Centre for Internet and Society

Maher Reports on WIPO Copyright Deliberations

praskrishna — 2014-07-03T09:41:28Z

SAA Past President and IPWG member William Maher represented the views of American archivists as a permanent observer at the World Intellectual Property Organization’s Standing Committee on Copyright and Related Rights meeting, December 16-20.

Read the original published on the website of the Society of American Archivists. CIS is briefly mentioned.

Attendees discussed an international treaty for library and archives exceptions for copyright, including provisions related to orphan works and making preservation copies. Maher noted that many of the national delegates are less familiar with the mission of archives than that of public libraries; his statement on SAA’s behalf helped to bridge that gap. (View his presentation and that of the International Council on Archives representative here, at 26:30 and 34:00.)

View the International Federation of Library Associations and Institutions (IFLA) information flyer here.

Following is Maher's report on the meeting.

Summary Report on Service as Society of American Archivists
NGO Representative at the World Intellectual Property Organization’s
Standing Committee on Copyright and Related Rights, 26^th Session

William J. Maher
January 10, 2014

Executive Summary: At the December 2013 Standing Committee on Copyright and Related Rights (SCCR), the SAA was instrumental in educating not only the WIPO national delegates but also the library advocacy groups on the differences between libraries and archives and the specific archival needs for a treaty supporting copyright exceptions and limitations. With our coalition partners, the SAA helped prevent the marginalization of work on library and archives exceptions during future meetings. Meanwhile, new leadership of the SCCR helped the Committee avoid the stalemate that had been evident at SAA’s prior attendance in November 2011. Thus, momentum has been maintained for continued work on library and archives exceptions at the three SCCR sessions scheduled for 2014.

Next Steps: Because of the positive outcome of SCCR 26 calling for continuation of “text-based” work on library and archives exceptions over the next three meetings in 2014, it will be important for SAA to secure funding to ensure that our archival voice, experience, and particular needs continue to inform both the NGOs and national delegates at the these sessions. In addition, to help make that representation most effective, the Intellectual Property Working Group will need to develop several concise case study statements or “issue briefs” to exemplify the particular archival dimensions of the eight remaining themes in the draft text being considered for a treaty. Finally, early consultations should be held with coalition partners to develop a strategy to ensure retention of the text’s orphan works provisions.

Background: Copyright law may be established by national laws, but it is international treaties, such as the Berne Convention and the 1996 World Intellectual Property Organization (WIPO) Copyright Treaty that provide the broad framework of copyright and authors’ rights. While current treaties allow nations to provide some exemptions to authors’ monopoly of exclusive rights, the areas for exceptions are quite limited, and none are mandated except in the recently treaty supporting exceptions for visual impaired persons.[1] Meanwhile, there continue to be onerous regimes for exclusive rights,[2] and it has been difficult to get attention to archivists’ and librarians’ specific interests in supporting acquisition, preservation, and accessibility of our of collections, and services to our users.

Fortunately, there are global actors with whom American archivists can collaborate. Thanks to 2004 and 2008 initiatives by Chile, Brazil, Uruguay, and Nicaragua, there has been a call for WIPO to develop treaty language that would require member states to enact education- and development-friendly exemptions into national law. The International Council on Archives (ICA) has commissioned a copyright working group to examine these issues, created a “white paper” entitled Current Issues in Copyright for Archives, and appointed the UK’s Tim Padfield as a representative to WIPO. By their joint work, ICA and the International Federation of Library Associations (IFLA) have created a plan to secure appropriate exceptions and limitations to copyright’s exclusive rights. The plan’s success, however, would require continued engagement in and representation at WIPO.

WIPO’s Standing Committee on Copyright and Related Rights (SCCR) is the body authorized to draft language for international treaties on copyright and generally meets twice a year. The possibility of “library and archives rights” was the subject of a special SCCR meeting in Geneva in November 2011. This meeting was the first time the Society of American Archivists was able to participate as an ad hoc Non-Governmental Organization (NGO) observer, and I attended as SAA’s representative. Subsequently, SAA applied for and was granted status as a permanent NGO observer, and on that basis sent me once again as a representative to the SCCR 26 meeting December 16-20, 2013. Given what I had observed in 2011, the protocol and process of the SCCR made much more sense in 2013. Perhaps this was just part of the learning curve, but it equally well could be a result of new leadership of the committee.

The effort to develop a treaty to provide exceptions and limitations for libraries and archives has been tied to development concerns of the “global South.” When the WIPO General Assembly adopted a development agenda in 2007, SCCR had a mandate to make development needs an integral part of its work. It commissioned Kenneth Crews to provide a report examining copyright laws of 149 of WIPO’s 184 member states.[3] Results, not surprisingly, showed wide variations in national practices and a general lack of provisions addressing library and archives needs. In 2010, SCCR expanded its consideration of exemptions and limitations to include provisions for visually impaired persons, libraries and archives, and education. Then, in June 2011, the 41-member Africa Group presented a draft WIPO treaty for these latter areas, based heavily on a 2010 proposal from IFLA. Finally, IFLA itself presented its own “Treaty Proposal on Copyright Limitations and Exceptions for Libraries and Archives” (TLIB) at the November 2011 meeting.[4] The draft was cosponsored by ICA, Electronic Information for Libraries (EIFL), and a library NGO called Innovarte.[5]

Although IFLA, as an NGO, cannot propose treaty language, at the 23^rd session of SCCR in November 2011 a coalition of Brazil, Ecuador, and Uruguay put forward a document incorporating all of the essential elements of IFLA’s proposal, and that document received standing for debate and discussion within SCCR. However, the discussion revealed deep divides among the national delegates. Developed countries argued that their separate laws already contained provisions to meet the needs of users for access to library and archival material and that no mandatory treaty was needed. Developing and lesser developed countries argued that the needs of their populations for access to information and knowledge was impaired by the lack of exceptions and limitations to copyright and particularly by the lack of an international instrument that could provide predictability and uniformity across national borders. At best, the developed countries suggested the adoption of so-called “soft law,” or guidelines that countries could adopt. At worst, some argued that attention to balancing copyright with exceptions and limitations was unnecessary use of the committee’s time.

In the end, while the November 2011 SCCR 23 could not agree on the nature of the “international instrument” it would be pursuing, it adopted a work plan to continue to discuss library and archives exceptions at its future meetings while also focusing attention on the creation of exceptions to support the needs of visually impaired persons (VIPs). Over the course of 2012 and through mid-2013 (i.e., SCCR 24-25), the Committee focused most of these discussion of exceptions on the VIP matter, but it did set a timetable to devote particular attention to the library and archives exceptions over the course of SCCR 26 through 29, with the objective of adopting a text for submission to a diplomatic conference in 2015.

Despite the seemingly intractable positions evident in 2011 and widely reported through early 2013 regarding VIP provisions, a June 2013 diplomatic conference in Marrakesh was able to reach an unexpected agreement on a VIP treaty. This was an important development because it represented a first. It elevated copyright exceptions to treaty status, and it involved obtaining consensus among hitherto seemingly irreconcilable parties.

The so-called “Miracle of Marrakesh” set the stage for potential drama at the December 2013 SCCR 26. Could the momentum of creating copyright exceptions carry forward from the VIP area to also support library and archives exceptions? Would the publishing industry, collective rights organizations, and the global north be able to argue that the exceptions created at Marrakesh had rebalanced copyright so that attention could now focus on other areas of exclusive rights, such as the long-deferred matter of exclusive rights for broadcasting organizations?

Preparations: Once it was clear that SAA Council would be funding participation at SCCR 26, I was asked to join various listservs and e-mail lists of other treaty advocates and invited to to brainstorm and coordinate positions among treaty-friendly NGOs. These collaborations involved assessing the variant drafts that national delegates had put forward for the 11 separate “topics” or provisions of a proposed treaty text and advising on which variant was best for our particular needs. Particularly important was being able to participate in the shaping of the message for a general publicity piece to explain to the public why copyright reform for libraries and archives mattered. Because of this access and participation, SAA was able to have its logo appear on the ultimate piece after we were sure that it adequately reflected archival as well as library concerns.[6] Throughout the entire preparation period, as well as during the week of SCCR, there were multiple and frequent consultations with the SAA Intellectual Property Workding Group (IPWG) and the SAA Executive Director, especially in drafting the main statement for SAA to present as well as the text for the “Side Event” presentation.

SCCR 26, December 16-20, 2013: The schedule for SCCR 26 allocated the first two days to a discussion of exclusive rights for broadcasting organizations, a question of limited interest to archivists. This was to be followed by two days devoted to exceptions and limitations for libraries and archives, and a final day discussing issues relating to whether exceptions could be created to support educational institutions and organizations. The session opened on December 16 with the election of Martin Moscoso of Peru as a new chair to lead the committee for the next two years. He had most recently served as facilitator over informal discussions between opposing sides at Marrakesh and had strong support from the Committee.

Moscoso proved adept at maintaining good order, identifying issues for potential consensus, and managing situations when positions of some national delegates conflicted sharply. The resultant draft text for the SCCR’s plan for future work suggests that the matter of the exceptions for libraries and archives being sought by the Africa Group (AG) and the Group of Latin American and Caribbean countries (GRULAC) will remain on the agenda. Overall, the SCCR session showed a much more positive spirit and productivity than that of November 2011.

Library and Archives Exceptions and Limitations: Despite some efforts by global North countries to extend the broadcasting discussion beyond the scheduled two days, the Chair directed the Committee to follow the previously agreed-upon allocation of time. After calling upon regional groupings and national delegates offered for general comments on library and archives exceptions, the floor was opened the floor for presentations by approximately two dozen NGOs.

Interventions from Non-Governmental Organizations: Unlike some other international bodies such as the telecommunications union where invited NGOs participate in floor debate, at SCCR NGOs’ formal involvement is limited to scheduled opportunities to offer statements or “interventions” on the policy issues before SCCR. By long convention, these interventions are limited to three minutes, with some prior chairs enforcing the time limit vigorously. The NGOs at SCCR contained representatives from both sides. Those speaking against the need for library and archives exceptions included Motion Picture Association, International Federation of Journalists, International Federation of Musicians, International Publishers Association, Group of Scientific, Technical and Medical Publishers, Federation of Reproductions Rights Organizations, etc. Those speaking in favor of L&A exceptions included the Canadian Library Association, Center for Internet and Society, German Library Federation, Karisma Fundaćion (Colombia human rights organization), IFLA, eIFL, ICA and the SAA. In his intervention, Jamie Love of Knowledge Ecology International pointed out that the needs of archives were particularly striking yet seemingly less complex than those of libraries.

A central part of my presence as SAA’s NGO representative at SCCR was this opportunity to provide a formal position statement to the Committee.[7] Within the allowed three minutes, I noted how the recent UNESCO “Universal Declaration on Archives” called for broad public access to archives. I also noted that because the public increasingly expected archival content be online, copyright represented a major barrier to the archival mission and to the public’s right to access. Noting the insufficiency of the U.S.’s Section 108 library and archives exceptions, I called the national delegates’ attention to the need to develop a treaty that would provide cross-border uniformity. I closed by suggesting that the viability of both archives and the copyright system required exceptions to support public access for heritage and accountability. The statement appears to have been well-received by treaty advocates based on several comments that received through the end of the week. Perhaps the best indication of this was the blog entry provided by Manon Ress of Knowledge Ecology International, who reproduced my statement in full, immediately preceded by her comment: “The room is clearly divided but the intellectual argument is being won by the libraries and archives. Here are some of the very strong statements.”[8]

Debate by National Delegates on Proposal for Library and Archives Treaty: Following a previously developed work plan, the Committee adopted a text-based discussion of the awkwardly titled: “Working document containing comments on and textual suggestions towards an appropriate international legal instrument (in whatever form) on exceptions and limitations for libraries and archives.” The work plan had called for discussion of the draft text through its 11 topics which had been built from texts first by the Africa Group and Brazil/Ecuador.[9] Over the two allocated days, the delegates were able to complete work on the first two topics (copying for preservation and for users), touch briefly on legal deposit (topic 3), and begin discussion of library lending (topic 4). Those skeptical of the need for an international treaty kept trying to steer the discussion toward a review of current national practices and the need to protect the authors’ interests. Advocates for the treaty emphasized the need for a base level of exceptions and the need to establish uniformity across national borders. Insofar as multiple phrasings of the the proposed provisions were left in document, those proposals appear to have basically survived the discussion, but it became clear that there was overlap among some of the themes, such as copying for users and library lending/document delivery. Thus, some consolidation could be expected. For archives, issues about preservation, including the need to remove limits on the number of preservation copies, were well handled. However, one of our most important topics, orphan works copying and distribution, was deeper into the work plan and was not addressed.

Overall, there was little change in the delegates’ positions during the meeting. In short, the global North argued that an international instrument was not needed because many countries had addressed these concerns with national laws. They therefore tried to steer SCCR’s work towards merely studying the laws and practices of member states. In addition, a number called for an update of Kenneth Crews’ 2007/08 study, presumably on the assumption that legislation in some countries may have changed in the past 6 years.

Throughout, the SCCR Chair worked to find a consensus for the future work. On the down side, it appeared that the complexity of the copyright issues archivists face are quite foreign to these policy makers, no matter how much we restated the principles that we would like to see incorporated into an international instrument. The discussion at SCCR 26 clarified that our most important task is to have a rich roster of simple, practical examples of how the lack of a specific exception militates against the public’s need for information and records. We also need to counter the claim that national laws already provide locally tailored solutions by explaining the cross-border, international nature of the problem. Good, clear, and provocative examples in our prepared remarks and in briefing sheets, will advance the understanding of friendly delegates. on whom we have to rely. The IFLA and eIFL representatives began working on such a set of

“Side Event” Presentation: SCCR meetings often include “side events” beyond the official proceedings of the Committee. These events include evening receptions as well as the more typical early afternoon panel sessions on some issue of relevance to the topics being considered. At SCCR 26, the Thursday December 19 side event, sponsored by IFLA, was titled “‘Digital Gridlock’” What Future for Libraries and Archives?” Its particular point was to clarify how access to library and archival material is impeded by copyright limits, and how the problem is fundamentally an international one that can only be solved by a treaty providing consistency across borders. The speakers were allocated five to ten minutes. I was asked to present on how copyright affected the future of archives. My remarks were titled, “It's My Heritage, Why Can't I Have It? The Unintended Consequences of the Digital Embargo.”

Realizing that neither the delegates nor all the other NGOs understood what archives contain and what archivists do, I drew on my own archives’ experience to describe the scope and use of institutional archives and manuscript collections. I focused on the increasing expectations to meet users needs via online holdings, and I emphasized how copyright in orphan works was a major impediment to meet these expectations. I cited an example of a NARA project where the use of its data files increased 335 times when the data were put online.[10] I made a special point of citing core statistics from Maggie Dickson’s University of North Carolina study to underscore the excessiveness of a strict authors’ rights and permissions regime for archival digital projects.[11] I closed with two specific examples drawn from collections and users at the University of Illinois Archives, in which key cultural heritage information was not readily available to individuals of those communities unless they could afford travel to see the originals. The presentation was well-received and generated some useful discussion during the question period. Overall, the “Side Event” was a successful opportunity to explain the archival concerns and clarify that they are not precisely the same as libraries’.

Education Exceptions: Friday morning, December 20, was devoted to general statements from NGOs, and regional and national delegates about the set of exceptions that the Africa Group had proposed to support educational organizations and educational activities. These call for a broad array of exceptions to allow copying and digitization of works in support of education and research activities at all levels. Overall, the concept appears to face a tough road ahead. Because this issue was at a very early stage, only the morning of the last day was dedicated to discussing it.

Conclusions and Closure of SCCR 26: One the defining elements of any SCCR meeting is the last day’s work to prepare a “Conclusions” document. It summarizes what work was completed during the session, including consensus statements on issues where possible. Most importantly it identifies the work plan and allocation of time in the coming SCCR meeting(s) for particular issues. Because the Conclusions define what it the SCCR has accomplished and where its priorities and policies are headed, each sentence in the relatively short document (generally 3-4 pages) is subjected to great scrutiny and sometimes nearly endless debate late into the night or wee hours of the morning.

Given the smoothness of the earlier days of the week, there was some hope that floor fights would be minimized and that the evening might end early. Unfortunately, that was not the case, even if the ultimate result was positive for those interested in library and archives exceptions. Those delegations advocating for a broadcast treaty and merely more study for the library and archives area launched an effort to allocate the majority of time in the next three SCCR meetings (i.e., three days in each) to broadcasting, with only two days in each for “exceptions.” Thanks to the some effective work by the librarians and archivists present in connecting with a few of the sympathetic to neutral country delegates, wording in the final version of Conclusion item 31 included the specific reference to libraries and archives as the lead topic for the latter two days of the April 2014 SCCR.

Nevertheless, the issue of relative allocation of time during the three 2014 SCCR meetings was contentious. Because of some persistent resistance by treaty-sympathetic countries, the Committee’s eventual consensus was that the allocation of days for the July and December SCCRs would need to be deferred pending outcomes of the April meeting. While this may seem a small accomplishment or even just a delaying action, in fact it reflects significant success by treaty advocates in not allowing the momentum from Marrakesh to be turned back.

Advocacy as Education of Multiple Publics: SAA’s experience at the SCCR in 2011 and especially in 2013 demonstrates that a central part of successful policy advocacy is not simply communicating our position, but also the extent to which we use the interchange as an opportunity for education. Because the policy makers and stakeholders whom we want to reach are only minimally aware of the mission and professional practices of archivists, influencing policy cannot start until we are recognized as a distinct sector with a mission that matters to the public and communities we serve. Ironically, the low visibility of archives and archivists among the public can work to our advantage in that if we sharpen our message carefully, we can immediately create a positive foundation for future interactions. By providing concise statements that focus on the broad cultural and educational value of archives combined with the substantial professional and ethical standards we have developed over the past three-quarters of a century, we can obtain not just respect for our mission but also a sympathetic hearing for our policy needs.

In this regard, according to comments from more than one of the stakeholders at SCCR 26, SAA was extremely effective in its communications and advocacy for the archives sector. SCCR 26 also demonstrated that archivists can obtain a hearing and audience for our concerns that is clearly well out of proportion to our inescapably small size. Indeed, it is the power of the archival message that has made stakeholders much larger than ourselves seek us out as coalition partners. In the process, we have gained significant leverage to advance our positions.

To the extent that SAA wishes to build on the success at SCCR 26, an infrastructure is needed for this advocacy. First, there needs to be a physical presence at WIPO. Many of the occasions SAA had for influencing the text of coalition advocacy pieces would not have arisen if our planned presence at SCCR had not opened the door to our participation in the coalition’s communication channels through which positions were formulated collaboratively. Only through these were we able to make clear to library and other prospective allies those fundamentally different and compelling archival needs. We to be able to dedicate significant amounts of time to collaboration in the weeks leading up to the meeting. Significant preparation is needed to prepare concise, targeted position statements that can be effectively delivered in time that is measured in seconds rather than minutes. The statements need be supplemented by practical examples of archival needs and the benefits to the public from our holdings and professional work. The examples need to reflect the breadth of the publics whom archives serve as well as how these relate to international policy objectives being sought.

It goes without saying that SAA’s representative has been absolutely dependent upon and grateful for the strong support provided by the Intellectual Property Working Group, especially its chair, and for the confidence and support of the SAA Executive Director. Education is essential for effective advocacy, but it is preeminently a team effort.

Endnotes

^[1]. According to the Berne Convention and the World Trade Organization’s 1994 TRIPS agreement, any exemptions provided by national legislation are supposed to meet a “three-step-test.” “Members shall confine limitations and exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rights holder.” See: Berne 9.2. at http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html

^[2]. For example, the 1996 WIPO Treaty required countries to create legal prohibitions against circumventing any electronic copy-protection mechanisms that copyright holders have used on their works, making archival migration and preservation of electronic records very difficult.

^[3]. Kenneth Crews, Study of Copyright Limitations and Exceptions for Libraries and Archives, http://www.wipo.int/edocs/mdocs/copyright/en/sccr_17/sccr_17_2.pdf.

^[4]. Available at: http://www.ifla.org/en/node/5856 .

^[5]. The TLIB proposal calls for copyright exceptions and limitations that would enable libraries and archives to engage in: parallel importation; library lending; reproduction and supply of copies; preservation; making and distributing accessible copies for persons with disabilities; providing access to retracted, withdrawn, and orphan works; cross-border uses; translation of legally acquired works for specific users/user groups; freedom from contract provisions which would otherwise overwrite the exceptions; circumvent technological protection measures for lawful access; and enjoy limitations on liability for libraries and archives work.

^[6]. The resultant flyer can be seen at: http://www.ifla.org/files/assets/hq/topics/exceptions-limitations/ifla_wipo_message_overview_final.pdf

^[7]. The full text of the intervention on behalf of the SAA can be found attached as Appendix A.

^[8]. http://keionline.org/node/1863 Unfortunately, because the SAA’s acronym was mistranslated, WIPO interpreters muddled the translation of the SCCR Chair’s Spanish language introduction of my intervention. Thus, Ms. Ress misidentified the first text as being from the International Council on Archives. While the ICA intervention was quite good, the text Ms. Ress replicates on the KEI blog is a verbatim transcript of the SAA remarks. The video of the SAA presentation can be seen at: http://www.wipo.int/webcasting/en/index.jsp – Scroll down to below the title "Video on Demand," and in the right-hand menu, select “SCCR/26-Wed 18-English, Afternoon Session.” SAA’s intervention begins at minute 34.

^[9]. Those themes/topics, with a brief summary of the provisions being sought, were:

1): Preservation : It shall be permitted for libraries and archives to reproduce works, or materials protected by related rights, for the purposes of preservation or replacement, in accordance with fair practice.

2) Right of reproduction: A library or archives may reproduce and distribute a copy of a copyright work to a library user, or to another library or archive, for purposes of: education, private study by a users, or interlibrary document supply.

3) Legal deposit: Treaty member countries may determine that specific libraries and archives or any other institution shall serve as designated repositories in which at least one copy of every work published in the country is to be deposited and retained.

4) Library Lending: It shall be permitted for a library to lend copyright works, or materials protected by related rights, to a user, or to another library.

5) Parallel Importation: Libraries and archives shall have the right to buy, import or otherwise acquire copies of any work published in any other Member State with the permission of the author of that work.

6) Cross border uses: To the extent that it is necessary for the exercise of a limitation or exception provided for in this Treaty, cross-border uses shall be permitted.

7) Orphan works, works out of commerce. Libraries and archives shall have the right to reproduce, preserve and make available in any format or retracted any withdrawn works from public access or orphaned works.

8) Limitations on Liability: A librarian or archivist acting in good faith within the scope of his or her duties, is protected from claims for damages, from criminal liability, and from copyright infringement.

9) Technological Protection Measures: Libraries and archives may circumvent technological protection measures to exercise any of the rights provided by this treaty. 10) Contracts: contractual provisions may not overwrite the limitations and exceptions.

10) Margaret O’Neill Adams, “Analyzing archives and finding facts: use and users of digital data records,” Archival Science 7( 2007):21–36.

11) Maggie Dickson, “Due Diligence, Futile Effort: Copyright and the Digitization of the Thomas E. Watson Papers,” American Archivist 73 (2010): 626-36.

For more details visit https://cis-india.org/news/society-of-american-archivists-july-2-2014-maher-reports-on-wipo-copyright-deliberations

Maharashtra's Copyright Policy Makes Education Unaffordable

sinha — 2018-06-26T14:22:30Z

In an alarming development for Indian students, Balbharati – the Maharashtra state bureau of textbook production and curriculum research – has issued a copyright policy that forces all publishers, digital educational-content creators, and coaching classes to obtain expensive licenses for developing material directly or indirectly relating to Balbharati’s content.

The article was published in Asia Times on June 20, 2018.

The stated object of the policy is to prevent commercialization of Balbharati’s physical and digital material.

Balbharati is responsible for setting curriculum and content for Classes 1-10, which is followed by Maharashtra state board schools. It is estimated that that around 85,000 schools in Maharashtra follow Balbharati’s prescribed content and syllabus, and the policy is set to affect students’ access to affordable supplementary material in state board schools, especially – most of which belong to the vernacular-rural section of society.

The government faced a backlash from various groups after the policy was released last week.

Parents have expressed serious concerns about the impending increase in the prices of educational material; publisher groups have already declared that the burden will be passed on to students. Some booksellers have stopped selling material altogether until the issue is resolved.

Digital and print publishers, booksellers and coaching classes are the ones directly affected, apart from the students, some of whom have lodged appeals with the state education minister, Vinod Tawde, to roll back the policy. Faced with the ire of multiple groups, the state government released a revised policy with a new license-fee structure. The new structure is based on “Balbharati Specific Turnover” slabs (defined as turnover of an entity from Balbharati related content), which depends on the nature of content produced – physical, digital, or tuition classes content.

A license is required of any person involved in the business of developing educational material such as guides, reference books, questions or tests, chapter summaries, model practice question papers, interactive digital content and software, with fees chargeable on a per subject, per medium, per grade basis.

The revisions to the policy only allow for a reduction in licensing fees, and it is likely that the government is still in ignorance of serious legal defects in it. Drafted with support from global consulting firm KPMG, the policy uses copyright as an instrument to justify the collection of license fees by making two fallacious assumptions: first, that all material produced by Balbharati is copyrightable; and second, that any dealing in Balbharati’s material, directly or indirectly, amounts to copyright infringement.

For example, the English Kumarbharati for Class 10 uses Tagore’s historic poem “Where the mind is held without fear…,” which is a work in the public domain now, and then proceeds to provide certain academic exercises for the reader.

Similarly, for science and mathematics syllabi, where basic facts and fundamental principles are provided and explained, is the Maharashtra government trying to establish copyright over such material, implying that this is creative material that has been developed by Balbharati’s staff?

Much of the content in Balbharati books deals with subjects that have been known to mankind for hundreds of years. Copyright law protects only expression of ideas, and not the ideas per se. Any supplementary material developed by another publisher over Balbharati’s syllabi should not amount to infringement, provided it is not a substantial copy-paste of Balbharati’s own expression in the books – and this is a conservative view of the scenario.

Indian copyright law

In fact, the Indian Supreme Court in the Eastern Book Company vs Modak (2008) case held that, “to establish copyright, the creativity standard applied is not that something must be novel or non-obvious, but some amount of creativity in the work to claim a copyright is required. Selection and arrangement can be viewed as typical and at best result of the labor, skill and investment of capital lacking even minimal creativity, which does not as a whole display sufficient originality so as to amount to an original work of the author.

“To claim copyright, there must be some substantive variation and not just a trivial variation, not the variation of the type where limited ways of expression available and author selects one of them.”

Thus the policy fails to appreciate fundamental developments in Indian law and places a barrier to creation of all kinds of educational material – without distinguishing between various kinds of supplementary material and showing precisely as to what nature and quantum of use as per Balbharati would qualify as infringing.

Interestingly, the previous version of the policy contained an FAQ (frequently asked questions) section that elaborated principles of copyright law. However, this section has been removed in the latest version. In any case, the FAQs presented incomplete explanations of Indian copyright jurisprudence, making references to outdated case law.

As noted earlier, publishers and digital content development companies are already suffering from the ramifications. In places where the quality of classroom teaching and learning is sub-par, it is unacceptable to deprive students access to affordable guides, reference books, digital content, and so on by unreasonably deeming indirect usage of Balbharati’s content as infringing activity.

Given India’s socio-economic conditions, it would be fatal to implement policies that seek to create a self-serving market of educational licenses for the state, very much at the expense of ensuring quality and affordable education. At the very least, the Maharashtra government should have conducted a proper public-consultation exercise before arriving at such a policy that stands to affect students and other stakeholders in the education system adversely.

For more details visit https://cis-india.org/a2k/blogs/asia-times-june-20-anubha-sinha-maharastras-copyright-policy-makes-education-unaffordable

M'lore: Wikipedia Workshop held for Konkani writers

praskrishna — 2014-04-14T10:36:25Z

A Wikipedia Workshop for Konkani writers writing in the Kannada script, was organised by All India Konkani Writers’ Organisation (AIKWO) in association with Wikipedia, on Apr 6, 2014, at Kalaangann, Mangalore.

Read the media release published in Daijiworld on April 6 here.

Dr U. B. Pavanaja (Programme Officer – Indian Languages, Access to Knowledge Program, The Centre for Internet and Society), conducted the workshop. Harriet Vidyasagar, Wikipedian volunteer, was also present.


Above: Dr. Pavanaja felicitated at the workshop. Picture by Daijiworld.com

This one-day hands-on workshop included presentations on Wikipedia in general, and Konkani Wikipedia in particular, and the participants were taught how to add and edit Konkani articles in the Kannada script in Wikipedia.

On behalf of Mandd Sobhann, Dr. Pratap Naik SJ handed-over three research works published by Mandd Sobhann – 1. Konkani Songs Among Mangalorean Catholics, 2. Anthology Of Konkani Literature In The Kannada Script and 3. Mandd Sobhann And Its Impact On Konkani Language And Literature – the representatives of Wikipedia – Dr. U. B. Pavanaja and Ms. Harriet Vidyasagar, to be updated in the Konkani Wikipedia. Shri Eric Ozario, Gurkar – Mandd Sobhann, Ms. Irine Rebello, Secretary – Mandd Sobhann and Dr. Edward Nazareth, General Secretary – AIKWO, were present on stage.

For more details visit https://cis-india.org/news/daijiworld-april-6-2014-mangalore-wikipedia-workshop-held-for-konkani-writers

Loyola Faculty Enlightened About Open Edn Resources

praskrishna — 2014-07-02T04:50:48Z

“The tremendous changes in the digital technology have introduced the newage faculty to certain open and collaborative tools like Wiki, termed as open educational resources (OER),” Centre for Internet and Society (CIS) progarmme director T Vishnu Vardhan has said.

The article published in the New Indian Express on June 25, 2014 can be read here. T. Vishnu Vardhan gave his inputs.

Adressing a two-day national workshop on ‘“Openness of Knowledge in Digital Era’ at Andhra Loyola College here Tuesday, Vishnu Vardhan stressed that within this context of digital era, openness and transparency gained newer significance, which creates a pre-condition for the transformation of society into knowledge society.

Pointing out that many of the websites were offering opportunity to access the information in almost all Indian languages and with everyone making use of Wikipedia as an OER tool, he explained the changes in the digital technology and also introduced the faculty to certain open and collaborative tools like Wikipedia.

Besides to giving a historical overview of the free and open source software movement, mass collaboration on the internet, details about Wikipedia authors and users, the participants were educated about using the simple technological tools like QR code to create increased and seamless access to knowledge using pervasive technologies like mobile phones.

Graduate and postgraduate teaching faculty from various streams partcipated in the workshop meant to discuss and learn new development in the fields of knowledge sharing and access in digital era.

CIS programme officer Rahimanuddin Shaik, jounalist Malladi Kameswara Rao, ALC principal Fr Kishore, college vice-principal Fr Anil kumaralso participated.

For more details visit https://cis-india.org/news/the-new-indian-express-june-25-2014-loyola-faculty-enlightened-about-open-edn-resources

Looking ahead to the future of the Kannada Wikipedia: Vasanth S.N.

subha — 2016-02-29T14:15:41Z

Vasanth S.N. has edited the Kannada-langauge Wikipedia since 2006. As part of the WikipediansSpeak series, I caught up with Vasanth to learn about his contributions to the Kannada Wikipedia, which just celebrated its 13th anniversary. In the discussion Vasanth shares his long time involvement in the Wikimedia movement, and what drives him every day to edit Wikipedia and helping other fellow Wikimedians.

Subhashish Panigrahi (SP): Hi Vasanth, thanks for agreeing to share about yourself. Can you tell me little about yourself and how you started contributing to Kannada Wikipedia?

Vasanth S.N. (VSN): I grew up in a small town in the Indian state of Karnataka. After completing my PG Diploma in Human Resources studies from Indira Gandhi National Open University (IGNOU) I started working at Dharmasthala temple in Karnataka where I have been working over last 35 years. As a student, I was voracious reader of Kannada-language books. Science, art and culture were my favorite subjects back then. I started contributing to Kannada Wikipedia back in 2006. Shushrutha, a scientist based outside India helped me with several technical needs like creating templates in Kannada Wikipedia. With his help, I contributed to articles related chemical elements. He helped a lot in importing templates then. These days another Wikipedia editor Omshivaprakash is helping in importing templates and several other technical needs I have, thanks to Pavanaja who is also helping and encouraging me regularly.

SP: What are you currently working on?

VSN: After the 14 volume Kannada encyclopedia “Kannada Vishwakosha” got relicensed under CC-BY-SA 3.0 license by Mysore University, we have started digitizing it on Kannada Wikisource. I am taking the digitized articles from here to Kannada Wikisource. I first check for the English Wikipedia article, use some of the updated content from there with citations, and wikify the Kannada Vishwakosha articles to create articles on Kannada Wikipedia.

SP: What are the kind of challenges you generally face?

VSN: Something that really bothers me is the low participation of Kannadiga s in contributing to Kannada Wikipedia. I wish there could be more discussions in the village pump and collaborations between fellow editors. Many of the long time Wikimedians like Radhatanaya, who is probably over 70 years old, need more support with complex Wikipedia policies, and more appreciation. And so are B.S. Chandra from Sagara, Karnataka and many other editors so that every single editor feels to be an important aspect of the community. We also have to bring back editors like Tejas Jain who were active some time back but have slowed down over time. I feel bad that we are lagging behind our neighboring Wikimedia communities like Tamil and Malayalam. When we cannot scale up too fast, a valuable resource like Kannada Vishwakosha that I mentioned before would be really useful in populating Kannada Wikipedia with good quality article. The Vishwakosha is not just compiled by subject experts but has been updated over time. I am more than happy if more editors are willing to join use this encyclopedia as a resource and I am sure we could create over 14,000 articles that a handful of editors like me will take over years to complete otherwise. However the community is skeptical about just one citation but i think we could always rely on English Wikipedia and search for more resources for additional citations.

SP: What do you suggest we—all the Wikimedians, the Wikimedia India chapter, and us (CIS-A2K)—should work on?

VSN: I feel that we are focusing so much only on cities and there might be potential editors in rural areas. But may be reaching out to people who have access to computer and internet is a low hanging fruit as compared to outreach in rural Karnataka. There are over 46,000 state-run schools and many have computers. Taking Kannada Wikipedia to select schools with the facilities needed might result in bringing in flesh blood to the community. I also think that the veteran professors and educators could help grow Wikipedia by correcting articles and wikifying if not writing articles. There might be collectives of such people that I do not know of but in my opinion, it is worth trying. I tried to request some professors in Ujjire, Karnataka to help with correcting over 60 articles related to plant varieties of Karnataka but could not get much help. But that is just one failure and should not stop reaching out to more professors. And if a collective of professors does not exist we could find a common area of interest and create a group.

Subhashish Panigrahi, Wikimedian and Programme Officer, Access to Knowledge (CIS-A2K), Centre for Internet and Society

This post is part of the WikipediansSpeak series, which aims to chronicle the voices of the Wikipedia community. You can find more of these posts on the Wikimedia Commons. The views expressed are not necessarily those of the Wikimedia Foundation or Wikipedia; responses and critical commentary are invited in the comments section below.

Read the original published on Wikimedia Blog

For more details visit https://cis-india.org/a2k/blogs/wikimedia-blog-february-28-2016-subhashish-panigrahi-looking-ahead-to-future-of-kannada-wikipedia

Live Webinar on Regional Comprehensive Economic Partnership

praskrishna — 2016-08-04T15:07:25Z

Anubha Sinha participated in this event organized by RCEP on July 27, 2016 in New Delhi.

Regional Comprehensive Economic Partnership

is a proposed free trade agreement (FTA) between the ten member states of the Association of Southeast Asian Nations (ASEAN) (Brunei, Burma (Myanmar), Cambodia, Indonesia, Laos, Malaysia, the Philippines, Singapore, Thailand, Vietnam) and the six states with which ASEAN has existing FTAs (Australia, China, India, Japan, South Korea and New Zealand).

Live Webinar RCEP Invite

For more details visit https://cis-india.org/a2k/news/live-webinar-on-regional-comprehensive-economic-partnership

Letter to the Prime Minister on Indo-US Bilateral Relations on Intellectual Property

nehaa — 2014-11-03T14:58:26Z

This is a letter that many organizations sent to the Prime Minister. The Centre for Internet and Society was one of the signatories.

22 October 2014

To,

Shri. Narendra Modi
Hon’ble Prime Minister of India
South Block, Raisina Hill,
New Delhi-110011

Fax: 23019545

SUBJECT: US-India Bilateral Relations on Intellectual Property

Dear Prime Minister Modi ji,

We, the undersigned, wish to share with you some of our concerns on India’s position on intellectual property (IP), particularly in the context of bilateral relations between the United States of America and India. We gather from the US-India Joint Statement dated 30 September 2014 that the Indian Government

(a)greeing on the need to foster innovation in a manner that promotes economic growth and job creation…committed to establish an annual high-level Intellectual Property (IP) Working Group with appropriate decision-making and technical-level meetings as part of the Trade Policy Forum.

The necessity for setting up the joint Indo-US IP Working Group is not entirely clear. As the Department of Industrial Policy & Promotion (DIPP)‘s press release of 3 October 2014 mentions, there is already in operation an Indo-US Trade Policy Forum since 2010. Therefore, we request your Government to kindly make the specific purpose of this joint Working Group publicly known.

We wish to further submit that the grant of decision-making powers to the new joint Working Group could be at the risk of ingression of sovereign policy space. Bilateral arrangements should not have the power to supersede domestic democratic decision-making processes mandated by the Constitution of India. We appreciate that bilateral parleys at the political and diplomatic levels may be necessary in order to address threats of unilateral action by the US administration. But such bilateralism in the area of IP must be approached with an extremely high degree of caution.

We urge that the Government be particularly wary of higher IP standards (benefiting US corporations) that are typically demanded by the US administration and its trade negotiators in bilateral and plurilateral negotiations. The US demands clearly go beyond what the World Trade Organisation (WTO) asks for from its member countries. Several regional trade agreements or bilateral investment treaties either signed by or being negotiated by the US bear evidence to this trend. Any bilateral negotiation on IP between India and the US would definitely witness demands on India to provide for higher standards of IP protection that are not required of us by the WTO’s IP agreement - TRIPS.

It is important to note that the new bilateral arrangement between the United States Government and the Government of India is being undertaken against the backdrop of heightened US political interest in India’s IP regime, which has been spurred on by its business interests. Pharmaceutical and biotechnology MNCs backed by the US are the key actors on that front. India has earned phenomenal interest world over for its generic medicines -- a reputation that must be preserved. US should not decide our IP policies when it is a question of national interest and international solidarity. There have been intensified pressures on India; US putting India on its 2014 ‘Priority Watch List’ and the current Out-of-Cycle Review (OCR) of India’s IP regime being conducted by the US are recent examples of this. We fully support the position taken by Indian authorities to not go along with any such unilateral measures by the US Government. We insist that this stance of the Government of India be relentlessly maintained.

In case there is an intent to craft afresh our position on IP and its different dimensions, it should be pursued by a ‘National Working Group on IP’ working under the oversight of a Standing Committee of the Parliament of India. While formulating India’s positions on IP we trust that the Government of India will continue to withstand external pressures on this front. We urge the Government not to continue with the proposed annual forum on IP with the US, particularly as we do not have a matching domestic process.

The process begun under the DIPP to frame a national IP Policy, first needs to be completed independently along with public consultation. Many more stakeholders from amongst ‘ordinary’ peoples need to be included in the process; these include treatment activists, farmers groups, community organisations, etc. While there is no harm in having a policy statement, the policy should be consistent with the existing laws in our country and mindful of the future challenges, particularly for the generic medicines industry. While framing a national IP Policy afresh, it needs to be kept in mind that our current IP laws are already compliant with existing international laws and allied obligations. We strongly urge you not to amend India's IP statutes to reduce the flexibilities currently available to safeguard the public interest such as affordable medical products, right to food and the access to knowledge.

As you are aware, India’s IP rules and their enforcement also have trans-boundary implications. As an emerging global force, as well as a responsible member of the global community, through its IP strategy India is well positioned to also articulate the concerns of many Low and Middle Income countries. The legitimate space for discussions on global IP standards is the WTO’s TRIPS Council, and it is in this multilateral forum that issues of concern between different countries should be discussed. India ought to reach out to a much larger constituency, even beyond the 160 country governments represented in the WTO, through the promotion of IP-related policies that are humane and which foster people-centred and planet-sensitive ‘development’.

We the undersigned, working in different sectors, would also like to collectively reiterate that higher standards of IP protection will not necessarily translate into ‘economic growth and job creation’ in a country such as India. IP-related policy cannot be dealt with as a mere trade issue. Sectors that entail the provision of basic human needs, such as health, agriculture, biodiversity, education, etc., can be adversely impacted by higher standards of IP protection and the dilution of flexibilities (for example, those in our existing Patent Act). Public policy goals with respect to scientific endeavours, technology development and local innovations that offer more sustainable options for the future – such as climate-adaptive seeds and Indian Systems of Medicine, can also be severely challenged by inappropriate domestic IP strategies.

Given the multiple domestic concerns that our IP Policy must respond to, we press for your Government to kindly view it with a holistic perspective that it warrants, rather than the official approach being subsumed by the relatively narrow confines of trade and economic policy.

We earnestly entreat you to take a personal interest in this important matter.

Thank you.

Sincerely,

CONCERNED CITIZENS/GROUPS:

Shalini Bhutani, Legal Researcher & Policy Analyst
B L Das, Former Ambassador to GATT
Anand Grover, Director, Lawyers Collective
K M Gopakumar, Third World Network
Dinesh Abrol, National Working Group on Patent Laws
Prof. Jayati Ghosh, Jawaharlal Nehru University
Kalyani Menon-Sen, Feminist Activist & Coordinator, Campaign for Affordable Trastuzumab
S. Srinivasan, Low Cost Standard Therapeutics (LOCOST), Gujarat
Amit Sengupta, Jan Swasthya Abhiyan
Mira Shiva, Initiative for Health & Equity in Society and All India Drug Action Network
Biswajit Dhar, Professor CESP/SSS, Jawaharlal Nehru University
Sagari R Ramdas, Food Sovereignty Alliance - India
K. Pandu Dora, Adivasi Aikya Vedika
Kavitha Kuruganti, Alliance for Sustainable & Holistic Agriculture (ASHA)
Vikas Ahuja, President, The Delhi Network of Positive People
Loon Gangte, Regional Coordinator, ITPC-South Asia
Aruna Rodrigues, Sunray Harvesters
Suman Sahai, Gene Campaign
Wilfred Dcosta, Indian Social Action Forum (INSAF)
Surajit Mazumdar, Professor CESP/SSS, Jawaharlal Nehru University
Kanchi Kohli, Campaign for Conservation and Community Control over Biodiversity & Kalpavriksh
Kapil Shah, Jatan Trust, Gujarat & Organic Farming Association of India (OFAI)
S. Ashalatha on behalf of Rythu Swarajya Vedika, Telangana and Andhra Pradesh
Kavita Panjabi, Professor, Jadavpur University
Umendra Dutt, Kheti Virasat Mission, Punjab
Usha S., Thanal, Kerala
Aruna Burte, Feminist Researcher and cancer survivor
Nivedita Menon, Feminist Activist and Professor, Jawaharlal Nehru University
Gabriele Dietrich, National Alliance of People's Movements
Kannamma Raman, Associate Professor, Department of Civics and Politics, University of Mumbai
Jacob Nellithanam, Centre for indigenous Farming Systems, Chhattisgarh & Madhya Pradesh
Rajesh Krishnan, Coalition for a GM Free India
Rachna Arora from Public Awareness on GM Food (PAGMF)
Ashish Gupta, IFOAM Asia
Claude Alvares, Goa Foundation
M R Baiju, Democratic Alliance for Knowledge Freedom (DAKF), Kerala
Madhu Sarin, Forest rights researcher and policy analyst
P V Satheesh, Director, Deccan Development Society
C N Suresh Kumar, Co-Convenor, Millet Network of India (MINI)
C Jayasri, Coordinator, Southern Action on Genetic Engineering (SAGE)
A Giridhar Babu, Alliance for Food Sovereignty in South Asia (AFSSA)
Narsamma Masanagari, Media Coordinator, Community Media Trust
Bharat Mansata, Earthcare Books
T C James, former Director (IPRs), DIPP, Government of India
D. Narasimha Reddy, ICSSR National Fellow, CSD, Hyderabad
Mishi Choudhary, Executive Director, Software Freedom Law Centre (SFLC.IN)
K Ashok Rao, President, National Confederation of Officers Associations (NCOA)
B Ekbal, Kerala Sastra Sahithya Parishad
Gautam Mody, General Secretary New Trade Union Initiative
Sunil Abraham, Centre for Internet and Society (CIS)
Veena Johari, Lawyer and Legal Researcher
Subbiah Arunachalam, Science writer
Vandana Shiva, Director Navdanya Trust.
Manoj Pardeshi, General Secretary, National Coalition of People Living with HIV in India (NCPI+) and NMP+
Malini Aisola, Oxfam India
Manicandan, Forum Against FTAs
Afsar H. Jafri, Focus on the Global South
Forum against FTAs.

Cc:

Hon’ Minister of Agriculture
Hon’ Minister of Commerce and Industry
Hon’ Minister of External affairs
Hon’ Minister of Environment, Forests and Climate Change
Hon’ Minister of Human Resources Development
Hon’ Minister of Communications and Information Technology
Hon’ Minister of Science and Technology
Principal Secretary, PMO
Secretary, Department of Agriculture Research and Education
Secretary, ER& DPA , Ministry of External Affairs
Secretary, Department of Commerce
Secretary, Department of Communication and Information Technology
Secretary, Department of Environment, Forests and Climate Change
Secretary, Department of Higher Education
Secretary, Department of Industry Policy and Promotion
Secretary, Department of Science and Technology

For Further Communications:

Dinesh Abrol, Convener, National Working Group on Patent Laws (NWGPL), J 17, Second Floor, Lajpat Nagar 3, New Delhi 110 02.
Tel: 011-40521773, Email: dinesh.abrol@gmail.com

For more details visit https://cis-india.org/a2k/blogs/letter-to-prime-minister-on-indo-us-bilateral-relations-on-intellectual-property

Letter to MPs on Concerns on Regional Comprehensive Economic Partnership

sinha — 2016-07-29T02:39:44Z

The Centre for Internet and Society sent a letter to Members of Parliament on July 27, 2016 to appeal to re-examine the Regional Comprehensive Economic Partnership (RCEP).

To,

The Hon’ble Chief Minister / Member of Parliament

We are writing to you to draw your attention to the concerns related to India’s engagement in the Regional Comprehensive Economic Partnership (RCEP), a mega-regional trade agreement (MRTA), currently under negotiation. We write as part of a forum on free trade agreements (FTAs), which is a network of over 80 civil society organisations and concerned individuals from across India. It came together in 2008 to analyse the impacts of India’s FTAs on people’s lives & livelihoods.

As you may know, RCEP is a FTA consisting of 10 ASEAN Countries plus Australia, New Zealand, South Korea, Japan, China and India. It is a comprehensive FTA dealing with not only tariff cuts but also a range of other issues such as investment, intellectual property rights, e-commerce, services, competition, etc. RCEP has far reaching implications on India’s future economic and social development. India is currently facing huge trade deficit with ASEAN, South Korea, Japan and China. RCEP is expected to worsen the huge trade deficit and damage India’s manufacturing sector.

Similarly, concerns are expressed in the field of intellectual property (IP). Many proposals by Japan and South Korea in the area of IP go well beyond our current national IP legislation, especially the Indian Patents Act 1970. Whereas, the Indian act permits only a narrow scope for patenting of software, the RCEP texts reveal disastrous proposals to hugely widen the scope, which, if accepted could compromise access to technologies in many critical areas. Likewise, Japanese & Korean negotiators' proposals run contrary to existing Indian copyright legislation. They mandate that all RCEP member countries to increase the term of copyright protection to 70 years from the year of the death of the author. The leaked chapters also envisage strong technological protection measures, without any limitations or exceptions for fair dealing use; creating new rights for making copies for temporary storage and blanket prohibition on re-transmission over the internet. All these changes would be extremely damaging to increasing access to knowledge in a developing country like India.

Further, the proposals also urge RCEP members to become members of another IP agreement on seeds – the UPOV Convention. Firstly, this would be ‘TRIPS-plus’, taking us beyond what WTO requires us to do in the area of seed. Secondly, it will mean going against the ‘farmer’s rights’ provisions in our national law – Protection of Plant Varieties & Farmers’ Rights Act (passed by Parliament in 2001 in compliance with WTO).

The leaked investment chapter shows that the proposals are going against India’s current position on investment treaties. India has developed a model BIPA text. India has also re-negotiating 57 of its 83 bilateral investment treaties (BITs) on the basis of its new model BIPA & to avoid one-sided approach to protecting investor’s interest. But demands being made in RCEP, may push us beyond our position on investments as well, for example, on the investor-state dispute mechanism.

The RCEP talks have picked up pace, hence the appeal to you to get involved.

Since 2013 RCEP negotiations have completed 13 rounds. The 14th round of negotiations is to take place in Vietnam on 15th of August. The Chief negotiators from each of the 16 countries are meeting 18-19th July in Jakarta, Indonesia. The upcoming RCEP Ministerial meeting on 5th August at Laos is expected set the new deadline for the conclusion of the negotiation.

However, there are no studies available in the public domain with regard to the implications of RCEP on India. In reply to an RTI query, Government denied existence of any cost and benefit analyses of RCEP. Similarly, there is no consultation with State governments with regard to RCEP and no texts are available in the public domain. Against this background we request you to take initiative:

to demand socio-economic assessment of RCEP on India’s development, especially on poor and marginalised populations, including implications for women & children

To ask for wider consultations on RCEP including consultations with state governments and ordinary people (such stakeholder consultations have already been held with industry bodies).
To make publicly available all the negotiating texts and institutionalise the process of making them open.
To ensure discussion on the cost and benefits of FTAs in general and RCEP in particular in both houses of the Parliament, including in the relevant Parliamentary Standing Committee.
To demand a while paper on India’s experience - costs and benefits, from FTAs with Japan, South Korea, Thailand, Malaysia and ASEAN.

Anticipating your kind attention on this urgent matter.

Thank you.

Yours truly,

Anubha Sinha
Centre for Internet & Society

For more details visit https://cis-india.org/a2k/blogs/letter-to-mps-on-concerns-on-regional-comprehensive-economic-partnership

Letter questions the propriety of CCI’s participation in ASSOCHAM conference

praskrishna — 2015-08-23T15:27:25Z

Serious concerns relating to conflict of interest have been raised against participation of CCI at the ASSOCHAM IP conference to be held soon.

The article was published in Tehelka on August 7, 2015.

A group of civil society organisations have through their letter to the CCI raised concerns over the imminent participation in the ASSOCHAM IP conference. The group comprises of bodies like Alternative Law Forum, Bangalore, Centre for Internet and Society, Bangalore, IT for Change, Bangalore, Knowledge Commons Collective, National Working Group on Patent Laws and Software Freedom Law Centre, New Delhi.

These organisations have asked the chairperson of the Competition Commission of India (CCI), Ashok Chawla, not to participate in the 3rd International Conference on Intellectual Property Law and competition Law organised by Associated Chambers of Commerce and Industry (ASSOCHAM). According to the letter sent by the civil society addressed to the CCI chairman, which is in possession of LiveLaw.in, two concerns were raised primarily demanding CCI to stay away from the conference scheduled to take place on 7th July at New Delhi.

“The participation of CCI at this conference raises serious concerns of conflict of interest,” read the letter. The primary concern cited was involvement of Ericsson in the conference. “CCI’s sharing of platforms with private actors would compromise the credibility and independence of CCI. As you know the event partner i.e. Ericsson is currently facing three CCI investigations on matters related to SEPs and issues related to licensing of technologies on fair and equitable terms. Ericsson is not only an event partner but also giving a speech at the inaugural session.”

Secondly, the focus of the conference, which happens to be currently part of CCI investigation, has ruffled some feathers. The letter states: “The themes of the conference clearly fall under the on-going investigations of CCI against Ericsson. Participation of CCI in any form in a conference organised by the financial support of Ericsson, which is facing three CCI investigations, would clearly send out a very wrong message regarding the integrity and independence of CCI.”

CCI’s participation in the conference would be a departure from the well set precedent that judicial and quasi-judicial bodies never directly or indirectly discuss matters pending before them. “The conference is centred on discussing issues that are currently under the investigation of CCI along with commercial entities including the one, which is facing the investigation,” the letter further added.

Civil society organisations also advised the CCI to avoid not only actual conflict of interest but also the perceived conflict of interest in this case. CCI earlier ordered investigations against Ericsson based on the complaint from three mobile manufactures viz. Micromax, Intex and iBall. This was in regard to the discriminatory practices of Ericsson in charging royalty while issuing license to Standard Essential Patents (SEP), which are necessary to manufacture mobile phones and tablets.

For more details visit https://cis-india.org/a2k/news/tehelka-august-7-2015-letter-questions-propriety-of-cci-participation-in-assocham-conference

Letter for Establishment of Patent Pool for Low-cost Access Devices through Compulsory Licenses

nehaa — 2013-06-27T08:06:50Z

On June 27, 2013, CIS sent a letter for establishment of a patent pool for low cost access devices through compulsory licenses.

M. Mangapati Pallam Raju
Minister for Human Resource Development
Shastri Bhavan
New Delhi 110 001

27 June 2013

Dear Dr. Pallam Raju,

Subject: Establishment of a Patent Pool for Low-Cost Access Devices through Compulsory Licences

We at the Centre for Internet and Society would like to commend you for the progressive stand you have adopted that while the government is committed to low-cost access devices, students should be able to decide “on which device, whether it is a mobile phone or iPad or Aakash or regular com-puter, they access the content”. It is imperative, though, that low-cost access devices (LCAD) be available to students, and thus the Mehta Committee report rightly acknowledges the importance of the Aakash project as central to the National Mission on Education through Information and Com-munications Technology (NMEICT). We propose a solution that would ensure both easy access to affordable devices for students to enable the NMEICT mission, as well as ensure that the MHRD focus more on educational content than devices.

We would urge you to enable access to LCADs by establishing a patent pool of essential technolo-gies (the ‘Aakash patent pool’) through the issue of compulsory licences. There are, at present in-ternationally, thousands of granted patents and tens of thousands of other intellectual property claims in respect of mobile and tablet technologies. The multiplicity of claims and cross-claims makes it impossible to manufacture, without exposure to adverse claims, generic and affordable tab-let devices. As you know, the assertion of multiple adverse and competing intellectual property claims is one of the main reasons that the Aakash tablet project is stalled. Already the multi-billion dollar patent wars in the US and Europe between Apple, Samsung, and other device manufacturers, are coming to India with Ericsson suing Micromax, India’s second-largest seller of phones and tab-lets, for Rs. 100 crore just a few weeks ago.

The establishment of a patent pool of essential technologies will redress this imminent failure and will enable the manufacturing of affordable tablet devices in compliance with the NMEICT. To es-tablish such a patent pool, the current patents applicable to mobile and tablet devices must be com-pulsorily licensed to a common pool and manufacturers who wish to sell their devices at an afford-able price would be allowed, at uniform terms and conditions, to utlise these patented technologies. This will simultaneously ensure that all patent-holders will benefit from royalty payments and that all manufacturers will gain access to the requisite patented technologies in a fair manner without adverse claims. The manufacturers who benefit from the pool could be required to give the Indian government credit by displaying the Aakash logo on their devices.

In order to establish such a patent pool, it is necessary to, firstly, identify the relevant technologies, and all patent-holders of such technologies, and secondly, compulsorily licence the patents in re-spect of the identified relevant technologies to the patent pool for fair and uniform consideration. Once the patent pool is established, rules may be issued to govern access to the pooled patents, regulate the manufacturing process and prevent misuse. The Patent Act, 1970 contains provisions to permit compulsory licensing of patents by the Controller of Patents on an application made in this behalf. Section 84(1)(b) read with section 84(4) of the Patents Act, 1970 enables the issue of a com-pulsory licence in respect of a patented invention if it “is not available to the public at a reasonably affordable price”.[1]

The establishment of a patent pool will directly promote public interest by advancing and deepening education in India and will also facilitate the realisation of the NMEICT.[2]

Establishing a patent pool for tablet technologies will also stimulate manufacturing in the informa-tion technology and electronics sectors in India. The National Manufacturing Policy, 2011 identifies information technology hardware and electronics and telecommunication equipment as industries of strategic significance that demand special encouragement. The Policy calls for “sector-specific pol-icy interventions” in special focus sectors where India enjoys the benefit of cost competitiveness. It is possible that, if implemented, the patent pool and the Aakash project will become global symbols of India's technological ability. While the farsightedness of the Indian Patent Act and policymakers has resulted in India becoming the “pharmacy of the world”, similar farsightedness may now result in India becoming the “electronics hub of the world”.

Forming such a patent pool for affordable access devices will prove to be a huge opportunity for education, and the credit for that would go to the Indian government and to the MHRD in particular. Further, some of the most important patent pools of the past have only come into existence after government intervention, such as the avionics patent pool proposed by the Secretary of the U.S. Navy during World War I and the radio patent pool, also created as a result of intervention by the U.S. Government. For these and other reasons, we urge you to consider establishing a patent pool for technologies relevant to the manufacture of affordable tablets and other similar devices. We will be happy to meet you, at your convenience, to talk about the legal and other issues involved in such a project.

Thank you.

Yours sincerely,

Sunil Abraham
Executive Director

Copies to:

Dr. Shashi Tharoor, Hon’ble Minister of State for Human Resource Development;
Shri Jitin Prasada, Hon’ble Minister of State for Human Resource Development;
Shri Ashok Thakur, Secretary;
Smt. Amita Sharma, Additional Secretary;
Shri Amit Khare, Joint Secretary.

[1].Compulsory licensing has long been favoured in India to enable public access to essential technologies. The Report on the Revision of the Patent Law, 1959 by a Committee headed by Justice N. Rajagopala Ayyangar advocated a strong compulsory licensing regime that formed the basis for the unamended Patents Act, 1970. The recent decision of the Supreme Court of India in the matter of Novartis v. Union of India (CA 2706-2716 of 2009) creates a judicially enforceable precedent in respect of enabling affordable access to patented technologies in the public interest.

[2]. In addition, the decision of the Controller of Patents, Mumbai, in NATCO Pharma and Bayer Corporation (CL Application 1 of 2011) that upheld the issue of a compulsory licence in respect of a particular pharmaceutical promotes the principle of affordable access to essential technologies. The issuance of a compulsory licence to establish a patent pool will not violate India's commitments under the Agreement on Trade-Related Intellectual Property Rights (TRIPS Agreement) of the World Trade Organisation.

For more details visit https://cis-india.org/a2k/blogs/letter-for-establishment-of-patent-pool-for-low-cost-access-devices

Lecture on Open Access and Open Content Licensing at ICAR (short course)

Admin — 2018-12-05T16:19:56Z

The ICAR-Indian Institute of Horticultural Research (IIHR) a constituent establishment of Indian Council of Agricultural Research (ICAR) organised a short course on 'ICTs for Improving Efficiency and Effectiveness in Agricultural Research, Education and Extension of NARES' during November 13-22, 2018 in Bangalore. Anubha Sinha delivered a lecture to the participants.

Read for more information about the programme.

For more details visit https://cis-india.org/openness/news/lecture-on-open-access-and-open-content-licensing-at-icar-short-course

Lecture by Eben Moglen and Mishi Choudhary

pranesh — 2011-08-23T02:55:59Z

The Software Freedom Law Center, National Law School, and the Centre for Internet and Society organised a lecture by Mishi Choudhary and Eben Moglen for students of NLS on Saturday, December 13, 2008.

Saturday, December 13, 2008 had Mishi Choudhary and Eben Moglen of the New York-based Software Freedom Law Center speaking to the students of the National Law School of India University in Nagarbhavi, Bangalore, in a talk organized by CIS.

Mishi Choudhary, who will head the Software Freedom Law Center in New Delhi, spoke on "Globalising Public Interest Law: The SFLC Model". She told the students about the importance of non-profit legal work as well as its viability as a career choice. She also laid out the background to the work that SFLC does, and traced a brief history of software patent cases

Eben Moglen chose to speak on "Who Killed Intellectual Property and Why We Did It?". He started off by talking of the interconnections between law and societal change: how law can't keep pace with the changes we see around us, and how law actually sometimes changes in the reverse direction, while trying to maintain the status quo.

This is not a new phenomenon, he noted, and that when law is responsive to anybody, it listens to the 'people of the past' more carefully than the 'people of the future'. This, he says, is compounded by the fact that the primary mode of change in the law is not legislation (since there is nothing legislators hate more than legislating), and that the better lawyers usually represent only those who can afford to pay them, hence resulting in systemic injustice. He emphasised that the clients of the SFLC, on the other hand, are people who create software worth billions of dollars, but who do not own it.

On that point of creation for the purpose of sharing and not owning, a student raised the question of why proprietary rights shouldn't exist in creations of the intellect. In response Mr. Moglen pointed out that while his personal opinions might be different, the Software Freedom Law Center does not seek to bring into dispute the concept of property rights in software, nor the fundamentals of patent law: it is merely concerned with the scope of patent law, and seeks a literal enforcement of patent law as it exists in most jurisdictions.

Another question that cropped up was on the economics of software creation and the anti-competitive nature of free software. To this, Mr. Moglen provided a brief summary of the tragedy of the anticommons by using land to be acquired for public works in the centre of a city as an example. In software, this problem is only exacerbated, he pointed out. Most physical creations over which patents are granted have something like 8 or 10 steps. Software code is different because it contains thousands of instructions. Even big companies face the anticommons problem; but they manage to evade it by cross-licensing agreements which results in efficient transactions for them since it involves no exchange of money whatsoever. Small companies are in a worse situation, since they don't have those kinds of patent portfolios to be able to enter into cross-licensing agreements, no matter how innovative they are. Thus, in effect, the system is rigged against them. This provides a partial answer to the antitrust question, he noted. Competition law is actual in favour of free software. The right to practise a trade or profession, and the right to speech get implicated in any case where a FLOSS-based company is hauled up before a court being accused of conspiring with other to take cost to zero.

Mr. Moglen further explained that when it comes to software, the problem of patenting is very different. A 20-year monopoly is more reasonable from the viewpoint of physical creations. Patent law, however doesn't tailor the rights that are granted by a patent. The problem starts right from the process of granting a patent. The job of a patent office being to apply the tests of non-obviousness, novelty and utility, most patent offices can do a reasonable job in most fields of technological endeavour, since there is a large body of innovation with which the proposed patent can be compared. Software, however, is a recent field with a large number of applications coming in all at once. While the patents that are sought might include claims on ideas and applications that existed in software in 1956, those aren't easy for the patent offices to dig up, since the field of software patents and software itself have not existed for the same length of time.

For more details visit https://cis-india.org/a2k/blogs/lecture-by-eben-moglen-mishi-choudhary

Leading Up To The GCIP: A Chat With Zakir Thomas

Job Michael Mathew — 2016-01-30T10:54:37Z

With only a few more days to go for the 4th Global Congress on Intellectual Property and the Public Interest 2015 (“Congress”), we will be putting out a number of blog posts as a precursor of things to come. In this first series, Job Michael Mathew approaches some of our keynote speakers for their thoughts on their work areas and contemporary developments in their fields.

Profile: Zakir Thomas is an expert in the field of intellectual property rights, open source innovation, neglected diseases and innovation ecosystem in science and technology in India. He will be giving a keynote address during the inaugural plenary session scheduled for December 15^th.

JMM: How far has the TRIPS regime ensured access to and availability of treatment for neglected diseases?

ZT: TRIPS is an instrument meant to further intellectual property (“IP”) driven innovation. One basic feature of IP driven innovation is that it is market related; thus if the market fails, there is no innovation. There is a whole gamut of areas where innovation is required but does not happen due to lack of a market. The TRIPS regime is meant to address innovation in areas where there is already a market. IP drives innovation in areas that has a market, which will ensure return on investment. In the case of neglected diseases there is no ‘market’ for the innovation drivers to ensure a return on their investment and hence access and availability has been poor in this area. I would say that the TRIPS regime has not dealt with the question of treatment for neglected diseases at all. The fact here is that the TRIPS regime was not meant to ensure access and availability to treatment for neglected diseases.

However it important to look at this question a little closer. There are a lot of areas where innovation has not happened despite the presence of TRIPS-compliant laws. There are countries with stronger IP laws than the US, yet companies have not shifted to those countries. There are many countries in the world today that have TRIPS-complaint IP laws, yet has this resulted in transfer of R&D from the US to local companies in these countries? Even after two decades of TRIPS and links drawn between stronger IP laws and innovation, innovation is confined to a handful of countries. Innovation ecosystem is a complex ecosystem and IP is only one of the factors that have an effect on the ecosystem and not the sole determinant as the current narrative makes it out to be. It is important to challenge the narrative that proclaims that IP drives innovation or that higher IP protection will attract investment and transfer of R&D.

JMM: Given the fact that big pharmaceutical companies are resource-rich to pay hefty sums to people who work with them, how can the open source movement attract the best talent to work for it?

ZT: From my experience in working in this field, I don’t think talent or the lack of it is the real issue. It is important to understand what exactly a pharmaceutical company does in research. In most cases the real innovation, i.e. finding the early stage molecule, which is the core of pharmaceutical innovation, happens in publicly funded academic or research institutions and only in limited cases does it happen within the pharmaceutical company. Once the early stage molecule is discovered then the pharmaceutical companies does some development over these molecules leading up to the clinical trial. There are experts in publicly funded institutions who are willing to work with the open source movement and are in fact working with it. There are Contract Research Organizations who are IP agnostic and deliver quality research to the industry. Talent, therefore, is not difficult to find and is readily available to tap into. Of course, pharmaceutical industry driven drug discovery is a cost-intensive model. Even in the open source model, the costs cannot be brought below a certain level. The open source model will also have to conduct clinical trials and somebody will have to bear these expenses. The difference lies in that fact that the fruits of the innovation will be available to all without the exclusivity of IP attached to it.

JMM: A major concern for the uninitiated will be issues of quality control in an open source drug discovery model. How does open source drug discovery address such concerns?

ZT: To be honest, such a doubt will come from someone not only uninitiated to the model of open source drug discovery but also the process of drug discovery itself. Drug discovery and development is a highly quality controlled work. There are inbuilt regulatory mechanisms which ensure that newly discovered molecules pass certain regulatory standards. We have an independent clinical trial regulatory body called the Drug Controller General, whose experts closely scrutinize all data submitted to it, and only after they are satisfied will they give the nod to go ahead with clinical trials. Further, just because the drug is developed in an open source model doesn’t mean that experts do not closely scrutinize it. Experts, peer reviewers and funders scrutinize the discovery at every single stage and only with the approval of the regulators will things move ahead. Essentially, independent of whether the drug is discovered through the open source or the pharmaceutical model, the kind of regulatory checks and quality controls it goes through will be the same.

JMM: The Department of Biotechnology and the Department of Science and Technology are announcing an open access policy as a major victory for the open access movement in the country. What according to you should be the next objective of the open access movement in India?

ZT: Creating a national depository of open access journals which are properly cited and indexed, organized subject-wise and searchable online by all our academic institutions should be the next step. Essentially a well stocked and organized open access library should be accessible to our researchers. India has a National Knowledge Network (NKN) which provides high bandwidth connectivity to academic institutions. This repository should be made accessible over NKN. It is not enough to declare that Departments go open access. It is important to ensure that the all open access resources are available to our researchers we well.

JMM: How far has the open access movement in India translated to output of quality scientific research studies?

ZT: Open access is about access to knowledge. It will ensure that the work you do at your lab is now accessible by people at large. It does not mean that the quality of work you do in your lab improves. But access to knowledge has the potential to improve the quality of your research. Open access allows for the communication of research findings with taxpayers, which will lead to better returns for the taxpayers as the fruits of the tax money spend is available publicly for everyone to access. Whether this availability leads to better quality of scientific research studies is something unquantifiable as of now. So, open access resulting in output of quality scientific research studies is a correlation that I cannot make. Open Access has been recently adopted in India and there is no data available that allows me to make such a correlation.

The idea behind open access is that one makes public one’s work regardless of its quality or other considerations. Now, the question is whether doing so increases quality of output? There is a possibility that following an open access model will result in better review and feedback of works submitted but this is a very long process and there is no data in India to make such a claim.

[1] Job Michael Mathew is an intern at the Centre for Internet and Society. He is currently a student at Nalsar University of Law, Hyderabad.

[2] Zakir Thomas was the founding Project Director of Open Source Drug Discovery (OSDD) of the Council of Scientific and Industrial Research (CSIR) in India, where he led an open innovation drug discovery programme for tuberculosis (TB). He was also the head of the Director General’s Technical Cell, leading a team which provided technical and policy inputs to CSIR, including intellectual property issues.

He served as the Registrar of Copyrights of Government of India from 2000-2003 and as a Deputy Secretary in the Department of Higher Education of the Ministry of Human Resources Development. Professionally, he is an officer of the Indian Revenue Service with over 25 years of experience, currently posted as Commissioner of Income Tax at Delhi. He has worked at the Ministries of Finance, Science and Technology and Human Resources Development, in the fields of intellectual property, science and technology, e-governance and policy formulation.

Zakir holds an M.Sc. in Physics (Mahatma Gandhi University, Kerala), LL.B. (Delhi University), and a Masters in Intellectual Property, Commerce and Technology (Franklin Pierce Law Centre, University of New Hampshire in the U.S.)

Check out the blog post on Spicy IP

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

Leading Up To The GCIP: A Chat With Susan K. Sell

Job Michael Mathew — 2016-01-31T08:36:57Z

After Mr. Zakir Thomas and Dr. Michael Geist, our third discussion is with Prof. Susan K. Sell.

Click to read the blog post published on Global Congress page on December 12, 2015.

Profile: Susan Sell is a Professor of Political Science and International Affairs at George Washington University where her teaching focuses on theories of international politics, international political economy and relations between the North and South. She will be giving a keynote address during the inaugural plenary session scheduled for December 15th.

JMM: The Australian Government’s plain packaging legislation is being challenged by Philip Morris International under the Investment State Dispute Settlement provisions under the Australia-Unites States of America Bilateral Investment Treaty. The treaty under question is a purely investment treaty with no references to public interest or health pre-dating the TRIPS. What do you think will be the implications of adjudicating an intellectual property enforcement dispute at an investment tribunal? Further, such provisions are present in the recently concluded TPP as well even though an exception is carved out for tobacco. However TPP vide Article 18.6 affirms the party’s commitment to TRIPS and public health and explicitly states that parties have the right to determine what constitutes a national emergency and take measures to protect public health even if it conflicts with the obligations under the IP chapter. Do you think the presence of such an explicit undertaking will fundamentally alter the power dynamics within an investor State dispute settlement tribunal which is generally seen as a pro-corporate body?

SS: I think the implications are very troubling. One thing I have looked at a lot and continue to look at is the practice of forum shifting, where parties shift to different forums to try to get what they want and I look at Investor State Dispute Settlement (ISDS) as another forum that raises troubling implications. ISDS has become extremely popular over the last few years; in 1982 there was only one ISDS case, it rose to 50 in 2012 and now in 2015 we are up to 500 cases in 50 different countries. To me this is troubling because it represents a trend of deal making behind closed doors that circumvents democratic deliberation and public scrutiny.

IP is now being defined as an investment asset under the ISDS provisions. In 2014, Susy Frankel and R Dreyfuss wrote about this redefinition of intellectual property. In 2012 a multinational law firm Jones Day published a report arguing that ISDS was a new way forward for pharmaceutical firms to address the assault on their patents in the developing world. So this is a new strategy of intellectual property owners.

The ISDS provisions, by identifying intellectual property as an investment asset, are like getting a camel’s nose inside a tent. Once these issues get adjudicated under ISDS provisions it will open the floodgates for much more ISDS activity focused on IP. Now there is some interesting pushback against these provisions since ISDS is getting more scrutiny in Europe. Germany has gotten less excited about it, the EU is openly debating it and the Eli Lily case against Canada is gaining a lot of notoriety. A number of developing countries, especially in Latin America, who have been very hard hit by ISDS provisions in a number of sectors have requested that ISDS provisions, that they are party to, be formally annulled. Now that’s not going to happen but it is an important symbolic groundswell against ISDS provisions because they override sovereignty, they override decisions of the highest courts of the land, and they are not transparent and there is no appeals process.

To answer the second part of the question, I would love it if states could use the flexibilities in the TPP as a defense of their public health laws but I am a little skeptical about that happening. We have had the Doha Declaration for many years and it has not really stopped pharmaceutical companies from pushing for further protection and enforcement of intellectual property and intellectual property obligations. Therefore even though the language is in there, I doubt if it will change a lot of things in terms of power dynamics on the ground.

JMM: In one of your papers you make the claim that non-governmental organizations (NGOs) working towards lowering intellectual property standards in movements such as access to medicine are not all that different from big businesses that these organizations are fighting. The claim proceeds to argue that both parties are influenced by normative as well as instrumental objectives as opposed to belief that NGOs are only informed by normative objectives. Yet, how important do you think it is for the NGO movements such as Access to Medicine to maintain a distinction from the pharmaceutical companies they are fighting considering the fact that one of the major victories of the Access to Medicine movement was in relation to the HIV/AIDS crisis where the whole issue was framed as a moral life or death question?

SS: I think it is extremely important for the movement to maintain the distinction and the life or death framing of the issue was important too. I want to clarify that the comparison in the piece ‘Using ideas strategically’ between pharmaceutical companies and NGOs is only at the level of strategy. Both parties are very different in terms of resources, structural power, etc. Pharmaceutical companies have access to more resources and are more powerful structurally. Therefore the framing of issues becomes very important for the structurally weaker party.

There are big differences between NGOs in the access to medicine movement and pharmaceutical companies. However, that said, I think there are many representatives of pharmaceutical firms that really believe in the morality of their position – that you need protection to innovate the next generation of drugs. People from Monsanto, many of whom advocate for patents for seeds feel this is important because they believe that this can increase food security. They sincerely believe that the development of drought-resistant plants is something that is good for the world. So these people also make a moral claim whether or not you agree with it. The point is such claims are not purely cynical or instrumental on the part of such actors.

JMM: One of the major criticisms against the TPP has been the lack of transparency in negotiations with even Congressmen not being allowed to see the text till it was released earlier this month. You have spoken about how this is troubling from a legitimacy and accountability standpoint and insulates private players from scrutiny while pushing unpopular articles within the agreement. Yet, in the case of tobacco, an industry which is quite powerful in the US, the TPP has carved out an exception in relation to ISDS. Article 29.5 gives parties the right to elect to deny the benefits of ISDS in relation to tobacco control measures. The statement of United States Trade Representative Michael Froman explaining the exception reads “Developed following extensive consultations with Congress and with a wide range of American stakeholders – from health advocates to farmers, representing many views on whether and how to address tobacco-related health policy measures in a trade agreement”. Even as criticism abound on lack of transparency there seems to have been a surprising amount of transparency as far as this particular provision is concerned. What do you think explains this anomaly?

SS: First of all, I am not very sure that there has been a lot of transparency in the tobacco discussions. I would need to find out more about the process. That statement alone from Michael Froman is not much to go by considering the fact that Stan McCoy before Michael Froman and now Michael Froman himself have always maintained that they have been consulting a wide range of stakeholders during the entire process of TPP negotiations. However the consulted stakeholders have only been their cleared advisors, most of whom are IP owners, major corporations, Wall Street players and the like. Consumers and public interest NGO’s have been shut out of this process. Therefore I am not aware, despite what Froman has said, that there has been an open public deliberation about tobacco provisions.

In fact right now, in the United States, there is a lot of pushback against the carve-out for tobacco in ISDS. This is a sticking point for Obama getting the deal through Congress. Tobacco firms are very upset about the carve-out. Similarly pharmaceutical companies are very upset that they did not get the 12 year data exclusivity on biologics. Senators and Congressmen from states that have a big pharmaceutical presence are saying that the deal must be renegotiated and the higher standards be put in place. So there is an interesting process going on now, but I am not aware of any open and public negotiations.

JMM: An exception to the global movement towards stricter IP regimes as evidenced by deals such as ACTA, TPP among others has been India. The patent law has set the bar pretty high for granting of patents and the Government hasn’t shied away from using tools such as compulsory licenses. What explains the Indian isolation to pressures of the western world, particularly the United States, and what are the lessons the Indian model has to offer to other developing countries?

SS: India is a really interesting case and I am a little nervous about recent statements made by Narendra Modi referencing the need to be open to stronger IP protection. India has a long history of standing up to pressure, for example being the leader of the Non-Aligned Movement, so it has a history of carving out its own path. It has been a pioneer with the passing of the Indian Patent Act, 1970, which allowed it to develop a highly robust and successful generic industry. The adoption of Section 3(d) of the Patents Act, which prevents the evergreening of patents, has been emulated by the Philippines in its Patent Act and is totally TRIPS compliant.

Some of the lessons of the Indian model are to use flexibilities under TRIPS and tailor IPR regimes to suit one’s national needs. Of course India has a large economy and that gives it a more power than some of the smaller developing countries. I think it is important that countries support each other’s rights to use these flexibilities and I would like to see more South-South corporation in drafting laws and offer some pushback against the relentless pressure to go over and above what is required by TRIPS.

JMM: At the turn of the 21^st century there was a move to evolve minimum standards of protection for IP which culminated in the TRIPS agreement. There was a feeling that that the TRIPS agreement was an unbalanced agreement with respect to the interests of the developing world and it was hoped that the Doha Declaration on Public Health and TRIPS would make the agreement more balanced. Added to this, the US trade policy of 2007 marked a shift in the approach of the United States towards IP by lowering standards of protection for the first time. However, recently agreements such as ACTA and TPP tip the balance in favour of developed countries and its MNCs by dismantling many of the inherent flexibilities in the TRIPS agreement. What, according to you, explains this latest shift to a more restrictive IP regime evident from bilateral and plurilateral agreements?

SS: I would argue that if you look back historically, the May 2007 amendment to the Trade Policy to allow for more flexibility in the area of public health is an anomaly. It is this anomaly that needs to be explained rather than the pressure for higher standards. The pressure for higher standards has been ongoing ever since the TRIPS negotiations were concluded. For right-holders the provisions in the TRIPS were always a floor, a bare minimum of protection whereas other parties saw it as ceiling considering their level of development and capacity. So when we see agreements like ACTA and TPP, they are consistent with what US trade policy has been and increasingly Europe as well in its bilateral and regional agreements. Firms have never stopped pushing for stricter standards and they are never going to.

I think one of the most concerning things is firms engaging in what I would call Private Power 2.0. We saw how private power was very instrumental in crafting and achieving the TRIPS agreement. What we see now, however, is less transparency and more anti-competitive conduct flourishing behind closed doors as evidenced by deals such as TPP and ACTA. I just read a manuscript by Natasha Tusikov titled ‘Choke Points’ in which she talks about the fact that even though the Stop Online Piracy Act and Protect Intellectual Property Act were shelved as a result of online activism and mobilization of opposition, that helped to unravel ACTA abroad and seemed like a very big victory. People were celebrating it as a David and Goliath story as it was the first time rights holders did not get what they wanted in a big way. However in reality the provisions of SOPA and PIPA are in practice after having been adopted through private contracts between Internet Service Providers and content owners. These contracts are entered into behind closed doors and the public is not privy to this. So if you are watching a 12 episode show on Netflix and after 8 episodes it is no longer available then you begin to wonder what happened. What happened is these private agreements behind closed doors where companies like eBay and Google are increasingly policing the rights of the right-holders and increasingly enforcing wishes of right-owners online. These are some of the worrying trends that need to be addressed.

One other issue is that the firms are still making the argument that they have always tried to get higher standards of protection and that this is about competitiveness and creating jobs. However recently, Irish company Amgen acquired Pfizer which was based in New York. It will be interesting to see how compelling the larger competiveness and jobs argument will be given that Pfizer will now be based in Ireland and no longer paying the United States tax revenue. The Pfizer spokesperson was saying that the acquisition is good for the United States and that’s a real puzzler. So this is a really interesting move that has happened and it undercuts the rationale these firms have been using to get the support of the US Government behind their preferences.

[1] Prof. Sell has written extensively on the politics behind the international IP rights regime most notably in her book “Private Power, Public Law, The Globalization of Intellectual Property Rights”. She is also the author of “Intellectual Property Rights: A Critical History” and “Power and Ideas: North South Politics of Intellectual Property and Antitrust”. Apart from the books, she has a number of publications dealing with and describing the forces that shape IPR regimes, the implications of the present IPR regime in relation to access to medicine, importance of developing a humanitarian conception of IPR among others.

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

Leading Up To The GCIP: A Chat With Shamnad Basheer

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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