how have regulators (the Federal Trade Commission (“FTC”) and the European Commission (“EC”) respectively) and courts in these jurisdictions addressed these issues? Third, what are the critical issues in SEP litigation and competition law in India and how do they compare with similar questions in other jurisdictions? Fourth, could solutions and methodology from the FTC and the EC be applied to SEP competition law matters in India?

In this effort, this article will employ Bruno Latour’s Actor-Network Theory[3] (“ANT”) as the primary research methodology, supplemented where needed by others including comparative research and case studies. A detailed approach into discussing the (above) research questions has been discussed below.

Question one - how does the globalized narrative of intellectual property influence the determination of standards around mobile devices, their IP protection, licensing and enforcement?

This question primarily seeks to explain the determination SEPs on standards through International Standard Setting Organizations (“SSOs”) and the subsequent obligation on members of the SSOs to licence these SEPs on a Fair, Reasonable and Non Discriminatory (“FRAND”) basis.

Applying the ANT, this question will identify both human and non-human actors and that play a role internationally, in the determination of SEPs and their licensing. Illustratively, these actors include the SSOs, multinational corporations that are members of the SSOs, the FRAND licences and the contracts/terms of reference between the SSOs and their member corporations. In order to address this question, the author will refer to academic writing and other literature explaining the role of various actors and the international nature of the standard setting process. Networks that these actors share with each other and the possible influences to the determination of international standards will be studied. This question will explore the international IP environment, and the power of various actors that have an influence on IP norm setting, and attempt to locate the power of these various actors in their network setting.

Question two - what are the important competition law issues in SEP litigation in the USA and the EU, and how have regulators (the FTC and the EC respectively) and courts in these jurisdictions addressed these issues?

This question will study the competition law issues arising from the international determination of standards and the cross-border assertion and enforcement of intellectual property rights discussed in the previous question. This question will also study how (first, whether) courts and regulators have attempted to address some of the competition law issues.

Also applying the ANT, this question will identify various actors involved in competition law litigation around SEPs before the FTC, EC and the courts in the USA and the EU. Illustratively, these include the parties to the litigation, the regulator (whether the FTC or the EC), the court and the legal principles employed. Further applying the ANT, this question will also study how the various actors relate to one another, as a result of their connections within this network, i.e., the litigation, and other connections in other networks (for instance, the position of the parties in certain markets).

Under this research question, select a case study method will be employed to select cases from each jurisdiction. The most important cases pertaining to competition law questions will be studied. These are yet to be identified.

Question three - what are the critical issues in SEP litigation and competition law in India and how do they compare with similar questions in other jurisdictions?

This research question will seek to map the global context around SEP litigation (discussed above) to specific cases in India. In doing so, the author will study the two SEP disputes in India with competition law implications – the Ericsson and Micromax dispute and the Ericsson and Intex dispute; based on information available in the public domain. While there are other pending disputes around SEPs in India, they do not involve the Competition Commission of India (India’s market regulator), and hence are outside the scope of this article. Through a study of these cases, questions of competition law will be identified. Such questions may be either those as a result of the direct application of the Competition Act, 2000 or certain actions taken by the courts with competition law implications (for instance, granting ex-parte interim injunctions).

Having identified competition law issues in SEP litigation in India, the author will then employ the comparative research methodology to trace similar issues in international SEP litigation, discussed under the previous research question. What the author is most interested in locating is the position of the actors in domestic as well as international SEP litigation. Specifically, it is submitted that characters in the domestic litigation also trace back to the context of global IP norm setting; some of them more directly than others. For instance, multinational corporations are directly involved in IP norm setting and are a party to domestic disputes. Further, domestic regulators may seek to draw inferences or apply commonly understood international legal principles, thus invoking more international actors. This phase will attempt to distill the uniqueness of India in the narrative of global IP ownership around SEP litigation.

Question four- what are the challenges for competition regulation of SEPs in India; do principles and methodology from the FTC/ EU and courts present solutions to these challenges?

In this question, the author deliberates the challenge of competition regulation for SEPs in India and whether the approach of international regulators and courts could serve as a roadmap to address these issues.

In answering this question, the author will trace India’s specific location in global competition. The tensions between differently situated actors and the networks that they form will be examined. Some comparisons will be made to illustrate how the relationship of international jurisdictions (mainly the USA and the EU) with international multinational corporations that are a party to litigation differs from that of India. Legal traditions and institutions in India will be used to understand what legal possibilities are available for using competition regulation to regulate SEPs. This includes specifically the levers in competition law such as abuse of dominance as well as the nature of the competition regulator and the role that it identifies for itself. One might also consider the relative ‘youth’ of the competition regulator as a factor in laying down legal principles, the constraints it imposes on itself as well as a tension between the market regulator and the courts. This phase will also attempt to make a case for IP regulation within India’s existing culture of engaging with the public interest in intellectual property regulation.

Having examined global IP norm setting in SEPs, international and domestic issues around SEP litigation and the network of actors involved in these proceedings, in concluding this article, the author seeks to illustrate how actors and networks in the SEP-competition set-up derive power from each other; and how the location of an actor within a network is likely to influence law and regulation. Tracing this location will then in turn be useful in determining what solutions would best address the matter of competition regulation for SEPs in India.

[1]William Dalrymple, The City of Djinns – A Year in Delhi (rep. 2014, Penguin, India) at 83.

[2]Id at 82.

[3]Bruno Latour, Networks, Societies, Spheres: Reflections of an Actor – Network Theorist, International Journal of Communication 5 (2011), 796- 810, http://ijoc.org/index.php/ijoc/article/viewArticle/1094 (accessed 31 August, 2015).

For more details visit https://cis-india.org/a2k/blogs/pervasive-technologies-working-document-series-2013-updated-research-methodology-2013-applying-the-actor-network-theory-to-competition-law-and-standard-essential-patent-litigation-in-india

Pervasive Technologies: Working Document Series - Research Questions and a Literature Review on the Actor-Network Theory

nehaa — 2015-09-05T04:56:03Z

This document is divided into two parts - the first part lays out a series of research questions, potentially seeking to apply actor-network theory as a research methodology. The second part seeks to map literature around the Actor-Network Theory ("ANT") as a research methodology.

Part 1: Research Questions

The aim of this exercise is to delineate the contours of the paper, and provide some insight into the demarcation of the various sections.

The overall context to this paper will be determined by a globalized form of intellectual property ownership, and the various instances in which this narrative finds a place (either overtly or covertly) in the regulation of standard essential patents in India. In our paper, the globalized form of IP ownership is probably most clearly indicated in the standard setting process, where participants are International Standard Setting Organizations determining, in a manner of speaking - the rules of the game - that is - licensing on Fair Reasonable and Non Discriminatory Basis. The other important player to our understanding of global ownership would be multilateral organizations such as Ericsson, involved in many of the disputes before the Delhi High Court and the Competition Commission of India ("CCI"). Perhaps international actors/actants would also be international legal principles as well as international regulators such as the FTC or the ECC themselves. This phase of the paper will also trace India's specific location in global competition. In doing so, not only will the market positions of some of the players be examined, but also some comparisons will be made to illustrate how the relationship of international jurisdictions (mainly the USA and the EU) with international multinational corporations that are a party to litigation differs from that of India. This phase of the chapter will most likely apply the doctrinal method of research, study academic texts as sources as well as study some decisions by international regulators and courts to understand the tools and sites available for regulation as well as the nature of the regulatory process itself.

The second phase of this chapter will seek to map the overall context to specific cases - that is, pending legal processes in India. This includes both, ongoing litigation on patent infringement at the Delhi High Court as well as ongoing disputes before the CCI as well. The characters in this litigation also trace back to the broader context; some of them more directly than others. The multinational corporations are directly involved in both contexts, whereas the domestic regulators may seek to draw inferences or apply commonly understood international legal principles, thus invoking more international actants.

This phase of the chapter will study three key litigations in India - Ericsson and Micromax, Ericsson and Intex, and a third that is yet to be defined. Legal traditions and institutions in India will be used to understand what legal possibilities are available for using competition regulation to regulate SEPs. This includes specifically the levers in competition law such as abuse of dominance as well as the nature of the competition regulator and the role that it identifies for itself. One might also consider the relative 'youth' of the competition regulator as a factor in laying down legal principles, the constraints it imposes on itself as well as a tension between the market regulator and the courts. Perhaps this might also be an actant, in the context of the actor network theory. This phase of the chapter will most likely apply the doctrinal method of research, study academic texts as sources as well as study legal instruments and judicial decisions as sources.

The third phase of this chapter will now ask the question of standard essential patent (SEP) regulation, located within this broader matrix of intellectual property ownership and fluidity of actants. The specific question to be asked will be what is the competition regulation challenge for SEPs in India? This phase will attempt to distill the uniqueness of India in the narrative of global IP ownership around SEP litigation. It will be observed that the nature of the players in international litigation as well as in India is rather different. This phase will also attempt to make a case for IP regulation within India's existing culture of engaging with the public interest in intellectual property regulation.

It is in this phase that one must also examine the usefulness of the actor-network theory as a research methodology to study SEP regulation in India. It must be noted that while SEP regulation so used is used to refer to competition regulation specifically, and not to other levers, such as mechanisms within intellectual property law itself. The focus of this exercise will be competition regulation, with an engagement with other areas of the law and the judicial process only in as much as it informs our understanding of competition regulation of SEPs or impedes it. If one were to apply the actor network theory to this phase of the exercise, one would view courts, parties involved in the litigation, the CCI, international legal principles, international market regulators, international SSOs, competition law as well as issues raised in the litigation as 'actants', both human and non human, who are to be treated on par with each other, with a study of the networks that these actants create, or are a part of.

Part 2: Literature Review on the Actor-Network Theory

The aim of this exercise is to first, understand the ANT as a research methodology; second, to study its components and third, to ascertain its suitability as a research method for exploring the challenge of regulating SEP litigation through completion law mechanisms in India.

What is the Actor-Network Theory?

David Banks, in a 2011 blog post, contextualized in trying to trace a relationship between our offline and online behavior presents an overview of the ANT.[1] Banks describes ANT as an ongoing project that seeks to radically transform how social scientists talk about society's relationship to technology and other non human actors ; and identifies Bruno Latour, John Law and Michael Callon as the major authors in this space. (It is observed that there might have been additions or deletions to this core list of thinkers - not to self for further reading).

In his paper[2] reflecting on the ANT, Bruno Latour refers to himself as a 'fellow traveler' of the various network 'revolutions', and says that in the network, he has found a powerful way of rephrasing basic issues of social theory, epistemology and philosophy. Latour says that in its simplest and deepest sense, the notion of the network is of use whenever action has to be redistributed.[3] In a different paper, Latour argues that the purpose of the ANT is not to provide explanations for the behaviour and reasons of actors, but only to map procedures which enable actors to relate to each other and each others' world building capacity. My discomfort with this reading is trying to locate what these procedures would be in an SEP regulation environment.

Identifying the components of the ANT

Latour presents an actant - or an actor - as something that acts, or to which some sort of activity is assigned by others. [4] There is no special motivation of humans or human actors. "An actant," says Latour, "can literally be anything provided it is granted to be the source of the action."[5] The conception of an actant, Latour further articulates, should be not as fixed entities, but as fluid, circulating objects, whose stability and continuity depends on other actions. [6]

So what is on its agenda? The attribution of human, unhuman, nonhuman, inhuman, characteristics; the distribution of properties among these entities; the connections established between them; the circulation entailed by these attributions, distributions and connections; the transformation of those attributions, distributions and connections, of the many elements that circulates and of the few ways through which they are sent.[7]

Banks[8] identifies actants to be of two types - human and non human, further explaining that 'actors' is typically used to refer to humans. These actants have equal amounts of agency within the actor-network. Banks proceeds to demonstrate this applicability of equal agency with an illustration of getting wi-fi connectivity in Albany. In his narrative [9] (and as he notes later himself), Banks uses the same language (read as according agency to the inanimate) to describe both, the human and non human actants. Says Banks, that the actants are merely nodes that facilitate a larger functioning. It is submitted that the 'larger functioning' being referred to is probably something that would be determined on a case to case basis - depending on what was being studied.

In a 1999 paper On Recalling ANT[10], Latour articulates a problem with the usage of the word 'network' as a result of its usage having changed over time - from using it to refer to a series of transformations incapable of being captured by prevalent social theory at the time, to an unmediated access to every piece of information (to my understanding within the context of the World Wide Web). Latour explains that his new understanding is exactly the opposite of what they meant and that it ought not to be used to mean the transformations they were initially articulating.

Another of Latour's papers is helpful in arriving at an understanding of the 'network', where he argues that it would be fallacious to consider it in a technical sense, as one would a sewage, a train or a telephone network.[11] Unlike a technical network, Latour argues, an actor-network may have no compulsory paths, no nodes and might be quite local in nature. Latour further argues that thinking in terms of a network helps us overcome the tyranny of distance, citing a range of examples including standing one metre away from somebody in a telephone booth and yet being more closely connected to his mother, thousands of miles away, among others[12]. In each of his illustrations, however, Latour articulates closeness or distance in terms of geography or presence in a physical sense, which might not be entirely applicable to the research question we're seeking to study. What might be more useful perhaps, is the articulation of the network where he argues that instead of tracing an individual to the collective or the agency, one could only at the number of connections an element has and gauge the importance of the element in light of these connections . The greater the number of connections, the more important an element and vice versa. [13]

ANT Criticism and Applicability of the ANT to our research question?

Before delving into specifics of the ANT that lend themselves to a critique, I submit a broader reservation with the application of the ANT to studying legal and regulatory processes. From my reading and understanding of the ANT so far, a cornerstone appears to be the exclusion normative ideologies, with a focus on studying processes and networks as is, without formulating a value-judgment on their larger place in the society being studied. In so far as defending this claim, Latour and other supporters of this theory have relied on scientific examples (for instance, the reference to the Colombia Shuttle - NASA and its complex organizational structure)[14] or illustrations from the social sciences or social phenomena. I'm still attempting to locate a paper that utilizes the ANT to study law or regulation. Prima facie, the challenge being posed is to study inherently normative structures and processes with clear power structures.

Banks[15] describes the efficacy of the ANT in describing the processes by which inventions and technological systems come into being, or fail to do so. Perhaps in studying the legal regulation of SEP litigation in India, the efficacy of the ANT would like in describing the processes by which legal regulation and legal systems in India (specifically to regulate SEPs) come into being, or fail to do so. By extension, for our research question, non human actants as identified by Banks[16] would probably be legal institutions and the parties to the litigation themselves. What is unclear at the moment is whether policy and legal instruments or levers themselves would be actors.

Banks, in his article also articulates criticisms[17] to the ANT propounded by Sandra Harding, David Bloor and Sal Restivo, on the grounds of being blind towards other social factors such as race or patriarchy. If one were to extend this to the research question at hand, an argument could be made that the ANT seeks to equate dissimilarly situated institutions. Corollaries to race and patriarchy might be found in the market power of parties (an Ericsson v. a Micromax), or even within regulatory set up itself, where, based on the facts so far, an argument could be made out that different regulators are situated differently, where the Delhi High Court could pass an order restraining another regulator - the Competition Commission of India, from passing its own order.

A reference to the 'agency' critique of the ANT is made by Latour himself, in his 1999 paper. Latour goes on to acknowledges the critiques of the ANT, but says that most have (mistakenly) centered either around the actor or around the network; and that the idea was to never occupy a position in the agency/structure debate.[18] Later in the paper, Latour further clarifies that actants are not to be perceived as playing the role of agency, and network is not to be seen as playing the role of the structure. Instead, says he, they represent two sides of the same phenomenon. Latour further explains that the ANT merely tried to learn from the actors (what was sought to be learnt was difficult to grasp), without attempting to be an explanation of societal pressures (and the reasons for such pressures) on actors. The difficulty in reading this paper for me was that it was rather dense in many respects, with various concepts - including, for instance, the idea of the 'social', which he refers to constantly, not being clearly articulated. Further, what is uncertain to me is how this question of agency will play out if applied to a legal or regulatory context. If, for instance, a legal principle was to be a non human actant, how would this have an agency independent of the human actor (the judge) that would be the one applying the legal principle in the first place? Can we truly exclude the question of agency from the ANT if the very exclusion of agency means a recognition of the existence of agency in the first place? How does one exclude the question of agency in seemingly unequally situated actors with an inherent power dynamic? Is the ANT, then even a useful research methodology? In his 1999 paper, Latour argues that the aim of the ANT is to study actors without the imposition of an a priori definition of their world building capacities.[19] The question now arises for me, is how to divest regulators of their 'world building capacities'.

Explaining the rationale[20] for the ANT (in social science research), Latour articulates a dissatisfaction that social scientists have with both, micro (local sites) and macro levels (more abstract ideas like culture, patriarchy etc.) of research. This dissatisfaction, he argues, results in a back and forth between these sites ad infinitum. The ANT, argues Latour, is a way of tracing these dissatisfactions, not for the purposes of finding a solution, but to follow them elsewhere and explore the very conditions that make these two disappointments possible. Latour further clarifies that one must not understand 'network' in ANT to mean a larger society that would help make sense of local interactions or as an anonymous field of forces. Instead, he says, it refers to summing up various interactions through various devices, inscriptions, forms and formulae into a very local, very practical, very tiny locus. My key takeaway from this articulation was that ANT could be used to study various interactions between various key stakeholders, with a very specific research question. Given that the locus could also be tiny, perhaps if the research question was narrowed further, the key stakeholders, or the 'network' and the 'actants' would reduce as well.

Latour has also argued that the ANT makes no assumptions about how an actor should behave and assumes infinite pliability and absolute freedom of actors. [21] In itself AT is not a theory of action no more than cartography is a theory on the shape of coasts lines and deep sea ridges; it just qualify what the observer should suppose in order for the coast lines to be recorded in their fine fractal patterns. Any shape is possible provided it is obsessively coded as longitude and latitude. Similarly any association is possible provided it is obsessively coded as heterogeneous associations through translations.

there is no difficulty in seeing that AT is not about traced networks by about a network-tracing activity. As I said above there is not a net and an actor laying down the net, but there is an actor whose definition of the world outlines, traces, delineate, limn, describe, shadow forth, inscroll, file, list, record, mark, or tag a trajectory that is called a network. No net exists independently of the very act of tracing it, and no tracing is done by an actor exterior to the net. A network is not a thing but the recorded movement of a thing. The questions AT addresses have now changed. It is not longer whether a net is representation or a thing, a part of society or a part of discourse or a part of nature, but what moves and how this movement is recorded. [22]

A useful articulation of the application of ANT emerges out of Jonathan Murdoch's 1997 paper.[23]He submits that the human gaze is being increasingly considered as an unreliable source of knowledge, being in a constant state of flux. Citing the example of the environment/biosphere to demonstrate the futility of the separations we make between nature and society, Murdoch argues that any solution to the environmental crisis will involve a profound re-thinking of how we link these two domains.[24]Extending this argument to our research question, one might ponder for instance that any solution to the SEP litigation and regulation conundrum will involve a profound re-thinking of how we link the courts and the CCI. What is unclear is what method we will use to arrive at this re-thinking, or what the re-thought out version would look like.

Murdoch does, however, articulate concerns with the 'non dualistic' framework (which the ANT positions itself as) and argues, relying on others before him, that such an adoption could have far reaching consequences; that the very basis of the development of social science is such a binary division. Murdoch argues that the nature-society divide has enabled social scientists to break the hegemony of the natural scientists. Murdoch further submits his reading of Latour, where he states that the power of laboratories arises as a result of their ability to tie together actors that are beyond the lab into networks that are then used to disseminate scientific facts.[25] Murdoch's paper largely focuses on blurring the distance between 'natural' and 'social' actors, and identifies the difficulties in attempting to compare the two. Murdoch questions if natural actors whose identity emerge from nature itself are malleable as social actors, who are by definition, a product of society. What is unclear, however, is how malleable are two dissimilarly situated social actors; and whether 'social actors' is broad enough to encompass all institutions born out of or with a human/societal interaction component. Specifically, for our paper, would courts and the CCI both qualify as social actors? Would legal principles? Would the decision making process by the courts itself? Latour's very example for proposing the ANT was that of pasteurization in France. Murdoch also questions whether it's possible to in fact treat various actants as each other. In order to address another critique of ANT, that where we exclude notions of power, Mudoch says Law's articulation - of focusing on 'victims' instead of 'heroes' might prove to be useful. This has not been discussed in detail, leaving the reader to make their own inferences.

In other words, can ANT, with its seamless webs, forever crisscrossing the human-nonhuman divide, provide a secure platform for critique, for the expression of a profound dissatisfaction with the activities of powerful social actors and the attribution of responsibility to those actors? Can it, in other words, ever do anything more than describe, in a prosaic fashion, the dangerous imbroglios that enmesh us?
Does this emphasis on description necessarily represent "an insuperable obstacle to effective and convincing social criticism

[1] David Banks, A Brief Summary of Actor Network Theory, available at http://thesocietypages.org/cyborgology/2011/12/02/a-brief-summary-of-actor-network-theory/ (last accessed 29 August, 2015).

[2] Bruno Latour - Networks, Societies, Spheres : Reflections of an Actor - Network Theorist, International Journal of Communication 5 (2011), 796- 810, available at http://ijoc.org/index.php/ijoc/article/viewArticle/1094 (last accessed 31 August, 2015).

[3] Id at 797.

[4] Bruno Latour - complications paper - at internal page 7.

[5] Id.

[6] Id at internal page 8.

[7] Id at internal page 7.

[8] Id.

[9] Id.

[10] Bruno Latour, On Recalling ANT, available at http://www.bruno-latour.fr/sites/default/files/P-77-RECALLING-ANT-GBpdf.pdf (last accessed 28 August, 2015).

[11] Bruno Latour, On actor-network theory. A few clarifications plus more than a few complications, available at http://www.bruno-latour.fr/sites/default/files/P-67%20ACTOR-NETWORK.pdf (last accessed 30 August, 2015) at internal page 2.

[12] Id at internal page 4

[13] Id at internal page 6.i

[14] Latour, the networks, societies, spheres paper

[15] Id.

[16] Id.

[17] Id.

[18] Latour, recalling the ANT paper.

[19] Recalling ANT paper, page 20

[20] Bruno Latour, On Recalling ANT, available at http://www.bruno-latour.fr/sites/default/files/P-77-RECALLING-ANT-GBpdf.pdf (last accessed 28 August, 2015).

[21] Latour, the complications paper, page 9.

[22] Id at 14.

[23] Jonathan Murdoch, Inhuman/nonhuman/: actor-network theory and the prospects for a nondualistic and symmetrical perspective on nature and society, Environment and Planning D: Society and Space, 1997, Volume 15, 731-576

[24] Murdoch at page 732.

[25] Murdoch at page 737.

For more details visit https://cis-india.org/a2k/blogs/pervasive-technologies-working-document-series-research-questions-and-a-literature-review-on-actor-network-theory

Pervasive Technologies: Patent Pools

nehaa — 2013-07-03T06:57:59Z

In this research paper, Nehaa Chaudhari gives an analysis of patent pools. She discusses the working of a patent pool, study patent pool in other areas of technology, and patenting in telecom and related technology.

Click to download the full research paper here (PDF, 475 Kb)

Introduction

The network landscape over the past few years has been characterized by several battles of supremacy between two or more rival technologies. [1] These battles have included, inter alia, the constant efforts at besting rivals in the arena of patenting innovations in technology, often as a result characterised by the imposition of high royalties on rivals, for the use of one’s patents. However, having realised that such efforts at besting the other could prove detrimental for all parties concerned in the long run, and stall technological advancements which would in turn translate into lower business revenue, mechanisms were devised to ensure a relatively equitable utilization of patents in the market place. One such mechanism that has been developed is that of patent pools.

Patent pools have been developed around most areas of high end technology and research and development. Over the course of this paper, the author has confined herself to a study on patent pools in the area of telecommunications, and the issues to be addressed therein. Specifically, the author will be dealing with patent pools around 3G, 4G, LTE, TD-SCDMA and TD-LTE technologies. Within this framework, the author seeks to examine what are patent pools, whether and what kind of patent pools exist, their associated costs, their licensing arrangements and the structure of the payment of royalty, and the feasibility of these patent pools.

Understanding Patent Pools

Patent pools are agreements among patent owners through which patent owners combine their patents, waiving their exclusive rights to the patent to enable others, or themselves, to obtain rights to license the pooled patents.[2] Therefore, such pools may be focussed either on cross licensing, that is companies mutually making their patents available to each other, or on out licensing, that is, a group of companies making a collection of patents available to companies that do not or might not have patents of their own to contribute to the pool.[3] Typically, modern patent pools combine patents of various companies and are around inventions that are required to implement an established industry standard, are licensed as a whole (on an all or nothing basis) and not as individual licenses for patents owned by various companies within that pool, and are available to any non member for licensing.[4] Such licensing is done under a standard agreement and royalty rates, on a non discriminatory basis. The exception to this rule is that if certain members have contributed patents to the pool, they may receive more favourable terms, in recognition of their cross licensing relationship to the pool.[5] When viewed from a law and economics perspective, patent pools are seen to be an efficient institutional solution to various problems that arise when companies have complementary intellectual property rights, and these rights are essential to new technologies being used and employed. [6] However, this perspective also warns about the antitrust risks that may arise when competitors or potential competitors are involved in the coordination of their intellectual property. For instance, such pools may be used to allocate markets or otherwise chill competition. [7]

The Working of a Patent Pool

Generally, a patent pool may be administered in one of two ways- it may either have an administrative entity, or may also just be a system of cross licensing between two firms.[8] In case of the former, the licensing agency may be one of the patent holders, [9] or may be an independent licensing company (e.g. MPEG).[10]

The ownership of patents within the pool is retained by the owners, who then license them to the operator/administrator on a non exclusive basis, with sub licensing rights. This means that the owners are free to continue to license their patents on an individual basis, and the administrator also has the right to further license the patents to any party who is interested in licensing from the patent pool.[11] The responsibility of managing licensing and licenses is vested in the operator/administrator of the patent pool. Licensees are required to report sales and pay royalties to the pool administrator, who in turn would enforce the conditions of the license.[12] The distribution of royalties between the members of the pool is on the basis of a formula which may, or may not be transparent to non member licensees, with the pool operator retaining a management fee.[13] Typically, pool licenses are also structured in a manner so as to render difficult early termination by the licensee. The nature of the contract, once signed by a licensee, is typically binding in nature. Therefore, this would mean that the administrator of the patent pool could sue the licensee for non performance of the contract.[14] However, unless a pool operator is a member of the pool itself, it cannot sue for the infringement of patents. [15] Therefore, in the event that a patented technology were to be utilised without having taken a license, one or more of the individual patent owners would be required to take legal action. The involvement of the pool operator would be limited to being a part of any settlement discussions, if they were to occur, since one of the options for the alleged infringer could be to obtain a license for the patent pool.[16]

Drawing Parallels with Other Patent Pools

In this section of the paper, the author seeks to study patent pools in other areas of technology in order to better understand the structure and pricing of patent pools.

The ‘3C DVD’ Patent Pool
Established in 1998, the 3C DVD Patent Pool was the brainchild of Philips, Sony and Pioneer, and L.G. was subsequently inducted as a member. Philips acts as a licensing administrator for patents held by all the companies, which are over two hundred in number. These patents include those for the manufacture of the DVD players, and for the manufacture of the DVD disks themselves. [17] The player license per unit royalty was set as 3.5% of the net selling price of each player sold. This was subject to a minimum fee of $7 per unit, which after January 1, 2000 became $5 per unit. The disc license royalty was set as $0.05 per disc sold.[18]

The ‘DVD- 6C’ Patent Pool
Established in June 1999, the members of this pool at the time of its inception were Hitachi, Matsushita, Mitsubishi, Time Warner, Toshiba, and JVC. This pool was also for the DVD-ROM and the DVD- Video formats, with Toshiba acting as the administrator. [19] The royalties were set at $.075 per DVD Disc and 4% of the net sales price of DVD players and DVD decoders, with a minimum royalty of $4.00 per player or decoder, which saw a substantial reduction in 2003.[20] Subsequently, there were various changes that were made to this group, including the inclusion of newer standards, the joining and subsequent departure of IBM and other organizations as a member etc. Hitachi and Panasonic also act as regional agents in certain regions of the world.

The MPEG LA pool
The MPEG-2 is a standard for describing the coding of data inter alia, on DVD discs. For MPEG-2, a patent pool has been established, where the administrator is an independent, external organization known as the MPEG Licensing Authority, that set itself the aim to develop a patent pool for this standard. [21] The MPEG LA invited parties that thought they owned patents essential to this standard to join the program, which took off in 1997. At present, the pool has over a hundred patents and thousands of licensees.[22]

Patenting in Telecom and Related Technology

In this section of the paper, the author examines the working of patenting and patent pools in the telecommunications sector and in areas of related technology.

Early Developments and the Emergence of GSM
Patent pools are slowly developing into a key component of the telecommunications and the technological industry. The technology industry has been said to be an ecosystem, wherein there is a complex correlation between those who develop the technology and those who implement it in the creation and development of products.[23] In the telecommunications industry for instance, each handset manufacturer has declared only a small percentage of the various types of intellectual property assets that are necessary to implement a 3G compatible cellular phone. Therefore, the working in such a context is that various companies develop different technologies, and the same is shared by various manufacturers that seek to make use of this technology.[24]

The revival of patenting in the sector of telecommunications, post a period of decline in the decades of the 19540s to the 1980s, is attributed to the advent of the GSM standard for mobile communications in Europe.[25] In 1988, the main European operators invited equipment suppliers and developed a procedure wherein manufacturers would have to give up their intellectual property rights and to provide free world wide licenses for essential patents.[26] After opposition from the manufacturers, the approach was modified to one wherein the operators required the suppliers to sign a declaration agreeing to serve all of the GSM community on fair, reasonable and non discriminatory conditions.[27] In the early 1990s, Motorola by refusing to grant non discriminatory licenses for its substantial portfolio of essential patents and only agreeing to enter into cross license agreements further intensified the debate over IPRs in telecommunications. The company only lifted these restrictions after various countries across the world expressed a preference for this standard. The experience in this standard has demonstrated that it would not be accurate to expect that all parties holding essential patents would be willing to license them to all interested parties.[28] Companies were only willing to relax their licensing conditions once revenue generating opportunities increased.

The 3G3P and the UMTS
In July 2000 the 3G Patent Platform Partnership (3G3P) and its 18 partners notified various agreements to the end of establishing a worldwide patent platform. The purpose behind this was disclosed to be that of providing a voluntary and cost effective mechanism to evaluate, verify and license patents that were essential for third generation (3G) mobile communication systems.[29] It was also claimed that the said agreements would have pro competitive effects and that the purpose behind this Platform was the facilitation of access to technology and consequent entry into the markets.[30] On the intellectual property front, the purpose was to reduce cost uncertainties and the delays that were accompaniments of licensing numerous essential patents for complex technologies.

While it has often been considered to be a patent pool, this arrangement has been said to be only similar to a patent pool.[31] The 3G3P itself has argued that since it was a mere facilitator of transactions between patent holders and licensees, and that membership was open to both licensors and licensees as opposed to only licensors as in the case of patent pools, it would be fallacious to classify the Platform as a patent pool. Further, it has also been argued that licensing by members is not restricted to the Platform and that there was no bundling or real pooling of the patents per se and those licensees have the opportunity to pick and choose between patents with the licensing being carried out on a bilateral basis. Additionally, unlike in a patent pool, there is no single license between the patent holders as a collective and the licensee, and the parties have a choice between the Standard License of the Platform, and a negotiable individual license.[32] A Standard License provides for Standard Royalty Rate, a Maximum Cumulative Royalty Rate and a Cumulative Royalty Rate.[33] Bilateral transactions on the other hand, are negotiated between the parties where the consideration is to be determined on fair and equitable terms.[34] This Platform also provides for a price cap, which, instead of being absolute and set at a pre-determined royalty rate, is a default five percent maximum (not minimum) cumulative royalty rate for potential licensees per product category.[35] The royalty rate for each individual patent will differ for each of the licensees and this depends on the patent portfolio under each product category that the licensee has chosen.[36]

The concerns and challenges of the GSM experience were well perceived during the determination of the course of action for UMTS. European actors were especially wary of Qualcomm and expected the firm to demand high license fees, with some even fearing them to be in excess of 10%.[37] Subsequently, various attempts at developing licensing schemes failed, until 2004 and the establishment of the W-CDMA Patent Licensing Programme for UMTS FDD patents.[38] At the outset, seven licensors offered their patents as a bundle to prospective licensors, a number which decreased over time.[39]

The Development of LTE Patent Pools
The next stage in the process of innovation in the realm of telecommunications was the development of the Long Term Evolution (LTE) Standard, which while being essential to 4G technology has also seen application in the realm of 3G. Consequently, patent pools or similar structures have been developed in these areas. LTE patents are being viewed as among the most valuable intellectual property resource in the mobile telecommunications industry, with most operators around the world building LTE networks.[40]

As per in a study conducted in 2011, 23% of the patents about this technology were owned by L.G. Electronics, with Qualcomm coming in second with 21%. Motorola Mobility, InterDigital, Nokia and Samsung each owned 9%, China’s ZTE owned about 6%[41] and Nortel owned 4%, which were later sold to a consortium of Apple, EMC, Ericsson, Microsoft, Research in Motion (RIM) and Sony, after Nortel filed for bankruptcy in 2009.[42] Ericsson also independently owns 2% of the patent pool and RIM owns 1%.[43] However, another analysis[44] of IP databases conducted by ZTE in 2011 revealed differing results. As per this analysis, InterDigital was the leader, with its Patent Holdings arm controlling 13% and the Technology arm controlling 11% of LTE essential patents. Qualcomm controlled 13%, Nokia and Samsung 9% each, Ericsson controlled 8%, as did Huawei, ZTE controlled 7%, L.G. controlled 6% and NTT DoCoMo brought up the rear with 5%. The remaining 11% was held by various other firms.[45] It is to be realized that these studies have often come under criticism from different companies, with each of them eager to portray themselves as the market leader.[46] Setting aside criticism driven by corporate egos, the principle of it, that is, the difficulty in assessing and valuing patents cannot be disputed. Valuing patents is far from merely counting the number of patents owned by a company. The complications are especially evident when it comes to determining which of these patents are essential and which of them aren’t. Additionally, the worth of these patents varies depending on the existence or the absence of certain conditions, including transfer restrictions, cross licensing arrangements, ownership and market conditions.[47]

The aforesaid discussion reveals the complexity and the fragmentation of the LTE environment, which further underscored the need to have patent pools in this field. Although the need for a patent pool was realized in 2009-2010, given that the WCDMA patent pool had been met with very limited success,[48] industry watchers were reluctant to be optimistic. This was in part fuelled by the understanding of the attitude of dominant players, wherein they continued to believe that they could derive more monetary, cross licensing and litigation defence value if they did not pool their patents.[49]

The development of LTE patent pools can be traced back to 2009, and the response of Via Licensing¸ Sisvel and MPEG LA to a Request for Information on forming such a patent pool by the Next Generation Mobile Network Alliance (NGMN).[50] Sisvel’s proposal, which it subsequently made at a public conference in 2010 sought to demonstrate that patent pools could prevent excessive costs from royalty stacking.[51] Among various other examples, Roberto Dini, the founder of Sisvel suggested that if patents were to be licensed individually, for instance, 85 patents for MPEG video at 50 cents apiece would cost $42.50. As opposed to this, the patent pool charged $2.50.[52] In 2011, the NGMN reiterated its recommendation to all stakeholders in the mobile industry that were interested in developing patent pools to hasten their development process to avoid further delays in LTE licensing.[53] The NGMN also went on to state that it would be ideal if all the parties were to agree on a single patent pool that promoted reasonable royalties, offered certainty on the availability of the licenses for patents and created a framework for evaluation of their essentiality, where the value of the patents essential to the pool would be established by the industry.[54] These recommendations were not without their fair share of criticism, both, from industry watchers[55] and from vendors.[56] Notwithstanding these reservations, both, Sisvel[57] and Via Licensing have gone on to issue calls for patents for the purposes of creating patent pools in the LTE marketplace.

The Sisvel LTE Patent Pool materialized in late 2012, wherein licenses were offered under a portfolio of patents essential to LTE.[58] The pool includes patents owned by Cassidian, the China Academy of Telecommunication Technology, the Electronics and Telecommunications Research Institute, France Telecom, TDF, and KPN, in addition to some patents that had been originally filed by Nokia but were acquired by Sisvel in 2011.[59] The pool is also open to other organizations that have patents essential to LTE. At present, the current portfolio of these patents is available under standard terms and conditions. The running royalty rate is 0.99 Euros per device.[60]

Having promised a launch within a few months in June, 2012[61] Via Licensing has also developed its own LTE Patent Pool, with the initial companies in this pool being AT&T, Clearwire Corporation, DTVG Licensing, HP, KDDI Corporation, MTT DoCoMo, SK Telecom, Telecom Italia, Telefónica and ZTE.[62] Like Sisvel’s Patent Pool, this pool is also open to other organizations that believe they possess essential LTE patents, and they are encouraged to submit the same for evaluation.[63] The patent pool floated by Via leans heavily towards service providers, but some of the big players in the industry including Nokia, Ericsson, Huawei Technologies and Samsung Electronics are conspicuous by their absence.[64] This absence is felt even in Sisvel’s patent pool, with the reasoning being proposed[65] that these key patent holders may prefer private licensing and subsequent litigation over pooled resources in patent pools.[66] Understandably, the launch of the LTE Patent Pools has been met with approval by the NGMN[67] but given the nascent stages in which both of these pools find themselves, it would be premature to comment (without first observing for a few months) the likelihood of their success or failure and how they would play out against each other.

The TD-SCDMA and the TD-LTE
Reportedly, China has spent several billion dollars on the import of analog and GSM technology,[68] and the country’s mobile communications industry continues to be dominated by foreign players.[69] Therefore, in continuation of a purportedly growing trend[70] in the area of telecommunications as well, domestically developed systems are being preferred and developed over standardized technologies that enjoy strong patent protection outside China.[71] Besides the avoidance of paying royalties to foreigners, the idea is also to use China’s strong market presence and have more participants in China’s home grown technology.[72]

Time Divisional- Synchronous Code Division Multiple Access (TD-SCDMA), developed by the China Academy of Telecommunications Technology (CATT), in collaboration with Datang and Siemens[73] is a Chinese indigenously developed 3G technology standard developed by China to reduce its dependence on western standards.[74] Interestingly however, it has been reported that the Chinese hold core patent technology only about 7% whereas most of the rest of it is taken by other foreign organizations.[75] In 2000, an industry consortium, the TD-SCDMA forum was established. The participants were China Mobile, China Telecom, China Unicom, Huawei, Motorola, Nortel, and Siemens, with the objective of developing and supporting this technology. Government support was received in 2002, following which the TD-SCDMA Industry Alliance was founded by well known market players including Datang, SOUTEC, Holley, Huawei, LENOVO, ZTE, CEC and China Putian. There has also been the creation of various joint ventures with international giants such as Alcatel, Ericsson, Nokia, (erstwhile) Nortel, Philips, Samsung and Siemens have also been created.[76]

Information about the existence of patent pools in this technology has been hard to come by. One of the few to write about patent pools in his 2008 paper,[77] Dazheng Wang proposes patent pools as a solution to the problem of commercialization of TD-SCDMA. He suggests that the framework of this patent pool should be on the industry principles of fair, reasonable and non discriminatory licensing terms for essential patents, with the end result being one of increased innovation and competition and an overall increase in market presence. Interestingly, a few articles[78] on blog posts on the internet speak about the existence of patent pools and their apparent misuse[79] as well.

It is submitted that these inconsistencies regarding the division of patents between various patent holders, where the percentage of patents held by each company have been pegged differently,[80] and about the existence of a patent pool or not raise pressing concerns about the payment of royalties and how licensing works in such a situation. On a very basic level, in order to be able to pay royalties and enter into licensing agreements, the existence of an identified, non disputed patent holder would be the sine qua non, which seems to be missing in the case of patents for TD-SCDMA. This problem is only further compounded by the lack of clarity on the very existence of patent pools. Had there been specified patent pools, the issues of determination of essential patents and the setting of royalties and licensing fees would have been standardized, a situation that cannot be invoked, without dispute, in the present Chinese context.

It is further submitted that despite China being the world’s largest market for mobile communications, and its progress from a mere importer to a developer of some parts of technology,[81] the Chinese experiment with TD-SCDMA seems to have met with limited success, in comparison to what was envisaged. For instance, while an agency had forecast that the number of TD-SCDMA subscribers in 2010 would be 34 million, by April, 2010 there were only 8 million or (even lower) subscribers.[82] One of the reasons for preferring other standards, for instance, the W-CDMA is the number of handsets compatible with the same and the consequent variety that is available to the consumer. To illustrate, one could look at the figures from June, 2010. At this point of time China Unicom had 94 models for W-CDMA from twenty four manufacturers including nine foreign ones, whereas China Mobile had only twenty eight models that were compatible with TD-SCDMA.[83] Interestingly, if one were to measure popularity in terms of sheer numbers, TD-SCDMA would emerge the winner over W-CDMA by a couple of million subscribers, but if the growth rate were to be considered, W-CDMA would come out on top. While TD-SCDMA grew only by 24%, W-CDMA has grown at 32% monthly since the start of its service is October, 2009.[84]

China’s experiments with creating its home grown telecommunication standards have not stopped with the development of the TD-SCDMA, with the country being on track in the development of the TD-LTE. Reports suggest that although the systems are in ‘trial’ mode officially, the 4G spectrum situation remains uncertain.[85] It is submitted that although this is in the nascent stages as compared to the TD-SCDMA, the concerns expressed earlier about TD-SCDMA and the suggestions made therein for the technology to realise its full potential would be equally applicable in this scenario as well.

Therefore, in light of this discussion it would not be fallacious to conclude that while the TD-SCDMA, and now more recently the TD-LTE standard might still be in its nascent stages, on a fundamental level it seems to have not fulfilled the objectives with which it was developed, especially given that a sizeable portion of its patents continue to be owned by foreign corporations. In addition to the challenges of attracting subscribers, it would also need to streamline its system of patents, royalties and licensing, if it wants to have a truly global or even national presence. To this end perhaps patent pools structured along the lines of those being developed or in place for other mobile communication technologies might provide a viable solution meriting consideration.

Concluding Observations

One of the fundamental concerns that plague most downstream organizations in the mobile communications sector is the prevalence of high licensing fees that need to be paid on essential patents, the cost of which often trickles down to the customers. A study on the licensing arrangements prevalent at the moment[86] reveals that as of the moment, the result of royalty rate caps is that they save money for downstream manufacturers, but this is at the expense of upstream licensors. The most significant savers are the ones downstream with no IP to trade, and vertically integrated companies while losing some revenue, are able to save significantly more in reduced expenses.[87]

Therefore, it comes as no surprise that efforts at limiting aggregate licensing fees have been at the forefront over the past couple of years. It is in this scenario that patent pools have developed, with operators such as Via Licensing and Sisvel even promoting themselves as being able to put together patent pools that would greatly limit licensing fees.[88] However, some owners of intellectual property continue to find bilateral licensing and cross licensing to be more profitable as opposed to patent pools.

One of the key concerns when it comes to fore when dealing with how patent pools are structured is about the distribution of income received from royalties within the members of the pool, which ties in with the bigger question of classifying patents as essential and non essential. More often than not, patent pools also have to grapple with the problem of members having conflicting interests. For instance, manufacturers have the incentive to cap aggregate royalties of certain essential patents that they would use in manufacturing, in order to reduce their licensing costs. However, these manufacturers could have also brought their own essential patents to the pool, perhaps of a new way of doing things, and would certainly be averse of having caps imposed on these royalties.

One of the key other considerations that patent pools need to take into account include the royalty rates affixed. In an interview some time ago, the founder of Sisvel, went on to state that while affixing these royalty rates, there could be no discrimination against licensees, since that would be a sure fire way of ensuring the collapse of the patent pool.[89] Additionally, patent pools also need to account for the difference in regulatory mechanism and their execution that exists across jurisdictions. For instance, customs officials in France pay a lot more attention to counterfeit goods than they would to patent infringing products, whereas those in Germany would have a keen eye on the latter.[90]

Various other concerns have also been identified with regard to patent pools over time. One of these is that they could potentially eliminate competition that comes from outside of patent pools.[91]

Additionally, patent pools are not all inclusive, since participation is entirely voluntary. Therefore, patent pools would not even be reasonably expected to cover all essential patents required to make a standardised product. This problem is rendered even more complex as a result of the presence of multiple patent pools around the same technology, as in the case of DVDs and more recently, LTE technology.

In sum, while portfolio cross licenses and patent pools can be helpful in resolving issues created by patent thickets by reducing transaction costs for licensees, while preserving to a definitive extent financial incentives for inventors to commercialize their existing inventions and undertake new research, the significant shortcomings of these pools also need to be taken into account before they can be heralded as the solution to problems presented by complex patent landscapes. While voluntary patent pools might have proved to be beneficial in some respects, the imposition of patent pools would be a fallacious approach to undertake.

[1]. Hui Yan, The 3G Standard Setting Strategy and Indigenous Innovation Policy in China: Is TD-SCDMA a Flagship?, DRUID Working Paper No 07-01, available at http://www2.druid.dk/conferences/viewpaper.php?id=1454&cf=9 (last accessed 07 12 2012)

[2]. Josh Lerner and Jean Tirole, Efficient Patent Pools, 4 Am. Econ. Rev. 691, 691 (2004)

[3]. Patent Pools- Some Not So Frequently Answered Questions, available at http://blog.patentology.com.au/2012/11/patent-pools-some-not-so-frequently.html (last accessed 10 December, 2012)

[4]. Id.

[5]. Id.

[6]. Philip B. Nelson, Patent Pools: An Economic Assessment of Current Law and Policy, Rutgers Law Journal, Volume 38:539, 559 (2007)

[7].

[8]. Roger B. Andewelt, Analysis of Patent Pools Under the Antitrust Laws, 53 ANTITRUST L.J. 611, 611 (1984).

[9]. Philips has been known to have been the licensing agency for patent pools where it was a member

[10]. Supra note 3

[11]. Supra note 3

[12]. Supra note 3

[13]. Supra note 3

[14]. Supra note 3

[15]. Supra note 3

[16]. Supra note 3

[17]. Rudi Bekkers et. al., Patent Pools and Non Assertion Agreements: Coordination Mechanisms for Multi Party IPR Holders in Standardization, available at http://www-i4.informatik.rwth-aachen.de/Interest/EASST_Bekkers_Iversen_Blind.pdf 22 (last accessed 09 December, 2012)

[18]. Id.

[19]. Id.

[20]. Id.

[21]. Supra note 17 at 23.

[22]. Supra note 17 at 23.

[23]. Keith Mallinson, Fixing IP Prices with Royalty Rate Caps and Patent Pools, available at http://ipfinance.blogspot.in/2011/07/fixing-ip-prices-with-royalty-rate-caps.html (last accessed 10 December, 2012)

[24]. Id. See Appendix 1 for a graphical representation of declared intellectual property assets in 2009.

[25]. Supra note 17 at 25

[26]. Supra note 17 at 27

[27]. Supra note 17 at 27

[28]. Supra note 17 at 28

[29]. Dessy Choumelova, Competition Law Analysis of Patent Licensing Agreements- the Particular Case of 3G3P, available at http://ec.europa.eu/competition/publications/cpn/2003_1_41.pdf- 41 (last accessed 10 December, 2012)

[30]. Id.

[31]. Id.

[32]. Id.

[33]. Id at 42.

[34]. Id at 42.

[35]. Id at 42-43.

[36]. Id at 43.

[37]. Supra note 17 at 29.

[38]. Supra note 17 at 39.

[39]. Supra note 17 at 39.

[40]. Elizabeth Woyke, Identifying the Tech Leaders in LTE Wireless Patents, available at http://www.forbes.com/sites/elizabethwoyke/2011/09/21/identifying-the-tech-leaders-in-lte-wireless-patents/ (last accessed 08 December, 2012)

[41]. Id.

[42]. Id.

[43]. Id.

[44]. Caroline Gabriel, ZTE Claims 7% of LTE Essential Patents, available at http://www.rethink-wireless.com/2011/01/11/zte-claims-7-lte-essential-patents.htm (last accessed 09 December, 2012)

[45]. Id.

[46]. Id.

[47]. Supra note 40.

[48]. Keith Mallinson, Mallinson: Uncertain Futures in LTE Patent Pool Licensing, available at http://www.fiercewireless.com/europe/story/mallinson-uncertain-outlook-patent-pool-licensing/2010-08-25 (last accessed 10 December, 2012)

[49]. Id.

[50]. Id.

[51]. Id.

[52]. Id.

[53]. NGMN Board Recommendation on LTE Patent Pool, available at http://4g-portal.com/ngmn-board-recommendation-on-lte-patent-pool (last accessed 10 December, 2012)

[54]. Id.

[55]. Caroline Gabriel, NGMN’s Calls for an LTE Patent Pool Will be Futile in the Current IPR Climate, available at http://www.4gtrends.com/articles/53511/ngmns-calls-for-an-lte-patent-pool-will-be-futile-/ (last accessed 11 December, 2012)

[56]. Michelle Donegan, Vendors Balk at LTE Patent Pool Proposal, available at http://www.lightreading.com/document.asp?doc_id=212362 (last accessed 11 December, 2012).

[57]. SISVEL: Patent Pool for 3G Long Term Evolution (LTE), available at http://www.thefreelibrary.com/SISVEL%3A+Patent+Pool+for+3G+Long+Term+Evolution+(LTE).-a0199544458 (last accessed 08 December, 2012)

[58]. LTE Patent Pool from Sisvel, available at http://4g-portal.com/lte-patent-pool-from-sisvel (last accessed 09 December, 2012)

[59]. Id.

[60]. Id.

[61]. Mike Dano, Via Promises LTE Patent Pool Launch Within Months, available at http://www.fiercewireless.com/story/licensing-promises-lte-patent-pool-launch-within-months/2012-06-15 (last accessed 07 December, 2012)

[62]. LTE Patent Pool Available Through Via’s Licensing Program, available at http://4g-portal.com/lte-patent-pool-available-through-vias-licensing-program (last accessed 10 December, 2012).

[63]. Id.

[64]. Stephen Lawson, Lte Patent Pool Brings Together Technologies From At&T, Zte, Hp And Others, available at http://www.computerworld.com/s/article/9232043/LTE_patent_pool_brings_together_technologies_from_AT_amp_T_ZTE_HP_and_others (last accessed 09 December, 2012)

[65]. Peter White, Sisvel LTE Patent Pool Emerges After All- Majors Still Hold Back from Committing, available at http://www.rethink-wireless.com/2012/11/05/sisvel-lte-patent-pool-emerges-all-majors-hold-committing.htm (last accessed 09 December, 2012)

[66]. Shankar Pandiath, Sisvel Launches Patent Pool for 3G Long Term Evolution (LTE), available at http://next-generation-communications.tmcnet.com/topics/nextgen-voice/articles/314957-sisvel-launches-patent-pool-3g-long-term-evolution.htm (last accessed 09 December, 2012).

[67].NGMN Board Welcomes Launch of LTE Patent Pool, available at http://4g-portal.com/ngmn-board-welcomes-launch-of-lte-patent-pool (last accessed 09 December, 2012).

[68]. ELSPETH THOMSON AND JON SIGURDSON (EDS.), CHINA’S SCIENCE AND TECHNOLOGY SECTOR AND THE FORCES OF GLOBALIZATION 17 (2008, World Scientific Publishing Company, Singapore).

[69]. Cong Cao, Challenges for Technological Development in China’s Industry, available at http://chinaperspectives.revues.org/924 (last accessed 11 December, 2012)

[70]. Peter Zura, China Launches TD-SCDMA Telecom Standard¸ available at http://271patent.blogspot.in/2006/01/china-launches-td-scdma-telecom.html (last accessed 10 December, 2012)

[71]. Id.

[72]. Id.

[73]. TD-SCDMA (time division synchronous code division multiple access), available at http://searchmobilecomputing.techtarget.com/definition/TD-SCDMA (last accessed 07 December, 2012).

[74]. SHAHD AKHTAR AND PATRICIA ARINTO (EDS.), DIGITAL REVIEW OF ASIA PACIFIC : 2009-2010 8 (2010, Sage Publications, New Delhi).

[75]. Supra note 1 at 2. See Appendix 2 for the breakup of patent holding. However, see details on Infra note 78 for a contradictory view, wherein China claims to own 30% of all TD-SCDMA patents.

[76]. Pierre Vialle, On the relevance of Indigenous Standard Setting Policy: the Case of TD-SCDMA in China, 2^nd International Conference on Economics, Trade and Development, (2012) 36 IPEDR 184-185 (IACSIT Press, Singapore).

[77]. Dazheng Wang, Patent Pool: A Solution to the Problem of TD-SCDMA’s Commercialization, http://ieeexplore.ieee.org/xpl/login.jsp?tp=&arnumber=5076744&url=http%3A%2F%2Fieeexplore.ieee.org%2Fiel5%2F5076660%2F5076661%2F05076744.pdf%3Farnumber%3D5076744 (last accessed 11 December, 2012).

[78]. China Owns 30% of TD-SCDMA Related Patents, available at http://www.cn-c114.net/582/a310685.html (last accessed 11 December, 2012).

[79]. The Legal Regulation on Patent Pool Misuse, available at http://www.socpaper.com/the-legal-regulation-on-patent-pool-misuse.html (last accessed 11 December, 2012).

[80]. Supra notes 75 and 78.

[81]. Tomoo Marukawa, Chinese Innovations in Mobile Telecommunications: Third Generation vs. “Guerrilla Handsets”, Paper presented at the IGCC Conference: Chinese Approaches to National Innovation, La Jolla, California, June 28-29, 2010 at 1.

[82]. Id at 8.

[83]. Id at 9.

[84]. Id at 9.

[85]. China to Speed Up TD-LTE Process, available at http://www.tdscdma-forum.org/en/news/see.asp?id=11998&uptime=2012-11-29 (last accessed 08 December, 2012)

[86]. Supra note 23.

[87]. Id.

[88]. Supra note 23.

[89]. Sisvel’s Patent Strategy, available at http://www.managingip.com/Article/2400452/Sisvels-patent-strategy.html (last accessed 12 December, 2012).

[90]. Id.

[91]. Supra note 23.

For more details visit https://cis-india.org/a2k/blogs/patent-pools

Pervasive Technologies: Access to Knowledge in the Marketplace — CIS’s Upcoming A2K Research Initiative

Jadine Lannon — 2012-10-30T06:23:53Z

Pervasive technologies have flooded the Indian market and are changing the ways in which the average Indian accesses knowledge but very little is understood about these technologies, particularly when it comes to their legality. The Centre for Internet and Society (CIS) plans to begin a research project that aims to understand how pervasive technologies interact with Intellectual Property laws and what can be done to protect these technologies from being labelled “illegal” and eradicated from the Asian market.

Between 2000 and 2012, mobile phone subscriptions in India increased from 3.578 million to 893.86 million — an increase of almost 250 per cent.[1] In fact, mobile device sales were expected to reach 231 million units in 2012, an 8.5 per cent increase from 2011[2] and an incredible leap from the 21 million units sold in India in 2004.[3] While mobile phone penetration has been rising steadily in India,[4] the cost of mobile phones has plummeted, meaning that the ability to purchase and use mobile phones in India is becoming more and more widespread, especially in the marginalized classes. Mobiles are not the only technology that has experienced this phenomenon; indeed, many different types of pervasive technologies (mass-market networked communication technologies) have become increasingly more accessible across the board in Indian society.

When I use the term pervasive, I am referring to those technologies that are the most accessible to and used by the typical Indian. These technologies are characterized by their ability to provide access to media without significant cost to the user through both their low cost and their features. Mobile phones, netbooks and media players, as well as hardware, software and associated content are all considered to be pervasive technologies. For research purposes, CIS will only consider those technologies that cost under USD 100 or about INR 5,400. Considering that in 2011 it was estimated that about 75 per cent of the mobile devices sold in India cost below USD 75,[5] this is not a restrictive figure.

Although these technologies have become near ubiquitous in India and similar developing markets, very little is actually understood about how they interact with Intellectual Property (IP) laws. The pervasive technology industry exists somewhere between formal and informal and legal and illegal (as Carolyn Nordstrom would put it, these technologies would be il slash legal, or il/legal),[6] and can shift in and out of the legal/formal and illegal/informal realm depending on the stage of production; this is why they are often referred to as “gray market” technologies (though in some cases, it may even be appropriate to call them extra-legal). This lack of compliance with IP laws have made technologies both quite cheap to purchase and a popular platform for software, hardware and content innovation. The result is that these technologies often contain the newest and most interesting features and they provide the most “bang-for-your-buck” for content and value-added services. Thus, a consumer can buy a grey market technology that will have a wide array of features and services for a much lower price than would be paid to one of the larger manufacturers for an equal or even lesser product.

It is the low cost but highly sophisticated state of these pervasive technologies that is changing the way that people across the world access information and media, particularly those individuals and groups that routinely face barriers to mainstream structures of access. For those that were left on the wrong side of the infamous “digital divide”, pervasive technologies have been arguably the most effective means of providing real access to knowledge to the masses within India and across Asia, even more so than directed development initiatives. Indeed, pervasive technologies are not the future solution for access to knowledge; they are the current reality.

Although pervasive technologies are plausibly the most effective tools of access for knowledge in the marketplace in emerging economies like China, Indonesia and India, very little scholarly research has been done on pervasive technologies in the developing world, especially research that acknowledges the significant role that pervasive technologies have had in bridging the digital divide. This absence of appreciation for the significance of pervasive technologies in developing economies, coupled with a lack of understanding around their complex interaction with national and international IP regimes, may lead to a policy vacuum within which the existence of pervasive technologies could be jeopardized. Accordingly, CIS will begin a new access to knowledge research initiative that aims to understand the relationship between pervasive technologies and Intellectual Property. Pervasive Technologies: Access to Knowledge in the Marketplace will span over two-and-a-half calendar years (30 calendar months) and will recruit researchers from China, India, and other parts of Asia. Interaction will also be established with members of like-minded projects in Africa and Latin America. This research will begin as soon as it is approved by the Ministry of Home Affairs. The current project proposal is available for download as a PDF document (299 Kb).

The immediate aim of the research is to understand the legal environment, in which pervasive technologies exist, but simply generating comprehension is not enough; pervasive technologies must be allowed a more formal space in the Indian market. As part of the research project, CIS plans to carry out both an advocacy phase and dissemination phase in order to use the research outputs to create a more widespread understanding of the importance of pervasive technologies as access to knowledge tools. We hope that the research will encourage the formation of IP reforms and norms that recognize the role that pervasive technologies play in providing access to knowledge and enable their continued participation in the Indian market and society.

As the formal research project has yet to commence, I will be working on a small section of the Pervasive Technologies: Access to Knowledge in the Marketplace research on pervasive mobile phone technologies. CIS currently possesses 12 mobile phones that fall into the definition of pervasive technologies, though we will hopefully add to our collection as the research continues. The aim of this research is to document as much information about the life-cycles, hardware, software and content of each phone as possible in order to generate a better understanding of how these phones exist and interact with IP regimes and norms. The blog series on this research should begin in the next couple of weeks.

[1]. Data available on the International Telecommunications Union Data Explorer at http://bit.ly/MIfEYO
[2].Gartner Inc. Gartner Says Indian Mobile Handset Sales to Reach 231 Million Units in 2012, http://bit.ly/tKe7nU(November 22, 2011).
[3].Gartner Inc., ‘Forecast: Mobile Terminals, Worldwide, 2000-2009 report’ (July, 2005), but cited information can be retrieved from http://bit.ly/PTAOFC
[4].International Telecommunications Union, 'The World in 2009: ICT Facts and Figures' available at http://bit.ly/qtwGU
[5].Gartner Inc. Gartner Says Indian Mobile Handset Sales to Reach 231 Million Units in 2012, http://bit.ly/qtwGU (November 22, 2011).
[6].Nordstrom, C. Global Outlaws: Crime, Money, and Power in the Contemporary World (Berkeley: University of California Press, 2007), 256.

For more details visit https://cis-india.org/a2k/pervasive-technologies-access-to-knowledge-in-the-market-place