Centre for Internet and Society

Patents and Mobile Devices in India: An Empirical Survey

rohini — 2017-03-29T04:03:03Z

Though India has the second-largest wireless subscriber base in the world, with more than 150 mobile device vendors, it has, until recently, remained relatively unaffected by the global smartphone wars. Over the past three years, however, a growing number of patent enforcement actions have been brought by multinational firms against domestic Indian producers. These actions, which have largely resulted in judgments favoring foreign patent holders, have given rise to a variety of proposals for addressing this situation.

In order to assess the potential impact of patents on the mobile device market in India, and to assist policy makers in formulating and implementing regulations affecting this market, we have conducted a comprehensive patent landscape analysis of the mobile device sector in India using public data relating to Indian patent ownership by technology type, nationality, and industry classification. Our results illuminate a number of important features of the Indian mobile device market, including the overwhelming prevalence of foreign patent holders, the rate at which foreign and domestic firms are obtaining patents, and how these patent holdings are likely to shape industrial dynamics in the Indian market for mobile devices, as well as the availability of low-cost mobile devices that can significantly enhance public health, agriculture, safety and economic development throughout India.

Download the full paper here

This paper was published by the Vanderbilt Journal of Transnational Law on February 9, 2017.

For more details visit https://cis-india.org/a2k/blogs/patents-and-mobile-devices-in-india-an-empirical-survey

Report of the 30th Session of the WIPO SCCR by the Centre for Internet & Society

nehaa — 2016-04-04T14:39:05Z

This report was edited by Nehaa Chaudhari, Programme Officer; compiled with assistance from Nisha S.K., Administrator, and, Aarushi Bansal, Amulya P., and Saahil Dama, interns.

I. Broadcast Treaty Negotiations

Day 1: June 29, 2015

Opening Statements from Regional Coordinators

Japan, speaking for Group B, said that the Group continued to attach importance to the negotiation of the Broadcast Treaty. It emphasized the importance of the information session by technical experts to strengthen the understanding of technical issues. A better understanding of the legal aspects and language of the Treaty text would prove advantageous during Treaty negotiation.

It acknowledged that the presentation by Professor Kenneth Crews indicated that the Member States required an informative reference to adopt the limitations and exceptions. It recommended that the reference be made more user-friendly and accessible. Additionally, it proposed for an exchange of national experiences and a background check on the collection of outcomes.

Germany spoke next, on behalf of the Central European and Baltic States (CEBS). It supported a "forward-looking approach that would take into account the technical progress achieved in broadcasting systems so far". It argued for the inclusion of new media platforms used by broadcasting organizations into the Treaty.

It appreciated Kenneth Crews' study on limitations and exceptions for libraries and archives.
Germany believed that progress on these issues would be facilitated if the committee agreed on common objectives. It wanted to exchange best practices on both - limitations and exceptions for libraries and archives, and limitations and exceptions for educational and research institutions and for persons with disabilities.

Nigeria, on behalf of the African group, wanted equal time to be given to both the issues on the agenda - the Broadcast Treaty and limitations and exceptions. The African Group supported a balanced Treaty on protection of broadcasting organizations as per the mandate of the 2007 General Assembly. It welcomed Kenneth Crews' study on copyright trends. It also suggested a discussion on copyright exceptions for museums.

Argentina, speaking on behalf of GRULAC (Group of Latin American and Caribbean Countries), asked for equal time be given to all the issues on the agenda. This view was also supported by Mexico.

On behalf of the Asia Pacific group, Pakistan supported a balanced Treaty which followed the signal-based approach, for protecting broadcasting organizations as per the mandate of the 2007 General Assembly.

Belarus, representing the Central Eastern and Caucasian Countries, wanted a Diplomatic Conference for the conclusion of the Treaty soon.

The European Union (EU) stated that in building consensus on the Broadcast Treaty, the broad aim should be to make a meaningful Treaty that would be relevant to technological realities and needs of broadcasting organizations in the 21^st century.

Information Session on Broadcasting

Preceded by opening statements by regional groups and countries, the main event on Day 1 was an information session on broadcasting. The panel consisted of George Twumasi, Deputy Chairman and CEO of ABN Holdings Ltd.; Daniel Knapp, Director, Advertising Research; Shida Bolai, CEO of Caribbean Communications Network Ltd.; Anelise Rebello de Sa, Legal Manager of International Business and Contracts Compliance, TV Globo; Avnindra Mohan, President, Zee Network; and Tejveer Bhatia, Singh and Singh Associates, New Delhi.

Daniel Knapp started the information session by providing an outlook on broadcasting from a technical and revenue perspective. He highlighted that traditional broadcasting was different in different countries. In Greece, for example, there was little or no cable other than at the national level, while in the Middle East and Africa, a large proportion of access came from free satellite prescribers.

Knapp stated that despite digitization paid TV homes were growing at a 6% annual rate which was expected to slow down to 3.4% by 2018. While the growth was being led by India and China, pay TV homes in the US were declining as people were moving to over-the-top services. He added that users of connected devices such as smart-phones, broadband players and smart TVs were predicted to surge to more than 8 billion by 2017. This would result in the decline of TV-usage as audiences would move to online open source resources such as Facebook, YouTube, AOL and premium services such as Amazon and Netflix.

Kanpp voiced concerns about development in technology leading to piracy. He warned that traditional threats such as smart cards on set-top boxes and new methods of piracy such as online file-sharing needed to be checked.

John Simpson of the British Broadcasting Corporation ("BBC") outlined how broadcasting had changed through the years due to advancement of technology. He stated that the world was moving from analog TVs to digital services. Digital technologies had enabled broadcasters to offer more channels and programs, providing users with more choice and control. The definitional boundaries between broadcasting and digital video libraries were becoming increasingly blurred.

He argued that broadcasting was an important tool for social cohesion, economic development and ensuring public access to information. He believed that new content delivery mechanisms, such as computer networks or smart-phones, could bridge the knowledge-gap in developing countries. In Africa, for instance, the recent transition from analog television to digital television has the potential to improve both the quantity and the quality of content on television.

However, Simpson noted that the Treaty-text had no mention of the quality and accuracy of the information being broadcasted. It failed to discuss the need for televisions and videos to produce programs which did not just represent the beliefs of the government, but had a genuine observational truth to them. Simpson stressed upon maintaining quality and developing new ways in which things are broadcasted to people.

Shida Bolai of Caribbean Communications Network Limited spoke about challenges broadcasters faced during transition to digital technologies and migration of viewers and advertisers from traditional to new platforms. She noted that while most of the Caribbean was still grappling with standards and infrastructure to go digital, Bahamas and Surinam had already made the change. Legal protection offered to broadcasters in the Caribbean was inadequate and piracy in the form of CDs or fraudulent satellite use and internet were issues yet to be tackled.

Piracy was the result of the costly distribution of content on the internet leading to the broadcasters obtaining expensive licenses. Hence cable-operators pirated signals and free broadcasters had to look for new content. This showed that broadcasters were given inadequate protection. Bolai also indicated that it was difficult to invest in high-cost sports programmes due to financial losses arising out of piracy. She highlighted the need for the indigenous community to find primary channels of production and distribution.

George Twumasi from ABN Holdings LTD said that the central challenge for broadcasting in Africa was the creation of commercially viable content by Africans for Africans. If such content increased, the broadcast industry would grow to become a $75 billion industry over the next 15 years. With respect to piracy, he stated that Africans did not like foreign content and that it was not a pressing concern for them. He argued that the best way to stop piracy was through invasive technologies.

Twumasi wanted to create a lobby group to facilitate the growth of broadcasting. Given Africa's history, he emphasized on its need to define its role as a broadcaster and to entertain the world through its powerful mythology and culture.

Yaw Owusu from University of Ghana stated that copyright could be protected to the extent of monetizing what existed in the marketplace. He explained that the business strategy would operate by broadcasters driving the digital content and revenue system. Intellectual property and ownership would be protected through encryption software. Since English content had also been pirated in Africa, expert enhancement of existing content was required.

Anelise Rebello de Sa from International Business and Contracts Compliance, TV Globo said that the most important challenge to Latin American broadcasters were not other broadcasters, but Google, Facebook, Twitter and piracy. Audiences for the Brazilian advertising market had grown from 10 million in 2000 to 33 billion in 2014. Traditional TV had 72% of the advertisement market. Piracy was a problem since Brazilian signals would be picked up and used by broadcasters in other countries.

She also said that online piracy and set-top boxes were major causes for concerns. She explained the functioning of piracy using the example of Globo in Japan. Pirated content on Globo could not be removed since it did not originate in Japan. Hence the protection was inadequate.

Fingerprint technology would be useful against piracy since it automatically removes instead of comparing videos with one another. She concluded by stating that television also needed an updated legal framework and dependant businesses and investments to continue.

Avnindra Mohan from Zee Telefilms stated that by end of 2016, all of India would be on digital TV. The TV industry was set to increase its revenue from 7.8 billion USD to 12.1 billion USD in the future. However, piracy through DTH box cloning, IPTV, cable TV, inter-country smuggling and over the internet was a major concern. With regards to web-initiated transmissions, he argued that as long as the signal was hacked by someone, broadcasters should have the right to prevent that piracy or illegal transmission from happening.

Day 2: June 30, 2015

Day 2 began with the Chair calling for statements from Member States and regional groups on general principles and key objectives of the proposed Broadcast Treaty.

Regional Group Statements on General Principles

Japan, on behalf of Group B, reiterated that after the session it hoped to move forward with the discussion in line with the 2007 General Assembly mandate and to convene the diplomatic conference at the earliest opportunity.

Speaking on behalf of the Asia Pacific Group, Pakistan stated that it supported the development of an international treaty based on the mandate of the 22 ^nd SCCR which was reiterated in 2012. It sought an agreement based on traditional broadcasting and cable casting; a balanced text that prioritized the interests of all the stakeholders. Pakistan said that the original mandate without new layers of protection would achieve this balance.

Nigeria, representing the African Group, stated that it wanted a pragmatic and effective outcome in conformity with the 2007 mandate, and looked forward to moving towards a Diplomatic Conference soon. Noting the efforts made at the 29^th SCCR, it welcomed the discussion on broadcasting protection. Nigeria concluded by reaffirming its commitment for constructive development in order to protect broadcasting rights within the directives of the 2007 General Assembly mandate.

Romania supported a Treaty that would provide adequate protection in line with modern technological developments. It sought a broad consensus on the signal-based approach. It also stated that it hoped to recommend the convening of a Diplomatic Conference to the General Assembly.

The EU considered the Broadcast Treaty to be a high priority. It wanted a treaty that would be meaningful in view of the technological realities and the needs of broadcasting organizations in the 21^st century. It argued that both - traditional broadcasting and broadcasting over the internet- - required international protection against piracy.

Iran supported the statements made by Pakistan and the Asia Pacific group. It wanted the Treaty to follow the signal-based approach decided in the 2007 General Assembly. Iran only wanted protection for traditional broadcasters. It argued that expanding protection to transmissions over the internet raised concerns of rising transaction costs and reducing access to broadcast in developing countries. It sought an assessment of the impact of the Treaty on the public domain, access to knowledge, freedom of expression, users, performers and authors.

South Korea believed that after the introduction of the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organization ("Rome Convention"), the protection of broadcasting organizations had not been updated to reflect advances in technology. Therefore, it wanted the Treaty to respond to changes in technology.

National Statements on General Principles

Japan wanted the SCCR to end with a recommendation for convening a Diplomatic Conference to adopt the Treaty. It hoped to discuss objectives of protection and rights to be granted. It wanted to move to textual work in the near future and have more elaborate discussions to expand the scope of common understanding.

The US wanted to continue discussions to obtain a general consensus on a meaningful and targeted text. In its opinion, a right that protected broadcasters against signal piracy on any platform without an extra layer of protection could attract such a consensus.

Russia wanted to adopt a new document on the protection of broadcasting organizations. It wished to confine the Treaty to traditional broadcasting, but also lay a basis for content for future protection. It suggested that new forms of broadcasting should be identified and new directions for future protection should be introduced. Russia conveyed its support to all collective decisions to be taken while discussing the text of the future Treaty, as well as a speedy adoption of a common approach.

Belarus, on behalf of the Central Asia and Eastern Europe group, hoped that the new Treaty would reflect specificities of different regions and possibilities of adaptation to changes in broadcasting.

Indonesia supported the statements delivered by Pakistan. It wanted the Treaty to be based on the 2007 General Assembly mandate and use a signal-based approach with broadcasting and cablecasting defined traditionally. It opposed the introduction of any new layers of protection and wanted to strike a balance between rights and responsibilities of broadcasting organizations.

India supported a Treaty with the 2007 General Assembly mandate and also sought the prevention of unauthorized live transmission over computer networks. It opposed expanding the mandate to include elements of webcasting, simulcasting and retransmission over computer networks or other platforms, as these were not a part of broadcasting as defined in a traditional sense. India wanted the Treaty to provide exceptions to private use, use by experts in connection with reporting of current events, use solely for the purpose of education and research and the fixation of a broadcast by means of its own facilities.

Objectives of Treaty, Scope of Protection and Object of Protections

The EU argued that there was a need to ensure that the Treaty was up to date and in line with technological advancements. It wanted protection to extend to broadcasters who used new technologies and urged for the inclusion of a broad retransmission right that would involve simultaneous retransmission and deferred retransmissions. It believed that the objective of the Treaty was to stop piracy whether it was in the form of simultaneous transmissions or organized by websites. It also expressed eagerness to go to text-based work as opposed to working on clarifications.

Speaking next, the US supported a Treaty that would respond to advancements in digital technology and address piracy concerns by eliminating loopholes that pirates could exploit. It said that piracy was a significant concern but not necessarily the suitable object for the Treaty in question. It was not a major part of broadcasters' protection, which could be resolved by enforcing only signal protection.

Romania, speaking next on behalf of the CBES group, stated that it believed in a Treaty that would protect broadcasters against piracy regardless of the platform. It wanted to protect cablecasting and simulcasting in addition to traditional broadcasting. It re-iterated the stand taken by US in saying that a broad retransmission right would be the way forward.

Japan believed that there was a need for separating traditional broadcasting from internet originated initial transmission. Since newer broadcasting organizations dealt with internet broadcasting, it wanted Member States to discuss methods of dealing with such a transmission.

Argentina supported a Treaty that would include broadcasters and cablecasters but would exclude internet originated transmissions except in the context of near simultaneous transmissions.

The EU noted that India, Iran, CEBS, South Africa, Argentina and Kenya seemed to agree that live signals transmitted over any platforms would be the object of protection of the Broadcast Treaty. It stated that it would support a Treaty that protected cablecasting in addition to traditional broadcasting.

Italy endorsed the stance of the EU. It explained that the broadcasting rights to fixation, reproduction of fixations and retransmissions of such fixations and protection of signals sent over the internet could find a background in Article 14 of the TRIPS. It further argued that even the idea of exclusive rights to broadcasters could find precedence in Article 14 of TRIPS and in the Rome Convention.

China argued that the Treaty should account for technological developments. While it fully supported a Treaty that only covered traditional broadcasting including cablecasting, it wanted to include simulcasting, on demand casting and near simulcasting within the Treaty.

India, in response to the EU and Italy, sought to emphasize the difference between a right to authorize and a right to prohibit broadcasting. It stated that the Broadcast Treaty should not provide for a positive right to authorize. It argued that internet companies often broadcast events based on a contract with the content creators, and such a right should not conflict with rights that may be given to broadcasters by virtue of the Treaty. India emphasized the need to stick to the signal-based approach as it balanced the interests of broadcasters and content creators. It pointed out that in cases where broadcasters doubled up as content creators, copyright law would be enough to prevent piracy.

Brazil, along with the US and South Africa, wanted to take into account the concerns of content owners in other platforms.

The US stated that the common ground would be the protection of live signals. If the signal is transmitted by any means, it should be protected. Since many broadcasters used the internet to transmit signals, it would be important to ensure that the signals thus transmitted were protected from piracy as well. It wanted a technologically neutral definition of broadcasting and argued that this would still be limited to a signal-based approach because there were no rights over the content per se.

India clarified its stance and stated that while it did believe that unauthorized retransmissions over the internet should be prohibited by the Treaty, providing broadcasters with a sole right to transmission over the internet would be beyond the signal-based approach. Internet transmissions could rarely be said to be signal theft in the traditional sense.

Iran, responding to the EU, stated that it supported a Treaty that covered traditional broadcasting, cablecasting and even live retransmissions on the internet. It expressed concerns with the Treaty granting exclusive rights to broadcasters, and stated that it would support a Treaty against signal theft as long as the signals belonged to traditional broadcasters.

Chile argued that only broadcasts open to the public should be protected by the Treaty and broadcasts requiring decryption without a cable should be excluded.

The EU restated that it supported a Treaty with technologically neutral terminology. It expressed concerns with the Treaty benefitting all kinds of broadcasters since technological developments had enabled everyone to become a broadcaster. Italy supported this caveat and stated that a workable definition of a "broadcast organization" would be an organization that transmits a broadcast signal. A "broadcast signal" would be a signal that includes only broadcasts or cablecasts; and broadcasting does not include the transmission over computer networks. It believed that such a definition would differentiate between broadcasts, cablecasts and webcasts.

Japan stated that broadcasting organizations would have to be defined as broadcasters in the traditional sense since the idea of a broadcasting organizations had not changed despite technological advancement. It wanted to start with the definition of broadcasting as it was laid out in the WIPO Performances and Phonograms Treaty ("WPPT") and the Beijing Treaty on Audio-Visual Performances, 2012 ("Beijing Treaty").

Nigeria stated that broadcasting should be clearly defined before broadcasting organizations since the two were inevitably linked.

Russia believed that the discussion was becoming overly complicated. It argued that a simple method of understanding broadcasting would suffice to define broadcasting and broadcasting organizations. The means used by broadcasters were of little concern to Russia.

The US stated that along with being forward-looking, the definitions also needed to be consistent with treaties passed by the WIPO in the past, including the WPPT and Beijing Treaty. Broadcasting organizations should be defined as entities that would assemble and schedule programmes carried by the signal keeping in mind the distinction between a signal and a program.

As per the EU, the definitions in Document SCCR 27/2 needed to be discussed as they covered important elements of broadcasting such as broadcasting by wireless means including satellite for public reception. The EU also stated that while the definition of broadcasting organizations should not include transmissions over computer networks, transmissions over computer networks could be included as a part of the object of protection.

At the end of the evening, Ann Lear, of the WIPO, intervened to stress that definitions must be adopted keeping keep in mind that many broadcasters today viewed the internet as the main platform for distribution of their broadcast in the near future and were using streaming and downloading over the internet.

Day 3: July 1, 2015

Day 3 of the negotiations began with the Chair noting the general consensus emerging in the matter of protecting live signals over any platform, and, allowing broadcasters to prohibit unauthorized access regardless of the platform from which the signal was transmitted. The Chair opened the floor for debate on whether there was a need for defining 'broadcasting organizations' or whether defining 'broadcasting' as an activity would suffice, and on whether the definitions must reflect those existing in other international treaties.

Defining 'broadcasting organizations'

The EU spoke first, stating that the definition laid out in Alternative B to Article 5 in Document SCCR 27/2 was similar to what it wanted. It believed that defining broadcasting and cablecasting was crucial to defining the beneficiaries of the Treaty. But this did not mean that it was unimportant to outline who the beneficiaries of the Treaty were.

Australia argued that the Rome Convention operated well without having defined broadcasting organizations and the same would hold true for the Broadcast Treaty as well. It further argued that the definition of broadcasting should be based on the definitions that already existed in the Beijing Treaty and the WPPT.

Serbia stated that the definition of a broadcasting organization had to conform by the definition of broadcasting. Additionally, it felt the need to define the responsibility of broadcasting organizations for collecting information and editorial functions.

Russia argued that defining broadcasting organizations would be a misstep since different countries would have different definitions of broadcasters in their national legislations. Russia relied on the fact that the Rome Convention was operating well without having defined broadcasting organizations.

Brazil stated that while it wanted clarity on who would be the beneficiaries of the Treaty it was still debating whether broadcasting organizations had to be defined in the Treaty. It supported a technologically neutral definition of broadcasting as it would encompass different countries with different regulatory regimes.

Kenya stressed that it needed clarity on what broadcasting entailed as their national laws dealt with broadcasting in a particular manner. It required a clear definition to move things forward.

South Africa, agreeing with Kenya, spoke of its domestic legislation which defined broadcasting in several ways, and included both wired and wireless technology. It suggested accommodating different definitions of countries like Brazil and China which regulated broadcasting differently. It added that following a text-based definition would be difficult as discussions involving fundamental questions of broadcasting were constantly being raised.

Canada felt the need to examine national treatment with respect to defining or not defining broadcasting organizations. It said that a basic definition of the activity with a chance to accommodate differences in national legislations would be the best way to move forward.

The US proposed that text-based work would be more constructive in gaining clarity on these questions.

The EU commented that the definition of 'signal' could be based on the Beijing Treaty that makes a reference to public reception of sounds or images or images and sounds or representation thereof. Alternative A for Article 5 in Document SCCR 27/2 most closely reflected the definitions that already exist in other existing treaties as well. It stated that it would be sufficient to define broadcasting, cablecasting, broadcasting organizations and signal.

Romania endorsed the statement made by the EU. It stressed on the importance of defining the beneficiaries of the Treaty.

The EU intervened again to state that it was necessary to define broadcasting organizations, but that it could start with defining broadcasting based on existing treaties.

Romania intervened on behalf of the CEBS group to state that it was important to move to a text-based discussion to continue making progress. It emphasized on the need for updating the international legal framework to accord adequate protection to broadcasting organizations.

Russia supported the same proposal and stated that it was important to consolidate a text to eventually recommend convening a Diplomatic Conference.

Serbia aligned itself with the Romanian position. It further stated that it was important to identify the beneficiaries and non-beneficiaries under the Treaty.

Iran intervened to urge the commencement of text-based negotiations on the draft Treaty as there was no consensus on important concepts such as objectives, scope or objects of protection of the Treaty. It supported the proposal made by Romania on behalf of CEBS. Iran also stated that deciding on convening the Diplomatic Conference in the next biennium before resolving divergent views and arriving at a consensus would be premature.

The US argued that text-based work would be the way forward. Though consensus was beginning to appear, a number of countries had not committed to anything. Hence the draft should leave options so that there is still room for negotiations. It further said that if an acceptable text was found over the next two meetings, then a Diplomatic Conference in the next biennium could have a successful outcome.

The EU stated that while there was progress on understanding different positions, a consensus was yet to emerge. Further discussions were needed on important issues such as the term of protection and technological protection measures. It aligned itself with the proposal of the CEBS group and hoped that the work would lead to a Diplomatic Conference in the next biennium.

India, South Africa, Japan, Nigeria, Senegal and Kenya also supported the CEBS proposal to move to text-based work.

Chair's Conclusions

At the end of the session on broadcasting, the Chair noted that there had been an exchange of views on the objectives of the Treaty, the scope of protection and the object of protection. While no consensus had been reached, there was greater clarity on different positions. The Chair stated that text-based work seemed to be the way forward and agreed to prepare the draft document. Further, with the exception of one delegation, there was a consensus on the protection being granted to broadcasting organizations to prohibit unauthorized use of broadcast signals in the course of a transmission over any technological platform. The Chair lastly said that the proposed timeframe for this would be to work towards the biennium when the proposed Diplomatic Conference could take place.

II. Report on Negotiations on International Instrument for Exceptions and Limitations for Libraries and Archives

Day 1: June 29, 2015

Opening Statements by Regional Coordinators

Japan spoke on behalf of Group B and stated that the presentation by Prof. Kenneth Crews (hereafter, Crews) had provided for a way forward by showing that Member States needed an informative session on this topic. This informative session should be in an accessible and user friendly environment where exchange of national experiences could take place. It believed that the SCCR should give further consideration to the objectives and principles proposed by the US in this regard.

Nigeria, on behalf of the Africa Group, wanted to establish legal instruments on this issue and on limitations on educational and research institutions for persons with disabilities. It wanted equal time to be given to all the instruments being discussed.

Representing the GRULAC, Argentina stated that the issue of limitations and exceptions for libraries and archives was of particular importance to it. Argentina hoped that it would be dealt with in a balanced way. It attached importance to the work that had been done until then and to the report prepared by Crews. It supported an open and frank discussion on the issue and was interested in the proposal made by Brazil, Ecuador, Uruguay, the African Group and India. Mexico endorsed this statement as well.

On behalf of the Asia Pacific Group, Pakistan expressed disappointment since all the issues had not received equal commitment from all Member States, particularly the issue of exceptions and limitations for libraries and archives. It stated that while there were different priorities due to different economic realities in the various Member States, inclusiveness as an ideal meant that these priorities would be accommodated.

Pakistan believed that the issue of limitations and exceptions for libraries and archives was of critical importance for individual and collective development of societies. Libraries and archives play an important role in the right to education, which remains a challenge in many developing countries due to lack of access to relevant educational and research material. While sharing national experiences and best practices was informative and useful, it was important to understand that the lack of development with regard to exceptions and limitations resulted in no decision at the 2014 General Assembly. Therefore it wanted to move to text-based work on the same.

The EU stated that the discussion could not be furthered without clarity on direction and objectives. It sought a surer understanding of what the outcome of the discussion could be to avoid wasting time and resources. It noted that the 2014 General Assembly had not provided the SCCR with a new mandate on libraries and archives. Even on exceptions and limitations for educational and research institutions and persons with disabilities, the acceptable way forward would be to encourage best practices in the broad and flexible boundaries of the current international copyright framework and not within the realm of further legally binding instruments.

Day 3: July 1, 2015

Regional Statements on General Principles

Work on exceptions and limitations for libraries and archives resumed in the afternoon session of the third day of the meeting.

Brazil, on behalf of GRULAC, believed that Crews' report documented the important role played by libraries and archives and emphasized the need for library lending services. It supported an open and frank discussion without prejudging its outcome. It was interested in the proposal made by itself, Ecuador, Uruguay, the African Group and India on the same. It also underscored the importance of ratification with respect to any Treaty relating to limitations and exceptions.

On behalf of the Asia Pacific Group, Pakistan stated that limitations and exceptions were essential requisites for all norm setting exercises. People in all countries would benefit from exceptions and limitations for libraries and archives since it would allow for materials to be accessible by all of humankind instead of being restricted to individual countries. Pakistan believed that any agreement on this would require harmonization of domestic laws and policies. It considered sharing national experiences of Member States to be beneficial in this regard. In a report to the 28^th session of the Human Rights Council, the Special Rapporteur for Cultural Rights also supported the harmonization of exceptions and limitations in copyright for libraries in education.

Representing the African Group, Nigeria underscored the fundamental role of libraries and archives in facilitating access to knowledge for human and societal development. The principle of exceptions and limitations meeting specific objectives is an essential part of international instruments. As evidence, Nigeria pointed out legal precedents that contained specific limitations protecting educational institutions and facilitating access to learning. It sought a text-based discussion on the text prepared by the African Group, Brazil, Ecuador, India and Uruguay and the Chair's informal document streamlining various proposals.

Romania stated on behalf of the CEBS group that it welcomed the updated version of the study on copyright exceptions prepared by Crews. Romania recognized the important role that exceptions and limitations would play in facilitating library services and serving the social objectives of copyright law. It stated that the three-step test provided for by existing treaties offered a framework that was wide enough for states to establish their own exceptions and limitations but conceded that it may need more guidance on best practices. It considered an approach based on exchange of best practices to be superior to a normative approach.

Japan, on behalf of Group B, relied on Crews' study to show that many countries had already introduced exceptions and limitations for libraries and archives in their domestic legal systems. It wanted further work at the SCCR to be based on the recommendations of the Chair at the previous SCCR and the presentation by Kenneth Crews. It sought for a substantive discussion at an objective and principle level as proposed by the US.

China intervened and pointed out that there already existed a Chinese legislation regarding exceptions and limitations for libraries and museums and orphan works.

The EU stated that the study conducted by Kenneth Crews was illustrative of the fact that exceptions and limitations in domestic legal systems and other instruments were adequate. It considered this to be the basis for understanding effective ways to implement exceptions and limitations in different legal systems. It believed that an approach based on exchange of best practices and mutual learning would stimulate substantive discussions. It further stated that in the absence of a mandate by the 2014 General Assembly, there was a need for further clarity on the expected outcome of these discussions.

Brazil spoke next in its national capacity and aligned itself with the statements produced by GRULAC, the Asian Group and the African Group. It considered the discussion on exceptions and limitations to copyright law to be a subject of utmost importance. It pointed out that for libraries, the activities that could be linked to copyright exceptions were preservation of copies, making orphan works, public library lending and so on.

Mexico aligned itself with GRULAC. It reiterated that its government attached importance to exceptions and limitations for libraries and archives that were aimed at facilitating copying, preservation, archiving and the dissemination of works, and, encouraging the spread of knowledge for the common good.

India intervened and pointed out that access to knowledge was lacking in many jurisdictions despite increasing trends of digitization of information. In this context, libraries and archives act as balancing forces for increased access and it was important to strengthen this balance between ownership and access. Citing Crews' study, India argued that the diverse approaches in national laws, including that of absence of limitations and exceptions in many jurisdictions, necessitated work on an international instrument for limitations and exceptions. It stated that the work of the African Group, Brazil, Ecuador and Uruguay to get more countries aligned to a document on the eleven issues for an equitable balance relating to limitations and exceptions needed to be built upon for consensus among members. The best way forward would be to draft a legal instrument, as exchange of practices did not bring the necessary urgency to the subject.

Iran aligned itself with statements made by the Asia Pacific Group and the African Group. It stated that the rights to science, library and culture were basic human rights. It believed that limitations and exceptions played a key role in creating a balance of interests in the international copyright system and empowered creativity by increasing educational opportunities and promoting access to cultural works and inclusion. It further argued that since the existing international copyright system did not address technological developments, it needed rectification. It cited the UNHRC Special Rapporteur's recommendation to the WIPO to set a core list of minimum required exceptions and limitations. Iran strongly supported work towards a legally binding international instrument for limitations and exceptions for libraries and archives, and research and educational institutions. It sought to start text-based negotiations in this regard and suggested that the proposal by the African Group, India, Brazil and Ecuador would be a good base for preparing a consolidated text.

Indonesia agreed with the statement made by the Asia Pacific Group and sought to move on to text based negotiations. It highlighted the importance of developing a legal framework to enable libraries and archives to reproduce content without the authorization of copyright holders for the purpose of education, research and inter-library loans.

The Russian Federation pointed out that it had already partially solved the problem in its domestic legislation. It sought to strike a balance between the interests of the author and that of the society.

Ecuador endorsed the statement made by GRULAC. It had a Bill in its domestic legislature to address this issue. It wanted to proceed to text-based negotiations.

South Africa aligned itself with GRULAC, the African Group and the Asia Pacific Group and emphasized the critical role of libraries archives and educational institutions in the dissemination and preservation of their cultural heritage. It also called for progress on text based work and to send a clear message to the General Assembly and the international community that the issue was important.

The US believed in the development of non-binding principles and objectives relating to national copyright exceptions and limitations for libraries, archives, and educational institutions. It noted that statements of such principles and objectives introduced by them in earlier sessions of the SCCR had been received positively. The US further stated that it supported work through symposia or seminars to examine different approaches to national implementation of these principles. It also went on to state that libraries and archives, being central to knowledge systems, provided valuable insights to people. She referred to a document formulated by the United States which discussed the importance of enabling libraries to function properly, along with the goals the US attempted to achieve. The approach would be for the Member States to tailor the exceptions to suit their needs within the constraints of international obligations to make libraries and archives available to the world.

Pakistan agreed with the statements made by the Asia Pacific Group, the African Group and GRULAC. It was concerned with the lack of uniformity and occasional absence of exceptions and limitations for libraries, archives and educational and research institutions in some countries, which restricted a large number of people from accessing information. Pakistan argued that reformation and harmonization of the current system was essential, and that mere incorporation into domestic laws was insufficient. There was a need to engage in text-based negotiations and work towards an appropriate international legal instrument.

Cameroon also aligned itself with the position of the African Group, GRULAC and the Asia Pacific Group. It emphasized the crucial role played by libraries and the importance of providing adequate exceptions and limitations for them. Cameroon said that it was also reviewing its own national legislation on the issue.

Armenia pointed out that it was drafting a new domestic law on the issue of limitations and exceptions for libraries and archives. It also emphasized the importance of minimum international standards for countries to adopt. Armenia wanted countries to implement these limitations in their national legislations and supported a legally binding instrument for limitations and exceptions.

Sudan supported the proposal put forward by the African Group, the Asian Group, Brazil Ecuador, Uruguay and India. Citing Crews' study, it stated that with advent of the digital age, all the memory and knowledge in the world could be easily converted into accessible formats and made available on databases for researchers and educational institutions. Therefore it was necessary for the SCCR to enable students and researchers to have access to this knowledge. The EU Directives passed in 2001 and 2012, and the work undertaken by the US and UNESCO were positive steps in this regard. It wanted to work towards an appropriate international instrument such as the Marrakesh Treaty.

Aligning with the African Group, Nigeria argued that since information sharing transcended national boundaries in the digital age, national solutions would be ineffective. There was a need to balance the interests of the creators and the larger public interest. It welcomed the report by Crews and the document prepared by the Chair to stimulate discussion along with the text-based proposal of the African Group, Brazil, Ecuador, India and Uruguay.

Japan supported Group B's statements and said that libraries and archives played a pivotal role in collecting and preserving materials and providing them to the public. It cited Crews' study to argue that international differences in conditions for application of limitations and exceptions would cause problems with the increasing digitizing of materials. Principles evolved from these discussions should serve as guidelines for establishing the legal framework for libraries and archives in each Member State. Japan considered the objectives and principles document released by the US to be a good basis for discussion.

Malawi wanted discussions to be guided by Crews' report.

Uruguay supported the statements made by GRULAC, the African Group and the Asia Pacific Group. It wanted to sponsor Document SCCR 29/4 submitted by Brazil, Ecuador, India and the African Group. It believed that libraries and archives were important for culture, leisure activities and welfare of the needy sections of society. Since archivists and librarians had approached the SCCR in every session to ask for an international solution, Uruguay urged the SCCR to continue with the discussion without prejudging the result.

Malaysia considered Crews' study to be useful for deliberation. It supported limitations and exceptions that contributed to the attainment of education for all. It wanted to appoint a facilitator or a friend of the Chair to further discussion and create concrete solutions.

Algeria valued the study submitted by Crews and recognized that copyright exceptions and limitations for libraries and archives would enable the spread of cultural and scientific awareness. Algeria aligned itself with the statement made by the African group.

Congo believed that libraries and archival services had inherent rights to share knowledge and education. This would enrich cultural diversity and break the digital divide between the Global North and South. It argued that Crews' study demonstrated that domestic solutions would not solve this problem and an international instrument was necessary.

Zambia supported the statement made by the African Group. It remarked that libraries and archives played an essential role in disseminating information and provided a pool of historical knowledge which served as a base for our future. It believed that any solution should balance the interests of rights holders and that of the public.

Nepal aligned itself with the Asia Pacific Group. It stated that libraries and archives played an important role in education as they were often the only sources of materials for students and academics in countries like Nepal. An international legal instrument on exceptions and limitations would balance different interests. Nepal supported appointing a facilitator or a friend of the Chair to develop a working text on limitations and exceptions.

Australia supported the proposal given by the United States as a sound basis for developing principles and objectives of the suggested clusters. It wanted simple and immediate solutions within the existing legal framework to close the gap between ideals and the reality.

The US, agreeing with Australia, showed interest in developing principles and objectives in terms of how different countries arrived at the principles and objectives. It also agreed to filling gaps between these and find consensus on the approach.

Day 4: July 2, 2015

Approach Forward

The Chair asked the Secretariat to provide an overview of the situation on this topic. The Secretariat stated that there were two studies on the issue - the first compiled by Kenneth Crews which had updated previous studies conducted in 2008 and 2014 and another study on limitations and exceptions for museums, SCCR/30/2.

There was also a working document adopted in 2014, SCCR/26/2, that compiled the reference to eleven topics and identified them as priority topics on this issue. Two proposals had also been adopted - one which refers to objectives and principles presented by USA (SCCR/26/8) and another by the African Group, Brazil, Ecuador, India and Uruguay (SCCR/29/4). The SCCR pointed out that a chart/non-paper had been submitted by the Chair in December 2014 and that delegations were to consider this non-paper in this session.

The Chair clarified that the purpose of preparing the chart/non-paper was not to push the discussion in a particular way or to side with an issue. It was to help guide discussion in an organized fashion while remaining respectful of all views. The Chair opened the floor for comments on the same.

Speaking first, Australia was willing to work on the Chair's proposal. It believed that this should be done in a three-step process. Firstly, principles and objects as proposed by the US had to be clarified; secondly, reasons had to be identified for why those principles and objectives were not already in effect; and finally, solutions for implementing the principles and objectives had to be discussed. It believed that simple and immediate solutions should be preferred to complex solutions which would take longer to come into effect.

Brazil stated that it was ready to contribute to discussions on the non-paper drafted by the Chair as a framework for the discussion. It argued that following the framework proposed by the Chair would not exclude discussion on principles and objectives. It suggested that the discussion on principles and objectives be subsumed within the framework proposed by the Chair.

Japan questioned whether the list of issues compiled or the way discussions were structured would have had an impact on the direction taken by the SCCR.

The Chair answered that the list was not fixed and that the flexible structure of the framework allowed for discussion on other related issues also. The Chair also asked if there was consensus on moving forward on the structure outlined by him or if there were suggestions on improvements.

The US agreed with the Australian delegate on the importance of developing principles and objectives. The Chair pointed out that this discussion could be included as part of the approach within the chart/non-paper prepared by him.

The EU questioned the difference between the chart and Document SCCR 26/3. It also asked how the discussion on each issue was envisaged and whether it would be limited to a principled discussion.

The Chair responded to the first question by stating that while Document SCCR 26/3 was the source, it would be better to use the chart as a tool than to refer to a document even though it had been approved by the SCCR. To the second question, the Chair stated that while he could not predict the way in which the discussion would unfold, he foresaw a discussion which would first test whether the topic had consensus with regard to its inclusion in the topic and then try to set a principle that would be agreed upon. If solutions existed, an exchange of views based on the Australian approach of contrasting the principle with the findings in the Crews' study would take place, followed by methods of resolving the issue through exchange of best practices or an international instrument.

Day 4: July 2, 2015

Day 4 commenced from the previous day's discussion on the approach forward on libraries and archives.

Brazil spoke on behalf of GRULAC and supported the approach recommended by the Chair in the non-paper submitted to the SCCR. It believed that this allowed for flexibilities. It invited comments for improvements.

This was repeated by Pakistan on behalf of the Asia Pacific Group and Nigeria on behalf of the African Group, Iran, Malaysia, Senegal, Mexico, Tanzania, Guatemala and Zimbabwe.

On behalf of the Asia Pacific group, Pakistan appreciated the proposal on the non-paper by the Chair.

Japan, speaking for Group B, required further clarifications on the approach proposed by the non-paper and reiterated its support to a discussion based on principles and objectives as proposed by the US. The Chair expressed his willingness to offer clarifications on questions from any of the delegations.

Nigeria supported the proposal on behalf of the Africa Group.

Iran supported Pakistan and the interventions made by Brazil and Nigeria. It saw these discussions as beneficial for developing a legally binding instrument. Since discussion on substantive issues was being delayed because of procedural matters, Iran asked Member States who believed that their positions would be hindered by the non-paper to express their concerns and suggest changes in the non-paper.

Uruguay speaking on behalf of their group stated that it supported the Chair's proposal and regretted that the discussion on substantive issues was being delayed due to procedural issues which, it believed, were settled in the 27^th SCCR.

The EU welcomed the proposal but raised concerns about clarity on the expected outcome of the approach suggested by the Chair.

South Africa supported the non-paper as a basis to proceed on the discussion.

Brazil, speaking for GRULAC, believed that it had a mandate on an international legal instrument in whatever form and asked whether all Member States agreed with the approach suggested by the Chair.

The EU stated that it did not find a mandate as described by Brazil in the general assembly 2014 records. It believed that the issue of the mandate would be controversial and would lead to unproductive and repetitive discussions. It asked the Chair to clarify the situation with respect to the mandate.

The Chair stated that before changing the topic to the mandate, he wanted to get more views on the proposal.

Venezuela supported the structure laid out by the Chair. Venezuela expressed dissatisfaction at the fact that even though it was supportive towards the Broadcast Treaty negotiations, which was not a priority for them, the same courtesy was not extended to them when it came to issues that were important to developing countries such as limitations and exceptions for libraries and archives. It was unhappy at substantive discussions on the latter being delayed due to procedural quarrels. It argued that if this was an indication of the way forward, it would first want to discuss exceptions and limitations at the next SCCR so that developing countries did not have to waste their time. Venezuela pointed out that even developed countries needed solutions on the issue of limitations and exceptions. It agreed with Brazil's interpretation with regard to the mandate.

Nigeria supported the statements made by the African Group, the Asia Pacific Group and GRULAC. It stated that procedural issues should not cloud discussions over substantive issues and that the approach put forward by the Chair allowed for sufficient flexibility.

Switzerland supported the Chair's proposal.

Australia believed that discussing procedures and concerns from Member States was important to ensure clarity on the way forward.

Canada supported the statements made by Switzerland and Australia.

The US supported the Chair's proposal. While it wanted a discussion on principles and objectives, it believed that the approach suggested by the Chair would help Member States. The US did not presuppose an outcome.

The Chair welcomed this statement and assured that the principles and objectives document submitted by the US would also be used as a tool to provide clarity on issues.

Ecuador supported the chart prepared by the Chair and agreed to using that chart as a starting point to guide discussions which would include principles and objectives as proposed by the US

Tanzania, on behalf of the African Group, supported the tool prepared as a means to reach a common understanding from the point of view of the different statuses of the countries.

Japan, in its national capacity, supported the statements made by Switzerland, Canada, Australia and the US.

Guatemala also showed great interest in the working of this tool for the purpose of the discussion.

Singapore realigned itself with the Asia Pacific Group's position and supported the Chair's proposal which it felt would be helpful in guiding the substantive discussions.

Zimbabwe appreciated the proposal made by Nigeria and showed its support for a constructive engagement without prejudice.

The Chair suggested that statements by NGOs should be taken only at the stage of discussing substantive issues. The Chair also welcomed questions seeking clarifications on the intention behind the preparation of the chart. The Chair agreed to write an introduction to the chart stating that the intention was not to prejudge any outcome. He encouraged Member States to discuss the substantive issue of preservation if all concerns were adequately addressed by an introductory text.

China expressed support for the Chair's proposal.

The EU sought clarifications on whether the Chair would write an introductory text and whether he would want discussions to proceed simultaneously. After receiving affirmations on both questions, the EU asked for bilateral discussions with the Chair.

After the coffee break the Chair announced that he had written an introductory text to the chart which would be circulated and sought to start discussion on the substantive issue of preservation and invited comments on the same from experts.

Preservation

Non-Governmental Organizations

Speaking first, the International Federation of Libraries and Archives (IFLA) stated that preservation was one of the most critical, frequently exercised and widely approved activities of libraries and archives and that preservation standards varied according to the medium - whether paper, film or digital. It pointed out that preservation was required only to preserve and not to create additional copies. Libraries and archives needed to collaborate across borders to preserve cultural heritage which may exist in libraries of different countries. Hence it was important to take international action.

The International Federation of Reproduction Rights Organisations (IFRRO) stated that preservation included reproduction, digitization and other forms of electronic reproduction, for the sole purpose of preserving and archiving information. It noted that many Member States did not include exceptions for this in their domestic laws. IFRRO wanted such exceptions to conform to the Berne three-step test and not be used for commercial purposes. It argued that while works that were commercially available did not need preservation, works that were no longer commercially available required an exception so as to be preserved appropriately. It believed that libraries had an important role to play in preserving and providing access to knowledge and cultural heritage and appropriate licensing agreements needed to ensure that they can perform this role adequately.

The International Council on Archives (ICA) said that without archives, countries such as South Africa would lose their past and cultural roots. The Council argued that while preservation could be thought of as a purely national issue with the only possible solution being to encourage countries to introduce preservation standards in domestic legislations, this would ignore important international dimensions involved in the question. Materials such as diplomatic reports and reports of ambassadors sent to other countries were essential to the history of a country. Such cases required stable, harmonious legislations. Also, since preservation of modern materials involved the use of technology that was not available in all countries, preservation standards would ensure that electronic materials could be frequently migrated and copied could be stored anywhere in the world.

The Federation of International Journalists (FIJ) strongly supported its work being archived as long as parallel publication was avoided. FIJ stated that exceptions should be accompanied by fair remuneration to authors and performers since the world would be deprived of cultural works if authors in poorer countries could not make a living. Authors were in an equally vulnerable state to libraries in less wealthy countries due to contracts with publishing houses. Given the imbalance in power, the WIPO needed to address this with an international instrument.

The International Authors Forum (IAF) agreed with the technical comments made by IFFRO and FIJ and supported preservation and digitization. It pointed out that while authors around the world were vulnerable due to having low incomes, it still wanted their works to be preserved.

According to (SDM), while the publishing industry depended on copyright protection to innovate, some limitations and exceptions needed to be carefully crafted. It wanted these limitations and exceptions to comply with the Berne three-step test, taking into account the increased risk of misappropriation and misuse in the digital environment. It wanted to ensure that uses under this exception were limited to preservation and replacement and did not allow the creation of additional copies.

Civil Society Coalition (CSC) called for harmonized, broad and compulsory exceptions to the right of reproduction to allow libraries to fulfill their traditional functions and to provide access to knowledge and culture on non-commercial terms. It pointed out that the world wide web of the 1990s was not preserved and would be lost without immediate preservation thereby creating a memory hole for the 21^st century.

Knowledge Ecology International (KEI) supported preservation and wanted copyright and trade negotiators to sort out context-specific access related issues. It believed that preservation should be a minimum standard and that domestic laws must be harmonized in this regard. It also pointed out that preservation included exceptions to Technological Protection Measures, exceptions to related rights, etc. Citing Wikileaks as an example, KEI stated since knowledge about one country could reside in another, there was a need for an international treaty that harmonized minimum standards on preservation.

Union internationale des éditeurs (UIE) stated that though International Publishers Association (IPA) considered topics related to libraries and archives as unrelated to the agenda, their preservation was important nonetheless. It articulated the publishers' wish to have their publications as part of the nation's heritage. It envisioned for the libraries authorized to preserve these to be technically, financially and legally enabled to do so. UIE emphasized on the need for differentiating between copyrighted, unpublished and commercially available works and achieving a consensus between stakeholders. It mentioned the following reasons for collaboration between right holders and libraries - firstly, publish may publish works in different formats, or hold information in different databases; secondly, updated data can be preserved only with collaboration; and thirdly, agreement on the mode of providing digital files to preserve libraries was also essential.

The IPA wanted a substantive debate on preservation. It wanted distinctions drawn between unpublished works, commercially available works and works in the public domain as there were different interests and different levels of consensus amongst stakeholders for these categories. The IPA also pointed out that digital preservation of digital work required co-ordination between libraries and right-holders in understanding which copies had to be preserved, the format it had to be preserved in, and how the digital files should be provided to libraries.

The (SCR) stated that there was a need for a preservation exception in copyright law since fires and other natural disasters had often led to knowledge and cultural materials being lost. SCR considered digitization to be a reliable answer. It believed that preservation could not be done simply through licensing when exceptions for archivists were unavailable. It believed that an international treaty would also prove useful where collaborative cross-border digital preservation initiatives were taking shape.

The Transatlantic Consumer Dialogue (TACD) considered preservation of a common past as a public good. It stated that current international copyrights law made it nearly impossible for librarians and archivists to engage in cross-border operations because uncertainty and possible litigation costs prevented them from engaging in preservation. It went on to state that even consumers in developed countries wanted these exceptions and limitations so that libraries could engage in cross-border preservation initiatives.

The Society of American Archivists (SAA) cited Crews' study to state that national measures and exchange of national best practices were both inadequate and instead an international instrument on limitations and exceptions for libraries and archives was necessary. It said that archivists could not preserve knowledge and serve global users without consistent and predictable laws. It also stated that 45% of WIPO's Member States provided for no exceptions on preservation and those who did were so varied in their approaches that librarians and archivists needed an international instrument to do their job. Further, according to SAA, three steps were involved in preservation - copying, updating the copies, and making the copies available when the original copy becomes damaged, obsolete, or is lost. As preservationists, it said, it needed the right to reproduce copies, migrate them either digitally or otherwise, and make them available.

The International Society for Development of Intellectual Property (the Society) pointed out that protection of IP strengthened creativity and innovation and contributed to building of a strong knowledge economy provided that it was balanced with public interest. To be successful, it said, any solution sought by the SCCR should balance different interests. It was of the opinion that this could be done either through limitations and exceptions or exchange of best practices. The Society pointed out that practical solutions were easily achievable and more likely to produce results than long term international measures.

The Canadian Library Association (CLA) explained that preservation included reproduction in digital and physical forms for the purpose of preserving and archiving a copyrighted work. It did not believe this could be adequately done with simple licensing contracts. It also pointed out that format shifting was important to ensure works remained preserved where the original mediums became obsolete or too fragile. It ended with emphasizing the importance of cross-border initiatives toward preservation.

The German Library Association stated that digital long-term preservation necessitated technical instruments. It opined that storing archives on CDs was not enough as the CDs might become unusable after a decade. It argued that multiple copies in newer formats were required to adequately preserve works. It further stated that publishers often refused to license works for this purpose and this necessitated an international instrument that harmonized laws across countries.

The European Bureau of Library Information and Documentation Associations (EBLIDA) considered libraries' role in preserving a nation's history to be a public good. It pointed out that licenses expired according to terms of subscription. It also said that libraries could not obtain back-up files for preservation and could only access them from the producer's website which provided no guarantee of preservation. Further, it stated that even in the EU, several Member States had not put in place clear comprehensive policies to ensure preservation; and, that an international solution which provided for a minimum standard for preservation regardless of the format of publication was necessary.

Member States

Brazil spoke first and underlined the importance of preservation. It proposed using technology-neutral and format-neutral terms in an exception for preservations.

Nigeria, on behalf of the African Group, pointed out that there was an overwhelming consensus amongst NGOs on the need to have an international instrument for preservation. It felt that contracts and licensing agreements could not do the job. Crews' study was credible evidence to show the need for an international instrument.

The US pointed out that the objective of their document on principles and objectives was to enable libraries and archives to do their job. Limitations and exceptions would enable libraries and archives to preserve copyrighted works in a variety of media and formats, including migration of content from obsolete formats. Though the US appreciated Crews' study, it wished to understand why different Member States had decided differently on this issue, what works required preservation, and how preservation was affected by TPMs.

Algeria stated that exceptions in its domestic laws allowed libraries to preserve one copy of a copyrighted work. It believed that an international instrument was required to harmonize these exceptions throughout the world.

UK said that its copyright law was amended in June 2014, to enable libraries and archives to make copies of copyrighted work in any format to preserve cultural heritage. It considered the current international framework and the three-step test adequate to provide for this exception.

Chile stated that its domestic law authorized libraries and archives to reproduce works that were no longer commercially available. A maximum of twelve copies could be made for non-profit uses.

Mexico also mentioned that exceptions and limitations for libraries and archives were present in its national laws. The exceptions allowed creation of copies for preservation, especially when the original had been taken out of the catalogue, had disappeared or was in a fragile state.

Ecuador said that some of the issues it wanted to consider and discuss were the subject, the number of reproductions, the format of reproductions and the circumstances in which these reproductions could be made.

India stated its Public Internet Access Programme and Information for All depended on preservation. It considered preservation important for economic development and believed it to be the foundation for intergenerational equity. Therefore, the exceptions should be wide and public interest should be the overriding factor.

Belgium stated that as in their domestic legislation, a limit on the number of copies allowed should be put in place if the purpose is preservation. Also, all exceptions should conform to the Berne three-step test. Belgium's national law did not consider works that were exhausted or out of commerce.

The Chair stated that he had prepared the introductory paragraph to the chart which mentioned that it was merely a tool to guide discussion and not a negotiating paper or a basis for the drafting exercise. The introduction encouraged evidence-based discussion without prejudging outcomes. He opened the floor for clarifications and discussions on the same.

EU thanked the Chair and stated that it wanted an agreement on what the expected outcome was before engaging in discussion. It expressed reluctance on engaging in any normative work. It stressed that there was no consensus on an international instrument. It preferred an exchange of best practices. The EU said that while a discussion on objectives and principles as proposed by the US was important, a more important exercise would be to exchange best practices and understand the rationale behind these best practices. It called for a reworking of the study by Kenneth Crews which made data more easily accessible and regrouped discussions of national studies by topic. It suggested that the WIPO Lex search database and search engine could provide for national studies even on library exceptions.

The Secretariat stated that work on the last issue was in progress and suggested that it be discussed in detail in the next session. The Secretariat also stated that it intended to organize regional seminars to provide technical assistance in this area for those who did not have exceptions yet or wanted to upgrade their laws.

Pakistan argued that the discussion was meant to include the possibility of all outcomes and not confined to any conditionality in light of the statement by EU. The Chair confirmed the same.

Nigeria, on behalf of the African Group, stated that while it was not prejudging an outcome from the discussions, it hoped that the exchange of best practices would seen as means to enhance the discussion and not as en end in itself.

Representing the Asia Pacific Group, Pakistan stated that it also did not want to prejudge outcomes but wanted to ensure that all the factual experiences were used and analyzed in a result-oriented manner. South Africa and Nigeria aligned themselves with Pakistan's position.

EU clarified that its acceptance of the chart as a tool did not mean that any outcome was acceptable or possible.

Iran aligned itself with Pakistan and South Africa.

The session on libraries and archives ended with no agreement on an international instrument.

Day 1: July 3, 2015

Agenda item 8 - Limitations and Exceptions for teaching, research, educational institutions and persons with other disabilities

Nigeria spoke first and said that the Committee should advance work on exceptions and limitations for educational and research institutions and persons with other disabilities. It reiterated that it wanted to discuss all three issues in the future sessions of SCCR.

The Central European and Baltic states group expressed interest in sharing experiences and practices regarding copyright limitations and exceptions for educational and research institutions and for persons with other disabilities.

On behalf of the GRULAC countries, Brazil welcomed the discussion on limitations and exceptions for educational and research institutions and for persons with other disabilities. It stated that there was no study on persons with other disabilities
and their relationship with limitations and exceptions and their right to culture.

The EU welcomed discussions on how copyright could support educational and research institutions and people with other disabilities in the analogue world. It stated that these exceptions could be adopted since the existing international copyright framework had adequate legal space and flexibility. It suggested that the Committee work on adopting exceptions and limitations such that national and international frameworks concur.

China, discussing its legal provisions regarding topics on the agenda, welcomed equal education and fair regulations.

Georgia, speaking on the importance of balancing the interests of copyright holders and the society, suggested that a strong and sustainable copyright system could be established through limitation and exceptions.

The US spoke about the need for exceptions and limitations for educational purposes to be consistent with international obligations. It considered collaborations with copyright industries to be essential to its education system. Firstly, it emphasized encouraging members to adopt exceptions and limitations which allowed using copyrighted works for educational purposes while ensuring a balance between rights of authors and public interest. Secondly, it encouraged the promotion of access to educational content through innovative licensing models. Thirdly, it wanted to adopt limitations and exceptions through technological learning. Finally, it included general ideals like monetary grants for non-profit education, ensuring access of copyrighted works. Owing to technological advancements and changes in the educational environment, the US welcomed the plans of WIPO to update the study on other disabilities for discussions in the Committee.

Mexico believed that education and scientific research could be encouraged by facilitating access to protected works. It also discussed executive strategies to allow the promotion of enterprises and the development of education to encourage technological innovation.

Trinidad and Tobago supported Brazil's views. It opined that the issues of limitations and exceptions for libraries and archives, and educational and research institutes are in tandem with each other.

Supporting this view, Russia stated that these issues did not have to be divided, and a single common approach could be used to resolve this conflict. It opined that it was a way of respecting the interests of authors and copyright holders, and also providing access for promoting development of science, culture and providing opportunities to citizens.

Algeria stated that the Berne Convention had established the stages for the exceptions and limitations for research and education. It argued that the exceptions and limitations should not only fulfill the needs of developing countries but other stakeholders as well. Algeria supported exceptions for research and teaching institutes.

South Africa supported a study on the challenges faced by education and research institutions and people with other disabilities, especially in the digital environment.

Sudan supported the statements of the African Group, Asia Pacific Group and GRULAC. It spoke on the need to make balanced efforts on all the issues on the Agenda to reach a consensus. In its opinion, the Marrakesh Treaty indicated that the study on exceptions and limitations and people with disabilities was required. It supported updating the study using previous studies of the International Bureau. In conclusion, it stated that libraries and archives should benefit from limitations and exceptions and should be accessible to all.

Pakistan supported the statements issued by the Asia Pacific Group, the African Group and GRULAC. It wanted time to be allocated for all three issues in future SCCR sessions. It also supported the study proposal of the African Group.

Ecuador also supported the statement of GRULAC and wished to dedicate more time to these issues in the session. It believed that all these elements, on better understanding, could help the proceedings of the committee.

Nigeria supported the intervention made by the Africa Group and the statements of Pakistan and Brazil. It considered exceptions and limitations for educational and teaching institutions, and persons with other disabilities to be important for advancement of knowledge. It highlighted the need for adjusting the international copyright system to facilitate access and usage of digital content by all.

Guatemala aligned itself with Brazil's statement. It attached importance to limitations and exceptions since it considered access to be a human right. It wanted a legal instrument covering limitations and exceptions in the digital area which considering the three-step test.

The Secretariat recalled that at SCCR 26, it had been asked to identify whether resources could be found to update the existing studies on exceptions and limitations for educational and research institutions. There were five regional studies conducted about five years ago on this topic. It reported to the Committee that it would identify the resources and start work the same year. It also sought funds in the work plan to work on it in the next bi-annum, assuming it was approved by the Member States. The Secretariat clarified that it had also been asked to look if there were resources to conduct a scoping study on the intersection of persons with other disabilities and the copyright system to understand the areas which needed to be addressed. There was an event on hearing impairment and captioning and how that intersected with this topic. There had also been a discussion on conducting additional studies and whether there would be resources for the same.

Sudan, speaking on persons with disabilities, pointed out that the same organizations which had previously tackled the subject should conduct the study since these organizations had more experience on limitations and exceptions. Sudan suggested holding seminars for direct interaction with them.

Nigeria, on behalf of the African Group, sought clarifications on whether this pertained strictly to the topics that the Secretariat had outlined - marking and scoping for persons with impaired hearing. It also wanted to know whether the captioning was for exceptions and limitations for educational and research institutions.

South Africa supported the intervention made by Nigeria.

Brazil sought further information from the Secretariat on whether it would be more efficient to have a compilation and a consolidation of the studies in one global study on the situation of exceptions and limitations under agenda item 8 than having a series of regional studies.

Japan, with regard to artists' resale rights, said that the related provision existed in the Berne Convention. However, the flexibility provided by the Berne Convention meant that the protection of resale right was left to the declaration of national laws. Japan wanted the Committee to stick with the agenda and did not support the proposal of including artists' resale rights as a new agenda item of the committee.

The US fully supported enriching the agenda, and encouraged all delegates to engage in discussions to develop it.

Chair's Summary

The Chair's draft summary was given to the regional coordinators for their inputs.. Members were free to present and reflect upon the document. But since it was the Chair's summary, he refused to enter into approval procedure for this. He suggested a set of recommendations for the Committee to discuss. The Chair advised the committee to discuss their recommendations and not the summary.

Iran raised an issue on the legal status of the summary. It pointed out that the summary had not been discussed, negotiated and approved by the Committee which went against WIPO practice.

The EU reserved the right to make comments on points of substance. These related to paragraphs that mentioned what the Committee decided, or those that mentioned individual positions taken by groups of states. It agreed with everything that was said by Japan on behalf of Group B. It also favoured the general point raised by Iran in relation to the paper carrying a disclaimer on the fact that it did not commit to the Committee in any way.

Romania, on behalf of the CEBS, expressed support for the remarks made by the Group B coordinator.

Nigeria commented on the Chair's summary as a tool for providing balance on all the concerns raised by the different regional groups. It added that even the African Group's concerns had not been reflected in the summary. However, it reiterated its confidence in the summary for the purpose of moving forward.

The Chair stated that there were fifty pages which did not appear in summary shape but did on the record shape. However a record containing different views and specific positions had been made. The Chair's view was reflected here and because it was not approved or subjected to approval by the Committee, it did not take decision on that. The Chair sought to avoid starting an exercise on common drafting of each paragraph. It invited Members to consider the approach adopted by Nigeria and some delegates from the CEBS countries without taking that as a decision of the Committee. The Chair urged members to move to the next stage of recommendations. It invited oppositions from those against this view.

The Chair distributed a separate paper to all the delegates, and a discussion was commenced to arrive at a common view for the three items on the agenda. The Chair highlighted that regarding the third topic, which was related to exceptions and limitations for educational and research institutions and persons with other disabilities, there was a mandate to deliver the Committee's recommendation to the 2015 General Assembly.

Nigeria, on behalf of the African Group, asked the Chair to have a disclaimer in the summary and set the desired precedent. It was concerned that it could lead to the Committee being extended.

Pakistan said that the Asia-Pacific Group supported text-based negotiation on agreed topics and discussions on those requiring clarification. Pakistan considered it premature to talk about the exact timing of a Diplomatic Conference which could be decided in due course after evaluating progress.

Nigeria recommended that the 2015 WIPO General Assembly direct the Committee to expedite its work towards an international legal instrument in whatever form on the topic of limitations and exceptions for libraries and archives. For agenda item 8, it recommended repetition of the same language.

Brazil, on behalf of the GRULAC group, supported the statement made by Nigeria. It supported working towards an international legal instrument in whatever form as an objective for the future work on proposed recommendation on limitations and exceptions for libraries and archives.

Pakistan, on behalf of a majority of the Asia-Pacific Group, showed support to the proposal made by Nigeria.

Iran supported the statement made by Pakistan on behalf of Asia. It pointed out that the text-based negotiations on the Treaty had not been conducted. There was also no common understanding on key issues and Articles. Iran recommended that the Committee continue its work on text-based negotiations, finding solutions for key issues and achieving consensus on key provisions in the draft Treaty. Depending on the progress of the text-based negotiations, the Committee could decide on the date for convening a Diplomatic Conference. It supported the statement made by Nigeria and Brazil, and seconded by Pakistan regarding items 7 and 8.

India supported the views expressed by Nigeria, Brazil, Pakistan and Iran on both agenda items dealing with limitations and exceptions. It suggested that the mandate of the General Assembly should reflect in the language, which was presently not the case. It sought to know the basis on which it had been decided that the Diplomatic Conference would be held in 2017 since there was no consensus of opinions yet. It suggested that the reference be left open, depending upon the two future SCCR meetings.

The Chair clarified that a recommendation without consensus could not be accepted. On observing that no Delegate requested the floor, he welcomed concluding remarks and called for closing the session.

The EU expressed disappointment on the failure to formulate a roadmap on the Treaty in 2017 and reaching a conclusion on the exception items.

Nigeria, in line with the comment made by South Africa, recommended that more effort could be made towards finalizing a language that achieves consensus.

The Chair, showing interest in the suggestion of Nigeria, expressed the desire to see whether the other delegates were keen on receiving suggestions and welcomed different views regarding this.

South Africa requested the floor and supported the statement made by Nigeria. It felt that the Committee had something on the paper and if the regional coordinators met, a consensus could be achieved.

The Chair proceeded to listening to closing remarks. The meeting closed with closing remarks by delegates.

For more details visit https://cis-india.org/a2k/blogs/report-of-the-30th-session-of-the-wipo-sccr-by-the-centre-for-internet-society

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

Fueling the Affordable Smartphone Revolution in India

sinha — 2016-03-16T15:23:43Z

Smartphones have emerged as the exemplar of mankind's quest for shrinking technologies. They embody the realization of a simple premise – that computing devices would do more and cost less. This realization has been responsible for modern society's profound transformations in communication, governance, and knowledge distribution.

The essay was published as part of the The Good Life in Asia's Digital 21st Century essay collection.

The launch of the iPhone in 2007 is often credited with ushering in an era of smartphones. Ever since, the world's best tech R&D has focused on increasing the capabilities of these devices. And as a result, less than a decade later, we have sub-hundred dollar smartphones. The low-cost smartphone has found an enthusiastic and insatiable market in developing countries, especially Asia. India is no exception to the Asian narrative – Micromax, Spice, and Lava (low cost smartphone manufacturers) are household names in the Indian smartphone market, which accounted for 65% of internet traffic in 2014 (Meeker, 2015).

The Indian Prime Minister, carrying the twin aspirations of catalyzing the growth of indigenous manufacturing and bridging the digital divide, launched the “Digital India” and “Make in India” campaigns last year. During his US visit, Google, Apple, Microsoft, Facebook extended their support to the campaigns' vision (Guynn, 2011). The campaigns outline the government's elaborate initiatives to, inter alia, bridge the digital divide and build indigenous manufacturing capacity. While all these developments bode well for the indigenous smartphone, there remain some serious concerns affecting the growth of the industry – for instance, patent infringement litigations and the absence of clear legal and regulatory solutions.

From the state of the industry and its implications, it can be concluded that: first, growing access to smartphones has been influenced by their phenomenal affordability; second, smartphones are an excellent example of technology for development (UNDP, 2001) and a facilitator of access to knowledge; and third, domestic smartphone production has occurred in an imprecise legal and regulatory environment.

This essay attempts to build an appreciation for the role that smartphones are playing in development, specifically, by fostering Access to Knowledge. Conversations around development by public-interest groups and emerging industries often espouse Access to Knowledge to address concerns in international development, communications, technology, education, and intellectual property policy. Whereas the principle can be regarded as in-theworks, two theories inform us about the role of mobile phones in fostering Access to Knowledge. Lea Sheaver's theory classifies mobile as an Access-toKnowledge good. Lea enumerates the five key components of a robust Access to Knowledge framework, viz., education for information literacy, access to the global knowledge commons, access to knowledge goods, an enabling legal framework, and effective innovation systems (Sheaver, 2007). According to her, affordability of the good is the ultimate indicator of its efficacy as an access to knowledge good. Furthermore, inventions in microchip technology, electronics manufacturing, and software need to be supported by enabling legal and policy frameworks coupled with effective innovation systems.

Yochai Benkler's framework classifies mobile-devices as both informationembedded goods and information-embedded tools (Benkler, 2006). He says, “Information-embedded goods are those goods which are ‘better, more plentiful or cheaper because of some technological advance embedded in them or associated with their production,’ such as medicines, movies, and improved crop seed. Information-embedded tools, in turn, are those technologies necessary for research, innovation, and communication of knowledge” (Benkler, 2006). A smartphone qualifies as both because it can be used to obtain knowledge, and it depends on discoveries in microchip technology, electronics manufacturing, and software to function.

To date, there has been no formal, theoretical or evidentiary investigation on the emergence of smartphones as an Access-to-Knowledge good. In the following sections, I will attempt to explain the smartphone’s dependence on an enabling legal framework and effective innovation systems (Lea's components). It must be borne in mind that globally, discussions affecting access to knowledge have aimed at creating balanced and inclusive systems related to intellectual property (Kapczynski & Krikorian, 2010). Therefore, the essay will focus on: first, the relationship between constituent mobile technologies and intellectual property as a function of production/deployment of smartphones in India; and second, the relationship between innovation and access.

Creating an Enabling Legal Framework to Foster Access to Knowledge

The adage “the only lesson you can learn from history is that it repeats itself” is worth bearing in our narrative. The emergence of the smartphones industry in Asia has commonalities with the flourishing Asian piracy trade – which remains an essential access solution for low-income societies constantly barraged by expensive western media goods. The prohibitive cost of acquiring brand-name devices (e.g. Apple, HTC, Samsung, Sony) drove local production to imitate and innovate cheaper substitutes (WIPO, 2010). This occurred within the lenient and flexible intellectual property regimes prevalent in Asian countries, which continue to be constantly criticized for their failure to enact stricter intellectual property law. The hubs of smartphone production – China, Taiwan, and India – have flexible intellectual property protection law and lax enforcement measures (Centre for Internet and Society, 2012).

Concerns of intellectual property center around patent and copyright legislation, which have yet to be fully developed to address intellectual property in high-tech industries (since trademark issues remain unchanged, they will not be discussed in the essay.) As a result, constituent smartphone technologies have been shaped and governed by a blend of formal and informal rules and legal and illegal practices. This is why they are often referred to as “gray market” technologies. A smartphone in terms of constituent intellectual property can be broadly divided into hardware and software technologies. This piece will first deal with hardware, followed by software technologies.

Hardware Technologies and Their Relationship with IP Law

Presently, most Indian manufacturers import hardware from China and Taiwan, and assemble the phones in India. A few key Indian domestic players are Maxx Mobile, Intex, Spice, and Lava, whose dominance have not gone unnoticed by foreign manufacturers. A couple of these domestic manufacturers are now embroiled in patent litigation threats or infringement suits. And as litigation piles up in Indian courts, the judiciary is slowly waking up to mobile patent litigation, but is yet to rule comprehensively. To make matters worse, the jurisdiction of the Indian antitrust regulator remains unclear, and to a certain extent overlaps with the judiciary, adding to the ambiguity. For instance, when an appellate court ruled in favor of the Swedish tech-giant Ericsson, it ordered Micromax to pay a flat 1.25 – 2% of its devices' selling price to Ericsson (Lakshane, 2015). The ruling was devoid of a more rational and reasoned approach developed by courts of other jurisdictions in similar matters, which prescribed that the infringers pay damages based on the price of the patented components only, and not the retail price of the phones. This decision risks causing a significant increase in the price of phones and potentially threatens local innovation.

The Indian government's Make in India and Digital India campaigns aim to fulfill the vision of a digitally empowered India, and the 2015 Indian Union budget also targets boosting the electronics manufacturing industry. Despite these broad initiatives, there needs to be a more focused policy in place to ensure domestic companies do not get weighed down by patent related concerns. The root cause of litigation is the vesting of a majority of critical mobile patents (Standard Essential Patents, or SEPs) by a handful tech-giants. For instance, Qualcomm owns 5700 patents around CDMA technology (qualcomm.com). In another instance, the DVD format constitutes 311 SEPs for DVD players and 272 SEPs for DVD recorders (CIS, 2012). Such a dense concentration of patents around SEPs creates a patent thicket and thereby compels Smartphone manufacturers to acquire multiple licenses, and to pay high transaction costs and huge royalties to the owner. To reduce conflict and protect domestic players from being arm-twisted into paying high royalties, the government can potentially identify critical technologies and initiate the formation of a patent pool of such technologies. The concept of a patent pool mandates that the patent holders issue licenses on fair, reasonable, and nondiscriminatory basis to interested parties. However, a nuanced and cautious approach to setting up such pools is necessary (Shapiro, 2001).

There are interesting lessons in China's steps to encourage local innovation of Smartphone hardware as well, specifically in the form of standardized technologies. The Chinese government has actively supported the development of indigenous standards to shield domestic manufacturers from royalty exposure. In fact, the China Blue High-definition Disc (CBHD) standard was built as an alternative to the Blu-ray disc and was duly adopted by the Chinese government, which reportedly caused the royalty rates for the Blu-ray format to dip. Much later, Warner Bros, Paramount, and other motion picture producers adopted the CBHD standard as well for distribution in China.

Software Technologies and Their Relationship with IP Law

Unlike hardware technology, where India is struggling to build manufacturing capacity, the success of the Indian software industry has already been realized. The software-as-a-service (SaAS) industry is led by Infosys, TCS, and Wipro in software exports. The prevailing trend in the industry since the 1980s was to assign ownership of their products to offshore clients. However, in the past decade, there has been a conscious shift by the Indian software development workforce to build products for Smartphone platforms. This is in response to the shift in local populations to accessing content and services online. Reports indicate that India has the second largest population of mobile applications developers (approx. 3 million) in the world, second only to the US (Livemint, 2015). The Indian government has recognized the potential of mobile application-based ventures and created funds to encourage app development in India (IAMAI, 2015).

Intellectual property protection around software is fairly ambiguous. A piece of code is potentially capable of gaining both patent and copyright protection. In the area of mobile application development, preliminary research findings indicate that coding occurs with an agnostic attitude towards intellectual property laws (Cassar, 2014). One of the reasons is ambiguity on a multitude of issues around the protection of software because Indian legislation on patent and copyright is frustratingly insufficient. There is a growing discontentment about long-term patent protection over software code, which could be detrimental to innovation – particularly, to the start-up segment of software industry. In more technologically advanced economies, software patenting has emerged as a scourge – last year, the US Supreme Court in Alice Corporation Pty Ltd v. CLS Bank International Et Al narrowed the eligibility of software inventions to gain patent protection. The activist discourse has shifted in favor of eliminating software patenting because of the incremental and obsolescent nature of a software invention, inter alia (Lapowsky, 2015). However, in a recent disappointing move, the Indian patent office widened the scope of patent-eligible subject matter for software-related inventions – a move that was decried by free software activists and industry alike. This widening of scope can only benefit tech-giants in building bigger patent portfolios, which is unnecessary and unhealthy for innovation by small and mid-tier entities (Sinha, 2015).

Effective Innovation Systems

Innovation ensures fresh creation of knowledge. A society cannot premise itself on the mere importation of knowledge; it must also strive to use the knowledge to meet its own local needs and environment. Innovation depends on a variety of factors – there is no singular path or factor to build an innovative and enterprising society. The patent system is often incorrectly credited with “promoting” innovation. The discourse around innovation was extremely patent-centric until studies disproved the assumptive correlation between high patenting activity and innovation. Continuing in the same vein, Lea states, “From the A2K perspective, however, relying on patents – which represent the right to exclude others from access to the innovation – is particularly problematic. Patents likely represent the segment of innovation of least value for expanding access to knowledge: improvements in the knowledge stock whose application is limited by exclusive property rights” (Shaver, 2007).

In this framework, it is also important to shed light on the growing movement of openness. Openness as a movement has been captured by various fields - Big data, software, education, media, etc. Free and Open Source Software has emerged as a key agent in information technology policy-making in India, with the Indian government adopting an open standards policy and an open software policy for its own purposes.

In the context of smartphone technologies, preliminary findings also support the shift towards openness (Huang, 2014). Industry participants have observed that openness will lead to greater benefits in private production of hardware technologies. Similarly, mobile applications developers have also voiced support of open source software (Cassar, 2014).

Conclusion

The discussion above identified a limited set of legal and regulatory concerns affecting the state of production/deployment of smartphones in India. These issues and findings are backed by preliminary research, and purport to sustain the emergence of the smartphone as an enabler of access to knowledge. The proposed solutions direct industry and the government alike to take immediate steps to fix problems impeding pervasive access to this knowledge good.

The experience of the smartphone industry with an imprecise legal and regulatory environment, akin to piracy, has thus far been a success story of affordability, quality substitution, and innovation. However, this narrative is now threatened by messy litigation, jurisdictional uncertainties between the anti-trust regulator and judicial system, SEP licensing issues, rise of software patents, inter alia. Despite these issues, the industry continues to grow. The future of access to knowledge is therefore bright, provided that stakeholders make efforts to meet the needs of this emerging industry and the public, including development and consumer interests.

References / Links / Resources

Benkler, Y. (2006). The Wealth Of Networks: How Social Production Transforms Markets And Freedom. Retrieved from http://www.benkler.org/wealth_of_networks/index.php?title=Chapter_9%2C_section_3.
Cassar, S. (2014). Interviews with App Developers: Open Source, Community, and Contradictions – Part III. Retrieved from: http://cis-india.org/a2k/blogs/interviews-with-app-developers-open-sourcecommunity-and-contradictions-iii
Cassar, S. (2014) Ambiguity in the App Store: Understanding India’s emerging IT sector in light of IP. Retrieved from http://cis-india.org/a2k/blogs/ambiguity-in-the-app-store
Centre for Internet and Society, Pervasive Technologies: Access to Knowledge in the Marketplace(2012, September). Retrieved from http://cis-india.org/a2k/pervasive-technologies-research-proposal.pdf/view
Guynn, J. (2015, September 28). Facebook, Silicon Valley like Indian Prime Minister Narendra Modi. Retrieved from http://www.usatoday.com/story/tech/2015/09/27/narendra-modi-india-facebook-markzuckerberg-google-sundar-pichai-silicon-valley/72936544/
Huang, M. (2014). [Open] Innovation and Expertise > Patent Protection & Trolls in a Broken Patent Regime (Interviews with Semiconductor Industry - Part 3). Retrieved from: http://cis-india.org/a2k/blogs/ interviews-with-semi-conductor-industry-part-3
IAMAI (2015). An inquiry into India's app economy.
Kapczynski, A., Krikorian, G., (2010). Access to Knowledge in the Age of Intellectual Property. Retrieved from: https://mitpress.mit.edu/sites/default/files/titles/free_download/9781890951962_Access_to_ Knowledge_in_the_Age_of_Intellectual_Property.pdf
Lakshane, R. (2015, September). FAQ: CIS Proposal for Compulsory Licensing of Critical Mobile Technologies. Retrieved from: http://cis-india.org/a2k/blogs/faq-cis-proposal-for-compulsory-licensing-ofcritical-mobile-technologies
Lakshane, R. (2015, February). Open Letter to Prime Minister Modi. Retrieved from: http://cis-india.org/ a2k/blogs/open-letter-to-prime-minister-modi
Lapowsky, I. (2015, February). If You Want to Fix Software Patents, Eliminate Software Patents. Retrieved from https://www.eff.org/mention/follow-wired-twitter-facebook-rss-eff-if-you-want-fix-software-patentseliminate-software
Meeker, M. (2015). 2015 Internet Trends. Retrieved from http://www.kpcb.com/partner/mary-meeker
PTI (2015). Google aims to make India a hub for app development. Livemint. Retrieved from: http:// www.livemint.com/Industry/rwWUfp30YezONe0WnM1TIO/Google-aims-to-make-India-a-hub-for-appdevelopment.html
Qualcomm Enters Into CDMA Modem Card License Agreement with Seiko Instruments Incorporated. (n.d.). Retrieved November 13, 2015, from https://www.qualcomm.com/news/releases/2000/06/20/ qualcomm-enters-cdma-modem-card-license-agreement-seiko-instruments
Shapiro, C. (2001). Navigating the Patent Thicket: Cross Licenses, Patent Pools, and Standard Setting. Innovation Policy and the Economy, 1, 119-150. Retrieved from: http://www.nber.org/chapters/c10778.pdf
Shaver, L. (2007). Defining and Measuring Access to Knowledge: Towards an A2K Index. Faculty Scholarship Series. Paper 22. retrieved from: http://digitalcommons.law.yale.edu/fss_papers/22
Sinha, A. (2015). Comments on the Guidelines for Examination of Computer Related Inventions (CRIs). Retrieved from http://cis-india.org/a2k/blogs/comments-on-the-guidelines-for-examination-of-computerrelated-inventions-cris
United Nations Development Programme, Human Development Report 2001: Making New Technologies Work for Human Development (2001). Retrieved from http://hdr.undp.org/reports/global/2001/en/
World Intellectual Property Organisation. (2010, Dec 1-2). Media Piracy in Emerging Economies: Price, Market Structure and Consumer Behavior. Retrieved from the WIPO website: http://www.wipo.int/edocs/ mdocs/enforcement/en/wipo_ace_6/wipo_ace_6_5.pdf

For more details visit https://cis-india.org/a2k/blogs/digital-asia-hub-the-good-life-in-asias-21-st-century-anubha-sinha-fueling-the-affordable-smartphone-revolution-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

Pre-Budget Consultation 2016 - Submission to the IT Group of the Ministry of Finance

sumandro — 2016-01-12T13:34:41Z

The Ministry of Finance has recently held pre-budget consultations with different stakeholder groups in connection with the Union Budget 2016-17. We were invited to take part in the consultation for the IT (hardware and software) group organised on January 07, 2016, and submit a suggestion note. We are sharing the note below. It was prepared and presented by Sumandro Chattapadhyay, with contributions from Rohini Lakshané, Anubha Sinha, and other members of CIS.

It is our distinct honour to be invited to submit this note for consideration by the IT Group of the Ministry of Finance, Government of India, as part of the pre-budget consultation for 2016-17.

The Centre for Internet and Society is (CIS) is a non-profit organisation that undertakes interdisciplinary research on internet and digital technologies from policy and academic perspectives. The areas of focus include digital accessibility for persons with diverse abilities, access to knowledge, intellectual property rights, openness (including open data, free and open source software, open standards, open access, open educational resources, and open video), internet governance, telecommunication reform, digital privacy, and cyber-security. We receive financial support from Kusuma Trust, Wikimedia Foundation, MacArthur Foundation, IDRC, and other donors.

We have divided our suggestions into the different topics that our organisation has been researching in the recent years.

Free/Libre and Open Source Software (FLOSS) is the Basis for Digital India

We congratulate the policies introduced by the government to promote use of free/libre and open source software and that of open APIs for all e-governance projects and systems. This is not only crucial for the government to avoid vendor lock-in when it comes to critical software systems for governance, but also to ensure that the source code of such systems is available for public scrutiny and do not contain any security flaws.

We request the government to empower the implementation of these policies by making open sharing of source code a necessity for all software vendors hired by government agencies a necessary condition for awarding of tenders. The 2016-17 budget should include special support to make all government agencies aware and capable of implementing these policies, as well as to build and operate agency-level software repositories (with version controlling system) to host the source codes. These repositories may function to manage the development and maintenance of software used in e-governance projects, as well as to seek comments from the public regarding the quality of the software.

Use of FLOSS is not only important from the security or the cost-saving perspectives, it is also crucial to develop a robust industry of software development firms that specialise in FLOSS-based solutions, as opposed to being restricted to doing local implementation of global software vendors. A holistic support for FLOSS, especially with the government functioning as the dominant client, will immensely help creation of domestic jobs in the software industry, as well as encouraging Indian programmers to contribute to development of FLOSS projects.

An effective compliance monitoring and enforcement system needs to be created to ensure that all government agencies are Strong enforcement of the 2011 policy to use open source software in governance, including an enforcement task force that checks whether government departments have complied with this or not.

Open Data is a Key Instrument for Transparent Decision Making

With a wider set of governance activities being carried out using information systems, the government is increasingly acquiring a substantial amount of data about governance processes and status of projects that needs to be effectively fed back into the decision making process for the same projects. Opening up such data not only allows for public transparency, but also for easier sharing of data across government agencies, which reduces process delays and possibilities of duplication of data collection efforts.

We request the 2016-17 budget to foreground the National Data Sharing and Accessibility Policy and the Open Government Data Platform of India as two key enablers of the Digital India agenda, and accordingly budget for modernisation and reconfiguration of data collection and management processes across government agencies, so that those processes are made automatic and open-by-default. Automatic data management processes minimise the possibility of data loss by directly archiving the collected data, which is increasingly becoming digital in nature. Open-by-default processes of data management means that all data collected by an agency, once pre-recognised as shareable data (that is non-sensitive and anonymised), will be proactively disclosed as a rule.

Implementation of the National Data Sharing and Accessibility Policy has been hindered, so far, by the lack of preparation of a public inventory of data assets, along with the information of their collection cycles, modes of collection and storage, etc., by each union government agency. Specific budgetary allocation to develop these inventories will be crucial not only for the implementation of the Policy, but also for the government to get an extensive sense of data collected and maintained currently by various government agencies. Decisions to proactively publish, or otherwise, such data can then be taken based on established rules.

Availability of such open data, as mentioned above, creates a wider possibility for the public to know, learn, and understand the activities of the government, and is a cornerstone of transparent governance in the digital era. But making this a reality requires a systemic implementation of open government data practices, and various agencies would require targeted budget to undertake the required capacity development and work process re-engineering. Expenditure of such kind should not be seen as producing government data as a product, but as producing data as an infrastructure, which will be of continuous value for the years to come.

As being discussed globally, open government data has the potential to kickstart a vast market of data derivatives, analytics companies, and data-driven innovation. Encouraging civic innovations, empowered by open government data - from climate data to transport data - can also be one of the unique initiatives of budget 2016-17.

For maximising impact of opened up government data, we request the government to publish data that either has a high demand already (such as, geospatial data, and transport data), or is related to high-net-worth activities of the government (such as, data related to monitoring of major programmes, and budget and expenditure data for union and state governments).

Promotion of Start-ups and MSMEs in Electronics and IT Hardware Manufacturing

In line with the Make in India and Digital India initiatives, to enable India to be one of the global hubs of design, manufacturing, and exporting of electronics and IT hardware, we request that the budget 2016-17 focus on increasing flow of fund to start-ups and Medium and Small-Scale Manufacturing Enterprises (MSMEs) in the form of research and development grants (ideally connected to government, especially defense-related, spending on IT hardware innovation), seed capital, and venture capital.

Generation of awareness and industry-specific strategies to develop intellectual property regimes and practices favourable for manufacturers of electronics and IT hardware in India is an absolutely crucial part of promotion of the same, especially in the current global scenario. Start-ups and MSMEs must be made thoroughly aware of intellectual property concerns and possibilities, including limitations and exceptions, flexibilities, and alternative models such as open innovation.

We request the budget 2016-17 to give special emphasis to facilitation of technology licensing and transfer, through voluntary mechanisms as well as government intervention, such as compulsory licensing and government enforced patent pools.

Applied Mathematics Research is Fundamental for Cybersecurity

Recent global reports have revealed that some national governments have been actively involved in sponsoring distortion in applied mathematics research so as to introduce weaknesses in encryption standards used in for online communication. Instead of trying to regulate key-length or mandating pre-registration of devices using encryption, as suggested by the withdrawn National Encryption Policy draft, would not be able to address this core emerging problem of weak cybersecurity standards.

For effective and sustainable cybersecurity strategy, we must develop significant expertise in applied mathematical research, which is the very basis of cybersecurity standards development. We request the budget 2016-17 to give this topic the much-needed focus, especially in the context of the Digital India initiative and the upcoming National Encryption Policy.

Along with developing domestic research capacity, a more immediately important step for the government is to ensure high quality Indian participation in global standard setting organisations, and hence to contribute to global standards making processes. We humbly suggest that categorical support for such participation and contribution is provided through the budget 2016-17, perhaps by partially channeling the revenues obtained from spectrum auctions.

For more details visit https://cis-india.org/openness/pre-budget-consultation-2016-submission-to-the-ministry-of-finance

4th Global Congress on IP and the Public Interest: Statement of Conclusion for the IP and Development track

nehaa — 2015-12-25T02:22:52Z

The 4th Global Congress on Intellectual Property and the Public Interest was held from December 15 to 17, 2015 in New Delhi. This post provides a summary of the event.

This was also published on the Global Congress blog.

Wrap up note 1: Feedback on broad discussion in the IP and Dev track – set of collected key points:

This year, the discussions included attention to broad perspectives on clarifying the meaning and reality of open collaborative innovation, as well as significant focus on the sub-themes of economic development (innovation and software patents, clean technologies, climate change and green patenting, issues of branding and plain packaging); sustainable development (agriculture and geographic indicators [GI]); policy, law and regulation (role of governments, patenting, compulsory licensing [CL], global institutions [particularly WTO, WIPO and WHO] and national institutions [particularly patent offices]). Trade dominated the discussions across the IP and Dev track, including the TPP and other issues, reflecting the strong global trade agenda.

Missing areas in the track papers, workshops and panel discussions included the limited discussion on traditional knowledge (TK); the work of indigenous groups and how they are navigating the IP landscape; biodiversity; biotech and food security; innovation in the nanotechnology sphere; and inclusive development. Accessibility to innovations for low-income households, and accessibility to innovations at the country level needs greater attention. These topics can be brought out more strongly, more directly.

The value of building research networks to create explicit knowledge and coherence in research-based evidence for advocacy and policy-making was made visible in the workshop session presented by Open AIR, with the Open AIR network as the exemplar. The challenge is to translate the kinds of research and evidence presented at the GC into content and value for policy-making and trade negotiations.

Wrap up note 2: Value of the deliberations and future research:

This is a new track in the GC, introduced in 2015. It is an important track for this and future Global Congresses because it brings together the many strands of research, advocacy and other work that are related to topics in innovation, IP and development, but which are not specifically about openness, user rights or A2M. This is a very broad range of fields of study, from agriculture to nanotechnology. It was proposed that the track be renamed “Innovation and Development” to more explicitly describe its focus.

From this GC, it has become clearer what future topics may be considered for papers and other inputs into the IP and Dev track. Such topics include counter-narratives to mainstream IP perspectives; bringing IP for development in multiple sectors to the fore – in education; in automotive manufacturing; in technology evolution; in agricultural production and food security; in the broad policy, law and regulatory environment pertinent to these and other sectoral perspectives. For example, in the paper on green patenting, reference was made to Tesla and Toyota releasing patents, but the session did not get to discuss that. The papers presented at the 4th GC suggest many areas of focus for future research and future GCs – perhaps the best way to think about this exploration is through greater attention to innovation in a range of social and economic sectors; to consider the particular challenges of innovation, IP and development in LDCs; to study innovation ecosystems and where IP fits in these ecosystem. Cross-track sessions are also considered to be very important because of the knowledge sharing that takes place across sectors, for example the discussions on patent wars in the access to medicines (A2M) track provided food for thought with respect to emerging issues in the software sector.

Wrap up note 3: Ideas and implications of GC sessions for future directions for research, collaborations and next GC:

For the next GC, mobilization is required across various geographic regions and a significant discussion is required on preparation and design of the sub-themes, based on the notes above. The requirement for more evidence-based research was noted. It was recommended that the future name of the track should be Innovation and Development. The core group, comprised of track leaders and sessions chairs, should continue the leadership of the track from GC to GC, bringing additional interested persons on board, in particular with respect to the design of sub-themes well in advance of the 5th GC, to guide prospective submissions.

Ends.

For more details visit https://cis-india.org/a2k/blogs/4th-global-congress-on-ip-and-the-public-interest-statement-of-conclusion-for-the-ip-and-development-track

Guidelines for Examination of Computer Related Inventions in abeyance

sinha — 2015-12-23T10:06:53Z

The CRI Guidelines were heavily criticised for their failure to address the ambiguities created by Section 3(k) and for expanding the scope of software patent eligibile subject-matter, inter alia. Following several representations and submissions by interested stakeholders, the Controller General has moved the Guidelines into abeyance, until discussions with stakeholders are complete and contentious issues are resolved, and is a welcome step.

CIS has consistently made submissions to the Indian Patent Office on the issue of software patenting( 2015, 2013, 2010). The latest submission was made in September 2015, in response to the Guidelines for Examination of Computer Related Inventions, 2015(“CRI Guidelines/ Guidelines”) in which we highlighted several concerns and presented solutions, and also proposed a definition of "computer programme per se".

In view of the representations made to the Patent Office, on 14th December 2015, the Controller General issued an order to keep the Guidelines in abeyance. Till the issues therein are resolved, the existing provisions on S. 3(k) of chapter 08.03.05.10 of the Manual of Patent Practice and Procedure will continue to be applicable.

The primary fault with the Guidelines lay in the fact that, legally, its scope of was in excess of section 3(k) of the Indian Patent's Act, 1970 (parent statute). The Controller General's order acknowledging the representations and submissions made in response to the Guidelines, and consequently keeping the Guidelines in abeyance is a welcome step.

You may access the order here.

For more details visit https://cis-india.org/a2k/blogs/guidelines-for-examination-of-computer-related-inventions-in-abeyance

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

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 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

Intellectual Property Rights & TRIPS: An Overview

Job Michael Mathew — 2016-01-31T05:54:02Z

The Uruguay Round of multilateral trade negotiations of the General Agreement on Trade and Tariff began in 1986 with a Ministerial Deceleration in Punta del Este.

One of the 13 subjects for negotiation in Part I of the declaration dealing with trade in goods was the mandate on Trade Related Intellectual Property Rights (TRIPS). The essence of the mandate was to develop an effective and adequate standard of protection of intellectual property rights and a multilateral framework of principles, rules and disciplines dealing with international trade in counterfeit goods. The agreement laid the architecture for a uniform global treatment of IPR by providing for minimum standards of IP protection, national enforcement mechanisms and dispute settlement mechanisms.

GATT and IPR

Article IX: 6 was the only provision in the GATT that specifically dealt with the protection and promotion of IP. The Article dealt with distinctive regional or geographical names and did not lay down any standards of protection but rather called on States to corporate with each other on its protection. The first attempt at addressing questions of IPR within the GATT framework was made by the United States in 1978 towards the end of the Tokyo Round of multilateral trade negotiations. The focus at this point of time was to develop a plurilateral agreement on trade in counterfeit goods. No progress was made on this front due to lack of support from any country/bloc apart from the EC.The matter was raised again in the 1982 Ministerial meeting and the Ministerial Declaration included an instruction to the GATT council to look into the question of counterfeit goods and the appropriateness and modalities of joint action within the GATT framework to counter the same. The expert group constituted pursuant to the Ministerial Declaration called for enhanced international action to tackle the problem of trade in counterfeit goods but stopped short of agreeing that GATT was the right forum for this. The preparations for the Uruguay Round in 1986 arrested any further progress by the expert group, even as active efforts were made to include IP in the Round.

IPR in the Uruguay Round

The United States was the major force behind the inclusion of IP in the Uruguay Round. Ineffective protection of US IP abroad was thought to be undermining the competitiveness of the US industry by both the US Government and industry. The objective was to evolve substantial standards of protection of IP in other countries along with effective enforcement mechanisms. This objective had earlier found expression in the US Trade and Tariff Act of 1984 which states explicitly that adequate foreign IP protection is a major US objective in trade negotiations.

In the initial stages of the Uruguay Round it was only US and Japan that were at the forefront for the inclusion of IPR’s in the mandate of negotiations. As a consequence of this, the first two years of the TRIPS Negotiating Group was an effort towards clarifying its negotiating mandate. The United States wanted the mandate to extend to substantive standards of protection of IP and internal enforcement; other developed countries were measured in their response. In particular, EC had an ambivalent stand at the beginning due to the added complication of distribution of competences between member states as EC institutions now had exclusive competence in GATT related matters. However as negotiations proceeded industrialized countries including Australia, Canada, Switzerland, New Zealand and the Nordic countries joined the pro IP bandwagon recognizing their shared interests in the deal. Even as industrialized countries were on one page in relation to the need for substantial IP protection to be part of multilateral trade rules there were still differences among them on the scope of protection of certain IPRs and with respect to special measures for developing countries such as transition periods , ‘pipeline protection’ and compulsory licensing. The underlying consensus on the need for IP protection within the GATT framework among these countries ensured that differences as noted above did not end up derailing the agreement.

Developing countries on the other hand were apprehensive about the inclusion of IPR within the GATT framework. The reasons for such a stand include, the belief that the mandate of GATT should not extend beyond ‘goods’, that such an inclusion will intrude into the domestic policy space of these countries and adversely affect their sovereignty in pursuing socio-economic policies according to their own needs and finally that there was nothing to be gained from undertaking obligations when 99% of the global patents and other forms of IP are owned by industrialized countries. However in the midterm review meeting held at Montreal in 1988 it started to appear that some of these developing countries shifted their stand in favour of inclusion of IPR in the GATT framework. This change in stand was not due to any new found clarity on the need for stricter and stronger IP protection at a global level. The future of multilateral trading system and the market access it secured came to be linked with the success of the Uruguay Round and a successful completion of TRIPS agreement was increasingly seen as a prerequisite for such an outcome. This belief was buttressed by the fact that the WTO agreement created new trade rights and did not incorporate pre-existing rights of the GATT with the result that any Government not joining it would lose the rights they enjoyed prior to the agreement. There was growing acceptance that refusing to deal with IP within the GATT will lead to a situation where developing countries will have to address it through bilateral agreements where the balance of power is further skewed in favour of developed countries. Further the potential benefits the agreement could bring in, in the fields of agriculture and textile was becoming clearer. Most importantly developing countries believed that using their collective bargaining power they could build into the agreement adequate flexibilities which will achieve a better balance of the interests of the developed and developing world.

Inherent Flexibilities in TRIPS

Although the mandate of TRIPS was to evolve a uniform global IP system with minimum standards of protection and effective enforcement mechanisms it does include a number of flexibilities that facilitate development and protection of public interest. In 1990 even as negotiations were in full swing to iron out differences between developed and developing countries , a draft TRIPS agreement was tabled by industrialized countries the focus of which was minimum protection , enforcement mechanisms and dispute settlement measures. In response to this draft, developing countries proposed their own draft legal text which aimed to maintain some flexibility in the agreement to allow countries to implement economic and social development objectives. The idea that was being emphasized was that intellectual property is not an end in itself and its objective should be the overall benefit of society as opposed to mere private benefit. These concerns of the developing countries found expression in Article 7 and 8 of the TRIPS of the agreement.

Article 7 and 8 of the agreement explicitly provide the important objectives and principals that need to be considered in the interpretation of the Agreement. Article 7 sets out the objective of the agreement to be promotion of technological innovation, transfer and dissemination of technology, production and use of technological knowledge while giving due attention to social and economic welfare. Article 8 gives countries the freedom to amend their laws to protect public health, nutrition and to promote public interest. Further, the preamble of the agreement recognizes underlying public policy objectives of countries in the protection of intellectual property rights which include developmental and technological objectives. A combined reading of Article 7, 8 and the Preamble of the agreement ‘in good faith in accordance with the ordinary meaning given to the terms of the treaty’ reveals that the agreement shows due deference to the domestic policy considerations of member countries. Thus even though TRIPS had its genesis in the strategic interests of the developed world , by the time the agreement was agreed and entered into , the developing world by virtue of its collective bargaining power had managed to incorporate certain flexibilities to make the agreement a more balanced framework for the protection and promotion of intellectual property.

For more details visit https://cis-india.org/a2k/blogs/intellectual-property-rights-trips-an-overview

India - Europe Conference on Building a Sustainable IPR - ICT Ecosystem for Promoting Innovation

praskrishna — 2015-12-22T02:48:04Z

Centre for Development of Advanced Computing (C-DAC), Pune organized a one-day conference in Bangalore on November 20, 2015. Rohini Lakshané attended this event.

Intellectual property is at the core of business ventures and critical to successfully compete internationally. However, skills to commercialize technological innovations remain a crucial impediment to innovative entrepreneurs and innovators aspiring to become world leaders in global ICTE markets. A robust IPR-ICT ecosystem can help capitalize on the growth-enhancing effects of innovation vis-à-vis ICTE. In order to fulfill the aspiration of its stakeholders, the IPR-ICT ecosystem has to be global in geographic scope, spearhead shaping appropriate framework conditions for innovation and assist in charting out policy roadmaps for sustainable and inclusive growth.

With this in mind Deity and EPO is working together in developing a close cooperation to promote IPR in ICTE domain, especially with respect to sharing of best practices and procedures for filing and processing ICTE patents in India and Europe by Indian and European firms.

The one day conference on “India-Europe Conference on Building a Sustainable IPR-ICT Ecosystem for Promoting Innovation” organised by Centre for Development of Advanced Computing (C-DAC), a premier R&D organisation, aims to address the challenges in building a sustainable global IPR-ICT ecosystem, discuss IP policy issues relevant to Indian and European ICTE industries and concord on various nuances of patenting technology and activities with an ICTE perspective.

Sessions

Parallel 1

11.00 - 13.00: Challenges and Opportunities in Building a Sustainable Global IPR Ecosystem for Promotion of Innovation in ICTE Sector
14.00 - 15.30: IPR Policy Perspective for Promoting Innovation -India and Europe

Parallel 2

14.00 - 15.30: Standard Essential Patent Issues and Perspective with regard to ICTE
15.45 - 17.15: Patent Information and Analysis: A Tool for Building Business Strategies

For more information and brochure of the event, visit this website.

For more details visit https://cis-india.org/a2k/news/india-europe-conference-on-building-a-sustainable-ipr-ict-ecosystem-for-promoting-innovation

National IPR Policy: Mapping the Stakeholders’ Response

Akshath Mithal — 2015-11-24T15:02:17Z

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

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

I. Introduction

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

II. Research Methodology

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

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

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

III. Stakeholders - A Statistical Analyis

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

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

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

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

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

IV. IP - Innovation / Growth Nexus

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

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

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

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

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

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

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

V. International Treaties

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

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

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

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

VI. Utility Models

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

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

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

VII. Public Funded Research Labs and Universities

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

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

VIII. Limitations and Flexibilities

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

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

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

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

IX. Trademarks

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

X. Trade Secrets

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

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

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

XI. On Specialised Courts

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

XII. Conclusion

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

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

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

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