Centre for Internet and Society

NGO Profile: Knowledge Ecology International

puneeth — 2014-03-11T16:10:57Z

As CIS’ observer in Geneva, I will be profiling NGOs and other prominent actors at the WIPO. In the first in a series of blogs, I profile the work of Knowledge Ecology International (KEI) at the various International Organisations in Geneva.

Knowledge Ecology International (KEI) is an NGO that searches for better outcomes, including new solutions, to the management of knowledge resources. KEI is focused on social justice, particularly for the most vulnerable populations, including low-income persons and marginalized groups.[1]

KEI has a strong presence in Geneva and their works revolves around the International Organisations that are located here. Their Geneva office is run by Thiru Balasubramaniam, who previously worked with the WHO.

International Organisations in Geneva

KEI is active in the World Intellectual Property Organization (WIPO), the World Health Organisation (WHO) and the World Trade Organization (WTO) in Geneva. At the WHO KEI is represented at the World Health Assembly and the WHO Executive Board. KEI was alsoan active participant at the Intergovernmental Committee on Public Health, Innovation and Intellectual Property (IGWG), which existed from 2006-08.

At the WTO, KEI is engaged in work around TRIPS council meetings- this includes technical assistance to Members and research and analysis of the outcomes of these meetings (the TRIPS Council unlike the WIPO is not open to Observers). KEI along with other NGO’s are also looking towards a possible Treaty on the Supply of Global Public Goods.

Work around WIPO

KEI is active at the following WIPO Committees: the General Assembly, the Standing Committee on the Law of Patents (SCP), the Standing Committee on Copyright and Related Rights (SCCR), the Committee on Development and Intellectual Property (CDIP). Their work in these areas is outlined below:

KEI has been actively involved in the Development Agenda at the WIPO from the beginning. They have actively participated in shaping discussions related to the transfer of technology and access to knowledge (A2K). Jamie Love, the Director of KEI was commissioned by the WIPO to author a paper on Alternatives to the Patent System. KEI had also mooted the idea for a Global Conference on Open Collaborative Research in 2003. The idea had widespread support from the scientific community, which saw fruition with the organization of the conference in January, 2014.

KEI was instrumental in the conception and passage of the Treaty for the Visually Impaired (TVI) at the WIPO. They are currently engaged in work surrounding the Broadcast Treaty and Limitations & Exceptions for Libraries and Archives. KEI’s stance[3] on the former is that the proponents of the Treaty have not made a strong enough case in favour of the Treaty and that it could potentially impede access to knowledge and create barriers to the enjoyment of the internet. On the latter, they believe that the Berne appendix must be revisited to recraft it to strengthen the education exception and that the Tunis Model Law on Copyright for Developing Countries (1976) should also be used as a way for developing countries to serve their education and libraries needs.

Publication

KEI’s publications and Research Notes can be accessed here. In addition, they run two Listserves on IP-Health and A2K which can be accessed here.

I would like to thank Thiru Balasubramaniam, KEI’s representative in Geneva for agreeing to do the interview which was the primary source of this blog.

[1]. See http://www.keionline.org/about

[2]. The proposal can be accessed here: http://keionline.org/sites/default/files/kei_wto_agreement_on_public_goods.pdf

[3].Interview with Thiru Balasubramaniam on file with the author.

For more details visit https://cis-india.org/a2k/blogs/ngo-profile-knowledge-ecology-international

New Release of IPR Chapter of India-EU Free Trade Agreement

pranesh — 2011-09-22T12:34:05Z

A draft of the IPR chapter of the EU-India FTA, made publicly available now for the first time, provides insight into India's response in July 2010 to several EU proposals on intellectual property protection and enforcement.

A draft of the IPR chapter of the EU-India FTA, made publicly available for the first time (PDF, 296Kb), provides insight into India's response in July 2010 to several EU proposals on intellectual property protection and enforcement. The consolidated draft which was prepared to serve as the basis of talks that took place from July 12-14, 2010, in New Delhi, reveals parties' negotiating stances in response to preliminary positions put forth earlier (see IPR Chapter May draft).

In particular, this draft reflects India's rejection of many EU proposals that would require India to:

exceed its obligations under the WTO's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), e.g by providing data exclusivity for pharmaceutical products;
impose radical enforcement provisions, such as liability of intermediary service providers, border measures for goods in transit, and raised norms for damages and injunctions; or
require legislative change, e.g., on data protection, and to accommodate the full EU demands on geographical indicators.

A chart compiled by CIS comparing proposed language by India and the EU in several provisions with TRIPS can be found here (PDF, 402 Kb).

Sources close to the negotiations have also confirmed that during the July talks India reiterated its refusal to go beyond TRIPS, and its refusal to discuss issues that require changes to Indian law. India appears to have also reiterated that it could not finalise FTA copyright provisions before passage of the Copyright Amendment Bill in the Indian Parliament.

It is hard to assess the current state of the negotiations on IP or to measure the outcomes of subsequently held talks without access to recent drafts, a public record of deliberations, or the schedule of full and intersessional rounds taking place. However, from press and other statements attributed to the European Commission and Indian officials after the December 2010 EU-India Summit in Brussels, it appears that:

both parties plan to conclude the FTA, the biggest ever for the EU, by Spring 2011;
the EU has not relaxed its pursuit of at least some "TRIPS plus" provisions such as data protection for pharmaceuticals
a mutually agreed solution to India's WTO case against the EU over the seizure of generic medicines may be round the corner. Its impact on the FTA is open to speculation.

Because the India-EU FTA is likely to set a new precedent for future trade agreements between developed and developing countries, and with enormous stakes for patients across the globe, India and the EU need to get it right and ensure no provision runs counter to the interests of millions of citizens.

For further information about the text, contact Malini Aisola <malini.aisola@gmail.com> or Pranesh Prakash <pranesh@cis-india.org>

For more details visit https://cis-india.org/a2k/blogs/july-2010-ipr-india-eu-fta

New Release of IPR Chapter

praskrishna — 2011-08-22T13:27:08Z

pdf

For more details visit https://cis-india.org/a2k/publications/india-eu-fta-chart.pdf

New Avenues: Media Wiki Groups

noopur — 2013-01-05T01:46:41Z

This blog post is a brief recap and snippets of my conversation with Harsh Kothari, a volunteer on Gujarati Wikipedia on what we've been doing to help with MediaWiki groups.

Earlier in December, Harsh posted an e-mail to announce India's first MediaWiki group in Ahmedabad. The group is in its final stage of approval. The e-mail also generated curiosity among community members, some of whom had discussed starting similar technical initiatives earlier on the list.

I came across the idea of MediaWiki groups while Harsh, Yuvi Panda, Sheel and I were trying to conduct a mini hackathon in Delhi. The mini hackathon was a great success and very helpful to Harsh and Sheel. That is when we realized that the best way of repeating such training sessions would be to help foster the interaction of all technical volunteers within a city. Harsh told me Quim Gil from the Wikimedia Foundation had already proposed this and it would be best if I helped him frame a proposal for a MediaWiki group in India. I was told by Yuvi and Harsh that from their discussions on IRC with Quim they all agreed that local groups would serve better than a single national group given the expanse of India.

I thought this post would lend some perspective on how we could go about supporting technical outreach in India specifically for two reasons one, because Indian language Wikipedias could massively benefit from increased functionality — new gadgets, referencing and more. Apart from this, as we all might have encountered during our outreach sessions in technical colleges, there is great interest among students in contributing to MediaWiki but not enough resources or people who could spread the word.

A local MediaWiki group could serve multiple purposes supporting the relevant language Wikipedia as well as attracting and fostering a FOSS community in their city. It could also take up the responsibility of conducting events — small and large including hackathons, workshops and more. Especially in the context of smaller cities, towns and large university campuses, setting up a technical group similar to a LUG would be very beneficial. There will definitely be challenges, as questions come by and none of these groups can follow a standard model. But, I believe a major advantage of technical groups would mean faster resolution of bugs, more frequently updated infrastructure and consequently more activity on relevant Wikipedias. I have contributed to the proposal and am helping shape the first group. In case you want to set one up in your city or university, or wish to be put in touch with people who can help please do write to me at noopur@cis-india.org.

For more details visit https://cis-india.org/openness/blog-old/new-avenues

National IPR Policy: Mapping the Stakeholders’ Response

Akshath Mithal — 2015-11-24T15:02:17Z

The first draft of the National IPR Policy was released last December. Following that, a plethora of comments and suggestions was submitted to the DIPP on the same. In this post, I will focus on the comments that were available online and analyse the trends that I was able to find in the same and also highlight the many suggestions put forth by the stakeholders.

Nehaa Chaudhari provided inputs and feedback and also edited this post.

I. Introduction

On 24^th December 2014, the IPR Think Tank constituted by the Department of Industrial Policy and Promotion (DIPP) officially released the first draft of the National IPR Policy. Following this, in a press release dated 30^th December, 2014, the DIPP called for comments and suggestions on the draft from all stakeholders. CIS, through an RTI, asked the DIPP to disclose all the comments received by it. However, the DIPP’s reply, rather vague, stated that it is not in the position to provide the same. (Further details here).

II. Research Methodology

In this post, I have compiled and compared the various submissions that I was able to find online in a SpicyIP post and will provide an analysis of the same.

The spreadsheet that I have created contains a compilation of the many issues that were raised by 15 stakeholders of various affiliations (organisations/scholars/unions). This spreadsheet was put together after reading each submission carefully, and summarizing the same. After dividing the contents of the submissions into the various issues, they were put under certain heads in this sheet. Though there were a few ideas covered by certain submissions that have not been tabulated, all the major and important ones have been covered, in my opinion.

On the basis of this spreadsheet, the following observations have been made on the feedback of the many stakeholders on the various aspects of the draft.

III. Stakeholders - A Statistical Analyis

A total of 15 submissions were taken into consideration for the purpose of this post, and all of them applauded the government for recognizing of the need for a comprehensive policy on IP and the DIPP’s efforts to give the public a chance to play a role in the process of formation of a policy that would affect the country and its economy significantly. However, each submission had its own set of criticisms and suggestions to the various aspects dealt with by the policy. In my analysis there are three broad categories that the stakeholders can be divided into:

Research organisations/NGOs.
Industrial representative bodies/Political organisations.
Scholars/Academia.

A representation of the stakeholders and the categories that they belong to has been produced below.

Categories	Stakeholders
Research organisations/NGOs	Centre for Internet and Society (CIS); Consumer Unity & Trust Society (CUTS); Software Freedom Law Centre (SFLC); Centre for Law & Policy Research (CLPR).
Industrial representative bodies/Political organisations	Intellectual Property Owners Association (IPO); National Association of Manufacturers (NAM); International Trademark Association (INTA); IP Federation – UK; ICC’s Business Action to Stop Counterfeiting and Piracy (BASCAP); Swadeshi Jagaran Manch (SJM); American Chamber of Commerce (AmCham – India).
Scholars/Academia	Centre for Intellectual Property and Technology Law – O.P. Jindal Global University (CIPTEL); S. Ragavan, B. Baker, S. Flynn; Adv. Ravindra Chingale – NLU Delhi; Prof. N.S. Gopalakrishnan & Dr T.G. Agitha – CUSAT.

Out of the comments studied, the largest chunk of stakeholders (46.67%) belonged to the industrial/manufacturing sector, with the other two categories comprising only 26.67% each. This could be attributed to the fact that a country’s IPR policy has a very vital role to play in influencing an industrial firm’s strategy and an unsatisfactory policy could have a serious and adverse effect on the profit-making abilities of an industry.

IV. IP - Innovation / Growth Nexus

There are a total of 13 themes that have been identified in the spreadsheet, and out of these 13, the one that the largest number of stakeholders has commented on is the question of there being nexus between intellectual property, innovation and growth. Eleven out of the fifteen stakeholders have given their opinion on this issue.

The opinion on this theme is not very uniform. Some organisations are of the opinion that there is a strong correlation between robust IPR protection mechanisms and innovation in a country, and thus there is a resultant benefit to the economy of the country. For example, the IP Federation of UK claimed that with a strong IPR regime, there is a greater inflow of FDI and R&D expenditure in countries, thus benefitting the country’s economy. On the other hand, there are some stakeholders who believe that there is no nexus and that the underlying assumption made by the draft policy is not backed by any research or evidence. The Centre for Internet and Society (CIS), for example, even cites evidence in its submission to oppose this assumption. The smallest chunk of stakeholders suggests to the Think Tank that in the current draft, there is not enough authority cited by them, and thus, there should be some research that must be done in order to give this assumption some backing. CIPTEL, a research centre based in OP Jindal Global University, stated that there should be a transparent survey conducted on this issue by a neutral agency.

The figure below would give the reader a comparative analysis of the responses from the stakeholders on this particular theme.

All the research organisations/NGOs that presented their views on this assumption are in opposition to the same and have proposed to the Think Tank that it should amend the contents of the policy after taking this incorrectly-made assumption out of the mix.

A majority of the industrial bodies have supported the existence of a nexus and have stated that by enforcing stronger IPR protection laws, the innovative/inventive environment of a country develops and this in turn encourages investors, which culminates into a rise in the growth of the economy.

Scholars and academia have a difference of opinion amongst themselves and there is no uniform pattern that can be seen in their responses to this issue.

The only political organisation in this analysis, the Swadeshi Jagaran Manch opposes the assumption and states that the policy has turned a blind eye to the development of the country and that there is no analysis on whether there is any effect of the proposed strengthening of IP protection on the various sectors of the economy.

V. International Treaties

The policy, in its introduction states the following stance on negotiation of international treaties and agreements – “In future negotiations in international forums and with other countries, India shall continue to give precedence to its national development priorities whilst adhering to its international commitments and avoiding TRIPS plus provisions.”

On this general theme, 9 out of 15 stakeholders have submitted their comments to the Think Tank. Out of these 9, the category-wise division of the stakeholders is represented by the diagram below.

The opinion of the stakeholders on this issue varied and there were broadly 3 kinds of responses that were found in the analysis. More than half of these responses (56%) suggested that all negotiations of treaties must be done transparently, with proper consultation of all stakeholders. CUTS, for example, recommended that to increase the confidence of the people in the country’s IP regime, the negotiations must be done with the opinion of all stakeholders being taken into consideration. They also cautioned the government to make sure that any future agreements do not contain any TRIPS-plus provisions. The second category applauded the policy’s pro-global stance towards IPR developments, and has recommended certain treaties that India must sign in order to strengthen its regime (details in spreadsheet). Only one stakeholder, the National Association of Manufacturers of the USA suggested that India’s stance of avoiding TRIPS-plus agreements is in contravention to its objective of keeping up with global IP developments. This point of view is clearly in favour of the USA as TRIPS-plus provisions have always been more beneficial to developed countries than developing countries like India.

Thus, it can be said that almost 90% of stakeholders, from across categories, are satisfied with India’s pro-international stance, and only want the government to be cautious and consult the public before signing treaties on IPR.

VI. Utility Models

A provision to legalise utility model protection was also a part of the draft policy. Utility models or petty patents are suggested by the policy in order to protect parties like MSMEs and their many innovations which may not satisfy the requirements of regular patent protection and thus losing out from IPR protection, leading to benefits not being reaped properly from these inventions.

This provision was commented on by eight of the 15 stakeholders, making it a little above half of the total. A category-wise division can be found below.

The opinion on utility models was majorly negative across categories, with 75% of the stakeholders believing that utility model protection must be given a second thought and many drawbacks were pointed out such as frivolous litigation, uncertainty in the market, and a drop in the quality of innovation registered in the country. A review of how effective utility model laws are in other countries was suggested before making any final decision. Only 2 out of the 8 stakeholders supported the provision for petty patents and stated that this would give a good means of protection to ‘jugaad’ innovations that are very popular in India and thus believed that such laws would help increase the innovation levels in the country.

VII. Public Funded Research Labs and Universities

Only four stakeholders had a say on the issue of grants to Government labs and universities, these organisations being Indian research organisations and academia. The opinion varied from party to party and the Centre for Internet and Society argued that if there was a rise in IP protection for government funded research, it would be against the vision of free and open access to research funded by taxpayers’ money.

The other three stakeholders, namely CIPTEL, CUTS and Adv. Ravindra Chingale emphasised on the importance of merit-based funding instead of funding on the basis of whether an organisation is Government-owned or not. Two of these also suggested that there must be a system of contact between industry and academia to incentivise and utilize innovation properly.

VIII. Limitations and Flexibilities

A very important aspect of any IPR regime is the presence of limitations, exceptions and flexibilities on the rights protected by IP laws, as it allows for the appropriate amount of information being shared for free or at reasonable costs, for furtherance of public interest.

On this vital issue, most stakeholders had a say and the trends of the feedback on the limitations and flexibilities on IP protection were as expected. There were two broad sets of opinions that could be gathered from the analysis, and while there was a majority (62.5%) of organisations and people who believed that the government must keep up its efforts of providing a good framework for exceptions to IPR protection with measures like compulsory licensing being put in place in order to protect broader interests of the country such as access to reasonably priced medicines and other necessities. The only recommendation that they had was that these measures should be decided after a careful analysis of what the economy really needed in order to develop further.

The opposition, quite understandably came from international industrial bodies representing manufacturers and intellectual property owners who argued that the policy of limitations to IPR protection is discouraging those who want to invest in the country and that it hurts the business of foreign-based companies that operate in India or want to do so in the near future as their intellectual property may not be protected adequately with such a policy in place.

The figure above clearly points out that none of those against limitations being placed on IP protection had an Indian background and all those in favour of the same were primarily Indian-based organisations and academics, with the exception of the American scholars – S. Ragavan, B. Baker, and S. Flynn.

IX. Trademarks

Only a single stakeholder, the International Trademark Association, was interested in the issue of trademarks. This can be attributed to the fact that this is the only association out of all the stakeholders having a direct interest in trademark law and policy. The organisation suggested that there should be a greater amount of clarity in the trademark examination process and also suggested that there should be an increase in the number of examiners to make the process of trademark registration quicker.

X. Trade Secrets

In objective 3 of the draft policy, the Think Tank suggests that to strengthen the IP framework of the country, trade secret protection must be introduced as a formal law. India, today, does not have a law to protect sensitive trading information and there needs to be a formalised contract for there to be any relief for leaking of such information.

The stakeholders supporting the enactment of trade secret legislation were interestingly all industrial bodies representing international companies and firms. Only 2 parties expressed their worries about such a law, and argued that there must be more backing to make this recommendation more convincing. A graphical representation of the stakeholders is given below to provide a clearer picture of the responses.

This chart portrays clearly that international bodies are insistent on the enactment of a trade secret law as this would help incentivise knowledge sharing in the country. In many countries, trade secret protection is formalised legally and these stakeholders argue that for foreign multinationals to feel confident while sharing sensitive information with others in India, the government must follow in the footsteps of such countries and legislate on this matter soon.

XI. On Specialised Courts

A common suggestion found across 5 of the 15 stakeholder responses was for the creation of a specialised IP judiciary that would be formed by widening the patent bench that was proposed in the draft policy. Such a court would deal only with issues of intellectual property and would consist of judges having special knowledge in the various branches of IP law.

XII. Conclusion

The draft policy was released almost a year ago, and since then, much discussion has taken place on the same, with many contradictory opinions and suggestions on the various aspects of the policy. It can be observed from this compilation that industrial bodies have been insistent on stronger IP protection and more incentives to multinationals to invest in India in the form of trade secret legislations, keeping limitations such as compulsory licensing to a minimum, et al.

On the other hand, a trend could be seen of research organisations and academia having a view that was more in the interest of the public and with the Indian scenario taken into consideration, with the criticism of utility models, TRIPS-plus agreements, and by raising the question of whether the assumption underlying the draft of there being a link between IP protection and a rise in innovation had any basis whatsoever. This post, however, is only a glimpse of the stakeholders’ responses owing to the fact that the DIPP has not officially released the submissions made to it and only the ones that were available online have been taken into consideration.

It is only a matter of time that the Think Tank releases the final policy and one shall hope that this tedious process of seeking comments and suggestions will bear any fruit with the policy being a balanced one and being aimed ultimately towards the benefit of the country as a whole.

For more details visit https://cis-india.org/a2k/blogs/national-ipr-policy-mapping-the-stakeholders2019-response

National IPR Policy Series: What Have the Sectoral Innovation Councils Been Doing on IPR

nehaa — 2015-08-13T01:36:35Z

In this post, Nehaa Chaudhari and Varun Baliga delve into the question of what the mandate of the Sectoral Innovation Councils is, what its activities are, and what vision for IPR development in India has it put forth. An RTI Application has been filed by CIS to attain information on these issues.

Thanks to Amulya.P for her support on this.

The National Innovation Council [“NIC”] was constituted by the Prime Minister’s Office “to create a roadmap for innovation for the ‘Decade of Innovation - 2010-2020’ focussing on five key parameters namely Platform, Inclusion, Eco-system, Drivers and Discourse”.[1] Pursuant to the creation of the NIC, Sectoral Innovation Councils [“SIC”][2] were established in order to promote innovation in particular sectors.

The focus of this post is on the SIC established by the Department of Industrial Policy and Promotion [“DIPP”] – a 12 member body on Intellectual Property Rights [“IPR”]. What is the mandate of this body? What have been its activities over the few years of its existence? What vision does it have of the development of IPR in India over the course of this critical decade?

In 2012, the body drafted a strategy document that did three things: an overview of the contemporary IP system, stakeholders’ involved in the protection and commercialization of IPRs and recommendations for an IPR Strategy.[3] This ambitious document merits significant work in order for actionable recommendations that will form the basis for a coherent IPR Strategy. The body has the burden to show how its work will be consistent with that of the IPR Think Tank and the National IPR Policy. In light of the circulation of the 2012 first draft of the strategy, Ajay Dua, former Secretary of the DIPP commented that the strategy would help in improving trade and capital flows. CIS has noted the increasingly trade-oriented approach to IPR in a previous comment on the US 301 Report.[4] However, the work and action that the SIC has taken does not reflect any of these ambitious documents or statements. In limbo for the past three years, we know very little about its functioning.

First, we know the Terms of Reference of the SIC.[5] The SIC has the mandate to formulate the National IPR Strategy to “address key concerns of sustainable development, inclusive growth and food security”. Further, formulation of medium term policy objectives that would provide the proper context to the strategy itself. Significantly, the SIC is required by the Terms of Reference to submit a roadmap within six months of its establishment.

The IPR Think Tank constituted by the DIPP also has a similar mandate, in so far as the Terms of Reference for the IPR Think Tank includes tasks such as drafting the National IPR Policy, identifying areas in IPRs that require further studying, creating views on the implications of demands by various negotiating partners, keeping the government informed about developments in IPR law, advising the government on best practices to be followed in different government offices that work with IPRs, advising the Ministry on solutions to any anomalies in IPR legislation, examining issues raised by industry associations and those that may have appeared in the media and providing suggestions to the Ministry on the IPR issues of the day.[6]

This raises questions of whether the SIC is required at all and what if any purpose it serves that is not already covered by the National IPR Think Tank.

Second, we know the minutes of the meeting of the SIC on IPRs dated 30 April 2013.[7] No further information of any other meetings, if any, is provided by the DIPP or the NIC. The minutes are an insightful window into the functioning of this body. Of the 12 members of the SIC, only 6 were present at the meeting. Of these 6 individuals, 2 – Mr. Sushil Kumar Jain and Professor Surendra Prasad – were not present in person but sent representatives instead. This was noted in a slightly disapproving tone by the body: “It was agreed that in future since members have been nominated by name, they may not send representatives and may instead provide their valuable views in the meeting”. We do not know whether future meetings, if any, witnessed better attendance.

In conclusion, the dormant nature of the SIC can only be probed further using the tools of the Right to Information Act [“RTI”]. What, however, is the harm of an institution like the SIC that is doing nothing. At a pragmatic level, it is a drain on public resources and time. More egregiously, on a principled level, such bodies serve to only legitimize contemporary trends in IP discourse. We have explored some of these trends in past blog posts.[8] Whether it is its trade-oriented nature or the undue emphasis on rights-holders, bodies like the SIC serve to entrench the alienation of the raison d’etre, the founding principles, of IP – innovation and creativity for all.

Annex I – RTI filed by CIS with the DIPP seeking information on the functioning of the NIC

26 June 2015

To,

Central Public Information Officer,
IPR I, II, III, IV, V and VI Sections,
Room No. 260,
Udyog Bhawan, New Delhi.

Subject: Request for Information under Section 6 of the Right to Information Act, 2005 regarding Functioning of the Sectoral Innovation Council on Intellectual Property Rights under the National Innovation Council

Dear Sir/Ma’am,

Full Name of the Applicant: Nehaa Chaudhari
Address of the Applicant: Centre for Internet and Society, G-15 Top Floor, Hauz Khas, New Delhi - 110016. Mailing Address: nehaa@cis-india.org
Information Required: Context

Please consider this an application for information under Section 6 of the Right to Information Act, 2005.

Therefore, I seek information on the following:

a) How many meetings has the Sectoral Innovation Council [“SIC”] of the DIPP on Intellectual Property Rights [“IPR”] held since its establishment?

b) Please supply minutes and all related documents of all its meetings?

c) How much are members of the SIC paid? Are members paid on the basis of time or number of meetings held?

d) Has the SIC done any work or produced any outputs other than the 2012 draft of the National IPR Strategy?

This is to certify that I, Nehaa Chaudhari, am a citizen of India.

A fee of Rs. 10/- (Rupees Ten Only) has been made out in the form of a demand draft drawn in favour of “Public Information Officer, ..................................................”

Please provide me this information in electronic form, via the email address provided above.

[1] http://innovationcouncilarchive.nic.in/index.php?option=com_content&view=article&id=74&Itemid=47

[2] http://innovationcouncilarchive.nic.in/index.php?option=com_content&view=article&id=25&Itemid=18

[3] http://dipp.nic.in/english/Discuss_paper/draftNational_IPR_Strategy_26Sep2012.pdf

[4] http://cis-india.org/a2k/blogs/us-301-report-a-myopic-view-of-ip-rights

[5] http://innovationcouncilarchive.nic.in/index.php?option=com_content&view=article&id=74&Itemid=47

[6] http://pib.nic.in/newsite/PrintRelease.aspx?relid=110790

[7]http://innovationcouncilarchive.nic.in/images/stories/sectoral/minutes/IPRs%20-%20Minutes%20of%20the%20meeting%20-%2020April2013.pdf

[8] http://cis-india.org/a2k/blogs/us-301-report-a-myopic-view-of-ip-rights

For more details visit https://cis-india.org/a2k/blogs/national-ipr-policy-series-what-have-sectoral-innovation-councils-been-doing-on-ipr

National IPR Policy Series: RTI Requests by CIS to DIPP + DIPP Responses

nehaa — 2015-04-26T08:47:00Z

In earlier blog posts, we have discussed the development of India’s National IPR Policy (“the Policy”); comments by the Centre for Internet and Society (“CIS”) to the IPR Think Tank before the release of the first draft of the Policy and CIS’ comments to the IPR Think Tank in response to the first draft of the Policy. Continuing our National IPR Policy Series, this article documents our requests to the Department of Industrial Policy and Promotion (“DIPP” / “the Department”) under the Right to Information (“RTI”) Act, 2005 and the responses of the Department.

View the PDF here.

Details of RTI Requests Filed by CIS

In February, 2015, CIS had filed three RTI requests with the DIPP. The first request was four-pronged, seeking information related to first, the process followed by the Department in the creation of the IPR Think Tank; second, details and documents of a meeting held to constitute the Think Tank; third, details and documents of all/multiple meetings held to constitute the Think Tank; fourth, details of a directive/directives received from any other Government Ministry/authority directing the constitution of the Think Tank and fifth, the process of shortlisting the members of the Think Tank by the DIPP.

In our second RTI request, first, we requested details of the process followed by the Think Tank in the formulation of the Policy; second, we requested all documents relating to a meeting held for the formulation of the Policy; third, we requested all documents held for multiple meetings for the creation of the Policy and fourth, we requisitioned all suggestions and comments received by the Think Tank from stakeholders before the release of the Policy, that is, those suggestions/comments received in November, 2014.

In our third RTI request, also filed on also filed in February, 2015, we had asked the DIPP to indicate all suggestions and comments received by the IPR Think Tank from different stakeholders in response to the first draft of the National IPR Policy (to have been submitted on or before January 30, 2015 as per DIPP’s Public Notice).

Responses by DIPP to CIS' RTI Requests

The DIPP replied to our three RTI requests in multiple stages. At first, in a letter dated 12 February, 2015, we were directed to resubmit our application , seemingly because we hadn’t addressed the Postal Money Order to the correct authority, and were directed to do the same. Funnily enough, we received three other responses – one for each of our RTI requests (the first of these is not dated; the second one is dated 19 February, 2015 and then revised to 26 February, 2015; and the third is also dated 26 February, 2015).

The First Response: On the Constitution of the Think Tank

In the first of their responses to these requests, the Department has grouped our queries into five questions and provided a point-wise response to these questions, as under:

Please indicate in detail the process followed by the Department of Industrial Policy and Promotion for the constitution for an IPR Think Tank to draft the National Intellectual Property Rights Policy under Public Notice No. 10 (22)/2013 –IPR-III dated November 13, 2014 (sic).

In its response the Department notes that it convened an interactive meeting on IPR issues which was chaired by the Minister for Commerce and Industry (Independent Charge), i.e., Ms. Nirmala Sitharaman. As per the Department’s response, this meeting was held on 22 September, 2014 (“the Meeting”) and was aimed at discussing issues related to IPRs, including finalization of the Terms of Reference for IPR Think-Tank proposed to be established (sic.) The Department also notes that representatives from various Ministries/Departments, Member of various Expert Committees constituted by the Department, besides IP experts and other Legal Practitioners (sic) were invited to the meeting. The Department then states that the composition of the Think Tank was decided on the basis of the discussions held in the department after the said interactive Meeting (sic).

If there was a meeting held to decide on the same, please include all necessary documents including the minutes of the meeting, records, documents, memos, e-mails, opinion, advices, press releases, circulars, orders etc in which the constitution of the aforesaid mentioned IPR Think Tank was decided (sic).

The Department has attached the Minutes of the Meeting held on 22 September, 2014 (“the Minutes”) and states that there were no documents or papers that were circulated at this meeting and that the participants were asked to present their views on various IP issues at this meeting.

Excerpts from the Minutes

The Secretary of the Department (Shri Amitabh Kant) refers to a (then) recent announcement made by the Minister of State for Commerce and Industry (“the Minister”) on the formulation of the National IPR Policy and the establishment of an IPR Think Tank and states that the meeting had been convened to discuss on various IPR issues with IP experts and legal practitioners so that it would provide essential inputs to the policy needs of the department (sic). The Minutes report that Mr. Kant further stated that the objective of the department was to have a world class IP system and that this included a comprehensive National IPR Policy and which takes care of various issues like IP creation, protection, administration and capacity building (sic). He is also reported to have said that such a stakeholder interaction was important for the government to seek inputs.

The Minister is reported to have said that the purpose of the meeting was to constitute an IP Think Tank that would regularly provide inputs to all IP policy needs of this department as well as advice government in disparate legal aspects (sic). The Minutes also report her to have said that the department would finalize an IP policy within ninety days of the Meeting, based on the inputs of the participants.

According to the Minutes, various issues emerged from the discussion. Inter alia, these include first, that the proposal to constitute the Think Tank was a welcome measure, along the lines of similar initiatives taken by Australia, South Kora, the United Kingdom and the United States of America; second, that in order to remove misconceptions held by foreign stakeholders about IP enforcement in India, there was a need to highlight judgments of Indian courts that were favorable to foreign stakeholders and MNCs; third, that the national policies on telecom, manufacturing and IP ought to be integrated; fourth, that the focus of the Policy should be increase in creation of IP including commercialization of IP and strengthening human capital and IP management and fifth, that empirical studies should be conducted to examine the feasibility of Utility Models protection, that there was a need to revise the law on Geographical Indications and that the Policy should include protection for traditional knowledge and guidelines for publicly funded research.

The Minister is then said to have identified six major areas during the discussion, including IP institution, legislation, implementation, public awareness, international aspects and barriers in IP growth as areas to be covered under the Policy.

Who attended the Meeting?

Attached with the Minutes was also a list of participants who attended the Meeting. Out of the thirty six attendees, I have not been able to locate a single individual or organization representing civil society. Participants include representatives from various government departments and ministries, including inter alia, the DIPP, the Department of Commerce, the Ministry of External Affairs, the Ministry of Information and Broadcasting, the Copyright Division from the Department of Higher Education of the Ministry of Human Resources Development, the Office of the Controller General of Patents, Designs and Trademarks and the Ministry of Culture. The Meeting was also attended by representatives of corporations and industry associations, including FICCI, CII and Cadila Pharmaceuticals; in addition to representatives from law firms including Luthra and Luthra, K&S Partners and Inventure IP and academics including, inter alia, faculty from the Asian School of Business, Trivandrum, Indian Law Institute, Delhi, Tezpur University, Assam, National Law University, Delhi, NALSAR University of Law, Hyderabad, the Indian Institute of Technology, Madras and the National Law School of India University, Bangalore.

If there were multiple meetings held for the same please provide all necessary documents including the minutes of all such meetings, records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders etc. for all such meetings held (sic).

The Department answered, “No”; which I’m taking to mean that there weren’t other meetings held for the formulation of the Think Tank or the Policy. This is interesting, because the Minutes (referred to earlier) speak of another inter-ministerial meeting including IP experts and legal practitioners slated to be held around the 10^th of October, 2014, to discuss the framework of the Policy.

If a directive or directives were received by the Department of Industrial Policy and Promotion from any other government body to constitute such a think tank, please provide a copy of such a directive received by the DIPP from any Government authority, to constitute such a Think Tank (sic).

The Department answered, “No”; which I’m taking to mean that there was no communication received by the Department to constitute this Think Tank.

Please indicate in detail the process of shortlisting the members of the IPR Think Tank by the Department of Industrial Policy and Promotion or any other body that was responsible for the same (sic).

The Department replied that the answer to this was the same as that to the first question.

The Second Response: The Drafting of the Policy

The second of the Department's responses to our requests came in the form of separate responses to each of our four questions, as under:

Please indicate in detail the process followed by the IPR Think Tank constituted by the Department of Industrial Policy and Promotion via Public Notice No. 10 (22)/2013-IPR-III dated November 13, 2014 while framing the first draft of the National IPR Policy dated Dec. 19, 2014 (sic).

The Department stated that the IPR Think Tank conducted its meetings independently without any interference from the Department. The Department then stated that the Think Tank had received comments from stakeholders via a dedicated email id and conducted the interactive meeting with stakeholders while framing the draft on the National IPR Policy.

If there was a meeting held to decide on the same, please include all necessary documents including the minutes of the meeting, records, documents, memos, e-mails, opinion, advices, press releases, circulars, orders, suggestions etc. related to drafting of such National IPR Policy Think Tank chaired by Justice Prabha Sridevan (sic).

The Department replied that since the IPR Think Tank had decided its process by themselves (sic), the Department do not have the minutes of the meeting etc. conducted by the IPR Think Tank (sic). It attached with its reply a copy of the press releases announcing the composition of the Think Tank and asking stakeholders to submit comments to the first draft of the Policy.

If there were multiple meetings held for the same, please provide all necessary documents including the minutes of all such meetings, records, documents, memos, e-mails, opinions, advices, press releases, circulars, order suggestions etc. for all such meetings held (sic).

The Department replied that the response to this was the same as that to the earlier question above.

Please provide all the suggestions and comments received by the IPR Think Tank from stakeholders after the DIPP issued Public Notice No. 10/22/2013-IPR-III dated 13.11.2014 asking for suggestions and comments on or before November 30, 2014 (sic).

The Department replied that the comments and suggestions were received by the Think Tank directly and that therefore, the Department was not in a position to provide the same.

The Third Response: Stakeholder Comments

In its third and final response to our requests, the DIPP replied to our query as under:

Please indicate all the suggestions and comments received by the IPR Think Tank by different stakeholders on or before January 30, 2015 on its first draft of the National Intellectual Property Policy submitted by the IPR Think Tank on December 19, 2014.

The Department said that the suggestions and comments on the draft on National IPR Policy have been received by the IPR Think Tank directly. As such this Department is not in a position to provide the same (sic.).

Observation on the DIPP's Responses

Prima facie, the responses by the Department are rather curious, leading to a range of oddities and unanswered questions.

Who Will Watch the IPR Think Tank

In its response to our first RTI request, the Department quite clearly stated that it decided the composition of the IPR Think Tank based on discussions in a meeting that it convened, which was also chaired by the Minister of State for Commerce and Industry, the parent ministry of the DIPP. In the same response, the Department also stated that it had not received any directive from any other ministry/government department directing the constitution of the IPR Think Tank, leading to the conclusion that this decision was taken by the DIPP/the Ministry of Commerce and Industry itself. Subsequently however, the Department justified its refusal to furnish us with documents leading to the development of the first draft of the National IPR Policy (contained in our second RTI request) by stating that the IPR Think Tank conducted its business without any interference from the Department, and that the Department did not have access to any of the submissions made to the IPR Think Tank or any of the internal minutes of the meetings etc. that were a part of the process of drafting the IPR Policy.

Various press releases by the DIPP have stated that it has constituted the IPR Think Tank, and that the purpose of the IPR Think Tank would be to advise the Department on IPR issues. Visibly, the Department intends for the IPR Think Tank to play an active role in shaping India’s IP law and policy, including suggesting amendments to laws wherever necessary. It is concerning therefore that on the question of accountability of the IPR Think Tank, the DIPP remains silent. It may be argued perhaps, that the IPR Think Tank constitutes a ‘public authority’ under Section 2(h)(d) of the Right to Information Act, 2005 (“RTI Act”). In that case, the IPR Think Tank would have to fulfill, inter alia, all of the obligations under Section 4 of the RTI Act as well as designate a Public Information Officer. Alternatively, given that the IPR Think Tank has been constituted by the DIPP and performs functions for the DIPP, the Public Information Officer of the DIPP would have to furnish all relevant information under the RTI Act (including the information that we sought in our requests, which was not provided to us).

Who are the Stakeholders

Even a preliminary look at the list of participants at the Meeting (based on which the Department constituted the IPR Think Tank) reveals that not all stakeholders have been adequately represented. I haven’t been able to spot any representation from civil society and other organizations that might be interested in a more balanced intellectual property framework that is not rights-heavy. The following chart (based on a total sample size of 36 participants, as stated in the list of participants provided to us by the DIPP) will help put things in perspective.

What Could've Been Done?

Setting aside arguments on its necessity, let us for the moment assume that this drafting of the National IPR Policy is an exercise that needed to have been undertaken. We must now examine what might possibly be the best way to go about this.

In 2014, the World Intellectual Property Organization (“WIPO”) (based on whose approach the Policy seems to have been based- at least in part), produced a detailed Methodology for the Development of National Intellectual Property Strategies, outlining a detailed eight step process before a National IP Policy was implemented in a Member State. While this approach is one to be followed by the WIPO and might not be entirely suited to India’s drafting exercise, specific sections on the national consultation process as well as the drafting and implementation of national intellectual property strategies might prove to be a decent starting point.

(More on this in an upcoming article).d

Where Do We Go From Here?

The DIPP’s responses have left me with more questions, probably the subject of more RTI requests. Is the IPR Think Tank a public authority for the purposes of the Right to Information Act, 2005? To whom should questions of informational accountability of the IPR Think Tank be addressed, if there is no information available on the IPR Think Tank, and the DIPP claims to have no access to it? Do we need to re-examine the draft National IPR Policy given that there has been inadequate representation of all stakeholders? What were the suggestions made by different stakeholders, and (how) have these been reflected in the first draft of the Policy? Was there an evaluation exercise conducted before the first draft of the Policy was released in order to better inform the formulation of the Policy?

We will be looking at these and other questions as they arise, and sending some of these to the DIPP in the form of RTI requests. (Watch the blog for more).

For more details visit https://cis-india.org/a2k/blogs/national-ipr-policy-series-rti-requests-by-cis-to-dipp-dipp-responses

National IPR Policy Series: Quick Observations on the Leaked Draft of the National IPR Policy

nehaa — 2015-11-19T05:13:14Z

Earlier this week, the “Don’t Trade Our Lives Away” blog leaked the supposed final draft of India’s National IPR Policy (“leaked draft”). This article presents quick comments on this leaked draft.

The leaked draft (which is not final) is available here. The only official document that the Department of Industrial Policy and Promotion (“DIPP”) has released so far is the First Draft of the National IPR Policy (“First Draft”).

CIS has tracked these developments since the beginning. We have submitted preliminary comments, critical comments to the First Draft, sent multiple requests under the Right to Information Act, 2005 (“RTI requests”) to the DIPP and published their responses, discussed the IPR Think Tank as a public authority under the RTI Act, analysed the process compared to recommendations by the World Intellectual Property Organization (“WIPO”), compared the First Draft to an earlier National IPR Strategy[N1] , written a letter to the Think Tank and have now begun to track the work being done by the Sectoral Innovation Council on IPR, also established under the DIPP. At the time of writing this post, we have been unable to locate comments to the First Draft made available by the DIPP.

Since the release of the First Draft in December, 2014, this leaked document has been the first look at an updated IPR Policy for India. Not much seems to have changed since December, 2014 and this new leaked draft (which is dated April, 2015), barring the inclusion of some Special Focus Areas.

Perhaps one of the strongest criticisms of the First Draft had been that it supposed a nexus between IP and innovation, and various stakeholders had been quick to point this out as problematic, and fallacious. Unfortunately, since the language of the new draft has barely changed (I have managed to count only two-three additions), this remains the underlying issue in the new draft as well.

What continues to be worrying in both drafts is sweeping references of benefits of IP to India’s socio-economic development. What constitutes this development and how IPR, and specifically the IPR Policy will achieve it is anyone’s guess, given that there are no references to studies undertaken to assess how IPR contributes to socio-economic development, specifically in India.

Here are some other quick comments:

In the first objective on IP Awareness and Promotion, the new draft includes an additional recommended step – that of engaging with the media to ‘sensitize them on IP issues’ (sic.). Given that this is under a broader objective of encouraging IP promotion, I am inclined to believe that this could be interpreted as telling the media to print positive things about intellectual property and refrain from criticizing intellectual property (that seems to be the theme of this entire document!). What does it mean to ‘sensitize’ the media about intellectual property?
In the second objective, on IP creation, the leaked draft contains a recommendation to conduct a study to assess the contribution of various IP based industries to the economy – including employment, exports and technology transfer. No other details have been provided in the draft.
Also in the second objective, the new draft makes a mention of improving the IP output of universities, national laboratories etc. The new draft proposes to encourage and facilitate the acquisition of intellectual property rights by these labs and institutions, whereas the earlier draft recommended the protection of IPRs created by them.
In the covering letter to the leaked draft, Justice Sridevan states that the final draft includes a discussion on key focus areas – creative industries, biotechnology, ICT, energy, agriculture, health, geographical indications (“GIs”) and traditional knowledge (“TK”). These have been discussed at the end of the new draft.
Limitations and exceptions remain confined to an area of future study/research for future policy development. The ‘Creative Industries’ section of the leaked draft makes a mention of the significance of limitations and exceptions to safeguard access to knowledge and information; and the need to balance user rights and property rights. One would have liked to see this discussed more substantively in the policy and not confined only to a paragraph in the section on ‘Creative Industries’.
In a welcome move, the policy draft (new) seeks to promote the adoption of free and open standards and free and open software in the ‘Information and Communication Technology and Electronics’ section.

With the DIPP Secretary’s latest update that the new policy draft will be released in about a month’s time, one will have to wait and see what the final draft looks like.

For more details visit https://cis-india.org/a2k/blogs/national-ipr-policy-series-quick-observations-on-the-leaked-draft-of-the-national-ipr-policy

National IPR Policy Series : Who is a 'public authority' under the RTI Act?

nehaa — 2015-05-21T17:03:30Z

In this blog post, CIS intern Devrupa Rakshit examines case law with respect to the understanding of a 'public authority' under the Right to Information ("RTI") Act, 2005.

In earlier blog posts, India’s National IPR Policy has been discussed at length. In February 2015, three RTI applications were made by the Centre for Internet and Society to the Department of Industrial Policy and Promotion (hereinafter, the “DIPP”). The response of the DIPP to these requests could be described as vague, at best. A detailed blog post by Nehaa Chaudhari discusses the questions, the responses and the other nuances of this endeavour at length.

Having failed repeatedly in our attempts to retrieve information pertaining to the IPR Think Tank that was, essentially, in charge of formulating the National IPR Policy, we put forth an RTI request to the IPR Think Tank earlier this month. The response is awaited, at the moment. In the meantime, we have undertaken the task of finding out whether the IPR Think Tank can indeed be classified as a “public authority” under the Right to Information Act, (hereinafter, the “RTI Act”, or simply the “Act”) because if it can, then it must have a Public Information Officer as per Section 5 of the Act.

The RTI Act defines “public authorities” in Section 2(h) –

A “public authority” means any authority or body or institution of self- government established or constituted –

(a) by or under the Constitution;

(b) by any other law made by Parliament;

(c) by any other law made by State Legislature;

(d) by notification issued or order made by the appropriate Government, and includes any –

(i) body owned, controlled or substantially financed;

(ii) non-Government organization substantially financed, directly or indirectly by funds provided by the appropriate Government.

A. Who is a "Public Authority"?

In 2011, the Punjab-Haryana High Court[1] while deciding on 24 civil writ petitions against the Central/State Information Commissioners had held that if any person, or body, satisfies the following conditions then it would "squarely fall within the ambit and scope of definition of 'public authorities'" and would be "legally required to impart the indicated information as envisaged under the RTI Act" -

(i) the institution cannot come into existence and function unless registered and regulated by the provisions of a legislation; or

(ii) the State Government has some degree of control over it through the medium of Acts/Rules; or

(iii) it is substantially financed by means of funds provided directly, or indirectly, by the appropriate Government; or

(iv) the mandate and command of the provisions of the RTI Act along with its Preamble, aims, objects and regime extends to their public dealing; or

(v) the larger public interest and totality of the other facts and circumstances emanating from the records suggest that such information may be disclosed.

The Court was further inclined to believe that arguments to the contrary would "nullify the aims and objects of the RTI Act, perpetuating and inculcating the injustice to the larger public interest in general."

The Central Information Commission (hereinafter, the "CIC") has also held[2] that pension trusts are "public authorities" under the RTI Act.

The CIC also held[3] that the LIC Housing Finance Limited (hereinafter, the "LICHFL") and LIC Mutual Fund Asset Management Co. Ltd. would qualify as "public authorities" under the RTI Act. It was held that LIC is a body established, constituted, owned and controlled by Central Government. Further, LIC is a public authority having been constituted by an Act of Parliament. And, since the Chairman and Managing Director for both LIC and LICHFL is the same, and since LIC has 40.497% of the shares of LICHFL, LICHFL would be regarded as a "public authority" for the purposes of the RTI Act.

In a verdict that has remained prominent for over half-a-decade now, the CIC had alluded to the judgment of the Madras High Court in Tamil Nadu Newsprint & Papers Ltd v. State Information Commission. In this case, the court had observed that since the mere requirement of the RTI Act for an institution to be deemed a "public authority" is that the Government must substantially finance it, and exercise control over its affairs, it is not necessary that the Government must be the majority shareholder in that institution. The Court had further gone ahead to make an observation that whether or not the government exercises such control is immaterial. Having relied heavily upon this judgment by the Madras High Court, the CIC had further stated that the practice of funding and general control over the affairs and functions of the LIC Mutual Fund by the Central Government is nothing but a manner of indirect funding, and hence LIC Mutual Fund would qualify as a "public authority" under the RTI Act.

In the same case, it was held that the GIC Housing Finance Limited is also a "public authority" for the purposes of the RTI Act since "the shareholding of six Public Authorities in GIC Housing Finance is 47.68% and coupled with the control they exercise over the GIC Housing Finance, it is sufficient to bring them within the ambit of the definition of 'Public Authority' as defined in Section 2(h) of the Right to Information Act, 2005."

Further, the Indian Olympic Association (hereinafter, the "IOA") was held[4] to be a "public authority" under the RTI Act on account of substantial funding by the Government not only for the discharge of functions of the IOA, but also for the construction of its building. In fact, the level of funding by the Government, here, is such that without it, the IOA is unlikely to be able to discharge its functions under the Olympic Charter itself.

In another judgment[5], where it was contended that the body, in question, was a non-governmental organisation, and was not funded by the Government, the CIC held that the impugned body would be a "public authority" as it had been substantially financed by the funds provided by the Government.

In a judgment[6] by the Madras High Court, even an aided private school was held to fall under the ambit of the RTI Act as its entire teaching staff received 100% of their salary from the aid received from the government. The same line of reasoning was resonated in a judgment by the Allahabad High Court in the following year.[7] Yet another private recognised school was held[8] by the CIC to be a "public authority" under the RTI Act because it was substantially funded by the appropriate Government, and was under its control.

The Delhi High Court held[9] the Krishak Bharti Co-operative Ltd. (hereinafter, the "KRIBHCO") - a society registered under the Multi-State Co- operative Societies Act, 2002 (hereinafter, the "MSCS Act" - to be a "public authority" for the purpose of the RTI Act because certain devices laid down in the MSCS Act itself makes KRIBHCO amenable to the control of the Government. On the same grounds, the National Cooperative Consumer Federation of India Ltd. (and the National Agricultural Cooperative Federation of India Ltd. (hereinafter, the "NAFED") - two other societies registered under the MSCS Act - are "public authorities".

Furthermore, the NAFED is also "a nodal agency of the Government of India for the purchase of agricultural and non- agricultural commodities under Market Intervention Scheme and the losses incurred in the implementation of the schemes by NAFED are shared by the Government of India and the State Government concerned in the ratio of 50:50."

Continuing its trend of according a liberal approach to "public authorities" under the RTI Act, the Madras High Court stated in the New Tirupur Area Development case[10] that while Section 2(h)(d)(i) qualifies a "body owned" or a "body controlled", nowhere does it state that the body must be wholly owned, or wholly controlled, by the State. And, as the court observed, even the term "substantially financed" has not been defined though it has been qualified by the terms " directly or indirectly". Section 2(h)(d)(ii) further ropes in non-governmental organisations (NGOs) that are substantially financed. This reflects the intent and purpose of the legislators. In any case, the object of the Act to is to provide the citizens with a right to information from public authorities, and hence, as the Division Bench of the court had previously opined in the Tamil Nadu Road Development Corporation Ltd.'s case[11], the impugned section must receive a liberal interpretation.

Further ahead in this judgment[12], the court made an observation saying that if the State Government, instead of undertaking a work that is essentially its own duty, substantially funds an agency to do it, then such work can hardly be deemed as a private activity. It evolves "very much (into) a public activity over which public interest can generate."

In the same case[13], it was also observed that under the Act, the quantum of the finance required for a body to qualify as "substantially financed" is not spelt out. On this point, the High Court also relied on a precedent [14] (the Tamil Nadu Road Development case decided by Justice A.K. Ganguly) where the court had refused to accept the argument of the petitioner, which stated that the financial support by the government was meagre at best.

B. Which bodies are exempted from the Ambit of "Public Authorities"?

The Kerala High Court, in a 2011 judgment[15], exempted the offices and officers of public religious institutions and endowments to which the Madras Hindu Religious and Charitable Endowments Act, 1951 applies from the definition of "public authorities" under the RTI Act.

In a subsequent case[16], the CIC said that despite the fact that 46% of the equity capital of the National Commodity and Derivatives Exchange Ltd. was held by the PSUs (which are, of course, public authorities), the National Commodity and Derivatives Exchange Ltd. cannot, in itself, be regarded as a "public authority" as there is no direct or indirect funding by an appropriate Government.

Three Karnataka High Court judgments in 2009 [(a) dealing with the Basava Samithi[17] - an organisation that promotes the Basava Philosophy of Life and is registered under the Karnataka Societies Registration Act, 1961; (b) dealing with a co-operative housing society[18] in Malleswaram, Bangalore; (c) dealing with a Bank [19]] held three different bodies as not the creation of any law made by the Legislature, or not as bodies owned or controlled or substantially financed by the Government, and hence, exempt from the ambit of a "public authority" under the RTI Act. These judgments were, however, criticised in the Punjab and Haryana High Court[20] wherein it said that in the three 2009-judgments, the Karnataka High Court had overlooked the basic aims and objectives of larger public interest enshrined in the Preamble of the RTI Act.

C. Conclusion

The easiest way to establish that the IPR Think Tank would qualify as a "public authority" under the RTI Act would be to show that it is a body owned, controlled or substantially funded directly or indirectly by the Government, or that it is created either by any other law made by the Parliament or State Legislature, or under the Constitution itself.

Moreover, it appears from The Hindu Urban Cooperative Bank Limited v. The State Information Commission[21] that when discharging public functions, even though a private entity does not become a State per se, considering the public interest involved, it must be deemed to be a "public authority" in a bid to avoid diluting the aims and objectives of the RTI Act. Now, since the drafting of the National IPR Policy can, in all likelihood, be described as the exercise of a public function, the IPR Think Tank should then qualify as a "public authority" under the Act.

In addition, the underlying principle used in Indubala Agarwal v. National Commodity and Derivatives Exchange Ltd. [22] was that while the public bodies engaging in commercial or business activities - often, even profitable - that are created by any government in exercise of its sovereign functions would qualify as "public authorities" as per Section 2(h) of the Act, the set of commercial bodies further created by these public bodies as part of their business ventures would not qualify as "public authorities" as per Section 2(h). The simple reason behind this discrimination of sorts is that the latter set of bodies lacks any direct, or indirect, involvement of an appropriate government. However, it is unlikely that this rationale could be used to keep the IPR Think Tank outside the domain of "public authorities" under the Act since it would hardly qualify as a commercial body. Furthermore, it was not created by the DIPP merely in a bid to expand its business interests, but to formulate a National IPR Policy that is quite a far cry from being classified as a commercial activity.

On a different but related note, in the well-known case of Ajay Hasia v. Khalid Mujib Sehravardi [23], the test laid down for a "public body" was whether a said person, or body, is an instrumentality or agency of the State, and not as to how it was brought into existence, i.e., the idea is to find out why it was created, and not how. No doubt, the context of the judgment was Article 226 of the Constitution of India, and not the RTI Act. Nonetheless, considering that there is no apparent reason to distinguish between public bodies under Article 226 and under the RTI Act, what if this test were to be applied to the issue at hand? Since the IPR Think Tank has been created for the purpose of drawing up the National IPR Policy which obviously affects the public, it may not be entirely wrong to state, then, that it would fall within the ambit of "public authorities" the RTI Act .

[1] The Hindu Urban Cooperative Bank Limited and Ors . v. The State Information Commission and Ors. [2011] (Pun & Har HC)
available at - <http://indiankanoon.org/doc/155741837/>

[2] Mr. SK Choudhary v. Delhi Transco Limited [2010] (CIC) available at - < http://www.rti.india.gov.in/cic_decisions/SG-26022010-12.pdf>

[3] Shri Nisar Ahmed Shaikh and Ors. v. LIC Housing Finance Limited and Ors. [2009] (CIC) available at - < http://www.rti.india.gov.in/cic_decisions/FB-28102009-01.pdf>

[4] Veeresh Malik v. Indian Olympic Association [2006] (CIC) available at - http://www.rti.india.gov.in/cic_decisions/Decision_28112006_3.pdf >

[5] Mrs Navneet Kaur v. Electronics and Computer Software Export Promotion Council [2006] (CIC) available at - < http://cic.gov.in/CIC-Orders/CIC_Order_Dtd_22032006.pdf>

[6] Diamond Jubilee Higher Secondary School v. Union of India [2007] (Mad HC) available at - <http://indiankanoon.org/doc/563155/ >

[7] Dhara Singh Girls High School v. State of Uttar Pradesh [2008] AIR (All HC) available at - < http://indiankanoon.org/doc/1378411/>

[8] Mr. Tilak Raj Tanwar v. The PIO, Deputy Director of Education [2012] (CIC) available at - < http://rti.india.gov.in/cic_decisions/CIC_AD_A_2011_001699_M_73865.pdf >

[9] Krishak Bharti Cooperative Ltd. v. Ramesh Chander Bawa [2010] (Del HC) available at - < http://indiankanoon.org/doc/159896809/>

[10] New Tirupur Area Development v. State of Tamil Nadu [2010] (Mad HC) available at - < http://judis.nic.in/judis_chennai/qrydisp.aspx?filename=25472>

[11] Tamil Nadu Road Development Company Limited v. Tamil Nadu Information Commission [2008] 6 MLJ 737 (Mad HC) available at - < http://indiankanoon.org/doc/454066/>

[12] ibid .

[13] See n 12.

[14] See n 13.

[15] AC Bhanunni Valluvanattukara v. The Commissioner, Malabar Devaswom Board [2011] (Ker HC) available at - < http://judis.nic.in/judis_kerala/qrydisp.aspx?filename=239775>

[16] Indubala Agarwal v. National Commodity and Derivatives Exchange Ltd. [2010] (CIC) available at - <Part 1: http://www.rti.india.gov.in/cic_decisions/LS-01012010-08.pdf> and <Part 2 - http://www.rti.india.gov.in/cic_decisions/LS-08022010-06.pdf>.

[17] SS Angadi v. State Chief Information Commissioner [2009] 5 RCR (Civil) 312 (Kar HC) available at - < http://indiankanoon.org/doc/1198428/>

[18] Dattaprasad Co-operative Housing Society Ltd. v. Karnataka State Chief Information Commissioner [2009] 5 RCR (Civil) 833 (Kar HC) available at - < http://www.the-laws.com/Encyclopedia/Browse/Case?CaseId=018002943000 >

[19] Bidar District Central Co-operative Bank Ltd. v. Karnataka Information Commission, Bangalore [2009] 5 RCR (Civil) 394 (Kar HC) available at - < http://www.the-laws.com/Encyclopedia/Browse/Case?CaseId=018002573000 >

[20] See n 1.

[21] See n 1.

[22] See n 16.

[23] Ajay Hasia v. Khalid Mujib Sehravardi [1981] 2 SCR 79 (SC) available at - < http://indiankanoon.org/doc/1186368/>

For more details visit https://cis-india.org/a2k/blogs/national-ipr-policy-series-who-is-a-public-authority-under-rti-act

National IPR Policy Series : The Development of the National IPR Policy

nehaa — 2015-01-22T00:48:33Z

This is the first blog post in a series of posts on India's National IPR Policy. In this post, CIS intern, Varnika Chawla traces the evolution of the National IPR Policy.

Significant changes have been implemented in the Intellectual Property regime of India since India's accession to TRIPS in 1995. This post details the timeline of the development of Intellectual Property law in India, highlighting the discourse around the formulation of a National IPR Policy. The author has also looked at the formulation of IP Strategies in different nations across the world, summarized in the infographic, observing that the trend for the same is very recent and has only emerged over the last decade.

"Intellectual Property Right is a private right recognized within the territory of a country and assigned to an individual or individuals for a specified period of time in return for making public, the results of their creativity and innovation." India has a well-established and comprehensive legislative, judicial and administrative framework for intellectual property. The decade of 2010-2020 was declared as the Decade of Innovation, with an objective of expanding the space for dialogue for inclusive growth. With the emergence of globalization, the Indian society has become more knowledge-intensive giving rise to rapid development in the field of information technology and consequently intellectual property, thereby increasing the role of the legislature as well as the judiciary to protect and promote intellectual property rights.

India gained membership of the World Trade Organization in 1995. This membership initiated a new round of revisions resulting in the upheaval of the Indian intellectual property system. All IP legislations were hereby required to comply with the provisions of the TRIPS Agreement by 2000, with the exception of the Patents Act, which had an extended time limit to be compliant till 2005.

The Indian system of intellectual property rights is designed in a manner to ensure the protection of intellectual property while maintaining a balance between rights and obligations. There are several legislations which deal with the protection of intellectual property in India. These include thePatents Act, 1970, the Trade Marks Act, 1999, theGeographical Indications of Goods (Registration and Protection) Act, 1999, the Semiconductor Integrated Circuits Layout Design Act, 2000, the Competition Act, 2002 as well as theBiological Diversity Act, 2002. India is also thefirst country to ratify theMarrakesh Treaty, 2013 for access to copyright works for visually impaired persons. India also recently acceded to the Madrid Protocol in 2013.

National IP Strategy and the Role of WIPO

A National IP strategy has been defined by WIPO as "a vehicle for creating better functional linkages between the national economic objectives, development priorities and resources, and the IP system of the country concerned."[1] It is therefore a set of policy measures undertaken by governments in order to facilitate the proper use of IP as a strategic tool, for economic, social, cultural and technological development.[2] WIPO also gave the framework of the planning process each country should implement, in its efforts to adopt an IP strategy. As per this, the process is divided into four main stages:

Government initiative
Establishment of a National IP Strategy Formulation Committee
Presentation of draft strategy before stakeholders
Government approval of National IP Strategy,[3]

WIPO can assist in the formulation of a National IP Strategy by advising the governments as well as providing technical expertise during the planning process and providing support and assistance as and when required.[4]

India's National IPR Strategy

Realizing the significance of having a strong and well-balanced IP system in the emerging economy of India, several initiatives have been undertaken by the Department of Industrial Policy & Promotion at the policy level to create an environment conducive for the development of intellectual property and technology. Accordingly, a draft for the National IPR Strategy, outlining a set of measures and guidelines to encourage and facilitate the effective creation, protection, management and commercialization of IP for accelerating economic, social, cultural and technological development and for enhancing enterprise competitiveness prepared by the Sectoral Innovation Council on IPR was released by DIPP on September 26, 2012, inviting views from various stakeholders. It was felt that the National IP Strategy needs to be developed in a manner such that it is integrated with the overall national plan for development in order for better cooperation with IP components of specific and targeted national strategies in areas such as trade and investment, education, food and agriculture, science and technology etc.

Subsequently, a revised draft for the National IPR Strategy in India was released on July 21, 2014, detailing a vision statement, objectives and means to achieve the same.

The DIPP constituted an IPR Think Tank , as notified on November 13, 2014, in order to draft the National Intellectual Property Rights Policy and to advise DIPP on IPR-related issues. Finally, a First Draft of the National IPR Policy was submitted by the IPR Think Tank on December 19, 2014 , inviting comments and suggestions from all stakeholders on or before January 30, 2015.

National IP Strategies: Around the World

WIPO Member States adopted 45 recommendations at the 2007 General Assembly, made by the Provisional Committee on Proposals Related to a WIPO Development Agenda. This also included Member States setting up "appropriate national strategies in the field of intellectual property." These recommendations were identified for immediate and effective implementation, resulting in countries beginning to adopt the same, with the objective of promoting and enforcing IP rights. The info-graphic below highlights the formulation of IP Strategies in Member States around the world.

China announced its "National Intellectual Property Strategic Principles" in June, 2008. Japan established its "Intellectual Property Strategy Headquarters" in 2003, and its Intellectual Property Strategic Program in 2004, while USA legislated the " Prioritizing Resources and Organization for Intellectual Property Act" in 2008. Furthermore, the Presidential Advisory Council on Education, Science and Technology in Korea announced the " Strategy for Intellectual Property System Constructing Plan" on June 27, 2006, consisting of three aspects: Creation and Application, Law and Regulation, and Infrastructure. The European Union has adopted a " Strategy for the Enforcement of Intellectual Property Rights in Third Countries", aimed at evaluating the recent major changes that have taken place in the international IP arena, preparing to meet the challenges in an effective manner. Finland adopted " The Government's Resolution on the Strategy Concerning Intellectual Property Rights " on March 26, 2009. Therefore, it is observed that the trend of National IP Strategies has only started recently, in the last decade.

Therefore we see the emerging need of an all-encompassing IP Policy arising in nations around the world, aimed at promoting a holistic environment conducive to the development of Intellectual Property.

[1] WIPO's Contribution to the Elaboration and Implementation of Strategies and National Plans for the Development of IP and Innovation , WTO Strategic Planning Workshop, Geneva, Switzerland, June 13, 2014.

[2] Id .

[3] Id .

[4] Id.

For more details visit https://cis-india.org/a2k/blogs/the-development-of-the-national-ipr-policy

National IPR Policy Series : Sectoral Innovation Councils on Intellectual Property Rights – RTI Requests + DIPP Responses

Nehaa Chaudhari and Saahil Dama — 2016-05-03T05:32:01Z

CIS filed an RTI application on August 11, 2015, seeking information regarding the functioning of the Sectoral Innovation Council (SInC) on Intellectual Property Rights. This posts documents the responses received.

Nisha S Kumar assisted in the compilation of this document.

For our earlier post on this issue, see here

The RTI application can be accessed here. The SInC on IPR had 12 members from various stakeholder groups including academicians, research organizations, industries and the government. There were no members on behalf of civil society organizations of non-governmental organizations. The manner and the basis on which these members were selected has not been disclosed.

SInC Meeting 1: September 7, 2011

The list of attendees is available in the file ‘Office Memorandum and list of Members of SInC on IPR’

Attendance

A meeting for the SInC on IPR was held on September 7, 2011 under the chairmanship of the DIPP. This meeting was attended by only 9 members out of 12. Amongst those absent were Dr. Ranbir Singh (National Law University, Delhi), Prof. Govardhan Mehta (IISc, Bangalore) and Mr. Soshil Kumar Jain (Panacea Biotec). Additionally, organizations such as IIT, Delhi and BHEL and Tata Motors were represented by members different from the ones on the original list of members.

Agenda

The agenda and minutes of the meeting are available here.

The meeting had three items on the agenda – developing a framework for the National IPR policy, discussion on utility models and co-opting knowledge partners or research institutions for preparation of draft report.

i. Developing a framework for the National IPR strategy

Members were called to give their views and suggestions on the National IPR strategy. Firstly, it was unanimously submitted that measures to increase innovation in the Small and Medium Enterprise (SME) sector had to be adopted. Different means for the same were suggested, such as improving access to databases on patents and non-patents literature, development of product catalogues by SME clusters and making low-cost technology available to SMEs through government acquisition.

Secondly, development of expertise to file pre-grant opposition for preventing grant of frivolous patents was emphasized upon.

The members also agreed on identifying ‘white spaces’ that were lacking in innovation.

Finally, the members stressed on introducing a course on IPR in the curriculum of technical and post graduate/research programmes in science.

Action point – all members were required to prepare a position paper on the framework of the national IPR strategy within 1 month of the issue of the minutes by the DIPP.

It was suggested that the framework should include the philosophy for a National IPR strategy, objectives to encourage IP, measures for modernizing IP offices and interventions for promoting commercialization of IP. The draft framework can be accessed here.

ii. Discussion on utility models

The utility model framework can be accessed here.

It was agreed that the utility models should be protected through a separate legal framework. The maximum period of protection would be 8 years and the number of claims would be limited to 5. However, members agreed that this should not lead to evergreening of patents. Utility models will be covered in detail in a subsequent post.

iii. Co-opting knowledge partner/research institutions for preparation of draft report

Preparation of a National IPR strategy would require a detailed study of the present IPR scenario and its different aspects.

Action point – National Law School, Bangalore, was co-opted as the knowledge partner for preparing the draft report.

SInC Meeting 2: February 10, 2012

The agenda, office memorandum, list of participants and minutes of the meeting are available here.

Two different lists of attendees submitted in response to the RTI application (found here and here). As per both the lists, all the members were not present at the meeting and several organizations were represented by members different from the ones on the original Council.

The items on the agenda were –

Action taken after meeting 1;
Inputs for draft National IPR strategy; and,
Discussion paper on Utility Models

i. Action taken after meeting 1

The DIPP decided to take care of the administrative infrastructure of the IPR management in the country. The members were asked to give suggestions on the aspects of acquisition, protection and commercialization of IPRs.

It had been decided at the previous meeting that the position papers on the National IPR strategy were to be submitted within 1 month of the release of the minutes. However, only 4 members had given inputs. The remaining members were requested to expedite the same.

Also, National Law School, Bangalore, was unable to contribute to the preparation of the draft National IPR strategy. Hence IIT Delhi was co-opted as the alternate knowledge partner for the same.

ii. Inputs for the draft National IPR strategy

Several submissions were made by the members. Briefly, some of these were –

Diagnosis of reasons for not opting of registration of IPRs by SMEs;
Policy guidelines for the MOUs to be signed between the government and research institutions in case of government funding;
Need for DIPP to come up with policy on IPR ownership and management in case of government funding.

The members also supported the inclusion of a policy in the National IPR strategy to promote commercialization of innovations by individuals, SMEs and public sector units (PSUs).

iii. Discussion paper on Utility Models

Members were of the opinion that a utility model framework should be introduced to encourage individuals and SMEs to innovate. They were requested to expedite their inputs on the draft legal framework for utility models that had been circulated to them (available here).

The date of the next meeting was decided as March 22, 2012.

SInC Meeting 3: August 21, 2012

The office memorandum, list of participants and minutes of the meeting can be accessed here.

Instead of the date decided at the previous meeting, the next meeting was held on August 21, 2012, 5 months after the scheduled date.

Mr. N. K. Sabharwal was added to the list of members of the SInC on IPR. The grounds and procedure of the addition have not been made available. The new list of members is available here. The list of attendees for meeting 3 was not provided.

The agenda of the meeting was to discuss the draft National IPR strategy prepared by the DIPP on the basis of the comments received from the members of the Council. It is unclear if the remaining members also submitted their comments, as was requested in the previous meeting.

Some of the issues discussed were –

i. Adapting the draft National IPR strategy prepared by DIPP to the local conditions and developmental needs of the country – suggestions such as instituting an IP depository for technologies used in development of products and maintaining a dossier of judicial decisions on IPRs were made.

ii. Reviewing provisions for transfer of IPRs, including a restriction on transfer from an individual to a company.

iii. Making traditional knowledge (TK) of the country accessibly to universities and research institutions – it was suggested that a register should be maintained products developed on the basis of TK. Also, patents granted by the Indian Patent Office should be informed to universities and institutions for capacity building.

iv. Creating a fast tracking system for registration of green technology patents – the suggestion for a fast tracking system for green technology was supported and a similar system was prescribed for food technology.

v. Establishing an incubation fund to assist in research and development and acquisition of IPRs – SMEs would be given access to a patent pool and would be reimbursed up to Rs. 20 lakh for costs incurred in technology acquisition.

It was noted that the suggestions all pertained to the execution of the strategy. Members were requested to furnish suggestions regarding the strategy to the government. The draft strategy would be modified on the basis of the comments received from the members of the Council. It was also decided that the draft paper would be hosted on the website of the DIPP by the third week of September, 2012, for seeking inputs from stakeholders.

The Secretary (IPP) also suggested that the SInC on IPRs be reconstituted to include representatives from the industry and academia. The need for this is unclear since the industry (BHEL, Panacea, Bilcare) and academia (IIT Delhi and IIT Bombay, IISc Bangalore, NLU Delhi) were already represented in the Council.

SInC Meeting 4: April 30, 2013

The list of attendees and the minutes of the meeting can be found here.

The Council had not been reconstituted despite the recommendation of the Secretary in the previous meeting.

Merely 6 members out of the total 12 were present for the meeting. Of these, certain organizations, such as BHEL, were also represented by people who had been not been present at any of the past meetings. It was agreed that members would not send representatives for future meetings since they had been nominated by their names. This had been a recurring problem in all the meetings so far.

The agenda of the meeting was to discuss the draft IPR strategy and steps that needed to be taken further.

The draft had been prepared on the basis of the comments received from the members and the specific inputs of Mr. Sabharwal. Whether comments had been received from all the members, as had been decided in meeting 1, is unclear. Furthermore, there was no mention of the comments received from stakeholders after the draft paper had been published online in September 2012.

The following decisions were reached by the SInC –

i. The strategy document needed to be improved and made comprehensive to include IP issues relating to information technology, copyright, TK, plant variety protection, etc.

ii. The members were required to suggest 10 monetary and non-monetary incentives for harnessing creativity. The figure seems arbitrarily decided and there is no explanation for how this would affect the draft strategy itself.

iii. BHEL was to prepare a paper on schemes being implemented in the country for promoting innovation.

iv. The draft paper would be circulated after finalization. Thereafter, a two-year plan would be formulated to operationalize the IPR strategy.

Government Meeting 1: June 18, 2013

An office memorandum was sent stating that a meeting to discuss the improvement required in the draft National IPR strategy was scheduled to be held on June 18, 2013. Since no details about the meeting were sent, whether the meeting actually took place and what was discussed in unknown. The office memorandum is available here.

The entire National IPR strategy can be read here.

Government Meeting 2: July 29, 2013

List of attendees and minutes of meeting here.

The meeting was held to make the National IPR strategy more comprehensive so that it could have a larger coverage. The meeting was attended by representatives of various government departments and ministries, Council of Scientific and Industrial Research (CSIR) and the SInC on IPR, which was represented by N. K. Sabharwal. A plethora of disconnected issues were flagged out. It was mentioned that concerns related to TK such as transboundary issues, sui-generis system for protection of TK and biopiracy should be incorporated into the strategy. It was also proposed that an Act for public funding of R&D should be introduced to foster innovation. Inclusion of a brief module on IPR in high school curriculums was recommended.

The participants were requested to furnish comments in a written form to DIPP within a week of the meeting.

SInC Meeting 5: October 9, 2013

Agenda and minutes are available here.

Despite agreeing in meeting 4 that the future meetings would be attended by the members personally, only 6 members were present. Organizations such as National Innovation Council, IIT Delhi and BHEL were represented by people other than the members of the SInC.

There were four items on the agenda –

i. Finalization of the draft National IPR strategy – paragraphs pertaining to setting up a National IP Enforcement Task Force and creating a formal legal regime for protection of trade secrets were removed. The statement mandating organizations to align their innovation strategies to national requirements was also removed.

ii. Work-plan for 2013-15 under the IPR strategy – no discussion on this in the minutes.

iii. Suggestions on monetary and non-monetary incentives for innovation – paper on incentive mechanisms to be prepared by BHEL is available here.

iv. Issues of time period for renewal of strategy and establishing a committee to review the implementation of the strategy – no discussion on this in the minutes.

Additionally, the members were asked to provide textual contributions to the document within 10 days of the meeting to enable its finalization.

Response to Queries Raised in the RTI Application (available here)

Q1. How many meetings has the SInC held since establishment?

DIPP: 5

Q2. Please supply minutes and all related documents of all its meetings.

Provided by the DIPP and have been attached through the post above.

Q3. How much are the members of the SInC paid? Are members paid on the basis of time or number of meetings held?

DIPP: One member, Dr. Karuna Jain, was reimbursed R. 18,374/- for attending the SInC meeting on August 21, 2012.

The response, quite clearly, does not answer the question asked.

Q4. Has the SInC done any work or produced any outputs other than the 2012 draft of the National IPR strategy?

DIPP: Yes.

For more details visit https://cis-india.org/a2k/blogs/sectoral-innovation-councils-on-intellectual-property-rights-2013-rti-requests-dipp-responses

National IPR Policy Series : RTI Requests to DIPP seeking Details on the IPR Think Tank and the National IPR Policy

nehaa — 2015-04-12T12:48:00Z

In an earlier blog post titled " National IPR Policy Series : The Development of the National IPR Policy", we discussed the formation of an IPR Think Tank to draft the first National IPR Policy. Since many details about the constitution and working of this Think Tank were unavailable, we decided to send out RTI requests to find out more.

According to the press release by the Department of Industrial Policy and Promotion (DIPP) which can be found here, an IPR Think Tank was constituted in order to draft the National Intellectual Property Policy. The Think Tank, chaired by retired Justice Prabha Sridevan, submitted a confidential first draft of the National IPR policy to the DIPP on 19th December, 2014. This document was made publicly available by the DIPP and all stakeholders were requested to provide comments and suggestions to the first draft of the National IPR Policy.

Though the IPR Think Tank has expediently released their first draft of the National IPR policy, there is a lack of information available on the constitution of this IPR Think Tank. There is no data on how the members of this Think Tank were shortlisted and selected or how the Chairperson and Convener of the Think Tank were elected. Further, the suggestions and comments received by the IPR Think Tank before and after publishing the first draft of the policy have not been made publicly available.

In an attempt to obtain more data on the process of the constitution of the Think Tank and it’s working, CIS filed three RTI requests to the Department of Industrial Policy and Promotion date February 2, 2015. A copy of the RTI requests is included below:

RTI Request 1: Information on Constitution of IPR Think Tank

Dear Sir/Ma’am,

Subject: Request for Information under Right to Information Act 2005.

Information Sought:

Please provide the following information:

Please indicate in detail the process followed by the Department of Industrial Policy and Promotion for the constitution for an IPR Think Tank to draft the National Intellectual Property Rights Policy under Public Notice No. 10/22/2013-IPR-III dated November 13, 2014.
If there was a meeting held to decide on the same, please include all necessary documents including the minutes of the meeting, records, documents, memos, emails, opinions, advices, press releases, circulars, orders, etc. in which the constitution of the aforementioned IPR Think Tank was decided.
If there were multiple meetings held for the same, please provide all necessary documents including the minutes of all such meetings, records, documents, memos, emails, opinions, advices, press releases, circulars, orders etc. for all such meetings held.
If a directive or directives were received by Department of Industrial Policy and Promotion from any other government body to constitute such a think tank, please provide a copy of such a directive received by the Department of Industrial Policy and Promotion from any Government authority, to constitute such a Think Tank.
Please indicate in detail the process of shortlisting the members of the IPR Think Tank by the Department of Industrial Policy and Promotion or any other body that was responsible for the same.

In case the information is held by or related to another public authority, the application or such part of it as may be appropriate may be transferred to that other public authority under intimation to the undersigned as per Section 6(3) of RTI Act.

Proof of payment of application fee:

An Indian Postal Order for the amount of Rs.10 dated 2/2/2015 favouring the Public Information Officer, Department of Industrial Policy and Promotion is enclosed as proof of payment of application fee.

I hereby declare that I am a citizen of India. I request you to ensure that the information is furnished before the expiry of the 30 day period after you have received the application.

Details of Applicant:

Ms. Nehaa Chaudhari
Centre for Internet and Society
G-15, Hauz Khas
New Delhi – 110016

Date: 2/2/2015

RTI Request 2: Working of IPR Think Tank while drafting National IPR policy

To,
Ms. Chandni Raina
Central Public Information Officer
Department of Industrial Policy and Promotion (IPR I, II, III, IV, V and VI Sections)
Room No.260
Udyog Bhawan, New Delhi

Dear Sir/Ma’am,

Subject: Request for Information under Right to Information Act 2005.

Information Sought:

Please provide the following information:

Please indicate in detail the process followed by the IPR Think Tank constituted by the Department of Industrial Policy and Promotion via Public Notice No. 10/22/2013-IPR-III dated November 13, 2014 while framing the first draft of the National IPR Policy dated December 19, 2014.
If there was a meeting held to decide on the same, please include all necessary documents including the minutes of the meeting, records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, suggestions etc. related to the drafting of such National IPR Policy by the IPR Think Tank chaired by Justice Prabha Sridevan.
If there were multiple meetings held for the same, please provide all necessary documents including the minutes of all such meetings, records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders suggestions etc. for all such meetings held.
Please provide all the suggestions and comments received by the IPR Think Tank from stakeholders after the Department of Industrial Policy and Promotion issued Public Notice No. 10/22/2013-IPR-III dated November 13, 2014 asking for suggestions and comments on or before November 30, 2014.

Proof of payment of application fee:

I hereby declare that I am a citizen of India. I request you to ensure that the information is furnished before the expiry of the 30 day period after you have received the application.

Details of Applicant:

Ms. Nehaa Chaudhari
Centre for Internet and Society
G-15, Hauz Khas
New Delhi – 110016

Date: 2/2/2015

RTI Request 3: Request for suggestions and feedback received by DIPP on the first draft of the National IPR Policy

To,
Ms. Chandni Raina
Central Public Information Officer
Department of Industrial Policy and Promotion (IPR I, II, III, IV, V and VI Sections)
Room No.260
Udyog Bhawan, New Delhi

Dear Sir/Ma’am,

Subject: Request for Information under Right to Information Act 2005.

Please provide the following information:

Please indicate all the suggestions and comments received by the IPR Think Tank by different stakeholders on or before January 30, 2015 on its first draft of the National Intellectual Property Policy submitted by the IPR Think Tank on December 19, 2014.

Proof of payment of application fee:

I hereby declare that I am a citizen of India. I request you to ensure that the information is furnished before the expiry of the 30 day period after you have received the application.

Details of Applicant:

Ms. Nehaa Chaudhari
Centre for Internet and Society
G-15, Hauz Khas
New Delhi – 110016

Date: 2/2/2015

(Many thanks to CIS intern Protyush Choudhury for his assistance with this.)

For more details visit https://cis-india.org/a2k/blogs/rti-requests-dipp-details-on-constitution-and-working-of-ipr-think-tank

National IPR Policy Series : India's National IPR Policy - What Would WIPO Think?

nehaa — 2015-07-02T17:47:58Z

As part of the National IPR Policy Series, CIS is evaluating how India's National IPR Policy framework and process holds up to WIPO's suggestions. In this note, Varun Baliga and Nehaa Chaudhari examine in particular, the functioning of the IPR Think Tank and the first draft of the National Policy in light of the WIPO framework and the principles it encapsulates.

This note is a brief overview of the approach set out by the World Intellectual Property Organization ("WIPO") for the development of National IPR Strategies by various countries. This note also compares WIPO's approach to the approach adopted by the IPR Think Tank ("Think Tank") in the formulation of India's National IPR Policy This note is only an academic exercise and is not to be construed as a recommendation of the procedure set out by WIPO for the development of National IPR Policies/Strategies.

An Overview of WIPO's Approach

WIPO's suggested model of a National IPR Policy operates at three levels - The Process, Baseline Questionnaire and Benchmarking Indicators. [1] On process, WIPO suggests an 8-step procedure in developing a National IP Strategy that lays clear emphasis on both continuous consultation and methodological rigour in data collection. The initial 'Assessment Mission' is aimed at preparing the ground for the formulation of the policy, and includes meetings with stakeholders so as to involve interested entities from the very beginning. [2] Given that an IPR policy is necessarily a political exercise, WIPO recommends that the mission be used to secure the political capital and commitment that would be necessary to see the exercise through. Then, a 'project (national) team' is constituted for an IP audit and develop an understanding of the economic, social and political infrastructure as context for the formulation of the policy. It is also stated that, in most instances, the team will include an international consultant. This is further complemented by 'Desk Research' and 'Data Collection' using the 'Baseline Survey Questionnaire', an integrated data collection tool developed by WIPO. The desk research is an assessment of the existing IP policies coupled with the country's broader goals - developmental, economic and social, so as to conceptualize a policy that is in conformity with the goals.

The data collection through the Baseline Survey Questionnaire is meant to complement the IP audit to understand the "weaknesses, strengths and potential" of "the current IP situation in the country". This audit and data collection drive is then buttressed with 'National Consultations' to validate the data and conclusions reached thus far. WIPO is unambiguous that the aim of these consultations is to enable a wide range of parties to exercise meaningful ownership and agency over the process of conceptualizing a national IPR policy. With the inputs received from the process so far, WIPO recommends that the drafting of the strategy commence on the basis of the "suggestions, opinions and recommendations received during the national consultation process". The drafting should operate at the level of each sector and the country as a whole. This is followed by a 'second round of stakeholder consultations'. These serve a dual purpose: to validate the findings of the first draft and to verify whether the first round of inputs are reflected in the draft itself. Finally, an 'implementation framework' including "implementation structures, a resource mobilization strategy, and monitoring and evaluation mechanisms".

Assessing the First Draft of India's National IPR Policy:

Now, we look at the National IPR Policy in India in light of the WIPO framework outlined above. First we look at the Assessment Mission or process followed prior to the announcement of any IPR policy. Then, we look at what assessment was undertaken of the existing IP laws in the country. Finally, the stakeholders meetings conducted so far are analysed in comparison to the purpose of such consultations that WIPO envisages.

Assessment Mission: There are no reports of an initial meeting having been held to explain the scope and methodology of the process. However, the IPR Think Tank invited comments before the release of the draft national policy in order to seek suggestions on the tentative policy. It should be noted that these comments have not been published.
Assessment of existing IP framework: The overview of the existing IP system in the draft policy covers just the various IP legislations and the relevant government departments. It then proceeds to underscore elements in Indian law that enhance and incentivize stricter standards for IP protection. For example, it illustrated the future challenge in copyright law as being enforcement on digital platforms. It identifies a need for concerted action to increase patent filings by Indians as over "75% of patent filings are by foreign entities". Further, even when it mentions India's ratification of the 2013 Marrakesh Treaty ensuring access to copyrighted works for persons with visual impairment, it is in the context of further reinforcement of copyright.Therefore, it is clear that the perspective of the draft policy towards India's existing framework downplays provisions ensuring access and protecting the public interest and focusses on more expansive IP protection, narrower exceptions and an overall priority for IP rights over the public interest in accessing knowledge. The purpose of the IP audit and desk research, "to obtain a clear picture of the current IP situation…, its weaknesses, strengths and potential.", has not been done justice by this audit weighted in favour of rightsholders. Finally, the Baseline Survey Questionnaire -an integrated tool for extensive data collection - has no mention in the draft policy. There is no indication that it has been utilized for the purpose of data collection, if any.
On stakeholder meetings: The Draft National IP Policy was released on 24 December 2014. A DIPP Press Release called for comments and suggestions to the First Draft to be sent in by January 30^th, 2015.[3] The first set of stakeholder meetings were only held on February 5^th and 6^th, 2015.[4] This is at odds with what the WIPO recommends. The very first step in the WIPO framework is the 'Assessment Mission' which involves meetings with stakeholders that explains the scope and methodology of the process, presumably to elicit views. There is no publicly available information that suggests that this has taken place. Second, the national consultation precedes the drafting of the strategy with the explicit goal of validating the IP audit findings and eliciting views on the drafting of the strategy. This is not intended to be a merely formalistic exercise but meaningful involvement of stakeholders in the whole process of conceptualizing a national IPR policy. Now, the DIPP has solicited comments prior to the publication of the first draft. However, mere solicitation of comments without meaningful consultation is a mere shadow of the objective of the WIPO recommendation of national consultations - "..to actively participate in the validation of the IP audit findings and the formulation of the National IP Strategy..to enhance a wide a range of IP stakeholders' ownership of the process of developing and eventually implementing a national IP strategy." Therefore, the principled objective of the consultation process as outlined by WIPO - enabling stakeholders to exercise a sense of agency over the policy document and drafting process - was severely undermined. Furthermore, WIPO suggests that the drafting of the policy should be based on the findings and suggestions submitted by the stakeholders. Given that comments have been solicited before the policy was drafted, it is incumbent upon the Think Tank to make comments submitted public. [5]

The following table summarizes the comparison in the WIPO approach to that of the IPR Think Tank. Apart from the procedure outlined thus far, the table touches upon other points of comparison that are sure to inform the continued functioning of the Think Tank in the road towards a National IPR Policy.

WIPO Suggestion	India's National IP Policy Framework - Comparison
WIPO has also suggested a number of justifications that may be advanced for the development of a national IP strategy. [6] These justifications will help in grounding the policy in a clear, lucid set of objectives. These are: Need to consolidate sectoral policies National long-term development agenda Benchmarking and best practices International trade obligations Strengthening the national IP office	India's Draft National IP Policy provides for the following objectives:[7] Create awareness of the economic, social and cultural benefits of IP (IP Awareness and Promotion) Stimulate the creation and growth of IP (Creation of IP) Strong and effective laws that protect IP rights in a manner consistent with national priorities and intl obligations and that balance the interests of the rights owners and the public (Legal and Legislative Framework) Strengthen IP administration and management of IP rights (IP Administration and Management) Augment Commercialization of IP rights; valuation, licensing and technology transfer (Commercialization of IP) Strengthen enforcement and adjudicatory mechanisms to protect and combat against IP rights violations ( Enforcement and Adjudication) Human Capital Development in IP
The second prong of WIPO's suggestions is devoted entirely to the Baseline Survey Questionnaire. There are seven clusters identified: IP Administration and Management Generation of IP by universities, research organizations, business, industry, SMEs and individuals Commercialization of IP and technology transfer by universities, research organization, business, industry, SMEs and individuals Copyright and copyright industries Plan breeders; rights (plant variety protection) Enforcement of IP rights IP and public policy	While there are elements of these clusters in the draft policy, there is no mention of them in the context of the method of a Baseline Survey Questionnaire. This means that the data collection was not undertaken in compliance with WIPO's recommendations and means that there was either no data collected or the results are undermined.
Finally, the WIPO framework places great emphasis on the implementation of the policy.[8] It has elements of this in all three prongs. It requires the policy to have an effective framework for its implementation that includes resource mobilization and monitoring and evaluation mechanisms.[9]	The issue of implementation is covered by the draft policy at two levels: 1. Implementation of IP rights - This includes a) Placing the burden on individuals to protect their IP rights as IP is an "essentially private rights [sic]". [10] The state merely plays the role of the facilitator for protection. b) Enacting rules and setting up institutions. Examples include the Intellectual Property Rights (Imported Goods) Enforcement Rules 2007 framed to implement border control measures as well as the Copyright Enforcement Advisory Council. [11] Further, strengthening enforcement mechanisms includes the establishment of a centralized 'Multi-Agency Task Force' for coordination between the raft of agencies that India has. [12] c) Facilitate IP dispute resolution through the designation of a specialized patent bench in select High Courts. It also calls for the creation of regional benches of the IPAB in all five regions where IPOs are located as well as an increase in the powers of the IPAB. [13] 2. Implementation of the Policy itself -[14] a) It suggests that the integration of the policy with stated government programmes such as 'Make in India' and 'Digital India' would enable its implementation. b) The establishment of IP Promotion and Development Council (IPPDC) which will open IP Promotion and Development Units (IPPDU) for promoting IP awareness, protection and utlilization. c) IP support to MSMEs. d) Technology Acquisition and Development Fund under the Manufacturing Policy for licensing or procuring patented technologies. e) Manufacturing units will be encouraged to set up IP cells in their own units and make IP a part of their corporate strategy. f) Integrate with government initiatives.

Conclusion: Testing Times Ahead

The IPR Think Tank has not been consistent with WIPO's recommendations on drafting a National IPR Policy. In terms of data analysis, the Think Tank has not displayed an iota of the analytical rigour and data collection that WIPO believes is necessary to understand both the state of IP in the country and devise effective means of responding to lacunae. Further, while consultations have been held with civil society, these have been lacking in two respects. They have not followed the timelines prescribed by WIPO insofar as consultations have happened only after the release of the first draft. As a result, the Think Tank has failed in actualizing the raison d'etre behind national consultations - "enhance a wide range of IP stakeholders' ownership of the process of developing and eventually implementing a national IP strategy". Finally, this piece is not an endorsement of WIPO or its recommendations but a mere acknowledgement of the role WIPO has played in this exercise. In the final analysis, India has fallen short of adhering to the principles reflected in the WIPO framework.

[1] http://www.wipo.int/ipstrategies/en/methodology/

[2] The stakeholders that WIPO mentions are "..inter alia, the national IP office(s), relevant government departments, universities and research institutes, SMEs, inventors, creators, legal practitioners, non-governmental organizations (NGOs)".

[3] http://www.dipp.nic.in/English/acts_rules/Press_Release/pressRelease_IPR_Policy_30December2014.pdf

[4] http://spicyip.com/2015/01/examining-the-draft-national-ip-policy-stakeholder-meetings-to-be-held.html

[5] http://cis-india.org/a2k/blogs/national-ipr-policy-series-cis-comments-to-the-first-draft-of-the-national-ip-policy

[6] Methodology for the Development of National Intellectual Property Strategies, Tool 1: The Process, p. 11.

[7] National IPR Policy (First Draft), p. 6-23.

[8] Methodology for the Development of National Intellectual Property Strategies, Tool 1: The Process, p. 9.

[9] Ibid .

[10] Ibid , p. 20.

[11] Ibid , p. 20.

[12] Ibid , p. 21.

[13] Ibid , p. 22.

[14] Ibid , p. 25-26.

For more details visit https://cis-india.org/a2k/blogs/national-ipr-policy-series-indias-national-ipr-policy-what-would-wipo-think

National IPR Policy Series : Follow-up RTI to DIPP on the IPR Think Tank

nehaa — 2015-06-25T00:43:34Z

This RTI was prepared by Varun Baliga and Nehaa Chaudhari as a follow-up, based on the responses of the DIPP to our earlier RTI requests (available at http://cis-india.org/a2k/blogs/national-ipr-policy-series-rti-requests-by-cis-to-dipp-dipp-responses)

To,

Ms. Palka Sahni,

Deputy Secretary,

Central Public Information Officer,

IPR-II, IPR-III, IPR-IV, IPR-VI,

Room No. 254,

Udyog Bhawan, Delhi.

Subject: Request for Information under Section 6 of the Right to Information Act, 2005 regarding Information on the Procedure to File a Right to Information Application with the IPR Think Tank

Dear Madam,

1. Full Name of the Applicant: Nehaa Chaudhari

2. Address of the Applicant: Centre for Internet and Society, G-15 Top Floor, Hauz Khas, New Delhi - 110016

Mailing Address : nehaa@cis-india.org

3. Information Required: Context

Please consider this an application for information under Section 6 of the Right to Information Act, 2005. Since the request for this information is inextricable from the context in which it is made, it is previewed with a succinct overview of the facts.

I, as an employee of the Centre for Internet and Society ["CIS"], first filed a Right to Information ["RTI"] application with the Department of Industrial Policy & Promotion ["DIPP"] requesting information on the procedure followed in the appointment of the IPR Think Tank ["Think Tank"]. We received a response from the DIPP detailing the procedure followed. Then, we filed a RTI application with the DIPP requesting information on its functioning, particularly procedure followed and comments received prior to and after the release of the first draft of the National IPR Policy ["Policy"]. [1] In your response dated 26^th February 2015, the DIPP stated that the Think Tank functioned "independently without any interference of this Department (DIPP)". Therefore, apart from information that an "interactive meeting with stakeholders" was conducted while drafting the Policy, the DIPP stated it was not in a position to give any further information. Finally, the DIPP in a separate response dated 26^th February 2015, stated that "suggestions and comments on the draft of on [sic] National IPR Policy have been received by the IPR Think Tank directly". CIS followed this up by filing a RTI application with the Think Tank itself but we have not received a response.

4. Information Required: Details

Therefore, I seek information on the following:

a) The Think Tank is a public authority constituted for the purpose of the RTI Act. Who is the Public Information Officer of the Think Tank for the purpose of filing RTI applications? What are the measures taken by the Think Tank to comply with its obligations under the RTI Act?

b) What is the procedure to be followed in filing an RTI Application with the Think Tank?

c) Given that there is no information on the above, would the appropriate authority to request for information on the functioning of the IPR Think Tank be the DIPP?

5. Proof of Payment of Application Fee:

An Indian Postal Order for the amount of Rs. 10 dated ___________ favouring the Public Information Officer, Department of Industrial Policy & Promotion is enclosed as proof of payment of application fee.

This is to certify that I, Nehaa Chaudhari, am a citizen of India.

Please provide me this information at the address provided earlier in this letter.

Thank you

Yours sincerely

Nehaa Chaudhari

[1] http://cis-india.org/a2k/blogs/national-ipr-policy-series-rti-requests-by-cis-to-dipp-dipp-responses

For more details visit https://cis-india.org/a2k/blogs/national-ipr-policy-series-follow-up-rti-to-dipp-on-ipr-think-tank

National IPR Policy Series : Comments on the Proposed Intellectual Property Rights Policy to the Department of Industrial Policy and Promotion

nehaa — 2015-04-12T11:39:16Z

On 13 November, 2014, the Department of Industrial Policy and Promotion had released a Call for Suggestions for India's proposed National IPR Policy. This is the Centre for Internet and Society's (CIS) submission for the same.

Submitted by CIS with inputs from Pranesh Prakash, Director, Nehaa Chaudhari, Programme Officer, Anubha Sinha, Programme Officer and Amulya P., Intern. Click to view the PDF.

I. Preliminary

I.1. This submission presents comments from the Centre for Internet and Society ("CIS")[1] on the proposed National Intellectual Property Rights Policy ("National IPR policy") to the Department of Industrial Policy and Promotion, Ministry of Commerce and Industry, Government of India. ("DIPP").

I.2. CIS commends the DIPP for this initiative, and appreciates the opportunity to provide comments on the National IPR Policy. CIS' comments are as stated hereafter.

II. Principles

II.1.1. The characterization of intellectual property rights may be two- fold- first, at their core, intellectual property rights, are temporary monopolies granted to inter alia, authors and inventors; and second, they are a tool to ensure innovation, social, scientific and cultural progress and further access to knowledge. This dual nature and purpose of intellectual property protection is particularly critical in developing economies such as India. Excessive intellectual property protection could result in stunted innovation and negatively impact various stakeholders. [2] It is therefore our submission that the development of the IPR Policy be informed by broader principles of fairness and equity, balancing intellectual property protections with limitations and exceptions/user rights such as those for research, education and access to medicines.

II.1.2. These comments will evaluate the recent developments in the intellectual property regime in India and point out instances for possible reform.

II.1.3. These comments have been divided into five sections, dealing with patents, openness, open access to scholarly works, copyright, and negotiating free trade agreements in that order.

III. Detailed Comments

III.1. Patents

III.1.1. Key Issues Regarding Patents

III.1.1.1. The key issues involving patents in India include compulsory licensing, uncertainty in software patenting, slow pace of examination of patent applications, inter alia.

III.1.1.2. CIS submits that the Indian intellectual property regime contains numerous safeguards to ensure that monopolies of intellectual property are not exercised to the detriment of the public and that the National IPR Policy should continue to reflect these ideals.

III.1.2. Software Patents and Dual Monopoly

III.1.2.1. Presently, software in India may be copyrighted and computer related inventions are patentable. CIS is of the opinion that this results in an ambiguity that could potentially result in a dual monopoly over the same subject matter. This ambiguity around the legality of software patents and the scope of patents on computer related inventions has existed since the Parliament introduced the term "per se" to section 3(k) through the Patent (Amendment) Act, 2002, persisting despite repeated attempts[3] to bring about clarity in the law (the most recent one being the Draft Guidelines on Computer Related Inventions, released in 2013 by the Indian patent office).

III.1.2.2. CIS believes that software is currently adequately protected under copyright, and does not merit patent protection. The software industry in its infancy grew by leaps and bounds in the absence of patents, and imposing twenty year monopolies is stunting the development of software, especially, in an industry where technology changes every two to five years.

III.1.2.3. Therefore, CIS is of the opinion that the National IPR Policy should recognise the danger of software patenting, and encourage the adoption of and development of alternatives to a strict intellectual property regime, for instance, Free/Open Source/Libre Software.

III.1.3. Compulsory Licensing of Patents

III.1.3.1. CIS believes that the current regime allowing for compulsory licensing of patents in India helps achieve a balance between the two concerns of rewarding inventions and making them available to the public during times of need, of the rights of the patent holder with his obligations to ensure availability of products at a reasonable price by allowing third parties who do not own the patent to license the use of the patent during the term of protection.[4] CIS believes that such a balance cannot be arrived at merely by market mechanisms. CIS further believes that achieving such a balance is important for a developing country like India as we have special concerns regarding access to healthcare and access to technologies that will protect our national interest.[5]

III.1.3.2. Therefore CIS submits that the National IPR policy should continue to make positive allowances for government involvement in this space, through the compulsory licensing of patents in certain situations.

III.1.4. Alternative Licensing Mechanisms

III.1.4.1. CIS believes that government participation in the patenting regime ensures that all interests are taken on board and the social costs of patents are kept in mind. CIS is of the opinion that the National IPR policy should be formed after careful consideration of alternative patent licensing mechanisms that could help achieve a balance between the interests of different stakeholders particularly because as a developing economy we have greater needs for access to medicines and technologies to ensure economic development.[6]

III.1.4.2. On patent pools: In the interests of ensuring development of technology and innovation while balancing the social costs of patents, CIS submits that the National IPR Policy should consider alternative licensing mechanisms such as patent pools which present an efficient legal arrangement to the different problems that arise when companies have complementary intellectual property rights and these rights are essential to new technologies being used and employed[7]. Such a licensing could be done with government participation to ensure standard royalty rates and standard agreements.

III.1.4.3. On tailoring patent strengths: Our patent system provides for a one size first all approach to patent terms. CIS believes that the National IPR Policy could suggest the adoption of a more studied approach to differential patent strengths that properly balances out the benefits of the innovation against social costs of patents both in the form of monopoly pricing and threats to subsequent pricing is required to ensure that our patent system is fair equitable and in our national interest.[8]

III.1.4.4. On royalty caps: CIS believes that the National IPR policy could encourage bringing back royalty caps for certain sectors as a means of regulating the market and ensuring that access to technologies is unharmed. CIS believes that this will serve the larger national interest and ensure technological development.[9]

III.2. Openness

III.2.1. Free and Open Source Software

III.2.1.1. Free and Open Source Software ("FOSS") has emerged as a key agent in information technology policy making in India. There has been an increased importance of free and open source software in education, governmental agencies, as recently demonstrated by the Indian Government's decision to shift to open source software, in sync with the Digital India initiative.[10]

III.2.1.2. CIS believes that the IPR policy should encourage free and open software in education, governmental agencies etc. CIS believes that this shift in open source software is necessary to keep our IPR policy in sync with developments in the digital world.

III.3. Open Access to Scholarly Works

III.3.1. Open Access Policies and Scientific and Scholarly Works

III.3.1.1. The benefits of implementing an open access policy with regard to scientific and scholarly works are manifold. Providing open access to scholarly research will ensure percolation of cutting edge research into the society. It has been often argued that restricted access to government funded research is unethical, since scientific research conducted by government agencies is partly, if not entirely, funded by the taxpayers' money.

III.3.1.2. Government Initiatives Towards Open Access

III.3.1.2.1. CIS believes that the steps taken in this regard by the Department of Biotechnology and Department of Science to make scientific research publicly available by developing an open access policy are laudable, especially from the view of increasing access to research undertaken at these institutions.

III.3.1.2.2. There are several other government agencies which have implemented open access policies, namely, the Council of Scientific and Industrial Research, Indian Council of Agricultural Research and Institute of Mathematical Sciences. CIS believes that this is step in the right direction

III.3.1.2.3. Copyright is the key instrument to effect open access policies. CIS believes that the work should be appropriately copyrighted to allow for free and open access to any interested person.

III.4. Copyright

III.4.1. Exceptions for Fair Dealings

III.4.1.1. The 2012, Amendment Act extended fair dealing exceptions in several ways; to sound recordings, videos, to the making of three dimensional works from two dimensional works,[11] to storing of electronic copies at non-commercial public libraries, [12] to rights of commercial rental.[13] While the Act touched upon some of the burning issues with regard to limitations and exceptions to copyright, CIS believes that it did miss out on laying down clear rules for issues like exceptions for educational institutions, libraries and archives which is currently being negotiated at the standing committee of the WIPO as an international instrument,[14] parallel importation of books for non-commercial libraries, and extending the current exceptions for education to distance education and digital education. CIS is of the opinion that while this was a step in the right direction the IPR policy should continue the trend of extending exceptions for fair dealing and should encourage forming general guidelines for fair dealings as it would help achieve goals of education and scientific and cultural progress.

III.4.1.2. CIS believes that it would be beneficial if general guidelines for fair dealing were provided for. These guidelines must not take away from existing fair dealing exceptions under the law, but should act as a framework to understand what constitutes fair dealing. CIS submits that this coupled with support for the International Treaty for Limitations and Exceptions for Libraries and Archives[15] and for International Treaty for Limitations and Exceptions for Educational and Research Institutions [16]would help serve national interest as it would help reduce the freezing effect by reducing the costs of using copyrighted work legitimately and ensure social and cultural progress. CIS submits that the National IPR policy should encourage the international instruments aimed at providing for exceptions and limitations for fair dealings.

III.4.2. Exceptions for Government Produced Works

III.4.2.1. CIS believes that the current exceptions for use of government produced works are far too limited and taxpayers must be free to use the works that they have paid for.[17] CIS submits that the National IPR policy should encourage the broadening of exceptions with regard to government produced works.

III.4.3. Compulsory Licensing

III.4.3.1. The Act allowed for compulsory licensing of foreign works[18] and put in place statutory licenses for broadcasters[19] CIS believes that this was a positive step that will encourage cultural and scientific education in India. CIS submits that compulsory licenses for copyrighted works help achieve goals of education, of scientific and cultural progress. CIS submits that the National IPR policy should encourage compulsory licensing of copyrighted works in certain situations for the promotion of access to knowledge and information.

III.4.4. Protection of Authors/ Performers Rights

III.4.4.1. The Act allowed for protection of author's rights regarding storing of their work in electronic medium[20] and for protection of rights of performers both commercial [21] and moral.[22] CIS believes that while this is in itself a positive step, there is need to ensure that such moral rights are not abused by authors or rights holders to stop discourse or to stop fair use and adequate measures to ensure the same must be put in place to avoid excessive intellectual property rights. CIS submits that the National IPR policy should discuss limitations to moral rights of authors and performers to make room for fair dealings.

III.4.5. Users Rights Regarding Cover Versions Of Songs

III.4.5.1. The Act allows for users to make cover versions of a sound recording required provided they comply with rules regarding notices and royalties. CIS believes that this is potentially problematic as even recording companies have acknowledged that the non-commercial cover versions help in increasing the popularity of the original and therefore help in the growth of the film and music industry and this new law could possibly stop individuals from making such cover versions due to fear of violating the law and therefore harm the film and music industry. Therefore, CIS believes that the National IPR policy should consider measures to provide more rights to the users in order to ensure development of the music and film industry; CIS believes that this is an instance of excessive intellectual property and is harmful to all stakeholders involved.

III.4.6. Relinquishment of Copyright and Creative Commons

III.4.6.1. The amended Section 21 of the Act now only requires a simply public notice from the author to relinquish his copyright as opposed to an application to the registrar of copyrights. CIS believes that this is a positive step as now the requirement under the rules can easily be satisfied by using a Creative Commons Zero license.[23] CIS submits that the National IPR policy should undertake similar steps to encourage the usage of creative commons licenses and thereby facilitate access to knowledge.

III.4.7. Term of Protection of Copyrights

III.4.7.1. The Act provided for an extension of term of copyright for photographs to almost double its earlier duration, [24] CIS believes that this is possibly harmful as it could lead to copyrighted works not entering the public domain for unnecessarily long periods of time and thereby harm progress in science and culture. In this regard CIS further believes that since the term of protections provided under our copyright law for all works extends beyond our international obligations, The National IPR policy should try to ensure that scientific and cultural development are not hindered by excessive terms of protection that go beyond the minimum owed under our international obligations.

III.4.8. Protection Of Rights Management Information

III.4.8.1. The amendment Act provided for protection of rights management information (RMI) and provided for both criminal and civil remedies in instances of unauthorised alteration or removal of RMIs.[25] CIS believes that these provisions are unnecessary as India does not have obligations to do so under international treaties and there is no actual demand for these rights as it is yet unclear how these rights help authors or performers. CIS submits that these provisions increase the costs for users who want to legitimately break these digital locks to obtain accessible formats for the information and that so long as the rights holder does not have an obligation to ensure that their works are accessible, provisions such as these cripple creativity and stunt industry growth.[26] Therefore CIS submits that the National IPR policy should help achieve a balance of concerns of users who want to legitimately break these digital locks on the one hand and the need to prevent digital piracy on the other.

III.4.9. Intermediary Liability

III.4.9.1. CIS submits that due to the IT (Intermediary Guidelines) Rules, 2011, there is a freezing effect on free speech on the internet as these rules are procedurally flawed and go against the principles of natural justice.[27] CIS believes that such a restraint on free speech harms creativity and innovation, to this end CIS submits that the National IPR policy should ensure free speech is not unfairly hindered by rules regarding copyright infringement.

III.4.10. Criminalization of Copyright Infringement

III.4.10.1. Individual non-commercial infringement of copyright is a crime under Section 63A of the Copyright Act [28] and is punishable by imprisonment which can extend to three years or a fine that can extend up to rs. 2,00,000/- CIS believes that this is an instance of excessive intellectual property protection; CIS is of the opinion that the civil remedies available for copyright enforcement are enough for copyright protection and that the criminal remedies under the Copyright Act, 1957 function only to ensure that there are obstacles to free and legitimate use of copyrighted material. CIS believes that such provisions are harmful for innovation within India and impose unnecessary costs on users.[29] Therefore CIS believes the National IPR policy should reconsider the question of criminalisation of copyright infringement and should ensure that any penal consequences are proportional to the act committed.

III.4.11. Concluding Remarks on Copyrights

III.4.11.1. In conclusion while India has what some call the most balanced approach to intellectual property law in the world today, [30] one that balances both the interests of the author and the copyrights holder as well as the end user and the overall public interest, there is room for improvement as far as adapting to the internet age is concerned, especially considering the easy appeal of forming an intellectual property regime that is excessive and in the end harms all the concerned stakeholders.

III.5. Free Trade Agreements (FTAs)

III.5.1. Need for Transparency Regarding FTA Negotiations

III.5.1.1. India has lately been negotiating Free Trade Agreements with several developed nations, these are closed door negotiations and the texts of the meetings are not available to the public. CIS believes that these texts should be made available to the public to ensure transparency and to ensure all stakeholders know of any developments, CIS believes that public knowledge of the positions of various actors in any negotiation process will help ensure that such positions are taken keeping in mind the interests of all stakeholders and will ensure that any outcome from such negotiations will be in national interest.[31] CIS therefore submits that the National IPR policy should encourage transparency with regards to negotiations for free trade agreements.

III.5.2. FTAs with Developed Nations and TRIPS Plus Standards

III.5.2.1. Leaked drafts of the European Union- India FTA negotiations have revealed that provisions on intellectual property protection were extensive and affected the pharmaceuticals sector, these provisions, if agreed upon, could go well beyond India's obligations under the WTO and under the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement. In fact, developed countries including the US [32] and EU[33] have tried time again and again to encourage developing countries to adopt standards of IP protection in bilateral or regional trade investment agreements that go beyond TRIPS [34]

India has repeatedly indicated to the WTO that it was not willing to commit to an agreement beyond TRIPS.[35] These commitments could include data exclusivity protection measures, ever-greening of patents etc. [36]

CIS believes that despite the growing pressure from developed nations regarding various FTAs,[37] India must hold its ground and ensure that concerns about India's national interest and the difference in the development levels of the European Union or other developed countries and developing countries like India are kept in mind while negotiating obligations under international agreements. Therefore CIS believes that the National IPR policy should ensure that TRIPS plus standards are not acceptable to India as they will undermine our national interest and hinder development at the national level.[38]

III.5.3. Shift from Multilateral Forums to Bilateral FTA negotiations

III.5.3.1. CIS believes that the trend of shift in negotiations from a multilateral forum such as the WIPO or the WTO to a bilateral or a regional forum [39] is harmful as certain flexibilities are built into the TRIPS and therefore multilateral negotiations based on TRIPS will help pursue India's interests better. And therefore when possible, India must prefer negotiations at multilateral forums as opposed to bilateral or regional treaties, CIS believes that the National IPR policy should reflect the same preferences. [40]

IV. Concluding observations

IV.1. On patents, CIS submits that the National IPR policy reconsider software patenting, that encourage open source software, continue and strengthen that compulsory licensing and consider and study alternative licensing mechanisms as means to achieve a balancing of the interests of different stakeholders.

IV.2. On openness, CIS submits that the IPR policy should encourage free and open software in education, governmental agencies etc.

IV.3. On open access to scholarly work, CIS commends the work done by government agencies so far and submits that the IPR policy should encourage open access to scholarly works.

IV.4. On copyright, CIS submits that the IPR policy work toward strengthening and extending fair dealings provisions, supporting international instruments that strengthen fair dealing, encourage compulsory licensing. CIS submits that the IPR policy should work towards ensuring that protections for copyright such as terms of protection, intermediary liability, protection of rights management information, criminalisation of copyright infringement etc., do not harm other legitimate interests of users or unnecessarily restrict free speech.

IV.5. On FTAs, CIS submits that the IPR policy encourage transparency with regard to FTA negotiations, ensure that TRIPS plus standards are not accepted as they would harm national interest and to encourage multilateral negotiations over bilateral free trade agreements.

IV.6. CIS welcomes the initiative of the DIPP to form a National IPR policy, CIS believes that it is essential that such an IPR policy avoid excessive intellectual property rights protection and is formed keeping in mind goals of development and national interest.

IV.7. CIS is thankful to the DIPP for the opportunity to provide comments on the National IPR policy and would be privileged to work with the government on this and other matters in these areas.

[1] www.cis-india.org (Last Accessed: 30/11/14).

[2] The Washington Declaration on Intellectual Property and Public Interest concluded after the Global Congress on Intellectual property and Public Interest in August 2011 attended by over 180 experts from 32 countries articulate this position perfectly. Available at: http://infojustice.org/wp-content/uploads/2011/09/Washington-Declaration.pdf (Last Accessed:29/11/14)

[3] Shashank Singh, Guidelines for Examination of Computer Related Inventions: Mapping the Stakeholders' Response, Available at: http://cis-india.org/a2k/blogs/guidelines-for-examination-of-computer-related-inventions (Last Accessed: 30/11/14).

[4] N.S. Gopalakrishnan, Compulsory License Under Indian Patent Law, MPI Studies on Intellectual Property and Competition Law, Vol.22, 2015, pp.11-42.

[5] Raadhika Gupta, Compulsory Licensing under TRIPS: How Far it Addresses Public Health Concerns in Developing Nations, Journal of Intellectual Property Rights, Vol.15, September 2010, pp.357-363. Available at: http://nopr.niscair.res.in/bitstream/123456789/10211/1/JIPR%2015(5)%20357-363.pdf (Last Accessed: 30/11/14).

[6] Id.

[7] Nehaa Chaudhari, Pervasive Technologies: Patent Pools, Available at: http://cis-india.org/a2k/blogs/patent-pools (Last Accessed: 30/11/14).

[8] One of the measures along which we could have differential patent strengths could be the time for the invention to reach the market, see, Benjamin N Roin, The case for Tailoring Patent Awards Based on the Time-to-Market of Inventions, UCLA Law Review, Vol.61, 2013, Available at: http://dash.harvard.edu/bitstream/handle/1/10612849/Case%20for%20Tailoring%20Patent%20Awards%203-15-13.pdf?sequence=1 (Last Accessed: 30/11/14).

[9] Sunil Abraham, Patented Games, Available at: http://cis-india.org/a2k/patented-games (Last Accessed: 30/11/14.

[10] See Nabi Hasan, Issues and Challenges in Open Source Software Environment with Special Reference to India, Available at: http://crl.du.ac.in/ical09/papers/index_files/ical-43_144_317_1_RV.pdf (Last Accessed: 30/11/14).

[13] Zakir Thomas, Overview of Changes to the Indian Copyright Law, Journal of Intellectual Property Rights, Vo.17, July 2012, pp.324-334.

[14] See conclusions of the chair at the 23^rd session of the Standing Committee on Copyright and Related Rights at the WIPO, Available at: http://www.eifl.net/wipo-sccr23-conclusions (Last Accessed: 30/11/14).

[15] For draft proposal of the treaty see IFLA, Treaty proposal on Limitations and Exceptions for Libraries and Archives, Available at: http://www.wipo.int/edocs/mdocs/copyright/en/sccr_27/sccr_27_2_rev.pdf (Last Accessed: 30/11/14).

[16] See The Draft WIPO Treaty on Exceptions and Limitations for the Persons with Disabilities, Educational and Research Institutions, Libraries and Archives, proposal by the African Group (document SCCR/22/12).Available at: http://www.wipo.int/edocs/mdocs/copyright/en/sccr_22/sccr_22_12.pdf (Last Accessed: 30/11/14).

[17] See Section 52(q) of the Copyright Act, 1957.

[21] Id.

[23] CIS, Comments on Draft Copyright Rules, 2012, available at: http://cis-india.org/a2k/feedback-to-draft-copyright-rules-2012 (Last Accessed: 29/11/14).

[24] See Pranesh Prakash, Analysis of the Copyright (Amendment) Bill, 2012, Available at: http://cis-india.org/a2k/blogs/analysis-copyright-amendment-bill-2012

[26] Pranesh Prakash, Technological Protection Measures in the Copyright (Amendment) Bill, 2010, Available at: http://cis-india.org/a2k/blogs/tpm-copyright-amendment (Last Accessed: 29/11/14).

[27] Rishabh Dara, Intermediary Liability in India: Chilling Effects on Free Expression on the Internet, 2011, Available at: http://cis-india.org/internet-governance/intermediary-liability-in-india.pdf (Last Accessed: 30/11/14).

[28] Section 63A, Copyright Act 1957.

[29] See Right to Share: Principles on Freedom of Expression and Copyright in the Digital Age, Article19, Available at: http://www.article19.org/resources.php/resource/3716/en/ (Last Accessed: 29/11/14).

[30] V Premanath, S Sivaram, Intellectual Property Systems in India: Progressing towards Greater Maturity and Diversity, Available at: http://iimahd.ernet.in/users/anilg/files/Articles/Emerging%20IPR%20Consciousness,%20vikalpa.pdf (Last Accessed: 29/11/14).

[31] Jan Wouters, Idesbald Goddeeries, Bregt Natens etc, Some Critical Issues in the EU -India Free Trade Agreement Negotiation, Working Paper No.102,KU Leuven Centre for Global Governance Studies, https://ghum.kuleuven.be/ggs/publications/working_papers/new_series/wp101-110/wp102-wouters-goddeeris-natens.pdf , February 2013, p.16.

Monika Ermert, Lack of Transparency in EU-India FTA Talks Spurs Requests for Halt, ip-watch, Available at: http://www.ip-watch.org/2010/09/03/lack-of-transparency-in-eu-india-fta-talks-spurs-requests-for-halt/ .

[32] The current policy of the US Trade Representative is seen to be reflected in the 2002 Trade Act available here: http://www.gpo.gov/fdsys/pkg/BILLS-107hr3009enr/pdf/BILLS-107hr3009enr.pdf See HR3009.

[33] The current trade strategy for the EU can be found here http://trade.ec.europa.eu/doclib/docs/2014/july/tradoc_152643.pdf .

[34] Commission on Intellectual Property Rights, Integrating Intellectual Property Rights and Development Policy, Available at: http://www.iprcommission.org/papers/pdfs/final_report/ciprfullfinal.pdf , p.174.

[35] C. Correa, 'Negotiation of a Free Trade Agreement European Union-India: Will India Accept Trips-Plus

Protection?', (2009) Oxfam Deutschland and Evangelischer Entwicklungsdienst Analysis,

http://www.oxfam.de/files/20090609_negotiationofafreetradeaggrementeuindia_218kb.pdf .

[36] S. Sharma, 'the EU-India FTA: Critical Considerations in a Time of Crisis', (2009) Centad Working Paper.

[37] Asit Ranjan Mishra, India to negotiate FTAs with emerging market nations, Livemint, Available at: http://www.livemint.com/Politics/RlJNxUXovjNVaRzQt9KXmO/India-to-negotiate-FTAs-with-emerging-market-nations.html .

[38] Sisule F Musungu and Graham Dutfield, Commission Multilateral Agreements and a TRIPS -Plus Word: the World Intellectual Property Organisation (WIPO), Available at: http://www.iprsonline.org/ictsd/docs/WIPO_Musungu_Dutfield.pdf.

[39] For Trends, See Beginda Pakpahan, Deadlock in the WTO: What is next? Available at: http://www.wto.org/english/forums_e/public_forum12_e/art_pf12_e/art19.htm .

[40] See Amit Sengupta, Do not trade away our lives, Vo.9, No.2, Indian Journal of Medical Ethics, 2012, Available at: http://www.issuesinmedicalethics.org/index.php/ijme/article/view/88/1047 .

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