Centre for Internet and Society

Super Cassettes v. MySpace

ujwala — 2012-10-31T10:27:36Z

The Delhi High Court’s judgment in Super Cassettes v. MySpace last July is worrying for a number of reasons. The court failed to appreciate the working of intermediaries online and disregard all pragmatic considerations involved. The consequences for free expression and particularly for file sharing by users of services online are especially unfavourable.

The judgment[*]is extremely worrying since it holds MySpace liable for copyright infringement, despite it having shown that it did not know, and could not have known, about each instance of infringement; that it removed each instance of alleged infringement upon mere complaint; that it asked Super Cassettes to submit their songs to their song identification database and Super Cassettes didn't.

This, in essence, means, that all 'social media services' in which there is even a potential for copyright infringement (such as YouTube, Facebook, Twitter, etc.) are now faced with a choice of either braving lawsuits for activities of their users that they have no control over — they can at best respond to takedown requests after the infringing material has already been put up — or to wind down their operations in India.

The Facts

Aside from social networking, MySpace facilitates the sharing of content between its users. This case concerns content (whose copyright vested in T-Series) was uploaded by users to MySpace’s website. It appears that tensions between MySpace and T-Series arose in 2007, when T-Series entered into talks with MySpace to grant it licenses in its copyrighted content, while MySpace asked instead that T-Series register with its rights management programme. Neither the license nor the registration came about, and the infringing material continued to be available on the MySpace website.

Specifically, T-Series alleged that cases for primary infringement under section 51(a)(i) of the Copyright Act as well as secondary infringement under section 51 (a) (ii) could be made out. Alleging that MySpace had infringed its copyrights and so affected its earnings in royalties, T-Series approached the Delhi High Court and filed a suit seeking injunctive relief and damages. In proceedings for interim relief while the suit was pending, the court granted an injunction, but, in an appeal by MySpace, added the qualification that the content would have to be taken down only on receipt of a specific catalogue of infringing works available on MySpace, rather than a general list of works in which T-Series held a copyright.

The Defence

While other arguments such as one around the jurisdiction of the court were also raised, the central issues are listed below:

Non-Specificity of Prayer
T-Series’ claim in the suit is for a blanket injunction on copyrighted content on the MySpace website. This imposes a clearly untenable, even impossible, burden for intermediaries to comply with.
Knowledge
MySpace argued that no liability could accrue to it on two counts. The first was that it had no actual or direct knowledge or role in the selection of the content, while the second was that no control was exercised, or was exercisable over the uploading of the content. Additionally, there was no possible means by which it could have identified the offending content and segregated it from lawful content, or monitored all of the content that it serves as a platform for.
Intermediary status and Safe Harbour Protection
In relation to its status as an intermediary, MySpace raised several arguments. First, it argued that it had immunity under section 79 of the IT Act and under the US Digital Millennium Copyright Act (US DMCA). Another argument restated what is arguably the most basic tenet of intermediary liability that merely providing the platform by which infringement could occur cannot amount to infringement. In other words, the mere act of facilitating expression over internet does not amount to infringement. It then made reference to its terms of use and its institution of safeguards (in the form of a hash filter, a rights management tool and a system of take-down–stay-down), which it argued clearly reflect an intention to discourage or else address cases of infringement as they arise. MySpace also emphasized that a US DMCA compliant procedure was in place, although T-Series countered that the notice and take down system would not mitigate the infringement.
Relationship between MySpace and its Users
Taking from previous arguments about a lack of control and its status as an intermediary, MySpace argued that it was simply a licensee of users who uploaded content. The license is limited, in that MySpace is only allowed to alter user-generated content so as to make it viewable.

Outcomes

Infringement by Facilitation
The court concluded that infringement in terms of section 51 (a) (ii) had occurred in this case, since web space is a “place” in the terms required by the section and there were monetary gains in the form of ad revenue. The argument as to a lack of knowledge of infringement was also rejected on the ground that MySpace’s provision for safeguards against infringement clearly established a reason to believe that infringement will occur. Also referenced as evidence of knowledge, or at least a reason to believe infringement would occur, is the fact that MySpace modifies the format of the content before making it available on its website. It also tested for infringement by authorization in terms of section 14 read with section 51 (a) (i), but concluded that this did not arise here.
Reading away section 79?
The court accepted the argument made by T-Series to the effect that sections 79 and 81 of the IT Act must be read together. Since section 79 would be overridden by section 81’s non-obstante, the effect would be that rights holders’ interests under the Copyright Act will erode intermediaries’ immunity under section 79.
Due Diligence
The court rejected the argument that the provision of due diligence or curative measures post-infringement would be sufficient. Specifically, the contention that the quantum of content being uploaded precludes close scrutiny, given the amount of labour that would be involved, was rejected. Content should not immediately be made available but must be subject to enquiries as to its title or to authentication of its proprietor before it is made available. In fact, it holds that, “there is no reason to axiomatically make each and every work available to the public solely because user has supplied them unless the defendants are so sure that it is not infringement.” (Paragraph 88).

There is also an attempt to distinguish the Indian framework from the DMCA. While that law calls for post-infringement measures, it is argued that in India, on reading section 51 with section 55, the focus is on preventing infringement at the threshold. In response to the case that it would be impossible to do so, the court held that since the process here requires MySpace to modify the format of content uploaded to it to make it viewable, it will have a reasonable opportunity to test for infringement.

Analysis

Accounting for the Medium of Communication

The court’s analysis of the issues begins with a predictable emphasis on how the law of copyright would operate in the context of what is termed “internet computing”, peppered with trite statements about “the virtual world of internet” creating “complexit[ies]” for copyright law. The court appears to have entered into this discussion to establish that the notion of place in section 51 (a) (ii) should extend to “web space” but the statements made here only serve to contrast starkly against its subsequent failure to account for the peculiarities of form and function of intermediaries online. Had this line of argument been taken to its logical conclusion, after the character of the medium had been appreciated, the court’s final conclusion, that MySpace is liable for copyright infringement, would have been an impossible one to arrive at.

And What of Free Speech?

As it had argued before the court, intermediaries such as MySpace have no means by which to determine whether content is illegal (whether by reason of amounting to a violation of copyright, or otherwise) until content is uploaded. In other words, there is no existing mechanism by which this determination can be made at the threshold, before posting.

The court does not engage with the larger consequences for such a scheme of penalizing intermediaries. Censoring patent illegalities at the threshold, even if that were possible is one thing. The precedent that the court creates here is quite another. Given the general difficulty in conclusively establishing whether there is an infringement at all due to the complexities in applying the exceptions contained under section 52, it should not be for ordinary private or commercial interests such as intermediaries to sit in judgment over whether content is or is not published at all. In order to minimize its own liability, the likelihood of legitimate content being censored by the intermediary prior to posting is high.

The consequences for civil liberties, and free speech and expression online in particular, appear to have been completely ignored in favour of rights holders’ commercial interests.

Consequences for Intermediary Liability and Safe Harbour Protection

Even if every instance in question did amount to an infringement of copyright and a mechanism did exist allowing for removal of content, the effect of this judgment is to create a strict liability regime for intermediaries.

In other words, the court’s ruling will have the effect that courts’ determination of intermediaries’ liability will become detached from whether or not any fault can be attributed to them. MySpace did make this argument, even going as far as to suggest that doing so would impose strict liability on intermediaries. This would lead to an unprecedented and entirely unjustifiable result. In spite the fact that a given intermediary did apply all available means to prevent the publication of potentially infringing content, it would remain potentially liable for any illegality in the content, even though the illegality could not have been detected or addressed.

What is perhaps even more worrying is that MySpace’s attempt at proactively and in good faith preventing copyright infringement through its terms of use and in addressing them through its post-infringement measures was explicitly cited as evidence of knowledge of and control over the uploading of copyrighted material, at the threshold rather than ex post. This creates perverse incentives for the intermediary to ignore infringement, to the detriment of rights holders, rather than act proactively to minimize its incidence.

A final observation is that the court’s use, while pronouncing on relief, of the fact that MySpace makes a “copy” of the uploaded content by converting it into a format that could subsequently be hosted on the site and made accessible to show evidence of infringement and impose liability upon MySpace in itself is a glaring instance of the disingenuous reasoning the court employs throughout the case. There is another problem with the amended section 79, which waives immunity where the intermediary “modifies” material. That term is vague and overreaches, as it does here: altering formats to make content compatible with a given platform is not comparable to choices as to the content of speech or expression, but the reading is tenable under section 79 as it stands.

The result of all of this is to dislodge the section 79 immunity that accrues to intermediaries and replace that with a presumption that they are liable, rather than not, for any illegality in the content that they passively host.

Effect of the Copyright (Amendment) Act, 2012

Since the judgment in the MySpace case, the Copyright Act has been amended to include some provisions that would bear on online service providers and on intermediaries’ liability for hosting infringing content, in particular. Section 52 (1) (b) of the amended Act provides that “transient or incidental storage of a work or performance purely in the technical process of electronic transmission or communication to the public” would not infringe copyright. The other material provision is section 52 (1) (c) which provides that “transient or incidental storage of a work or performance for the purpose of providing electronic links, access or integration, where such links, access or integration has not been expressly prohibited by the right holder, unless the person responsible is aware or has reasonable grounds for believing that such storage is of an infringing copy” will not constitute an infringement of copyright. The latter provision appears to institute a rather rudimentary, and very arguably incomplete, system of notice and takedown by way of a proviso. This requires intermediaries to takedown content on written complaint from copyright owners for a period of 21 days or until a competent rules on the matter whichever is sooner, and restore access to the content once that time period lapses, if there is no court order to sustain it beyond that period.

This post does not account for the effect that these provisions could have had on the case, but it is already clear, from the sloppy drafting of section 52 (1) (c) and its proviso that they are not entirely salutary even at the outset. At any rate, there appears to be nothing that *determinatively* affects intermediaries’ secondary liability, i.e., their liability for users’ infringing acts.

Disclosure: CIS is now a party to these proceedings at the Delhi High Court. This is a purely academic critique, and should not be seen to have any prejudice to the arguments we will make there.

[*]. Super Cassettes Industries Ltd. v. MySpace Inc. and Another, on 29 July, 2011, Indian Kanoon - Search engine for Indian Law. See http://bit.ly/quj6JW, last accessed on October 31, 2012.

For more details visit https://cis-india.org/a2k/blogs/super-cassettes-v-my-space

Consumers International IP Watchlist 2012 — India Report

pranesh — 2012-08-16T10:23:36Z

Pranesh Prakash prepared the India Report for Consumers International IP Watchlist 2012. The report was published on the A2K Network website.

Summary

India's Copyright Act is a relatively balanced instrument that recognises the interests of consumers through its broad private use exception, and by facilitating the compulsory licensing of works that would otherwise be unavailable. However, the compulsory licensing provision have not been utilized so far, because of both a lack of knowledge and more importantly because of the stringent conditions attached to them. Currently, the Indian law is also a bit out of sync with general practices as the exceptions and limitations allowed for literary, artistic and musical works are often not available with sound recordings and cinematograph films. There are numerous other such inconsistencies. Positively retrogressive provisions, such as criminalisation of individual non-commercial infringement also exist. India's Copyright Act is a relatively balanced instrument that recognises the interests of consumers through its broad private use exception, and by facilitating the compulsory licensing of works that would otherwise be unavailable. However, the compulsory licensing provision have not been utilized so far, because of both a lack of knowledge and more importantly because of the stringent conditions attached to them. Currently, the Indian law is also a bit out of sync with general practices as the exceptions and limitations allowed for literary, artistic and musical works are often not available with sound recordings and cinematograph films. There are numerous other such inconsistencies. Positively retrogressive provisions, such as criminalisation of individual non-commercial infringement also exist.

It is unfortunate that the larger public interest in copyright-related issues are never foregrounded in India. For instance, the Standing Committee tasked with review of the Copyright Amendment Bill has held hearings without calling a single consumer rights organization, and without seeking any civil society engagement, except for the issue of access for persons with disabilities. This was despite a number of civil society organizations, including consumer rights organizations, sending in a written submission to the Standing Committee.

This lopsidedness in terms of policy influence is resulting in greater imbalance in the law, as evidenced by the government's capitulation to a handful of influential multinational book publishers on the question of allowing parallel importation of copyrighted works. Furthermore, pressure from the United States and the European Union, in the form of the Special 301 report and the India-EU free trade agreement that is being negotiated are leading to numerous negative changes being introduced into Indian law, despite us not having any legal obligation under any treaties. Such influence only works in one direction: to increase the rights granted to rightsholders, and has so far never included any increase in user rights.

It is true that copyright infringement, particularly in the form of physical media, is widespread in India. However this must be taken in the context that India, although fast-growing, remains one of the poorest countries in the world. Although India's knowledge and cultural productivity over the centuries and to the present day has been rich and prodigious, its citizens are economically disadvantaged as consumers of that same knowledge and culture. Indeed, most students, even in the so-called elite institutions, need to employ photocopying and other such means to be able to afford the requisite study materials. Visually impaired persons, for instance, have no option but to disobey the law that does not grant them equal access to copyrighted works. Legitimate operating systems (with the notable exception of most free and open source OSes) add a very high overhead to the purchase of cheap computers, thus driving users to pirated software. Thus, these phenomena need to be addressed not at the level of enforcement, but at the level of supply of affordable works.

Source URL: http://bit.ly/QEJf5l
Click to download the report [PDF, 201 Kb]

For more details visit https://cis-india.org/a2k/consumers-international-ip-watchlist-report-2012

CIS's Statement at SCCR 24 on Exceptions & Limitations for Libraries and Archives

pranesh — 2012-07-25T10:54:38Z

This was the statement delivered by Pranesh Prakash on Wednesday, July 25, 2012, at the 24th session of the WIPO Standing Committee on Copyrights and Related Rights on the issue of exceptions and limitations for libraries and archives.

Thank you, Mr. Chair.

We would like to associate ourselves with the statements made by International Federation of Library Associations, Electronic Information for Libraries, Knowledge Ecology International, Conseil International des Archives, Library Copyright Alliance, Computer and Communications Industry Association, and the Canadian Library Association.

The Centre for Internet and Society would like to commend this house for adopting SCCR/23/8 as a working document on the issue of exceptions and limitations on libraries and archives. This issue is of paramount interest the world over, and particularly in developing countries. I would like to limit my oral intervention to three quick points, and will send a longer statement in via e-mail.

First, we feel that this committee should pay special attention to ensuring that digital works and online libraries and archives such as the Internet Archive, also receive the same protection as brick-and-mortar libraries.

Second, we are concerned that we have been seeing some delegations advancing a very narrow interpretation of the three-step test. Such a narrow interpretation is not supported by leading academics, nor by practices of member states. A narrow interpretation of the three-step test must be squarely rejected. In particular, I would like to associate CIS with the strong statements by IFLA and KEI to maintain flexibilities within exceptions and limitations, instead of overly prescriptive provisions encumbered by weighty procedures and specifications.

We have comments about parallel trade as well, drawing from our experience and research in India, and will send those in writing.

Libraries and archive enhance the value of the copyrighted works that they preserve and provide to the general public. They do not erode it. Exceptions and limitations that help them actually help copyright holders. The sooner copyright holders try not to muzzle libraries, especially when it comes to out-of-commerce works, electronic copies of works, and in developing countries, the better it will be for them, their commercial interests, as well as the global public interest.

Thank you.

For more details visit https://cis-india.org/a2k/blogs/cis-statement-sccr24-libraries-archives

EU stalls treaty talks to allow copyright waiver for print disabilities

praskrishna — 2012-07-25T09:37:25Z

India and other developing countries support such a legally binding treaty, writes Priscilla Jebaraj in an article published in the Hindu on July 25, 2012. Pranesh Prakash is quoted.

The European Union is holding up a treaty to allow books and other printed works to be converted into a format accessible to the visually impaired and other print disabled people without seeking the permission of the copyright holder.

India, and most other developing countries, strongly support such a legally binding treaty currently being negotiated at a World Intellectual Property Organisation (WIPO) meeting in Geneva. However, non-governmental organisation sources at that summit say that the EU is stalling the treaty by placing unreasonable restrictions on how copyrighted works are to be converted, and by whom. The EU office in Delhi and Brussels did not respond to a request for comment on their position.

"[The treaty] would allow organisations working for the blind to import and export accessible works without seeking the copyright holder's permission, since very little money is spent in developing countries on converting books into accessible formats, while they are much more readily available elsewhere," according to Pranesh Prakash of the Bangalore-based Centre for Internet and Society who is attending the summit as an NGO member. If the treaty is not finalised by Wednesday, when the meeting ends, disabled people could be forced to wait till 2014 for their next chance.

Last week, Indian delegate G.R. Raghavender pleaded with negotiators to finalise the treaty without further delay "so that we won't go back, especially the Indian delegation won't go back empty-handed, facing the 15 million blind people in India, which is almost 50 percent of the world blind population, that is 37 million."

In fact, the treaty will benefit a much larger group of print-disabled, including those who suffer from motor disabilities which prevent them from holding a book, or learning disabilities such as dyslexia, or autism, which make it hard to read. There are approximately 70 million print-disabled people in India.

Accessible formats would include Braille, electronic text and audio versions of books, making Western publishers' jittery about piracy fears. Hence, some countries are demanding stringent tracking mechanisms and legal requirements that activists say will effectively block access to disabled people in developing countries — where more than 85 per cent of them live.

"An instrument that subjects the enjoyment of fundamental freedoms by persons with visual impairments to market forces and bureaucratic practices will not work," Mr. Prakash said, in his statement to WIPO delegates. "In India, our Parliament recently passed an amendment to our copyright law that grants persons with disabilities, and those who are working for them, a strong yet simply-worded right to have equal access to copyrighted works as sighted persons."

In fact, the EU Parliament had given its unanimous approval to the treaty in February 2012. "It would be a democratic travesty if the EU’s representatives here today posed any problems to a clear road map for a binding international treaty, especially by posing unrealistic proposals with regards to authorised entities and other issues very far from consensus positions in the WIPO and in clear contradiction with the aims of the World Blind Union," said David Hammerstein, a representative of American and European consumer organisations, making a statement at the Geneva meeting.

Read the original published in the Hindu

For more details visit https://cis-india.org/news/eu-stalls-treaty-talks-to-allow-copyright-waiver-for-print-disabilities

WIPO SCCR 24 Pre-lunch Text (July 24, 2012)

praskrishna — 2012-07-25T03:51:38Z

This is a rough transcript of the WIPO-SCCR discussions.

For more details visit https://cis-india.org/a2k/2012-07-24-sccr-24-pre-lunch.txt

WIPO SCCR 24 Pre-lunch Text (July 23, 2012)

praskrishna — 2012-07-25T03:44:21Z

This is a rough transcript of the WIPO-SCCR discussions.

For more details visit https://cis-india.org/a2k/2012-07-23-sccr-24-pre-lunch.txt

Transcripts of Discussions at WIPO SCCR 24

pranesh — 2012-07-31T12:35:43Z

We are providing archival copies of the transcripts of the 24th session of the WIPO Standing Committee on Copyright and Related Rights, which is being held in Geneva from July 16 to 25, 2012.

This is an unedited rough transcript of the discussions at SCCR 24, which is live-streamed and made available by WIPO at http://www.streamtext.net/player?event=WIPO. We are hosting the live-streamed text for archival purposes:

WIPO SCCR 24 Pre-lunch Text (July 19, 2012)
WIPO SCCR 24 Post-lunch Text (July 19, 2012)
WIPO SCCR 24 Pre-lunch Text (July 20, 2012)
WIPO SCCR 24 Post-lunch Text (July 20, 2012)
WIPO SCCR 24 Pre-lunch Text (July 23, 2012)
(There was no post-lunch plenary session on July 23, 2012)
WIPO SCCR 24 Pre-lunch Text (July 24, 2012)
WIPO SCCR 24 Post-lunch Text (July 24, 2012)
WIPO SCCR 24 Pre-lunch Text (July 25, 2012)
WIPO SCCR 24 Post-lunch Text (July 25, 2012)

For more details visit https://cis-india.org/a2k/wipo-sccr24-discussions-transcripts

WIPO SCCR 24 Pre-lunch Text (July 20, 2012)

praskrishna — 2012-07-25T03:36:08Z

This is a rough transcript of the WIPO-SCCR discussions.

For more details visit https://cis-india.org/a2k/2012-07-20-sccr24-pre-lunch.txt

WIPO SCCR 24 Pre-lunch Text (July 19, 2012)

praskrishna — 2012-07-25T03:36:37Z

This is a rough transcript of the WIPO-SCCR discussions.

For more details visit https://cis-india.org/a2k/2012-07-19-sccr24-pre-lunch.txt

India's Opening Statement on the Treaty for the Visually Impaired at SCCR 24

pranesh — 2012-07-23T15:24:26Z

This was the opening statement of the Indian delegation, delivered by G.R. Raghavender, on Thursday, July 19, 2012, at the 24th meeting of the SCCR at WIPO in Geneva. The statement called upon all countries to conclude textual work on the treaty and call for a Diplomatic Conference to finalize it. This statement received applause, which is highly unusual at the SCCR.

Thank you, Mr. Chairman.

The Indian delegation is a little bit disappointed about the way we have started this topic of the Treaty for the Visually Impaired. Forgive me, Mr. Chairman, we have confidence in your abilities, but unfortunately we have already lost one hour in this afternoon session. We have only two hours left, unless and until we decide to work beyond 6:00 P.M.

We have a document, SCCR/23/7, on the table. Everybody has this document. We all decided in the last SCCR that we will work on this document and move towards a meaningful treaty. We said, in this very 24th SCCR, we will be ready for that. We should have started article-by-article discussions by now. And as we are involved in the general statements in our agenda, I can go on reading a statement for another 20 minutes as I have about five pages written out. But given our support for the treaty, I won't.

I'm sorry, I respect all the distinguished delegations: they have their own concerns, but Mr. Chairman, under your leadership we should have started article-by-article discussions by now. Yesterday, in the evening at the Chairman plus group leaders plus 3, we all requested that. Whatever happened during the 14, 15 intersessional meetings, we have no objection to that, but people raise the issue of transparency and availability of the document. Whatever changes have been made to the document must be public. If no one is ready to post that document either during the informal discussions, or here in the plenary, they can always come out with the changes made to particular articles, or para in the preamble, when the discussion starts.

We should be ready to work towards finalizing this treaty. We are even open to working on Saturday and Sunday, Mr. Chairman.

If we don't finalize in this SCCR, we cannot go to the General Assembly in the first week of the month of October. If we lose that time, we will have to wait until the next General Assembly, because we cannot have a General Assembly in between.

So we will be simply wasting our time in the November SCCR and again next July SCCR, waiting for the next General Assembly.

So kindly guide us to start text-based article-by-article discussions, so that we won't go back empty-handed. The Indian delegation won't go back empty-handed, facing the 15 million blind people in India, which is almost 50 percent of the world blind population, that is 37 million.

Thank you.

For more details visit https://cis-india.org/a2k/india-opening-statement-sccr24-tvi

CIS's Statement at SCCR 24 on the Treaty for the Visually Impaired

pranesh — 2012-07-22T12:01:28Z

This was the statement read out by Pranesh Prakash at the 24th meeting of the WIPO Standing Committee for Copyright and Related Rights in Geneva, on Friday, July 20, 2012.

Thank you, Mr. Chairman.

I would like to associate CIS with the statements made by the WBU, eIFL, IFLA, KEI, ISOC, and CLA.

We NGOs been making statements at SCCR on this the topic of a treaty for the reading-disabled since 2009 now.

In this room there are a number of organizations that work with and for persons with disabilities which come here to Geneva, SCCR after SCCR. They do not come here to watch the enactment of an elaborate ritual, but to seek solutions for the very real knowledge drought that is being faced by the reading-disabled everywhere, and particularly in developing countries.

The way work on this treaty — or rather this binding-or-non-binding international instrument — has been stalled by some member states is a matter of shame. In India our Parliament recently passed an amendment to our copyright law that grants persons with disabilities, and those who are working for them, a strong yet simply-worded right to have equal access to copyrighted works as sighted persons.

An instrument that lays down detailed guidelines on rules and procedures to be followed by authorized entities will not work. An instrument that subjects the enjoyment of fundamental freedoms by persons with visual impairments to market forces and bureaucratic practices will not work.

Importantly, an instrument that ignores realities of the world: that the vast majority of persons with visual impairment live in developing countries just will not work.

I implore the delegations here to keep up the constructive spirit I have seen most of them display in the past two days, and ensure that the 2012 General Assembly convenes a Diplomatic Conference on this topic.

For more details visit https://cis-india.org/a2k/blogs/cis-statement-sccr24-treaty-visually-impaired

Did Sibal just get arm-twisted by book publishers?

praskrishna — 2012-05-28T06:08:57Z

The publishing industry seems to have got the better of the Human Resources Development Minister Kapil Sibal. Pranesh Prakash's article on parallel importation of books is referred in this article published in FirstPost on May 25, 2012.

The move to open up the market for distribution of international books to competition has been successfully thwarted with the removal of an amendment allowing parallel imports from the Copyright (Amendment) Bill, 2012 that was passed by the Lok Sabha on 22 May.

This despite the Parliamentary Standing Committee supporting the amendment on the grounds that it will increase student access to books.

But it could well only be a temporary victory for the publishing giants with Sibal promising to restore the amendment if the National Council of Applied Economic Research – to which the matter has been referred – should in its report (expected in August) recommend parallel imports.

The draft bill (which included the amendment) had created a furore in publishing circles last year. Parallel imports, claimed leading publishing houses, would destroy the industry. Read Thomas Abraham’s Death of Books published last year in The Hindustan Times.

While that remains open for debate, there is no denying the larger common good of faster and cheaper availability of books to millions of students that parallel imports will make possible. Ordering books may no longer be a click away if Flipkart had to take permission from the Indian copyright owner every time you ordered an international title.

In an article titled Why Parallel Importation of Books should be Allowed published by The Centre for Internet and Society Pranesh Prakash makes a compelling case for ending the distribution monopoly.

Underlying the huge benefit to students, the author says “Currently a large percentage of educational books in India are imported, but with different companies having monopoly rights in importation of different books. If this was opened up to competition, the prices of books would drop, since one would not need to get an authorisation to import books—the licence raj that currently exists would be dismantled—and Indian students will benefit.

“This is especially important for students and for libraries because even when low-priced editions are available, they are often of older editions.”

The article also argues how the business model of hugely popular site such as Flipkart depends on parallel imports to deliver books to its customers at great bargains.

Allowing parallel imports, argues the author, will dismantle distribution monopoly rights and help book publishers, libraries, the print-disabled and consumers in general. He also makes the important distinction between the black market and parallel imports, which is legal.

Offering a point-by-point rebuttal of the publishing industry’s claims of the destructive impact of parallel imports, the author observes “It seems to us that the publishing industry – especially foreign publishers with distributorship in India – don’t want to open themselves up to competition in the distribution market and are opposing this most commendable move.”

He concludes that allowing parallel imports will, in fact, result in an expansion of the reading market.

“It is mainly foreign publishers’ monopoly rights over distribution which will be harmed by this amendment, while Indian publishers, Indian authors, and Indian readers, especially students, will stand to gain. Furthermore, in the long run, even foreign publishers will stand to gain due to market expansion. Any legitimate worries that publishers may have are better dealt with under other laws (such as the Customs Act) and not the Copyright Act.”

Read the original from FirstPost.India

For more details visit https://cis-india.org/news/did-sibal-just-get-arm-twisted-by-book-publishers

Analysis of the Copyright (Amendment) Bill 2012

pranesh — 2013-11-12T14:13:04Z

There are some welcome provisions in the Copyright (Amendment) Bill 2012, and some worrisome provisions. Pranesh Prakash examines five positive changes, four negative ones, and notes the several missed opportunities. The larger concern, though, is that many important issues have not been addressed by these amendments, and how copyright policy is made without evidence and often out of touch with contemporary realities of the digital era.

The Copyright (Amendment) Bill 2012 has been passed by both Houses of Parliament, and will become law as soon as the President gives her assent and it is published in the Gazette of India. While we celebrate the passage of some progressive amendments to the Copyright Act, 1957 — including an excellent exception for persons with disabilities — we must keep in mind that there are some regressive amendments as well. In this blog post, I will try to highlight those provisions of the amendment that have not received much public attention (unlike the issue of lyricists’ and composers’ ‘right to royalty’).

Welcome Changes

Provisions for Persons with Disabilities

India now has amongst the most progressive exception for persons with disabilities, alongside countries like Chile. Under the amendments, sections 51(1)(zb) and 31B carve out exceptions and limitations for persons with disabilities. Earlier s.52(1)(zb) dealt only with formats that were “special designed only for the use of persons suffering from visual, aural, or other disabilities”. Thanks to a campaign mounted by disability rights groups and public interest groups such as CIS, it now covers “any accessible format”. Section 52(1)(zb) allows any person to facilitate access by persons with disabilities to copyrighted works without any payment of compensation to the copyright holder, and any organization working the benefit of persons with disabilities to do so as long as it is done on a non-profit basis and with reasonable steps being taken to prevent entry of reproductions of the copyrighted work into the mainstream. Even for-profit businesses are allowed to do so if they obtain a compulsory licence on a work-by-work basis, and pay the royalties fixed by the Copyright Board. The onerousness of this provision puts its utility into question, and this won’t disappear unless the expression “work” in s.31B is read to include a class of works.

Given that the Delhi High Court has — wrongly and per incuriam, since it did not refer to s.14(a)(ii) as it was amended in 1994 — held parallel importation to be barred by the Copyright Act, it was important for Parliament to clarify that the Copyright Act in fact follows international exhaustion. Without this, even if any person can facilitate access for persons with disabilities to copyrighted works, those works are restricted to those that are circulated in India. Given that not many books are converted into accessible formats in India (not to mention the costs of doing so), and given the much larger budgets for book conversion in the developed world, this is truly restrictive.

Extension of Fair Dealing to All Works

The law earlier dealt with fair dealing rights with regard to “literary, dramatic, musical or artistic works”. Now it covers all works (except software), in effect covering sound recordings and video as well. This will help make personal copies of songs and films, to make copies for research, to use film clips in classrooms, etc.

Creative Commons, Open Licensing Get a Boost

The little-known s.21 of the Copyright Act, which deals with the right of authors to relinquish copyright, has been amended. While earlier one could only relinquish parts of one’s copyright by submitting a form to the Registrar of Copyrights, now a simple public notice suffices. Additionally, s.30 of the Act, which required licences to be in writing and signed, now only requires it to be in writing. This puts Creative Commons, the GNU Public Licence, and other open licensing models, on a much surer footing in India.

Physical Libraries Should Celebrate, Perhaps Virtual Libraries Too

Everywhere that the word “hire” occurs (except s.51, curiously), the word “commercial rental” has been substituted. This has been done, seemingly, to bring India in conformance with the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT). The welcome side-effect of this is that the legality of lending by non-profit public libraries has been clarified. The amendment states:

"2(1)(fa) “commercial rental” does not include the rental, lease or lending of a lawfully acquired copy of a computer programme, sound recording, visual recording or cinematograph film for non-profit purposes by a non-profit library or non-profit educational institution."

Even after this, the overwhelming majority of the ‘video lending libraries’ that you see in Indian cities and towns continue to remain illegal.

Another welcome provision is the amended s.52(1)(n), which now allows “non-commercial public libraries” to store an electronic copy of a work if it already has a physical copy of the work. However, given that this provision says that the storage shall be “for preservation”, it seems limited. However, libraries might be able to use this — in conjunction with the fact that under s.14 of the Copyright Act lending rights of authors is limited to “commercial rental” and s.51(b) only covers lending of “infringing copies” — to argue that they can legally scan and lend electronic copies of works in the same manner that they lend physical copies. Whether this argument would succeed is unclear. Thus, India has not boldly gone where the European Commission is treading with talks of a European Digital Library Project, or where scholars in the US are headed with the Digital Public Library of America. But we might have gone there quietly. Thus, this amendment might help foster an Indian Internet Archive, or help spread the idea of the Open Library in India.

On a final note, different phrases are used to refer to libraries in the amendment. In s.2(1)(fa), it talks about "non-profit library"; in s.52(1)(n) and (o), it refers to "non-commercial public library"; and in s.52(1)(zb), it talks of "library or archives", but s.52(1)(zb) also requires that the works be made available on a "non-profit basis". The differentiation, if any, that is sought to be drawn between these is unclear.

Limited Protection to Some Internet Intermediaries

There are two new provisions, s.52(1)(b) and 52(1)(c), which provide some degree of protection to 'transient or incidental' storage of a work or performance. Section 52(1)(b) allows for "the transient or incidental storage of a work or performance purely in the technical process of electronic transmission or communication to the public", hence applying primarily to Internet Service Providers (ISPs), VPN providers, etc. Section 52(1)(c) allows for "transient or incidental storage of a work or performance for the purpose of providing electronic links, access or integration, where such links, access or integration has not been expressly prohibited by the right holder, unless the person responsible is aware or has reasonable grounds for believing that such storage is of an infringing copy". This seems to make it applicable primarily to search engines, with other kinds of online services being covered or not covered depending on one’s interpretation of the word 'incidental'.

Compulsory Licensing Now Applies to Foreign Works Also

Sections 31 ("compulsory licence in works withheld from public") and 31A ("compulsory licence in unpublished Indian works") used to apply to Indian works. Now they apply to all works, whether Indian or not (and now s.31A is about "compulsory licence in unpublished or published works", mainly orphan works). This is a welcome amendment, making foreign works capable of being licensed compulsorily in case it is published elsewhere but withheld in India. Given how onerous our compulsory licensing sections are, especially sections 32 and 32A (which deal with translations, and with literary, scientific or artistic works), it is not a surprise that they have not been used even once. However, given the modifications to s.31 and s.31A, we might just see those starting to be used by publishers, and not just radio broadcasters.

Worrisome Changes

Term of Copyright for Photographs Nearly Doubled

The term of copyright for photographs has now gone from sixty years from publication to sixty years from the death of the photographer. This would mean that copyright in a photograph clicked today (2012) by a 20 year old who dies at the 80 will only expire on January 1, 2133. This applies not only to artistic photographs, to all photographs because copyright is an opt-out system, not an opt-in system. Quite obviously, most photoshopping is illegal under copyright law.

This has two problems. First, there was no case made out for why this term needed to be increased. No socio-economic report was commissioned on the effects of such a term increase. This clause was not even examined by the Parliamentary Standing Committee. While the WCT requires a ‘life + 50′ years term for photographs, we are not signatories to the WCT, and hence have no obligation to enforce this. We are signatories to the Berne Convention and the TRIPS Agreement, which require a copyright term of 25 years for photographs. Instead, we have gone even above the WCT requirement and provide a life + 60 years term.

The second problem is that it is easier to say when a photograph was published than to say who the photographer was and when that photographer died. Even when you are the subject of a photograph, the copyright in the photograph belongs to the photographer. Unless a photograph was made under commission or the photographer assigned copyright to you, you do not own the copyright in the photographs. (Thanks to Bipin Aspatwar, for pointing out a mistake in an earlier version, with "employment" and "commission" being treated differently.) This will most definitely harm projects like Wikipedia, and other projects that aim at archiving and making historical photographs available publicly, since it is difficult to say whether the copyright in a photograph still persists.

Cover Versions Made More Difficult: Kolaveri Di Singers Remain Criminals

The present amendments have brought about the following changes, which make it more difficult to produce cover versions:

Time period after which a cover version can be made has increased from 2 years to 5 years.
Requirement of same medium as the original. So if the original is on a cassette, the cover cannot be released on a CD.
Payment has to be made in advance, and for a minimum of 50000 copies. This can be lowered by Copyright Board having regard to unpopular dialects.
While earlier it was prohibited to mislead the public (i.e., pretend the cover was the original, or endorsed by the original artists), now cover versions are not allowed to "contain the name or depict in any way any performer of an earlier sound recording of the same work or any cinematograph film in which such sound recording was incorporated".
All cover versions must state that they are cover versions.
No alterations are allowed from the original song, and alteration is qualified as ‘alteration in the literary or musical work’. So no imaginative covers in which the lyrics are changed or in which the music is reworked are allowed without the copyright owners’ permission. Only note-for-note and word-for-word covers are allowed.
Alterations were allowed if they were "reasonably necessary for the adaptation of the work" now they are only allowed if it is "technically necessary for the purpose of making of the sound recording".

This ignores present-day realities. Kolaveri Di was covered numerous times without permission, and each one of those illegal acts helped spread its popularity. The singers and producers of those unlicensed versions could be jailed under the current India Copyright Act, which allows even non-commercial copyright infringers to be put behind bars. Film producers and music companies want both the audience reach that comes from less stringent copyright laws (and things like cover versions), as well as the ability to prosecute that same behaviour at will. It is indeed ironic that T-Series, the company that broke HMV’s stranglehold over the Indian recording market thanks to cover versions, is itself one of the main movers behind ever-more stringent copyright laws.

Digital Locks Now Provided Legal Protection Without Accountability

As I have covered the issue of Technological Protection Measures (TPM) and Rights Management Information (RMI), which are ‘digital locks’ also known as Digital Rights Management (DRM), in great detail earlier, I won’t repeat the arguments at length. Very briefly:

It is unclear that anyone has been demanding the grant of legal protection to DRMs in India, and We have no obligation under any international treaties to do so. It is not clear how DRM will help authors and artists, but it is clear how it will harm users.
While the TPM and RMI provisions are much more balanced than the equivalent provisions in laws like the US’s Digital Millennium Copyright Act (DMC), that isn’t saying much. Importantly, while users are given certain rights to break the digital locks, they are helpless if they aren’t also provided the technological means of doing so. Simply put: music and movie companies have rights to place digital locks, and under some limited circumstances users have the right to break them. But if the locks are difficult to break, the users have no choice but to live with the lock, despite having a legal right.

Removal of Parallel Importation

In past blog posts I have covered why allowing parallel imports makes sense in India. And as explained above, the Delhi High Court acted per incuriam when holding that the Copyright Act does not allow parallel importation. The Copyright Act only prohibits import of infringing copies of a work, and a copy of a book that has been legally sold in a foreign country is not an “infringing copy”. The government was set to introduce a provision making it clear that parallel importation was allowed. The Parliamentary Standing Committee heard objections to this proposal from a foreign publishers’ association, but decided to recommend the retention of the clause. Still, due to pressure from a few publishing companies whose business relies on monopolies over importation of works into India, the government has decided to delete the provision. However, thankfully, the HRD Minister, Kapil Sibal, has assured both houses of Parliament that he will move a further amendment if an NCAER report he has commissioned (which will be out by August or September) recommends the introduction of parallel imports.

Expansion of Moral Rights Without Safeguards

Changes have been made to author’s moral rights (and performer’s moral rights have been introduced) but these have been made without adequate safeguards. The changes might allow the legal heir of an author, artist, etc., to object to ‘distortion, mutilation, modification, or other act’ of her ancestors work even when the ancestor might not have. By this amendment, this right continues in perpetuity, even after the original creator dies and even after the work enters into the public domain. It seems Indian policymakers had not heard of Stephen Joyce, the grandson of James Joyce, who has “brought numerous lawsuits or threats of legal action against scholars, biographers and artists attempting to quote from Joyce’s literary work or personal correspondence”. Quoting from his Wikipedia page:

In 2004, Stephen threatened legal action against the Irish government when the Rejoyce Dublin 2004 festival proposed public reading of excerpts of Ulysses on Bloomsday. In 1988 Stephen Joyce burnt a collection of letters written by Lucia Joyce, his aunt. In 1989 he forced Brenda Maddox to delete a postscript concerning Lucia from her biography Nora: The Real Life of Molly Bloom. After 1995 Stephen announced no permissions would be granted to quote from his grandfather’s work. Libraries holding letters by Joyce were unable to show them without permission. Versions of his work online were disallowed. Stephen claimed to be protecting his grandfather’s and families reputation, but would sometimes grant permission to use material in exchange for fees that were often "extortionate".

Because in countries like the UK and Canada the works of James Joyce are now in the public domain, Stephen Joyce can no longer restrict apply such conditions. However now, in India, despite James Joyce’s works being in the public domain, Stephen Joyce’s indefensible demands may well carry legal weight.

Backdoor Censorship

As noted above, the provision that safeguard Internet intermediaries (like search engines) is very limited. However, that provision has an extensive removal provision:

Provided that if the person responsible for the storage of the copy has received a written complaint from the owner of copyright in the work, complaining that such transient or incidental storage is an infringement, such person responsible for the storage shall refrain from facilitating such access for a period of twenty-one days or till he receives an order from the competent court refraining from facilitating access and in case no such order is received before the expiry of such period of twenty-one days, he may continue to provide the facility of such access;

There are two things to be noted here. First, that without proof (or negative consequences for false complaints) the service provider is mandated to prevent access to the copy for 21 day. Second, after the elapsing of 21 days, the service provider may 'put back' the content, but is not mandated to do so. This would allow people to file multiple frivolous complaints against any kind of material, even falsely (since there is no penalty for false compalaints), and keep some material permanently censored.

Missed Opportunities

Fair Dealing Guidelines, Criminal Provisions, Government Works, and Other Missed Opportunities

The following important changes should have been made by the government, but haven’t. While on some issues the Standing Committee has gone beyond the proposed amendments, it has not touched upon any of the following, which we believe are very important changes that are required to be made.

Criminal provisions: Our law still criminalises individual, non-commercial copyright infringement. This has now been extended to the proposal for circumvention of Technological Protection Measures and removal of Rights Management Information also.
Fair dealing guidelines: We would benefit greatly if, apart from the specific exceptions provided for in the Act, more general guidelines were also provided as to what do not constitute infringement. This would not take away from the existing exceptions, but would act as a more general framework for those cases which are not covered by the specific exceptions.
Government works: Taxpayers are still not free to use works that were paid for by them. This goes against the direction that India has elected to march towards with the Right to Information Act. A simple amendment of s.52(1)(q) would suffice. The amended subsection could simply allow for “the reproduction, communication to the public, or publication of any government work” as being non-infringing uses.
Copyright terms: The duration of all copyrights are above the minimum required by our international obligations, thus decreasing the public domain which is crucial for all scientific and cultural progress.
Educational exceptions: The exceptions for education still do not fully embrace distance and digital education.
Communication to the public: No clear definition is given of what constitute a ‘public’, and no distinction is drawn between commercial and non-commercial ‘public’ communication.
Internet intermediaries: More protections are required to be granted to Internet intermediaries to ensure that non-market based peer-production projects such as Wikipedia, and other forms of social media and grassroots innovation are not stifled. Importantly, after the terrible judgment passed by Justice Manmohan Singh of the Delhi High Court in the Super Cassettes v. Myspace case, any website hosting user-generated content is vulnerable to payment of hefty damages even if it removes content speedily on the basis of complaints.

Amendments Not Examined

For the sake of brevity, I have not examined the major changes that have been made with regard to copyright societies, lyricists and composers, and statutory licensing for broadcasters, all of which have received considerable attention by copyright experts elsewhere, nor have I examined many minor amendments.

A Note on the Parliamentary Process

Much of the discussions around the Copyright Act have been around the rights of composers and lyricists vis-à-vis producers. As this has been covered elsewhere, I won’t comment much on it, other than to say that it is quite unfortunate that the trees are lost for the forest. It is indeed a good thing that lyricists and composers are being provided additional protection against producers who are usually in a more advantageous bargaining position. This fact came out well in both houses of Parliament during the debate on the Copyright Bill.

However, the mechanism of providing this protection — by preventing assignment of “the right to receive royalties”, though the “right to receive royalties” is never mentioned as a separate right anywhere else in the Copyright Act — was not critically examined by any of the MPs who spoke. What about the unintended consequences of such an amendment? Might this not lead to new contracts where instead of lump-sums, lyricists and music composers might instead be asked to bear the risk of not earning anything at all unless the film is profitable? What about a situation where a producer asks a lyricist to first assign all rights (including royalty rights) to her heirs and then enters into a contract with those heirs? The law, unfortunately at times, revolves around words used by the legislature and not just the intent of the legislature. While one cannot predict which way the amendment will go, one would have expected better discussions around this in Parliament.

Much of the discussion (in both the Rajya Sabha and the Lok Sabha) was rhetoric about the wonders of famous Indian songwriters and music composers and the abject penury in which some not-so-famous ones live, and there was very little discussion about the actual merits of the content of the Bill in terms of how this problem will be overcome. A few MPs did deal with issues of substance. Some asked the HRD Minister tough questions about the Statement of Objects and Reasons noting that amendments have been brought about to comply with the WCT and WPPT which were “adopted … by consensus”, even though this is false as India is not a signatory to the WCT and WPPT. MP P. Rajeeve further raised the issue of parallel imports and that of there being no public demand for including TPM in the Act, but that being a reaction to the US’s flawed Special 301 reports. Many, however, spoke about issues such as the non-award of the Bharat Ratna to Bhupen Hazarika, about the need to tackle plagiarism, and how the real wealth of a country is not material wealth but intellectual wealth.

This preponderance of rhetoric over content is not new when it comes to copyright policy in India. In 1991, when an amendment was presented to increase term of copyright in all works by ten years (from expiring 50 years from the author’s death to 60 years post-mortem), the vast majority of the Parliamentarians who stood up to speak on the issue waxed eloquent about the greatness of Rabindranath Tagore (whose works were about to lapse into the public domain), and how we must protect his works. Little did they reflect that extending copyright — for all works, whether by Tagore or not — will not help ‘protect’ the great Bengali artist, but would only make his (and all) works costlier for 10 additional years. Good-quality and cheaper editions of Tagore’s works are more easily available post-2001 (when his copyright finally lapsed) than before, since companies like Rupa could produce cheap editions without seeking a licence from Visva Bharati. And last I checked Tagore’s works have not been sullied by them having passed into the public domain in 2001.

Further, one could find outright mistakes in the assertions of Parliamentarians. In both Houses, DMK MPs raised objections with regard to parallel importation being allowed in the Bill — only in the version of the Bill they were debating, parallel importation was not being allowed. One MP stated that “statutory licensing provisions like these are not found anywhere else in the world”. This is incorrect, given that there are extensive statutory licensing provision in countries like the United States, covering a variety of situations, from transmission of sound recordings over Internet radio to secondary transmission of the over-the-air programming.

Unfortunately, though that MP did not raise this issue, there is a larger problem that underlies copyright policymaking in India, and that is the fact that there is no impartial evidence gathered and no proper studies that are done before making of policies. We have no equivalent of the Hargreaves Report or the Gowers Report, or the studies by the Productivity Council in Australia or the New Zealand government study of parallel importation.

There was no economic analysis conducted of the effect of the increase in copyright term for photographs. We have evidence from elsewhere that copyright terms are already too long, and all increases in term are what economists refer to as deadweight losses. There is no justification whatsoever for increasing term of copyright for photographs, since India is not even a signatory to the WCT (which requires this term increase). In fact, we have lost precious negotiation space internationally since in bilateral trade agreements we have been asked to bring our laws in compliance with the WCT, and we have asked for other conditions in return. By unilaterally bringing ourselves in compliance with WCT, we have lost important bargaining power.

Users and Smaller Creators Left Out of Discussions

Thankfully, the Parliamentary Standing Committee went into these minutiae in greater detail. Though, as I have noted elsewhere, the Parliamentary Standing Committee did not invite any non-industry groups for deposition before it, other than the disability rights groups which had campaigned really hard. So while changes that would affect libraries were included, not a single librarian was called by the Standing Committee. Despite comments having been submitted to the Standing Committee on behalf of 22 civil society organizations, none of those organizations were asked to depose. Importantly, non-industry users of copyrighted materials — consumers, historians, teachers, students, documentary film-makers, RTI activists, independent publishers, and people like you and I — are not seen as legitimate interested parties in the copyright debate. This is amply clear from the the fact that only one MP each in the two houses of Parliament raised the issue of users’ rights at all.

Concluding Thoughts

What stands out most from this process of amendment of the copyright law, which has been going on since 2006, is how out-of-touch the law is with current cultural practices. Most instances of photoshopping are illegal. Goodbye Lolcats. Cover versions (for which payments have to be made) have to wait for five years. Goodbye Kolaveri Di. Do you own the jokes you e-mail to others, and have you taken licences for quoting older e-mails in your replies? Goodbye e-mail. The strict laws of copyright, with a limited set of exceptions, just do not fit the digital era where everything digital transaction results in a bytes being copied. We need to take a much more thoughtful approach to rationalizing copyright: introduction of general fair dealing guidelines, reduction of copyright term, decriminalization of non-commercial infringement, and other such measures. If we don’t take such measures soon, we will all have to be prepared to be treated as criminals for all our lives. Breaking copyright law shouldn’t be as easy as breathing, yet thanks to outdated laws, it is.

This was reposted in infojustice.org on May 25, 2012

For more details visit https://cis-india.org/a2k/blogs/analysis-copyright-amendment-bill-2012

2012 Global Congress on Intellectual Property and the Public Interest: Call for Participation and Save the Date

praskrishna — 2012-05-02T05:05:57Z

The Second Global Congress on Intellectual Property and the Public Interest will take place in FGV Law School, Rio De Janeiro, Brazil from December 15 to 17, 2012. The theme for this year’s Congress will be “Setting the positive agenda in motion.” We invite applications to attend the Congress, including proposals to chair workshops or deliver a paper or presentation related to the Congress’s theme.

Application and Cost

The application form is available online . Due to generous support from our sponsors, the Congress will cover the registration fees and all on-site costs for all attendees, including lunches and dinner receptions. Limited travel grants to cover accommodation and/or travel to the Congress will be available, with priorities for those from developing countries.

Deadlines

Priority applications for travel assistance and to present or chair a workshop at the Congress will be due by August 1, 2012.
Final applications for travel grants, subject to funding availability, as well as applications to present at the Congress, will be due by September 1, 2012.
Applicants not seeking travel assistance or presentation opportunities may apply to attend the Congress by November 1, 2012.

Background and Explanation of the Theme

The first Global Congress on Intellectual Property and the Public Interest was convened in 2011 to define a positive agenda for policy reform, build a global network of scholars and advocates to promote the agenda and provide opportunities for the sharing of research and strategies. The nearly 200 inaugural participants from over 30 countries and 6 continents deliberated over three days through in-person meetings and web-based collaboration to produce the Washington Declaration on Intellectual Property and the Public Interest (http://infojustice.org/washington-declaration) -- an action agenda for promoting the public interest in intellectual property and information law reform around the world.

Sixteen months later, we come together to measure our progress and expand the positive agenda. To this end, we invite applications to attend the Congress and contribute to its deliberations identifying forums where policy is being developed, proposing policies or actions that promote public interest goals and principles, and identifying and planning to respond to research and analysis needs.

Presentation Opportunities

Because the primary purpose of the Congress is to promote deliberation and action planning, the opportunities for formal presentation will be somewhat limited. We will, however, have spaces for keynote presentations or panel discussions for each session (see below). In addition, as in the inaugural year, the Congress will host small works-in-progress workshops to allow participants to share their own work and solicit feedback from peers.

Draft Workshop Sessions

Six main tracks will include a half day workshop introduced by a lecture or panel discussion on one or more of the themes noted below. The keynote introduction will be followed by deliberation in which participants will, first, review progress and opportunity in existing or potential policy forums and, second, review the current state of research and identify policy and empirical research needs and resources. Tracks will also have opportunities to draft statements or action plans for adoption at the closing plenary of the Congress or for discussion and online after the Congress ends.

We encourage applicants to identify specific sessions in which they would like to contribute.

Regulating Intellectual Property: This session will survey recent developments and proposals to regulate uses of intellectual property through other legal doctrines that express and safeguard human values, including human rights, consumer protection, competition and privacy laws.

Valuing Openness and the Public Domain: This session will survey recent developments and proposals to ensure that creative and innovative works ultimately become free for all to use as part of the public domain, including through open licensing, open access, open educational resources, open data, open standards, open government, and related open information policies.

Strengthening Limitations and Exceptions as Enabling Tools for Innovation and Expression: This session will survey recent developments and proposals to use limitations and exceptions as positive enabling doctrines to ensure that intellectual property law fulfills its ultimate purpose of promoting essential aspects of the public interest.

Setting Public Interest Priorities for Patent and Research and Development Reform: This session will survey recent developments and proposals to ensure that patent and other research and development policies serve all segments of society, and particularly the most disadvantaged, and accommodate the diverse needs of a complex world with a more diverse structure of incentives for innovation.

Supporting Cultural Creativity: This session will survey recent developments and proposals to maximize opportunities for creativity while increasing access to creative works and helping to end disputes over practices like non-commercial file-sharing.

Checking Enforcement Excesses: This session will survey recent developments and proposals to ensure that intellectual property enforcement policies and practices respect the human rights principle of proportionality and are not used as a diversion from the difficult task of tailoring intellectual property norms to their social contexts.

Implementing Development Agendas: This session will survey recent developments and proposals to fully integrate the development dimension into intellectual property policy and norm-setting at all levels of international and national intellectual policy making. The session will have a special focus on developments in the BRICS group of emerging economies.

Targeted Research: Given the spectrum of issues described above, what are the key research needs? Given academic incentive structures, what kinds of research fall through the cracks? Given the funding crisis in this field, how can we meet research needs on the cheap? Given the international scope of many policy issues, how can we work collaboratively and comparatively? Given the Internet, how can we develop and leverage new software tools for data collection?

In addition to the above sessions, we invite presentations on other topics relevant to the positive agenda the Washington Declaration promotes, including:

the role of mobilisation and activism.
collaboration between ISPs and governments in enforcement
the ecology of access to educational materials
designing copyright from scratch
updates and lessons from specific forms, e.g. WIPO, national legislatures, trade negotiations, etc.

The application form is available here . Please forward this invitation to interested lists and individuals. For more information or questions, you may contact globalcongress2012@gmail.com.

Global Congress Planning Committee

Centro de Tecnologia e Sociedade – CTS | FGV DIREITO RIO, 2012 Chair
American Assembly, Columbia University, New York
International Centre for Trade and Sustainable Development, Geneva
Centre for Internet and Society, India
Open African Innovation Research and Training (Open AIR) initiative
Program on Information Justice and Intellectual Property, American University, Wash. D.C.

Click to read the original published in infojustice.org

For more details visit https://cis-india.org/a2k/global-congress-on-ip-call-for-participation

2012 Global Congress on Intellectual Property and the Public Interest

praskrishna — 2012-05-02T05:04:57Z

We are pleased to announce the Second Global Congress on Intellectual Property and the Public Interest. The theme for this year’s Congress will be “Setting the positive agenda in motion,” and will have a special focus on developments and opportunities in the so-called “BRICS” group of emerging economies. This note invites applications to attend the Congress, including proposals to chair workshops or deliver a paper or presentation related to the Congress’s theme.

Application and Cost Information

The application form is available now at http://infojustice.org/globalcongress2012/registration. Due to generous support from our sponsors, the Congress will cover the registration fees and all on-site costs for all attendees, including lunches and dinner receptions. Limited travel grants to cover accommodation and/or travel to the Congress will be available, with priorities for those from developing countries.

Deadline

Priority applications for travel assistance and to present or chair a workshop at the Congress will be due by August 1, 2012.
Final applications for travel grants, subject to funding availability, as well as applications to present at the Congress, will be due by September 1, 2012.
Applicants not seeking travel assistance or presentation opportunities may apply to attend the Congress by November 1, 2012.

Please forward this invitation to interested lists and individuals. For more information or questions, you may contact globalcongress2012@gmail.com

Global Congress Planning Committee

Centro de Tecnologia e Sociedade – CTS | FGV DIREITO RIO, 2012 Chair
American Assembly, Columbia University, New York
International Centre for Trade and Sustainable Development, Geneva
Centre for Internet and Society, India
Open African Innovation Research and Training (Open AIR) initiative
Program on Information Justice and Intellectual Property, American University, Wash. D.C.

Read the original published on infojustice.org

For more details visit https://cis-india.org/a2k/global-congress-on-ip