Centre for Internet and Society

Lecture by Eben Moglen and Mishi Choudhary

pranesh — 2011-08-23T02:55:59Z

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

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

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

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

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

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

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

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

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

Lecture by Eben Moglen and Mishi Choudhary

pranesh — 2011-04-05T04:42:05Z

Software Freedom Law Center, National Law School of India University and Centre for Internet and Society jointly organize a lecture by Eben Moglen and Mishi Choudhary.

The Software Freedom Law Center (SFLC), National Law School of India University (NLSIU), and the Centre for Internet and Society (CIS) are organizing a lecture by Prof. Eben Moglen of Columbia University and Ms. Mishi Choudhary, head of the New Delhi branch of SFLC.

Prof. Moglen will be speaking on "Who Killed Intellectual Property and Why We Did It", and Ms. Choudhary will be speaking on "Globalising Public Interest Law: The SFLC Model".

Venue:
National Law School of India University,
Gnana Bharathi Main Road,
Nagarbhavi,
Bangalore
[map: http://bit.ly/nlsiu-map]

Date and Time:
Saturday, December 13, 2008
12:30-13:30

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Leading Up To The GCIP: A Chat With Shamnad Basheer

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Leading Up To The GCIP: A Chat With Michael Geist

Job Michael Mathew — 2016-01-31T05:37:58Z

Continuing the lead-up to the GCIP, the following discussion is with Dr. Michael Geist.

Click to read the blog post originally published on Global IP Congress website on December 12, 2015.

Profile: Dr. Michael Geist is a law professor at the University of Ottawa, where he holds the Canada Research Chair in Internet and E-commerce Law. He will be giving a keynote address during the inaugural plenary session scheduled for December 15^th.

JMM: The UK recently made a major push towards open access after the recommendations of the Finch Report dealing with expanding access to research publications. The major thrust of the Finch Report is towards sustaining an open access model through Article Processing Charges (APC) as opposed to other alternatives such as Advertisement/Sponsorship based model or the subsidy-based model. This has raised concerns over predatory open access journals using APC which are said to undermine peer review and privilege wealthy universities and grant holding scholars. What do you think are the implications of following such a model for the open access movement at large?

MG: I have real concerns about the APC model, which may price open access out of the hands of many scholars. We need experimentation with different open models, recognizing the economic uncertainty of switching away from high priced subscriptions. However, APC may entrench much of the current model and is among the least desirable (though increasingly common) publisher approaches to OA.

JMM: One of the barriers to open access in Canada was the lack of campus support towards open access. You have written that even as many of the world’s top universities adopt open access strategies, universities in Canada remain reluctant to follow open access mandates. What explains this reluctance to open access among universities and is it something found in other parts of the world as well?

MG: We are starting to see more movement towards OA in Canada. Part of this is driven by our federal granting councils, which have emphasized OA requirements within their guidelines. I think there is also a growing recognition of the scholarly benefits of OA. That said, there are still many scholars who pay little attention to the publishing contracts they sign and the restrictions that may be imposed on their work through their choice of journal. This is an ongoing education issue, particularly for senior scholars, who may still be unfamiliar with OA issues.

JMM: In early 2013, the University of Ottawa Press released “The Copyright Pentalogy: How the Supreme Court of Canada shook the foundations of Copyright Law” in open access. The book was one of the most accessed on the University of Ottawa Press website and in less than 6 months of release was top among 35 books on page views. Writing about the book, you noted that the book was also a top seller in the University webpage in spite of being available for free. Over the last few years, many more of such examples have surfaced. Is open access actually not at odds with commercial sales as commonly understood?

MG: I think open access works hand-in-hand with commercial sales. Indeed, in some instances, it may increase sales. I have long come from the position that there are three potential purchasers of my books. The first group – librarians, people focused on digital issues, etc. – will buy the book regardless of whether it is freely available online. There is a second group that might have purchased the book, but chooses not to do so because there is a free version available. This group represents a financial loss. There is a third group, however, who would not have purchased the book or even been aware of it, but find it through open access. This group may decide it likes what it has read and will buy the book. If group three is larger than group two, the publisher ends up ahead. In fact, the third group doesn’t even need to be larger, because the publisher may be able to use OA to cross-sell other publications. Note that the fourth group – those that would not buy the book but choose to download it – do not factor into this analysis because this group would never have been purchasers.

JMM: Recently you wrote about an Ottawa Court ruling asking a man to pay damages amounting to $13,470 for circumvention of a digital lock. The case involved a man who received from his friend an online publication that he had not subscribed to himself. Apart from Canada, United States of America has strict anti-circumvention rules under the Digital Millennium Copyright Act (DMCA) which makes it illegal to circumvent technological protection measures irrespective of whether or not the reasons for doing so are perfectly legal or non-infringing. Further the TPP under Article 18.68 provides for legal protection against circumvention of effective technological measures without reference to any exception for legal or non infringing use just as in the DMCA. In the light of active endorsement of such measures from certain quarters of the developed world do you think such measures could become a global norm that developing countries may soon be forced to adopt?

MG: There is a real danger of this occurring. The US has aggressively pressured others to implement restrictive anti-circumvention rules. These rules often go well beyond those required by the WIPO Internet treaties. This is a significant problem that cuts across all economies, both developed and developing.

JMM: Almost a year back, there were reports indicating that Canada was the leading opponent of the IP chapter in the Trans-Pacific Partnership. However a year later the negotiations have been completed and parties have agreed to the same text. According to you, what helped quell the Canadian dissent to contentious areas such as extension of the term of copyright protection, criminal liability for copyright infringement among others? Further do you think the victory of the Liberal Party in the just concluded elections will force a rethink on the TPP?

MG: Earlier leaks did indeed indicate that Canada opposed many provisions in the IP text, reflecting differences between Canadian and U.S. copyright law. On several issues, Canada caved (such as term extension). Given the secrecy associated with the negotiations, it is hard to know precisely why certain provisions ended up the way they did. However, the final text suggests that IP was not a top Canadian priority, other than preserving the notice-and-notice system.

As for the change in government, I think Canada will sign the TPP alongside other signatories, but conduct an extensive review of the treaty before deciding whether to implement it. Whether it moves forward likely depends more on what happens in the U.S., where there appears to be significant opposition from some presidential candidates and members of Congress

JMM: Article 18.66 of the TPP deals with Balance in Copyright and Related Rights system. The article allows countries to achieve a balance in copyright and related rights system by crafting exceptions or limitations ‘giving due consideration to legitimate purposes such as, but not limited to: criticism; comment; news reporting; teaching, scholarship, research, and other similar purposes; and facilitating access to published works for persons who are blind, visually impaired or otherwise print disabled’. Do you think this article is drafted broadly enough to allow meaningful fair use? Further, article 18.65, to which 18.66 is subject to, states that exceptions permitted under the TRIPS, Berne Convention, WIPO Copyright Treaty and WIPO Performance and Phonograms treaty shall apply to TPP as well. The Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired, or Otherwise Print Disabled is absent in Article 18.65 but is present in a footnote referencing to the exception of ‘facilitating access to published works for persons who are blind, visually impaired or otherwise print disabled’ in Article 18.66. What do you think explains this treatment of Marrakesh Treaty and what will its implications be?

MG: I do think that the TPP allows for fair use. However, it does not require fair use, which suggests that many other countries may not implement it.

There is definitely a double standard with respect to international copyright treaties in the TPP. Where the treaty is viewed as a rights-oriented treaty, it is a requirement. Where it is a user-oriented treaty such as Marrakesh, it is optional.

[1] Dr. Geist has written numerous academic articles and government reports on Internet and Technology and is a syndicated columnist on technology law issues with his regular columns appearing on the Hill Times, the Tyee and the Toronto Star.

He is the editor of several copyright law books including “The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law”, “From “Radical Extremism” to “Balanced Copyright”: Canadian Copyright and the Digital Agenda”, and “In the Public Interest: The Future of Canadian Copyright Law” along with being the editor of several monthly technology law publications and author of a popular blog on internet and intellectual property rights.

Dr. Geist serves an the director and on advisory boards of several Internet and IT law organizations including the Canadian Internet Registration Authority, the dot-ca administrative agency, the Canadian IT Law Association, Watchfire, and Verifia. He is Chair of a global Internet jurisdiction project for the American Bar Association and International Chamber of Commerce. He is regularly quoted in the national and international media on Internet law issues and has appeared before government committees on e-commerce policy

More information can be obtained at http://www.michaelgeist.ca/.

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

Leading Up To The GCIP: A Chat With Jayashree Watal

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Land and Social Justice - An introduction to Georgism

praskrishna — 2013-04-28T07:06:03Z

Cherry G Mathew will be giving a public talk on Georgism at the office of the Centre for Internet and Society in Bangalore on April 12, 2013, from 5 p.m. to 7 p.m.

Abstract

In his popular book of the 1870s "Progress and Poverty", Henry George examined the causes of Poverty in contemporary America, and proposed very specific solutions for economic justice. "His genius has been glowingly acknowledged by such renowned figures as philosophers John Dewey and Mortimer J. Adler, presidents Woodrow Wilson and Dwight D. Eisenhower, scientists Alfred Russel Wallace and Albert Einstein, essayists John Ruskin and Albert Jay Nock, jurists Louis D. Brandeis and Samuel Seabury, columnists William F. Buckley and Michael Kinsley, and statesmen Winston Churchill and Sun Yat-sen.", while being heavily criticised by Karl Marx (who referred to George's teaching as "Capitalism's last ditch."[*]

This talk will make a brief introduction to George's Ideas, and then will attempt to draw discussion on their relevence to information and current copyright and intellectual property landscapes.

Cherry G. Mathew

Cherry G. Mathew is a British Chevening Scholar and an Open Source Kernel Hacker. He has worked on the Linux kernel in the past, and is an active FreeBSD and NetBSD developer/committer. He is an Electronics Engineer by basic training, with a Masters in Evolutionary and Adaptive Systems. He has worn various hats professionally, from Technical Developer, Roboticist, Free Software campaigner, CEO, volunteer teacher and currently software consultant. His current area of professional work is the Xen hypervisor and BSD kernels. His non-technology hobbies include outdoor pursuits and swing dancing.

Click to see the presentation

[*]. http://bit.ly/13HZg7m (Retrieved on March 29, 2013).

For more details visit https://cis-india.org/a2k/events/land-and-social-justice-an-introduction-to-georgism

KEI Seminar on "Appraising the WIPO Broadcast Treaty and its Implications on Access to Culture"

Admin — 2018-10-31T01:53:27Z

Anubha Sinha participated in a seminar organized by KEI on October 3 and 4, 2018 at the Graduate Institute of International and Development Studies in Geneva. Anubha spoke on the panel titled "Rationale, Beneficiaries and Scope (of the Treaty)".

Links to the webcast can be found here:

October 3: https://www.youtube.com/watch?v=QYcvaeyS04k

October 4: https://www.youtube.com/watch?v=NC5AdokTF2o

For more details visit https://cis-india.org/a2k/news/kei-seminar-on-appraising-the-wipo-broadcast-treaty-and-its-implications-on-access-to-culture

January 2011 Bulletin

praskrishna — 2012-07-30T11:25:44Z

Greetings from the Centre for Internet and Society! It gives us immense pleasure to present regular updates on the progress of our research on the mainstream Internet media. In this issue of we bring our latest project updates, news and media coverage:

Researchers@Work

RAW is a multidisciplinary research initiative. CIS believes that in order to understand the contemporary concerns in the field of Internet and society, it is necessary to produce local and contextual accounts of the interaction between the Internet and socio-cultural and geo-political structures. To build original research knowledge base, the RAW programme has been collaborating with different organisations and individuals to focus on its three year thematic of Histories of the Internets in India. Monographs finalised from these projects have been published on the CIS website for public review:

Digital Natives

CIS has interest in developing Digital Identities as a core research area and looks at practices, policies and scholarships in the field to explore relationships between Internet, technology and identity.

Column on Digital Natives

A fortnightly column on ‘Digital Natives’ authored by Nishant Shah is featured in the Sunday Eye, the national edition of Indian Express, Delhi, from 19 September 2010 onwards. The following article was published in the Indian Express recently:

Is That a Friend on Your Wall? [published in the Indian Express on 9 January 2010]

Workshop

The third and final workshop in the Digital Natives with a Cause? research project will take place in Santiago, Chile, from the 8 to 10 February. Open Call and FAQs for the workshop are online:

Blog Entry by Maesey Angelina

Maesy Angelina is a MA candidate on International Development, specializing in Children and Youth Studies at the International Institute of Social Studies, Erasmus University of Rotterdam. She is working on her research on the activism of digital natives under the Hivos-CIS Digital Natives Knowledge Programme. She spent a month at CIS, working on her dissertation, exploring the Blank Noise Project under the Digital Natives with a Cause framework. She writes a series of blog entries. The latest is:

The Digital Tipping Point

Announcement

Rising Voices Seeks Micro-Grant Proposals for Citizen Media Outreach

Accessibility

Estimates of the percentage of the world's population that is disabled vary considerably. But what is certain is that if we count functional disability, then a large proportion of the world's population is disabled in one way or another. At CIS we work to ensure that the digital technologies, which empower disabled people and provide them with independence, are allowed to do so in practice and by the law. To this end, we support web accessibility guidelines, and change in copyright laws that currently disempower the persons with disabilities.

New Blog Entry

Accessibility in Telecommunications

Intellectual Property

Copyright, patents and trademarks are the most important components on the Internet. CIS believes that access to knowledge and culture is essential as it promotes creativity and innovation and bridges the gaps between the developed and developing world positively. Hence, the campaigns for an international treaty on copyright exceptions for print-impaired, advocating against PUPFIP Bill, calls for the WIPO Broadcast Treaty to be restricted to broadcast, questioning the demonization of 'pirates', and supporting endeavours that explore and question the current copyright regime. Our latest endeavour has resulted into these:

New Blog Entry

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

Internet Governance

Although there may not be one centralised authority that rules the Internet, the Internet does not just run by its own volition: for it to operate in a stable and reliable manner, there needs to be in place infrastructure, a functional domain name system, ways to curtail cybercrime across borders, etc. The Tunis Agenda of the second World Summit on the Information Society (WSIS), paragraph 34 defined Internet governance as “the development and application by governments, the private sector and civil society, in their respective roles, of shared principles, norms, rules, decision-making procedures, and programmes that shape the evolution and use of the Internet.” Within the larger field of Internet governance, the Internet Governance Forum (IGF), a multi-stakeholder policy dialogue forum that was instituted by the WSIS processes and that is their only formal outcome, has fast emerged as one of the key institutions. As the definition quoted above indicates, a unique feature of the field of Internet governance is that, unlike many other governance spheres, it does not only involve governments. Historically, not only governments but also the technical community and private players have played a crucial role in the development of the Internet. In the context of the IGF, that role is not only explicitly acknowledged but also institutionalised as the IGF formally brings together governments, private players and civil society actors from all areas of and organisations involved in Internet governance. Moreover, now that the open and egalitarian potential of the Internet is increasingly under attack, this unique nature of the IGF, in addition to its WSIS roots, has made it a prime venue to remind stakeholders in all areas of Internet governance of the commitment they have made earlier to building a “people-centred, inclusive and development-oriented Information Society” (WSIS Geneva Principles, Para 1). CIS involvement in the field of Internet governance has the following shape:

New Blog Entry

Jurisdictional Issues in Cyberspace

Privacy

CIS has undertaken many new and exciting projects. One of these, "Privacy in Asia", is funded by Privacy International (PI), UK and is being completed in collaboration with Society and Action Group. "Privacy in Asia" is a two-year project that commenced on 24 March 2010 and will complete within two years from the commencement date, unless otherwise agreed to by the parties. The project was set up with the objective of raising awareness, sparking civil action and promoting democratic dialogue around privacy challenges and violations in India. In furtherance of these goals it aims to draft and promote an over-arching privacy legislation in India by drawing upon legal and academic resources and consultations with the public.

Apart from "Privacy in Asia" CIS is also participating in the " Privacy and Identity" project, which is funded by the Ford Foundation and managed by the Centre for Study of Culture and Society. The project is a research inquiry into the history of Privacy in India and how it shapes the contemporary debates around technology mediated identity projects like Aadhaar. The "Privacy and Identity" project started in August 2010.

New Blog Entries

Staff Update

Prashant Iyengar is a lawyer and legal scholar who has worked extensively on intellectual property issues particularly focusing on copyright reform and open access. He is a past recipient of an Open Society Institute fellowship for research into Open Information Policy, and has been affiliated with the Alternative Law Forum – a collective of lawyers in Bangalore engaged in human rights practice.

Prashant joined the Centre for Internet and Society as a lead researcher in the Privacy India project recently.

Telecom

The growth in telecommunications in India has been impressive. While the potential for growth and returns exist, a range of issues need to be addressed for this potential to be realized. One aspect is more extensive rural coverage and the second aspect is a countrywide access to broadband which is low at about eight million subscriptions. Both require effective and efficient use of networks and resources, including spectrum. It is imperative to resolve these issues in the common interest of users and service providers. CIS campaigns to facilitate this.

Column

Shyam Ponappa is a Distinguished Fellow at CIS. He writes regularly on Telecom issues in the Business Standard and these articles are mirrored on the CIS website as well.

The policy langurs [published on 6 January 2011]

News & Media Coverage

Civic hackers seek to find their feet in India (Livemint, 24 January 2011) and (IndiaInfoline, January 2011)
A Tweet and a poke from the CEO (Livemint, 24 January 2011)
Clicktivism & a brave new world order (Mail Today, 2 January 2011)
Would it be a unique identity crisis? (Bangalore Mirror, 2 January 2011)
Nel suk dei nativi digitali. Perché gli studenti 2.0 hanno bisogno di una bussola per orientarsi (Il Sore24 ORE, 2 January 2011)
A Refreshing Start! (Verveonline, Volume 19, Issue 1, January, 2011)
Getting Connected (Livemint, January 2011)
Knowledge Warriors (Il Sore24 ORE, January 2011)
Nishant Shah Quoted in Livemint 2011 Tweet-out (Livemint, January 2011)
Digital Natives with a Cause? - Workshop in Chile seeks participants (Bahama islands info, 30 December 2010)
Mothers discuss kids, music, fashions, on Net (The Hindu, 26 December 2010)

Follow us elsewhere

Get short, timely messages from us on Twitter
Follow CIS on identi.ca
Join the CIS group on Facebook
Visit us at www.cis-india.org

Looking forward to hearing from you. Please feel free to write to us for any queries or details required. If you do not wish to receive these emails, please do write to us and we will unsubscribe your mail ID from the mailing list.

For more details visit https://cis-india.org/about/newsletters/january-2011-bulletin

IPEX 2015

praskrishna — 2015-10-25T15:06:50Z

Rohini Lakshané attended IPEX 2015 organized by the Confederation of Indian Industry, APTDC and TDPC on September 25 - 26, 2015 at Hotel Westin in Chennai.

The sixth edition of IPEX 2015 "Think Local-Act Global: Interfacing IP in a globalized world" aimed to strengthen the participation of Indian companies in current knowledge based economy. The conference was designed with an objective that Indian startups and companies should lay a solid IP foundation in order to maximise future value, and ensure success in a longer run.

For more details see the brochure. For presentations click here.

For more details visit https://cis-india.org/a2k/news/ipex-2015

IP Meetup #02: Prabir Purkayastha on the CRI Guidelines and software patenting in India

sinha — 2016-03-29T17:06:13Z

Prabir Purkayastha will deliver a short talk on what the Guidelines on Computer Related Inventions mean for software patenting, and the way forward, on Sunday, March 20th, 2016 at the CIS Delhi office, at 4 p.m.

We would like to invite you to the second session of a series of IP focused meetups. The meetups are aimed at bringing folks together working within or interested in IP law, to discuss recent developments with reference to access to knowledge, climate change, health, trade, etc.

The talk will be followed by a round of discussion, after which the floor will be thrown open for other pressing/relevant IP developments.

Please join us for tea and refreshments at 3.30 pm.

Please RSVP by dropping a line at anubha@cis-india.org.

CIS Delhi's location on Google Maps: https://goo.gl/maps/nPKkoQFhRSt

For more details visit https://cis-india.org/a2k/events/ip-meetup-02-prabir-purkayastha-on-the-cri-guidelines-and-software-patenting-in-india

IP Meetup #01: Prof. Biswajit Dhar on 'Intellectual Property issues: The Way Forward post Nairobi WTO Ministerial'

sinha — 2016-02-04T13:25:34Z

Prof. Biswajit Dhar will deliver a short talk on what the WTO Nairobi Ministerial means for intellectual property issues, and the way forward, on Sunday, February 7, 2016 at the Centre for Internet & Society's Delhi office, at 4 p.m.

We would like to invite you to the inaugural session of a series of IP focused meetups. The meetups are aimed at bringing folks together working within or interested in IP law, to discuss recent developments with reference to access to knowledge, climate change, health, trade, etc.

The talk will be followed by a round of discussion, after which the floor will be thrown open for other pressing/relevant IP developments.

Please join us for tea and refreshments at 3.30 pm.

Please RSVP by dropping a line at anubha@cis-india.org.

CIS Delhi's location on Google Maps: https://goo.gl/maps/nPKkoQFhRSt

For more details visit https://cis-india.org/a2k/events/ip-meetup-01-prof-biswajit-dhar-on-intellectual-property-issues-the-way-forward-post-nairobi-wto-ministerial

Invisible Censorship: How the Government Censors Without Being Seen

pranesh — 2012-01-04T08:59:14Z

The Indian government wants to censor the Internet without being seen to be censoring the Internet. This article by Pranesh Prakash shows how the government has been able to achieve this through the Information Technology Act and the Intermediary Guidelines Rules it passed in April 2011. It now wants methods of censorship that leave even fewer traces, which is why Mr. Kapil Sibal, Union Minister for Communications and Information Technology talks of Internet 'self-regulation', and has brought about an amendment of the Copyright Act that requires instant removal of content.

Power of the Internet and Freedom of Expression

The Internet, as anyone who has ever experienced the wonder of going online would know, is a very different communications platform from any that has existed before. It is the one medium where anybody can directly share their thoughts with billions of other people in an instant. People who would never have any chance of being published in a newspaper now have the opportunity to have a blog and provide their thoughts to the world. This also means that thoughts that many newspapers would decide not to publish can be published online since the Web does not, and more importantly cannot, have any editors to filter content. For many dictatorships, the right of people to freely express their thoughts is something that must be heavily regulated. Unfortunately, we are now faced with the situation where some democratic countries are also trying to do so by censoring the Internet.

Intermediary Guidelines Rules

In India, the new 'Intermediary Guidelines' Rules and the Cyber Cafe Rules that have been in effect since April 2011 give not only the government, but all citizens of India, great powers to censor the Internet. These rules, which were made by the Department of Information Technology and not by the Parliament, require that all intermediaries remove content that is 'disparaging', 'relating to... gambling', 'harm minors in any way', to which the user 'does not have rights'. When was the last time you checked wither you had 'rights' to a joke before forwarding it? Did you share a Twitter message containing the term "#IdiotKapilSibal", as thousands of people did a few days ago? Well, that is 'disparaging', and Twitter is required by the new law to block all such content. The government of Sikkim can run advertisements for its PlayWin lottery in newspapers, but under the new law it cannot do so online. As you can see, through these ridiculous examples, the Intermediary Guidelines are very badly thought-out and their drafting is even worse. Worst of all, they are unconstitutional, as they put limits on freedom of speech that contravene Article 19(1)(a) and 19(2) of the Constitution, and do so in a manner that lacks any semblance of due process and fairness.

Excessive Censoring by Internet Companies

We, at the Centre for Internet and Society in Bangalore, decided to test the censorship powers of the new rules by sending frivolous complaints to a number of intermediaries. Six out of seven intermediaries removed content, including search results listings, on the basis of the most ridiculous complaints. The people whose content was removed were not told, nor was the general public informed that the content was removed. If we hadn't kept track, it would be as though that content never existed. Such censorship existed during Stalin's rule in the Soviet Union. Not even during the Emergency has such censorship ever existed in India. Yet, not only was what the Internet companies did legal under the Intermediary Guideline Rules, but if they had not, they could have been punished for content put up by someone else. That is like punishing the post office for the harmful letters that people may send over post.

Government Has Powers to Censor and Already Censors

Currently, the government can either block content by using section 69A of the Information Technology Act (which can be revealed using RTI), or it has to send requests to the Internet companies to get content removed. Google has released statistics of government request for content removal as part of its Transparency Report. While Mr. Sibal uses the examples of communally sensitive material as a reason to force censorship of the Internet, out of the 358 items requested to be removed from January 2011 to June 2011 from Google service by the Indian government (including state governments), only 8 were for hate speech and only 1 was for national security. Instead, 255 items (71 per cent of all requests) were asked to be removed for 'government criticism'. Google, despite the government in India not having the powers to ban government criticism due to the Constitution, complied in 51 per cent of all requests. That means they removed many instances of government criticism as well.

'Self-Regulation': Undetectable Censorship

Mr. Sibal's more recent efforts at forcing major Internet companies such as Indiatimes, Facebook, Google, Yahoo, and Microsoft, to 'self-regulate' reveals a desire to gain ever greater powers to bypass the IT Act when censoring Internet content that is 'objectionable' (to the government). Mr. Sibal also wants to avoid embarrassing statistics such as that revealed by Google's Transparency Report. He wants Internet companies to 'self-regulate' user-uploaded content, so that the government would never have to send these requests for removal in the first place, nor block sites officially using the IT Act. If the government was indeed sincere about its motives, it would not be talking about 'transparency' and 'dialogue' only after it was exposed in the press that the Department of Information Technology was holding secret talks with Internet companies. Given the clandestine manner in which it sought to bring about these new censorship measures, the motives of the government are suspect. Yet, both Mr. Sibal and Mr. Sachin Pilot have been insisting that the government has no plans of Internet censorship, and Mr. Pilot has made that statement officially in the Lok Sabha. This, thus seems to be an instance of censoring without censorship.

Backdoor Censorship through Copyright Act

Further, since the government cannot bring about censorship laws in a straightforward manner, they are trying to do so surreptitiously, through the back door. Mr. Sibal's latest proposed amendment to the Copyright Act, which is before the Rajya Sabha right now, has a provision called section 52(1)(c) by which anyone can send a notice complaining about infringement of his copyright. The Internet company will have to remove the content immediately without question, even if the notice is false or malicious. The sender of false or malicious notices is not penalized. But the Internet company will be penalized if it doesn't remove the content that has been complained about. The complaint need not even be shown to be true before the content is removed. Indeed, anyone can complain about any content, without even having to show that they own the rights to that content. The government seems to be keen to have the power to remove content from the Internet without following any 'due process' or fair procedure. Indeed, it not only wants to give itself this power, but it is keen on giving all individuals this power.

It's ultimate effect will be the death of the Internet as we know it. Bid adieu to it while there is still time.

The article was translated to Marathi and featured in Lokmat

For more details visit https://cis-india.org/internet-governance/invisible-censorship

International Workshop on the Impact of the TRIPS Agreement on key sectors and its continuing relevance in the context of Regional and Bilateral Trading Agreements

praskrishna — 2015-10-28T02:57:33Z

On the occasion of 20 years of TRIPS Agreement, Centre for WTO Studies and Indian Institute of Foreign Trade is holding a workshop at Naland, Indian Institute of Foreign Trade, New Delhi on October 26 and 27, 2015. Pranesh Prakash is a speaker in the concluding session.

26^th October 2015 (Monday)
1000-1030 hrs	Registration
1030-1100 hrs 1030-1035hrs 1035-1045 hrs 1045-1055 hrs 1055-1100 hrs	Inaugural Session Welcome Remarks by Prof. Abhijit Das, Professor & Head, Centre for WTO Studies, Indian Institute of Foreign Trade Remarks by Dr. V. Bhaskar, Former Special Chief Secretary Government of Andhra Pradesh and Joint Secretary Department of Industrial Policy and Promotion, Government of India Inaugural Address by Shri Rajeev Kher, Former Commerce Secretary* Vote of Thanks by Ms Chandni Raina, Professor, Centre for WTO Studies, Indian Institute of Foreign Trade
1100-1130 hrs Tea
1130-1330 hrs	Session 1 Implementation of the TRIPS Agreement by developing countries and the growth of the Regional and Bilateral Trading Agreement The TRIPS Agreement placed on the developing countries onerous commitments with respect to protection of IPRs leading to a complete overhaul of their legislations. In the process more than half of the LDCs implemented their obligations under TRIPS even before the timelines set for them for compliance. Many developing countries have moved beyond TRIPS in their legal regimes. At the same time, further tightening of the regime as part of the FTA commitments is also a concern. The session discusses the manner in which countries met their commitments under TRIPS and the pulls and pressure that led to the TRIPS plus positions adopted by many. The plethora of FTAs and BITs has set additional commitments. The lessons learnt from recent arbitration proceeding and the positions adopted by countries such as South Africa, Indonesia, Thailand and India need to be examined. In the context of increasing pressure to harmonize enforcement standards, the reasonableness of this given the differing domestic priorities and developmental goals also needs to be studied. Questions for discussion: What were the pulls and pressures faced by the developing countries as they sought to comply with the TRIPS Agreement? Have the developing countries largely accepted TRIPS Plus commitments in their IPR regimes including on crucial issues such as public health and enforcement? What are the areas in which the FTA and RTAs are further enhancing protection? Are the developed countries seeking commitments that are even beyond the protection provided in their own jurisdiction? What are the various mechanisms of influence exercised by the developed countries? Chair: Shri Jayant Dasgupta, Former Permanent Representative of India to the WTO Speakers: Prof. Peter Drahos, Australian National University Prof Carlos Correa, University of Buenos Aries Prof Frederick Abbott, Florida State University Shri R. Saha, Senior Advisor, Confederation of Indian Industry Shri KM Gopa Kumar, Third World Network
1330-1430 hrs	Lunch
1430-1630 hrs	Session 2 IP and Economic Development The reasonableness of high level IPR protection is often explained in the context of the beneficent impact it has on economic growth and development. The session will examine the strength, if any, of this correlation. Is the level of IP protection alone responsible for higher growth? What are the preconditions if any and empirical evidence on the level of development when this correlation really sets in? An important factor in development is the ability of countries to access technology and knowhow. What has been the experience of the developing countries in getting new technology? The session will discuss cross country studies with a view to gain clarity on this issue. Questions for discussion: Most developed countries have benefitted from fairly lax IPR regime, but the argument being given now for a high level of IPR protection is the beneficent impact it is likely to have on economic growth. Are the developed countries seeking to ‘kick away the ladder’ with which they climbed up to the top? Or is there a basis for the argument extended by them? What is the empirical evidence of the correlation of enhanced IPR protection on economic growth and development of a country? How important is IPR as a factor in economic growth? What is the evidence on the extent of technology transfer from the developed to the developing countries in the past two decade? Chair: Shri Sudhansh Pant, Joint Secretary, Department of Pharmaceuticals, Government of India Speakers: Prof. Peter Drahos, Australian National University Prof Sunil Mani, Centre for Development Studies, Thiruvananthapuram Prof Sunil Kanwar, Delhi School of Economics, Delhi University Mr Bobby Bedi, Film Producer and Director, Chairman, FICCI committee on Film and Industry
1630-1700 hrs	Tea

27^th October 2015 (Tuesday)
0945-1300 hrs	Session 3 TRIPS and Public Health Pharmaceutical and biotech sectors had the maximum divergence in IP protection regimes across countries prior to the TRIPS Agreement. The TRIPS Agreement was therefore a watershed for these sectors. However the flexibilities and subsequently the Doha declaration on TRIPS and Public Health have allowed countries to model the laws taking into account their developmental and societal objectives. Questions for discussion: Pharmaceuticals and the biotech sectors were possibly the most impacted by the TRIPS Agreement. However, the flexibilities allowed countries to take into account their public health concerns while formulating the Patent regimes. How did the Agreement impact access to medicines? Does this remain an unfinished agenda for the developed countries? What would be the areas where further action could be seen? Chair: Justice (retd.) Prabha Sridevan, Former Chairperson of the Intellectual Property Appellate Board Speakers: Mr D.G Shah, Secretary General, Indian Pharmaceutical Alliance Mr. Bhaskar Bhattacharya, Partner, Corporate Law Group Ms Leena Menghaney, ‎Access Campaign India Co-ordinator at Médecins Sans Frontières Prof Frederick Abbott, Florida State University Mr Anand Grover, Senior Advocate, Supreme Court of India* Prof Sudip Chaudhuri, Indian Institute of Management, Kolkata
1300-1400 hrs	Lunch
1400-1530 hrs	Concluding Session Shape of things to come The twenty years since the TRIPS Agreement came into existence, saw widespread changes in the legislative framework of most developing countries. While they grappled with fulfilling the obligations of the Agreement, the developed world has looked towards further strengthening these norms. The FTA/RTA’s with their tighter IPR chapters are but an outcome of this exercise. *Questions for discussion:* With FTAs/RTAs a norm, where are we headed? Will TRIPS lose its relevance? Or will the TRIPS be renegotiated? What are the new issues that will figure prominently in any prospective negotiations? What are the likely implications? Chair: Dr. V. Bhaskar, Former Special Chief Secretary Government of Andhra Pradesh and Joint Secretary Department of Industrial Policy and Promotion, Government of India Speakers: Prof Frederick Abbott, Florida State University Mr Pranesh Prakash, Policy Director, Centre for Internet Society Ms. R V Anuradha, Partner, Clarus Law Associates Ms Sanya Reid Smith, Legal Adviser, Third World Network
1530-1600	Tea

*- tbc

For more details visit https://cis-india.org/a2k/news/international-workshop-on-the-impact-of-the-trips-agreement-on-key-sectors-and-its-continuing-relevance-in-the-context-of-regional-and-bilateral-trading-agreements

International Conference on Innovation for Shared Prosperity

praskrishna — 2016-08-25T02:40:59Z

Rohini Lakshane attended a conference on IP Rights, Competition and Standard Setting in the IT industry on August 20 and 21, 2016. The conference was organized by O.P. Jindal Global University and Jindal Initiative on Research in IP & Competition.

For more details visit https://cis-india.org/a2k/news/international-conference-on-innovation-for-shared-prosperity