Centre for Internet and Society

Pervasive Technologies Project Working Document Series: Document 2 Literature Review on Competition Law + IPR + Access to < $100 Mobile Devices

Amulya Purushothama and Nehaa Chaudhari — 2015-09-03T02:02:51Z

This note is the second document in the series of Working Documents that I will be creating for my research under the Pervasive Technologies: Access to Knowledge in the Marketplace (“PT Project”).

View the first document here. Note: The research was for this blog post was done by Amulya Purushothama which wasn't acknowledged earlier.

Preliminary

This note will serve as the literature review for my research paper under this project. This note- to be revised periodically- maps the existing literature around questions of competition law intersecting with intellectual property law on the specific issue of enabling access to sub hundred dollar mobile devices; which might be impaired as a result of intellectual property protections, particularly standard essential patents.

This note will explore the literature around the relationship between intellectual property and competition law; with a specific focus on the antitrust/competition concerns that arise around the licensing of standard essential patents. This note will study the approach adopted in other jurisdictions in the employment of existing mechanisms in competition law as possible solutions to issues with the licensing of standard essential patents.

Literature Review

Smartphones and Access to knowledge.

The Avendus Capital report[1] on mobile data usage in India provides important information about mobile internet users in India. Particularly the striking fact that more than half of the internet users in India use it on their low cost mobile phone and that access to these phones therefore becomes a step toward access to the internet. John Harmen Valk and others [2] have through their report demonstrated how mobile phones with internet access have been used to further educational outcomes in India and Asia and underscores the idea that access to such technology is important.

Competition Law and Intellectual Property

Academic writing around the nexus between intellectual property law and competition law presents varied perspectives; particularly on the question of whether they each acted as incentives for innovation, or whether competition law hindered innovation that intellectual property (seemingly) promoted. This narrative does not question a more fundamental concept; of whether intellectual property protections necessarily incentivized innovation; but takes that as the underlying assumption that they do.

Gitanjali Shankar and Nitika Gupta have noted that antitrust law and intellectual property have in the past seen to diverse and work against each other with different approaches to monopoly and that the two have also been viewed as related to each other in so far as intellectual property has been viewed as one of the tools to regulate competition in the market place. they propose that if the latter approach is taken and the two branches of law are seen to converge, two guidelines must be followed in to balance the various interests and ensure clarity, first that IP laws must only be extended by legislation and not through judicial interpretation, the second that when two interpretations are available during the enforcement of any intellectual property, that interpretation must be chosen which is in line with encourages the free market and promotes fair competition.

They have argued that both antitrust law and intellectual property have separate operational areas and their functions must be kept independent of each other. They argue that the domain of intellectual property concerns the assignment and defense of intellectual property rights and the domain of antitrust deals with the use and exercise of such rights within the market. They argue that competition law does not call into question that basis of IPRs that it doesn't question the exclusivity of legal rights, merely their abuse which results in unfair trade practices. They argue that the distance between economic and legal monopolies should be maintained and these fall within the domains of antitrust law and intellectual property respectively. They further argue that antitrust law exists to ensure that the IPR owner does not abuse his rights and thus bolsters intellectual property rights. [3]

Robert Pitofsky while reviewing a work of Prof. Mark Lemley explains that while anti-trust laws and intellectual property laws have the same long term goals of incentivizing innovation and investment in innovation, they are bound to conflict with each other in the short term as anti-trust law seeks to achieve this goal via limiting the possibilities of a monopoly and further ensuring that monopolies do not abuse the power they enjoy in the market place. Antitrust policies assume that the free market will fairly allocate resources and thereby encourage innovation efficiently. Pitofsky goes on to state that intellectual property on the other hand believes in rewarding innovation and thereby incentivizing investing in innovation, intellectual property is basically a grant of limited monopolies to ensure that costs of innovation are recovered and product quality is maintained. He argues that it is critical to ensure that patents are granted after thorough analysis to ensure a balance between anti-trust policies and intellectual property rights and to ensure that the larger goals of incentivizing innovation are achieved.[4]

Katrina Perehudoff and Sophie Bloemen have argued that anti-competitive strategies such as defensive patenting (the creation of weak and frivolous patents around their main patent) and vexatious litigation (the use of litigation as a threat to smaller and medium enterprises who cannot afford costs of litigation) have ensured that the bestselling originators medicine dominates the market for artificially long periods of time ensuring that the company therefore profits at the expense of public interest and obstructs widespread access, it is argued that such practices go against the aims of the patent system which were to ensure that the innovator could recoup costs of invention and in fact hamper incentives to invent. [5] It is submitted that while in this instance the discussion of defensive patenting as well as holding out is in the context of healthcare, similar trends have been witnessed in the space of technological patents as well. With standard essential patents for instance, there exists a very real danger of frivolous litigation and hold-outs ensuring market dominance by larger players, forcing out smaller and medium sized enterprises.

While acknowledging that intellectual property law and competition law might both seek to achieve a common goal of incentivizing innovation, Daniel Ravicher and Shani Dilloff have argued that the scrutiny of intellectual property exploitation from an antitrust perspective lacks economic and political merit. They argue that governments and courts have time and again preferred to enforce antitrust policy at the expense of enforcing intellectual property rights as evidenced by the cases of International Salt Co. v. United States[6], United States v. Lowe's Inc. [7], and Siegel v. Chicken Delight, Inc.[8] among others. They argue that the law depends on the flawed assumption that intellectual property confers upon the rights holder some kind of market power through creation of monopolies as evidenced by Jefforson Parish Hospital District No.2 v. Hyde[9] and the U.S. Department of Justice Guidelines on licensing of intellectual property[10] and is therefore in the wrong.

They argue that no such power is conferred on the rights holder because intellectual property rights do not confer monopolies so much as they ensure that a certain standard of uniqueness is assured, and that this standard of uniqueness falls short of the uniqueness required to obtain monopoly power within a market. They argue that IPRs do not grant the ability to raise prices above the competitive level and do not grant the right to exclude a rival or to exclude new entrants in the field, they only grant a right to prohibit others from exploiting their creation in an unfair manner and provide for sufficient limitations and exceptions to ensure that fair exploitation of their works is still allowed. And therefore while sound economic theory that ensures free marketplace through government regulation underlies most of antitrust policy, scrutiny of intellectual property through an antitrust point of view is economically flawed.

In a departure from other perspectives, the authors in this paper also argue that the factors affecting the employment of antitrust policies are not entirely legal; and that this preference is often a reflection of non-meritorious factors such as arguable predictions for the future, difference in financial stability of the competing parties, the political persuasion of the decision maker or the posturing of the parties and the courts being simply hostile to intellectual property rights and is unfair to intellectual property owners. They further argue that this preference is politically indefensible as it undermines the intent of the legislature. They argue that because of these things the case law so far that deals with this conflict is unreliable, unpredictable and not credible. They lastly argue that the solution out this conflict is to ensure economic efficiency by exempting intellectual property rights from scrutiny based on antitrust policies.[11]

Robert Anderson argues that IPRs do not inherently confer market power on rights holders and that in many cases restrictions on licensing could encourage competitive behavior and economic efficiency while not losing sight of the fact that IPRs can result in anti-competitive behavior in certain circumstances, particularly in context of network industries and that competition law must respond to these issues. This paper also makes a reference to the Trade Related Agreement on Intellectual Property Rights ("TRIPS Agreement"), and the provision that it makes that allow member countries to curb anticompetitive practices through Article 8.2 and Article 40 and thus catering to the interests of developing nations. The paper also notes that the TRIPS Agreement does not set out a specific list of practices that should be treated as abuses. Further, this paper goes on to analyse intellectual property regimes in the US, Canada, Japan and the EU and concludes that the US has maintained a liberal environment for granting of intellectual property rights while being cautious of abuse of IPRs for anticompetitive purposes, that Canada on the other hand has been suspicious of legislative efforts to curb the proper use of IPRs that the EU has adopted a far stricter approach to the issue to achieve market integration, and that Japan has chosen a somewhat middle path by providing for a case by case evaluation of practices. It is argued that certain restraints on international trade such as the restriction on parallel importation due to IPRs segment markets and is harmful to trade and collective innovation and some mechanism for exhausting of these rights must be considered. [12] This cross jurisdictional analysis is particularly useful, and will be examined in detail in my research paper.

Elieen Mc Dermott, in a discussion on FTC public hearings in December 2008 to discuss the overlap between intellectual property laws and antitrust and competition laws, identifies that Innovation Alliance, an organization that represents technology patent owning companies put forward three principles to govern antitrust policies, the first to define antitrust policy to promote consumer welfare and to limit its role to conduct that has "a demonstrable anticompetitive effect", second to bring on board the diverse range of interests and business models involved and third to ensure that principles behind patent law have evolved before allowing antitrust enforcement agency involvement in patent cases.[13] This submission by Innovation Alliance will now be studied in greater detail while attempting a submission on India's stance on competition law issues in the licensing of standard essential patents.

Herbert Hovenkamp has argued that for most of history, antitrust law and intellectual property law have undermined their own purpose of encouraging innovation by protecting too much, whether it is the shielding of inefficient business from competition or the shielding of IPRs beyond what is necessary to incentivize innovation, in both cases the consumer is harmed and the costs of innovation increases. He argues that while it is good that we have lately come to view patents as a kind of property as opposed to a kind of monopoly, since there is no real proof that patents lead to market power, we haven't extended to patents the same kind of conditions we extend to other kinds of property, like the obligation to define the boundaries of ownership another being the obligation to ensure that notice of the claim to property is rendered in time, neither of these obligations, he says, are imposed upon patent holders. He states that this leads to over protection and wastage of state resources.

He goes on to offer a few principles for antitrust in innovation intensive markets that involve exercise of patent rights; the first being that the purpose of antitrust must not be to fix defects in other regimes, but only to correct private markets, second that any antitrust or intellectual property intervention is justified only when congress or a tribunal has a reason for thinking that such an intervention is necessary to ensure more competition or more innovation, third is that many IP practices do not conflict with antitrust laws and antitrust policies shouldn't intervene in such cases, fourth that innovation provides society with more gains than simple production and trading under constant technology and therefore, when we have to choose between innovation and competition, we must choose innovation, fifth that innovation is more than what is simply defined under intellectual property law and at times, when practices seem clearly anti-competitive and IP statutes do not provide us with answers, we should consider antitrust policies as guidelines, sixth that IP protections can at times protect competition more efficiently than antitrust legislation, seventh that IP law must constantly examine its roots as antitrust legislation has and ensure that any expansion of IPR is well thought out.[14]

John Barton examines antitrust treatment of oligopolies that use IPRs defensively to block new entrants into the market. These oligopolists each have substantial patent portfolios that are infringed by its competitors but never a matter of litigation as there is the fear of counter litigation. Therefore there is an implied licensing of patent portfolios among the oligopolists. It is further argued that under systems like this, while there is an incentive for firms to acquire more patents to build defensive portfolios, there is no incentive to actually carry out new research therefore firms will obtain patents on existing research base and therefore this stunts innovation. Further oligopolists holding cross-infringing patents may put up entry barriers for new entrants and thereby dis-incentivize innovation. Due to all of these reasons, the paper argues for patent law reform and appropriate application of antitrust analysis to ensure that the IP system encourages innovation.[15]

Essential Facilities Doctrine

This section of the note looks at the literature surrounding the Essential Facilities Doctrine- an aspect of antitrust law that is employed in order to adjudge behavior as anticompetitive or the lack thereof.

Essential facilities doctrine is an aspect of antitrust law that imposes a duty upon firms that have patents/ copyrights or trade secrets with regard to an essential facility to ensure that they do not put in place a monopoly and make the facility available to their rivals. In the context of IPRs, an essential facilities doctrine functions in a way that is equivalent to compulsory licensing regimes. Different jurisdictions adopt different standards and approaches to the employment of this doctrine. By tracking the literature around this doctrine, these different approaches across jurisdictions will be studied, including landmark cases, and submissions made in the research paper on whether this doctrine may be employed in India - specifically to adjudge whether there was a case to be made out for anti -competitive behavior in the smartphone wars on standard essential patents.

MCI Communications Corporation v. AT&T[16] is the landmark case with regard to the essential facilities doctrine, in this case MCI argued that AT&T's switching equipment was an essential facility and access to such an essential facility was necessary to conduct telemarketing business. The court in this case laid down the necessary elements to establish a claim to essential facilities:

a) Control of an essential facility by a monopolist

b) Competitors inability practically or reasonably to duplicate the essential facility

c) The denial of the use of the facility to a competitor and

d) The feasibility of providing the facility.[17]

Richard Gilbert and Carl Shapiro have argued that a unilateral refusal to deal (which is often one of the conditions that needs to be met before the essential facilities doctrine is employed) can be justified in the context of profit-maximizing firms in certain cases such as: cases where the owner of the facility wants to ensure a certain level of service quality with his facility, cases where the owner wants to prevent free riding, prevent new entrants into the market, cases where the owner wants to promote price discrimination in the sale of the final product, and cases where the owner is not adequately compensated for licensing out his essential facility. These justifications it is argued increase economic efficiency in the market, ensure quality of services rendered, increase incentives for investment and innovation etc. It is further argued that in the long run, it is more economically efficient for companies to refuse to deal rather than to set higher prices, simply because in a system where one cannot refuse to deal, the incentive for firms to misrepresent their actual costs to obtain licenses etc., and further that an obligation to license can have negative effects on economic welfare, it can reduce welfare in the short run by forcing inefficient licensing, it can also reduce welfare in the long run by reducing incentives for innovation and investment and creation of intellectual property.[18]

Robert Pitofsky, Donna Patterson and Jonathan Hooks on the other hand have argued in support of the essential facilities doctrine and supported the use of this doctrine in cases concerning intellectual property rights, the authors here argued that the harshness of the anticompetitive effects of denial of access take precedence over business justifications, especially when specific animus to injure a rival has been proven. The authors argued that while it was important to ensure that the doctrine was not expanded to include a vague and amorphous set of rights, it was important to ensure that the monopolists arguments against the doctrine should not succeed regardless of the nature of the essential facility, whether it is intellectual property or even if the case did not involve vertically related markets.[19]

Paul Maquardt and Mark Leddy in their response to Pitofsky, Patterson and Hooks argued that it is not anticompetitive behavior if the normal enforcement of an intellectual property right results in market power is getting skewed in favor of the rights holder, and the intellectual property rights should not be limited by compulsory licensing. They have argued that the essential facilities doctrine should only apply in cases where the rights holder attempts to leverage his exclusionary rights from the market in which the innovation competes into a related market or in cases of abuse of those rights because in cases where the rival is competing directly with the facility incorporating the intellectual property protection, the rights holder would not be damaging incentives to innovate as he would in cases of abuse or in cases of leveraging the protection to attain profits in a related field. They argue that to force compulsory licensing in other cases where the rival is in direct competition to the right holder would harm incentives to innovate and create intellectual property, a goal that both intellectual property rights and anti-trust laws are supposed to achieve. [20]

Martin Cave and Peter Crowther have argued that the European Commission seems to have embraced the essential facilities doctrine quite well despite not properly codifying the criteria used to determine whether a facility is essential and access to this facility should be mandatory. They have found that in the U.S., a) the courts have decided the question of whether or not a facility is "essential" on the basis of whether new entrants to the field would be able to duplicate the facility as evidenced by the cases of MCI Communications Corporation v. AT&T[21] and Hecht v. Pro Football Inc It is as yet undecided at what point a refusal to deal in a facility will render the rival without an alternative option. In Camco Inc. v. Providence Fruit & Produce Bldg.[22]it was decided that a facility was essential insofar as alternatives were inferior. There is no requirement of a duplication of the facility to be impossible as evidenced from Otter Tail Power Co. v. United States[23] . They have also found that as per Aspen Skiing Co. v. Aspen Highlands Skiing Corp. [24], there is no general duty to deal on the monopolists. They have also found that liability under the essential facilities doctrine can be found in the presence of the following conditions: a) control of an essential facility by a monopolist, b) a competitor's inability to duplicate the facility, c) the denial of the use of the facility to the rival, and d) the feasibility of providing the facility

Under analysis of the law in Australia, they found that section 46 of the Trade Practices Act, 1974 proscribes taking advantage of a substantial degree of market power for the purpose of a) eliminating or substantially damaging a competitor, b) preventing the entry of a person into a market or c) deterring or preventing a person from engaging in competitive conduct in a market. They found two important cases in Australian law, Queensland Wire, the first Australian case to consider adopting the US essential facilities doctrine which ruled that the monopolistic firm couldn't refuse to sell facilities to the smaller firm if had been subject to competition in the supply of that product while not actually mentioning the essential facilities doctrine, the second case of importance would be Pont Data litigation where Pont Data wanted to supply stock exchange information which the Australian Stock Exchange had a monopoly on, the court on appeal held that ASX should be ordered to supply information but "on terms designed to obtain a broad and substantial justice between parties"

They have further argued that there is even less certainty in respect of the price at which access to an essential facility should be made available. This is evidenced by their study of the laws in New Zealand. They found that in New Zealand the landmark judgment to study would be the Privy Council judgment in Clear Telecommunications Ltd v. Telecom Corporation of New Zealand Ltd. This case arose out of a dispute between the state owned telecom which monopolized the public telecommunication system and Clear a new entrant into the market after Telecomwas privatized. The dispute mainly concerned about the price which Clear should pay Telecom for providing access to the Telecom network, while Clear argued that it should only be required to pay Telecom for the direct costs of providing access, Telecom held that Clear should pay the equivalent of profits which telecom would lose by granting access- the opportunity costs. The Privy Council agreed with Telecom in that insofar as Clear had not proved that it would be forced to pay monopoly prices because it was paying opportunity costs, it had not been proved that there were any entry barriers to the market.

In their analysis of the European Union, these authors found that Article 86 prohibits the abuse of the dominant position within a common market by under takings that consist in particular of a) directly or indirectly imposing unfair purchase or selling prices or unfair trading conditions, b) limiting production markets… to the prejudice of consumers, c) applying dissimilar conditions to equivalent transactions. The European Court of Justice has already decided that dominance can be assessed by a reference to the dependence of the consumer on the supplier inCommercial Solvents v. Commission. [25] And in Hugin v. Commission[26] The court first mentioned essential facilities in the United Brands case[27] where the ECJ held that the charging of discriminatory prices against and the refusal to supply a longstanding customer and distributor who had taken part in a sales campaign on behalf of a competitor had infringe article 86. Therefore if a firm acts in such a way that it could possibly affect rivals by precluding access to an essential facility, it would be an abuse of intellectual property.[28]

Albertina Albors-Llorens has reported on the recent judgment of the ECJ in Oscar Bronner CmbH and Co. KG v.Mediaprint Zeitungs -und Zeitschriftenverlag CmbH & Co. KG and others[29], the ECJ in this case has defined "essential facilities" as a "facility or infrastructure without access to which competitors cannot provide services to their customers"[30] under the doctrine, any dominant undertaking that owns or controls an essential facility and refuses without an objective justification [31] to make the facility available to its competitors or makes it available under discriminatory terms abuses its position of dominance. The court here distinguished the case from earlier case law including the case of Commercial Solvents and from the Magill case[32] where the court held that copyright holders who published guides of television programmes for their channels refused to license an independent company which wanted to publish a comprehensive television program guide had based their position of dominance and prevented a the emergence of a new beneficial product to the consumer and therefore it was not objectively justified and that it was otherwise impossible for Magill to obtain the information that was essential to carry on its business. She reports that the court in Bronner held that this case was distinguished from the precedent as there were less advantageous methods of distribution available and it wasn't impossible forBronner to set up their own home delivery system.[33]

Gregory Gundlach and Paul Bloom have analyzed the history of the essential facilities doctrine and cases refusals to deal , they have noted the refusal by Microsoft to deal with firms seeking to provide compatible software products and share its knowledge of its key operating systems for IBM compatible computers and its investigation by the Federal Trace Comission (FTC). They trace back the essential facilities doctrine from the case of United States v. Grinnel Corporation[34] which held that monopolization necessarily had to include the possession of monopoly power in the relevant market and the acquisition or maintenance of that power as distinguished from growth or development as a consequence of superior product, business acumen or historic accident. Preventing a rival from accessing an essential facility was held to be evidence suggestive of intent to monopolize and a challenge to the Sherman Act. They argue that this doctrine presents a challenge to marketers as they now have to ensure that they don't compete themselves into antitrust challenges, ensure that rivals don't attempt to free ride on their research and investment, they argue that while forcing firms to enable their rivals to access their essential facilities is at odds with the idea of competitive behavior, prudent application of this doctrine may ensure that welfare is substantially enhance and innovation is encouraged. They propose that the duty to deal be imposed only when commercial viability of the rival is at stake as a measure of protecting the rights of the firms. They also propose that new modes of competition such as strategic alliances, long term partnership be kept in mind before when forming future policy development in the area. [35]

Spencer Weber Waller and William Tasch have compared the law in the US with the law in the European Union and several other countries, and argue that there is a growing international consensus that it is sometimes appropriate to require a regime of nondiscriminatory access to infrastructure and related facilities. They have pointed out that common law countries and civil law countries have responded to the issue in different ways, for example, Germany has dealt with the issue by passing the German Act Against Restraints that contains provisions regarding abuse of dominant position in refusal to allow other undertakings access to essential facilities without proper justification. South Africa, they note has adopted a two pronged approach to unilateral refusal to deals, one through the South African Competition act that prohibits refusals to deal and another through the same legislation that prohibits refusal to supply scarce goods to a competitor when supplying those goods is economically feasible. They argue that since the essential facilities doctrine has become an accepted law in most competition jurisdictions, the US must work to harmonize their laws with the rest of the world to ensure better trade practices. [36]

Daniel E Troy has argued that post the Hecht v. Pro-Football, Inc. case, jurisprudence in competition law shifted from intent to the actions of the monopolists. He argues that there are no clear rules regarding when the essential facilities doctrine should be invoked or a consensus as to what the doctrine requires once invoked. He proposes that the resulting confusion be resolved by ensuring that the essential facilities doctrine cover all arbitrary refusals to deal when such a refusal threatens the commercial viability of the rival party, or when access to the facility is necessary for entry into the market or when duplication of the facility exceeds the standard cost of entry.[37]

Howard Shelanski has argued that unilateral refusal to deal must be susceptible to antitrust scrutiny, he argues that neither economics not IP policy considerations provide a sound basis for exempting refusals to supply IP from antitrust laws on unilateral refusals to deal. He argues that while there may be a case for treating IPRs different on some occasion that should be based on logical links between IP and the considerations that weigh against antitrust mandates to deal in any property: deterrence of innovation, investment or precompetitive conduct.[38]

Royalty Stacking in Smartphone Industry

Ann Armstrong, Joseph J Mueller and Timothy D Syrett[39] have collected and analysed data on the royalty burdens to be faced by a standard smartphone supplier and the adverse effects royalty stacking might have on competition in the smart phone industry. It is an article rich in detail and carefully explains the costs of each of the components that make up a smartphone, in doing so they also trace the mobile phone Standard Essential Patents (SEP) litigation occurring in United States of America (USA). They conclude that royalties demands on a smartphone could exceed the cost of the devices components, and that due to royalty stacking, costs of patent royalties act as an entry barrier for many suppliers thereby limiting competition in the market. They have argued that in calculating the royalty for a component, licensees, advocates and courts should base their conclusions on the price of the component and not on percentage of sales price of the entire smartphone which is the current practice. They have argued that this valuation is even more important for standardized technologies because patent holders usually only have a small slice of the declared patents for a particular standard and where that standard is just one of the many supported by the device. They present data to prove that when royalties are so vigorously calculated, they turn out to be a fraction of what patent-holders claim. This article was used mostly for background information on how royalty stacks work and how FRAND prices must ideally be calculated, and as a source of information on litigation surrounding royalty stacking in USA.

Damien Geradin in his articles[40] on pricing abuses by SEP holders in SSOs in EU and USA documents the evolution of competition law in these courts and the work of the Federal Trade Commission in this regard. He examines the role of the FTC in quite some detail, and this article provided important background information on the question of the potential role of the CCI.

Bouthenia Guermazi and David Satola[41] have argued that in creating a right enabling environment for the ICT, one of the goals of regulation is to create a stable, open and future-proof environment that encourages access and doesn't limit it.

Tracing Mobile Phone SEP Litifation:Treatment by European Commission and Federal Trade Commission

Damien Geradin and Miguel Rato[42] have inquired into the question of whether SSOs provide for an environment of exploitation and abuse due to royalty stacking, weak enforcement of FRAND terms, and hold-ups. They have identified three criteria for the establishment/adoption of an industry standard - first, that it is a set of technical specifications; second, that these technical specifications provide a common design; and third, that the common design provided may be for a product or a process. These criteria have been used in the paper.

Michael A Carrier in his article[43] focuses on the smartphone industry and the ongoing patent and FRAND licensing litigation wars. He traces court rulings on holdups and injunctions granted on SEPs and discusses EC investigations into Motorola and Samsung in detail. This article was useful in that it provided for a good resource on recent judgments surrounding FRAND Licensing and SEP litigations focusing on the smartphone industry.

Mark A Lemley and Carl Shapiro[44] in their article demonstrate that even a threat to obtain a permanent injunction enhances the patent holders negotiating power, leading to royalty rates that exceed a natural benchmark based on the value of the patented technology and the strength of the patent. They argue that such overcharging occurs more noticeably in the case of weak patents covering a minor feature of the product with a sizeable price/cost margin. They present data to show that these holdup problems are reduced if courts regularly grant stays to permanent injunctions. , that they are magnified in the presence of royalty stacking, and that royalty stacking can become a huge problem especially in a standard setting context. This article was useful in understanding the holdup issues with regard to SEPs and the effect of royalty stacking.

Lemley and Shapiro in another article[45] have argued that one method of efficiently settling FRAND disputes would be to impose an obligation on the SEP owner to entire into a binding final offer decided in arbitration with any willing licensee to determine the royalty rate. This article provided important insights into the holdup problem and possible solutions that could be considered.

Phillipe Baechtold in his presentation[46] makes the argument that the central problem with the approach to solving the issue of ensuring Standard Setting organisations achieve interoperability and allow for licensing on FRAND terms is that a problem with patent laws is being solved in a manner that focuses other legal systems such as competition law, health law etc. He argues that there is a need to address these issues within the patent system itself. This article has been used to understand different solutions to the issue that have been proposed so far.

Richard Schmalensee[47] in his article argues that competition policy should not favour patent holders who would use their patents to stop innovation and that SSOs should determine standards based on lower post-standard royalty rates. The claim of interest in his article is that in the absence of a deceptive act, it would be difficult to prove in a case that a differing standard could have been adopted had there been a full disclosure of patent.

Gertjan Kuipers[48] has provided a useful resource on the Apple v Samsung cases in Netherlands and this has been useful to understand non-disclosure of patents as an anti-competitive practice within SSOs. Leon Greenfields article that surveys non-US decisions on SEP disputes also makes for a useful resource in the same regard. [49]

In their article, Damien Neven and Miguel de la Mano[50] discuss the activities of the Directorate General for Competition at the European Commission during the course of one year and discuss cases and policy developments during that time. It served as a useful resource on cases relating to violation of FRAND Commitments and in understanding the functioning of SSOs.

Bjorn Lundgvist[51] has analysed EU and US antitrust/competition law, and argued that Orange Book Standard case where it was held that abuse of dominant position is a valid claim if a patentee refuses to conclude a license agreement on non discriminatory and non-restrictive terms, is problematic as the potential licensee only has the option of paying the customary royalty rate or accepting the rate that the patentee offers by applying "reasonable excercised discretion" and that this doesn't give much leeway for licensees to question the validity of the rate.

James Abell[52] documents cases in the US federal courts regarding standards development organisations, antitrust law and fraud his analysis of the Broadcom Corp v. Qualcomm Inc., was particularly well done and proved to be useful in tracing SEP litigation in the US. Koren W Wong Ervin [53] in her important article traces SEP litigation across the world in various countries. This makes for an important resource on the subject as it serves as a primer on SEP litigation in many jurisdictions including China, Japan, India, EU and the US among others.

Mobile Phone SEP Litigation in India

Ravikant Bharadwaj in his article[54] provides a broad overview of standard setting in India and the competition and IPR issues associated with it. He makes the important argument that once an industry standard has been set, and since the goal is to ensure inter-operability, denial of access to these standards on FRAND terms could become barriers to trade.

Anubha Sinha[55] in her report on Spicy IP traces the Ericsson- Micromax dispute at the Competition Commission of India (CCI), this has been used as a background document to trace the timeline in the dispute while tracing mobile phone SEP litigation in India.

Prashanth Reddy in his article [56] argues against interim injunctions stating that these injunctions should be used as an exception and not as a matter of a rule. He argues that in many cases courts either don't provide reasoning or provide insufficient reasoning behind orders granting injunctions. He argues that protection of IPRs cannot be a convincing reason on its own in this context particularly because patent infringement cases are complicated and can only be decided after a full trial and appreciation of evidence. In this context, he argues that issuing interim injunctions as a matter of course is a harmful practice that must be done away with.Vaibav Choukse makes a very similar argument in his article as well.[57]

John E Matheson in his article[58] seeks to understand how standards must be developed and what best practices can be followed by India in forming its IPR policy. He specifically argues that the litigation costs that invariably occur during hold ups and reverse hold ups ensure that smaller companies and newer start-ups ultimately give in to patentees who enjoy more market power and can bear the litigation costs for as long as it takes.

Pankaj Soni and Satyoki Koundinya in their article[59] outline the questions at the heart of the mobile phone FRAND disputes and focus on the disputes in India including Ericsson-Micromax, Intex, Vringo and Asus and ZTE disputes providing a fairly comprehensive timelines of the same. They argue that the threat of injunctions often bring licensees to the discussion table which otherwise would not have happened and that disallowing this would disincentivise patentees from disclosing their patents. This article makes important arguments in terms of what would incentivize pro-competitive behavior and how policy surrounding holdups could influence anti-competitive behavior.

Abuse of Dominance and Competition Law and Policy in India

The Competition Commission of India Guide to Abuse of Dominance[60] lays out in clear simple terms what constitutes abuse of dominance under competition law in India, while it does not refer to case law on the matter, it does make for a great source for interpreting and understanding Indian competition law and was used for the same purposes.

Samir Gandhi[61] in his article analyses trends in enforcement of competition law in India. He provides data to prove that the CCIs decisions seem to want to establish a greater familiarity with complex tools of assessments like including economic measures etc. He argues that the CCI is eager to make up for lost time and therefore doesn't shy away from issuing judgments quickly and imposing severe penalties. This is useful in understanding whether or not the CCI is the appropriate and competent authority to deal with cases that are likely to come up involving the smartphone industry.

Pratibha Jain and others[62] conduct a fascinating study of how competition law is enforced in the country, in a fairly comprehensive report with individual case studies. They demonstrate quite clearly that the CCI refrains from laying down broad principles and restricts its rulings to the facts of a particular case. It also provides important data on how many cases are dismissed and in how many cases the CCI has found anti-competitive behavior. This data helps understand how effective or otherwise the CCI has been.

Archana Shanker and Shraddha Singh[63] in their article have argued that competition law and IP must both be used in a harmonious manner. In doing so they have analyzed relevant legislation and important cases such as Micromax and Intex, They have analysed how capable the CCI or courts in India are when it comes to determining FRAND terms in the context of SSOs and SEPs. They argue that the CCI has shown a lack of understanding of the IP aspects in these cases and have focused on competition law to their exclusion. While this is a well written and informative article on mobile phone SEP litigation in India, it is important to point out that the article does not deal with how courts in India have failed to appreciate concerns regarding hold-ups while issuing stays or ex-parte orders.

Kanika Chaudhary[64] has written about jurisdictional issues that the CCI might face due to the wording of the Competition Act that states that the act is applicable to anti-competitive behavior notwithstanding other laws and yet another section stating that competition law must be harmonized with existing laws. She argues that there is a need to restructure competition law in this regard to avoid conflicts.

The CUTS International report on the CCI[65] provides for an important resource on comments about the CCI and its judgments and media reactions to the CCI. The report submits that while the CCI is generally seen to be doing well in the media, several academics have argued that the CCI is riddled by legal lacunae, that it lacks teeth and that because most of its orders have been appealed in courts, and it lacks autonomy due to rules of procedure, it is not an effective or efficient forum and needs to be improved by further legislation. The same has been corroborated by a report in the Indian Express that speaks of new bills that were in the offing in 2012 that were aimed at giving the CCI more teeth. [66]

Peter Alexiadis[67] in his outlines general principles of ex post and ex ante intervention and how the two disciplines come into tension with each other when competition law is involved in a dispute along with any other legal regime such as IPR laws. He explores ways in which these two disciplines must be balanced. This article was used to understand how the ex-post decisions involving competition law inevitably are backward looking and adopt a narrow view of the product, looking largely at its demand side-substitutability. This helps explore the argument that a sector specific regulatory body could better address complex technical and economic questions specific to the industry, as opposed to litigation merely being played out in the courts.

George Cary and Mark W Nelson[68] have delved into the question of the role of antitrust in policing abuse by patent holders with royalty stacks in standard setting organisations. They have argued that it is important for a legal tool to police this abuse because while other areas of law may prove capable of addressing these issues, these disputes are, at their core antitrust disputes. And only antitrust law can ensure that private parties and government enforcement authorities can seek redress where there is harm to competition.

Suzanne Michael in her article[69] argues that SEP holders who have their patent incorporated as a standard stand to gain by increasing royalty rates beyond RAND terms and beyond their actual economic value as they hold a monopoly simply because they own the standard. She argues that this will harm consumer interest and slow innovation. She further argues that an ex-ante approach should therefore be taken in ordering remedies in these cases to protect consumer interest. She also looks into the question of holdups and injunctions in cases involving RAND commitment. But her argument about ex ante remedies in RAND cases is an interesting point relevant to the paper.

Anne Layne-Farrar, A Jorge Padilla and Richard Schmalensee[70] in their article delve into the question of what exactly would constitute FRAND terms in the context of licensing terms for essential IP in a standards setting organization. They have also analyzed the Georgia-Pacific guidelines and extending it to a standard setting organization and the numeric proportionality method proposed by courts in EU. They conclude that the Georgia-Pacific guidelines might work in FRAND disputes, that while this would leave FRAND basically undefined, it would be made an enforceable promise with an SSO and that these guidelines would provide sufficient direction and predictability in litigation. This article has been used to understand what kind of guidelines a regulatory body could be expected to codify for patent remedies in India.

Rahul Singh in his article[71] analyses how due to its nature, the CCI is not sector specific and is supposed to look at "anti-competitive behavior" in all sectors most of whom already have their own sector specific regulator. He argues that unlike sector specific regulators, the CCI can privately enforce orders and pursue claims for damages and that this makes the CCI better situated to deal with consumer welfare areas. He further argues that to reduce transaction costs, enhance legal certainty and predictability, enforcement of such disputes must be left in the hands of the CCI. This argument has been extended to argue that courts enforcing IPRs would be less suited to handle these matters and more likely to cause inefficiencies and unpredictability and a re-imagined, empowered CCI would be the best suited judge of these issues.

K.D.Raju in his article[72] analyses broadly the connection between IP laws and competition law in India. He argues that while the jurisprudence behind IPR and competition law has traditionally been viewed as incompatible with each other, in effect, they seek to further the same goals. He argues that the competition laws as they exist in India currently cannot effectively deal with the nexus with IPR and suggests that the CCI come out with IPR specific guidelines to deal with upcoming litigation in the area.

Apoorva and Shreeja Sen[73] in their report trace the stay orders in courts across India holding up CCI investigations and how this is symptomatic of the fact that courts do not understand concerns regarding hold-ups and reverse hold-ups in IP related cases where time is of the essence.

Karthik Jayakumar[74] has written about the Bhatia International case regarding arbitration, we use this to merely draw parallels with IPR laws in that just as in Bhatia the court held that arbitrations having their seat outside India were still within the jurisdiction of Indian courts and this was overruled in the BALCO case , the role of the CCI also has to be made clear through legislative reform or judicial pronouncement for the regulator to address questions of competition law across different sectors without a threat of stay orders from courts.

Nick Robinson in his article[75] speaks of good governance courts, and of how courts in India have used good governance and right to life to become essentially second governments regulating everything from encouraging the use of natural gas to regulated encroachment on preservation of public forests to guidelines for school safety at the expense of government and independent regulators. While Nick Robinson makes a larger argument about good governance courts, it is used only for the limited purpose of supporting the argument made in the paper about judicial interventions allowing for anti-competitive behavior.

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[45] Mark A Lemley and Carl Shapiro, A Simple Approach to Setting Reasonable Royalties for Standard Essential Patents, Berkeley Technology Law Journal, Vol.28, 2013 at 1136-1137

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[47] Richard Schmalensee, Standard-Setting, Innovation Specialists and Competition Policy, 57(3) THE JOURNAL OF INDUSTRIAL ECONOMICS, 526-552 (September, 2009).

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[49] Leon Greenfield, et al., SEP Enforcement Disputes, Beyond the Water's Edge: A Survey of Recent Non US Decisions, Antitrust, Vol.27, No.3, 2013 at 3.

[50] Damien Neven and Miguel de la Mano, Economics at DG Competition, 2009-2010, 37(4) REVIEW OF INDUSTRIAL ORGANISATION, 309-333 (December, 2010).

[51] Björn Lundqvist, Standardisation under EU Competition Rules and US Antitrust Laws, (2014).

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[53] Koren W. Wong-Ervin, Standard-Essential Patents: The International Landscape, available at https://www.ftc.gov/system/files/attachments/key-speeches-presentations/standard-essential_patents_the_intl_landscape.pdf (last accessed 22 May, 2015) at 14.

[54] Ravikant Bharadwaj, Standard Setting in India: Competition Law and IP Issues, IMJ, Vol.5, 2013 at.1, 2.

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[58] John E Matheson, Patents and Standards, FRAND Challenges for India's ICT Sector, SpicyIP Discussion paper series, Paper no. 201401, 2014, available at: http://spicyip.com/wp-content/uploads/2014/09/FRAND-Challenges-for-Indias-ICT-Sector.pdf (last accessed 21 May, 2015) at 7

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[66] Bureau, Bill Aimed at Giving CCI More Teeth Tabled, Indian Express, 11 December 2012, Available at: http://archive.indianexpress.com/news/bill-aimed-at-giving-cci-more-teeth-tabled/1043320/

[67] Peter Alexiadis, Balancing the application of ex post and ex ante disciplines under community law in electronic communications markets: square pegs in round holes? RIGHTS AND REMEDIES IN A LIBERALISED AND COMPETITIVE INTERNAL MARKET (2012).

[68] George S Cary, Mark W Nelson et al, the case for Antitrust law to police the patent holdup problem in standard setting, 77(3) ANTITRUST LAW JOURNAL 913-945 (2011).

[69] Suzanne Michel, Bargaining for RAND Royalties in the Shadow of Patent Remedies Law, 77(3) ANTITRUST LAW JOURNAL 889-911 (2011).

[70] Anne Layne-Farrar, A Jorge Padilla and Richard Schmalensee, Pricing Patents for Licensing in Standard-Setting Organisations: Making Sense of FRAND Commitments, 74(3) ANTITRUST LAW JOURNAL 671-706 (2007).

[71] Rahul Singh, The Teeter Totter of Regulation and Competition: Balancing the Indian Competition Commission with Sectoral Regulators, Washungton University Global Studies Law Review, Vol.8, Issue 1, January 2009 at 97-102.

[72] K D Raju, The Inevitable Connection Between Intellectual Property and Competition Law: Emerging Jurisprudence and Lessons for India, Journal of Intellectual Property Rights, Vol.18, No.2, 2013, at 111-122.

[73] Apoorva, Shreeja Sen, Multiple Court Stays Hold UP CCI Investigations, Livemint, 28 November 2014, available at http://www.livemint.com/Politics/5Lm7tjIuogbBsm6qRb4exH/Multiple-court-stays-hold-up-CCI-investigations.html (last accessed 23 May, 2015).

[74] Karthik Jayakumar, Bhatia v. Balco, Who Should Stand?, 18 August 2013, available at http://blog.athirtyeight.com/2013/08/bhatia-v-balco-who-should-stand.html (last accessed 22 May, 2015).

[75] Nick Robinson, Expanding Judiciaries: India and the Rise of the Good Governance Court, Washington University Global Studies Law Review, Vol.8, Issue 1, January 2009 at 21.

For more details visit https://cis-india.org/a2k/blogs/pervasive-technologies-project-working-document-series-document-2-literature-review-on-competition-law-ipr-access-to-100-mobile-devices-1

Wiki Winter Camp - Coverage in Sakshi

praskrishna — 2015-01-01T16:58:23Z

Media coverage for the Wiki winter camp held at Andhra Loyola College.

For more details visit https://cis-india.org/openness/news/sakshi-december-31-2014-wiki-winter-camp

Wiki Winter Camp - Coverage in Eenadu

praskrishna — 2015-01-01T17:17:42Z

Media coverage of Wiki Winter Camp held at Andhra Loyola College.

For more details visit https://cis-india.org/openness/news/eenadu-december-31-wiki-winter-camp

December 2014 Bulletin

praskrishna — 2015-01-12T16:56:54Z

The Centre for Internet & Society (CIS) wishes you a very happy new year and welcomes you to the twelfth issue of the newsletter (December 2014).

Highlights

CIS prepared a policy brief that identifies the problem areas with the current work flow being used to publish documents and proposes suitable modifications to make them easy to locate, authentic and accessible.
NVDA team conducted two workshops. The first one was held at the Hyderabad Central University for reading and writing in Telugu. The second one was held at the Blind Empowerment Foundation in Kolkata for reading and writing in Bangla.

Nehaa Chaudhari participated in the 29^th WIPO-SCCR held in Geneva from December 8 to 12, 2014 and on behalf of CIS gave statements on the Proposed Treaty for the Protection of Broadcasting Organizations , Limitations and Exceptions for Education, Teaching, Research Institutions and Persons with Disabilities , made a brief pointed intervention on the Broadcast Treaty , and briefly interviewed Prof. Crews on his Updated Study on Limitations and Exceptions for Libraries and Archives .
Nehaa Chaudhari analyses the broadening of definitions/concepts in the Proposed Broadcast Treaty versus those in pre-existing international instruments.
Maggie Huang, an intern at CIS as part of the Pervasive Technologies projects conducted interviews with fabless semiconductor industry professionals in Taiwan. The findings are highlighted in two separate blog entries. The first one explores some of their views on the current intellectual property system and the second explores the tension between market forces and governmental intervention in providing access to mobile technology .
Tejaswini Niranjana, a distinguished fellow at CIS wrote an op-ed in the Hindu telling readers to see the ongoing Sanskrit versus German controversy as a welcome opportunity to discuss the real and persistent problems of our education system.
Vidushi Marda and Bhairav Acharya have co-authored a white paper that seeks to identify aspects of privacy in Islamic Law and demonstrate that the notion of privacy was recognized and protected in traditional Islamic law.
Ashna Ashesh and Bhairav Acharya have produced a white paper seeks to locate privacy in Classical Hindu Law, and by doing so, displace the notion that privacy is an inherently 'Western' concept that is the product of a modernist legal system.
Vipul Kharbanda authored a white paper establishing the relationship between privacy and confidentiality.
Geetha Hariharan in a blog entry examines the constitutional validity of Section 69A and the Blocking Rules.
Shyam Ponappa in an article published by the Business Standard writes that India's current policies for telecommunications don't serve our interests and tells readers what must change.

Accessibility and Inclusion

Under a grant from the Hans Foundation we are doing two projects. The first project is on creating a national resource kit of state-wise laws, policies and programmes on issues relating to persons with disabilities in India. CIS in partnership with CLPR (Centre for Law and Policy Research) compiled the National Compendium of Policies, Programmes and Schemes for Persons with Disabilities (29 states and 6 union territories). The publication has been finalised and is being printed. The draft chapters and the quarterly reports can be accessed on the project page. The second project is on developing text-to-speech software for 15 Indian languages. The progress made so far in the project can be accessed here.

►NVDA and eSpeak

Monthly Update

December 2014 Report (Suman Dogra; December 30, 2014).

Events Organized

Telugu eSpeak Training with NVDA (Organized by NVDA team; Hyderabad Central University, Hyderabad; December 1-2, 2014).
Bangla eSpeak training with NVDA (Organized by NVDA team; Blind Empowerment Foundation, Kolkata; December 19-20, 2014).

Upcoming Event

Training in Use of eSpeak with Malayalam (Co-organized by CIS, DAISY Forum of India and Chakshumathi Assistive Technology Centre; Trivandrum; January 24 - 25, 2015, Trivandrum).

►Other

Blog Entry

Availability and Accessibility of Government Information in Public Domain (Sunil Abraham, Nirmita Narasimhan, Beliappa, and Anandhi Viswanathan; December 9, 2014).

Participation in Event

First meeting of the high level committee on National Policy on Universal Electronic Accessibility (Organized by the Department of Electronics and Information Technology; December 30, 2014; New Delhi). Sunil Abraham participated in this meeting.

Media Coverage

When technology is able but the mindset is not (Governance Now; December 1-15 issue). Sunil Abraham and Nirmita Narasimhan gave their inputs.

Access to Knowledge

As part of the Access to Knowledge programme we are doing two projects. The first one (Pervasive Technologies) under a grant from the International Development Research Centre (IDRC) is for research on the complex interplay between pervasive technologies and intellectual property to support intellectual property norms that encourage the proliferation and development of such technologies as a social good. The second one (Wikipedia) under a grant from the Wikimedia Foundation is for the growth of Indic language communities and projects by designing community collaborations and partnerships that recruit and cultivate new editors and explore innovative approaches to building projects.

►Pervasive Technologies

As part of the Pervasive Technologies project, Maggie Huang conducted interviews with fabless semiconductor industry professionals in Taiwan. The findings from the samples are highlighted in four part series. The third and fourth parts have been published:

Blog Entries

[Open] Innovation and Expertise > Patent Protection & Trolls in a Broken Patent Regime (Maggie Huang; December 26, 2014).
"Copyright Management in the Age of Mobile Music" - Living Methodology Document (Maggie Huang; December 26, 2014).

►Other

Blog Entries

Nehaa Chaudhari attended the 29^th WIPO-SCCR held in Geneva from December 8 to 12. The following are the outputs:

29th Session of the WIPO SCCR: CIS Intervention on the Proposed Treaty for the Protection of Broadcasting Organizations (Nehaa Chaudhari; December 9, 2014).
29th Session of the WIPO SCCR: CIS- 2nd (brief) Intervention on the Broadcast Treaty (Nehaa Chaudhari; December 11, 2014).
The Broadening of Definitions in the Proposed Broadcast Treaty Compared to Other International Conventions (Nehaa Chaudhari; December 11, 2014).
29th Session of the WIPO SCCR: CIS Intervention: Questions to Prof. Kenneth Crews on his Updated Study on Limitations and Exceptions for Libraries and Archives (Nehaa Chaudhari; December 14, 2014).
29th Session of the WIPO SCCR: Statement on the Limitations and Exceptions for Education, Teaching, Research Institutions and Persons with Disabilities (Nehaa Chaudhari; December 20, 2014).
Protection of Broadcasting Organisations under the Proposed Treaty as Compared to Other International Conventions (Nehaa Chaudhari; December 21, 2014).

Participation in Event

Save the Date - 10 December 2014: The Broadcasting Treaty: A Solution in Search of a Problem? (Organized at WIPO; December 10, 2014). Nehaa Chaudhari was a speaker at this side event. The details were originally published by Knowledge Ecology International.

Media Coverage

SCCR 29: Public Interest Organizations Statements regarding the Broadcasting Treaty (Knowledge Ecology International; December 9, 2014).
SCCR 29 Libraries, Archives and Public Interest NGOs in Q&A with Dr. Crews (Knowledge Ecology International; December 11, 2014).
At WIPO, Study On Copyright Exceptions Stimulates Broad Discussion With Author (Catherine Saez; December 18, 2014).
WIPO Delegates Hear Concerns of NGOs on Exceptions for Libraries (Catherine Saez; IP Watch ; December 19, 2014).

►Wikipedia

As part of the project grant from the Wikimedia Foundation we have reached out to more than 3500 people across India by organizing more than 100 outreach events and catalysed the release of encyclopaedic and other content under the Creative Commons (CC-BY-3.0) license in four Indian languages (21 books in Telugu, 13 in Odia, 4 volumes of encyclopaedia in Konkani and 6 volumes in Kannada, and 1 book on Odia language history in English).

Newspaper Article

Beyond the Language Tussle (Tejaswini Niranjana; The Samaja, November 17, 2014).

Blog Entries

Odia Wikisource campus project at Kalinga Institute of Social Sciences (Subhashish Panigrahi; December 3, 2014).
Several Publications Now Available under Creative Commons License (Subhashish Panigrahi; December 28, 2014).
Odia Wikisource workshop at New Delhi (Subhashish Panigrahi; December 30, 2014). The event was organized by CIS in collaboration with "The Intellects" on December 14.

News and Media Coverage

CIS-A2K team gave its inputs to the following media coverage:

Odia Wikipedia (Dhatri; December 1, 2014).
Odia Wikipedia (Odiapua; December 1, 2014).
Access to Rare Books Made Easy (Diana Sahu; Indian Express; December 5, 2014).
Tulu Wikipedia gets some push (Hindu Businessline; December 13, 2014).
Tulu Wikipedia (Kannada Prabha; December 14, 2014).
Tulu Wikipedia (Vijaya Karnataka; December 15, 2014).
Tulu Wikipedia (VijayaVani; December 27, 2014).
Works of Veerasalingam Pantulu on web (Hans India; December 31, 2014).
Wiki Winter Camp - Coverage in Sakshi (Sakshi; December 31, 2014).
Wiki Winter Camp - Coverage in Eenadu (Eenadu; December 31, 2014).

Event Co-organized

Odia Wikisource Sabha 2014 (Co-organized by CIS-A2K and Odia Wikimedia Community; November 28, 2014). Subhashish Panigrahi participated in the event.

Participation in Events

ICT for Development (Organized by Christ University; December 3, 2014). Dr. U.B. Pavanaja was a speaker at this event.
Swatantra 2014: Fifth International Free Software Conference, Kerala (Organized by ICFOSS, Govt. of Kerala; Hotel Hycinth by Sparsa, Trivandrum; December 18 - 20, 2014). T. Vishnu Vardhan chaired a session on Wikimedia and Access to Knowledge in India and Rahimanuddin Shaik co-presented on Making DLI Accessible.

►Openness

Blog Entry

Department of Science and Technology & Department of Biotechnology adopt Open Access Policy (Anubha Sinha; December 29, 2014).

Participation in Events

Tech for Citizen Engagement 2014 (Organized by Omidyar Network; New Delhi; December 11, 2014). Sunil Abraham was a speaker in the session "Rules of Engagement: Emerging Trends in Citizen Outreach".
Swatantra 2014: Fifth International Free Software Conference, Kerala (Organized by ICFOSS, Govt. of Kerala; Hotel Hycinth by Sparsa, Trivandrum; December 18 - 20, 2014). Prof. Subbiah Arunachalam was a speaker and made a presentation on Open Science.

Internet Governance

►Privacy

As part of our Surveillance and Freedom: Global Understandings and Rights Development (SAFEGUARD) project with Privacy International we are engaged in enhancing respect for the right to privacy in developing countries. During the month we published the following blog entries:

White Papers

Locating Constructs of Privacy within Classical Hindu Law (Ashna Ashesh and Bhairav Acharya; December 29, 2014).
Relationship between Privacy and Confidentiality (Vipul Kharbanda; December 30, 2014).

Blog Entry

Identifying Aspects of Privacy in Islamic Law (Vidushi Marda and Bhairav Acharya; December 14, 2014).

Upcoming Events

Security, Governments, and Data: Technology and Policy (Co-organized by CIS and the Observer Research Foundation; January 8, 2015; New Delhi).
CPDP 2015 : The eighth international conference on computers, privacy and data protection will be held in Brussels from January 21 to 23, 2015. CIS is a moral supporter of CPDP.

Event Organized

Security and Surveillance: A public discussion on Optimizing Security while Safeguarding Human Rights (CIS; December 19, 2014).

►Free Speech

Under a grant from the MacArthur Foundation, CIS is doing research on the restrictions placed on freedom of expression online by the Indian government and contribute studies, reports and policy briefs to feed into the ongoing debates at the national as well as international level. As part of the project we bring you the following outputs:

Blog Entries

ICANN reveals hitherto undisclosed details of domain names revenues (Geetha Hariharan; December 8, 2014).
Revolving Door Analysis: IANA Stewardship Transition Coordination Group (Lakshmi Venkataraman; December 10, 2014).
Is India's website-blocking law constitutional? - I. Law & procedure (Geetha Hariharan; December 11, 2014).

►Other

Participation in Event

National Seminar on Cyber Security & Cyber Laws - Issues and Concerns (Organized by the Advanced Centre for Research, Development & Training in Cyber Laws & Forensics; National Law School of India University, Bangalore; December 27 - 28, 2014). Sharath Chandra Ram was part of a plenary session on "Multi-Disciplinary Challenges in Ensuring Cyber Security".

Blog Entries

Overview of the Constitutional Challenges to the IT Act (Pranesh Prakash; December 15, 2014).
Reply to RTI filed with BSNL regarding Network Neutrality and Throttling (Tarun Krishnakumar; December 22, 2014).

---------------------------------
News & Media Coverage
---------------------------------
CIS gave its inputs to the following media coverage:

India sees biggest improvement in Internet freedom, says report (Moulishree Srivastava; Livemint; December 5, 2014).
Are Cab Apps safe? (IBN Live; December 8, 2014).
FrndiNeed; an app for passengers' safety (Athira A. Nair; Economic Times; December 10, 2014).
Thank You To Our 2014 Sponsors (Medianama; December 22, 2014).
Why did India fail to discover the ISIS Twitter handle? (Anita Babu; Business Standard; December 26, 2014).
Targeting surveillance (Ajai Sreevatsan; The Hindu; December 28, 2014).
Centre blocks 32 websites for security reasons, restores some later (S. Ronendra Singh; Hindu Businessline; December 31, 2014).
DoT Reportedly Orders Blocking of 32 Websites Including GitHub, Archive.org, SourceForge (NDTV; December 31, 2014).
Govt blocks 32 websites, including Vimeo and Github (Moulishree Srivastava; Livemint; December 31, 2014).
Vimeo, DailyMotion, Pastebin Among Sites Blocked In India For 'Anti-India' Content From ISIS (Jeff Stone; IB Times; December 31, 2014).
Pastebin, Dailymotion, Github blocked after DoT order: Report (Anupam Saxena; The Times of India; December 31, 2014).

Telecom

CIS is involved in promoting access and accessibility to telecommunications services and resources and has provided inputs to ongoing policy discussions and consultation papers published by TRAI. It has prepared reports on unlicensed spectrum and accessibility of mobile phones for persons with disabilities and also works with the USOF to include funding projects for persons with disabilities in its mandate:

Newspaper Column

A Road Map for Digital India (Shyam Ponappa; Business Standard; December 3, 2014 and Organizing India Blogspot; December 4, 2014).

Digital Humanities

CIS is building research clusters in the field of Digital Humanities. The Digital will be used as a way of unpacking the debates in humanities and social sciences and look at the new frameworks, concepts and ideas that emerge in our engagement with the digital. The clusters aim to produce and document new conversations and debates that shape the contours of Digital Humanities in Asia:

Blog Entry

The Spaces of Digital (P.P.Sneha; December 30, 2014).

About CIS

The Centre for Internet and Society is a non-profit research organization that works on policy issues relating to freedom of expression, privacy, accessibility for persons with disabilities, access to knowledge and IPR reform, and openness (including open government, FOSS, open standards, etc.), and engages in academic research on digital natives and digital humanities.

► Follow us elsewhere

Twitter: https://twitter.com/CISA2K
Facebook group: https://www.facebook.com/cisa2k
Visit us at: https://meta.wikimedia.org/wiki/India_Access_To_Knowledge
E-mail: a2k@cis-india.org

► Support Us

Please help us defend consumer / citizen rights on the Internet! Write a cheque in favour of 'The Centre for Internet and Society' and mail it to us at No. 194, 2nd 'C' Cross, Domlur, 2nd Stage, Bengaluru - 5600 71.

► Request for Collaboration:

We invite researchers, practitioners, and theoreticians, both organisationally and as individuals, to collaboratively engage with Internet and society and improve our understanding of this new field. To discuss the research collaborations, write to Sunil Abraham, Executive Director, at sunil@cis-india.org. To discuss collaborations on Indic language Wikipedia, write to T. Vishnu Vardhan, Programme Director, A2K, at vishnu@cis-india.org.

CIS is grateful to its primary donor the Kusuma Trust founded by Anurag Dikshit and Soma Pujari, philanthropists of Indian origin for its core funding and support for most of its projects. CIS is also grateful to its other donors, Wikimedia Foundation, Ford Foundation, Privacy International, UK, Hans Foundation, MacArthur Foundation, and IDRC for funding its various projects.

For more details visit https://cis-india.org/about/newsletters/december-2014-bulletin

Odia Wikisource workshop at New Delhi

subha — 2014-12-30T01:08:00Z

The Centre for Internet & Society's Access to Knowledge team in collaboration with "The Intellects" organized a seminar in New Delhi on December 14, 2014. Subhashish Panigrahi gave a talk.

The seminar was on the Relevance of Bhagabat Tungi in the evolution of Odia language from Buddha era to digital age. After attending the event one of the participants Pankajmala Sarangi took great interest in Odia Wikisource which was then an incubator project. Since then she has digitized three books and is now proofreading Odia Bhagabata, an Odia language classic from the 14th century. Having the highest number of edits in Odia Wikisource, Ms. Sarangi took interest to build a community in Delhi. Another Odia Wikilibrarian Sitikantha Kheti also joined in to organise the first Odia Wikisource workshop in Delhi. These Wikimedians, a Delhi based group The Intellects and CIS-A2K collaboratively conducted a workshop.

The Intellect's president Debendra Rout addressed the participants and broadly spoke about the goal of the workshop and long term plans in Delhi. Both the Wikilibrarians shared their experience on Odia Wikisource. The workshop started with self introduction of the participants followed by screening of a documentary "Odia: Silalekharu Mobile".

Video

A handbook with details on the project, Odia input and keyboard layout was distributed among all. Subhashish Panigrahi demonstrated Odia input and the process of digitization of books on Wikisource. Plans for more workshops and digitization sprints were also charted out.

For more details visit https://cis-india.org/openness/blog-old/odia-wikisource-workshop-new-delhi-december-14-2014

Several Publications Now Available under Creative Commons License

subha — 2014-12-28T03:05:06Z

The Centre for Internet and Society has got the following publications under Creative Commons (CC-BY-SA 4.0) license. These are from multiple authors.

Samadrusti Publications

Samadrusti is a Bhubaneswar based organisation working on issues related to the development sector. Their publications are mostly related to their work in rural Odisha. They have relicensed 3 essay books authored by many authors on notable people and industrial work and issues in rural Odisha (many of which are of interest for Wikipedia as well), a poem collection and a catalogue of books published by them. Some of the books will be shared in the future in the form of digital typeset so there will not be any need for re-typing the books.

Dr. Gayatri Mishra

7 books (poems, stories, etc.)

Manoj Kumar Panda

Book: "Hada bagicha" (Story compilation)
This is a critically acclaimed book and many readers have requested if this could be brought into Wikisource.

Asim Basu

Book: "Kathare Kathare" (autobiography)
Asim Basu is a notable stage artiste, director, painter, art director and writer from Odisha. His autobiography is also a historical documentation of the art scenario in general and Odia film production, Odia typography and book cover design in particular.

For more details visit https://cis-india.org/openness/blog-old/publications-under-creative-commons-license

Access to Rare Books Made Easy

praskrishna — 2014-12-27T01:56:57Z

Rare Odia books that are out of print and not easily accessible on the internet, will now be available at the click of the mouse. In a bid to make them available online, the Odia Wikipedia community last week launched WikiSource, an Odia e-library and a sister project of Odia Wikipedia that has been trying to popularise use of Odia language on the Internet since 2002.

The article by Diana Sahu was published in the New Indian Express on December 5, 2014

The online library has 69 books by authors Jagannath Mohanty, Upendra Bhanja, Fakir Mohan Senapati, Gopabandhu Das, Baladeva Rath and Ram Das. Besides, the complete volume of Bhagwad Gita in Odia language is available on WikiSource.

The project has been implemented by Bangalore-based Centre for Internet and Society’s Access to knowledge programme. Odia Wikipedian Subhashish Panigrahi, also a programme officer of the Centre for Internet and Society, said work on digitisation of the books was started in April this year by a team of 12 Wikipedians, comprising mostly students and working professionals.

Apart from them, 50 tribal students and nine faculty members of Kalinga Institute of Social Sciences (KISS) helped them with the digitisation job. As most of the books were typed in Akruti font - a proprietary Indian Script Code for Information Interchange (ISCII) compliant font - the font was converted to Unicode text type to make the books searchable and accessible universally in all mobile and web platforms.

In the first phase, 11 books focusing on children’s literature, travelogue and biographies of noted people from Odisha by eminent Odia author Jagannath Mohanty were digitised. Subsequently, works of other authors were added to the e-library and made available on the internet with open access through free licence.

Subhashish said the WikiSource project was started in 2013 as an incubator project. It went through a tough process of being accessed by the Wikimedia Language Committee and Wikimedia Foundation’s board before being released last week. “There are several precious books that are out of print and not easily accessible on the internet. So we thought of digitising them and taking them to the masses. Apart from the 69 books, 81 of seven Odia authors that were already scanned and digitised by Bhubaneswar-based voluntary organisation, Srujanika, have been re-licensed and added to the library,” he said. Srujanika has digitised 740 old Odia magazines and books so far.

Generally a technique called Optical Character Recognition (OCR) is used for digitising scanned books, which currently is in testing phase in Odia. “Faculty member of ITER in Bhubaneswar Ajit Nayak along with his students have rectified the bugs and made character recognition more accurate.

But because of problems with OCR, the books had to be re-typed by the students of KISS on Odia Wikisource, Subashish added. Old books apart, books by contemporary authors like Debiprasanna Pattanayak, Ramakrushna Nanda, Subrat Prusty, Bharat Majhi and Nirmala Kumari Mohapata, and many other authors have been taken up for digitisation by Odia WikiSource team. Odia WikiSource is now live at or.wikisource.org.

For more details visit https://cis-india.org/openness/news/new-indian-express-december-5-2014-diana-sahu-access-to-rare-books-made-easy

Government Intervention in the Marketplace: Policies for Access or Politics? (Interviews with Semiconductor Industry – Part 4)

maggie — 2014-12-26T14:34:26Z

This is the last of a four-part blog series highlighting findings from a small sample of interviews with fabless semiconductor industry professionals in Taiwan. These industry insiders was approached for the intent of understanding expert knowledge on the process of integrated circuit design. However, the conversations resulted in leanings far beyond that scope. This post explores the tension between market forces and governmental intervention in providing access to mobile technology.

Following conversations regarding the trends and changes in computing usage models, process of chip manufacturing, and challenges with the current patent system, CIS wanted to understand these chip manufacturers' thoughts on the smart phone patent wars' implications on access to mobile technology, and how government regulation and intervention could perhaps resolve some the legal battles.

Although it seems there is an overabundance of litigation and patent wars amongst smartphone manufacturers, most recently culminating in India between manufacturers Xiaomi and Ericcsson,[1] it was of one interviewees' perception that these legal battles was simply a natural result of market forces in the technology industry. Although companies do indeed want to protect their intellectual property, the lawsuits are more often motivated by business interests to slow down ones' competitors. Litigation requires a massive investment in time and resources, and ultimately, the courts are just another avenue where market forces are at play. Naturally, with or without patent wars, prices will go down with competition.

The interviewee provided the example of Microsoft and Intel who had drove the computer industry who were making 75-80% of the products with profits only going to them. But as the market grew, prices slowly went down as more companies came out with new products. This was a "natural, organic development", and "perhaps if the industry had dropped prices earlier it would have been slightly better for consumers", but one interviewee "doubt it would have made much of a difference."

In the past there have been instances where governments have regulated markets to prevent anti-competitive behavior and predatory pricing, as exemplified by the antitrust claim filed against Microsoft in the United States, [2] or Intel being sued by the European Union for monopoly control.[3]

In China, Qualcomm has been under investigation, and is risk of being fined up to 10% of their most recent annual revenues because the government believes they are monopolizing the market. More recently, there have been talks of a possible investigation by the European Union for the same.[4] However, the interviewee expressed his disagreement that these really resolved the problem of high costs.

" Everyone always complained about software costs...that Microsoft was too expensive, that PCs were too high. But then with mobile, for years Microsoft was trying to do Windows... but then Google came along and offered Android for next to nothing. Suddenly the market's changed."

What really resolved the problem of high costs of personal computers according to this interviewee was mobile phones, which merely came with a bit of patience with the market. There seemed to be a general lack of faith in government intervention, and a sentiment that government imposed an overly top-down management of the industry.

Another example given of poor government intervention was the Aakash tablet in India, which one interviewee noted was a "disaster" because the government initially announced a retail price of USD $60 without accurately taking into actual costs of production. Having been considered as one of the potential suppliers for the tablet, this interviewee noted a later announcement of a retail price of USD $28, which taking into account the physical cost of hardware would have been impossible to manufacture. The interviewees' company was requested to reduce their prices given an anticipated high stock order, but ultimately the partnership never went through as it would have resulted in a significant loss.

Initially the Aakash tablet was conceived to be 'made-in-India', but our interviewee cited a bit of "naivety" on behalf of the government. At a meeting with the Aakash planners, he explained how the manufacturing of each part - the screen, motherboard, small connectors, supply busts - required billions of dollars in infrastructural investment.

"Suddenly you're not talking about one factory, you're talking about 30 factories. It's just not going to work. It's too complex. And this is why Shenzhen is going to do very well in the next 10 years. Because they have done this."

Given the Pervasive Technologies project covers the territories of China and India, and attempts to evaluate potential policy levers to enhance access for both geographies, this was a useful insight which led to further questioning about the experiences of working within various jurisdictions. In particular, we were interested in the experiences of these companies operating in different geographic markets, and asked specifically about comparative experiences between the United States and Europe which generally has more stringent enforcement, with our countries of focus - India and China.

One of the interviewed companies which provided turnkey chip set solutions explained how their reputation in China had evolved since the ease of use facilitated the manufacturing of counterfeit products, particularly at a time when the Chinese government did not seem to care too much about infringement. Although there has been increased enforcement measures, these company's products are still often found in gray markets and in shanzhai technology through unauthorized resellers despite not knowingly selling chip sets to illegal companies.

Another interviewee perceived that the Chinese and Taiwanese market required much more effort in general for foreign companies to operate in due to lack of transparency and multilingual access, compared with the North American and European market. The indigenous standards China is pushing, like the TD-SDCMA standard within the telecom industry, one interviewee noted that it puts more of a burden on companies to have multiple standards, and felt it was more so a political demonstration of Chinese power.Other analyses cite this as a strategic method to set these standards for enhancing development of local research and development, and use indigenous standards as a bargaining tool to reduce royalty rates. ⁹

Regardless of the motives, another interviewee noted that the Chinese market was big enough with opportunities worth pursuing that developing products according to China's standards made sense as a business.Following the market means pursuing demand, and according to this interviewee, although China requires a bit more investment, it is justified if it is what customers are asking for.

Despite increased foreign investment in the Chinese manufacturing sector, local smartphone manufacturers from China like Lenovo, Huawei, ZTE, and Xiaomi provide smartphones at an extremely affordable cost - for USD $50-60, or about RMB 300-400. Other marketplaces like Taobao also sell cheap smartphones in the mass market. There are difficulties of operating in India due to lack of reliable infrastructural support, which results in a need for increased investment and risk. However, a development of indigenous Indian tech industry can be done, perhaps developing the hardware first in China, setting up some local manufacturing while focusing on software development in the meantime.

This small sample of interviewees seemed to express a general perception that less governmental regulation and intervention in the technology industry was better for access. However, it can be reasonably well-argued that the reason China's mobile market is so successful is due to government-imposed standards which prevented reliance on expensive foreign patents. After explaining in brief the proposal of a compulsory licensed patent pool for standard essential patents, the interviewees responded that it may be something the government is trying to do with good intentions, but could have unintended side effects.

When asked for suggestions on how policy makers could help facilitate access to technology and an overall more innovative market space, answers included increased hardware education through encouraging openness for more sharing and learning within the industry, and outside to hackers and makers which could encourage 'outsourced research and development'. Although other interviewees seemed to disagree that openness would encourage access, the overriding consensus was the need for policy makers to prevent the possibility of behaviour like patent trolling and the unnecessary protection and locking up of innovative technologies from arising in the first place - done via a global standardized restructuring of the patent system.

[1]. http://indianexpress.com/article/technology/mobile-tabs/xiaomi-vs-ericsson-vs-oneplus-vs-micromax-the-winter-of-smartphone-court-battles/

[2].https://www.princeton.edu/~achaney/tmve/wiki100k/docs/United_States_Microsoft_antitrust_case.html

[3]. http://curia.europa.eu/jcms/upload/docs/application/pdf/2014-06/cp140082en.pdf

[4]. http://www.forbes.com/sites/greatspeculations/2014/08/29/possible-eu-investigation-add-to-qualcomms-regulatory-problems/

For more details visit https://cis-india.org/a2k/blogs/interviews-with-semiconductor-industry-part-4

“Copyright Management in the Age of Mobile Music” - Living Methodology Document

maggie — 2014-12-26T13:44:25Z

This blog post outlines the research methodology for a chapter in the Pervasive Technologies: Access to the Marketplace project, in which access to the mobile phone hardware, software, and content is assessed within the intellectual property framework in India and China. This chapter focuses on copyright and access to music content in India.

Research Problem:

In light of new music distribution business models accessible via the mobile phone, there has been increasing complexity in music copyright licensing, revenue, and royalty distribution. Despite the intent of the 2012 Copyright Amendment to resolve stakeholder grievances, the copyright institutions in India continue to lack legitimacy amongst relevant stakeholders for the management of music copyright.

Research Objective:

Provide evidence-based policy proposals which may aid industry leaders and policy makers to more effectively manage music copyright in India

Research Questions

How have evolving music distribution technologies accessible via the mobile in India impacted business models and licensing practices amongst stakeholders in the digital music industry?
What are the specific copyright challenges for each relevant stakeholder, and how can the copyright institutions provide for more effective management in the industry?

Research Objects

Modes of mobile music access

Value-added-services
Device- bundled music
Online download stores
Online streaming (primary focus due to increasing popularity)

Methodology

How have evolving music distribution platforms impacted business models and licensing practices amongst stakeholders in the digital music industry?
- Map out digital platforms' business models
- Identify stakeholders within these ecosystems, and their copyright licensing negotiation process, terms, and revenue distribution
What are the specific challenges pertaining to copyright and licensing for each relevant stakeholder? How can the copyright institutions provide for more effective management?
- Identify and evaluate grievances pre- and post-2012 Copyright Amendment
- Identify proposals for improvement of copyright institutions: Copyright Act, Copyright Board, copyright societies.
- Compare music copyright institutional structure and process in other jurisdictions
- Gather list of policy proposals and evaluate
Methods:
- Literature review – industry reports, media reports, industry blog posts, academic research,
- Expert interviews of stakeholders – handset manufacturers, copyright societies, government, lobby groups, content aggregators, music labels, music publishers, online streaming platforms, online music retailers, venture capital investors, telecom operators, musicians, multi-channel networks, legal practitioners
- Stakeholder analysis of policy proposals

For more details visit https://cis-india.org/a2k/blogs/copyright-management-in-age-of-mobile-music

[Open] Innovation and Expertise > Patent Protection & Trolls in a Broken Patent Regime (Interviews with Semiconductor Industry - Part 3)

maggie — 2014-12-26T13:19:46Z

This is the third of a four-part blog series1 highlighting findings from a small sample of interviews with fabless semiconductor industry professionals in Taiwan. These industry insiders was approached for the intent of understanding expert knowledge on the process of integrated circuit design. However, the conversations resulted in leanings far beyond that scope. This post explores some of their views on the current intellectual property system.

The intellectual property framework is meant to provide a temporary monopoly so those taking the risk to invest time, money, and resources into research and development can reap the returns for that investment without having to worry about others undercutting their price and competing for market share. Registration of patents supposedly encourages the dissemination of ideas and overall greater knowledge contribution for public access and eventual public domain. The interviewees were asked about their thoughts on this system of protection, incentivization, and knowledge-share, resulting in five broad themes:

1) Expertise trumps patent ownership

Particularly today in a digital world where innovative ideas and concepts can be easily shared, the first thing many people think about when discussing innovation, is the need to protect via patents. A vast amount of literature attempts to review the implications of patents' on technological innovation and economic development.

However, one interviewee noted that this emphasis on patent protection often overshadows what is much vital to the success of a technology business or industry - the people: the expertise and experience of the companies, their engineers, and their management. A lot of knowledge and 'intellectual property' lies in the procedures and processes which have resulted in effective application of standards and high level of performance for ones' products. The value of these skills and intelligence of human resources far outweigh the importance of protecting and owning patents.

2) Broken patent system

There was a clear consensus that the number one intellectual property concern is the need to revamp the current patent regime, with all interviewees agreeing that "useless patents" were being filed. Some suggestions for improvement included international standardization regarding the definition of a patent, the process of patent applications, and the scope of what a patent should cover. One interviewee believed that currently, the patent system actually prevents technological innovation, because one single patent can cover many ways of achieving something. The Apple patent entitled ' Method for providing human input into computer' which patents nearly every single possible human-computer interaction is an example of this.

"Patents today are trivial, and don't contain information regarding HOW to make something; there are too many process and design patents, and not enough functional patents...merely competitive differentiations rather than fundamental technological changes" .

This quote expressed the perception that only inventions that affect functionality in a fundamental way should be patented. A patent should not be claimed for something you cannot do, or does not show any kind of knowledge for how to solve a problem. One interviewee suggested that if a patent is granted without use for 3 years either by the owner or through licensing, the patent should be considered invalid.

Another industry expert explained that numerous patent applications are entered into the system without enough resources and competencies in the government to review them well. Albeit suggested in a joking manner, there may be truth to his claim that a knowledgeable intellectual property tech expert would opt to work for the more lucrative law firm over the government. He observed over the years a cycle where patents are easily approved, in which if a lawsuit arose, the patents are assessed more carefully again, resulting in massive inefficiencies for the system.

3. Patent Trolls

The poor execution of the patent system has resulted in the phenomenon of 'patent trolls', or what is more neutrally termed as non-practicing entities ("NPEs")[1] or patent assertion entities ("PAEs").[2] As explained by one interviewee, the business models of these entities often begin by conceiving of future technologies which may be necessary or foreseeable in the near future. Then, they seek to patent those ideas with no intention of actually producing producing or manufacturing the product. The main purpose is to profit through litigation and licensing. An example given of a patent trolling company was "Intellectual Ventures", which describes themselves as an "invention capital company" that "owns some of the world's largest and fastest growing intellectual property portfolios"[3]

The difficulty is that patent trolls are virtually indistinguishable from aspiring inventors and engineers, who may seek to manufacture and scale up their products through outsourcing and licensing. In addition, the lack of actual production makes valuation, legislation, and enforcement around this practice extremely difficult.

"The problem is, the guys who have patents think it's worth this much money… and the company that wants to license think it's worth another amount. From a regulatory or legal point of view, it's very difficult to legislate these things… you can't legislate a value right? In the end, it's how much the customer is willing to pay for it. It doesn't matter how many years someone's been working on it, if no one wants to buy it, it's not worth anything."

Robert L Stoll, former USPTO Commissioner of Patents says the most effective way to reduce predatory behavior is to ensure bad patents don't get issued in the first place, highlighting a legislation in the America Invests Act of 2011 which allows third parties to challenge granted patents on basis of former prior art, and non-technical financial or product patent.[4] Increased collaboration shown through standards and cross-licensing

The development of standards is very "fashionable" at the moment, according to one interviewee, who expressed his desire for his own company to be more involved in the process. However, another interviewee stated that more could be done to enhance collaboration within industry so that technologies could be provided free of licensing and ultimately benefit society at large through greater interoperability. Although there are signs of partnerships through cross-licensing agreements, particularly amongst larger firms, there are limitations because not everyone, including small firms, can afford it.

Most interviewees also expressed the need for greater emphasis on knowledge and research, rather than relying on proprietary technologies, which may actually hinder technological innovation. Examples given for companies doing this were Google and IBM, who both have more of a research background, and potentially have more research and development resources to engage in this kind of work.

5) Need for more openness

One interviewee who had extensive experience in the hackerspace community was an advocate for openness within the industry, and believed many companies had the option to become more open and effectively 'outsource' their research and development to the larger community.

Some successful projects he suggested was an open-sourced graphics processing unit ("GPU"), which does not exist even for the largely open Rasberry Pi. Even the development of a lower quality open sourced GPU in the market would result in tremendous demand, in his opinion. The ARM technology, the most popular CPU in the market is also currently semi-closed, and could in his opinion have benefited from more openness.

One interviewee expressed disappointment that all of the chips in his company was proprietary, even those that were no longer in production due to fear that competitors would be able to anticipate future developments from past projects. He suspected that many things were protected simply because the legal department assumed confidential and proprietary, without necessarily a coordinated long-term vision from head management. It is this normalized culture in industry that is, in his opinion a great hindrance to innovation, development, and accessibility of technology.

https://www.patentfreedom.com/about-npes/background/

http://www.ftc.gov/policy/studies/patent-assertion-entities-pae-study

http://www.intellectualventures.com/about

http://www.wipo.int/wipo_magazine/en/2014/02/article_0007.html

For more details visit https://cis-india.org/a2k/blogs/interviews-with-semi-conductor-industry-part-3

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

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

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

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

I. Preliminary

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

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

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

II. Overview

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

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

III. Detailed Comments

Part 1.The Need for a Broadcast Treaty

(a) Literature Review

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

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

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

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

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

(b) Comparative Analysis

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

34.

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

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

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

(c) Analysis and Conclusions

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

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

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

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

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

(a) Need for a Signals-Based Approach

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

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

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

(b) Costs of a Rights Based Approach

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

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

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

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

(c) Shift to a Rights Based Approach

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

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

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

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

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

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

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

IV. Concluding Observations

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[18] Article 6(ii), WPPT.

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

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

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

[22] Article 11 bis, the Berne Convention.

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

[24] Article 3, the Brussels Convention.

[26] Article 6 (i), WPPT.

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

[28] Article 11, the Beijing Treaty.

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

[30] Article 11 bis, the Berne Convention.

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

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

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

[34] Article 9, the Berne Convention.

[35] Article 12, the Berne Convention.

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

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

[38] Article 10, the Rome Convention.

[39] Article 7, WPPT.

[40] Article 11, WPPT.

[41] Article 11, the Beijing Treaty.

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

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

[44] Article 6, WCT.

[45] Article 8, WPPT.

[46] Article 12, Article 14, WPPT.

[47] Article 8,the Beijing Treaty

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

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

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

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

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

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

[54] Article 12(2), WCT.

[55] Article 19(2), WPPT.

[56] Article 11, WCT.

[57] Article 18, WPPT.

[58] Article 12 (1), WCT.

[59] Article 19, WPPT.

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

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

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

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

[64] Article 17, WPPT.

[65] Article 14, the Beijing Treaty.

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

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

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

[69] Article 9, the Berne Convention.

[70] Article 15, the Rome Convention.

[71] Article 4, the Brussels Convention.

[72] Article 7, the Brussels Convention.

[73] Article 10, WCT.

[74] Article 16, WPPT.

[75] Article 13, the Beijing Treaty.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[92] See Part 1.1.

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29th Session of the WIPO SCCR: Statement on the Limitations and Exceptions for Education, Teaching, Research Institutions and Persons with Disabilities

nehaa — 2014-12-20T13:40:19Z

At the 29th session of WIPO's SCCR, the Chair, Martin Moscoso, requested NGOs to send in their statements on limitations and exceptions for education, teaching, research institutions and persons with disabilities in writing, to be placed on the record. Nehaa Chaudhari, on behalf of the Centre for Internet and Society (CIS) sent in this written statement.

Thank you very much, Mr. Chair.

As we have always maintained in the past sessions of this Committee, the Centre for Internet and Society strongly believes that everyone, regardless of borders and barriers, either physical, or those created by time, distance and costs should have access to knowledge and education.

To that end, we strongly support the proposal made by India, earlier, on continuing constructive work in this area. We also welcome the suggestion by the Indian delegation on a synthesis of these issues (facilitated by an expert, through the Chair), so that we can have a constructive discussion on these issues.

Mr. Chair, we are very mindful of the fact that there exists a very real, very demonstrable need for limitations and exceptions for education, teaching and research institutions and also for the benefit of persons with disabilities. There is also an equally crucial need to ensure that these limitations and exceptions are open ended and are appropriate for the digital environment; a conversation we believe that is imperative for Member Nations to take forward, definitely more so than one around granting a 'para-copyright' for organizations that already enjoy a great deal of protection under existing treaties, and are far less vulnerable than beneficiaries of these limitations and exceptions.

We thank the United States of America for their document- SCCR/27/8 on the Objectives and Principles for Exceptions and Limitations for Educational, Teaching and Research Institutions. We appreciate the recognition of the copyright system in the dissemination of works of authorship as well as the critical role that it plays in the promotion of educational, teaching and research objectives. We also appreciate the acknowledgement of a balance of rights and exceptions and limitations sustaining the role and activities of educational, teaching and research institutions.

However, we do believe that for a true balance to be achieved between rights and limitations and exceptions, the rights of the users of copyrighted works for the purposes of access to knowledge will have to be treated on par with those of the rights holders themselves. We believe that for this to be possible, measures will have to be taken to ensure international interoperability of limitations and exceptions and international standards suitable to address emerging and present issues of the digital environment will have to be developed. As we have submitted before this Committee earlier, it is our belief that the present international legal framework does not sufficiently address the opportunities presented by these information and communication technologies. Mr. Chair, we reiterate the need for open ended exceptions and limitations in this area, that will facilitate a cross border exchange of books and other learning material.

As a first step towards this end, we urge Member States to collaborate on and engage in substantive discussions building on existing Working Documents presently before this Committee. We look forward to an engaging discussion and providing all our complete support as we move forward on this very important agenda item.

Thank you, Mister Chair.

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

WIPO Delegates Hear Concerns of NGOs on Exceptions for Libraries

praskrishna — 2014-12-27T14:40:05Z

As World Intellectual Property Organization member states launched into discussions on exceptions and limitations to copyright for the benefit of libraries and archives this week, non-governmental organisations were given the opportunity to present their views on the issue. They delivered vibrant, sometimes contradictory, statements on the opportunity for a treaty to preserve exceptions in the international copyright system.

The 26th session of the WIPO Committee on Copyright and Related Rights (SCCR) is taking place from 16-20 December. After two days devoted to the protection of broadcasting organisations, the focus of the next two days has been on a potential international instrument providing exceptions and limitations for libraries and archives.

In their general statements, countries remained faithful to their known positions. Developing countries generally underlined the necessity of achieving a balanced international copyright system and their wish to establish a legally binding instrument, and developed countries were of the view that the existing international copyright system already provides exceptions which could be used by libraries and archives.

The African Group said the countries in the group: find it difficult to set up and understand the existing limitations and exceptions; believe an international legally binding instrument would enable them to understand better how they can provide exceptions and limitations for libraries and archives; and consider that it would provide a mechanism for cross-border exchange for such entities.

The European Union clearly stated that its member countries were not willing to consider a legally binding instrument, and said that exceptions and limitations for libraries and archives did not require the same kind of action that was taken in favour of visually impaired people, referring to the recently adopted Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled.

Developed countries, in particular those in the European Union, did not always stand in favour of a treaty providing exceptions and limitations to copyright for visually impaired people. In the discussion on libraries and archives, developed countries are in favour of sharing national experiences rather than establishing binding new norms.

The United States said it was not in support of norm-setting through treaty provisions. The delegate also said exceptions and limitations should be consistent with other member state obligations, including the so-called three step test.

The notion of three-step test haunted the discussions leading to the Marrakesh Treaty. It stems originally from Article 9(2) of the Berne Convention for the Protection of Literary and Artistic Works (IPW, WIPO, 14 June 2013) and provides conditions for reproduction.

A large number of non-governmental organisations took the floor on 18 December, with stark differences in the approach of the issue of exceptions and limitations to copyright for libraries and archives.

Industry, Creators: International Instrument Superfluous

The industry, such as the International Federation of Film Producers, the Motion Picture Association (MPA), The International Association of Editors (IPA), the International Video Federation (IVF), the Ibero-Latin-American Federation of Performers (FILAIE), and the International Association of Scientific, Technical and Medical Publishers (STM), said that the existing international copyright framework already provides exceptions and limitations, and national legislations can be develop to address issues met by libraries and archives.

FILAIE said that it was in support of the Marrakesh Treaty but that a balance between society and the rights holders should be maintained. The IPA said there is no need for change in the international law, and suggested active legislative assistance to WIPO member states by the secretariat.

IVF concurred and said effective technical assistance in implementing the existing international copyright framework should be a focus of the SCCR.

The International Federation of Reproduction Rights Organisation (IFRRO), in its statement, also said the current international conventions adequately provide for the establishment of relevant library exceptions in national legislation, such as reproduction for preservation proposals. The sharing of experiences ” both in the wording of library and archive exceptions and practical solutions seems to IFRRO to be the most appropriate way to enhance the performance of library and archive services,” the representative said.

“Exceptions and limitations are already part of the toolkit of existing treaties,” the representative for the International Federation of Actors and the International Federations of Musicians said. The international normative framework is providing “a coherent and flexible structure with just recognition of the contribution of creators to the information society and knowledge society, and the establishment of exceptions and other mechanisms providing access for the public to creative content,” he said.

The International Authors Forum concurred with the idea that existing provisions contain sufficient flexibility and asked that WIPO member states “will take advantage of the opportunity provided by the WIPO texts for adequate remuneration for the authors in accordance with the three-step test.”

Libraries, Archive Underline Inadequacies, Support Treaty

Libraries and archivists have a different view of the issue and reported on problems as they experience them on the ground.

The German Library Association cited a new study published by the European Commission (Study on the application of Directive 2001/29/EC on copyright and related rights in the information society [pdf]), and said it “paints a dire picture of the adequacy of the Directive for exceptions for libraries in the European Union in the digital environment.”

In particular, the representative said, it “identifies a lack of cross-border application of exceptions for libraries and a patchwork of national laws as preventing libraries from fulfilling their functions,” in particular presenting cross-border issues, he said.

“There is a high level of international copyright protection,” he said, but “there is no such uniformity of limitations.” To act legally, he said, “library staff has to know about the limitations and exception, not only in their own country, the country of origin, but also in the country of destination of its service.”

The Canadian Library Association said it came to WIPO “to ensure a basic copyright framework is made available to libraries everywhere, and not just in Canada to deliver essential information services, and so that other communities can benefit from the same societal and economic impacts as we have in Canada.”

Even in Canada, the representative said, libraries’ activities are under threat, “as increased restrictions such as technology group protection measures and licensing terms and conditions degrade the environment in which we work, leaving libraries changing our role to simple market access intermediaries for publishers.”

For Electronic Information for Libraries, an international framework establishing basic standards is necessary to avoid increasing inequalities in public knowledge. “We recognise the theory that the international copyright framework provides legal space to ensure meaningful limitations and exceptions,” the representative said, “But when the reality is different, and the gap between countries is widening, intervention is required to ensure the integration of key public interest concepts into the international framework.”

The International Federation of Library Associations and Institutions also underlined the disparity in national exceptions and limitations making it impossible for libraries to “competently fulfil our role as intermediaries between rights holders and users.”

At WIPO, Study On Copyright Exceptions Stimulates Broad Discussion With Author

praskrishna — 2014-12-27T14:33:46Z

During the recent meeting of the World Intellectual Property Organization copyright committee, a study was presented on exceptions and limitations to copyright for libraries and archives at the national level. The presentation spurred a full day of discussion about how to ensure libraries can continue to provide an indispensable service, and a substantive exchange with the author.

The article by Catherine Saez was published in Intellectual Property Watch on December 18, 2014

The 29th session of the Standing Committee on Copyright and Related Rights (SCCR) took place from 8-12 December.

On 10 December, Kenneth Crews, former director of the copyright advisory office at Columbia University and now in the private sector, presented an update [pdf] of his 2008 WIPO-commissioned study on Copyright Limitations and Exceptions for Libraries and Archives (IPW, WIPO, 12 December 2014).

The study provided safe ground for broad discussions on the sensitive issue of exceptions and limitations, and the role of WIPO in the issue, with a large number of countries taking the floor to offer comments on the study and its findings, providing specific details on their own legislation and/or asking questions.

Harmonisation

Mexico, for example, asked whether there was a general movement leading to a harmonisation exercise in international copyright law.

Crews answered there was no movement toward an era of harmonisation, but harmonisation could be an answer in the field of limitations and exceptions if it left sufficient policy space to countries.

On the one hand, he said, “there is virtue in harmonisation, in allowing for the predictability of the law … as your business activities move from one country to another.” It makes the law easier to understand, and easier to address some of the issues of cross-border exchange..,” he said.

But the major disadvantage of harmonisation would be the loss of opportunity for countries to “experiment, test new ideas in lawmaking, and to move in some new directions,” he added.

Maybe the answer lies in the middle, said Crews: harmonise the law to a certain extent, “and then leave some of the details to individual countries.”

The European Union delegate remarked that even in an integrated legal system such as the EU, very few exceptions to copyright are mandatory for EU members. Member states “remain free to implement most of the exceptions in the EU legislation in their national systems,” he said.

Implementation Issues

Tunisia stressed the issue of the implementation of copyright exceptions and limitations in developing countries, particularly for libraries. Libraries often are “fearful of the complications,” referring to the exceptions and limitations legislation, and simply do not use it, preferring “what is possible and available,” he said

Crews said it is important to find “the right formula” for drafting a statute that is detailed enough that users are law-abiding citizens, “and at the same time not be so complicated in the structure of the law that it is difficult or impractical for most – even trained professionals – to follow.”

Cross-Border Exchange, TPMs

Brazil said the study sheds light on certain areas where further cooperation would be welcome. The Brazilian delegate said this cooperation could take into account the dynamic evolution of digital technologies and the “growing cross-border cooperation among libraries and archives.”

The delegate said some factors pose concrete problems for cross-border cooperation, such as the fact that some 33 WIPO members do not provide exceptions for libraries, and a higher number of countries do not provide exceptions and limitations that “could be deemed adequate” to address the new challenges created by the digital environment, and limitations and exceptions provided by national legislation vary deeply from country to country.

Now that the research has started with the 2008 report has been updated, we can see that from the universe of the WIPO membership 33 countries still do not provide limitations and exceptions for libraries and archives in their national legislation. A even greater number of WIPO members do not seem to provide limitations and exceptions that could be deemed adequate in order to address the new challenges libraries and archives increasingly face with the emergence of the digital environment

He also said the study states that technological protection measures (TPM) can have a negative impact on countries’ ability to “legitimately implement exceptions and limitations,” which is a “growing concern as countries seek to better regulate and avoid abuses in the use of TPMs.”

Crews said the issue of cross-border activity and the difficulty in cooperation between countries induced by the difference in laws is perhaps one of the most important that WIPO could address. Part of the solution to that problem might be a trusted third party facilitating the transfer of copyrighted works, he said. A sharing of resources should be allowed while protecting the interest of right-holders, he said, “so that they can participate in this and encourage this activity as well.”

Many developing countries keep insisting that the major issue for libraries and archives is the digital era. The digital revolution “has barely begun,” Crews said. “The transformation of technology and the way we communicate and the way we share information is only beginning, so it is important not to prescribe exact details, but … to take some steps to open up the issue,” he said.

Chile also underlined the fact that the study showed a low number of countries providing exceptions for interlibrary loans.

According to Crews, using licences for cross-border activities is limited to the countries which the licence covers. The risks of having licences as a solution to cross-border exchange is that “it leaves the terms to private negotiations,” and many countries might not have laws on licensing.

Licensing Agreements

Sweden said the country has a dual system: “traditional limitations” in the law or preservation and replacement, for example, and a licensing agreement system. The two systems run side-by-side smoothly, he said.

Crews said that the licensing agreement system is not adaptable to all countries. “There are many reasons why it has not been adopted” in some countries, he said, adding, “I would express some concern about requiring it as an international matter.”

The European Union said exceptions and limitations and licences often coexist well. Those licences are often collectively negotiated, said the EU delegate, and sometimes cover broader uses than the exceptions themselves.

Crews said conceptually in the law-making process, countries need to reckon with the relationship not only of the rights of owners and the public rights of use or the copyright exceptions, but also the role of licences, and should they be allowed to override an exception that is in the law.

“That is a tough question,” he said. “It not only goes to the balance of rights,” he added, but lawmakers should decide to what extent an agreement can impede the statute they have worked hard to develop.

Countries Provide Clarifications, New Legislations

Some countries provided clarifications or additions to the study. For example, Saudi Arabia, which was mentioned in the study as one of the countries with no exceptions and limitations, said the 1984 copyright law provides an exception in paragraph 3.

Ecuador said it is working on a substantial reform of its current intellectual property legislation, including exceptions and limitations for people with disabilities, teaching and educational institutions, and libraries and archives.

China said it is undergoing the third revision of its copyright law, and Thailand said in November it passed an amendment to its copyright law, on TPMs, and this amendment includes an exemption for the circumvention of TPM for libraries and archives, educational institutes, and public broadcasting organisations.

Crews said many countries, including the United States and those in the European Union, have exceptions for TPMs, with two basic procedures: an exception that allows the user to “do the act of circumventing the measures to access the content,” and a legal system that calls on the rights holder to provide the means to users to access the content.

The United States said the US Congress is currently reviewing elements of its domestic copyright law, including library-related exceptions and limitations.

In November, the Czech Republic introduced a new amendment to its copyright system, the delegate said, “and the amendment brought a new exception for libraries and archives and for other cultural and educational institutions and for public broadcasters,” enabling them to use orphan works existing in their collection, under specific terms and for certain specific uses.

NGO Questions and Comments

The representative of the Electronic Information for Libraries (eIFL) asked Crews how WIPO, as a United Nations agency with a commitment to enhance developing countries’ participation in the global innovation economy, could support countries to be at the forefront of digital developments. The representative also asked how libraries can accommodate their increasing need to send and receive information across border, within the realm of copyright law.

Many countries have either no exceptions, or have exceptions but very limited applications, which do not cover digital technology, Crews said, adding that WIPO is in a position to shape the next model.

The International Publishers Association said that legislation is one thing but to know whether they are implemented and how they work is another. The representative advised looking at what kind of practice, and also practical initiatives between stakeholders can solve issues at stake.

In many cases, the representative said, issues are solved by alternative means, citing collective licensing, but also solutions bringing together stakeholders, he said, which provide space and flexibility for adaptation and further change. On cross-border document delivery, he said, “It is not true that documents are not crossing continents or crossing borders.” He explained that there are many alternative ways of receiving content across borders.

Crews said he is supportive of alternatives outside of the law, however, they might not be optimal solutions, he said. In particular, it often takes no less time to develop those alternatives than writing law, he said. He added that those alternatives, such as licences, are available only with respect to certain types of works, whereas statues apply to all types of works.

“The private extra-legal systems are not going to solve all of the issues,” said Crews.

The International Federation of Library Associations and Institutions said the United Kingdom reform of its copyright law includes for the first time provisions that prevent contracts and licences from overriding the exceptions and limitations enjoyed by libraries and archives for non-commercial uses.

The Center for Internet and Society (India) asked about the interoperability of limitations and exceptions to allow for easier trans-boundary movement of works. Crews said the trans-border concept seldom appears in library exceptions. Trans-border sometimes is governed by copyright law and sometimes by some other part of national law, such as import and export, he said. Some degree of harmonisation can help with interoperability, he said.

In general terms, and following an intervention by the TransAtlantic Consumer Dialogue mentioning public involvement in the discussions, Crews said, “We are all copyright owners and we are all users of other people’s copyrights to some extent.”

The public does not realise that they are all owners and users of copyrighted works on a daily basis, he said, and they need to become participants in the process.

[Update:]

Knowledge Ecology International asked if the periodical revision of the Berne Convention’s standards for copyright exceptions, which ended in 1971, should be resumed. The KEI representative also asked whether the copyright three-step test contained in the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) applies to specific limitations and exceptions to remedies for infringement, in part III of TRIPS (Enforcement of Intellectual Property Rights).

Crews answered that the three-step test does not apply to the remedies, or other matters. The test is on “its own terms applicable to the limitations and exceptions,” he said.

On the revision on the Berne Convention, Crews said “the answer is yes” but it is a “bigger subject than we are convened here today to discuss.”

KEI also mentioned a Spanish tax which “apparently” is taken on snippets from news organisations and asked if this tax does not violate the two mandatory exceptions in the Berne Convention, which are news of the day, and quotations.

Crews said the issue might be about the interrelationship of copyright with other areas of the law. The Spanish tax mentioned might be relative to a tax law, he said.

For more details visit https://cis-india.org/a2k/news/ip-watch-catherine-saez-december-18-2014-wipo-study-on-copyright-exceptions-stimulates-broad-discussion-with-author

Tulu Wikipedia - Coverage in Vijaya Karnataka

praskrishna — 2014-12-27T16:36:09Z

This is the coverage in Vijaya Karnataka on December 15.

For more details visit https://cis-india.org/openness/news/tulu-wikipedia-december-15-2014-coverage-in-vijaya-karnataka