Centre for Internet and Society

WIPO Delegates Hear Concerns of NGOs on Exceptions for Libraries

praskrishna — 2014-12-27T14:40:05Z

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

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

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

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

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

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

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

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

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

Industry, Creators: International Instrument Superfluous

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

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

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

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

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

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

Libraries, Archive Underline Inadequacies, Support Treaty

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

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

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

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

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

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

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

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

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

praskrishna — 2014-12-27T14:33:46Z

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

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

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

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

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

Harmonisation

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

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

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

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

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

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

Implementation Issues

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

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

Cross-Border Exchange, TPMs

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

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

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

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

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

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

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

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

Licensing Agreements

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

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

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

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

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

Countries Provide Clarifications, New Legislations

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

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

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

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

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

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

NGO Questions and Comments

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

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

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

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

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

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

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

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

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

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

[Update:]

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

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

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

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

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

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

29th Session of the WIPO SCCR: CIS Intervention : Questions to Prof. Kenneth Crews on his Updated Study on Limitations and Exceptions for Libraries and Archives

nehaa — 2014-12-14T02:56:46Z

Nehaa Chaudhari on behalf of the Centre for Internet and Society (CIS) on December 11 during one of the sessions in WIPO asked two questions to Prof. Kenneth Crews.

In 2008, WIPO commissioned a study on Limitations and Exceptions for Libraries and Archives.This was prepared by Prof. Kenneth Crews. On December 10-11, 2014, at SCCR 29, Prof. Crews presented an updated (2014) version of this study and addressed comments and questions from Member States and Observers.

CIS Statement:

Thank you, Madam Chair.

Thank you very much, Professor Crews for your presentation yesterday, and for this comprehensive study on Limitations and Exceptions for Libraries and Archives, very timely, and very important to us, from the perspective of access to knowledge and information.

I have two questions:

My first question: Did you find, in your examination, that, in terms of/ or on the question of limitations and exceptions, did you find, that there was an equal or equitable treatment of digital resources in comparison to resources available in more traditional formats? And if not, where do you think that lever of change lies to ensure that fair dealing provisions are extended equitably to the digital environment as well?

My second question, is on the interoperability of Limitations and Exceptions: Given that copyright is a very national thing, and, as your study has also well established, countries have a whole range of very diverse approaches and practices on Limitations and Exceptions; but also given that we live in an increasingly globalized world, we need a system that is interoperable with respect to the trans-boundary movement of works, with as little friction as possible, both- in the physical as well as in the digital environments. So, what did your examination show us of how interoperable- or not- the range of Limitations and Exceptions actually are?

Those are my two questions.

Thank you very much.

Response by Prof. Kenneth Crews:

Thank you very much. On the second question, I'm afraid I might mind myself only repeating some of the concepts that have already said about transborder and really about in the statutes anyway, a lack of recognition of transborder. And the transborder concept, so I will add this piece to the conversation, the transborder concept seldom if ever appears in these library exceptions to the extent that we are going to find it in copyright law or some other part of a national law it may very well be over in the import/export kind -- area of the law. But that also goes to the interoperability which think we have answered a few times just this sort -- the lack of exact harmonization and as others have reminded me I have said before that I may not be a fan of exact precise harmonization and indeed it may not be possible or even desirable. But some degree of harmonization can help with that interoperability. Interesting question, you do -- you did raise a new point about digital. We have talked several times in this conversation about use of digital technologies in the exercise of the rights of use under the exception. However what I think you were asking about is the ability to apply the exception to works that are digital in the first place that are what we call born digital and that's a very interesting question. The statutes do not address that. Sometimes you will see a statute that refers to -- that says it applies to all these different kinds of works but not computer software. That tells you somebody was thinking it shouldn't apply to software but somehow software is different and there are problems with that. We know that software has changed and been incorporated in to many different works. But we generally see a statute almost always see a statute that's about books or archival materials or some other kind of work without specifying the technology. So can it apply to an e-book in addition to the paper book? The statutes don't go there. They don't sort that out. So in my common law tradition I look at that and see that as a question for interpretation. In a civil code system I might look at it and see it a little bit more firmly for lack of a better word about what the scope of that word book, for example, really means.

Really good question. And it is one that the statutes have not picked up on.

Thank you very much.

For more details visit https://cis-india.org/a2k/blogs/cis-intervention-questions-to-prof-kenneth-crews-on-limitations-and-exceptions-for-libraries-and-archives

SCCR 29 Libraries, Archives and Public Interest NGOs in Q&A with Dr. Crews

praskrishna — 2014-12-27T16:54:58Z

While the many publishers representatives took the floor to explain that there are truly no problems with limitations and exceptions for libraries and archives (and anyway according to them if there are problems that can be solved with licenses), libraries & archives as well as public interest groups make their case: the committee must continue its work on limitations and exceptions for libraries and archives and find solutions.

This blog entry was published on the website of Knowledge Ecology International on December 11, 2014.

Here are excerpts from some of the interventions:

Hasmik Galstyan, Yerevan, Armenia speaking for the Electronic Information for LIbraries (eIFL.net):

>> EIFL: I'm speaking on behalf of the electronic information for libraries and that works with libraries and library con sort Sha in more than 60 developing and transition economy countries. We thank the Secretariat for commissioning the updated study that provided a comprehensive overview in the IP law. We thank professor crews for his clear presentation.
The report contains positives and negatives from our Point of View. The positives include the fact that law makers are to some degree responding to the need for legal change and a small number of countries have over the last six years created new exceptions especially with regard to digital services. These changes are to be commended. On the other hand, it is discouraging that 18% of countries including five EIFL partner countries have new exceptions for libraries and over one-third located almost totally in the developing world still do not have an exception allowing libraries to make copies of their works for the users. The trend regarding digital library services doesn't look good. Even for states that introduce amendment 2008 digital is barred in 50% in some cases for preservation and it states with anti-circumvention protection while some have applied library exceptions as mentioned by professor crews half of the countries have provided no library exceptions. So while a small number of countries are moving ahead and reforming their copyright laws the digital divide is being perpetuated at a time when libraries everywhere are adopting new technologies and Developing Countries are rapidly moving to mobile. My question is how can the situation be addressed. How can WIPO as an UN agency with a commitment to work with Developing Countries to enhance their participation in the global innovation economy most effectively support countries to be at the forefront of digital developments. To ensure that our libraries that are working hard to support education and development are not operating with one hand tied behind our backs.

My second question is considering that between 2008 and 2014 only a handful of countries have been implemented made changes benefitting libraries and their users and imagining that the current rate of support for a change stays the same, how long do you think it will take before all WIPO Member States have exceptions good enough to support library activities in the Digital Age? And the last question, please. Libraries collections contain materials of unique cultural and historical significance to people in other countries to the national border changes shared languages and a host of other reasons. In addition collaboration among researchers today is international. Therefore libraries increasingly need to send and receive information across borders. In our examination of copyright laws how do they accommodate or not these activities? Thank you very much.

The libraries representatives were echoed by archives representatives. William Maher, University of Illinois at Urbana-Champaign, representing the Society of America Archivists.

Thank you for producing a study that brings such clarity to the quite confusing maze of the laws that librarians and archivists must work with. Archives has been mentioned a lot over the past couple of days but I am only the second archivist to be addressing this issue at SCCR. Archivists know that the general populations does not understand what archives are and how and why we do what we do. However, it seems reasonable that those who draft copyright laws should understand that archives are fundamentally about the unpublished legacy of humankind. Yet, when looking at the 70 or so countries in the 2014 study, archives are seriously overlooked–Despite whatever minimal improvement for libraries, archives have been left out of 53% of the exceptions for preservation and 72 % of the exceptions for copying for research. Is this absence of provisions also reflected in the fact that the laws lack definitions of archives? Can this oversight be read as meaning that archives do not matter to the nations copyright system, or does it mean that copyright should not matter to archives?
>> KENNETH CREWS: Well, thank you very much. Yes, I think you have also heard me speak very strongly about the distinct interests of archives and maybe I should say even more important the distinct interests of our citizens in archives and in the works that they are -- the work that they are doing. And their ability to use these copyright provisions for the benefit of the country and of its citizens. I certainly can't emphasize that enough. So I -- I'm not going to read in to the lack of reference to archives. The kind of meaning that you are asking about. But instead I think we can certainly say that it makes you wonder if archives have been recognized by the drafters of many of these statutes and if in the case of following through on the example of the models influencing domestic law it really is have archives come to the attention of the individuals who have been responsible for developing some of the models. So I believe very strongly that the future statutes in individual countries and the drafting of different kinds of instruments or models that may come from WIPO or any other organization need to encompass archives. And the -- because the preservation and research access and other kinds of beneficial uses of archival material goes directly to the preservation of the culture and the history of our countries and our people. And it is vital that we be able to do that and keep archives at the table. And I thank you very much for being here.

Another stakeholder, Nehaa Chaudhari, Lawyer, Programme Officer at the Centre for Internet and Society questioned Dr. Crews on provisions regarding digital works:

CIS: Thank you Madame Chair. Thank you very much professor crews for your presentation yesterday and this comprehensive study on libraries and archives. Very timely and very important to us from the [...] access to knowledge and information most critically.
I have two questions. My first question: did you find in your examination that in terms of or on the question of limitations and exceptions did you find that there was an equal or equitable treatment of digital resources in comparison to resources available in more traditional formats? And if not, where do you think that are lever of change lies to ensure that fair use of fair dealing provisions are extended e equitably to the digital environment as well.

My second question is on the interoperability of limitations and exceptions. Given that copyright is a very national thing and as your study has also well established countries have a whole range of veridy veers approaches and practices on limitations and exceptions. But also given the fact that we live in an increasingly globalized world we need a system that is interoperable with respect to the transboundary movement of works with as little fiction as possible. Again both in the physical as well as in the digital environments. So what did your examination show of how interoperable or not the range of limitations and exceptions actually have. Those are my two questions. Thank you very much.

> KENNETH CREWS: Thank you very much. On the second question, I'm afraid I might mind myself only repeating some of the concepts that have already said about transborder and really about in the statutes anyway, a lack of recognition of transborder. And the transborder concept, so I will add this piece to the conversation, the transborder concept seldom if ever appears in these library exceptions to the extent that we are going to find it in copyright law or some other part of a national law it may very well be over in the import/export kind -- area of the law. But that also goes to the interoperability which think we have answered a few times just this sort -- the lack of exact harmonization and as others have reminded me I have said before that I may not be a fan of exact precise harmonization and indeed it may not be possible or even desirable. But some degree of harmonization can help with that interoperability. Interesting question, you do -- you did raise a new point about digital. We have talked several times in this conversation about use of digital technologies in the exercise of the rights of use under the exception. However what I think you were asking about is the ability to apply the exception to works that are digital in the first place that are what we call born digital and that's a very interesting question. The statutes do not address that. Sometimes you will see a statute that refers to -- that says it applies to all these different kinds of works but not computer software. That tells you somebody was thinking it shouldn't apply to software but somehow software is different and there are problems with that. We know that software has changed and been incorporated in to many different works. But we generally see a statute almost always see a statute that's about books or archival materials or some other kind of work without specifying the technology. So can it apply to an e-book in addition to the paper book? The statutes don't go there. They don't sort that out.

So in my common law tradition I look at that and see that as a question for interpretation. In
a civil code system I might look at it and see it a little bit more firmly for lack of a better word
about what the scope of that word book, for example, really means. Really good question. And it is one that the statutes have not picked up on. Thank you very much.

Finally, the TransAtlantic Consumer Dialogue (TACD) representative David Hammerstein made the following political and philosophical intervention:

Thank you very much. Thank you Mr. Crews for your presentation. I would like to say a few general words. Internet and the digital obviously is global. Copyright laws are national. Economic power is global. Politics is national. This is very relevant to our discussion.
And other relevant factor is that copyright law and the idea of exceptions and limitations are very complicated. It is for small circles of specialists usually and when these things come out in to the open to the greater public opinion things change radically. I can only remind peep of this room for the debate on ACTA or the debate for SOPA and PIPA in the United States. When these issues come out of the closet things are seen in a very, very different light. The opinion of copyright specialist especially where I know in the European Union and totally different with the opinions of the general public. And the general public the vast majority are frustrated by copyright law because social reality that applies de facto and I am not talking about piracy, I am talking about de facto flexibilities and exceptions and limitations are very, very far from the legal reality of the copyright. The vast majority of Europeans would like to have a harmonized and mandatory exceptions and limitations that we are speaking about, whether it be more text and data mining, whether it be for libraries whether it be cross-border, whether it be preservation of cultural heritage, they would like that. Now the opinions of the often of political structures are captured by certain experts and very special groups that are interested in what they want. Especially the European Union is at a cross roads and we can see it politically because around a year ago the European Union launched a process called lnss for Europe where some of the ideas presented by some of the industry people were brought up memorandums of understanding and that the solution to exceptions and limitations for these issues could be found in voluntary measures between stakeholders. This was a failure. This was a terrible failure. We had letters many many many Nobel Prize winners who are asking tore a legal exceptions and limitations for text and data mining for other scientific research and we think that many orphan works legislation does not go far enough. Et cetera, et cetera, self generated user content. How can that Democratic debate take place and these cross roads can be made a positively by real decisions. And I think those real decisions have to be deal with the public dough minute yon, what is public knowledge and things about the commons, we are talking about the knowledge commons here need to have a democratic debate and need to have democratic management. Now this could be done by very delayed mediation to end up in the hands of a few copyright experts that are very close to very narrow industry that I think is defending outdated models or we could open a democratic debate where exceptions and limitations for libraries and archives for preservation for scientific limitation would be beyond borders. Even inside the European Union today it is almost hard to imagine there to be harmonization in the internal market. And the people making money prefer a fragmented market even though European site sents want a harmonized market for these things. My question is impossible question. I am sorry to put you on spot of how to open up the door, how to bring this issue out of the closet and how to involve millions of people who really want that change. Thank you very much

For more details visit https://cis-india.org/a2k/news/knowledge-ecology-international-sccr-29-december-11-2014-libraries-archives-public-interest-ngos-q-a-with-dr-crews

CIS Submission to the Expert Committee: Comment on the Broadening of Definitions in the Proposed Broadcast Treaty Compared to Other International Conventions

Amulya Purushothama and Nehaa Chaudhari — 2015-09-03T02:08:34Z

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

Special thanks to CIS intern, Amulya Purushothama for her research and writing on this subject. While Amulya was acknowledged as the co author in the actual submission itself, the blurb didn't say so and this has now been changed. Download the file of CIS submission here.

Introduction

This note analyses the differences in definitional clauses across six documents, the proposed Treaty on the Protection of Broadcasting Organisations [1] ("Broadcast Treaty"), the Proposal on the Draft Treaty on the Protection of Broadcasting Organization- The Proposal by the Delegation of South Africa[2] ("Proposal by South Africa"), The WIPO Copyright Treaty, 1996, the WIPO Performances and Phonograms Treaty,1996 ("WPPT"), the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, 1961 ("The Rome Convention"), and the Beijing Treaty on Audiovisual Performances, 2012 ("The Beijing Treaty")

The definitions for signal, broadcasting, broadcasting organization, retransmission, fixation, communication to the public and rights management information will be studied in detail as the definitions for these concepts has varied somewhat through the years. The rest of the definitions can be found in a detailed table that follows.

The argument here is simply that by subtly broadening the definition of certain terms, the broadcast treaty grants a higher level of protection to broadcasting organization, and that these protections could possibly extend to covering the content underlying the signals.

1. Signal

The proposed Broadcast Treaty defines a signal as an "electronically generated carrier consisting of sounds or images or sounds and images or representations thereof whether encrypted or not"[3], the alternative to this provision defines a signal as an "electronically generated carrier capable of transmitting a broadcast cablecast"[4]. The proposal by South Africa, on the other hand, defines a signal as "an electric current or electromagnetic field used to convey data". Clearly the definition in the Broadcast Treaty could be extended to cover the content underlying the signal and is not as technologically neutral as the alternative definitions.

2. Broadcasting

The proposed Broadcast Treaty defines broadcast as the "transmission of a signal by a broadcasting organization for reception by the public"[5], an alternative to this excludes signals sent over computer networks from the definition of a broadcast, [6] another alternative defines broadcasting as "the transmission by wireless means for the reception by the public of sounds or of images or of images and sounds or of the representations thereof". This definition includes satellite transmission, wireless transmission of encrypted signals where the means for decrypting are provided to the public by the broadcasting organization or with its consent. Transmission over computer networks is excluded from this definition as well.[7] This mirrors definitions of broadcasting set out in the WPPT[8], the Rome Convention[9] and the Beijing Treaty[10]. The proposal by South Africa defines "broadcasting" as the process whereby "the output signal of a broadcasting organization is taken from the point of origin, being the point where such signal is made available in its final content format and is conveyed to any broadcast target area by means of electronic communications" and "broadcast" is construed accordingly. Clearly the proposed definition under the Broadcast Treaty is less technologically neutral as compared to the proposal by South Africa. The proposed definition under the Broadcast Treaty also does not limit the protection granted by the treaty to the signal and unlike the proposal by South Africa does not ensure that definition excludes the underlying content being transmitted by the signal.

3. Broadcasting Organisations

The proposed Broadcast Treaty defines a broadcasting organization as "the legal entity that takes the initiative for packaging assembling and scheduling program content for which it has, where necessary, been authorized by rights holders and takes the legal and editorial responsibility for the communication to the public of everything which is included in its broadcast signal." Or alternatively[11], considers broadcasting organisations and cablecasting organisations as one and the same and defines them as "the legal entity that takes the initiative and has the responsibility for the transmission to the public of sounds or of images or of images and sounds or of the representation thereof and the assembly and scheduling of the content of the transmission." The proposal by South Africa defines a broadcasting organization as the "legal entity that has the responsibility for packaging, assembly and/or scheduling of program content for which it has legitimate license. Or rights of use for the transmission to the public, sections of the public or subscribers in the form of an unencrypted or encrypted output signal containing sounds, visual images or other visible signals whether with or without accompanying sounds". Clearly, in stark contrast to the proposed Broadcast Treaty, the proposal by South Africa ensures that cablecasting organisations aren't included within the definition of broadcasting organisations, this definition is also by far the most technologically neutral and ensures adequate protection for broadcasting organisations on all broadcasting platforms.

4. Retransmission

The proposed Broadcast Treaty defines "retransmission" as "the transmission by any means by any person other than the original broadcasting organization for reception by the public whether simultaneous or delayed";[12] or alternatively defines rebroadcast as "the simultaneous transmission for the reception by the public of a broadcast or a cablecast by any other person than the original broadcasting organization"; even simultaneous transmission of a rebroadcast is understood to be a rebroadcast under this definition. [13]

Under a further alternative[14] retransmission is defined as "the simultaneous transmission for the reception by the public by any means of a transmission … by any other person than the original broadcasting or cablecasting organization" this definition of retransmission also includes simultaneous transmission of a retransmission.

To contrast to this, the Rome convention defines rebroadcasting as the simultaneous broadcasting by one broadcasting organization of the broadcast of another broadcasting organization.[15] Clearly a higher level of protection is granted to broadcasting organisations under the proposed Broadcast Treaty, one that was so far not guaranteed to them by international conventions.

5. Fixation

The proposed Broadcast Treaty defines fixation as "the embodiment of sounds or images or sounds and images or representations thereof from which they can be perceived , reproduced or communicated through a device" [16] [17],the WPPT defines fixation as "the embodiment of sounds, or of the representations thereof, from which they can be perceived, reproduced or communicated through a device";[18] and the Beijing Treaty defines audiovisual fixation as "the embodiment of moving images, whether or not accompanied by sounds or by the representations thereof, from which they can be perceived reproduced or communicated through a device".[19] In this capacity, the definitions proposed in the Broadcast Treaty seem to be in line with the earlier international treaties.

6. Communication to the Public

The proposed Broadcast Treaty defines communication to the public as "any transmission or retransmission to the public of a broadcast signal or a fixation thereof by any medium or platform".[20]or alternatively as "making the transmissions … audible or visible or audible and visible in places accessible to the public.[21] Whereas the WPPT defined communication to the public as "the transmission to the public by any medium, otherwise than by broadcasting, of sounds of a performance or the sounds or the representations of sounds fixed in a phonogram… including making the sounds or representations of sounds fixed in a phonogram audible to the public."[22] The Beijing Treaty defined communication to the public as "the transmission to the public by any medium otherwise than by broadcasting, of an unfixed performance or of a performance fixed in an audio visual fixation… "communication to the public" includes making a performance fixed in an audiovisual fixation audible or visible or audible and visible to the public." [23] Clearly the definition has been broadened under the proposed treaty, which makes it plausible for the protection granted to broadcasters to cover the content underlying the signal as well.

7. Rights Management Information

The proposed Broadcast Treaty defines rights management information as "information that identifies the broadcasting organization, the broadcast, the owner of any right in the broadcast, or information about the terms and conditions of use of the broadcast and any numbers or codes that represent such information when any of these items of information is attached to or associated with the broadcast or the pre broadcast signal or its use in accordance with Article 6."[24] The WIPO Copyright Treaty, 1996, defines it as "information which identifies the work, the author of the work, the owner of any right in the work, or information about the terms and conditions of use of the work, and any numbers or codes that represent such information, when any of these items of information is attached to a copy of a work or appears in connection with the communication of a work to the public."[25]

The WPPT extends the same definition to performances and performers as it defines rights management information as "information which identifies the performer, the performance of the performer, the producer of the phonogram, the phonogram, the owner of any right in the performance or phonogram, or information about the terms and conditions of use of the performance or phonogram, and any numbers or codes that represent such information, when any of these items of information is attached to a copy of a fixed performance or a phonogram or appears in connection with the communication or making available of a fixed performance or a phonogram to the public."[26] And the Beijing Treaty defines rights management information as "information which identifies the performer, the performance of the performer or the owner of any right in the performance or information about the terms and conditions of use of the performance, and any numbers or codes that represent such information, when any of these items of information is attached to a performance fixed in an audiovisual fixation."[27]

Clearly the current treaty extends the protection offered to rights management information to pre-broadcasting signals in addition to broadcast signals, this represents a higher level of protection granted to broadcasters under the proposed Broadcast Treaty.

Detailed Table on Definitions in International Treaties

Definition	Broadcast Treaty 27/2 rev	Broadcast Treaty Proposal by South Africa WIPO/CR/Consult/GE/11/2/2	WIPO Copyright Treaty, 1996	WIPO Performances and Phonograms Treaty,1996	Rome Convention, 1961	Beijing Treaty on Audiovisual Performances, 2012
Signal	Article 5, Alternative A, 5(a): "signal" is an electronically generated carrier consisting of sounds or images or sounds and images or representations thereof, whether encrypted or not; Alternative to (a), "signal" means an electronically generated carrier capable of transmitting a broadcast or cablecast	"signal" is an electric current or electromagnetic field used to convey data;
Broadcast	Article 5, Alternative A : Article 5 (b): "broadcast" means the transmission of a signal by or on behalf of a broadcasting organization for reception by the public; Alternative to (b): "broadcast" means the transmission of a set of electronically generated signals by wireless and carrying a specific program for reception by the general public, broadcast shall not be understood as including transmission of such a set of signals over computer networks. Alternative B for Article 5, Article 5 (a) "broadcasting" means the transmission by wireless means for the reception by the public of sounds or of images or of images and sounds or of the representations thereof; such transmission by satellite is also "broadcasting". Wireless transmission of encrypted signals is "broadcasting" where the means for decrypting are provided to the public by the broadcasting organization or with its consent. "broadcasting" shall not be understood as including transmissions over computer networks	"broadcasting" means the process whereby the output signal of a broadcasting organization is taken from the point of origin, being the point where such signal is made available in its final content format and is conveyed to any broadcast target area by means of electronic communications and "broadcast" is construed accordingly"		Article 2(f): "broadcasting" means the transmission by wireless means for public reception of sounds or of images and sounds or of the representations thereof; such transmission by satellite is also "broadcasting"; transmission of encrypted signals is "broadcasting" where the means for decrypting are provided to the public by the broadcasting organization or with its consent;	Article 3 (f): "broadcasting" means the transmission by wireless means for public reception of sounds or of images and sounds;	Article 2(c): "broadcasting" means the transmission by wireless means for public reception of sounds or of images and sounds or of the representations thereof; such transmission by satellite is also "broadcasting", transmission of encrypted signals is "broadcasting where the means for decrypting are provided to the public by the broadcasting organization or with its consent.
Broadcasting Organization	Article 5, Alternative A to Article 5 (c): "broadcasting organization" means the legal entity that takes the initiative for packaging assembling and scheduling program content for which it has, where necessary, been authorized by rights holders and takes the legal and editorial responsibility for the communication to the public of everything which is included in its broadcast signal. Alternative B for Article 5, Article 5 (c): "broadcasting organization" and "cablecasting organization" mean the legal entity that takes the initiative and has the responsibility for the transmission to the public of sounds or of images or of images and sounds or of the representation thereof and the assembly and scheduling of the content of the transmission.	"broadcasting organization" means the legal entity that has the responsibility for packaging, assembly and/or scheduling of program content for which it has legitimate license. Or rights of use for the transmission to the public, sections of the public or subscribers in the form of an unencrypted or encrypted output signal containing sounds, visual images or other visible signals whether with or without accompanying sounds.
Retransmission	Article 5, Alternative A to Article 5(d): "retransmission" means the transmission by any means by any person other than the original broadcasting organization for reception by the public whether simultaneous or delayed; Alternative to (d) rebroadcast means the simultaneous transmission for the reception by the public of a broadcast or a cablecast by any other person than the original broadcasting organization; simultaneous transmission of a rebroadcast shall be understood as well to be a rebroadcast. Alternative B for Article 5, Article 5 (d): "retransmission" means the simultaneous transmission for the reception by the public by any means of a transmission referred to in provisions (a) or (b) of this article by any other person than the original broadcasting or cablecasting organization; simultaneous transmission of a retransmission shall be understood as well to mean a retransmission.				Article 3(g): "rebroadcasting" means the simultaneous broadcasting by one broadcasting organization of the broadcast of another broadcasting organization.
Fixation	Article 5, Alternative A to Article 5 (e) "fixation" means the embodiment of sounds or images or sounds and images or representations thereof from which they can be perceived , reproduced or communicated through a device Alternative B for Article 5, Article 5 (f) "fixation" means the embodiment of sounds or of images or of images and sounds or of the representations thereof from which they can be perceived, reproduced or communicated through a device.			Article 2(c): "fixation" means the embodiment of sounds, or of the representations thereof, from which they can be perceived, reproduced or communicated through a device;		Article 2(b): "audiovisual fixation" means the embodiment of moving images, whether or not accompanied by sounds or by the representations thereof, from which they can be perceived reproduced or communicated through a device.
Communication to the Public	Article 5, Alternative A to Article 5 (f): "communication to the public" means any transmission or retransmission to the public of a broadcast signal or a fixation thereof by any medium or platform. Alternative B for Article 5, Article 5 (e): "communication to the public" means making the transmissions referred to in provisions (a), (b) or (d) of this article audible or visible or audible and visible in places accessible to the public.			Article 2(g): "communication to the public" of a performance or a phonogram means the transmission to the public by any medium, otherwise than by broadcasting, of sounds of a performance or the sounds or the representations of sounds fixed in a phonogram. For the purposes of Article 15, "communication to the public" includes making the sounds or representations of sounds fixed in a phonogram audible to the public.		Article 2(d): "Communication to the public of a performance means the transmission to the public by any medium otherwise than by broadcasting, of an unfixed performance or of a performance fixed in an audiovisual fixation. For the purposes of Article 11, "communication to the public" includes making a performance fixed in an audiovisual fixation audible or visible or audible and visible to the public.
Pre-broadcast Signal	Article 5, Alternative A to Article 5 (g): "pre broadcast signal" means a transmission prior to broadcast that a broadcasting organization intends to include in its program schedule, which is not intended for direct reception by the public
Rights Management Information	Article 5, Alternative A to Article 5 (h) "rights management information" means information that identifies the broadcasting organization, the broadcast, the owner of any right in the broadcast, or information about the terms and conditions of use of the broadcast and any numbers or codes that represent such information when any of these items of information is attached to or associated with the broadcast or the pre broadcast signal or its use in accordance with Article 6.		Article 12(2): "rights management information" means information which identifies the work, the author of the work, the owner of any right in the work, or information about the terms and conditions of use of the work, and any numbers or codes that represent such information, when any of these items of information is attached to a copy of a work or appears in connection with the communication of a work to the public	Article 19(2): "rights management information" means information which identifies the performer, the performance of the performer, the producer of the phonogram, the phonogram, the owner of any right in the performance or phonogram, or information about the terms and conditions of use of the performance or phonogram, and any numbers or codes that represent such information, when any of these items of information is attached to a copy of a fixed performance or a phonogram or appears in connection with the communication or making available of a fixed performance or a phonogram to the public.		Article 16(2): "rights management information" which identifies the performer, the performance of the performer or the owner of any right in the performance or information about the terms and conditions of use of the performance, and any numbers or codes that represent such information, when any of these items of information is attached to a performance fixed in an audiovisual fixation.
Transmission	Article 5, Alternative A to Article 5 (i), "transmission" means the sending for reception by the public of visual images sounds or representations thereof by the way of an electronic carrier	"electronic communications" means the emission, transmission or reception of sounds , visual images or other visible signals whether with or without accompanying sounds by means of magnetism, radio or other electromagnetic waves, optical electromagnetic systems or any agency of a like nature, whether with or without the aid of tangible conduct.
Program	Article 5, Alternative A to Article 5 , alternative to (j), "program" means a discreet package of one or more works protected by copyright or related rights in the form of live or recorded material consisting of images, sounds or both.
Cablecast	Article 5, Alternative A to Article 5 (k) "cablecast" means the same as "broadcast" when the transmission is by wire and excluding transmission by satellite or over computer networks. Alternative B for Article 5, Article 5 (b): "cablecasting" means the transmission by wire for the reception by the public of sounds or of images or of images and sounds or of the representations thereof. Transmission by wire of encrypted signals is "cablecasting" where the means for decrypting are provided to the public by the cablecasting organization or with its consent. "cablecasting" shall not be understood as including transmissions over computer networks.
Performers				Article 2(a) :"performers" are actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in, interpret, or otherwise perform literary or artistic works or expressions of folklore	Article 3(a): "performers" means actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in, or otherwise perform literary or artistic works;	Article 2(a): "performers" are actors, singers, musicians, dancers, and other persons, who act, sing, deliver, declaim, play in, interpret or otherwise perform literary or artistic works or expressions of folklore.

[1] See Working Document for a Treaty on the Protection of Broadcasting Organisations, Prepared by the Secretariat, Standing Committee on Copyright and Related Rights, 27^th Session, Geneva, April 28- May 2, 2014, SCCR/27/2/REV. (Hereafter The Broadcast Treaty.)

[2] The Proposal on the Draft Treaty on the Protection of Broadcasting Organisations, Proposal by the Delegation of South Africa, Informal Consultation Meeting on the Protection of Broadcasting Organisations, Geneva, April 14 and 15, 2011, WIPO/CR/Consult/Ge/11/2/2. (Hereafter, The South African Proposal)

[3] Article 5, Alternative A, 5(a), the Broadcast Treaty.

[4] Article 5, Alternative A, Alternative to (a), The Broadcast Treaty.

[5] Article 5, Alternative A, Article 5 (b), The Broadcast Treaty.

[6] Article 5, Alternative A, Alternative to (b), The Broadcast Treaty.

[7] Alternative B for Article 5, Article 5 (a) The Broadcast Treaty.

[8] See Article 2(f) of the WIPO Performances and Phonograms Treaty, 1996.(Hereinafter, WPPT) that reads as: "broadcasting" means the transmission by wireless means for public reception of sounds or of images and sounds or of the representations thereof; such transmission by satellite is also "broadcasting"; transmission of encrypted signals is "broadcasting" where the means for decrypting are provided to the public by the broadcasting organization or with its consent"

[9] See Article 3 (f) of the Rome Convention, 1961 (Hereafter The Rome Convention), that reads as: '"broadcasting" means the transmission by wireless means for public reception of sounds or of images and sounds.'

[10] See Article 2(c) of the Beijing Treaty on Audiovisual Performances, 2012(Hereafter The Beijing Treaty), that reads as '"broadcasting" means the transmission by wireless means for public reception of sounds or of images and sounds or of the representations thereof; such transmission by satellite is also "broadcasting", transmission of encrypted signals is "broadcasting where the means for decrypting are provided to the public by the broadcasting organization or with its consent.'

[11] Alternative B for Article 5, Article 5 (c) The Broadcast Treaty.

[12] Article 5, Alternative A to Article 5(d) The Broadcast Treaty.

[13] Alternative to Article 5(d), The Broadcast Treaty.

[14] Alternative B for Article 5, Article 5 (d), The Broadcast Treaty.

[15] Article 3(g), The Rome Convention, 1961.

[16] Article 5, Alternative A to Article 5 (e), The Broadcast Treaty.

[17] Alternative B for Article 5, Article 5 (f), The Broadcast Treaty.

[18] Article 2(c), WPPT.

[19] Article 2(b), The Beijing Treaty

[20] Article 5, Alternative A to Article 5 (f), The Broadcast Treaty.

[21] Alternative B for Article 5, Article 5 (e), The Broadcast Treaty.

[22] Article 2(g), WPPT.

[23] Article 2(d), The Beijing Treaty.

[24] Article 5 (h), The Broadcast Treaty.

[25] Article 12(2), The WIPO Copyright Treaty, 1996.

[26] Article 19(2), WPPT.

[27] Article 16(2), The Beijing Treaty.

For more details visit https://cis-india.org/a2k/blogs/the-broadening-of-definitions-in-the-proposed-broadcast-treaty-compared-to-other-international-conventions

29th Session of the WIPO SCCR: CIS- 2nd (brief) Intervention on the Broadcast Treaty

nehaa — 2014-12-12T11:56:14Z

On Day 3 (December 10, 2014), the SCCR briefly re-convened at the Plenary. The Chair, Martin Moscoso updated the Committee on the discussions and the developments that had taken place over the course of the past two days in the Informals. The Centre for Internet and Society made a brief pointed intervention on one of the documents being discussed in the Informals.

Note: The documents cannot be made public yet. They were shared with Observers and Member States (even those that did not participate in the Informals) on the condition of maintaining confidentiality.

Nehaa Chaudhari on behalf of CIS made the following statement:

Thank you, chair.

First on the making available these documents, we would like to echo what CCIA and KEI said- we would also like to see the informal papers made public, so that we can have a more informed discussion on these issues.

Second, very briefly, on some of the rights to be granted- in one of the Informal Discussion Papers laid out, in -- in the third column, which are essentially fixation and post fixation rights, just very briefly, that whatever is done in any case after the signal is fixed is already covered by copyright law and we find it frightening and we see little sense in providing two sets of incompatible, and overlapping rights- copyright, that is already existing, and a sort of a para-copyright (that this treaty seeks to create) for the same underlying content.

Thank you, Mr. Chair

For more details visit https://cis-india.org/a2k/blogs/wipo-sccr-29-cis-second-brief-intervention-on-broadcast-treaty

SCCR 29: Public Interest Organizations Statements regarding the Broadcasting Treaty

praskrishna — 2014-12-27T16:44:18Z

Also presented during the afternoon plenary, here are 3 statements by public interest organizations, the TACD, EFF and CIS:

The article was published in Knowledge Ecology International on December 9, 2014.

TACD: Thank you very much the transAtlantic consumer dialogue is concerned that the discussion on this treaty whereas in the past due to the lack of definitions we called it an unidentified flying object, now, as the definitions get a bit clearer, we feel it's becoming a more identified flying object in the air as a transmission and precisely because it's becoming identified some of these definitions we consider are concerning us and we are worried about these definitions because we think these definitions and these protections of rights could mean a threat to access to culture, a threat even to freedom of speech, and a threat to the public domain. And we are talking about a public domain, about public broadcasting signals.
And we think these threats are coming from a scope that is much broader than is recommendable. It is a scope that could take into account a lot of the digital rights that millions of young people around the world are fighting for and defending. And I think this sensitivity of digital rights of mixing, of the type of things that go on every day millions of times on the Internet should not be threatened by this treaty. So how can we avoid that? We could avoid that by avoiding any post fixation rights.

We could avoid it by a very narrow definition of simultaneous or near simultaneous traditional broadcasting signals to the public in the air. We could -- broadcasting should mean, similar to the Rome Convention, the transmission by wireless over the air means for public reception of sounds, of images and of words.
As well, what is a signal? What is a signal? A signal obviously could not just mean everything. A signal means an electronically generated carrier over the air with sounds and images, and what we really need, what we really need is to narrow down the scope to a point where we don't see this as something that can be a threat to the creativity, innovation, new business models at a time when we know that the new business models need that flexibility, what we don't need is yet another layer of bureaucratic costly rights that will be burdensome for the future of the Internet.

So for that reason, for consumers, for Internet users, for culture, for new innovation, we would like really to call for this very narrow definition of the scope. Thank you very much.

The call for a narrow based possible treaty was echoed by EFF https://www.eff.org/deeplinks/2014/12/danger-post-fixation-rights-wipo-b...

>> Electronic frontier foundation: This year marks the tenth anniversary of EFF discussions over the WIPO treaty for broadcasting organisations. And during that time our position has been constant that any such treating should be limited to addressing the unauthorized simultaneous and near simultaneous retransmission of traditional broadcast untiles to the public without assigning new exclusive rights in the content of those signals. We also note it would be possible to include a right to prohibit the transmission of prebroadcast signals within a snail based approach and without assigning any new exclusive rights. Although this has been [decided?] in the past when WIPO dwed at the 2007 assembly to follow a signal based approach. Current discussions on post fixation rights have backtracked from this commitment and it's that more than anything else that has led these negotiations to become more protracted.
Creating new exclusive rights in post broadcast fixations would impede access to public domain material and material over which copyright limitations and exceptions may apply. This is because some material may not be readily available other than from broadcasts such as in the case of broadcast of sport or use events. It would impede the use of technological innovations that add val you to broadcast. Especially if it curtailed the use of circumvention devices this could affects digital media players and new innovations we can't even envision yet especially those running on free and open source marredware and software. So EFF urges WIPO members to be disciplined in their add harns to a narrow signal based approach as we see this as the only way that a treaty for broadcasting ors organisations can be conclude in 2015 or at all. Thank you.

The CIS made a technical analysis of the "charts" that cannot (yet) be provided to the public also here: http://cis-india.org/a2k/blogs/wipo-sccr-29-cis-intervention-on-proposed...

> CIS: Thank you, Mr. Chair. This intervention will be based on your chart detailing the concepts corresponding to the various definitions we are discussing here today. We believe that there are certain elements to these concepts that are inconsistent with the broadcast treaty based on a signals based approach and over the course of the next few minutes, I would like to briefly discuss these.
First, Mr. Chair, in the first column, and broadcasting or cable casting organisation in the traditional sense where communication of the signal has been listed under the scope of responsibility. Mr. Chair, as we have submitted in other statements before this community, before this committee, communication itself we believe is a concept that is an element of copyright, and it's distinction broadcast rights char related rights. A signal, Mr. Chair, we, therefore, believe could be broadcast or transmitted and accordingly under the element that deals with the scope of responsibility, we are of the money opinion that it should read broadcast or transmission of the signal and not communication of the signal, and the focus should not be communication to the public.

A concept that's also been discussed in certain alternatives to the definitions under Article 5 which accordingly we would loss not favor. Second, Mr. Chair, in the second column in broadcasting and cable casting transmission, we have three observations. Fist, under the means of transmission, we believe the transmission over computer networks is wide enough to encompass IP based tran missions and, therefore, should be excluded in order for the treaty to be consistent with the signals based approach.

Second, on the reception of the broadcast or cable cast prance mission, we believe that it should be qualified using the phrase general public. We are of the opinion that there is a danger that a limited public, say, family members, could be covered under the term public but would be excluded from the term general puck public which in any case is the targeted audience of a broadcast. Third, Mr. Chair, on whether the transmission would be encrypted or not, which also flows into the thought column on the signal, and whether the signal itself is encrypted or not, encrypted or not.

And which would also then relate to whether broadcasting organisations will have the right to prevent unauthorized decription. Mr. Chair, we don't think there should be a separate right to prevent unauthorized decription. Given that signal theft is a crime, having a spect decription might result in an absurdity where it would cover decrypting and unauthorized retransmission without authorization from the retransmitter where the transmission by the retransmitter was illegal to begin with.

Finally, Mr. Chair, in the third column and on the meaning of the signal, we submit that our preferred definition would be one where the definition of a signal is confined, and is understood as an electronically generated carrier transmitting a broadcast or a cable cast and not one which has the capability of such transmission as has been stated in your third chart.

For more details visit https://cis-india.org/a2k/news/knowledge-ecology-international-sccr-29-public-interest-organizations-statements-regarding-the-broadcasting-treaty

29th Session of the WIPO SCCR: CIS Intervention on the Proposed Treaty for the Protection of Broadcasting Organizations

nehaa — 2014-12-12T11:55:51Z

The Centre for Internet and Society (CIS) made its intervention on the proposed treaty in the ongoing WIPO session on December 9, 2014.

Nehaa Chaudhari on behalf of CIS made the following statement:

Thank you, Mister Chair.

This intervention will be based on the chart detailing the ‘Concepts’ corresponding to the Definitions. We believe that certain elements of these concepts are inconsistent with a broadcast treaty based on a signals based approach; and over the course of the next few minutes, I will briefly discuss these.

First, Mr. Chair in the first column- on broadcasting or cablecasting organizations (in the traditional sense); where communication of the signal has been listed under scope of responsibility. Mr. Chair, ‘communication’ itself is an element of copyright and is distinct from broadcast rights that are related rights. A signal, Mr. Chair, may be broadcast or transmitted. Accordingly, Mr. Chair under the element of Scope of Responsibility, we are of the opinion that it should read Broadcast or Transmission of the signal and not communication of the signal; and the focus should not be at regulating communication to the public.

Second, Mr. Chair, in the second column- on broadcasting and cablecasting transmission- we have three observations. First- under the means of transmission, we believe that transmission over computer networks encompasses IP based transmissions, and should be excluded, in order for the treaty to remain consistent with a signals based approach. Second- on the reception of the broadcast or cablecast transmission, we believe that it should be qualified using the phrase ‘general public’. We are of the opinion that there is a danger that a limited public (say family members) could possibly be covered by the term “public”, but would be excluded from “general public”; which in any case is the targeted audience of a broadcast. Third, Mr. Chair, on whether the transmission would be encrypted or not- which also flows into the third column on the Signal- and whether it is encrypted or not; which then also relates to whether broadcasting organizations will have the right to prevent unauthorized decryption. Mr. Chair, we don’t think that there should be a separate right to prevent unauthorized decryption. Given that signal theft is already a crime, having a specific right to prevent unauthorized decryption might result in an absurdity, where it could even cover decrypting an unauthorized retransmission without authorization from the retransmitter.

This provision might result in an absurdity, where it would cover decrypting an unauthroised retransmission without authorization from the retransmitter, where the retransmission in the first instance was illegal to begin with.

Finally, Mr. Chair, on the third column and the meaning of signal- we submit that our preferred definition would be where the definition of a signal is confined, and it understood as an electronically generated carrier transmitting a broadcast or cablecast and NOT one which has the capability of such a transmission, as stated in the third column in your Chart on concepts.

Thank you, Mr. Chair.

For more details visit https://cis-india.org/a2k/blogs/wipo-sccr-29-cis-intervention-on-proposed-treaty-for-protection-of-broadcasting-organizations

National IPR Policy Series : Comments on the Proposed Intellectual Property Rights Policy to the Department of Industrial Policy and Promotion

nehaa — 2015-04-12T11:39:16Z

On 13 November, 2014, the Department of Industrial Policy and Promotion had released a Call for Suggestions for India's proposed National IPR Policy. This is the Centre for Internet and Society's (CIS) submission for the same.

Submitted by CIS with inputs from Pranesh Prakash, Director, Nehaa Chaudhari, Programme Officer, Anubha Sinha, Programme Officer and Amulya P., Intern. Click to view the PDF.

I. Preliminary

I.1. This submission presents comments from the Centre for Internet and Society ("CIS")[1] on the proposed National Intellectual Property Rights Policy ("National IPR policy") to the Department of Industrial Policy and Promotion, Ministry of Commerce and Industry, Government of India. ("DIPP").

I.2. CIS commends the DIPP for this initiative, and appreciates the opportunity to provide comments on the National IPR Policy. CIS' comments are as stated hereafter.

II. Principles

II.1.1. The characterization of intellectual property rights may be two- fold- first, at their core, intellectual property rights, are temporary monopolies granted to inter alia, authors and inventors; and second, they are a tool to ensure innovation, social, scientific and cultural progress and further access to knowledge. This dual nature and purpose of intellectual property protection is particularly critical in developing economies such as India. Excessive intellectual property protection could result in stunted innovation and negatively impact various stakeholders. [2] It is therefore our submission that the development of the IPR Policy be informed by broader principles of fairness and equity, balancing intellectual property protections with limitations and exceptions/user rights such as those for research, education and access to medicines.

II.1.2. These comments will evaluate the recent developments in the intellectual property regime in India and point out instances for possible reform.

II.1.3. These comments have been divided into five sections, dealing with patents, openness, open access to scholarly works, copyright, and negotiating free trade agreements in that order.

III. Detailed Comments

III.1. Patents

III.1.1. Key Issues Regarding Patents

III.1.1.1. The key issues involving patents in India include compulsory licensing, uncertainty in software patenting, slow pace of examination of patent applications, inter alia.

III.1.1.2. CIS submits that the Indian intellectual property regime contains numerous safeguards to ensure that monopolies of intellectual property are not exercised to the detriment of the public and that the National IPR Policy should continue to reflect these ideals.

III.1.2. Software Patents and Dual Monopoly

III.1.2.1. Presently, software in India may be copyrighted and computer related inventions are patentable. CIS is of the opinion that this results in an ambiguity that could potentially result in a dual monopoly over the same subject matter. This ambiguity around the legality of software patents and the scope of patents on computer related inventions has existed since the Parliament introduced the term "per se" to section 3(k) through the Patent (Amendment) Act, 2002, persisting despite repeated attempts[3] to bring about clarity in the law (the most recent one being the Draft Guidelines on Computer Related Inventions, released in 2013 by the Indian patent office).

III.1.2.2. CIS believes that software is currently adequately protected under copyright, and does not merit patent protection. The software industry in its infancy grew by leaps and bounds in the absence of patents, and imposing twenty year monopolies is stunting the development of software, especially, in an industry where technology changes every two to five years.

III.1.2.3. Therefore, CIS is of the opinion that the National IPR Policy should recognise the danger of software patenting, and encourage the adoption of and development of alternatives to a strict intellectual property regime, for instance, Free/Open Source/Libre Software.

III.1.3. Compulsory Licensing of Patents

III.1.3.1. CIS believes that the current regime allowing for compulsory licensing of patents in India helps achieve a balance between the two concerns of rewarding inventions and making them available to the public during times of need, of the rights of the patent holder with his obligations to ensure availability of products at a reasonable price by allowing third parties who do not own the patent to license the use of the patent during the term of protection.[4] CIS believes that such a balance cannot be arrived at merely by market mechanisms. CIS further believes that achieving such a balance is important for a developing country like India as we have special concerns regarding access to healthcare and access to technologies that will protect our national interest.[5]

III.1.3.2. Therefore CIS submits that the National IPR policy should continue to make positive allowances for government involvement in this space, through the compulsory licensing of patents in certain situations.

III.1.4. Alternative Licensing Mechanisms

III.1.4.1. CIS believes that government participation in the patenting regime ensures that all interests are taken on board and the social costs of patents are kept in mind. CIS is of the opinion that the National IPR policy should be formed after careful consideration of alternative patent licensing mechanisms that could help achieve a balance between the interests of different stakeholders particularly because as a developing economy we have greater needs for access to medicines and technologies to ensure economic development.[6]

III.1.4.2. On patent pools: In the interests of ensuring development of technology and innovation while balancing the social costs of patents, CIS submits that the National IPR Policy should consider alternative licensing mechanisms such as patent pools which present an efficient legal arrangement to the different problems that arise when companies have complementary intellectual property rights and these rights are essential to new technologies being used and employed[7]. Such a licensing could be done with government participation to ensure standard royalty rates and standard agreements.

III.1.4.3. On tailoring patent strengths: Our patent system provides for a one size first all approach to patent terms. CIS believes that the National IPR Policy could suggest the adoption of a more studied approach to differential patent strengths that properly balances out the benefits of the innovation against social costs of patents both in the form of monopoly pricing and threats to subsequent pricing is required to ensure that our patent system is fair equitable and in our national interest.[8]

III.1.4.4. On royalty caps: CIS believes that the National IPR policy could encourage bringing back royalty caps for certain sectors as a means of regulating the market and ensuring that access to technologies is unharmed. CIS believes that this will serve the larger national interest and ensure technological development.[9]

III.2. Openness

III.2.1. Free and Open Source Software

III.2.1.1. Free and Open Source Software ("FOSS") has emerged as a key agent in information technology policy making in India. There has been an increased importance of free and open source software in education, governmental agencies, as recently demonstrated by the Indian Government's decision to shift to open source software, in sync with the Digital India initiative.[10]

III.2.1.2. CIS believes that the IPR policy should encourage free and open software in education, governmental agencies etc. CIS believes that this shift in open source software is necessary to keep our IPR policy in sync with developments in the digital world.

III.3. Open Access to Scholarly Works

III.3.1. Open Access Policies and Scientific and Scholarly Works

III.3.1.1. The benefits of implementing an open access policy with regard to scientific and scholarly works are manifold. Providing open access to scholarly research will ensure percolation of cutting edge research into the society. It has been often argued that restricted access to government funded research is unethical, since scientific research conducted by government agencies is partly, if not entirely, funded by the taxpayers' money.

III.3.1.2. Government Initiatives Towards Open Access

III.3.1.2.1. CIS believes that the steps taken in this regard by the Department of Biotechnology and Department of Science to make scientific research publicly available by developing an open access policy are laudable, especially from the view of increasing access to research undertaken at these institutions.

III.3.1.2.2. There are several other government agencies which have implemented open access policies, namely, the Council of Scientific and Industrial Research, Indian Council of Agricultural Research and Institute of Mathematical Sciences. CIS believes that this is step in the right direction

III.3.1.2.3. Copyright is the key instrument to effect open access policies. CIS believes that the work should be appropriately copyrighted to allow for free and open access to any interested person.

III.4. Copyright

III.4.1. Exceptions for Fair Dealings

III.4.1.1. The 2012, Amendment Act extended fair dealing exceptions in several ways; to sound recordings, videos, to the making of three dimensional works from two dimensional works,[11] to storing of electronic copies at non-commercial public libraries, [12] to rights of commercial rental.[13] While the Act touched upon some of the burning issues with regard to limitations and exceptions to copyright, CIS believes that it did miss out on laying down clear rules for issues like exceptions for educational institutions, libraries and archives which is currently being negotiated at the standing committee of the WIPO as an international instrument,[14] parallel importation of books for non-commercial libraries, and extending the current exceptions for education to distance education and digital education. CIS is of the opinion that while this was a step in the right direction the IPR policy should continue the trend of extending exceptions for fair dealing and should encourage forming general guidelines for fair dealings as it would help achieve goals of education and scientific and cultural progress.

III.4.1.2. CIS believes that it would be beneficial if general guidelines for fair dealing were provided for. These guidelines must not take away from existing fair dealing exceptions under the law, but should act as a framework to understand what constitutes fair dealing. CIS submits that this coupled with support for the International Treaty for Limitations and Exceptions for Libraries and Archives[15] and for International Treaty for Limitations and Exceptions for Educational and Research Institutions [16]would help serve national interest as it would help reduce the freezing effect by reducing the costs of using copyrighted work legitimately and ensure social and cultural progress. CIS submits that the National IPR policy should encourage the international instruments aimed at providing for exceptions and limitations for fair dealings.

III.4.2. Exceptions for Government Produced Works

III.4.2.1. CIS believes that the current exceptions for use of government produced works are far too limited and taxpayers must be free to use the works that they have paid for.[17] CIS submits that the National IPR policy should encourage the broadening of exceptions with regard to government produced works.

III.4.3. Compulsory Licensing

III.4.3.1. The Act allowed for compulsory licensing of foreign works[18] and put in place statutory licenses for broadcasters[19] CIS believes that this was a positive step that will encourage cultural and scientific education in India. CIS submits that compulsory licenses for copyrighted works help achieve goals of education, of scientific and cultural progress. CIS submits that the National IPR policy should encourage compulsory licensing of copyrighted works in certain situations for the promotion of access to knowledge and information.

III.4.4. Protection of Authors/ Performers Rights

III.4.4.1. The Act allowed for protection of author's rights regarding storing of their work in electronic medium[20] and for protection of rights of performers both commercial [21] and moral.[22] CIS believes that while this is in itself a positive step, there is need to ensure that such moral rights are not abused by authors or rights holders to stop discourse or to stop fair use and adequate measures to ensure the same must be put in place to avoid excessive intellectual property rights. CIS submits that the National IPR policy should discuss limitations to moral rights of authors and performers to make room for fair dealings.

III.4.5. Users Rights Regarding Cover Versions Of Songs

III.4.5.1. The Act allows for users to make cover versions of a sound recording required provided they comply with rules regarding notices and royalties. CIS believes that this is potentially problematic as even recording companies have acknowledged that the non-commercial cover versions help in increasing the popularity of the original and therefore help in the growth of the film and music industry and this new law could possibly stop individuals from making such cover versions due to fear of violating the law and therefore harm the film and music industry. Therefore, CIS believes that the National IPR policy should consider measures to provide more rights to the users in order to ensure development of the music and film industry; CIS believes that this is an instance of excessive intellectual property and is harmful to all stakeholders involved.

III.4.6. Relinquishment of Copyright and Creative Commons

III.4.6.1. The amended Section 21 of the Act now only requires a simply public notice from the author to relinquish his copyright as opposed to an application to the registrar of copyrights. CIS believes that this is a positive step as now the requirement under the rules can easily be satisfied by using a Creative Commons Zero license.[23] CIS submits that the National IPR policy should undertake similar steps to encourage the usage of creative commons licenses and thereby facilitate access to knowledge.

III.4.7. Term of Protection of Copyrights

III.4.7.1. The Act provided for an extension of term of copyright for photographs to almost double its earlier duration, [24] CIS believes that this is possibly harmful as it could lead to copyrighted works not entering the public domain for unnecessarily long periods of time and thereby harm progress in science and culture. In this regard CIS further believes that since the term of protections provided under our copyright law for all works extends beyond our international obligations, The National IPR policy should try to ensure that scientific and cultural development are not hindered by excessive terms of protection that go beyond the minimum owed under our international obligations.

III.4.8. Protection Of Rights Management Information

III.4.8.1. The amendment Act provided for protection of rights management information (RMI) and provided for both criminal and civil remedies in instances of unauthorised alteration or removal of RMIs.[25] CIS believes that these provisions are unnecessary as India does not have obligations to do so under international treaties and there is no actual demand for these rights as it is yet unclear how these rights help authors or performers. CIS submits that these provisions increase the costs for users who want to legitimately break these digital locks to obtain accessible formats for the information and that so long as the rights holder does not have an obligation to ensure that their works are accessible, provisions such as these cripple creativity and stunt industry growth.[26] Therefore CIS submits that the National IPR policy should help achieve a balance of concerns of users who want to legitimately break these digital locks on the one hand and the need to prevent digital piracy on the other.

III.4.9. Intermediary Liability

III.4.9.1. CIS submits that due to the IT (Intermediary Guidelines) Rules, 2011, there is a freezing effect on free speech on the internet as these rules are procedurally flawed and go against the principles of natural justice.[27] CIS believes that such a restraint on free speech harms creativity and innovation, to this end CIS submits that the National IPR policy should ensure free speech is not unfairly hindered by rules regarding copyright infringement.

III.4.10. Criminalization of Copyright Infringement

III.4.10.1. Individual non-commercial infringement of copyright is a crime under Section 63A of the Copyright Act [28] and is punishable by imprisonment which can extend to three years or a fine that can extend up to rs. 2,00,000/- CIS believes that this is an instance of excessive intellectual property protection; CIS is of the opinion that the civil remedies available for copyright enforcement are enough for copyright protection and that the criminal remedies under the Copyright Act, 1957 function only to ensure that there are obstacles to free and legitimate use of copyrighted material. CIS believes that such provisions are harmful for innovation within India and impose unnecessary costs on users.[29] Therefore CIS believes the National IPR policy should reconsider the question of criminalisation of copyright infringement and should ensure that any penal consequences are proportional to the act committed.

III.4.11. Concluding Remarks on Copyrights

III.4.11.1. In conclusion while India has what some call the most balanced approach to intellectual property law in the world today, [30] one that balances both the interests of the author and the copyrights holder as well as the end user and the overall public interest, there is room for improvement as far as adapting to the internet age is concerned, especially considering the easy appeal of forming an intellectual property regime that is excessive and in the end harms all the concerned stakeholders.

III.5. Free Trade Agreements (FTAs)

III.5.1. Need for Transparency Regarding FTA Negotiations

III.5.1.1. India has lately been negotiating Free Trade Agreements with several developed nations, these are closed door negotiations and the texts of the meetings are not available to the public. CIS believes that these texts should be made available to the public to ensure transparency and to ensure all stakeholders know of any developments, CIS believes that public knowledge of the positions of various actors in any negotiation process will help ensure that such positions are taken keeping in mind the interests of all stakeholders and will ensure that any outcome from such negotiations will be in national interest.[31] CIS therefore submits that the National IPR policy should encourage transparency with regards to negotiations for free trade agreements.

III.5.2. FTAs with Developed Nations and TRIPS Plus Standards

III.5.2.1. Leaked drafts of the European Union- India FTA negotiations have revealed that provisions on intellectual property protection were extensive and affected the pharmaceuticals sector, these provisions, if agreed upon, could go well beyond India's obligations under the WTO and under the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement. In fact, developed countries including the US [32] and EU[33] have tried time again and again to encourage developing countries to adopt standards of IP protection in bilateral or regional trade investment agreements that go beyond TRIPS [34]

India has repeatedly indicated to the WTO that it was not willing to commit to an agreement beyond TRIPS.[35] These commitments could include data exclusivity protection measures, ever-greening of patents etc. [36]

CIS believes that despite the growing pressure from developed nations regarding various FTAs,[37] India must hold its ground and ensure that concerns about India's national interest and the difference in the development levels of the European Union or other developed countries and developing countries like India are kept in mind while negotiating obligations under international agreements. Therefore CIS believes that the National IPR policy should ensure that TRIPS plus standards are not acceptable to India as they will undermine our national interest and hinder development at the national level.[38]

III.5.3. Shift from Multilateral Forums to Bilateral FTA negotiations

III.5.3.1. CIS believes that the trend of shift in negotiations from a multilateral forum such as the WIPO or the WTO to a bilateral or a regional forum [39] is harmful as certain flexibilities are built into the TRIPS and therefore multilateral negotiations based on TRIPS will help pursue India's interests better. And therefore when possible, India must prefer negotiations at multilateral forums as opposed to bilateral or regional treaties, CIS believes that the National IPR policy should reflect the same preferences. [40]

IV. Concluding observations

IV.1. On patents, CIS submits that the National IPR policy reconsider software patenting, that encourage open source software, continue and strengthen that compulsory licensing and consider and study alternative licensing mechanisms as means to achieve a balancing of the interests of different stakeholders.

IV.2. On openness, CIS submits that the IPR policy should encourage free and open software in education, governmental agencies etc.

IV.3. On open access to scholarly work, CIS commends the work done by government agencies so far and submits that the IPR policy should encourage open access to scholarly works.

IV.4. On copyright, CIS submits that the IPR policy work toward strengthening and extending fair dealings provisions, supporting international instruments that strengthen fair dealing, encourage compulsory licensing. CIS submits that the IPR policy should work towards ensuring that protections for copyright such as terms of protection, intermediary liability, protection of rights management information, criminalisation of copyright infringement etc., do not harm other legitimate interests of users or unnecessarily restrict free speech.

IV.5. On FTAs, CIS submits that the IPR policy encourage transparency with regard to FTA negotiations, ensure that TRIPS plus standards are not accepted as they would harm national interest and to encourage multilateral negotiations over bilateral free trade agreements.

IV.6. CIS welcomes the initiative of the DIPP to form a National IPR policy, CIS believes that it is essential that such an IPR policy avoid excessive intellectual property rights protection and is formed keeping in mind goals of development and national interest.

IV.7. CIS is thankful to the DIPP for the opportunity to provide comments on the National IPR policy and would be privileged to work with the government on this and other matters in these areas.

[1] www.cis-india.org (Last Accessed: 30/11/14).

[2] The Washington Declaration on Intellectual Property and Public Interest concluded after the Global Congress on Intellectual property and Public Interest in August 2011 attended by over 180 experts from 32 countries articulate this position perfectly. Available at: http://infojustice.org/wp-content/uploads/2011/09/Washington-Declaration.pdf (Last Accessed:29/11/14)

[3] Shashank Singh, Guidelines for Examination of Computer Related Inventions: Mapping the Stakeholders' Response, Available at: http://cis-india.org/a2k/blogs/guidelines-for-examination-of-computer-related-inventions (Last Accessed: 30/11/14).

[4] N.S. Gopalakrishnan, Compulsory License Under Indian Patent Law, MPI Studies on Intellectual Property and Competition Law, Vol.22, 2015, pp.11-42.

[5] Raadhika Gupta, Compulsory Licensing under TRIPS: How Far it Addresses Public Health Concerns in Developing Nations, Journal of Intellectual Property Rights, Vol.15, September 2010, pp.357-363. Available at: http://nopr.niscair.res.in/bitstream/123456789/10211/1/JIPR%2015(5)%20357-363.pdf (Last Accessed: 30/11/14).

[6] Id.

[7] Nehaa Chaudhari, Pervasive Technologies: Patent Pools, Available at: http://cis-india.org/a2k/blogs/patent-pools (Last Accessed: 30/11/14).

[8] One of the measures along which we could have differential patent strengths could be the time for the invention to reach the market, see, Benjamin N Roin, The case for Tailoring Patent Awards Based on the Time-to-Market of Inventions, UCLA Law Review, Vol.61, 2013, Available at: http://dash.harvard.edu/bitstream/handle/1/10612849/Case%20for%20Tailoring%20Patent%20Awards%203-15-13.pdf?sequence=1 (Last Accessed: 30/11/14).

[9] Sunil Abraham, Patented Games, Available at: http://cis-india.org/a2k/patented-games (Last Accessed: 30/11/14.

[10] See Nabi Hasan, Issues and Challenges in Open Source Software Environment with Special Reference to India, Available at: http://crl.du.ac.in/ical09/papers/index_files/ical-43_144_317_1_RV.pdf (Last Accessed: 30/11/14).

[11] Section 52(1), the Copyright (Amendment) Act, 2012.

[12] Section 52(1) (n), the Copyright (Amendment) Act, 2012.

[13] Zakir Thomas, Overview of Changes to the Indian Copyright Law, Journal of Intellectual Property Rights, Vo.17, July 2012, pp.324-334.

[14] See conclusions of the chair at the 23^rd session of the Standing Committee on Copyright and Related Rights at the WIPO, Available at: http://www.eifl.net/wipo-sccr23-conclusions (Last Accessed: 30/11/14).

[15] For draft proposal of the treaty see IFLA, Treaty proposal on Limitations and Exceptions for Libraries and Archives, Available at: http://www.wipo.int/edocs/mdocs/copyright/en/sccr_27/sccr_27_2_rev.pdf (Last Accessed: 30/11/14).

[16] See The Draft WIPO Treaty on Exceptions and Limitations for the Persons with Disabilities, Educational and Research Institutions, Libraries and Archives, proposal by the African Group (document SCCR/22/12).Available at: http://www.wipo.int/edocs/mdocs/copyright/en/sccr_22/sccr_22_12.pdf (Last Accessed: 30/11/14).

[17] See Section 52(q) of the Copyright Act, 1957.

[18] Section 31 and 31A, the Copyright (Amendment) Act, 2012.

[19] Section 31D, the Copyright (Amendment) Act, 2012.

[20] Section 14(1), the Copyright (Amendment) Act, 2012.

[21] Id.

[22] Section 38B, the Copyright (Amendment) Act, 2012.

[23] CIS, Comments on Draft Copyright Rules, 2012, available at: http://cis-india.org/a2k/feedback-to-draft-copyright-rules-2012 (Last Accessed: 29/11/14).

[24] See Pranesh Prakash, Analysis of the Copyright (Amendment) Bill, 2012, Available at: http://cis-india.org/a2k/blogs/analysis-copyright-amendment-bill-2012

[25] Section 65B, The Copyright (Amendment) Act, 2012.

[26] Pranesh Prakash, Technological Protection Measures in the Copyright (Amendment) Bill, 2010, Available at: http://cis-india.org/a2k/blogs/tpm-copyright-amendment (Last Accessed: 29/11/14).

[27] Rishabh Dara, Intermediary Liability in India: Chilling Effects on Free Expression on the Internet, 2011, Available at: http://cis-india.org/internet-governance/intermediary-liability-in-india.pdf (Last Accessed: 30/11/14).

[28] Section 63A, Copyright Act 1957.

[29] See Right to Share: Principles on Freedom of Expression and Copyright in the Digital Age, Article19, Available at: http://www.article19.org/resources.php/resource/3716/en/ (Last Accessed: 29/11/14).

[30] V Premanath, S Sivaram, Intellectual Property Systems in India: Progressing towards Greater Maturity and Diversity, Available at: http://iimahd.ernet.in/users/anilg/files/Articles/Emerging%20IPR%20Consciousness,%20vikalpa.pdf (Last Accessed: 29/11/14).

[31] Jan Wouters, Idesbald Goddeeries, Bregt Natens etc, Some Critical Issues in the EU -India Free Trade Agreement Negotiation, Working Paper No.102,KU Leuven Centre for Global Governance Studies, https://ghum.kuleuven.be/ggs/publications/working_papers/new_series/wp101-110/wp102-wouters-goddeeris-natens.pdf , February 2013, p.16.

Monika Ermert, Lack of Transparency in EU-India FTA Talks Spurs Requests for Halt, ip-watch, Available at: http://www.ip-watch.org/2010/09/03/lack-of-transparency-in-eu-india-fta-talks-spurs-requests-for-halt/ .

[32] The current policy of the US Trade Representative is seen to be reflected in the 2002 Trade Act available here: http://www.gpo.gov/fdsys/pkg/BILLS-107hr3009enr/pdf/BILLS-107hr3009enr.pdf See HR3009.

[33] The current trade strategy for the EU can be found here http://trade.ec.europa.eu/doclib/docs/2014/july/tradoc_152643.pdf .

[34] Commission on Intellectual Property Rights, Integrating Intellectual Property Rights and Development Policy, Available at: http://www.iprcommission.org/papers/pdfs/final_report/ciprfullfinal.pdf , p.174.

[35] C. Correa, 'Negotiation of a Free Trade Agreement European Union-India: Will India Accept Trips-Plus

Protection?', (2009) Oxfam Deutschland and Evangelischer Entwicklungsdienst Analysis,

http://www.oxfam.de/files/20090609_negotiationofafreetradeaggrementeuindia_218kb.pdf .

[36] S. Sharma, 'the EU-India FTA: Critical Considerations in a Time of Crisis', (2009) Centad Working Paper.

[37] Asit Ranjan Mishra, India to negotiate FTAs with emerging market nations, Livemint, Available at: http://www.livemint.com/Politics/RlJNxUXovjNVaRzQt9KXmO/India-to-negotiate-FTAs-with-emerging-market-nations.html .

[38] Sisule F Musungu and Graham Dutfield, Commission Multilateral Agreements and a TRIPS -Plus Word: the World Intellectual Property Organisation (WIPO), Available at: http://www.iprsonline.org/ictsd/docs/WIPO_Musungu_Dutfield.pdf.

[39] For Trends, See Beginda Pakpahan, Deadlock in the WTO: What is next? Available at: http://www.wto.org/english/forums_e/public_forum12_e/art_pf12_e/art19.htm .

[40] See Amit Sengupta, Do not trade away our lives, Vo.9, No.2, Indian Journal of Medical Ethics, 2012, Available at: http://www.issuesinmedicalethics.org/index.php/ijme/article/view/88/1047 .

For more details visit https://cis-india.org/a2k/blogs/comments-on-proposed-ip-rights-policy-to-dipp

Access to Medicines: Petition to the US Government to Stop Pressure on India

nehaa — 2014-12-10T13:02:59Z

There is growing pressure on India from the US Government to change its intellectual property system. Bending to US pressure will put medicines out of reach for millions of patients in India and other developing countries.

Medicines are affordable for millions of poor patients across the world, thanks to India’s progressive intellectual property system. Now, transnational pharmaceutical companies and the US Government are putting pressure on the Indian Government to change India’s laws which will make medicines unaffordable. Peoples' groups, patients’ networks and civil society organizations have come together in one voice to ask the US government to stop pressuring India against use of its legitimate rights to protect public health. The Indian Government must hold its ground and not give in to the pressure.

For more details log on to Oxfam India website.

For more details visit https://cis-india.org/a2k/blogs/oxfam-india-november-29-2014-access-to-medicines

PERVASIVE TECHNOLOGIES PROJECT WORKING DOCUMENT SERIES: DOCUMENT 1 - RESEARCH METHODOLOGY FOR A PAPER ON COMPETITION LAW + IPR + ACCESS TO < $100 MOBILE DEVICES

nehaa — 2015-10-04T02:51:06Z

This blog post is the research methodology for my research paper under the Pervasive Technologies Project. This is a work in progress and is likely to be modified from time to time.

See a subsequent version titled Pervasive Technologies: Working Document Series - Research Questions and a Literature Review on the Actor-Network Theory

Preliminary

The realization of the promise of the sub hundred dollar mobile device as a facilitator of access to knowledge is contingent inter alia on its availability in the market place. In turn, the market availability of the sub hundred dollar mobile device is influenced by the existence of an enabling environment for producers to produce, and consumers to consume. From a regulatory perspective, the enabling environment itself is a function of existing laws and policies, and the 'developmental effects' of certain laws and policies (Saraswati, 2012).

This research paper under the Pervasive Technologies: Access to Knowledge in the Market Place Project ("PT Project") examines one such legal and policy lever and the role of a regulator in the development of an enabling environment for access to sub hundred dollar mobile devices. This paper is founded on four assumptions: first, that access to sub hundred dollar mobile devices is influenced by their price; second, that the question of access necessitates conversation between the intellectual property regime and several other actors, sites and tools; third, that one of the fundamental goals of regulatory reform is the creation of a 'stable, open and future- proof environment' (Guermazi and Satola, 2005) that encourages access to these devices; and fourth, that there exist public law implications of intellectual property that justify the involvement of State actors and regulators in matters that may arise out of private transactions.

Research Questions

This research paper will examine whether there is a role to be played by one regulator, that is, the Competition Commission of India (“CCI”), in this narrative of innovation, intellectual property and access to sub hundred dollar mobile devices. Specifically, the following research questions will be addressed:

First, what is the relationship between intellectual property and competition law? Second, what are the competition law/antitrust concerns that arise around the licensing of intellectual property (standard essential patents)? Third, can existing mechanisms in competition law address concerns around the licensing of standard essential patents on sub hundred dollar devices, and is competition law a viable solution to address this issue? If so, which ones? Fourth, given the frequency of these litigations, is there a role to be played by an ex-post regulator, such as the CCI, or is there a need for ex-ante regulation?

Research Objects

In an attempt to address these research questions, this paper will examine the role of the Competition Commission of India and the Indian Judiciary. This paper will also examine the role of similarly placed institutions in the United States of America as well as some member states of the European Union.

This research paper will also examine select tools and sites sought to be used to create an enabling environment to facilitate access to these sub hundred dollar mobile devices: first, principles, legal frameworks and provisions of competition law/antitrust law; second, all relevant judicial decisions.

Research Method

First , this research paper will begin with establishing the case for the intervention of the regulator and/or the judiciary in the sub hundred dollar mobile device market by undertaking a review of primary and secondary literature [1]("literature"). Second, also through a literature review, the research will be contextualized to India in terms of the market, the actors involved and the legal framework. Third, a cross jurisdictional comparative legal search will be undertaken to understand the potential areas of intervention for the judiciary and the Competition Commission of India based on existing legal disputes in other jurisdictions; and the possible challenges that might ensue. Fourth, in a scenario building exercise, an attempt will be made to outline the role that the judiciary and the regulator might play in India, in order to ensure access to sub hundred dollar mobile devices is not impeded by litigation around standard essential patents.

Generally, in the writing of this paper, inputs will be sought from experts including MHRD Chair Professors, legal practitioners in India, academics in India and abroad and members of relevant departments of the Indian Government.

Research Communication

This research will be communicated through a series of blog posts- one every month from December, 2014 to December, 2015. A preliminary draft of a research paper will be produced by December, 2015, tentatively to be presented at the 4th Global Congress on Intellectual Property and the Public Interest, New Delhi. The final output will be a research paper.

References

Bouthenia Guermazi and David Satola, Creating the "Right" Enabling Environment for ICT, in Robert Schware (ed.), E-development: From Excitement to Effectiveness (2005, World Bank Publications).
Jyoti Saraswati, Dot. Compradors- Power and Policy in the Development of the Indian Software Industry (2012, Pluto Press)

[1] Unless otherwise specified, for the purposes of this document, primary and secondary literature includes academic articles and books, newspaper articles and opinion pieces, blog posts, case law and other legal provisions.

For more details visit https://cis-india.org/a2k/blogs/methodology-sub-hundred-dollar-mobile-devices-and-competition-law

Announcing the Tracks for the Global Congress on Intellectual Property and the Public Interest 2015

sinha — 2014-08-22T09:47:27Z

CIS recently announced that the Centre for Internet and Society will be hosting the fourth edition of the Global Congress on Intellectual Property and the Public Interest at New Delhi, India, tentatively in the first two weeks of December, 2015. This post declares the track events to be conducted, seeks your participation and invites contributions from potential funders.

The Global Congress on Intellectual Property and the Public Interest ("Global Congress") was instituted in 2011 at Washington D.C. Since its inception, three editions of the Global Congress have engaged national and international governmental entities, the private sector, civil society, and academia in providing perspectives and future scenarios for intellectual property, innovation and development.

The five tracks at the Global Congress 2015 will be:

a) User Rights
b) Patents (including Access to Medicines, but wider in scope)
c) Enforcement
d) Traditional Knowledge
e) Openness

We will soon post updates on the track leaders. We invite interested participants to send proposals for presentations, workshops and other side events for the Global Congress. Please share with us funding proposals for conferences/events and details of potential funders, or help out with funding, if possible.

You may contact the following CIS members to send in your queries and suggestions for the event:

CIS Global Congress Planning Team

Anubha Sinha- anubha@cis-india.org
M.P. Nagaraj- nagaraj@cis-india.org
Maggie Huang- maggie@cis-india.org
Pranesh Prakash- pranesh@cis-india.org
Rohini Lakshane- rohini@cis-india.org
Sunil Abraham- sunil@cis-india.org
Nehaa Chaudhari- nehaa@cis-india.org

For more details visit https://cis-india.org/a2k/announcing-the-tracks-for-the-global-congress-on-intellectual-property-and-the-public-interest-2015

Analysing Alice Corporation Pty Ltd v CLS Bank International Et Al

sinha — 2014-08-01T19:09:05Z

The US Supreme Court delivered a unanimous decision in Alice Corporation Pty Ltd v CLS Bank International Et Al last month. The decision concerning software related inventions (with respect to carving an exception to “abstract ideas” patent eligibility category) was the most awaited and the final patent ruling of the US’ Supreme Court’s term. This post presents an analysis of the decision and a timeline of landmark US judicial decisions on software patents.

The Court declared Alice Corporation’s patent claims to be invalid by applying the tests and frameworks propounded in Mayo Collaborative Services v. Prometheus Laboratories Inc.(“Mayo”) and Bilski v. Kappos[1] (“Bilski”). You may read CIS’ analysis of the Bilski decision here and its impact here. A timeline of landmark decisions on software patents is inserted at the end of the analysis.

Background

Section 101 of 35 U. S. Code, 1952 (US Patent Act, 1952) provides that: “Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent thereof, subject to the conditions and requirements of this title.”

However, there exist certain judicially recognised exceptions to this section, namely, laws of nature, natural phenomena and abstract ideas.[2] Any claims wholly falling under any of these exceptions shall be ineligible for patent protection. [3]

Facts of the case

Alice Corporation’s software related inventions concerned a computer system which helped close financial transactions by avoiding a settlement risk. Specifically, the patent claims (granted by US Patents and Trademarks Office (“USPTO”)) involved, inter alia (1) a method for exchanging financial obligations, (2) a computer system as a third-party intermediary, and (3) a computer-readable medium (“CRM”) containing program code for performing the method of exchanging obligations.

CLS Bank filed for a declaratory judgment action seeking non-infringement, invalidity, and unenforceability of the patents. The district court granted a summary judgment[4] rendering the impugned patents invalid. Alice appealed in the Federal Circuit which reversed[5] the district court decision and found that the patent claims were not directed to an “abstract idea”, therefore were patent-eligible subject matter. Consequently CLS Bank appealed for an en banc hearing, which led to the Federal Circuit reversing its decision and ruling that the patents were indeed directed to patent-ineligible subject matter.[6] This decision was rather fragmented consisting of seven opinions without any clear majority[7], and did not address any of the unanswered issues pertaining to software patenting in wake of the Mayo and Bilski rulings.

Alice filed a certiorari writ at the Supreme Court which was granted in 2013, and the Court in the instant ruling affirmed the Federal Circuit’s decision by invalidating the patents. The opinion was authored by Justice Clarence Thomas. Relying on Bilski, the Court held that the claims were not patent eligible under section 101 since they were drawn to an “abstract idea”. It expressed the importance of pre-empting patenting of concepts fundamental to scientific and technological progress.

Determination of patent-worthiness of the subject matter

To ensure the openness of fundamental scientific concepts the Court highlighted the pressing need to “distinguish between patents that claim the ‘building blocks’ of human ingenuity and those that integrate the building blocks into something more.” The latter would qualify as a patent-eligible invention after the said transformation. However, instead of formulating a test to distinguish between the two kinds of claims, it went ahead and applied the framework devised in Mayo Collaborative Services v Prometheus. In the instant case, the Court elucidated on section 101, stating that:

“Section 101 framework has two parts: (1) determine if the claim at issue is directed towards an abstract idea; and (2) examine the elements of the claim to determine whether it contains an inventive “concept” sufficient to transform the abstract idea into a patent-eligible application.”

The Court applied the first part by turning to its recent decision in Bilski v. Kappos and held that the patent claims were indeed directed towards an abstract idea. The Court explained, illustratively, that in Bilski v. Kappos the claim consisted of a method for hedging against financial risk and in the instant case the claim consists of the concept of intermediated settlement. “Like the hedging risk in Bilski, the concept of intermediated settlement is “a fundamental economic practice long prevalent in our system of commerce.” The Court squarely rejected Alice’s argument that an “abstract idea” is merely confined to “pre-existing, fundamental truths which exist in principle apart from any human action.” It refrained from setting any definitive limitations on the “abstract idea” category.

Applying the second part of the framework, the Court concluded that Alice’s claims merely involved implementing a method on a generic computer which was insufficient to transform an abstract idea into a patent-eligible invention. The implementation of a method on a generic computer did not qualify as an “additional (inventive) element.” The Court reiterated Bilski v. Kappos at this point, stating (in the instant case) “..none of the hardware recited by the system claims "offers a meaningful limitation beyond generally linking 'the use of the [method] to a particular technological environment,' that is, implementation via computers."

Observations and Implications

1. Reiterated focus on substance of claim - The Court concentrated on substance of the claim and not form thereof. It “warned” against interpretation of section 101 in ways that make patent eligibility depend simply on the draftsman’s art. The Court noted that the CRM and apparatus/system claims were only “transformed method claims”. This highlighted the prevalent style of drafting claim sets (CRM, apparatus/system, method) when the hardware/apparatus used was generic.

2. USPTO soon thereafter issued “Preliminary Examination Instructions [8]” – As per the memorandum, this decision "neither creates a per se excluded category of subject matter, such as software or business methods, nor imposes any special requirements for eligibility of software or business methods." Further, examiners have been instructed to apply the framework set forth in the Mayo case, “to analyze all claims directed to laws of nature, natural phenomena, and abstract ideas for subject matter eligibility under 35 U.S.C. § 101.”

This instruction has had twofold implications –

The Bilski standard was followed to determine the eligibility of “abstract ideas”[9], and Mayo was applied in the “laws of nature” category[10]. Now Mayo shall be uniformly applicable to both categories, and also all statutory classes of claims, not just method claims.

The memorandum also has illustrated the theoretical exposition of the Court on “abstract ideas” by stating that abstract ideas include:

· Fundamental economic practices;

· Certain methods of organizing human activities;

· An idea of itself; and,

· Mathematical relationships / formulas.

It also exemplifies the limitations which may allow patent eligibility of an “abstract idea”:

· Improvements to another technology or technical fields;

· Improvements to the functioning of the computer itself; and

· Meaningful limitations beyond generally linking the use of an abstract idea to a particular technological environment.

What can you patent after Alice Corporation v CLS Bank?

Evidently, the Court did not seize the opportunity to plug gaps in the framework propounded by it in an earlier decision (Mayo Collaborative Services v. Prometheus Laboratories Inc.[11]]). It refrained from pronouncing a definitive test (to the extent avoided mentioning software patent in the judgment). Instead it relied on its recent decisions, inter alia, Mayo Collaborative Services v. Prometheus Laboratories Inc.(“Mayo”) and Bilski v. Kappos[12]. In consideration of the illustrative reasoning provided by the Court, and it declining from delving into setting of any parameters to define an “abstract idea” and to not clarify the second prong in the Mayo test; the decision completely deals with the rejection of Alice’s patents. A few aspects have emerged to be applicable precedents-wise. However, the decision is bound to limit poor quality software related inventions, at both appeals and prosecution stage. To conclude, the Supreme Court has narrowed the scope of software related inventions, without addressing pressing issues on the existing framework.

Timeline of US Court decisions on software patents

2014

Alice Corporation v CLS Bank [13]

SCOTUS declared Alice Corporation’s patent claims invalid by applying tests previously held in the cases of Mayo Medical Laboratories v Prometheus Laboratories [14] and Bilski v Kappos [15]. The principle question in the instant case was whether the claims spoke directly to an abstract idea- which would render the claims invalid on the basis of being patent ineligible subject matter.
The Court elucidated on section 101, stating that:

2012

Mayo Medical Laboratories v Prometheus Laboratories [16]

SCOTUS ruled that Prometheus Laboratories’ process patent which provided correlations between blood test results and the patient’s health in determining an appropriate dosage of a specific medication for the patient, was essentially a correlation of that of a law of nature, which was a judicially recognised exception to patentable subject matter.

2010

Bilski v Kappos [17]

SCOTUS upheld the U.S. Court of Appeals for the Federal Circuit decision in In re Bilski. It however, rejected the lower court’s holding that “machine-or-transformation test” was the sole test for patent subject matter eligibility.

2008

In re Bilski [18]

U.S. Court of Appeals for the Federal Circuit narrowed the scope for patenting software and business methods and declared the “machine-or-transformation test” as the sole determinative test to decide the patent eligibility of subject matter. The claim in question consisted of a method for hedging against financial risk.

1998

State Street Bank v. Signature Financial Group [19]

U.S. Court of Appeals for the Federal Circuit upheld a software patent granted to Signature Financial Group. The case is widely quoted as one of the first judicially recognised software patents- it set the stage for a deluge of software patent grants in the US.[20] The invention in question was a business method.
The Court held that an invention was patentable if it involved some practical application and produced a “useful, concrete and tangible result.”

1995

In Re Beauregard [21]

A claim which includes a manufactured article containing a Computer Readable Medium and instructions anointed as a “Beauregard claim”. Illustratively, floppy disks, CD-ROMS, etc would include a Beauregard claim.

1980s

Diamond v. Diehr [22] (1981)

SCOTUS held that a physical machine or a process making use of a mathematical algorithm which involves “transforming or reducing an article to a different state or thing” is patent eligible subject matter even if it includes a software component.

1970s

Parker v. Flook [23] (1978)

The Court held that unless the implementation of an algorithm was novel and non-obvious, the algorithm shall be regarded as prior-art, hence would be patent ineligible subject matter.

Gottschalk v. Benson [24] (1972)

SCOTUS addressed the patentability of software for the first time. The Court rejected a “process” patent for a method to convert binary-coded decimal numerals into pure binary numerals on a general purpose digital computer since it was solely directed to an algorithm (patent ineligible subject matter).

[1] 561 U.S. __, 130 S. Ct. 3218, 95 U.S.P.Q.2d 1001 (2010).

[2] Diamond v. Chakrabarty, 447 U.S. 303, 206 USPQ 193 (1980).

[3] ibid.

[4] 768 F.Supp.2d 221, 252 (D.D.C. 2011).

[5] 685 F.3d 1341 (Fed. Cir. 2012).

[6] 717 F.3d 1269 (Fed. Cir. 2013)

[7] ibid.

[8] USPTO, Memo to the Patent Examining Corps, “Preliminary Examination Instructions in view of the Supreme Court Decision in Alice Corporation Ply. Ltd. v. CLS Bank International, et al”, 2014.

[9] USPTO, “Interim Guidance for Determining Subject Matter Eligibility for Process Claims in View of Bilski v. Kappos”, 2010.

[10] USPTO, Memo to the Patent Examining Corps,“2012 Interim Procedure for Subject Matter Eligibility of Process Claims Involving Laws of Nature”, 2012.

[11] 566 U.S. ___ ,132 S. Ct. 1289, 101 U.S.P.Q.2d 1961 (2012).

[12] 561 U.S. __, 130 S. Ct. 3218, 95 U.S.P.Q.2d 1001 (2010).

[13] 573 U.S. __ (2014); 110 U.S.P.Q.2d 1976, 2014 ILRC 2109 (U.S. 2014) [2014 BL 170103].

[14] 566 U.S. ___ ,132 S. Ct. 1289, 101 U.S.P.Q.2d 1961 (2012)

[15] 561 U. S. 593 (2010)

[16] 566 U.S. ___ ,132 S. Ct. 1289, 101 U.S.P.Q.2d 1961 (2012)

[17] 561 U. S. 593 (2010)

[18] 545 f.3d 943 (2008)

[19] 149 F.3d 1368; 47 U.S.P.Q.2D (BNA) 1596

[20] “1998 July The State Street software patents decision” available at <http://www.thomasalspaugh.org/pub/fnd/ipswd-timeline.html#y1998-StateStreet> (last accessed July 29, 2014)

[21] 53 F.3d 1583 (Fed. Cir. 1995)

[22] 450 U.S. 175 (1981)

[23] 437 U.S. 584 (1978)

[24] 409 U.S. 63 (1972)

For more details visit https://cis-india.org/a2k/analysing-alice-corporation-pty-ltd-v-cls-bank-international-et-al

Global Congress on Intellectual Property and the Public Interest, 2015

sinha — 2015-06-24T16:45:21Z

We are pleased to announce that the Centre for Internet and Society will be hosting the fourth edition of the Global Congress on Intellectual Property and the Public Interest at New Delhi, India, tentatively in the first two weeks of December, 2015. This post seeks your participation and invites your queries and suggestions for the event.

The theme for this year’s Congress will be “Three Decades of Openness; Two Decades of TRIPS.” We are now inviting applications to participate in the Congress, including session participation and presentations. We are also welcoming proposals for panels and workshops.

The application form is available now at [http://form.jotformpro.com/form/50854976184973?] Please note that this form is for application purposes, and does not amount to confirmation of participation. The registrations for the plenary sessions, which are open to the public, will open closer to the date of the Global Congress.

Deadlines

August 1st: Priority Deadline for Applications- Applicants will be considered on a rolling basis, with applications made by August 1st being given first consideration. Applications after August 1st to receive travel assistance will be considered only under exceptional circumstances (these details will be collected in a subsequent form).

November 1st: All applications for session participation and paper submissions will close on November 1st.

Application Information

For applications to participate/host: Applications to present or host workshops shall be considered based on the proposals to be submitted in the form.

For applications to attend sessions: Applications to attend sessions as discussants will be considered based on the statement of purpose and/or any other relevant information provided by the applicant.

Limited travel grants to cover accommodation and/or travel to the Congress will be available, with priority to those from developing countries.

Background, Theme and Expected Outcomes

The Global Congress on Intellectual Property and the Public Interest is the most significant event on the calendar for scholars and policy advocates working on intellectual property from a public interest perspective. By sharing their research and strategies, the network of experts and activists supported by the Global Congress are empowered to put forward a positive agenda for policy reform. The Global Congress began in Washington D.C. in 2011, moved to Rio de Janeiro in 2012, and was held in Cape Town in 2013. The fourth Global Congress will now be held in New Delhi, in December 2015. The event would be the largest convening of public interest-oriented intellectual property practitioners ever held in Asia, and would help link in the world's most populous region to these global debates around how intellectual property policy can best serve the public interest.

The fourth edition of the Global Congress brings research, civil society, industry and regulatory and policy-making communities together for active, intense engagement on key public-interest intellectual property issues. Opportunities for these groups to interact are rare but valuable; and have been proven to lead to successful policy outcomes. The 4^th edition of the Congress, slated to be held in December, 2015 in New Delhi seeks to be one such opportunity.

The theme for the 2015 Congress is Three Decades of Openness; Two Decades of TRIPS-coming at a pivotal time for reflection, revision, and further strategizing. Specifically, the 2015 Congress seeks to produce three outcomes- first, the mobilization of existing scholarly research directly into the hands of civil society advocates, business leaders and policy makers, leading to evidence-based policies and practices; second, the collaborative identification of urgent, global and local research priorities and generation of a joint research/advocacy agenda; and third, the solidification of an inter-disciplinary, cross-sector and global networked community of experts focused on public interest aspects of IP policy and practice.

Participation Opportunities

Discussions at the Global Congress will be carried out in the form of plenary sessions, thematic tracks, cross-track sessions, and the room of scholars. Participation is invited for the thematic track sessions, cross-track sessions and the room of scholars.

The thematic tracks at the Global Congress are: 1) Openness, 2) Access to Medicines, 3) User Rights, 4) IP and Development. Cross-track sessions will feature research that cuts across tracks in order to facilitate engagement between tracks on themes of mutual interest.

The Room of Scholars will feature presentations of research outputs such as draft works or white papers that may not fit directly within the thematic tracks but fall within the overall theme of the Global Congress.

Participation could be in the form of presenting / discussing conference papers or policy briefs, or by conducting workshops where they may share their own work and solicit feedback from peers, during the aforementioned sessions.

The application form for participation is available now at http://form.jotformpro.com/form/50854976184973?. Please forward this invitation to interested lists and individuals. For more information or questions, you may contact global-congress@cis-india.org.

Organisation

The 4^th Global Congress on Intellectual Property and Public Interest, is being organised in cooperation with National Law University, Delhi, by the American Assembly at Columbia University, the Centre for Internet and Society, Open A.I.R., and the Program on Information Justice and Intellectual Property at American University Washington College of Law.

For any clarifications or queries, please contact:

Global Congress organising team: global-congress@cis-india.org

Swaraj Paul Barooah: swaraj.barooah@gmail.com
Shruthi Chandrasekaran: shruthi.chandrasekaran@gmail.com

The planning team also includes:

Anubha Sinha: anubha@cis-india.org
M.P. Nagaraj: nagaraj@cis-india.org
Maggie Huang: maggie@cis-india.org
Pranesh Prakash: pranesh@cis-india.org
Rohini Lakshane: rohini@cis-india.org
Sunil Abraham: sunil@cis-india.org
Nehaa Chaudhari: nehaa@cis-india.org

For more details visit https://cis-india.org/a2k/2015-global-congress-on-intellectual-property-and-the-public-interest

Mapping Institutions of Intellectual Property: Part C — Comparing Intellectual Property Institutions

nehaa — 2014-07-22T04:24:23Z

Earlier this year, a proposal to establish a National Institute of Intellectual Property Rights (“NIIPR”) was presented at a Stakeholders Consultation held in New Delhi organized by the Planning Commission and the Ministry of Human Resource Development (“MHRD”), Government of India. As a third part in the series on Mapping Institutions of Intellectual Property, this article undertakes a comparison of the functions of this proposed Institute with similarly placed Institutions of Intellectual Property around the world.

View Parts A and B here and here

Preliminary

Intellectual Property Institutes/Institutes of Intellectual Property (“Institutes”) world over usually perform two kinds of functions- first, they may serve as the Intellectual Property Office (the nodal agency for matters relating to intellectual property) in their respective countries and second, they may provide policy inputs to their respective governments. From discussions at a Stakeholders Consultation in New Delhi earlier this year (which I have written about here and here), it emerged that the Indian government (specifically, the Department of Industrial Policy and Promotion, India’s nodal agency for IPR related matters except copyright, and the MHRD, India’s nodal agency for copyright related matters ) lacked an institutional framework for policy feedback to the government, which in turn would supplement international negotiations. In order to address this lacuna, the Planning Commission and the MHRD presented a proposal (“the Proposal”) to set up the NIIPR, which would, inter alia, perform the function of advising the Indian government on matters of intellectual property law and policy and inform international negotiations pursuant to the same. This article examines Institutes other jurisdictions on the basis of their functions, and attempts to ascertain what functions an ‘ideal’ Institute might perform.

Methodology and Preliminary Findings

A list of two hundred and fifty seven territories was prepared and attempts were made to trace Institutes in each of these territories. Out of these, those Institutes that had websites, and whose websites had content available in English (or for which an official or credible translation was available) were earmarked. Once the Institutes had been thus identified, their distinctive features and past achievements were studied on the basis of disclosures available on the websites of the Institutes.

It emerged that twenty three (23) countries had Institutes that performed functions similar to those envisaged for the proposed NIIPR. These countries include Albania, Australia, Belarus, Belgium, Belize, Bosnia and Herzegovina, Brazil, Chile, France, Gabon, Greece, Iceland, Japan, Kazakhstan, Kenya, Malaysia, New Zealand, Pakistan, Portugal, Romania, Switzerland, Taiwan and Vietnam. However, this number cannot be said to be exhaustive as for 10 Countries, the translated page could not be availed. Further, in a few countries including Belgium, Belize, Iceland, New Zealand, Trinidad and Tobago, Sri Lanka and United States, the Intellectual Property Office performed the additional function of providing policy inputs to the government, in addition to administering and granting Intellectual Property Rights.

A diagrammatic representation of these preliminary findings and the methodology is available in Figures 1 and 2 (below).


Figure 1


Figure 2

Observations on Functions


Figure 3

Institutes across the world are varied in their functioning, structure and organization. Some observations (that could aid the establishment of the NIIPR) on the functioning of some of these Institutes are as under:

The Institute for Intellectual Property Rights of Bosnia and Herzegovina performs a dual role of the Patent Office as well as that of a research institute. In addition to assisting the government when it enters into agreements, it also performs documentation tasks and implements regulations related to intellectual property. It is also entrusted with the task of maintaining a record of industrial property applied for and granted.
The National Institute of Industrial Property, France contributes to the development and implementation of public policies in the field of anti-counterfeiting.
The Centre for Industrial property of Gabon presents and defends the interests of the Gabonese government at the international level.
The Hellenic Industrial Property Organisation registers inventions in Greece by granting patents and utility model certificates. It also registers industrial designs and community designs and models. Moreover, it also acts as a receiving office for the European Patent and the PCT certificate among others.
The National Institute of Intellectual Property, Kazakhstan performs the functions of the National Patent Office, including examination of applications for patents, useful models, trademarks, appellation of origin of goods and industrial designs.
The Intellectual Property Organization, Pakistan seeks to serve as the nodal organisation for the integrated management of intellectual property and seeks to coordinate the enforcement of intellectual property as well.
The Swiss Federal Institute of Intellectual Property performs the task of examining national filing applications and grants and administers intellectual property rights. It has also developed a patent database (ESPACEMENT) which has ensured access to over eighty (80) million patent documents.
The Japanese Institute of Intellectual Property provides inputs on existing laws to the Government of Japan. These inputs have influenced the revision of Japanese laws relating to patents, trademarks, utility models and the prevention of unfair competition.

Takeaways for the NIIPR

This attempt at an overview of Intellectual Property Institutes around the world has revealed broad similarities in their functioning. These similarities are also seen with the proposed functions of the NIIPR, as outlined in the Proposal of the MHRD and the Planning Commission. It would therefore lead one to believe that the establishment of this institution is potentially headed in the right direction. However, even while the functions of these existing Institutions might guide the establishment of the NIIPR, it would do well to tailor itself to meet India’s specific requirements. With pre-existing ministries, departments and offices in place to deal with the enforcement of intellectual property rights, India needs a body that informs the government on issues of intellectual property law and policy reform, in preparation for international negotiations, which is a lacuna that the NIIPR ought to address. In addition to this core function, the NIIPR may be the institution that oversees the role and functioning of the MHRD Chairs, and also be developed as a research institution aiding the government in developing an intellectual property framework addressing the needs of all stakeholders. Further, the NIIPR may also consider undertaking activities such as the establishment of databases containing patent documents and other publications in Indic languages to ensure access to a larger group of people. The NIIPR could also play an influential role in shaping regional discussions on intellectual property at the international level and encourage and facilitate South-South dialogue.

With nine thousand nine hundred and eighty (9980) lakh Indian rupees being allocated for the National Programme on Intellectual Property Management under the current Five Year Plan (2012-2017), which includes the establishment of the NIIPR, one awaits further developments that might well change the face of India’s intellectual property framework in the long run, with a sense restrained excitement.

For more details visit https://cis-india.org/a2k/blogs/mapping-institutions-of-intellectual-property-part-c