Centre for Internet and Society

Kannada Wikipedia Editathon in Prajavani

praskrishna — 2016-01-05T06:39:56Z

The article was published in Prajavani on December 13, 2015. A scanned version of the article is below.

For more details visit https://cis-india.org/a2k/news/kannada-wikipedia-editathon-in-prajavani

Kannada Wikipedia Editathon: Prajavani

praskrishna — 2016-01-05T06:40:23Z

The article was published in Prajavani Mangal on December 11, 2015. A scanned version of the article is given below.

For more details visit https://cis-india.org/a2k/news/kannada-wikipedia-editathon-prajavani-mangal

Kannada Wikipedia Editathon Coverage in Prajavani

praskrishna — 2016-01-05T06:40:52Z

The article was published in Prajavani Mangal on December 10, 2015. A scanned version of the article is below.

For more details visit https://cis-india.org/a2k/news/kannada-wikipedia-prajavani-mangal

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

NLSIU Conference on Access to Copyrighted Works for Persons with Disability: An enriching experience

praskrishna — 2015-12-27T16:01:44Z

National Law School of India University, Bangalore hosted a one-day national conference on the ‘Access to Copyrighted Works for Persons with Disability’, on the 26th of November, 2015 to discuss the provisions and implications of the Marrakesh Treaty as signed on the 27th of June, 2013.

The blog post authored by Abolee Vaidya and Nuhar Bansal was published in SINAPSE on December 14, 2015. Pranesh Prakash was a speaker at this event.

The Chief Guest of the conference was Ms. Aparna Sharma, who is the Joint Secretary and Registrar of Copyrights, MHRD. She pointed out at the very onset that it was very opportune for the conference to be hosted on the Constitution Day as what could have been a better day to talk about equal opportunity and non-discrimination.

The conference was roughly divided into three sessions which covered the following perspectives: a brief overview of the treaty, the Indian Copyright Law provisions and the implications of the both of them on stakeholders and beneficiaries in India. Mr. G. R. Raghavender, Director IPR, Department of Industrial Policy and Promotion, GoI, chaired the first two sessions and told us about how ‘Sparsh’, the 1980 film starring Naseeruddin Shah as a blind teacher, triggered his conscience.

World Intellectual Property Organization (WIPO) conducted a study in 2006 on the extent of execution of Copyright provisions with regard to limitations and exceptions to Copyright for people with disability. The concluding observations were quite disappointing, which is how the talks about the Marrakesh Treaty commenced. He then gave us insights into the negotiations that went into finalizing the treaty, how the World Blind Union played an extremely instrumental role in getting the treaty through and also how Brazil recently became the 12^th country to ratify the treaty.

Mr. Raghavender further shed some light on the basic scope of the treaty:

Addressing the book famine by introducing limitations and exceptions to the rights of the Copyright holder. In this context, most states wanted to restrict the definition of ‘works’ under the treaty to ‘physical books’ and not artistic or audiovisual works. Although, that was not agreed to as audio description is crucial to modern online education in all ways. The international publishing community opposed most of the provisions during negotiation. They argued that publishing accessible copies of their published work would increase the cost of production and subsequently the market price of the work, due to which, majority of the disabled population wouldn’t be able to afford it anyway. Besides, whether the commercial want for the existent printed material in the market would be affected or the sighted consumers would take advantage of the accessible versions in the market are other issues that were brought up.
What kind of limitations and exceptions should be imposed? The developed countries opposed liberal interpretations and exceptions to the treaty. Owing to political influences, translation and public redistribution rights were also proposed to be limited and to be granted only to developing and least developed countries under compulsory Licensing, and in no other circumstances. The proposal allowed for reproduction, distribution and access to all content except audiovisual, excluding translation and public performance rights from the exception ambit. The Vienna Convention for Law of Treaties was referred to quite often for a thorough understanding.
Easier cross border exchange of works- Bigger nations wanted tie-ups with certain commercially available entities across nations for particular exchange purposes thus resulting in it becoming just a business and curbing accessibility. This was negotiated upon and dismissed.
Technological Protection Measures- Mr. Raghavendra spoke about extending the Berne Convention to digital works too so that re-encrypting digital works for the disabled does not qualify as infringement. He also stated how there needs to be more clarity as to the usage and breaking of digital locks.

Prof. T. Ramakrishna, MHRD Chair Professor on IPR , NLSIU launched their website iprindia.law.org, which is a one-stop place to find research material on Indian Intellectual Property law.

It was then followed by a presentation by the students of NLSIU on the basics of Marrakesh Treaty where it was concisely presented as to what the treaty means to the countries ratifying it.

Only 1-7% of the world’s books are available in accessible formats, largely due to Copyright hurdles and Marrakesh treaty intends to help in 2 ways:

Exception in domestic law of every ratifying country to ensure that they allow the print disabled and blind to convert texts into accessible formats without having to first take permission from the Copyright holder.
Cross border exchange of accessible version of books without permission. This will help avoid illegal duplication of transcripts and also allow countries with larger collection of such works to share it with other nations in need.
Specific articles that enable a relatively wide interpretation of the provisions to help make the texts more easily accessible.

Dr. Kalyan. C. Kankanala (Managing Partner BananaIP Counsels, visiting faculty NLSIU and guest faculty IIMB) was the first speaker of the session and he started with a recommendation for the government to make all government documents accessible as a first step of implementing the Marrakesh Treaty. He then went on to tell us how he lost vision in 1998 and found it very hard to access the curriculum related texts. Despite the best of efforts that he could muster, he was able to access barely 10% of the total material. He said that irrespective of how able you are, if your ability cannot access the fodder it is supposed to thrive on then there can be no scope for development. Today, information is available at the click of a button and your ability to succeed and not be discriminated against depends on how fast you access this information. Keeping this in mind, if there is no provision to make other more technologically advanced forms of information also accessible, it is not going to be a sustainable option. Most of the information today is in a non-literary format and to access that, a lot of other barriers have to be broken, which can result in simultaneous Copyright, Trademark and Patent infringement, which the Marrakesh Treaty cannot protect you against. To enable equal opportunity in reality, exceptions should flow under a bunch of laws and not just Copyright. What we face today is an information famine and not just a book famine. The solution lies with the publishing community. Because, the technological tools that the laws can equip us with, will fall short of some or the other parameter at some time and that defeats the aim of equal opportunity. So if the publishing community itself releases accessible versions along side their publications for the sighted consumers, we would have a sustainable solution. Also, the number of authorized entities should be made significantly high because greater the number of authorized entities, greater the chances of the publishers sensing competition and realizing that a commercial model around making accessible books available would be better for their business. He further said that the scope of definitions of terms used in the treaty are not as problematic as certain other areas like what kind of works are covered, what kind of disabilities are covered, what rights are covered and mandated. Nevertheless, the treaty has been negotiated and signed and going to bring out some sort of a positive change if not a revolution, so to say.

Dr. S. Elumalai, Assistant Professor, Dr. Ambedkar Law University, Tamil Nadu, was the next speaker and he had some wonderful insights to offer. He said that the PWD Act qualifies a person as disabled only if he has more than 40% disability. Whereas, the Marrakesh Treaty addresses reading disability on the whole, which is very important. In fact, it also enables the caretaker and caregiver of the so disabled to claim accessibility rights under the treaty unlike any Indian legislation. He pointed out how our own government machinery is not disabled friendly, to the extent that disabled people are denied higher secondary education and professional education in government institutes. He stated that the government should help the disabled people help themselves and that can be achieved by training the authorized entities to be technologically up to date. The RTI Act talks about accessible formats of texts but the government has done little more than talking in that regard. Understanding that the disabled people are a minority and hence not a force influential enough to manipulate the demand-supply cycle of the market, it becomes all the more important for strong regulatory mechanisms to interfere. The government needs to step in and step up, the stakeholders need to be pro active, the authorized entities and the publishers should know their rights and duties and the disabled people should be made a part of the decision making process from scratch to resolve any moral right conflict that might arise between the above listed parties.

Mr. Pranesh Prakash, Policy Director CIS, was up next on the panel and brought a refreshingly dramatic change to the proceedings of the conference. He said that talks about the formation of this treaty began around 1982 and were initiated by UNESCO and WIPO. Countries such as Brazil, Ecuador, India etc. saw this treaty as an instrument that would lead to global accessibility. He then pointed out that the super nations trying so hard to restrict the scope of the treaty and exercising the power imbalance in the international arena, reminded him of colonialism. Besides that, the treaty advocates free cross border exchange of accessible information which is in principle against the colonial centralization of international relations. Therefore, the ratification of this treaty comes to him as a tiny war victory and which is why none of the major publishing countries in the world have ratified the treaty. He is strongly of the opinion that making books of any kind available to any kind of people is always good for the publishing industry. The publishers need to understand that the treaty is now providing for legal access to the converted materials as against pirated ones which was the only option until now. However, the Technological Protection Measures are not sufficient under the treaty. They do not provide for circumventing the digital lock on electronic data, as pointed out by Mr. Raghavender earlier. He further clarified that making books available in different formats does not amount to infringement as then books available in the library would also amount to Copyright infringement. Legal provisions should be present which would allow disabled people to access materials because if these provisions were absent then people would try to obtain the same materials by infringing copyrights. As of now, there are organizations that give access to readable software like Jaws. It is not a difficult task to make any work digital, the only problem arises when the work has to be made accessible and the manner in which such accessible material is to be used. It is extremely important to create awareness as how to use the accessible material by the physically disabled. When a book is published, its copy is deposited in all the 4 national libraries and when such a book is deposited, an easier way would be to convert it into electronic medium and convert that into accessible formats. Converting print into accessible medium is extremely difficult and will be much easier once it is electronic medium. He also gave an example of publishing books under the Creative Comments License that would make copies available in the accessible format. Not only should literary works be made accessible but all websites should also be redesigned and made accessible.

At this point, Dr. Kalyan brought up an interesting technicality when he asked Mr. Prakash to clarify that although making copies of any literary work is permitted under this treaty, whether the authenticity of the so called literary work would be in question or not. Because there are a number of pirated materials doing to the rounds of the market for sighted people already, and whether converting one such pirated work in an accessible version would still stand good in law. Mr. Prakash admitted that there is ambiguity in the language of the legislation in this regard, however, a liberal interpretation of the relevant provisions of TRIPS indicates that such minor discrepancies in execution can be exempted at the outset. Something, which Mr. Raghavender, in his dutiful government responsibility, disagreed with and said that all conversions should be made from authentic documents to discourage piracy.

This culminated the first two sessions of the conference and proved to be extremely informative for the participants and audience. The post lunch session of the conference exclusively dealt with the implications of the Marrakesh treaty and Domestic Copyright Law on the Stakeholders and Beneficiaries in India. Prof. Dr. T. Ramakrishna, MHRD Chair Professor on IPR, NLSIU, was the chair/moderator. The first speaker of the afternoon session, Mr. G. Marippan, Asst. Director, Dept. for the Empowerment of Differently Abled and Senior Citizens, Bangalore, gave us all a very bare text understanding of the various provisions under the Karnataka State Government Laws along with the different schemes in place for the benefit of the stakeholders and beneficiaries of the Copyright legislations.

Mr. Gautam Agarwal from the National Federation of the Blind pointed out that less than 1% of the total published print material in the world is available in accessible format as per NFB’s records. With the help of the Marrakesh treaty, countries will overcome legal hurdles to make things accessible and enable cross border exchange. But, he did raise questions as to how efficiently can these provisions be executed to actually help the ones in need. “Law can only facilitate us and show us the path, it is us who will have to do the walking”, he said. Conversion being permitted is merely the preliminary step. But who will do the conversion? What all texts will be converted first and what later? How exactly will they be converted? How will they be circulated? These are all the greater issues that we need to address now. Over 90% of the websites that exist are not accessible and this treaty does not provide for anything to be done about that. Which essentially makes all the online information inaccessible to the disabled. To ensure the right to read to every disabled person at the same time and at a rate as available to the other people, is the simple understanding of the concept of Equal Opportunity in this regard. He reinstated that we are 8 countries short of ratifying the Treaty to make in enforceable and suggested that Indian Government should enter in a dialogue with other nations and encourage and convince them to ratify.

The next speaker was Ms. Madhu Singhal, Managing Trustee, Mitra Jyothi, Bangalore. Their NGO usually provides materials in Braille and large print for persons with disability. She very passionately spoke about sensitization of the publishers as being a very strong influential force in efficient execution of the provisions of the Marrakesh Treaty. She said that merely telling them what to do is not a one step solution. Instead, it is a long procedure which should ideally end in them being mandated into publishing the accessible copies. She also suggested that one database of accessible materials should be created for efficient usage of resources. This way, people across geographical boundaries will know what materials already exist and how to access them, thus reducing the cost of conversion.

Mr. Elumalai was the last speaker for the session and he had a handful of suggestions to make to authorities carrying out the execution of the treaty provisions. He suggested that, for example, if a soft copy of any material is provided to the NIC, then it should be their duty to make it into an accessible format. He also suggested that there could be a reward system in place for the publishing houses that publish accessible formats of their publications or giving tax benefits to people who help in conversion, distribution and access to the accessible formats. He said that disability is as disabling as you let it be. Not having functional body parts is not disability but not wanting to use the existent body parts is.

At the end of the discussion, Mr. Panesh Prakash just brought back some perspective when he asked how many people in the room had ever pirated or bought a pirated version of an accessible format of information. When no one raised their hand, he then pointed out that this is why the publishing community cannot hold ‘exploitation of accessible format by sighted people’ as a valid argument. The treaty might have other flaws but this defense does not apply. He said that there are close to 12 methods as to how a person can apply to the Ministry for obtaining accessible material and all of them are available on the official website, only, not in an accessible format. He let the irony sink in before concluding the session.

That marked the end of the conference, which at the end of the day had being enriching, to say the least. Listening to all the different stakeholders and policy makers and beneficiaries give their perspective over one piece of legislation only makes you realize the multi dimensional impact that laws have on people’s lives.

The Marrakesh treaty stood debated, discussed, dissed and devoured.

For more details visit https://cis-india.org/a2k/news/nlsiu-conference-on-access-to-copyrighted-works-for-persons-with-disability-an-enriching-experience

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

nehaa — 2015-12-25T02:22:52Z

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

This was also published on the Global Congress blog.

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

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

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

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

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

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

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

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

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

Ends.

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

Guidelines for Examination of Computer Related Inventions in abeyance

sinha — 2015-12-23T10:06:53Z

The CRI Guidelines were heavily criticised for their failure to address the ambiguities created by Section 3(k) and for expanding the scope of software patent eligibile subject-matter, inter alia. Following several representations and submissions by interested stakeholders, the Controller General has moved the Guidelines into abeyance, until discussions with stakeholders are complete and contentious issues are resolved, and is a welcome step.

CIS has consistently made submissions to the Indian Patent Office on the issue of software patenting( 2015, 2013, 2010). The latest submission was made in September 2015, in response to the Guidelines for Examination of Computer Related Inventions, 2015(“CRI Guidelines/ Guidelines”) in which we highlighted several concerns and presented solutions, and also proposed a definition of "computer programme per se".

In view of the representations made to the Patent Office, on 14th December 2015, the Controller General issued an order to keep the Guidelines in abeyance. Till the issues therein are resolved, the existing provisions on S. 3(k) of chapter 08.03.05.10 of the Manual of Patent Practice and Procedure will continue to be applicable.

The primary fault with the Guidelines lay in the fact that, legally, its scope of was in excess of section 3(k) of the Indian Patent's Act, 1970 (parent statute). The Controller General's order acknowledging the representations and submissions made in response to the Guidelines, and consequently keeping the Guidelines in abeyance is a welcome step.

You may access the order here.

For more details visit https://cis-india.org/a2k/blogs/guidelines-for-examination-of-computer-related-inventions-in-abeyance

English and Telugu Wikipedia edit-a-thon in Hyderabad

Pavan Santosh — 2015-12-31T07:49:19Z

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

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

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

CODE Session

praskrishna — 2016-01-13T13:39:43Z

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

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

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

GCIP15 Day 2: Fixing the problems in Trade Negotiations

Kartik Chawla — 2015-12-17T16:37:23Z

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

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

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

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

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

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

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

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

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

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

Secrecy of Negotiations

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

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

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

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

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

Whom Should Civil Society Target?

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

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

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

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

Need to Obtain Relevant Information

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

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

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

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

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

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

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

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

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

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

Making Technology Accessible in Indian Languages

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

IP and Public Interest as Yin and Yang

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

A BRICs FTA?

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

TRIPS Flexibilities is the Beginning, not the End Goal

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

Merging the ‘Independent silos’ of IPR and Human Rights

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

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

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

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

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

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

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

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

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

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

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

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

GCIP2015: Notes from the Inaugural Session

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

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

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

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

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

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

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

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

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

Leading Up To The GCIP: A Chat With Jayashree Watal

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Leading Up To The GCIP: A Chat With Shamnad Basheer

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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