Centre for Internet and Society

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

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

Archives and Access

praskrishna — 2015-04-17T11:06:20Z

The monograph by Aparna Balachandran and Rochelle Pinto, is a material history of the Internet archives. It examines the role of the archivist and the changing relationship between the state and private archives for looking at the politics of subversion, preservation and value of archiving. By examining the Tamil Nadu and Goa state archives, along with the larger public and state archives in the country, the monograph looks at the materiality of archiving, the ambitions and aspirations of an archive, and why it is necessary to preserve archives, not as historical artefacts but as living interactive spaces of memory and remembrance. The findings have direct implications on various government and market impulses to digitise archives and show a clear link between opening up archives and other knowledge sources for breathing life into local and alternative histories.

Download the Monograph

For more details visit https://cis-india.org/raw/histories-of-the-internet/blogs/archives-and-access/archives-and-access

Anushree Gupta - Ladies ‘Log’: Women’s Safety and Risk Transfer in Ridehailing

Anushree Gupta — 2020-05-19T06:29:12Z

Working in the gig-economy has been associated with economic vulnerabilities. However, there are also moral and affective vulnerabilities as workers find their worth measured everyday by their performance of—and at—work and in every interaction and movement. This essay by Anushree Gupta is the third among a series of writings by researchers associated with the 'Mapping Digital Labour in India' project at the CIS, supported by the Azim Premji University, that were published on the Platypus blog of the Committee on the Anthropology of Science, Technology, and Computing (CASTAC). The essay is edited by Noopur Raval, who co-led the project concerned.

Originally published by the Platypus blog of CASTAC on August, 1, 2019.

Summary of the essay in Hindi: Audio (YouTube) and Transcript (text)

Mumbai, India’s financial capital, is also often considered one of the safest cities for women in India, especially in contrast with New Delhi which is infamously dubbed as the “rape capital” within the country. Sensationalised incidents of harassment, molestation and rape serve as anecdotal references and warnings to other women who dare to venture out alone even during the daytime. The Delhi government recently proposed a policy for free transport for women in public buses and metro trains with the objective of increasing women’s affordability and access and to ensure safety in public transportation. [1] Despite such measures to increase women’s visibility and claims to public utilities and spaces, women who use public transport have historically suffered groping and stalking on buses and trains, which uphold self-policing and surveillance narratives. The issue of women’s safety in India remains a priority as well as a good rhetorical claim and goal to aspire to, for public and private initiatives. Ironically, the notion of women’s safety is also advanced to increase moral policing and censure women’s access to public spaces, which also perpetuates exclusion of other marginalised citizens (Phadke 2007). Further, and crucially, whose safety is being imagined, prioritized and designed for (which class of women are central to the imagination of the safety discourse) is often a point of contention.

In this context, ridehailing services offered by Uber and Ola have come to be frequently cited as safer and more reliable options for women to traverse the cityspace, compared to overcrowded buses and trains. Their mobile applications promise accountability and traceability, enforcing safety standards by way of qualified and well-groomed drivers, SOS buttons and location-sharing features. However, it has increasingly become common knowledge that these alternatives are prone to similar, if not worse, categories of crimes against women. While reports of violence against women in cabs have mostly been outside of Mumbai, due to “platform-effects,” such incidents have widespread ramifications for drivers across the country. Cab drivers who operate via cab aggregator platforms have come under heavy scrutiny not only by the corporate and legal infrastructures of aggregator companies but also in the public eye. On the other hand, platform companies independently, and in partnership with city and state administrations, continue to launch “social impact” initiatives aimed at women’s safety as well as employment (through taxi-driving training). [2] Incidents of violence against women present jarring narratives of risk not only for female passengers but also for the platform-workers, both of whom are responsible for abiding by the constructed notions of safety for women in urban spaces.

In this post, I explore women’s presence as workers as well as passengers/customers in the ridehailing platform economy, in the context of women’s safety, situating the analysis with a focus on Mumbai. The related discourses around risk for female commuters give rise to various interventions and women-centric services through female-only cab enterprises and training more women drivers to mitigate this risk. Through these, I will think through the figure of the woman in the ridehailing economy in Mumbai and by extension in India.

Platforms in Gendered Cityscapes

Mumbai’s public transport is comprised of the local train network, BEST buses and auto rickshaws, with the metro being the newest addition to the mix. Unlike in most of India, kaali-peelis (black-yellow cabs) have been a permanent feature of Mumbai’s landscape since the 1950s and, taking a cab is not necessarily a luxury. Against this backdrop, platform companies have sought to make the claims of democratizing public transport and providing safer travel options to women in the city.

Cab drivers on ridehailing platforms in Mumbai are usually domestic male migrants or Muslim drivers from within and outside the city, who are more often than not overworked and stressed due to the falling incomes and rising debts. It is important to recognise the ‘veiled masculinities’ (Chopra 2006) which labor to service the emergent platform economy and the hierarchies of caste and class which are sustained through their labor. The incongruence between the masculinity of a working class man and the demands of the service economy (Nixon 2009) exacerbates emotional pressures in customer-facing services, which can offer an explanation for angry outbursts and conflicts between drivers and customers.

Uber’s ad on a billboard in Mumbai promises earnings of more than Rs. 1 lakh per month. Using a woman’s image illustrates the extent of their potential for transforming lives and livelihoods. Source: Drivers’ Union Telegram Group.

While Uber and Ola claim that a large number of women drivers work on their platforms, actual experiences of passengers and the male drivers I spoke to, suggested otherwise. Ironically, mass driver-training programs are seen as a quick way to make low-skilled and migrant male workers employable in Indian cities while, despite public-private partnerships to train women, it has been impossible to retain women drivers due to stereotypical perceptions of gender and persistent social stigma. [3] This made the ridehailing passenger woman (upper middle class, affording professional) a stakeholder to design for, while female drivers (but all female workers) appeared as liability for platforms.

These narratives speak directly to the construction of insecurity and risk for women (Berrington and Jones 2002) on public transport systems as they highlight vulnerabilities due to public exposure of women’s bodies. Pandering to a moral panic standpoint and creating personalised or ‘inside’ safe spaces for women to manage risk (Green and Singleton 2006), these platforms can then be imagined as a boundary-setting exercise. Access to public spaces is encouraged but it is delimited by confining the woman’s body to a singular vehicle in the custody of the cab driver. Autonomy and access afforded by the platform manages to transform women—particularly upper class and upper caste women who can afford these services—into potential customers. Their agency is bounded though by tasking the driver to ferry her across the otherwise hostile cityscape filled with ‘unfriendly bodies’ (Phadke 2013). The production of the city’s gendered space goes hand in hand with the confinement/erasure of female bodies in the public space as they embody patriarchal norms even in a city as ‘progressive’ as Mumbai. As demonstrated by studies mapping the movement of women in the city (Ranade 2007), the spatio-temporal factors lend themselves to creating gendered bodies in order to keep patriarchal norms intact. These norms, as I argue in this post, are detrimental not just to women but also other marginalised sections of the urban population, in this case platform workers.

Terms of Safety

Male drivers’ social identities as lower class, lower caste individuals do not inspire confidence in the standards of safety boasted by these companies in the eyes of their predominantly upper caste and upper class customer base. Risk to female passengers is further exaggerated due to the closed space in which the service is provided, highlighting the proximity to a potential aggressor by way of these platforms. In specific situations wherein a female passenger is inebriated or is travelling alone at night, drivers report being extra cautious and helpful towards her. Many respondents proudly mention going out of their way to make sure women get home safely, for instance, prolonging waiting time or escorting them to the entrance of their residential buildings or involving the security guard at the gate.

However, there have also been cases wherein the driver has been under scrutiny either by an overly careful passenger or by the public. One driver reported being surrounded by a crowd at a traffic signal, only to realise that he was being suspected of foul play with the female passenger who had fallen asleep on the backseat of the car. In contrast to their western counterparts, the class differences between drivers and passengers in India exacerbate doubts, fears and insecurities in India which tend to take a caste-purity angle as well. The woman’s body undergoes an exchange of custody in these instances wherein she is deemed incapable of taking care of herself and requires external assistance. Imagining a deterrence effect of ridesharing services (Park et. al 2017) reinforces the logic of guardianship and protectionism for the woman. The risk of carrying her in the vehicle in these situations is borne by the cab driver, operating under a framework of overbearing protectiveness which holds him culpable for any misgivings, assumed or otherwise.

Cautionary listicles advise women to not take a cab alone at night, carrying pepper sprays/umbrellas as tools for self-defence, refrain from conversations with drivers or talk continuously on the phone, among other things. The onus of the woman’s safety is either on the individual herself or the driver who is ferrying her. Moreover, the driver is a likely assailant whom the woman should guard against as well. Source: HelloTravel.

Notions of safety and risk are embodied in everyday interactions in urban spaces and mediated by disparate infrastructures of knowledge across distinctions of caste, class and gender. These distinctions define constraints which govern social interactions between actors of these categories. Interactions between lower caste or Muslim men and upper caste/class women are circumscribed by what Tuan (1979) describes as ‘landscapes of fear’. Be it the apprehensions about sharing a ride with a passenger of the opposite sex (Sarriera et. al 2017) or reports of gang-rapes by cab drivers, the boundaries of social conduct are laid out clearly by constructing narratives of risk and safety. The protection of the female body and her sexual safety is not her responsibility alone but that of the society as a whole. The so called preventive measures for rape and violence against women produce the dichotomies of frailty and strength (Campbell 2005) in so far as they project the woman as always at risk with the shadow of a potential assault always looming large.

When asked about interactions with women as customers or fellow drivers, drivers performed exaggerated respectability for women. The catch in these narratives however was that drivers justified and extended respect only to ‘good’ customers, where a ‘good’ woman was a certain kind of a moral actor.

Given the prevailing discontent with redressal mechanisms for workers on the platforms, it was not surprising to witness a group of drivers at the Uber Seva Kendra (help centre) in Mumbai, debating whether they should be accepting requests from any female customers at all. Drivers also had to attend mandatory training sessions for ‘good conduct’ with customers wherein they underwent behavioral correction and gender sensitisation lessons. [4] The gendering of the platform economy is baked into these instructions and trainings that reproduce male drivers as figures of safety and constant positive affect.

Gender, Safety, and Enterprise

In my fieldwork, I also came across a slew of ventures run by fleet owners and others that sought to service women passengers and employ women drivers exclusively. Claiming to fill in the gaps of inadequate vetting mechanisms in existing platforms, these alternate ventures purportedly smoothened out some anxieties by eliminating the risk of interacting with a man from different socio-economic strata. The premium charged by these companies was telling of the value of safety and affordability of these services for a large section of their intended audience, namely women with higher disposable incomes residing in metropolitan cities.

On the flipside, these enterprises encouraged women to break stereotypical perceptions about women drivers, also giving a nod to increasing and diversifying opportunities of employment for women. However, these ideas remained attractive only in principle and fizzled out sooner or later as most of these ventures did not succeed. A severe capital crunch due to unsustainable business models, limited funding options and lack of substantial supportive ecosystems for training and upkeep are possible reasons for failure. [5] Even so, the idea of a women-centric service continues to remain valuable because of the promise of safety which is produced through considerations of class, caste, gender and religion (Phadke 2005). Any alternative to avoid interaction with men from a lower class or caste background or from another religion (especially Hindu/Muslim in Mumbai) is welcome in a society which is deeply stratified and entrenched in caste-class systems of religion and economy alike.

Conclusion

The pervasiveness of the discourses of safety and risk in the ride hailing space became apparent to me during field research. Respondents indicated a heightened awareness of my gender, referring to me as “madam” and taking measures to ensure my safety. They advised me to use a separate phone to interact with drivers and moderated my interactions with drivers on the Telegram group (run by one of the Unions in Mumbai). Union representatives were also diligent in moderating the group to filter out abusive language as a token of respect for women. My apprehensions in interacting with drivers, most of whom were older men from a lower class/caste community, were also indicative of my social conditioning as an upper class and upper caste woman. Self-policing and boundary setting in both physical and virtual interactions, while necessary to some extent, were often rendered useless as the shifting of risks became apparent to me in my interactions with the drivers.

In this piece, I have tried to show how gendered norms govern the construction of safety and risk which in turn regulate social interactions. Limiting exposure in a personal cab as opposed to a public bus/train also heightens considerations of intimacy and proximity to a potential aggressor (often from a marginalised sociocultural background). Women-centric cab services mitigate this by promoting the image of the female driver who breaks social norms. However, these services dwindle till they completely disappear due to a capital crunch or insufficient infrastructural support. Patriarchal contexts reaffirm the woman as a risky object by highlighting narratives of vulnerabilities and insecurities in the ridehailing space. Besides the woman, the cab drivers are held accountable for bearing this risk and ensuring her sexual and physical safety. These patriarchal hierarchies of protectionism are sustained by platform workers’ affective labour which lubricate the wheels of the platform economy.

Endnotes

[1] https://www.thehindu.com/news/cities/Delhi/free-rides-for-women-only-the-starting-point-say-activists/article28111938.ece

[2] https://www.olacabs.com/media/in/press/ola-foundation-launches-drive-to-enable-sustainable-livelihoods-for-500000-women-by-2025

[3] https://www.buzzfeed.com/soniathomas/girl-power

[4] https://yourstory.com/2018/11/uber-gender-awareness-sensitisation-driver

[5] https://www.livemint.com/Companies/bo4534H8mOWo0oG6VQ0xbM/As-demand-for-womenonly-cab-services-grow-challenges-loom.html

References

Berrington, E. and Jones, H., 2002. Reality vs. myth: Constructions of women’s insecurity. Feminist Media Studies, 2(3), pp.307-323.

Campbell, A., 2005. Keeping the ‘lady’ safe: The regulation of femininity through crime prevention literature. Critical Criminology, 13(2), pp.119-140.

Chopra, R., 2006. Invisible men: Masculinity, sexuality, and male domestic Labor. Men and Masculinities, 9(2), pp.152-167.

Green, E. and Singleton, C., 2006. Risky bodies at leisure: Young women negotiating space and place. Sociology, 40(5), pp.853-871.

Nixon, D., 2009. I Can’t Put a Smiley Face On’: Working‐Class Masculinity, Emotional Labour and Service Work in the ‘New Economy. Gender, Work & Organization, 16(3), pp.300-322.

Park, J., Kim, J., Pang, M.S. and Lee, B., 2017. Offender or guardian? An empirical analysis of ride-sharing and sexual assault. An Empirical Analysis of Ride-Sharing and Sexual Assault (April 10, 2017). KAIST College of Business Working Paper Series, (2017-006), pp.18-010.

Phadke, S., 2005. ‘You Can Be Lonely in a Crowd’ The Production of Safety in Mumbai. Indian Journal of Gender Studies, 12(1), pp.41-62.

Phadke, S., 2007. Dangerous liaisons: Women and men: Risk and reputation in Mumbai. Economic and Political Weekly, pp.1510-1518.

Phadke, S., 2013. Unfriendly bodies, hostile cities: Reflections on loitering and gendered public space. Economic and Political Weekly, pp.50-59.

Ranade, S., 2007. The way she moves: Mapping the everyday production of gender-space. Economic and Political Weekly, pp.1519-1526.

Raval, N. and Dourish, P., 2016, February. Standing out from the crowd: Emotional labor, body labor, and temporal labor in ridesharing. In Proceedings of the 19th ACM Conference on Computer-Supported Cooperative Work & Social Computing (pp. 97-107). ACM.

Sarriera, J.M., Álvarez, G.E., Blynn, K., Alesbury, A., Scully, T. and Zhao, J., 2017. To share or not to share: Investigating the social aspects of dynamic ridesharing. Transportation Research Record, 2605(1), pp.109-117.

Tuan, Y.F., 2013. Landscapes of fear. U of Minnesota Press.

For more details visit https://cis-india.org/raw/anushree-gupta-ladies-log-women-safety-risk-transfer-ridehailing

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

Accessible Handsets Phones

praskrishna — 2011-08-22T12:47:21Z

word document

For more details visit https://cis-india.org/accessibility/publications/accessible-handsets.docx

Accessible Handsets

praskrishna — 2011-08-22T12:47:08Z

open office

For more details visit https://cis-india.org/accessibility/publications/accessible-handsets.odt

Accessibility of Government Websites in India: A Report

Nirmita Narasimhan, Mukesh Sharma and Dinesh Kaushal — 2012-09-26T08:16:55Z

The Centre for Internet & Society is pleased to announce the publication of a report on the accessibility of government websites in India. The report is published in cooperation with the Hans Foundation. Nirmita Narasimhan, Mukesh Sharma and Dinesh Kaushal are the authors.

Executive Summary

Website inaccessibility is the largest and most common barrier to implementing effective e-governance. In a country like India, where a very large percentage of the population is disabled, elderly, illiterate, rural, having limited bandwidth, speaks only a vernacular language or uses alternative platforms like mobile phones, having accessible websites becomes all the more important to ensure that government information and services which are available online are accessible and usable by these groups.

This report summarises the key findings of a test conducted to measure the accessibility of 7800 websites of the Government of India and its affiliated agencies against the Web Content Accessibility Guidelines (WCAG) 2.0, which is the universally accepted standard for web accessibility. It uses a combination of automated and manual testing to derive key findings. While the automated tool identified errors such as images without textual descriptions and HTML and CSS errors, manual testing was used wherever human decision was required, for instance, to judge whether a description of a link or image was indeed accurate, or to check for accessibility of forms.

Executive Summary

Highlights

Introduction

What is Accessibility?

Methodology

Findings and Interpretation

Known, Likely and Potential Problems
HTML and CSS Validation
Alternate Text for Non-text Objects

Recommendations

Appendix 1: Examples of Errors

Appendix 2: About the National Policy on Universal Electronic Accessibility

Appendix 3: List of Testers and Authors

Given below is the link to download the full report:

Accessibility of Government Websites in India: A Report (PDF)

For more details visit https://cis-india.org/accessibility/accessibility-of-government-websites-in-india

A Guide to the Proposed India-European Union FTA

glover — 2011-08-22T13:22:50Z

For more details visit https://cis-india.org/a2k/publications/CIS%20Open%20Data%20Case%20Studies%20Proposal.pdf

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

Centre for Internet and Society

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

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

Archives and Access

Anushree Gupta - Ladies ‘Log’: Women’s Safety and Risk Transfer in Ridehailing

Summary of the essay in Hindi: Audio (YouTube) and Transcript (text)

Platforms in Gendered Cityscapes

Uber’s ad on a billboard in Mumbai promises earnings of more than Rs. 1 lakh per month. Using a woman’s image illustrates the extent of their potential for transforming lives and livelihoods. Source: Drivers’ Union Telegram Group.

Terms of Safety

Gender, Safety, and Enterprise

Conclusion

Endnotes

References

Analysis of the Copyright (Amendment) Bill, 2010

Existing Copyright Act

Proposed Amendments

Some positive amendments

Some negative amendments

Missed opportunities

Accessible Handsets Phones

Accessible Handsets

Accessibility of Government Websites in India: A Report

Executive Summary

Table of Contents

A Guide to the Proposed India-European Union FTA

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