Centre for Internet and Society

Digital Natives with a Cause? Thinkathon: Position Papers

praskrishna — 2015-05-15T11:34:35Z

The Digital Natives with a Cause? Thinkathon conference co-organised by Hivos and the Centre for Internet and Society is being held from 6 to 8 December at the Hague Museum for Communication. The position papers are now available online.

The emergence of digital and Internet technologies have changed the world as we know it. Processes of interpersonal relationships, social communication, economic expansion, political protocols and governmental mediation are all undergoing a significant translation, across the world, in developed and emerging Information and Knowledge societies. These processes also affect the ways in which social transformation, political participation and interventions for development take place.

The Digital Natives with a Cause? research inquiry seeks to look at the potentials of social change and political participation through technology practices of people in emerging ICT contexts. It particularly aims to address knowledge gaps that exist in the scholarship, practice and popular discourse around an increasing usage, adoption and integration of digital and Internet technologies in social transformation processes.

The programme has three main components. The first is to incorporate the users (often young, but not always so) as stakeholders in the construction of policies and discourse which affect their lives in very material ways. The second is to capture, with a special emphasis on change, different relationships with and deployment of technologies in different parts of the world. The third is to further extend the network of knowledge stakeholders where scholars,practitioners, policy makers and the Digital Natives themselves, come together in dialogue to identify the needs and interventions in this field.

In the late summer of 2010 two workshops, in Taiwan and South Africa, brought together 50 Digital Natives from Asia and Africa to place their practice in larger social and political legacies and frameworks. The ‘Talking Back’ workshop in Taiwan looked at the politics, implications and processes of talking back and being political and the ‘My Bubble, My Voice and My Space’ workshop in Johannesburg looked at change, change processes and the role of Digital Natives in it.

For the Digital Natives with a Cause? Thinkathon that will be held in The Hague, The Netherlands from 6 to 8 December 2010, Digital Natives from the workshops in Taipei and Johannesburg have provided us with their take on social change and political participation in the following position papers. They look at issues of: what does it mean to be a Digital Native? What is the relationship of people growing up with new technologies and change? What are the processes by which change is produced? Can you institutionalize Digital Natives with a Cause Activities? How do you make it sustainable in each context?

We hope you will find the Digital Natives with a Cause? position papers inspiring, thought-provoking and challenging.

Download the position papers here [PDF, 1173 KB]

For more details visit https://cis-india.org/digital-natives/blog/position-papers

e-Accessibility Policy Handbook for Persons with Disabilities

nirmita — 2013-07-30T08:29:06Z

The Centre for Internet and Society is proud to announce the launch of its first publication, the “e-Accessibility Policy Handbook for Persons with Disabilities" in collaboration with the G3ict (Global Initiative for Inclusive Information Communication Technologies) and ITU (International Telecommunications Union), and sponsored by the Hans Foundation. The handbook is compiled and edited by Nirmita Narasimhan. Dr. Hamadoun I. Toure, Secretary-General, International Telecommunication Union has written the preface, Dr. Sami Al-Basheer, Director, ITU-D has written the introduction and Axel Leblois, Executive Director, G3ict has written the foreword.

The book is based on the online e-accessibility toolkit for policy makers (www.e-accessibilitytoolkit.org) which was released by G3ict and ITU in February 2010. The book has contributions from over 60 experts around the world on ICT accessibility and is a most valuable addition to policy makers and regulators, advocacy and research organisations and persons with disabilities on the implementation of the ICT dispositions of the UNCRPD. We wish to express our sincere appreciation to all the contributors, G3ict and the ITU for making this possible.

The handbook was released by Smt.Vibha Puri Das, Secretary, Dept of Higher Education, Ministry of HRD at the International Conference on Enabling Access to Education through ICT held from 27 to 30 October 2010 in New Delhi. The printed book comes with a CD containing its daisy version. It is divided into four chapters:

The Accessibility Imperative
Policies and Programs
Solutions that Work
Accessibility Policy Making: An International Perspective
Appendix A: Accessibility Policy Comparison Grid

Also there are two appendices:

Appendix A: Accessibility Policy Comparison Grid
Appendix B: Online Toolkit Site Map

The topics mainly focus on:

What is ICT accessibility?
What the CRPD says about ICT accessibility
How to best assess disability demographics and the impact of ICT barriers
Identifying ICT accessibility legislative, regulatory, policy and programs gaps versus CRPD guidelines and mandates
Engaging Disabled Persons Organizations and other key stakeholders in policy making
Policy development by area
Setting standards
Public procurement
Promoting assistive technologies
Promoting accessible product development & Universal Design
International cooperation
Wireless phones
Radios
Television
Remote consoles
Landline phones
Websites
Personal computers
Software
Electronic kiosks
Broadband services
Country analysis:
United States of America
United Kingdom
Australia
Germany
Portugal
New Zealand
Canada
Ireland
Italy
Sweden
European Union
Japan
Korea
Developing countries
Summary

The publication of this book would not have been possible without the generous support of The Hans Foundation, to whom we would like to express our sincere thanks. We trust that readers will find this book most useful in their accessibility work.

The complete version of the book is available in pdf and daisy formats. These can be downloaded by clicking on the links below:

e-Accessibility Policy Handbook: PDF
e-Accessibility Policy Handbook for Persons with Disabilities: Daisy Format

Note: Daisy users can read the book in Amis or Emerson

e-Accessibility Policy Handbook for Persons with Disabilities: Braille File

For more details visit https://cis-india.org/accessibility/blog/e-accessibility-handbook

Analysis of the Copyright (Amendment) Bill, 2010

pranesh — 2011-09-21T06:01:54Z

CIS analyses the Copyright (Amendment) Bill, 2010, from a public interest perspective to sift the good from the bad, and importantly to point out what crucial amendments should be considered but have not been so far.

The full submission that CIS and 21 other civil society organizations made to the Rajya Sabha Standing Committee on HRD (which is studying the Bill) is available here. Given below is the summary of our submissions:

Existing Copyright Act

The Indian Copyright Act, 1957 has been designed from the perspective of a developing country. It has always attempted a balance between various kinds of interests. It has always sought to ensure that rights of authors of creative works is carefully promoted alongside the public interest served by wide availability and usability of that material. For instance, our Copyright Act has provisions for:

compulsory and statutory licensing: recognizing its importance in making works available, especially making them available at an affordable rate.
cover versions: recognizing that more players lead to a more vibrant music industry.
widely-worded right of fair dealing for private use: recognizing that individual use and large-scale commercial misuse are different.

These provisions of our Act have been lauded, and India has been rated as the most balanced copyright system in a global survey conducted of over 34 countries by Consumers International.

The Indian Parliament has always sought to be responsive to changing technologies by paying heed to both the democratisation of access as well as the securing of the interests of copyright holders. This approach needs to be lauded, and importantly, needs to be maintained.

Proposed Amendments

Some positive amendments

Fair Dealings, Parallel Importation, Non-commercial Rental: All works (including sound recordings and cinematograph films) are now covered the fair dealings clause (except computer programmes), and a few other exceptions; parallel importation is now clearly allowed; and non-commercial rental has become a limitation in some cases.
Persons with disabilities: There is finally an attempt at addressing the concerns of persons with disabilities. But the provisions are completely useless the way they are currently worded.
Public Libraries: They can now make electronic copies of works they own, and some other beneficial changes relating to public libraries.
Education: Some exceptions related to education have been broadened (scope of works, & scope of use).
Statutory and compulsory licensing: Some new statutory licensing provisions (including for radio broadcasting) and some streamlining of existing compulsory licensing provisions.
Copyright societies: These are now responsible to authors and not owners of works.
Open licences: Free and Open Source Software and Open Content licensing is now simpler.
Partial exemption of online intermediaries: Transient and incidental storage of copyrighted works has been excepted, mostly for the benefit of online intermediaries.
Performer’s rights: The general, and confusing, exclusive right that performers had to communicate their performance to the public has been removed, and instead only the exclusive right to communicate sound/video recordings remains.
Enforcement: Provisions on border measures have been made better, and less prone to abuse and prevention of legitimate trade.

Some negative amendments

WCT and WPPT compliance: India has not signed either of these two treaties, which impose TRIPS-plus copyright protection, but without any corresponding increase in fair dealing / fair use rights.
Increase in duration of copyright: This will significantly reduce the public domain, which India has been arguing for internationally.
Technological Protection Measures: TPMs, which have been shown to be anti-consumer in all countries in which they have been introduced, are sought to be brought into Indian law.
Version recordings: The amendments make cover version much more difficult to produce.
Moral rights: Changes have been made to author’s moral rights (and performer’s moral rights have been introduced) but these have been made without requisite safeguards.

Missed opportunities

Government-funded works: Taxpayers are still not free to use works that were paid for by them. This goes against the direction that India has elected to march towards with the Right to Information Act.
Copyright terms: The duration of all copyrights are above the minimum required by our international obligations, thus decreasing the public domain which is crucial for all scientific and cultural progress.
Criminal provisions: Our law still criminalises individual, non-commercial copyright infringement.
Libraries and archives: The exceptions for ‘public libraries’ are still too narrow in what they perceive as ‘public libraries’.
Educational exceptions: The exceptions for education still do not fully embrace distance and digital education.
Communication to the public: No clear definition is given of what constitute a ‘public’, and no distinction is drawn between commercial and non-commercial ‘public’ communication.
Internet intermediaries: More protections are required to be granted to Internet intermediaries to ensure that non-market based peer-production projects such as Wikipedia, and other forms of social media and grassroots innovation are not stifled.
Fair dealing and fair use: We would benefit greatly if, apart from the specific exceptions provided for in the Act, more general guidelines were also provided as to what do not constitute infringement. This would not take away from the existing exceptions.

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

A Guide to Key IPR Provisions of the Proposed India-European Union Free Trade Agreement

glover — 2011-08-30T13:06:03Z

The Centre for Internet and Society presents a guide for policymakers and other stakeholders to the latest draft of the India-European Union Free Trade Agreement, which likely will be concluded by the end of the year and may hold serious ramifications for Indian businesses and consumers.

In its ongoing negotiation for a FTA with the EU, a process that began in 2007 and is expected to end sometime this year, India has won several signicant IP-related concessions. But there remain several IP issues critical to the maintenance of its developing economy, including its robust entrepreneurial environment, that India should contest further before ratifying the treaty. This guide covers the FTA's IP provisions that are within the scope of CIS' policy agenda and on which India has negotiated favorable language, as well as those provisions that it should re-negotiate or oppose.

Download the guide here, and please feel free to comment below.

You may also download a chart comparing the language proposed by India and the EU respectively with that included in the WTO's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

Following is a summary of CIS' findings:

India has become a de facto leader of developing countries at the WTO, and an India-EU FTA seems likely to provide a model for FTAs between developed and developing states well into the future.
The EU has proposed articles on reproduction, communication, and broadcasting rights which could seriously undermine India's authority to regulate the use of works under copyright as currently provided for in the Berne Convention, as well as narrowing exceptions and limitations to rights under copyright.
The EU asserts that copyright includes "copyright in computer programs and in databases," without indicating whether such copyright exceeds that provided for in the Berne Convention. Moreover, by asserting that copyright "includes copyright in computer programs and in databases," the EU has left open the door for the extension of copyright to non-original databases.
India should explicitly obligate the EU to promote and encourage technology transfer -- an obligation compatible with and derived from TRIPS -- as well as propose a clear definition of technology transfer.
The EU has demanded India's accession to the WIPO Internet Treaties, the merits of which are currently under debate as India moves towards amending its Copyright Act, as well as several other international treaties that India either does not explicitly enforce or to which it is not a contracting party.
In general, the EU's provisions would extend terms of protection for material under copyright, within certain constraints, further endangering India's consumer-friendly copyright regime.
An agreement to establish arrangements between national organizations charged with collecting and distributing royalty payments may obligate such organizations in India collect royalty payments for EU rights holders on the same basis as they do for Indian rights holders, and vice versa in the EU, but more heavily burden India.
The EU has proposed a series of radical provisions on the enforcement of IPRs that are tailored almost exclusively to serve the interests of rights holders, at the expense of providing safety mechanisms for those accused of infringing or enabling infringers.
The EU has proposed, under cover of protecting intermediate service providers from liability for infringement by their users, to increase and/or place the burden on such providers of policing user activity.

For more details visit https://cis-india.org/a2k/blogs/a-guide-to-the-proposed-india-european-union-free-trade-agreement

The 2010 Special 301 Report Is More of the Same, Slightly Less Shrill

pranesh — 2011-10-03T05:37:27Z

Pranesh Prakash examines the numerous flaws in the Special 301 from the Indian perspective, to come to the conclusion that the Indian government should openly refuse to acknowledge such a flawed report. He notes that the Consumers International survey, to which CIS contributed the India report, serves as an effective counter to the Special 301 report.

Special 301 Report: Unbalanced Hypocrisy

The United States Trade Representative has put yet another edition of the Special 301 report which details the copyright law and policy wrongdoings of the US's trading partners. Jeremy Malcolm of Consumers International notes that the report this year claims to be "well-balanced assessment of intellectual property protection and enforcement ... taking into account diverse factors", but:

[I]n fact, the report largely continues to be very one-sided. As in previous editions, it lambasts developing countries for failing to meet unrealistically stringent standards of IP protection that exceed their obligations under international law.

More the report changes, the more it stays the same. Despite having wider consultations than just the International Intellectual Property Alliance (IIPA, consisting of US-based IP-maximalist lobbyists like the Motion Picture Association of America, Recording Industry Association of America, National Music Publishers Association, Association of American Publishers, and Business Software Alliance) and the Pharmaceutical Research and Manufacturers of America (PhRMA, consisting of US-based pharma multinationals), things haven't really changed much in terms of the shoddiness of the Special 301 report.

India and the 2010 Special 301 Report

The Special 301 report for 2010 contains the following assessment of India:

India will remain on the Priority Watch List in 2010. India continues to make gradual progress on efforts to improve its legislative, administrative, and enforcement infrastructure for IPR. India has made incremental improvements on enforcement, and its IP offices continued to pursue promising modernization efforts. Among other steps, the United States is encouraged by the Indian government’s consideration of possible trademark law amendments that would facilitate India’s accession to the Madrid Protocol. The United States encourages the continuation of efforts to reduce patent application backlogs and streamline patent opposition proceedings. Some industries report improved engagement and commitment from enforcement officials on key enforcement challenges such as optical disc and book piracy. However, concerns remain over India’s inadequate legal framework and ineffective enforcement. Piracy and counterfeiting, including the counterfeiting of medicines, remains widespread and India’s enforcement regime remains ineffective at addressing this problem. Amendments are needed to bring India’s copyright law in line with international standards, including by implementing the provisions of the WIPO Internet Treaties. Additionally, a law designed to address the unauthorized manufacture and distribution of optical discs remains in draft form and should be enacted in the near term. The United States continues to urge India to improve its IPR regime by providing stronger protection for patents. One concern in this regard is a provision in India’s Patent Law that prohibits patents on certain chemical forms absent a showing of increased efficacy. While the full import of this provision remains unclear, it appears to limit the patentability of potentially beneficial innovations, such as temperature-stable forms of a drug or new means of drug delivery. The United States also encourages India to provide protection against unfair commercial use, as well as unauthorized disclosure, of undisclosed test or other data generated to obtain marketing approval for pharmaceutical and agricultural chemical products. The United States encourages India to improve its criminal enforcement regime by providing for expeditious judicial disposition of IPR infringement cases as well as deterrent sentences, and to change the perception that IPR offenses are low priority crimes. The United States urges India to strengthen its IPR regime and will continue to work with India on these issues in the coming year.

This short dismissal of the Indian IPR regime, and subsequent classification of India as a "Priority Watch List" country reveals the great many problems with the Special 301.

On Copyrights

The report notes that there are "concerns over India's inadequate legal framework and ineffective enforcement". However, nowhere does it bother to point out precisely how India's legal framework is inadequate, and how this is negatively affecting authors and creators, consumers, or even the industry groups (MPAA, RIAA, BSA, etc.) that give input to the USTR via the IPAA. Nor does it acknowledge the well-publicised fact that the statistics put out by these bodies have time and again proven to be wrong:
Apart from this bald allegation which has not backing, there is a bald statement about India needing to bring its copyright law "in line with international standards" including "the WIPO Internet Treaties". The WIPO Internet Treaties given that more than half the countries of the world are not signatories to either of the WIPO Internet Treaties (namely the WIPO Copyright Treaty and the WIPO Performance and Phonograms Treaty), calling them 'international standards' is suspect. That apart, both those treaties are TRIPS-plus treaties (requiring protections greater than the already-high standards of the TRIPS Agreement). India has not signed either of them. It should not be obligated to do so. Indeed, Ruth Okediji, a noted copyright scholar, states:

Consistent with their predecessors, the WIPO Internet Treaties marginalize collaborative forms of creative engagement with which citizens in the global South have long identified and continue in the tradition of assuming that copyright’s most enduring cannons are culturally neutral. [...] The Treaties do not provide a meaningful basis for a harmonized approach to encourage new creative forms in much the same way the Berne Convention fell short of embracing diversity in patterns and modes of authorial expression.

Some of the of the 'problems' noted in the report are actually seen as being beneficial by many researchers and scholars such as Lawrence Liang, Achal Prabhala, Perihan Abou Zeid and others, who argue that lax enforcement has enabled access to knowledge and promotion of innovation. In a panel on 'Access to Knowledge' at the Internet Governance Forum, Lea Shaver, Jeremy Malcolm and others who have been involved in that Access to Knowledge movement noted that lack of strict enforcement played a positive role in many developing countries. However, they also noted, with a fair bit of trepidation, that this was sought to be changed at the international level through treaties such as the Anti-Counterfeiting Treaty Agreement (ACTA).
The scope of an optical disc law are quite different from copyright law. The report condemns "unauthorized manufacture and distribution of optical discs", however it does not make it clear that what it is talking about is not just unlicensed copying of films (which is already prohibited under the Copyright Act) but the manufacture and distribution of blank CDs and DVDs as well. The need for such a law is assumed, but never demonstrated. It is onerous for CD and DVD manufacturers (such as the Indian company Moserbaer), and is an overbearing means of attacking piracy.
The report calls for "improve[ment] [of India's] criminal enforcement regime" and for "deterrent" sentences and expeditious judicial disposition of IPR infringement cases. While we agree with the last suggestion, the first two are most unacceptable. Increased criminal enforcement of a what is essentially a private monopoly right is undesirable. Copyright infringment on non-commercial scales should not be criminal offences at all. What would deter people from infringing copyright laws are not "deterrent sentences" but more convenient and affordable access to the copyright work being infringed.

On Patents

Thankfully, this year the Special 301 report does not criticise the Indian Patent Act for providing for post-grant opposition to patent filings, as it has in previous years. However, it still criticises section 3(d) of the Patent Act which ensures that 'evergreening' of drug patents is not allowed by requiring for new forms of known substances to be patented only if "the enhancement of the known efficacy of [the known] substance" is shown. Thus, the US wishes India to change its domestic law to enable large pharma companies to patent new forms of known substances that aren't even better ("enhancement of the known efficacy"). For instance, "new means of drug delivery" will not, contrary to the assertions of the Special 301 report and the worries of PhRMA, be deemed unpatentable.

The United States has been going through much turmoil over its patent system. Reform of the patent system is currently underway in the US through administrative means, judicial means, as well as legislative means. One of the main reasons for this crumbling of the patent system has been the low bar for patentability (most notably the 'obviousness' test) in the United States and the subsequent over-patenting. An American judgment even noted that "anything under the sun that is made by man" is patentable subject matter. It is well-nigh impossible to take American concerns regarding our high patent standards seriously, given this context.

Miscellanea

The harms of counterfeit medicine, as we have noted earlier, are separate issues that are best dealt under health safety regulations and consumer laws, rather than trademark law.

Data exclusivity has been noted to be harmful to the progress of generics, and seeks to extend proprietary rights over government-mandated test data. It is [clear from the TRIPS Agreement][de-trips] that data exclusivity is not mandatory. There are clear rationale against it, and the Indian pharmaceutical industry [is dead-set against it][de-india]. Still, the United States Trade Representative persists in acting as a corporate shill, calling on countries such as India to implement such detrimental laws.

Conclusion

Michael Geist, professor at University of Ottowa astutely notes:

Looking beyond just Canada, the list [of countries condemned by the Special 301 report] is so large, that it is rendered meaningless. According to the report, approximately 4.3 billion people live in countries without effective intellectual property protection. Since the report does not include any African countries outside of North Africa, the U.S. is effectively saying that only a small percentage of the world meet its standard for IP protection. Canada is not outlier, it's in good company with the fastest growing economies in the world (the BRIC countries are there) and European countries like Norway, Italy, and Spain. In other words, the embarrassment is not Canadian law. Rather, the embarrassment falls on the U.S. for promoting this bullying exercise and on the Canadian copyright lobby groups who seemingly welcome the chance to criticize their own country.

His comments apply equally well for India as well.

IIPA's Recommendation for the Special 301 Report

Thankfully, this year IIPA's recommendations have not been directly copied into the Special 301 report. (They couldn't be incorporated, as seen below.) For instance, the IIPA report notes:

The industry is also concerned about moves by the government to consider mandating the use of open source software and software of only domestic origin. Though such policies have not yet been implemented, IIPA and BSA urge that this area be carefully monitored.

Breaking that into two bit:

Open Source

Firstly, it is curious to see industry object to legal non-pirated software. Secondly, many of BSA's members (if not most) use open source software, and a great many of them also produce open source software. HP and IBM have been huge supporters of open source software. Even Microsoft has an open source software division. [Intel][intel], SAP, Cisco, Dell, Sybase, Entrust, Intuit, Synopsys, Apple, Borland, Cadence, Autodesk, and Siemens are all members of BSA which support open source software / produce at least some open source software. And all BSA members rely on open source software (as part of their core products, their web-server, their content management system, etc.) to a lesser or greater extent. BSA's left hand doesn't seem to know what its right hand -- its members -- are doing. Indeed, the IIPA does not seem to realise that the United States' government itself uses [open source software], and has been urged to look at FOSS very seriously and is doing so, especially under CIO Vivek Kundra. And that may well be the reason why the USTR could not include this cautionary message in the Special 301 report.

Domestic Software

As this insightful article by Nate Anderson in Ars Technica notes:

Open source is bad enough, but a "buy Indian" law? That would be an outrage and surely something the US government would not itself engage in as recently as last year. Err, right?

Furthermore, the IIPA submission do not provide any reference for their claim that "domestic origin" software is being thought of being made a mandatory requirement in governmental software procurement.

WCT, WPPT, Camcording, and Statutory Damages

The IIPA submission also wish that India would:

Adopt a system of statutory damages in civil cases; allow compensation to be awarded in criminal cases;
Adopt an optical disc law;
Enact Copyright Law amendments consistent with the WCT and WPPT;
Adopt an anti-camcording criminal provision.

Quick counters:

Statutory damages (that is, an amount based on statute rather than actual loss) would result in ridiculousness such as the $1.92 million damages that the jury (based on the statutory damages) slapped on Jammie Thomas. The judge in that case called the damage award "monstrous and shocking" and said that veered into "the realm of gross injustice."
The reasons against an optical disc law are given above. Quick recap: it is a) unnecessary and b) harmful.
India has not signed the WCT and the WPPT. Indian law satisfies all our international obligations. Thus enacting amendments consistent with the WCT and the WPPT is not required.
Camcording of a film is in any case a violation of the Copyright Act, 1957, and one would be hard-pressed to find a single theatre that allows for / does not prohibit camcorders. Given this, the reason for an additional law is, quite frankly, puzzling. At any rate, IIPA in its submission does not go into such nuances.

Further conclusions

Shamnad Basheer, an IP professor at NUJS, offer the following as a response:

"Dear USA,

India encourages you to mind your own business. We respect your sovereignty to frame IP laws according to your national priorities and suggest that you show us the same courtesy. If your grouse is that we haven't complied with TRIPS, please feel free to take us to the WTO dispute panel. Our guess is that panel members familiar with the English language will ultimately inform you that section 3(d) is perfectly compatible with TRIPS. And that Article 39.3 does not mandate pharmaceutical data exclusivity, as you suggest! More importantly, at that point, we might even think of hauling you up before the very same body for rampant violations, including your refusal to grant TRIPS mandated copyright protection to our record companies, despite a WTO ruling (Irish music case) against you.

Yours sincerely,

India."

Basheer's suggestion seems to be in line with that Michael Geist who believes that other countries should join Canada and Israel in openly refusing to acknowledge the validity of the Special 301 Reports because they lack ['reliable and objective analysis'][geist-reliable]. And that thought serves as a good coda.

For more details visit https://cis-india.org/a2k/blogs/2010-special-301

Exceptions and Limitations in Indian Copyright Law for Education: An Assessment

lawrence — 2011-10-20T14:08:01Z

This paper examines the nature of exceptions and limitations in copyright law for the purposes of the use of copyrighted materials for education. It looks at the existing national and international regime, and argues for why there is a need for greater exceptions and limitations to address the needs of developing countries. The paper contextualizes the debate by looking at the high costs of learning materials and the impediment caused to e-learning and distance education by strong copyright regimes.

Dowload the pdf

Read the original article in the Law and Development Review

For more details visit https://cis-india.org/a2k/blogs/exceptions-and-limitations

Technological Protection Measures in the Copyright (Amendment) Bill, 2010

pranesh — 2012-05-17T16:51:38Z

In this post Pranesh Prakash conducts a legal exegesis of section 65A of the Copyright (Amendment) Bill, 2010, which deals with the stuff that enables 'Digital Rights/Restrictions Management', i.e., Technological Protection Measures. He notes that while the provision avoids some mistakes of the American law, it still poses grave problems to consumers, and that there are many uncertainties in it still.

Technological Protection Measures are sought to be introduced in India via the Copyright (Amendment) Bill, 2010. This should be quite alarming for consumers for reasons that will be explained in a separate blog post on TPMs that will follow shortly.

In this post, I will restrict myself to a legal exegesis of section 65A of the Bill, which talks of "protection of technological measures". (Section 65B, which talks of Right Management Information will, similarly, be tackled in a later blog post.)

First off, this provision is quite unnecessary. There has been no public demand in India for TPMs to be introduced, and the pressure has come mostly from the United States in the form of the annual "Special 301" report prepared by the United States Trade Representative with input coming (often copied verbatim) from the International Intellectual Property Alliance. India is not a signatory to the WIPO Copyright Treaty (WCT) which requires technological protection measures be safeguarded by law. That provision, interestingly, was pushed for by the United States in 1996 when even it did not give legal sanctity to TPMs via its copyright law (which was amended in 2000 by citing the need to comply with the WCT).

TPMs have been roundly criticised, have been shown to be harmful for consumers, creators, and publishers, and there is also evidence that TPMs do not really decrease copyright infringement (but instead, quite perversely through unintended consequences, end up increasing it). Why then would India wish to introduce it?

Leaving that question aside for now, what does the proposed law itself say?

65A. Protection of Technological Measures

    (1) Any person who circumvents an effective technological measure applied for the purpose of protecting any of the rights conferred by this Act, with the intention of infringing such rights, shall be punishable with imprisonment which may extend to two years and shall also be liable to fine.

    (2) Nothing in sub-section (1) shall prevent any person from:

        (a) doing anything referred to therein for a purpose not expressly prohibited by this Act:

          Provided that any person facilitating circumvention by another person of a technological measure for such a purpose shall maintain a complete record of such other person including his name, address and all relevant particulars necessary to identify him and the purpose for which he has been facilitated; or

        (b) doing anything necessary to conduct encryption research using a lawfully obtained encrypted copy; or

        (c) conducting any lawful investigation; or

        (d) doing anything necessary for the purpose of testing the security of a computer system or a computer network with the authorisation of its owner; or

        (e) operator; or [sic]

        (f) doing anything necessary to circumvent technological measures intended for identification or surveillance of a user; or

        (g) taking measures necessary in the interest of national security.

Implications: The Good Part

This provision clearly takes care of two of the major problems with the way TPMs have been implemented by the Digital Millennium Copyright Act (DMCA) in the United States:

In s.65A(1) it aligns the protection offered by TPMs to that offered by copyright law itself (since it has to be "applied for the purpose of protecting any of the rights conferred by this Act"). Thus, presumably, TPMs could not be used to restrict access, only to restrict copying, communication to the public, and that gamut of rights.
In s.65A(1) and 65A(2) it aligns the exceptions granted by copyright law with the exceptions to the TPM provision. Section 65A(1) states that the act of circumvention has to be done "with the intention of infringing ... rights", and s.52(1) clearly states that those exceptions cannot be regarded as infringement of copyright. And s.65A(2)(a) states that circumventing for "a purpose not expressly prohibited by this Act" will be allowed.

A third important difference from the DMCA is that

It does not criminalise the manufacture and distribution of circumvention tools (including code, devices, etc.). (More on this below.)

Implications: The Bad Part

This provision, despite the seeming fair-handed manner in which it has been drafted, still fails to maintain the balance that copyright seeks to promote:

TPM-placers (presumably, just copyright holders, because of point 1. above) have been given the ability to restrict the activities of consumers, but they have not been given any corresponding duties. Thus, copyright holders do not have to do anything to ensure that the Film & Telivision Institute of India professor who wishes to use a video clip from a Blu-Ray disc can actually do so. Or that the blind student who wishes to circumvent TPMs because she has no other way of making it work with her screen reader is actually enabled to take advantage of the leeway the law seeks to provide her through s.52(1)(a) (s.52(1)(zb) is another matter!). Thus, while there are many such exceptions that the law allows for, the technological locks themselves prevent the use of those exceptions. Another way of putting that would be to say:
The Bill presumes that every one has access to all circumvention technology. This is simply not true. In fact, Spanish law (in Article 161 of their law) expressly requires that copyright holders facilitate access to works protected by TPM to beneficiaries of limitations of copyright. Thus, copyright holders who employ TPMs should be required to:
- tell their customers how they can be contacted if the customer wishes to circumvent the TPM for a legitimate purpose
- upon being contacted, aid their customer in making use of their rights / the exceptions and limitations in copyright law
How seriously can you take a Bill that has been introduced in Parliament that includes a provision that states: "Nothing in sub-section (1) shall prevent any person from operator; or" (as s.65A(2)(e), read in its entirety, does)?

Uncertainties

As mentioned above, the provisions are not all that clear regarding manufacture and distribution of circumvention tools. Thus, the proviso to s.65A(2)(a) deserves a closer reading. What is clear is that there are no penalties mentioned for manufacture or dissemination of TPMs, and that only those who circumvent are penalised in 65A(1), and not those who produce the circumvention devices. However:

On "shall maintain" and penalties

In the proviso to s.65B(2)(a), there is an imperative ("shall maintain") requiring "any person facilitating circumvention" to keep records. It is unclear what the implications of not maintaining such records are.

The obvious one is that the exemption contained in s.65(1)(a) will not apply if one were facilitated without the facilitator keeping records. Thus, under this interpretation, there is no independent legal (albeit penalty-less) obligation on facilitators. This interpretation runs into the problem that if this was the intention, then the drafters would have written "Provided that any person facilitating circumvention ... for such a purpose maintain/maintained a complete record ...". Instead, shall maintain is used, and an independent legal obligation seems, thus, to be implied. But can a proviso create an independent legal obligation? And is there any way a penalty could possibly be attached to violation of this proviso despite it not coming within 65A(1)?

On "facilitating" and remoteness

The next question is who all can be said to "facilitate", and how remote can the connection be? Is the coder who broke the circumvention a facilitator? The distributor/trafficker? The website which provided you the software? Or is it (as is more likely) a more direct "the friend who sat at your computer and installed the circumvention software" / "the technician who unlocked your DVD player for you while installing it in your house"?

While such a record-keeping requirement is observable by people those who very directly help you (the last two examples above), it would be more difficult to do so the further up you get on the chain of remoteness. Importantly, such record-keeping is absolutely not possible in decentralized distribution models (such as those employed by most free/open source software), and could seriously harm fair and legitimate circumvention.

More uncertainties

It is slightly unclear which exception the bypassing of Sony's dangerous "Rootkit" copy protection technology would fall under if I wish to get rid of it simply because it makes my computer vulnerable to malicious attacks (and not to exercise one of the exceptions under s.52(1)). Will such circumvention come under s.65A(2)(a)? Because it does not quite fall under any of the others, including s.65(2)(b) or (f).

On "purpose" as a criterion in 65A(2)(a)

A last point, which is somewhat of an aside is that 65A(2)(a) states:

Nothing in sub-section (1) shall prevent any person from doing anything referred to therein for a purpose not expressly prohibited by this Act.

There's something curious about the wording, since the Copyright Act generally does not prohibit any acts based on purposes (i.e., the prohibitions by ss.14 r/w s.51 are not based on why someone reproduces, etc., but on the act of reproduction). In fact, it allows acts based on purposes (via s.52(1)). The correct way of reading 65A(2)(a) might then be:

Nothing in sub-section (1) shall prevent any person from doing anything referred to therein for a purpose expressly allowed by this Act.

But that might make it slightly redundant as s.65A(1) covers that by having the requirement of the circumvention being done "with the intention of infringing such right" (since the s.52(1) exceptions are clearly stated as not being infringements of the rights granted under the Act).

Conclusion

It would be interesting to note how leading copyright lawyers understand this provision, and we will be tracking such opinions. But it is clear that TPMs, as a private, non-human enforcement of copyright law, are harmful and that we should not introduce them in India. And we should be especially wary of doing so without introducing additional safeguards, such as duties on copyright holder to aid access to TPM'ed works for legitimate purposes, and remove burdensome record-keeping provisions.

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

Arguments Against Software Patents in India

pranesh — 2012-03-13T10:43:12Z

CIS believes that software patents are harmful for the software industry and for consumers. In this post, Pranesh Prakash looks at the philosophical, legal and practical reasons for holding such a position in India. This is a slightly modified version of a presentation made by Pranesh Prakash at the iTechLaw conference in Bangalore on February 5, 2010, as part of a panel discussing software patents in India, the United States, and the European Union.

This blog post is based on a presentation made at the iTechLaw conference held on February 5, 2010. The audience consisted of lawyers from various corporations and corporate law firms. As is their wont, most lawyers when dealing with software patents get straight to an analysis of law governing the patenting of computer programmes in India and elsewhere, and seeing whether any loopholes exist and can be exploited to patent software. It was refreshing to see at least some lawyers actually going into questions of the need for patents to cover computer programs. In my presentation, I made a multi-pronged case against software patents: (1) philosophical justification against software patents based on the nature of software; (2) legal case against software patents; (3) practical reasons against software patents.

Preamble

Through these arguments, it is sought to be shown that patentability of software is not some arcane, technical question of law, but is a real issue that affect the continued production of new software and the everyday life of the coder/hacker/software programmer/engineer as well as consumers of software (which is, I may remind you, everywhere from your pacemaker to your phone). A preamble to the arguments would note that the main question to ask is: why should we allow for patenting of software? Answering this question will lead us to ask: who benefits from patenting of software. The conclusion that I come to is that patenting of software helps three categories of people: (1) those large software corporations that already have a large number of software patents; (2) those corporations that do not create software, but only trade in patents / sue on the basis of patents ("patent trolls"); (3) patent lawyers. How they don't help small and medium enterprises nor society at large (since they deter, rather than further invention) will be borne out by the rest of these arguments, especially the section on practical reasons against software patents.

What are Patents?

Patents are a twenty-year monopoly granted by the State on any invention. An invention has to have at least four characteristics: (0) patentable subject matter; (1) novelty (it has to be new); (2) inventive step / non-obviousness (even if new, it should not be obvious); (3) application to industry. A monopoly over that invention, thus means that if person X has invented something, then I may not use the core parts of that invention ("the essential claims") in my own invention. This prohibition applies even if I have come upon my invention without having known about X's invention. (Thus, independent creation is not a defence to patent infringement. This distinguishes it, for instance, from copyright law in which two people who created the same work independently of each other can both assert copyright.) Patents cover non-abstract ideas/functionality while copyright covers specific expressions of ideas. To clarify: imagine I make a drawing of a particular machine and describe the procedure of making it. Under patent law, no one else can make that particular machine, while under copyright law, no one can copy that drawing.

Philosophical Justification Against Software Patents

Even without going into the case against patents per se (lack of independent creation as a defence; lack of 'harm' as a criterion leading to internalization of all positive externalities; lack of effective disclosure and publication; etc.), which has been done much more ably by others like Bessen & Meurer (especially in their book Patent Failure) and Boldrin & Levine (in their book Against Intellectual Monopoly, the full text of which is available online).

But there is one essentially philosophical argument against software as subject matter of a patent. Software/computer programs ("instructions for a computer"), as any software engineer would tell you, are merely algorithms ("an effective method for solving a problem using a finite sequence of instructions") that are meant to be understood by a computer or a human who knows how to read that code.

Algorithms are not patentable subject matter, as they are mere expressions of abstract ideas, and not inventions in themselves. Computer programs, similarly, are abstract ideas. They only stop being abstract ideas when embodied in a machine or a process in which it is the machine/process that is the essential claim and not the software. That machine or process being patented would not grant protection to the software itself, but to the whole machine or process. Thus the abstract part of that machine/process (i.e., the computer program) could be used in any other machine/process, as it it is not the subject matter of the patent. Importantly, just because software is required to operate some machine would then not mean that the machine itself is not patentable, just that the software cannot be patented in guise of patenting a machine.

Legal Case Against Software Patents

In India, section 3(k) of the Patent Act reads:

(3) The following are not inventions within the meaning of this Act: (k) a mathematical or business method or computer programme (sic) per se or algorithms.

As one can see, computer programs are place in the same category as "mathematical methods", "algorithms", and "business methods", hence giving legal validity to the idea propounded in the previous section that computer programs are a kind of algorithms (just as algorithms are a kind of mathematical method).

Be that as it may, the best legal minds in India have had to work hard at understanding what exactly "computer programme per se" means. They have cited U.S. case law, U.K. case law, E.U. precedents, and sought to arrive at an understanding of how per se should be understood. While understanding what per se means might be a difficult job, it is much easier to see what it does not mean. For that, we can look at the 2004 Patent Ordinance that Parliament rejected in 2005. In that ordinance, sections 3(k) and (ka) read as follows:

(3) The following are not inventions within the meaning of this Act: (k) a computer programme per se other than its technical application to industry or a combination with hardware; (ka) a mathematical method or a business method or algorithms.

Thus, it is clear that the interpretation that "computer programme per se" excludes "a computer programme that has technical application to industry" and "a computer programme in combination with hardware" is wrong. By rejecting the 2004 Ordinance wording, Parliament has clearly shown that "technical application to industry" and "combination with hardware" do not make a computer programme patentable subject matter.

Indeed, what exactly is "technical application to industry"? "Technical" has various definitions, and a perusal through those definitions would show that barely any computer program can be said not to relate to a technique, not involve "specialized knowledge of applied arts and sciences" (it is code, after all; not everyone can write good algorithms), or not relate to "a practical subject that is organized according to scientific principles" or is "technological". Similarly, all software is, by definition, meant to be used in combination with hardware. Thus, it being used in combination with hardware must not, as argued above, give rise to patentability of otherwise unpatentable subject matter category.

In 2008, the Patent Office published a new 'Draft Manual Of Patent Practice And Procedure' in which it sought to allow patenting of certain method claims for software inventions (while earlier the Patent Office objected to method claims, allowing only device claims with hardware components). This Draft Manual was withdrawn from circulation, with Shri N.N. Prasad (then Joint Secretary of DIPP, the department administering the Patent Office) noting that the parts of the Manual on sections 3(d) and 3(k) had generated a lot of controversy, and were ultra vires the scope of the Manual (which could not override the Patent Act). He promised that those parts would be dropped and the Manual would be re-written. A revised draft of the Manual has not yet been released. Thus the interpretation provided in the Draft Manual (which was based heavily on the interpretation of the U.K. courts) cannot not be relied upon as a basis for arguments in favour of the patentability of software in India.

In October 2008, CIS helped organize a National Public Meeting on Software Patents in which Indian academics, industry, scientists, and FOSS enthusiasts all came to the conclusion that software patents are harmful for both the industry as well as consumers.

Practical Reasons Against Software Patents

This is going to be an attempt at distilling and simplifying some of the main practical arguments against patenting of software.

There are traditionally four incentives that the patent system caters to: (1) incentive to invent; (2) incentive to disclose; (3) incentive to commercialize; and (4) incentive to invent substitutes. Apart from the last, patenting of software does not really aid any of them.

Patent Landmines / Submarine Patents / Patent Gridlocks / No Exception for Independent Creation

Given that computer programs are algorithms, having monopolies over such abstract ideas is detrimental to innovation. Just the metaphors say a lot about software patents: landmines (they cannot be seen/predicted); submarines (they surface out of the blue); gridlocks (because there are so many software patents around the same area of computing, they prevent further innovation in that area, since no program can be written without violating one patent or the other).

Imagine the madness that would have ensued had patents been granted when computer programming was in its infancy. Imagine different methods of sorting (quick sort, bubble sort) that are part of Computer Science 101 had been patented. While those particular instances aren't, similar algorithms, such as data compression algorithms (including the infamous LZW compression method), have been granted patents. Most importantly, even if one codes certain functionality into software independently of the patent holder, that is still violative of the patent. Computer programs being granted patents makes it extremely difficult to create other computer programs that are based on the same abstract ideas. Thus incentives # (1) and (3) are not fulfilled, and indeed, they are harmed. There is no incentive to invent, as one would always be violating one patent or the other. Given that, there is no incentive to commercialize what one has invented, because of fear of patent infringement suits.

An apt illustration of this is the current difficulty of choosing a royalty-free video format for HTML 5, as it shows, in practical terms, how difficult it is to create a video format without violating one patent or the other. While the PNG image format was created to side-step the patent over the LZW compression method used in the GIF image format, bringing Ogg Theora or Dirac (both patent-free video format) to surpass the levels of H.264/MPEG-4 AVC or VC-1 will be very difficult without infringing dozens if not hundreds of software patents. Chris DiBona of Google, while talking about improving Ogg Theora as part of its inclusion in HTML 5 specifications said, "Here’s the challenge: Can Theora move forward without infringing on the other video compression patents?" Just the number of companies and organization that hold patents over H.264 is astounding, and includes: Columbia University, Electronics and Telecommunications Research Institute of Korea (ETRI), France Télécom, Fujitsu, LG Electronics, Matsushita, Mitsubishi, Microsoft, Motorola, Nokia, Philips, Robert Bosch GmbH, Samsung, Sharp, Sony, Toshiba, and Victor Company of Japan (JVC). As is the amount of royalties to be paid ("[t]he maximum royalty for these rights payable by an Enterprise (company and greater than 50% owned subsidiaries) is $3.5 million per year in 2005-2006, $4.25 million per year in 2007-08 and $5 million per year in 2009-10"; with royalty per unit of a decoder-encoder costing upto USD 0.20.)

Indeed, even the most diligent companies cannot guard themselves against software patents. FFII estimates that a very simple online shopping website would violate twenty different patents at the very least. Microsoft recently lost a case against i4i when i4i surfaced with a patent covering custom XML as implemented in MS Office 2003 and MS Office 2007. As a result Microsoft had to ship patches to its millions of customers, to disable the functionality and bypass that patent. The manufacturers of BlackBerry, the Canadian company Research in Motion, had to shell out USD 617 million as settlement to NTP over wireless push e-mail, as it was otherwise faced with the possibility of the court shutting down the BlackBerry service in the U.S. This happened despite there being a well-known method of doing so pre-dating the NTP patents. NTP has also filed cases against AT&T, Sprint Nextel, T-Mobile, Verizon Wireless, and Palm Inc. Microsoft was also hit by Visto Corporation over those same NTP patents, which had been licensed to Visto (a startup).
- Don't These Cases Show How Software Patents Help Small Companies?
  
  The astute reader might be tempted to ask: are not all of these examples of small companies getting their dues from larger companies? Doesn't all of this show that software patents actually help small and medium enterprises (SMEs)? The answer to that is: no. To see why, we need to note the common thread binding i4i, NTP, and Visto. None of them were, at the time of their lawsuits, actually creating new software, and NTP was an out-and-out "non-practising entity"/"patent holding company" AKA, patent troll. i4i was in the process of closing shop, and Visto had just started up. None of these were actually practising the patent. None of these were producing any other software. Thus, none of these companies had anything to lose by going after big companies. In other words, the likes of Microsoft, RIM, Verizon, AT&T, etc., could not file counter-suits of patent infringement, which is normally what happens when SMEs try to assert patent rights against larger corporations. For every patent that the large corporation violates of the smaller corporation, the smaler corporation would be violating at least ten of the larger corporation's. Software patents are more helpful for software companies as a tool for cross-licensing rather than as a way of earning royalties. Even this does not work as a strategy against patent trolls.
Thus, the assertion that was made at the beginning is borne out: software patents help only patent trolls, large corporations that already have large software patent portfolios, and the lawyers who draft these patents and later argue them out in court.
Term of Patents

Twenty years of monopoly rights is outright ludicrous in an industry where the rate of turnover of technology is much faster -- anywhere between two years and five months.
Software Industry Progressed Greatly Without Patents

In India, software patents have never been asserted in courts (even though many have been illegally granted), yet the software industry in India is growing in leaps and bounds. Similarly, most of the big (American) giants of the software industry today grew to their stature by using copyright to "protect" their software, and not patents.
Copyright Exists for Software

As noted above, the code/expression of any software is internationally protected by copyright law. There is no reason to protect the ideas/functionality of that software as well.
Insufficient Disclosure

When ordinary computer programmers cannot understand what a particular software patent covers (which is the overwhelming case), then the patent is of no use. One of the main incentives of the patent system is to encourage gifted inventors to share their genius with the world. It is not about gifted inventors paying equally gifted lawyers to obfuscate their inventions into gobbledygook so that other gifted inventors can at best hazard a guess as to precisely what is and is not covered by that patent. Thus, this incentive (#2) is not fulfilled by the current system of patents either -- not unless there is a major overhaul of the system. This ties in with the impossibility of ensuring that one is not violating a software patent. If a reasonably smart software developer (who are often working as individuals, and as part of SMEs) cannot quickly ascertain whether one is violating patents, then there is a huge disincentive against developing software in that area at all.
Software Patents Work Against Free/Libre/Open Source Software

Software patents hinder the development of software and FOSS licences, as the licensee is not allowed to restrict the rights of the sub-licensees over and above the restrictions that the licensee has to observe. Thus, all patent clearances obtained by the licensee must be passed on to the sub-licensees. Thus, patented software, though most countries around the world do not recognize them, are generally not included in the default builds of many FOSS operating systems. This inhabits the general adoption of FOSS, since many of the software patents, even though not enforceable in India, are paid heed to by the software that Indians download, and the MP3 and DivX formats are not enabled by default in standard installations of a Linux OS such as Ubuntu.

Conclusion

Currently, the U.S. patent system is being reviewed at the administrative level, the legislative level, as well as the judicial level. At the judicial level, the question of business method patents (and, by extension, software patents) is before the Supreme Court of the United States of America in the form of Bilski v. Kappos. Judge Mayer of the Court of Appeals for the Federal Circuit (CAFC, which heard In re Bilksi) noted that "the patent system has run amok". The Free Software Foundation submitted a most extensive amicus curiae brief to the U.S. Supreme Court, filled with brilliant analysis of software patents and arguments against the patentability of software that is well worth a read.

For more details visit https://cis-india.org/a2k/blogs/arguments-against-software-patents

Reply comments of CIS in the matter of the WIPO draft proposal

praskrishna — 2011-08-22T13:18:38Z

Reply comments of CIS, Daisy Forum of India and Inclusive Planet to the comments filed by Steven J Metaliz in the matter of the WIPO draft proposal.

For more details visit https://cis-india.org/accessibility/publications/Reply-Comments-to-WIPO-draft-proposal

Statement of CIS on the Matter of the Treaty for the Blind

praskrishna — 2011-08-22T13:18:01Z

Through this paper the Centre for Internet and Society is giving its statement in the matter of the Treaty for the blind, visually impaired and other reading disabled, proposed by Brazil, Ecuador and Paraguay.

For more details visit https://cis-india.org/accessibility/publications/CIS-Statement-on-Treaty

Web Accessibility Policy Making: An International Perspective – A G3ict White Paper

radha — 2011-10-19T10:37:07Z

G3ict Publishes International Survey of Web Accessibility Policies White Paper by the Centre for Internet & Society, Bangalore, India

With 143 countries having signed the Convention, and 74 ratified it as of today, web accessibility policy making is fast becoming a leading area of concern for governments, disabled persons organizations and organizations operating web sites for the public.

In this timely White Paper, Nirmita Narasimhan, Program Manager at the Centre for Internet & Society (CIS) in Bangalore, India, provides a very valuable overview of the early policies and programs adopted by a selection of 15 ratifying countries. Packed with references and useful links, the contents of this White Paper will also be made available in the upcoming ITU-G3ict Toolkit for Policy Makers.

Link to the Press Release

Click here to download the White Paper

We would like to thank the following people who have helped preparing this White paper:

Prashanth Ramdas, Asma Tajuddin, G. Aravind ,Katie Reisner, Sucharita Narasimhan, Bama Balakrishnan, Nirmita Narasimhan

Expert Reviewers:
Axel Leblois, Donal Rice, Immaculada Placienca Porrero, Kevin Carey, Licia Sbarella, Sunil Abraham

For more details visit https://cis-india.org/accessibility/blog/g3ict-white-paper

India Study Tour - Report: The South African Telecommunications Sector: Poised for Change

radha — 2011-08-24T08:02:09Z

CIS in collaboration with the LINK Centre, Graduate School of Public and Development Management, University of the Witwatersrand, South Africa and in association with different institutions across India organized a Lecture Tour by Sagie Chetty from 19th Oct to 30th Oct. A report on this study tour is given by Sagie Chetty.

India Study Tour Report

2009-10-17 to 2009-11-01
Sagie Chetty, Masters of Management ICT Policy & Regulation
Student Number 0617514V
Supervision: LINK Centre
Graduate School of Public and Development Management
University of the Witwatersrand

Sagie Chetty is a Senior Manager at Eskom, South Africa’s largest Electricity Utility and a Masters of Management student in the field of ICT Policy and Regulation at Wits University. My research dissertation is entitled “Analysing processes for regulating interconnection in India and South Africa.” Wits LINK Centre and the Centre for Internet and Society (CIS) in Bangalore arranged for a study/lecture tour to India for the period from 17th October 2009 to 1st November 2009. As part of the tour, I presented a number of talks to students and faculty members at various universities and institutions around the country, on the subject of the Telecommunications Landscape in South Africa. I used the opportunity to inform students on the development of the telecommunications sector in South Africa; to build relationships between the LINK centre and the institutions I visited; and, most importantly, to conduct interviews with academia, economists and regulatory authorities in India to gather essential material for my research paper.

Presentations were held at a number of universities, namely the Indian Institute of Technology (IIT), Chennai and IIT, Mumbai; the International Institute of Information Technology (IIIT), Bangalore; and the Indira Gandhi National Open University (IGNOU), the National Institute of Science, Technology and Development Studies (NISTADS) and the Jamia Millia Islamia University – all based in Delhi. The visit concluded with meetings with officials from the Telecoms Regulatory Authority of India (TRAI).

The presentations were well attended and discussions were robust and thought provoking. The South African telecommunications sector was seen as being non-competitive with unnecessarily high ownership by government in the telecommunications sector. From the information provided, students concluded that the SA telecommunications regulator was weak and lacking in the commensurate skills to manage this highly technical sector.

On the other hand, students gravitated between having admiration for India’s own telecommunications regulator, TRAI and criticism of TRAI’s inability to improve broadband take-up in India. Students commended TRAI’s technical skills, independence and its courage in standing up to powerful mobile companies and incumbent telecommunications companies. However, lack of policy direction with regard to broadband rollout is seen as a major failure. Comments regarding this failure are attributed to TRAI’s driving down of telecommunications prices to levels that do not allow for infrastructure investment.

The future for broadband in India lies in mobile technology and some predict that fixed line will be defunct by 2025. Some academics also believe that there are too many players in the telecommunications sector in India making spectrum allocation highly competitive and therefore, very expensive. These costs will have to be recovered and the end users will pay dearly for this. Therefore, the model that the Department of Telecommunications (DOT) is using for spectrum auctions is being questioned by students and academics.

The innovation that I observed in India relates to CIS’s early work in projects assisting the visually impaired to read; the writing of 4G standards at the IITs and the innovation with regard to interconnection usage charges (IUC) at TRAI. These are some of the lessons that I have taken back to South Africa.

My observation of students in India is that they are highly motivated and eager to learn. Entrance to the universities is highly sought after and universities have high standards and are generally difficult to get into. The IITs certainly are increasing the requirements for students to get into them. The institutions are vibrant and are fertile grounds for thought leadership and innovation. India is producing a veritable number of PhDs and institutions seem to offer funding for capable students. South Africa needs to re-examine the funding model for students here. My impression is that students in South Africa do not have similar support as their counterparts in India.

The talks generally concluded with a re-affirmation of the strong historical and cultural links between South Africa and India. Mahatma Gandhi’s time spent in South Africa developing his notion of non-violent protest is well known in India and will always bind our countries together.

India is a vibrant country with an economic engine that is gathering revolutions. Its future is bright and its institutions are producing bright young minds to take their place in this awakening economic giant. South Africans can do well in learning from this super power in the making.

Report

Videos

For more details visit https://cis-india.org/telecom/blog/india-study-tour-report-by-sagie-chetty

Arguments Against the PUPFIP Bill

pranesh — 2011-09-12T11:03:09Z

The Protection and Utilisation of Public Funded Intellectual Property Bill (PUPFIP Bill) is a new legislation being considered by Parliament, which was introduced in the 2008 winter session of the Rajya Sabha. It is modelled on the American Bayh-Dole Act (University and Small Business Patent Procedures Act) of 1980. On this page, we explore some of the reasons that the bill is unnecessary, and how it will be harmful if passed.

Summary

How is the legislation unnecessary?

The Indian government does not have vast reserves of underutilized patents, as the U.S. did in 1980.
Technology transfer is very important, but pushing IPRs aggressively is not the best way of ensuring technology transfer.

How is the legislation harmful?

Excessive patenting lead to gridlocks and retards innovation.
The legislation makes mandatory that which is optional now, and is anyway being followed in many institutions.
Copyright, trademark, etc., seem to be covered under the definition of “public funded IP”.
It will result in a form of double taxation for research, and will increase the consumer cost of all products based on publicly-funded research.
It could have unintended consequences of varied kinds, including discouraging fundamental research as well as discouraging industrial research.
Non-disclosure requirements in the Bill restricts the dissemination of research within the academic community, and curtails freedom of speech.
Exclusive licensing enables restriction on the dissemination of academic research in the marketplace, and increase in cost of products based on public-funded research.

Arguments

How is the legislation unnecessary?

1) The Indian government does not have vast reserves of underutilized patents, as the U.S. did in 1980.

The idea behind the Bayh-Dole Act was that the research funded by the government (and owned, in the US, by the government) was being underutilized. In 1980, over 28,000 unlicensed patents lay with the U.S. government.[1] The Act shifted the title of such works from the government to the University or small business that conducted the research, thus allowing them to take out patents on the research outputs. In India, under present laws, the researcher(s) own the rights over their research whether they be government-funded or not. Usually, due to employment contracts, the research institutes already have the right to patent their inventions. Thus, currently, there is no need for an enabling legislation in this regard, as there was in the U.S.

In fact, currently, the Council of Scientific and Industrial Research (CSIR) has over 5173 patents (counting both those in force and those under dispute), while only 222 patents are licensed (with 68 of them being under dispute). Thus, even with the IP being in the institute's hands, there is a "problem" situation similar to that which necessitated Bayh-Dole in the U.S. Thus, quite contrary to the aims of the Act, further patenting will only lead to a situation of even more underutilized patents.

2) Technology transfer is very important, but pushing IPRs aggressively is not the best way of ensuring technology transfer.

At a recent seminar held at NUJS Kolkata on the PUPFIP Bill, it was revealed that while IIT-Kharagpur’s TTO-equivalent (called the Sponsored Research & Industrial Consultancy division - SRIC) currently handles over Rs.300 crores through 850 projects, only around Rs. 5-15 crores (exact figures weren't available) are currently made through its patent portfolio.[2] Thus patents don't seem, on the face of things, to be the best way of ensuring technology transfer. Indeed, the oft-cited 28,0000 unlicensed patents held by the U.S. government were composed primarily of patents for which industry had refused to take exclusive licences.[3]

Many contend that one of the most important functions of a patent is to get inventors to disclose their inventions rather than keep them as secrets. This reason for awarding a patent is invalidated if stronger protection is granted to trade secrets (no term limit, for instance) than for patents. Secondly, this reason for granting patents is not valid in case of government-funded research in academia and research institutes. The culture of publication and the economy of reputation are sufficient to ensure disclosure. Even without these intrinsic factors, there grant requirements can necessitate publication. If mere publication is believed to be insufficient, then the government would do well to ask for technology dissemination plans before grants are made. At any rate, monopoly rights in the form of patents are thoroughly unnecessary.

How is the legislation harmful?

1) Excessive patenting lead to gridlocks and retard innovation.

It sees protection of IPR as the sole means of encouraging innovation and driving research to the doorstep of consumers. The trend around the world is that of exploring alternative forms of spurring innovation. Even in India, CSIR has gone for an innovative "Open Source Drug Discovery" project, which has proven very successful so far. Furthermore, recent literature shows that excessive patenting is harming research and innovation by creating gridlocks.[4] If platform technologies and basic research (such as SNP) gets mired in patents, then the transaction costs increase (not only in terms of money, but more importantly in administrative terms). This ends up in research clearances getting blocked, and thus retards innovation. It must be remembered that intellectual property is not only an output, but also an input. The more aggressively the outputs are guarded and prevented from being shared, the more the inputs will be affected. The study of patent thickets and gridlocks has reached such a stage that the U.S. law has been changed to reflect this. Firstly, the Bayh-Dole Act was amended in 2000 to state that the objectives of the Bayh-Dole Act were to be carried out "without unduly encumbering future research and discovery". Now, the courts (in the Bilski case) have increased the standard of obviousness in patent law (which means that less patents will be granted). Furthermore, the U.S.P.T.O. and the U.S. Senate are currently considering means of overhauling the U.S. patent system, which many fear is close to breaking down due to over-patenting. All these are signs that the footsteps we are seeking to follow are themselves turning back.

2) The legislation makes mandatory that which is optional now, and is anyway being followed in many institutions.

While the CSIR labs pursue patents aggressively, they also run the OSSD project. The latter might not be permissible if the Act is passed as it stands. Furthermore, this would increase the number of underutilized patents, which is a problem faced currently by CSIR, which has had an aggressive patent policy since the 1990s. Unlicensed patents constitute around 93% of CSIR's total patent portfolio. (In contrast, MIT averages around 50% licensing of patents.) If aggressive patenting is made mandatory, it adds substantially to administrative costs of all institutes which receive any grants from the government. These institutes might not be large enough to merit a dedicated team of professionals to handle

3) Copyright, trademark, etc., seem to be covered under the definition of "public funded IP".

This leads to a ridiculous need to attempt to commercialise all government-funded research literature (and the government funds science research, social sciences, arts, etc.). Furthermore, while the definition of "public funded IP" includes copyrights, trademarks, etc., yet the substantive provisions seem to only include those forms of IP which have to be registered compulsorily (copyright and trademark don't -- copyright comes into existence when an original work is expressed in a medium, and trademark can come into existence by use). Importantly, seeking to commercialise all copyrighted works of research would hamper the movement for open access to scholarly literature. The inititative towards open access to scholarly literature is something that National Knowledge Commission has recommended, and is a move that would result in increased dissemination of public-funded research, which seems to be an aim of the PUPFIP Bill as well.

4) It will result in a form of double taxation for research, and will increase the consumer cost of all products based on publicly-funded research.

This bill would increase the consumer cost of all products based on publicly-funded research, because of the additional burden of patent royalties.

Public funds research -> Institute patents research -> Pharma MNC gets exclusive license over research -> Drug reaches market.

Assuming an exclusive licence: Cost of the drug = cost of manufacturing, storage, etc. + mark-up (monopolistic) cost + cost of licence.

Thus, in effect, the public has to pay twice for the research: it pays once to enable the scientist to conduct the research, and once again in the form of royalties to have that research brought to the marketplace.

5) It could have unintended consequences of varied kinds, including discouraging fundamental research as well as discouraging industrial research.

The former could happen since institutions and individual scientists have a financial incentive to shift their focus away from fundamental research; the latter, conversely, because the filings and bureaucracy involved could drive scientists away from reporting or even engaging in industrial research [pdf]. Faculty and researcher involvement in the business of licensing is a sub-optimal usage of their talents, and there are scientists who would rather stay away from business (as is shown by the intake of former industry-researchers into government-funded labs such as those of CSIR).

6) Non-disclosure requirements in the Bill restricts the dissemination of research within the academic community, and curtails freedom of speech.

This will bring about a shift in science and research which is always done upon others' work. This is why in the U.S., the National Institute of Health (N.I.H.) has sought to ensure (without any legal authority) that it only finances that research that on single nucleotide polymorphism (S.N.P.) which is not patented, and is shared freely amongst scholars. Since this requirement of the N.I.H.'s does not have any legal backing (since it is contradictory to the Bayh-Dole Act), institutions are free to get the grant from N.I.H. and then go ahead and patent their inventions.

7) Exclusive licensing enables restriction on the dissemination of academic research in the marketplace, and increase in cost of products based on public-funded research.

The bill allows for both assignment of licences as well as exclusive licences. Both of these enable monopolistic pricing to be undertaken by the licensee/assignee. There are not even any mechanisms in the Act to ensure, for instance, that a public call is made to ascertain that no parties are willing to consider a non-exclusive licence. Patents are generally said to grant a monopoly right because of the opportunity to recover costs of research and development. When the research is being done by public-funded money, there is no justification for monopoly rights on that research, since there are no excessive costs to recover.

Footnotes:

[1] See So et al. and Thursby and Thursby, quoted in the National Knowledge Commission's letter to the Prime Minister.

[2] See Prof. Vivekanandans' presentation "Patenting and Technology Transfer-the IIT Khargpur Experience"

[3] See Anthony So et al., Is Bayh-Dole Good for Developing Countries, 6 PLoS Biol e262 (2008)

[4] See Michael A. Heller & Rebecca S. Eisenberg, Can Patents Deter Innovation? The Anticommons in Biomedical Research, 280 Science 698 (1998)

Additional Resources

On the PUPFIP Bill

February 5, 2004: NIPER holds parallel session of Indian Science Congress (Express Pharma)
October 27, 2006: Susan Finston, India to Propose New Technology Transfer Legislation (Bayh-Dole 25)
January 16, 2007: National Knowledge Commision's Letter to Indian Prime Minister (National Knowledge Commission)
April 15, 2007: Archita Bhatta, Proposed IPR law raises concern (Down to Earth)
May 31, 2007: Science & Technology needs to be core of the economic development says Kapil Sibal (PIB Press Release)
November 13, 2007: Government Accords Approval to National Biotechnology Development Strategy (PIB Press Release)
February 1, 2008: Yudhijit Bhattacharjee, Indian Government Hopes Bill Will Stimulate Innovation (Science)
February 19, 2008: Shamnad Basheer, Exporting Bayh Dole to India: Whither Transparency? (Part 1) (Part 2) (SpicyIP)
March 17, 2008: Kalpana Pathak, Varsities may soon own patent rights (Business Standard)
March 17, 2008: P.T. Jyothi Datta, Public-funded research may pay dividends for scientists (Business Line)
March 17, 2008: Joff Wild, India considers Bayh-Dole style legislation (IAM Magazine)
April 30, 2008: M.K. Unnikrishnan and Pradeepti Nayak, Lessons from Bayh Dole Act and its relevance to India (PharmaBiz)
July 2008: Sean M. O'Connor, Historical Context of U.S. Bayh-Dole Act: Implications for Indian Government Funded Research Patent Policy (STEM Newsletter)
July 7, 2008: Shamnad Basheer, Mysterious Indian "Bayh Dole" Bill: SpicyIP Procures a Copy (SpicyIP)
July 09, 2008: Latha Jishnu, Does India need a Bayh-Dole Act? (Business Standard)
September 2008: V.C. Vivekanandan, Transplanting Bayh-Dole Act- Issues at Stake Authors (13 Journal of Intell. Prop. 480)
September 18, 2008: Shamnad Basheer, Indian Patent Bill: Let's not be too hasty (SciDev.net)
October 28, 2008: Anthony So et al., Is Bayh-Dole Good for Developing Countries, 6 PLoS Biol e262 (2008)
October 31, 2008: Cabinet gives approval for Protection and Utilization of Public Funded Intellectual Property Bill, 2008 (PIB Press Release)
November 2008: Annette Lin et al., The Bayh-Dole Act and Promoting the Transfer of Technology of Publicly Funded-Research (UAEM White Paper on the Proposed Indian Bayh-Dole Analogue)
November 1, 2008: Editorial: Not in Public Interest (Mint)
November 12, 2008: Ben Butkus, As India Mulls Bill Modeled on Bayh-Dole, Critics Claim It May Stifle Innovation (Biotech Transfer Weekly)
December 16, 2008: Pranesh Prakash, Indian "Bayh Dole" Bill before Parliament (Commons Law)
January 23, 2009: Editorial: Time to Rethink Intellectual Property Laws (SciDev.net)
March 12, 2009: Feroz Ali Khader, Does Patenting Research Change the Culture of Science? (The Hindu)
April 24, 2009: Sunil Abraham & Pranesh Prakash, Does India Need Its Own Bayh-Dole? (Indian Express)
September 21, 2009: C.H. Unnikrishnan, Proposed Patent Bill Is Flawed, Say Experts (Mint)
September 23, 2009: Editorial: An Idea That's A Patent Misfit (Mint)
October 2009: Bhaven N. Sampat, The Bayh-Dole Model in Developing Countries: Reflections on the Indian Bill on Publicly Funded Intellectual Property (UNCTAD - ICTSD Policy Brief No. 5)
January 2010: Amit Shovon Ray & Sabyasachi Saha, Patenting Public-Funded Research for Technology Transfer: A Conceptual-Empirical Synthesis of US Evidence and Lessons for India (ICRIER Working Paper No. 244)
January 2010: Mrinalini Kochupillai, The Protection and Utilization of Public Funded Intellectual Property Bill, 2008: A Critique in the Light of India's Innovation Environment, 15 J. Intell. Prop. Rights 19 (2010)
January 16, 2010: Amit Shovon Ray & Sabyasachi Saha, Intellectual Bottlenecks (Financial Express)
January 21, 2010: Latha Jishnu, Perils of the US Model (Business Standard)
January 22, 2010: Rema Nagarajan, Scientists Fume Over New Patent Bill (Times of India)
January 26, 2010: Shamnad Basheer, The Problem with Patents (Mint)
February 5, 2010: Shalini Butani, Public Research May Become More Private (Business Line)
February 8, 2010: Anika Gupta, Scientists Want Changes in Innovation Bill (Mint)
February 9, 2010: C.H. Unnikrishnan, Parliament Panel Wants Govt Review on Innovation Bill (Mint)
February 15, 2010: Leena Menghaney, A Bad Example from the U.S. (Down to Earth)
February 19, 2010: Pranesh Prakash, A Patent Conundrum (Indian Express)
SpicyIP coverage by tag 'Bayh Dole'
Presentations from NUJS, Kolkata conference on the PUPFIP Bill

On Bayh-Dole

Newspapers and Magazines

Academic Journals

Amy Kapczynski et al., Addressing Global Health Inequities: An Open Licensing Approach for University Innovation, 20 Berkeley Tech. L.J. 1031 (2005)
Anthony So et al., Is Bayh-Dole Good for Developing Countries, 6 PLoS Biol. e262 (2008)
Arti K. Rai & Rebecca S. Eisenberg, Bayh-Dole Reform and the Progress of Biomedicine, 66 Law & Contemp. Probs. 289 (2003)
David C. Mowery & Arvids A. Aiedonis, Numbers, Quality, and Entry: How Has the Bayh-Dole Act Affected U.S. University Patenting and Licensing?, 1 Innovation Pol'y Econ. 187 (2000)
David C. Mowery, et al., Learning to Patent: Institutional Experience, Learning, and the Characteristics of U.S. University Patents After the Bayh-Dole Act, 1981-1992, 48 Mgmt. Sci. 73 (2002)
Donald Kennedy, Editorial: Enclosing the Research Commons, 294 Science 2249 (2001)
F.M. Scherer, The Political Economy of Patent Policy Reform in the United States, 7 Colorado J. Telecomm. High Tech. L. 167 (2009)
Henry Steck, Corporatization of the University: Seeking Conceptual Clarity, 585 Annals of Am. Acad. Pol. & Soc. Sci. 66 (2003)
Jason Owen-Smith, Trends and Transitions in the Institutional Environment for Public and Private Science, 49 Higher Educ. 91 (2005)
Jerry G. Thursby & Marie C. Thursby, University Licensing and the Bayh-Dole Act, 301 Science 1052 (2003)
Jerry G. Thursby & Marie C. Thursby, Who is Selling the Ivory Tower? Sources of Growth in University Licensing, 48 Mgmt. Sci. 90 (2002)
Josh Lerner, Review of 'Ivory Tower', 43 J. Econ. Litt. 510 (2005)
Joshua B. Powers, R&D Funding Source and University Technology Transfer: What is Stimulating Universities to Be More Entrepreneurial?, 45 Research in Higher Educ. 1 (2004)
Lita Nelsen, The Rise of Intellectual Property Protection in the American University, 279 Science 1460 (1998)
Marcia Angell & Arnold S. Relman, Patents, Profits & American Medicine: Conflicts of Interest in the Testing & Marketing of New Drugs, 131 Daedalus 102 (2002)
Maria Jelenik, Review: Two Books on Technology Transfer, 50 Admin. Sci. Q. 131 (2005) (Review of 'Ivory Tower')
Michael A. Heller & Rebecca S. Eisenberg, Can Patents Deter Innovation? The Anticommons in Biomedical Research, 280 Science 698 (1998)
Rebecca Henderson, et al., Universities as a Source of Commercia Technology: A Detailed Analsis of University Patenting, 1965-1988, 80 Rev. Econ. Statistics 119 (1998)
Rebecca S. Eisenberg, Public Research and Private Development: Patents and Technology Transfer in Government-Sponsorded Research, 82 Virginia L. Rev. 1663 (1996)
Rebecca S. Eisenberg & Richard R. Nelson, Public vs. Proprietary Science: A Fruitful Tension?, 131 Daedalus 89 (2002)
Richard Jensen & Marie Thursby, Proofs and Prototypes for Sale: The Licensing of University Inventions, 91 Am. Econ. Rev. 240 (2001)
Roberto Mazzoleni & Richard R. Nelson, Economic Theories about the Benefits and Costs of Patents, 32 J. Econ. Issues 1031 (1998)
Thomas A. Massaro, Innovation, Technology Transfer, and Patent Policy: The University Contribution, 82 Virginia L. Rev. 1729 (1996)
Walter W. Powell & Jason Owen-Smith, Universities and the Market for Intellectual Property in the Life Sciences, 17 J. Pol'y Analysis Mgmt. 253 (1998)
William M. Sage, Funding Fairness: Public Investment, Proprietary Rights and Access to Health Care Technology, 82 Virginia L. Rev. 1737 (1996)
Zach W. Hall & Christopher Scott, University-Industry Partnership, 291 Science 553 (2001)

Resources

For more details visit https://cis-india.org/a2k/publications/pupfip/why-no-pupfip

Comments on the Draft Rules under the Information Technology Act

pranesh — 2011-09-21T06:13:42Z

The Centre for Internet and Society commissioned an advocate, Ananth Padmanabhan, to produce a comment on the Draft Rules that have been published by the government under the Information Technology Act. In his comments, Mr. Padmanabhan highlights the problems with each of the rules and presents specific recommendations on how they can be improved. These comments were sent to the Department of Information and Technology.

Comments on the Draft Rules under the Information Technology Act as Amended by the Information Technology (Amendment) Act, 2008

Submitted by the Centre for Internet and Society, Bangalore

Prepared by Ananth Padmanabhan, Advocate in the Madras High Court

Interception, Monitoring and Decryption

Section 69

The section says:

Where the Central Government or a State Government or any of its officer specially authorised by the Central Government or the State Government, as the case may be, in this behalf may, if satisfied that it is necessary or expedient so to do in the interest of the sovereignty or integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above or for investigation of any offence, it may subject to the provisions of sub-section (2), for reasons to be recorded in writing, by order, direct any agency of the appropriate Government to intercept, monitor or decrypt or cause to be intercepted or monitored or decrypted any information generated, transmitted, received or stored in any computer resource.
The procedure and safeguards subject to which such interception or monitoring or decryption may be carried out, shall be such as may be prescribed.
The subscriber or intermediary or any person in-charge of the computer resource shall, when called upon by any agency referred to in sub-section (1), extend all facilities and technical assistance to-

(a) provide access to or secure access to the computer resource generating transmitting, receiving or storing such information; or

(b) intercept, monitor, or decrypt the information, as the case may be; or

The subscriber or intermediary or any person who fails to assist the agency referred to in sub-section (3) shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine.

Recommendation #1
Section 69(3) should be amended and the following proviso be inserted:

Provided that only those intermediaries with respect to any information or computer resource that is sought to be monitored, intercepted or decrypted, shall be subject to the obligations contained in this sub-section, who are, in the opinion of the appropriate authority, prima facie in control of such transmission of the information or computer resource. The nexus between the intermediary and the information or the computer resource that is sought to be intercepted, monitored or decrypted should be clearly indicated in the direction referred to in sub-section (1) of this section.

Reasons for the Recommendation
In the case of any information or computer resource, there may be more than one intermediary who is associated with such information. This is because “intermediary” is defined in section 2(w) of the amended Act as,

“with respect to any electronic record means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record, including telecom service providers, network service providers, internet service providers, webhosting service providers, search engines, online payment sites, online-auction sites, online-market places and cyber cafes”.

The State or Central Government should not be given wide-ranging powers to enforce cooperation on the part of any such intermediary without there being a clear nexus between the information that is sought to be decrypted or monitored by the competent authority, and the control that any particular intermediary may have over such information.

To give an illustration, merely because some information may have been posted on an online portal, the computer resources in the office of the portal should not be monitored unless the portal has some concrete control over the nature of information posted in it. This has to be stipulated in the order of the Central or State Government which authorizes interception of the intermediary.

Recommendation #2
Section 69(4) should be repealed.

Reasons for the Recommendation
The closest parallels to Section 69 of the Act are the provisions in the Telegraph Rules which were brought in after the decision in PUCL v. Union of India, (1997) 1 SCC 301, famously known as the telephone tapping case.

Section 69(4) fixes tremendous liability on the intermediary for non-cooperation. This is violative of Article 14. Similar provisions in the Indian Penal Code and Code of Criminal Procedure, which demand cooperation from members of the public as regards production of documents, letters etc., and impose punishment for non-cooperation on their part, impose a maximum punishment of one month. It is bewildering why the punishment is 7 years imprisonment for an intermediary, when the only point of distinction between an intermediary under the IT Act and a member of the public under the IPC and CrPC is the difference in the media which contains the information.

Section 69(3) is akin to the duty cast upon members of the public to extend cooperation under Section 39 of the Code of Criminal Procedure by way of providing information as to commission of any offence, or the duty, when a summons is issued by the Court or the police, to produce documents under Sections 91 and 92 of the Code of Criminal Procedure. The maximum punishment for non-cooperation prescribed by the Indian Penal Code for omission to cooperate or wilful breach of summons is only a month under Sections 175 and 176 of the Indian Penal Code. Even the maximum punishment for furnishing false information to the police is only six months under Section 177 of the IPC. When this is the case with production of documents required for the purpose of trial or inquiry, it is wholly arbitrary to impose a punishment of six years in the case of intermediaries who do not extend cooperation for providing access to a computer resource which is merely apprehended as being a threat to national security etc. A mere apprehension, however reasonable it may be, should not be used to pin down a liability of such extreme nature on the intermediary.

This would also amount to a violation of Articles 19(1)(a) as well as 19(1)(g) of the Constitution, not to mention Article 20(3). To give an example, much of the information received from confidential sources by members of the press would be stored in computer resources. By coercing them, through the 7 year imprisonment threat, to allow access to this computer resource and thereby part with this information, the State is directly infringing on their right under Article 19(1)(a). Furthermore, if the “subscriber” is the accused, then section 69(4) goes against Article 20(3) by forcing the accused to bear witness against himself.

Draft Rules under Section 69

Rule 3
Directions for interception or monitoring or decryption of any information generated, transmitted, received or stored in any computer resource under sub- section (2) of section 69 of the Information Technology (Amendment) Act, 2008 (hereinafter referred to as the said Act) shall not be issued except by an order made by the concerned competent authority who is Union Home Secretary in case of Government of India; the Secretary in-charge of Home Department in a State Government or Union Territory as the case may be. In unavoidable circumstances, such order may be made by an officer, not below the rank of a Joint Secretary to the Government of India, who has been duly authorised by the Union Home Secretary or by an officer equivalent to rank of Joint Secretary to Government of India duly authorised by the Secretary in-charge of Home Department in the State Government or Union Territory, as the case may be:

Provided that in emergency cases –
(i) in remote areas, where obtaining of prior directions for interception or monitoring or decryption of information is not feasible; or
(ii) for operational reasons, where obtaining of prior directions for interception or monitoring or decryption of any information generated, transmitted, received or stored in any computer resource is not feasible;

the required interception or monitoring or decryption of any information generated, transmitted, received or stored in any computer resource shall be carried out with the prior approval of the Head or the second senior most officer of the Security and Law Enforcement Agencies (hereinafter referred to as the said Security Agencies) at the Central Level and the officers authorised in this behalf, not below the rank of Inspector General of Police or an officer of equivalent rank, at the State and Union Territory level. The concerned competent authority, however, shall be informed of such interceptions or monitoring or decryption by the approving authority within three working days and that such interceptions or monitoring or decryption shall be got confirmed by the concerned competent authority within a period of seven working days. If the confirmation from the concerned competent authority is not received within the stipulated seven working days, such interception or monitoring or decryption shall cease and the same information shall not be intercepted or monitored or decrypted thereafter without the prior approval of the concerned competent authority, as the case may be.

Recommendation #3
In Rule 3, the following proviso may be inserted:

“Provided that in the event of cooperation by any intermediary being required for the purpose of interception, monitoring or decryption of such information as is referred to in this Rule, prior permission from a Supervisory Committee headed by a retired Judge of the Supreme Court or the High Courts shall be obtained before seeking to enforce the Order mentioned in this Rule against such intermediary.”

Reasons for the Recommendation
Section 69 and the draft rules suffer from absence of essential procedural safeguards. This has come in due to the blanket emulation of the Telegraph Rules. Additional safeguards should have been prescribed to ensure that the intermediary is put to minimum hardship when carrying on the monitoring or being granted access to a computer resource. Those are akin to a raid, in the sense that it can stop an online e-commerce portal from carrying out operations for a day or even more, thus affecting their revenue. It is therefore recommended that in any situation where cooperation from the intermediary is sought, prior judicial approval has to be taken. The Central or State Government cannot be the sole authority in such cases.

Furthermore, since access to the computer resource is required, an executive order should not suffice, and a search warrant or an equivalent which results from a judicial application of the mind (by the Supervisory Committee, for instance) should be required.

Recommendation #4
The following should be inserted after the last line in Rule 22:

The Review Committee shall also have the power to award compensation to the intermediary in cases where the intermediary has suffered loss or damage due to the actions of the competent authority while implementing the order issued under Rule 3.

Reasons for the Recommendation
The Review Committee should be given the power to award compensation to the loss suffered by the intermediary in cases where the police use equipment or software for monitoring/decryption that causes damage to the intermediary’s computer resources / networks. The Review Committee should also be given the power to award compensation in the case of monitoring directions which are later found to be frivolous or even worse, borne out of mala fide considerations. These provisions will act as a disincentive against the abuse of power contained in Section 69.

Blocking of Access to Information

Section 69A

The section provides for blocking of websites if the government is satisfied that it is in the interests of the purposes enlisted in the section. It also provides for penalty of up to seven years for intermediaries who fail to comply with the directions under this section.
The rules under this section describe the procedure which have to be followed barring which the review committee may, after due examination of the procedural defects, order an unblocking of the website.

Section 69A(3)
The intermediary who fails to comply with the direction issued under sub-section (1) shall be punished with an imprisonment for a term which may extend to seven years and also be liable to fine.

Recommendation #5
The penalty for intermediaries must be lessened.

Reasons for Recommendations
The penal provision in this section which prescribes up to seven years imprisonment and a fine on an intermediary who fails to comply with the directions so issued is also excessively harsh. Considering the fact that various mechanisms are available to escape the blocking of websites, the intermediaries must be given enough time and space to administer the block effectively and strict application of the penal provisions must be avoided in bona fide cases.

The criticism about Section 69 and the draft rules in so far as intermediary liability is concerned, will also apply mutatis mutandis to these rules as well as Section 69A.

Draft Rules under Section 69A

Rule 22: Review Committee
The Review Committee shall meet at least once in two months and record its findings whether the directions issued under Rule (16) are in accordance with the provisions of sub-section (2) of section 69A of the Act. When the Review Committee is of the opinion that the directions are not in accordance with the provisions referred to above, it may set aside the directions and order for unblocking of said information generated, transmitted, received, stored or hosted in a computer resource for public access.

Recommendation #6
A permanent Review Committee should be specially for the purposes of examining procedural lapses.

Reasons for Recommendation
Rule 22 provides for a review committee which shall meet a minimum of once in every two months and order for the unblocking of a site of due procedures have not been followed. This would mean that if a site is blocked, there could take up to two months for a procedural lapse to be corrected and it to be unblocked. Even a writ filed against the policing agencies for unfair blocking would probably take around the same time. Also, it could well be the case that the review committee will be overborne by cases and may fall short of time to inquire into each. Therefore, it is recommended that a permanent Review Committee be set up which will monitor procedural lapses and ensure that there is no blocking in the first place before all the due procedural requirements are met.

Monitoring and Collection of Traffic Data

Draft Rules under Section 69B

The section provides for monitoring of computer networks or resources if the Central Government is satisfied that conditions so mentioned are satisfied.

The rules provide for the manner in which the monitoring will be done, the process by which the directions for the same will be issued and the liabilities of the intermediaries and monitoring officers with respect to confidentiality of the information so monitored.

Grounds for Monitoring
Rule 4
The competent authority may issue directions for monitoring and collection of traffic data or information generated, transmitted, received or stored in any computer resource for any or all of the following purposes related to cyber security:
(a) forecasting of imminent cyber incidents;
(b) monitoring network application with traffic data or information on computer resource;
(c) identification and determination of viruses/computer contaminant;
(d) tracking cyber security breaches or cyber security incidents;
(e) tracking computer resource breaching cyber security or spreading virus/computer contaminants;
(f) identifying or tracking of any person who has contravened, or is suspected of having contravened or being likely to contravene cyber security;
(g) undertaking forensic of the concerned computer resource as a part of investigation or internal audit of information security practices in the computer resource;
(h) accessing a stored information for enforcement of any provisions of the laws relating to cyber security for the time being in force;
(i) any other matter relating to cyber security.

Rule 6
No direction for monitoring and collection of traffic data or information generated, transmitted, received or stored in any computer resource shall be given for purposes other than those specified in Rule (4).

Recommendation #7
Clauses (a), (b), (c), and (i) of Rule 4 must be repealed.

Reasons for Recommendations
The term “cyber incident” has not been defined, and “cyber security” has been provided a circular definition. Rule 6 clearly states that no direction for monitoring and collection of traffic data or information generated, transmitted, received or stored in any computer resource shall be given for purposes other than those specified in Rule 4. Therefore, it may prima facie appear that the government is trying to lay down clear and strict safeguards when it comes to monitoring at the expense of a citizens' privacy. However, Rule 4(i) allows the government to monitor if it is satisfied that it is “any matter related to cyber security”. This may well play as a ‘catch all’ clause to legalise any kind of monitoring and collection and therefore defeats the purported intention of Rule 6 of safeguarding citizen’s interests against arbitrary and groundless intrusion of privacy. Also, the question of degree of liability of the intermediaries or persons in charge of the computer resources for leak of secret and confidential information remains unanswered.

Rule 24: Disclosure of monitored data
Any monitoring or collection of traffic data or information in computer resource by the employee of an intermediary or person in-charge of computer resource or a person duly authorised by the intermediary, undertaken in course of his duty relating to the services provided by that intermediary, shall not be unlawful, if such activities are reasonably necessary for the discharge his duties as per the prevailing industry practices, in connection with :
(vi) Accessing or analysing information from a computer resource for the purpose of tracing a computer resource or any person who has contravened, or is suspected of having contravened or being likely to contravene, any provision of the Act that is likely to have an adverse impact on the services provided by the intermediary.

Recommendation #8
Safeguards must be introduced with respect to exercise of powers conferred by Rule 24(vi).

Reasons for Recommendations
Rule 24(vi) provides for access, collection and monitoring of information from a computer resource for the purposes of tracing another computer resource which has or is likely to contravened provisions of the Act and this is likely to have an adverse impact on the services provided by the intermediary. Analysis of a computer resource may reveal extremely confidential and important data, the compromise of which may cause losses worth millions. Therefore, the burden of proof for such an intrusion of privacy of the computer resource, which is first used to track another computer resource which is likely to contravene the Act, should be heavy. Also, this violation of privacy should be weighed against the benefits accruing to the intermediary. The framing of sub rules under this clearly specifying the same is recommended.

The disclosure of sensitive information by a monitoring agency for purposes of ‘general trends’ and ‘general analysis of cyber information’ is uncalled for as it dissipates information among lesser bodies that are not governed by sufficient safeguards and this could result in outright violation of citizen’s privacy.

Manner of Functioning of CERT-In

Draft Rules under Section 70B(5)

Section 70B provides for an Indian Computer Emergency Response Team (CERT-In) which shall serve as a national agency for performing duties as prescribed by clause 4 of this section in accordance to the rules as prescribed.
The rules provide for CERT-In’s authority, composition of advisory committee, constituency, functions and responsibilities, services, stakeholders, policies and procedures, modus operandi, disclosure of information and measures to deal with non compliance of orders so issued. However, there are a few issues which need to be addressed as under:

Definitions
In these Rules, unless the context otherwise requires, “Cyber security incident” means any real or suspected adverse event in relation to cyber security that violates an explicit or implied security policy resulting in unauthorized access, denial of service/ disruption, unauthorized use of a computer resource for processing or storage of information or changes to data, information without authorization.

Recommendation #9
The words ‘or implied’’ must be excluded from rule 2(g) which defines ‘cyber security incident’, and the term ‘security policy’ must be qualified to state what security policy is being referred to.

Reasons for Recommendation
“Cyber security incident” means any real or suspected adverse event in relation to cyber security that violates an explicit or implied security policy resulting in unauthorized access, denial of service/disruption, unauthorized use of a computer resource for processing or storage of information or changes to data, information without authorization.

Thus, the section defines any circumstance where an explicit or implied security policy is contravened as a ‘cyber security incident’. Without clearly stating what the security policy is, an inquiry into its contravention is against an individual’s civil rights. If an individual’s actions are to be restricted for reasons of security, then the restrictions must be expressly defined and such restrictions cannot be said to be implied.

Rule 13(4): Disclosure of Information
Save as provided in sub-rules (1), (2), (3) of rule 13, it may be necessary or expedient to so to do, for CERT-In to disclose all relevant information to the stakeholders, in the interest of sovereignty or integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of an offence relating to cognizable offence or enhancing cyber security in the country.

Recommendation #10
Burden of necessity for disclosure of information should be made heavier.

Reasons for the Recommendation
Rule 13(4) allows the disclosure of information by CERT-In in the interests of ‘enhancing cyber security’. This enhancement however needs to be weighed against the detriment caused to the individual and the burden of proof must be on the CERT-In to show that this was the only way of achieving the required.

Rule 19: Protection for actions taken in Good Faith
All actions of CERT-In and its staff acting on behalf of CERT-In are taken in good faith in fulfillment of its mandated roles and functions, in pursuance of the provisions of the Act or any rule, regulations or orders made thereunder. CERT-In and its staff acting on behalf of CERT-In shall not be held responsible for any unintended fallout of their actions.

Recommendation #11
CERT-In should be made liable for their negligent action and no presumption of good faith should be as such provided for.

Reasons for the Recommendation
Rule 19 provides for the protection of CERT-In members for the actions taken in ‘good faith’. It defines such actions as ‘unintended fallouts’. Clearly, if information has been called for and the same is highly confidential, then this rule bars the remedy for any leak of the same due to the negligence of the CERT-In members. This is clearly not permissible as an agency that calls for delicate information should also be held responsible for mishandling the same, intentionally or negligently. Good faith can be established if the need arises, and no presumption as to good faith needs to be provided.

Draft Rules under Section 52

These rules, entitled the “Cyber Appellate Tribunal (Salary, Allowances and Other Terms and Conditions of Service of Chairperson and Members) Rules, 2009” are meant to prescribe the framework for the independent and smooth functioning of the Cyber Appellate Tribunal. This is so because of the specific functions entrusted to this Appellate Tribunal. Under the IT Act, 2000 as amended by the IT (Amendment) Act, 2008, this Tribunal has the power to entertain appeals against orders passed by the adjudicating officer under Section 47.

Recommendation #12
Amend qualifications Information Technology (Qualification and Experience of Adjudicating Officers and Manner of Holding Enquiry) Rules, 2003, to require judicial training and experience.

Reasons for the Recommendation
It is submitted that an examination of these rules governing the Appellate Tribunal cannot be made independent of the powers and qualifications of Adjudicating Officers who are the original authority to decide on contravention of provisions in the IT Act dealing with damage to computer system and failure to furnish information. Even as per the Information Technology (Qualification and Experience of Adjudicating Officers and Manner of Holding Enquiry) Rules, 2003, persons who did not possess judicial experience and training, such as those holding the post of Director in the Central Government, were qualified to perform functions under Section 46 and decide whether there has been unauthorized access to a computer system. This involves appreciation of evidence and is not a merely administrative function that could be carried on by any person who has basic knowledge of information technology.

Viewed from this angle, the qualifications of the Cyber Appellate Tribunal members should have been made much tighter as per the new draft rules. The above rules when read with Section 50 of the IT Act, as amended in 2008, do not say anything about the qualification of the technical members apart from the fact that such person shall not be appointed as a Member, unless he is, or has been, in the service of the Central Government or a State Government, and has held the post of Additional Secretary or Joint Secretary or any equivalent post. Though special knowledge of, and professional experience in, information technology, telecommunication, industry, management or consumer affairs, has been prescribed in the Act as a requirement for any technical member.

Draft Rules under Section 54

These Rules do not suffer any defect and provide for a fair and reasonable enquiry in so far as allegations made against the Chairperson or the members of the Cyber Appellate Tribunal are concerned.

Penal Provisions

Section 66A

Any person who sends, by means of a computer resource or a communication device,
    (a) any information that is grossly offensive or has menacing character; or
    (b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device,
    (c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages,
shall be punishable with imprisonment for a term which may extend to three years and with fine.
Sec. 32 of the 2008 Act inserts Sec. 66A which provides for penal measures for mala fide use of electronic resources to send information detrimental to the receiver. For the section to be attracted the ‘information’ needs to be grossly offensive, menacing, etc. and the sender needs to have known it to be false.

While the intention of the section – to prevent activities such as spam-sending – might be sound and even desirable, there is still a strong argument to be made that words is submitted that the use of words such as ‘annoyance’ and ‘inconvenience’ (in s.66A(c)) are highly problematic. Further, something can be grossly offensive without touching upon any of the conditions laid down in Article 19(2). Without satisfying the conditions of Article 19(2), this provision would be ultra vires the Constitution.

Recommendation #13
The section should be amended and words which lead to ambiguity must be excluded.

Reasons for the Recommendation
A clearer phrasing as to what exactly could convey ‘ill will’ or cause annoyance in the electronic forms needs to be clarified. It is possible in some electronic forms for the receiver to know the content of the information. In such circumstances, if such a possibility is ignored and annoyance does occur, is the sender still liable? Keeping in mind the complexity of use of electronic modes of transmitting information, it can be said that several such conditions arise which the section has vaguely covered. Therefore, a stricter and more clinical approach is necessary.

Recommendation #14
A proviso should be inserted to this section providing for specific exceptions to the offence contained in this section for reasons such as fair comment, truth, criticism of actions of public officials etc.

Reasons for the Recommendation
The major problem with Section 66A lies in clause (c) as per which any electronic mail or electronic mail message sent with the purpose of causing annoyance or inconvenience is covered within the ambit of offensive messages. This does not pay heed to the fact that even a valid and true criticism of the actions of an individual, when brought to his notice, can amount to annoyance. Indeed, it may be brought to his attention with the sole purpose of causing annoyance to him. When interpreting the Information Technology Act, it is to be kept in mind that the offences created under this Act should not go beyond those prescribed in the Indian Penal Code except where there is a wholly new activity or conduct, such as hacking for instance, which is sought to be criminalized.

Offensive messages have been criminalized in the Indian Penal Code subject to the conditions specified in Chapter XXII being present. It is not an offence to verbally insult or annoy someone without anything more being done such as a threat to commit an offence, etc. When this is the case with verbal communications, there is no reason to make an exception for those made through the electronic medium and bring any electronic mail or message sent with the purpose of causing annoyance or inconvenience within the purview of an offensive message.

Section 66F

The definition of cyber-terrorism under this provision is too wide and can cover several activities which are not actually of a “terrorist” character.
Section 66F(1)(B) is particularly harsh and goes much beyond acts of “terrorism” to include various other activities within its purview. As per this provision,
“[w]hoever knowingly or intentionally penetrates or accesses a computer resource without authorisation or exceeding authorised access, and by means of such conduct obtains access to information, data or computer database that is restricted for reasons for the security of the State or foreign relations, or any restricted information, data or computer database, with reasons to believe that such information, data or computer database so obtained may be used to cause or is likely to cause injury to the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence, or to the advantage of any foreign nation, group of individuals or otherwise, commits the offence of cyber terrorism.”

This provision suffers from several defects and hence ought to be repealed.

Recommendation #15
Section 66F(1)(B) has to be repealed or suitably amended to water down the excessively harsh operation of this provision. The restrictive nature of the information that is unauthorisedly accessed must be confined to those that are restricted on grounds of security of the State or foreign relations. The use to which such information may be put should again be confined to injury to the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, or public order. A mere advantage to a foreign nation cannot render the act of unauthorized access one of cyber-terrorism as long as such advantage is not injurious or harmful in any manner to the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, or public order. A mens rea requirement should also be introduced whereby mere knowledge that the information which is unauthorisedly accessed can be put to such uses as given in this provision should not suffice for the unauthorised access to amount to cyber-terrorism. The unauthorised access should be with the intention to put such information to this use. The amended provision would read as follows:

“[w]hoever knowingly or intentionally penetrates or accesses a computer resource without authorisation or exceeding authorised access, and by means of such conduct obtains access to information, data or computer database that is restricted for reasons for the security of the State or foreign relations, with the intention that such information, data or computer database so obtained may be used to cause injury to the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, or public order, commits the offence of cyber terrorism.”

Reasons for the Recommendation
The ambit of this provision goes much beyond information, data or computer database which is restricted only on grounds of security of the State or foreign relations and extends to “any restricted information, data or computer database”. This expression covers any government file which is marked as confidential or saved in a computer used exclusively by the government. It also covers any file saved in a computer exclusively used by a private corporation or enterprise. Even the use to which such information can be put need not be confined to those that cause or are likely to cause injury to the interests of the sovereignty and integrity of India, the security of the State, or friendly relations with foreign States. Information or data which is defamatory, amounting to contempt of court, or against decency / morality, are all covered within the scope of this provision. This goes way beyond the idea of a terrorist activity and poses serious questions. While there is no one globally accepted definition of cyberterrorism, it is tough to conceive of slander as a terrorist activity.

To give an illustration, if a journalist managed to unauthorisedly break into a restricted database, even one owned by a private corporation, and stumbled upon information that is defamatory in character, he would have committed an act of “cyber-terrorism.” Various kinds of information pertaining to corruption in the judiciary may be precluded from being unauthorisedly accessed on the ground that such information may be put to use for committing contempt of court. Any person who gains such access would again qualify as a cyber-terrorist. The factual situations are numerous where this provision can be put to gross misuse with the ulterior motive of muzzling dissent or freezing access to information that may be restricted in nature but nonetheless have a bearing on probity in public life etc. It is therefore imperative that this provision may be toned down as recommended above.

For more details visit https://cis-india.org/internet-governance/blog/comments-draft-rules

Report on Open Standards for GISW 2008

pranesh — 2011-08-23T02:57:53Z

A report on Open Standards prepared by Sunil Abraham, for the Global Information Society Watch 2008. As on their site, GISWatch focuses on monitoring progress made towards implementing the World Summit on the Information Society (WSIS) action agenda and other international and national commitments related to information and communications. It also provides analytical overviews of institutions involved in implementation.

For more details visit https://cis-india.org/publications-automated/cis/sunil/Open-Standards-GISW-2008.pdf

Centre for Internet and Society

Digital Natives with a Cause? Thinkathon: Position Papers

e-Accessibility Policy Handbook for Persons with Disabilities

Analysis of the Copyright (Amendment) Bill, 2010

Existing Copyright Act

Proposed Amendments

Some positive amendments

Some negative amendments

Missed opportunities

A Guide to Key IPR Provisions of the Proposed India-European Union Free Trade Agreement

The 2010 Special 301 Report Is More of the Same, Slightly Less Shrill

Special 301 Report: Unbalanced Hypocrisy

India and the 2010 Special 301 Report

On Copyrights

On Patents

Miscellanea

Conclusion

IIPA's Recommendation for the Special 301 Report

Open Source

Domestic Software

WCT, WPPT, Camcording, and Statutory Damages

Further conclusions

Exceptions and Limitations in Indian Copyright Law for Education: An Assessment

Technological Protection Measures in the Copyright (Amendment) Bill, 2010

Implications: The Good Part

Implications: The Bad Part

Uncertainties

On "shall maintain" and penalties

On "facilitating" and remoteness

More uncertainties

On "purpose" as a criterion in 65A(2)(a)

Conclusion

Arguments Against Software Patents in India

Preamble

What are Patents?

Philosophical Justification Against Software Patents

Legal Case Against Software Patents

Practical Reasons Against Software Patents

Patent Landmines / Submarine Patents / Patent Gridlocks / No Exception for Independent Creation

Don't These Cases Show How Software Patents Help Small Companies?

Term of Patents

Software Industry Progressed Greatly Without Patents

Copyright Exists for Software

Insufficient Disclosure

Software Patents Work Against Free/Libre/Open Source Software

Conclusion

Reply comments of CIS in the matter of the WIPO draft proposal

Statement of CIS on the Matter of the Treaty for the Blind

Web Accessibility Policy Making: An International Perspective – A G3ict White Paper

India Study Tour - Report: The South African Telecommunications Sector: Poised for Change

India Study Tour Report

Videos

Arguments Against the PUPFIP Bill

Summary

How is the legislation unnecessary?

How is the legislation harmful?

Additional resources

Arguments

How is the legislation unnecessary?

1) The Indian government does not have vast reserves of underutilized patents, as the U.S. did in 1980.

2) Technology transfer is very important, but pushing IPRs aggressively is not the best way of ensuring technology transfer.

How is the legislation harmful?

1) Excessive patenting lead to gridlocks and retard innovation.

2) The legislation makes mandatory that which is optional now, and is anyway being followed in many institutions.

3) Copyright, trademark, etc., seem to be covered under the definition of "public funded IP".

4) It will result in a form of double taxation for research, and will increase the consumer cost of all products based on publicly-funded research.

5) It could have unintended consequences of varied kinds, including discouraging fundamental research as well as discouraging industrial research.

6) Non-disclosure requirements in the Bill restricts the dissemination of research within the academic community, and curtails freedom of speech.

7) Exclusive licensing enables restriction on the dissemination of academic research in the marketplace, and increase in cost of products based on public-funded research.

Additional Resources

On the PUPFIP Bill

On Bayh-Dole

Comments on the Draft Rules under the Information Technology Act

Comments on the Draft Rules under the Information Technology Act as Amended by the Information Technology (Amendment) Act, 2008

Interception, Monitoring and Decryption

Section 69

Draft Rules under Section 69

Blocking of Access to Information

Section 69A

Draft Rules under Section 69A