Centre for Internet and Society

The joys of being a Wikipedian

praskrishna — 2014-07-30T05:19:16Z

Radha Krishna, an engineer, had always wanted to share information online so that people who wanted to learn more could just log in and benefit by reading his articles. Eight years ago he started his own website for this very purpose. But he found it hard to maintain the site. He then chanced upon Wikipedia, the largest open-source encyclopedia, which was then just becoming popular in the country.

The article by Svetlana Lasrado was published in the New Indian Express on July 29, 2014. T. Vishnu Vardhan gave his inputs.

He registered an account on the website and started contributing to it by editing articles and adding references. Krishna, who has contributed over 4000 articles so far, prides himself on being one of the first few Wiki editors from Bangalore.

Komal Khatokar, on the other hand, has not spent as much time on the site as Krishna.

This 19-year-old B Com student of Christ University had to contribute one article to the Indian language Wikipedia last year as part of her assignment in a language of her choice, Sanskrit. She says, “I wrote an article on G V Iyer, who was the first person to direct a movie in Sanskrit.”

But it did not stop there. Last May, she took up an internship project with The Centre for Internet & Society (CIS), which acts as a catalyst for the Wikipedia movement in India. She wanted to explore the world of Wiki writing.

“I took part in a project to add articles from the Kannada encyclopedia online. We uploaded over 1200 articles, which will go live on the main website in October.” Komal now edits copies on the site and despite her hectic college schedule, wants to continue contributing to Wikipedia in any way that she can.

Anybody with an Internet access can edit an article on Wikipedia. Globally, the English Wikipedia has over 4 million articles and there are over a million registered users.

And in Bangalore, from just 10 members five years ago, there are now over 100 registered volunteers who contribute to the website on a daily basis, says Vishnu Vardhan, from CIS and adds, “Now, the maximum number of Wikipedians from India are from Bangalore and majority of the founding members of the Wikimedia India Chapter are also from here.”

Apart from English content, world over Wikipedia has many regional chapters covering over 200 languages to increase representation of region-specific content. In India, the Access to Knowledge programme developed by CIS works towards the growth of Indian language Wikipedias. In this regard, Vishnu states that Bangalore has a majority of active Kannada Wikipedia volunteers and is the single largest location for active Malayalam Wikipedians. Bangalore is also the second largest location for Telugu Wikipedia community after Hyderabad, he observes. The strong volunteer community is involved in the Wiki movement in ways more than one.

Different ways to contribute

Jeph Paul is not a Wikipedian in the traditional sense of the word. Why? Because he doesn't contribute or edit articles on the website. What he does is very technical. He develops tools and gadgets for Wikipedia in India to enhance user experience. Jeph got involved when Wikipedia started providing grants of up to $30000 to people who wanted to improve the usability and functionality of the website. Jeph applied and received $500 for his project. His project was simple -- he created a visual representation of how an article evolved. He explains, “There are over 100 editors who pore over just one article and modify it — the edits can be a sentence that is rewritten, a reference link added or citations made. But the changes are a lot and minute. I created a tool where people could see what changes are made and how the article evolves over a period of time.”

Besides developing tools and software, Jeph points out that users can generate visual content. For instance, there are some topics such as historical monuments which require visual documentation. Users can submit their visual repository to Wikipedia to enhance text content.

Wikipedia Caveats

Wikipedia, globally ranked sixth among all the websites based on web traffic, has laid down a list of rules and guidelines which users are required to follow. For instance, when one edits articles, one should avoid personal opinions. Komal cites a recent furore when there were slanderous remarks made against actor Ambarish.

“Such personal opinions should be reserved for blogs. Wikipedia is a public domain website. Hence, when you become a contributor, you have a certain responsibility. You should refrain from portraying biased sentiments through your articles,” she observes. Contemplating on this, Komal adds that Wikipedians should not fabricate content. "They should only include what’s already published and authenticate it using a credible source," she adds.

Another rule that is of utmost importance is compliance with copyright. Radha Krishna explains, “If you want to include information from a website or article, you can't copy the text verbatim. You have to analyse the content and paraphrase it based on your own understanding, citing legitimate references.”

When in doubt, the Wikipedians assert, it is always best to take help from other editors and collaborators through the ‘Talk’ option on the website or through monthly meetings.

It's easy to be a Wikipedia contributor:

Register: Although a visitor can edit articles, it is good to register to keep a record of your edits. You will also get an access to Wikipedia’s enhanced editing features.

Start with editing: Click the ‘Edit’ tab on the article’s page to modify the copy -- check typos, grammar, sentence structure and add an explanation. For example, if it is a spelling correction, add 'Typo'.

Preview: After editing, see a preview of the modifications by clicking ‘Show Preview’.

Save: Then save the changes by clicking the ‘Save Page’ tab.

Format: Wiki uses a markup language called wikitext to format text. Acquaint yourself with this language by reading the online tutorial. For instance, you can change a text to bold or italics by surrounding a word or phrase with multiple apostrophes.

Link: You can add inline citations by linking a word to another Wikipedia page. To do so, put the word in double square brackets. You can also change the display text.

Categorise: Add categories near the bottom of the article by typing the topic using Category:

Add footnotes: You can add reference tags around your source using <ref>Your Source</ref>.

Add external links: To add a link to an external credible website, type the URL inside a single set of brackets, followed by a space and the text to be displayed.

Talk to other editors: Use talk pages to discuss articles or any issues with other Wikipedians.

For a detailed tutorial on how to edit an article, visit http://en.wikipedia.org/wiki/Wikipedia:Tutorial

Wiki meets and awareness programmes: Since 2010, the Bangalore Wikipedia community has conducted over 40 meet-ups, according to Vishnu. “This helps increase participation among all volunteers, improves engagement and understanding of the work that is being done on an ongoing basis,” he opines.

Apart from this, their main focus is to get more people to join the fray through ‘Wiki Academy’ which travels to different organisations in the country to get people acquainted to the website and give them hands-on training on editing articles. Radha Krishna explains, “We recently conducted a workshop at C-DOT and Don Bosco Engineering College.” He adds, “Wikipedia has a lot of sister projects too like Wikiversity, Wikiquote, Wikisource, Wiktionary, which people are not aware of. We want people to make use of these tools too.”

Rules every Wikipedian should follow:

Don't share unpublished results

Don't expound your personal theories or start debates

Respect other editors

If you spot an error, correct it

Write without using jargons

Do not violate copyright and attribute statements

Do not promote yourself

Do not be biased in your tone of writing. Always cover significant point of views

Don't be afraid to ask for help

For more details visit https://cis-india.org/news/new-indian-express-july-29-2014-svetlana-lasrado

The International Copyright System and Access to Education: Challenges, New Access Models and Prospects for New Principles

praskrishna — 2012-06-01T04:29:36Z

This event organised by Max Planck Institute was held in Munich, Germany on May 14 and 15, 2012. Pranesh Prakash participated in this event.

List of Participants

Name	Affiliation
Mr. Olatunji Babatunde Adetula	Director, Nigerian Copyright Commission
Prof. Olufunmilayo Arewa	African University for Science and Technology & University of California School of Law, Irvine
Prof. Michael W. Carroll	Professor of Law, Director, Program on Information Justice and Intellectual Property, American University, Washington College of Law
Mr. Alberto Cerda Silva	S.J.D. Candidate Georgetown University Law Center, Research Associate,Knowledge Ecology International
Ms. Vera Franz	Senior Program Manager Open Society Information Program Open Society Foundations
Prof. Christophe Geiger	Associate Professor Director General Director of the Research Department CEIPI, Université de Strasbourg
Prof. Daniel Gervais	FedEx Research Professor of Law Co-Director, Vanderbilt Intellectual Property Program Vanderbilt University Law School
Ms. Cristiana Gonzalez	Senior Researcher Universidade de São Paulo
Ms. Teresa Hackett	Programme Manager EIFL
Prof. Dr. Reto M. Hilty	Managing Director Full Professor ad personam at the University of Zurich Honorary Professor at the University of Munich Max Planck Institute
Dr. Zorina Khan	Professor Department of Economics Bowdoin College
Dr. Kaya Köklü	Senior Research Fellow Intellectual Property and Competition Law Max Planck Institute
Ms. Eniko Kovacs	Program Manager Academic Fellowship Program, HESP Open Society Foundations
Mr. Ahmed Abdel Latif	Intellectual Property and Technology Senior Programme Manager International Centre for Trade and Sustainable Development
Ms. Mayara Nascimento Santos Leal	Division of Intellectual Property Economic Department Ministry of External Relations, Brazil
Prof. Lydia Loren	Professor of Law Kay Kitagawa & Andy Johnson-Laird IP Faculty Scholar Lewis & Clark Law School
Ms. Viviana Munoz Tellez	Programme Officer, IAKP The South Centre
Prof. Ruth Okediji	William L. Prosser Professor of Law University of Minnesota Law School
Mr. Pranesh Prakash	Programme Manager The Center for Internet and Society
Mr. G.R. Raghavender	Registrar of Copyrights & Director (BP & CR) Copyright Office Government of India, Department of Higher Education, Ministry of Human Resources Development
Prof. Jerome H. Reichman	Bunyan S. Womble Professor of Law Duke University Law School
Dr. Manon Ress	Director of Information Society Projects Knowledge Ecology International
Ms. Carolina Rossini	Senior Fellow at GPOPAI, University of Sao Paulo
Dr. Susan Strba	Expert and Author, Copyright L&Es for Education in Africa
Mr. Luis Villaroel Villalon	Director de Investigación Corporación Innovarte
Dr. Moktar Warida	First Secretary, Permanent Mission of the Arab Republic of Egypt to the United Nations
Ms. Raquel Xalabarder Plantada	Director, Learning Resources Vice President’s Office, Faculty and Academic Organization Open University of Catalonia

Workshop Associates

Name	Affiliation
Lindsey Niznik	Senior, University of Minnesota
Peju Solarin	Doctoral Candidate International Max Planck Research School on Retaliation, Mediation, and Punishment, Max Planck Institute

See the original here

For more details visit https://cis-india.org/news/workshop-on-education-and-copyright

The Intellects holds 2nd International Conclave of Odia Language

praskrishna — 2016-02-27T05:35:17Z

The Intellects, a Delhi-based progressive forum of intellectuals, held the 2nd International Conclave of Odia Language at the India International Centre in New Delhi today.

Subhashish Panigrahi participated in the event and won an award. Look for the coverage by Odisha News here.

The seminar had the title of ‘Aamari Bhasha Pathe’. The conclave was inaugurated by eminent Novelist and Writer Dr. Bibhuti Pattnaik and Rajya Sabha MP Baishnab Charan Parida among others. In the inaugural session, the speakers, including Shri Baishnab Parida, Dr. Natabar Satpathy, Dr. Amarendra Khatua, Poet Sankarshan Parida, Dr. Iti Samanta, Smt. Mamata Mohapatra, Mr. Subhasish Panigrahi stressed on the need of promotion of Odia language and its development on the global arena. They highlighted various angles of Odia language, its history and the challenges it faced apart from outlining the modalities to give it a big boost.

In the second leg, a Poets’ Conference was held. Dr. Jagannath Prasad Das, Dr. Amarendra Khatua, Poet Sankarshan Parida, Dr. Anita Panda, Poet Gajanan Mishra, Smt. Yashodhara Mishra, Poet Manas Ranjan Mohapatra and many other recited poems.

In the last leg, Kendra Sahitya Akademi President, Dr. Vishwanath Tiwari and Sir Mark Tully (former Bureau Chief of BBC, New Delhi), graced the occasion among others. Several eminent personalities were honoured and received the awards from The Intellects.

Ama Gourav Samman – Shri Bibhuti Pattnaik

Amari Bhasha Pathe Samman:

Shri Baishnab Parida
Dr. Amarendra Khatua
Smt. Kunu Dash
Dr. Iti Samanta
Dr. Natabar Satpathy
Shri Gajanan Mishra
Shri Sankarshan Parida
Smt. Mamata Mohapatra
Shri Kulamani Biswal

Yuva Prerana Samman:

Shri Subhasish Panigrahi
Shri Manoranjan Mohanty
Shri Subhranshu Panda

Swabhimani Odia Sanghthan Samman:

Biswajit Dash (IPROCH)
Sanjeev Mohanty (Odisha Forum)
Bijaya Kumar Dash (Sukha Dukha Prakashan)

Shri Debendra Rout, Chairman of The Intellects and Parambrahma Tripathy, Secretary (Literature), The Intellects, organised the event successfully with all their hard efforts.

For more details visit https://cis-india.org/a2k/news/odisha-news-february-22-2016-intellects-holds-second-international-conclave-of-odia-language

The Hathitrust Judgment and its impact on TVI negotiations at WIPO

Rahul Cherian — 2012-10-30T04:28:24Z

Those of you who have been following my earlier posts on the WIPO negotiations on the Treaty for the Visually Impaired will remember that one of the biggest concerns of the World Blind Union on the draft wording of the Treaty was with the definition of an “authorized entity” that can undertake conversion and distribution of accessible format copies.

Before the WIPO intersessionals began on October 17, 2012, the definition of “authorized entity” in the draft Treaty prescribed that only authorized entities that address the needs of beneficiary persons as one of their primary (in brackets) activities or institutional obligations can undertake conversion and distribution of books in accessible formats. This requirement is unacceptable since it will exclude many legitimate organisations and institutions that undertake these activities but who do not address the needs of beneficiary persons as a “primary” activity or institutional obligation. Some examples of such organisations/institutions are mainstream education institutions and mainstream libraries. Delhi University which has a large number of blind students will be excluded and this is unacceptable.

The main proponents pushing for the word "primary" was the United States and the European Union while India and other developing countries wanted the word to be deleted for obvious reasons. There was a virtual deadlock in the negotiations on this particular point.

The United States was pushing for the word “primary” because under US Copyright law, an authorized entity means a nonprofit organization or a governmental agency that has a primary mission to provide specialized services relating to training, education, or adaptive reading or information access needs of blind or other persons with disabilities. Under US law there was uncertainty as to whether educational institutions and libraries would be covered under the definition of “authorized entity”.

Enter the HathiTrust Judgment http://www.tc.umn.edu/~nasims/HathivAG10_10_12.pdf. The judgment, which was pronounced a few days before the October WIPO intersessionals by the New York Southern District Court, held that libraries and educational institutions fall under the definition of “authorized entities” under US law.

The US delegation to WIPO was instantly alerted about this judgment and was requested to negotiate broader wording for authorized entities under the Treaty as was now the position under US law.

At the intersessionals that concluded on October 19, as observers, we were not allowed into the room and the discussions were happening between the Member States but at the end of the intersessionals this is the proposed wording of authorized entity:

Authorized entity means an entity that is authorized or recognized by the government to provide education, instructional training, adaptive reading or information access to beneficiary persons on a non-profit basis. It also includes a government institution or non-profit organization that provides the same services to beneficiary persons as one of its primary activities or institutional obligations.

As can be seen from above, this definition is broader than the previous definition since the word primary has been deleted from the main definition and it explicitly covers educational institutions and libraries. It is also interesting to note that even for profit entities that provide the above services on a non-profit basis to beneficiaries are covered.

It remains to be seen what form the definition of authorized entities will take but the HathiTrust judgment has definitely helped in the negotiation process.

The next meeting of the Standing Committee on Copyright and Related Rights takes place in Geneva between November 19 and November 23, 2012.

Watch this space for updates. See my earlier posts on the WIPO negotiations.

For more details visit https://cis-india.org/accessibility/blog/hathitrust-judgment-and-its-impact-on-tvi-negotiations-at-wipo

The Game of IPR: Insights from the 6th Global Intellectual Property Convention in Hyderabad

samantha — 2014-01-31T09:56:10Z

IP practitioners and IP creators were among the 1700 participants to gather at the Hyderabad International Convention Centre earlier this month. Here, CIS had the opportunity of listening in on perspectives around the “Optimization of economic value of innovation & IPR in the global market” while attending numerous talks and sessions that were held over the course of the convention’s three days.

One of the event's speakers, Mr. Narendra Sabharwal, IPR-Chair of FICCI, speaks of the immense value of IPR, while serving as protection as well as collateral for investors. (Photo credit: GIPC 2014)

This year’s Global Intellectual Property Convention (GIPC) was held in Hyderabad January 16-18, 2014 by ITAG Business Solutions Ltd. in association with the Institute of International Trade (iitrade). As the 6th of its kind, the event was held in hopeful contribution “towards society with the active support and cooperation of the IP fraternity,” says ITAG Founder and Director, Dr. D. R. Agarwal, while offering a “good opportunity for learning and business networking through one to one interaction in a pre-arranged manner under a conducive environment.”

The theme at bay had been “Optimizing the economic value of innovation & IPR in global market.” In respect of this central focus, common themes across panel discussions and workshops included IP management, monetisation, application drafting, and litigation, with particular emphasis on India’s ‘Pharma’ industry. Over 100 speakers and panelists shared their personal knowledge from experience in the industry, and largely consisted of representatives from law firms, IP consultancies, pharmaceutical companies, and business organisations; all of which from India, Europe and the USA. As an attendee representing the Centre for Internet & Society (CIS), a research institute that works to address issues related to intellectual property (IP) reform, I had the privilege of listening to such perspectives on intellectual property from an alternative outlook.

On the other hand, if exploiting too much by “abusing one’s monopoly, you are [setting] certain conditions, which are neither germane nor connected to the patent, and more than what is statutory permissible.” Kumaran stresses the necessity for the intellectual property right (IPR) holder to comply to the rights given by statutory law.

The name of the game is the quality of drafting. It is the first and last chance." Vaidya D.P.,

Lakshmi Kumaran & Sridharan

Mr. Narendra Sabharwal, Panellist and IPR-Chair for the Federation of Indian Chambers of Commerce (FICCI), sought to demonstrate the immense value of innovation and IPR in technology, arts and culture globally, in explaining that a large portion of the EU’s GDP (39%), and employment (26%) are derived from IP-intensive industries (See study by European Patent Office here). Also argued was that enterprises and institutions can increase value through licensing of products and services, while also serving as protection, and which can then become “excellent collateral for investors,” he says. Among other points made, Sabharwal mentioned the need for more incubators in India. Currently, India acquires 200 new incubators each year compared to China’s 8000 new incubators annually. Opening more incubators will encourage innovation, he argues, leading to more marketable products and solutions.

Mr. William H. Manning, Partner of Robins, Kaplan, Miller & Ciresi L.L.P (USA), took on the role of the story teller while sharing particularly interesting cases of previous clients. Manning had explained the necessity to ask one question over and over throughout the entire IPR application process; that question being: “What difference does the invention make?”

In doing so, Manning was even able to take what would have been an ‘incremental’ patent—which is just distinct enough from prior art to get by—and turn it into a ‘foundational’ patent—generally adopted by the industry for 10-20 years before moving to a different technology. The better of these two types, however, is the ‘pioneering’ patent, an inventive leap in itself. This client success story definitely affirmed Speaker and Director of Lakshmi Kumaran & Sridharan, Vaidya D. P., when he said that “the name of the game is the quality of drafting. It is the first and last chance.” Manning had also claimed that 99.9% of patent in India are said to be incremental patents, with none being pioneering—at least not from the patent applications he’s seen in his 34 years of experience, anyway.

Also a rule of this game is the “Take now—pay later” rule, according to Manning, in which enterprises may “ignore the problem for now and move ahead with the product. If somebody sues you for patent litigation…. Take now—pay later.” Here, he makes reference to the judgements enterprises may make when misusing or infringing upon an IPR, while assessing the worth of doing so with the risks that may lie ahead. Often, an enterprise may find that it is more worthwhile to misuse or infringe and reap the benefits in the “now” while knowing there may be a chance they will have to “pay later.”

Throughout the convention, what I expected to be the elephant in the auditorium was surprisingly addressed quite often. Best said by Panellist, Mr. Mohan Dewan, “IPR only becomes an asset when it is misused or infringed upon.” Principal to R K Dewan & Co., Dewan compares IP rights with car insurance, which can only be cashed in when the car is stolen.

Applying for an IPR is a game in itself, that requires much knowledge of how it is played. Grab those power-ups or get eaten.	He then posed the question “how can we increase the economic value of an asset?”—presumingly so that one can capitalize when opportunity comes knocking—and responded to it in recommending the following measures: 1) ensuring one’s IPR is as strong as possible by drafting it according to national standards, 2) optimal protection—it is easier to register more than one at once! 3) diligence in auditing and licensing, and 4) staying alert and questioning what people are doing around you. These are only a few excerpts of the event’s many talks and panel discussions, yet these insights alone help to reveal the nature of the system where intellectual property rights reign. This is surely a system to be familiar with if it is within one’s interest to receive IPR for protection, yet I find it difficult to stop at the word “protection.” When you must learn how to play the game to ensure that you stay in it, I would say that IPR can extend well beyond protection, to be better off referred to as strategy. A strategy that enables you to reach a higher level and protects you from your opponents’ wrath. The higher the level, the more power-ups in reach and the higher you go. All the while undermining their chances of climbing up to where you are, and knocking them to even lower levels when possible. Lucky for you the majority of players are still stuck at level 1, but the nasty ones may be right behind you.

Applying for an IPR is a game in itself, that requires much knowledge of how it is played. Grab those power-ups or get eaten.

He then posed the question “how can we increase the economic value of an asset?”—presumingly so that one can capitalize when opportunity comes knocking—and responded to it in recommending the following measures: 1) ensuring one’s IPR is as strong as possible by drafting it according to national standards, 2) optimal protection—it is easier to register more than one at once! 3) diligence in auditing and licensing, and 4) staying alert and questioning what people are doing around you.

These are only a few excerpts of the event’s many talks and panel discussions, yet these insights alone help to reveal the nature of the system where intellectual property rights reign. This is surely a system to be familiar with if it is within one’s interest to receive IPR for protection, yet I find it difficult to stop at the word “protection.” When you must learn how to play the game to ensure that you stay in it, I would say that IPR can extend well beyond protection, to be better off referred to as strategy.

A strategy that enables you to reach a higher level and protects you from your opponents’ wrath. The higher the level, the more power-ups in reach and the higher you go. All the while undermining their chances of climbing up to where you are, and knocking them to even lower levels when possible. Lucky for you the majority of players are still stuck at level 1, but the nasty ones may be right behind you.

For more details visit https://cis-india.org/a2k/blogs/the-game-of-ipr-insights-from-the-6th-global-intellectual-property-convention-in-hyderabad

The First Punjabi Wikipedia Workshop

Shiju Alex and Subhashish Panigrahi — 2012-10-04T12:16:44Z

For those who might not be aware, Punjabi Wikipedia is one of the first Indic Wikipedias where community started editing way back in 2002. However, after the initial few edits all activities got stopped and it was inactive over the last decade. Recently we conducted a few workshops that led to the revival of Punjabi Wikipedia. This post is about the first Punjabi Wikipedia workshop held in Ludhiana, Punjab on July 28, 2012.

Surinder Wadhawan, a Mumbai based Wikipedian played an important role in designing this workshop and introducing Punjabi Wikipedia to the Punjabi speakers. The interest and enthusiam showed by Surinder encouraged long-time Punjabi wikipedian G.S.Guglani to join this workshop.

About 25 participants came over for this workshop. The College of Computer and Information Technology (CCIT) supported in hosting this event.

Sarabjit Singh, CEO of the organization introduced the invited guests and explained briefly about the session. Surinder thereafter made a presentation explaining the basics of Wikipedia editing. Guglani, one of the old and active editors of Punjabi Wikipedia talked about the Punjabi Wikipedia and its present situation. He then invited one of the participants and helped her creating her user account and edit an article. Janmeja Singh, a Punjabi language researcher spoke about unicode standards and the importance of Wikipedia for Punjabi language. Gurjeet Singh, another new wikipedian demonstrated Punjabi typing using commonly used keyboards with Roman characters for those who were not aware of typing in Punjabi.

We then started the editing session. Out of them 15 new editors (of which 13 were female) edited various articles. We showed them the typing support page (http://bit.ly/Uw8WaV) on Punjabi Wikipedia and distributed the same in printed form (http://bit.ly/Rk9wde). Guglani, Subhashish and Surinder helped editors with basic editing and referencing. New Wikipedians were also informed about the Punjabi Wikipedia Facebook page (http://on.fb.me/Pr7tBE ).

Above is a picture of all the participants from the Punjabi Wikipedia workshop

The workshop was covered in Signpost (http://bit.ly/SSvUYh). There was some media coverage as well:

Daily Ajit: http://bit.ly/OWPozC
The Tribune: http://bit.ly/UMrDvs
Hindustan Times: http://bit.ly/UMrNTn
PunjabInfoline: ‪http://bit.ly/UZhoT8
YesPunjab.com: http://bit.ly/OcMANc

Photos: http://commons.wikimedia.org/wiki/Category:First_Punjabi_Wikipedia_Workshop,_Ludhiana

Note: Although the workshop was conducted prior to the grant period, the report was written in the month of September, and hence, we are featuring this.

For more details visit https://cis-india.org/openness/first-punjabi-wikipedia-workshop

The Fight for Digital Sovereignty

sunil — 2013-10-25T07:29:22Z

It is time to incorporate free software principles to address the issue of privacy. Thanks to the revelations of Edward Snowden, a former contractor to the United States (US) National Security Agency (NSA) who leaked secrets about the agency’s surveillance programmes, a 24-year-old movement aimed at protecting the rights of software users and developers has got some fresh attention from policymakers.

The article was published in the Economic & Political Weekly, Vol-XLVIII No. 42, October 19, 2013

The free and open source software movement (often collectively labelled as FOSS or sometimes FLOSS, with the “l” standing for “libre”) guarantees four freedoms through a copyright licence – the freedom to use for any purpose, the freedom to study the code, the freedom to modify it and the freedom to distribute the modified code gratis or for a fee. Free software principles have permeated the world in the form of movements around open standards, open content, open access and open data. The second freedom is the most critical in an open society. Privacy, security and integrity are best achieved through the transparency guaranteed by free software rather than the opacity of proprietary software.

Free software is directly useful in deciding on the software required for your device operating system and applications. NSA’s surveillance programme covered operating system vendors like Microsoft and Apple, and application vendors like Skype. The concerns raised by such surveillance programmes are best addressed by shifting to free software. Increasingly, this is possible on mobile devices because of the availability of Android derivatives that keep Google’s nose out of your business and on other personal computing devices through GNU/Linux distributions such as Ubuntu. Ideally, this should be accomplished by a mandate for government and public infrastructure in specific areas where free software alternatives are on par with proprietary competitors. Two other policy options remain outside procurement policies for hardware – code escrow and independent audits. Firms that are willing to share code with the government should be preferred over those that do not, thereby encouraging proprietary software companies to provide for the second freedom in free software within a limited context. Code escrow could improve the quality of the independent audit.

Unfortunately, open hardware based on free software principles is still a fringe phenomenon in terms of market share. The Indian government cannot afford bans on foreign products, unlike the intelligence and military of Australia, the US, Britain, Canada and New Zealand, which recently prohibited the use of Lenovo machines in “secret” and “top secret” networks. Last October, the US government banned US telecos from using equipment from Huawei and ZTE. Both these bans are not based on any credible public evidence regarding back doors in any of the products manufactured by these Chinese companies. The Indian government, using funds like the Universal Service Obligation Fund, should support competitive research to reverse-engineer and analyse all foreign and indigenous hardware to ensure that there is no national security threat or infringement on the individual’s right to privacy. One example would be a research project to determine whether China-manufactured phones call home when they are used on Indian telecom networks.

Cloud and other online services run by corporations could also completely undermine privacy and security. This again can be partially addressed through the transparency enabled by free software and open standards. To begin with, the government must ban the use of Google, Yahoo, Hotmail, etc, for official purposes by those in public office, law enforcement and the military, while simultaneously mandating the use of cryptography for all sensitive material and communication. It should not, however, mandate the use of National Informatics Centre (NIC) infrastructure as it may be a single point of failure; instead, a variety of open-standards-compliant and free-software-based infrastructure for all public sector information communication technology (ICT) requirements should be encouraged. This procurement bias will result in the growth of domestic server administration and security competence, thus creating and contributing towards the establishment of a market for affordable privacy and security-enhanced services that ordinary citizens and private sector organisations can access.

The end objective through means such as free software, open hardware, code escrow and independent audits is sovereignty over software, hardware, cloud and network infrastructure. However, the state, the private sector, the consumer and the citizen may disagree on the details. Apart from law enforcement and national security concerns that may require targeted surveillance, there are other occasions when technological possibilities may have to be curtailed through policy to protect human rights and the public interest. For example, to implement the internationally accepted privacy principle of notice on electronic recording devices, some jurisdictions may require that video recorders display a blinking red light and that digital cameras make an audible click sound just like analog cameras. This was first initiated in South Korea to reduce the incidence of “upskirt photography”. This type of law may become more commonplace when technologies like Google Glass become more popular. In other words, absolute digital sovereignty may need to be curtailed in order to protect human rights in certain circumstances. But code could be used to resist regulation through law, thereby converting both the software and hardware layers of devices and networks into a battleground for sovereignty between the free software hacker and the state.

For more details visit https://cis-india.org/a2k/blogs/epw-vol-xlviii-42-october-19-2013-sunil-abraham-the-fight-for-digital-sovereignty

The Dynamics of Education to Employment Journey: Opportunities and Challenges

praskrishna — 2014-04-14T09:40:19Z

KIIT School of Management, KIIT Univeristy is holding the 7th National Management Convention 2014 at its campus in Bhubaneswar on February 21 and 22, 2014. T. Vishnu Vardhan and Subhashish Panigrahi have been invited to address the students of KIIT University.

Click to download the event brochure

Vishnu Vardhan and Subhashish Panigrahi spoke at the event and also evaluated submissions by students and researchers. Subhashish's presentation titled Redefining Education to Employment Journey: Voices of the Youth/Students can be accessed here.

For more details visit https://cis-india.org/news/dynamics-of-education-to-employment-journey

The Digital Protection of Traditional Knowledge: Questions Raised by the Traditional Knowledge Digital Library in India

Sunil Abraham and Vidushi Marda — 2016-12-09T15:50:36Z

This is an edited version of part three of a study that considers the International Covenant on Economic, Social and Cultural Rights (ICESCR) through aspects of intellectual property in India, namely, mobile patents, free and open source software, and India's Traditional Knowledge Digital Library. Through these, it demonstrates the potential of the internet in realising ESCRs.

The original report published by GISWatch can be read here. Aditya Singh Chawla, Parvathy Nair, Raji Gururaj and Balaji Subramaniam provided research assistance for this paper during their internships with the Centre for Internet and Society. Click to download the PDF

Introduction

The first problem one encounters in studying traditional knowledge (TK) is the extent and meaning of the term itself. No globally accepted definition of TK exists,^[1] and therefore no clear delineation of its scope. The definition adopted by the World Intellectual Property Organization (WIPO) is that TK is “knowledge, know-how, skills and practices that are developed, sustained and passed on from generation to generation within a community, often forming part of its cultural or spiritual identity.”⁴ While TK embraces traditional cultural expressions within its ambit, and includes distinctive signs and symbols associated with traditional knowledge,^[2] the scope of this report does not extend to traditional cultural expressions as they necessarily would fall under the purview of copyright law.

Before we frame TK in terms of economic, social and cultural rights (ESCRs), let us understand the phenomenom of biopiracy in a bit more detail using two examples, one connected to the right to food, and the other connected to health. Biopiracy is the use of intellectual property (IP) systems to legitimise control over biological products and processes that were previously used for centuries in non- industrialised cultures.^[3] The case of neem-related patents, through which bio-prospectors attempted to appropriate the royalty arising from a plant whose medicinal value was already in the public domain, is well documented.^[4] Another case worth noting is that of the “Enola bean”, in which Larry Proctor, a United States (US) citizen, purchased a package of Mexican beans of various colours, separated out the yellow ones, and spent three years selectively breeding the plants. He then named his line “Enola” and obtained patent protection for the bean, its plant, its pollen, and the method of producing it.^[5]^[6]

This case is far more worrying than the neem case for two reasons.^[7] First, it was a case that had an immediate and tangible impact on the producers of the commodity in that yellow Mexican beans were exported into the United States before the patent was granted, and the assertion of the patent led to significant reductions in bean exports, representing a quantifiable economic loss for bean farmers.^[8] Second, the patent was allowed to stand for almost a decade, amounting to half the life of a legitimate patent.^[9] This represents an incredibly unjust outcome – an invention (“specifically selected yellow beans”) arising from traditional knowledge in the public domain (since Mexican farmers had been cultivating and exporting these beans) being monopolised by a private entity illegally for almost a decade.

The differences between TK and other forms of IP are the following:

With other forms of IP, property rights are afforded to the innovator or creator, whereas communities own TK.
Other forms of IP are designed as incentive mechanisms for the creation of new property; however, there is no such incentive to create new property with TK.
IP is also time-bound, whereas TK is held in perpetuity from generation to generation.
The invention under IP must also satisfy the requirement for novelty and industrial application, whereas TK does not have these requirements.

Although patent law is not tailored to protect TK, it has been used to prevent misappropriation of TK.

The Traditional Knowledge Digital Library

At the turn of the millennium, an expert group found that roughly 2,000 patents linked to India’s TK in medicine were being granted annually around the world.^[10] This expert group proposed the establishment of the Traditional Knowledge Digital Library (TKDL)¹³in order to reduce biopiracy. The TKDL was envisaged as “a home-grown effort to ensure patent offices around the world do not grant patents for applications founded on India’s wealth of TK that has existed for millennia.”¹⁴ In 2001 India launched the initiative, which digitised its wide repository of TK, with the hope of enabling the protection of this knowledge and preventing its misuse.

The TKDL is a digital knowledge repository of Indian traditional knowledge about medicinal plants and formulations, and practices used in Indian systems of medicine. Its knowledge base is primarily derived from Ayurveda, Unani, Siddha and Yoga. These areas are being documented by collating the information on TK from literature existing in local languages such as Sanskrit, Urdu, Arabic, Persian and Tamil in digitised format. These have been made available in five international languages: English, German, Spanish, French and Japanese. While it is clear that the first three systems of medicine (i.e. Ayurveda, Unani and Siddha) are systems that have a corresponding system of traditional medicines, the framing of Yoga as a system of medicine is unclear as there is no medicine administered to the patient. Increasingly, however, medical procedures are being patented, and the Indian government in August 2015 shortlisted 1,500 yoga asanas to be included in the TKDL to prevent foreign parties from patenting them.^[11] This was in response to several yoga-related patents being applied for^[12] and granted^[13] around the world, notably in the United States.

The TKDL’s appeal lies in the manner in which it approaches attempts to patent TK (the “state of the art”) – it serves to pre-empt the granting of a patent, rather than to contest a patent’s validity after it has been granted. This, it is claimed, reduces the time taken to contest claims from a matter of years to a few weeks.^[14]

Defining the right

The protection of TK can be primarily placed within Article 15 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). In order to understand the relationship between TK and Article 15, we must first appreciate that TK is also scientific knowledge. There are two ways in which the right of the TK community can be mapped onto Article 15. First, the Article recognises “the right to take part in cultural life”, and second, “to enjoy the benefits from scientific progress and its applications”. This ensures that communities have the right to continue to operationalise and use TK. Further, Article 15 includes the right “to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production”. However, while this is a universal right, in practice it will only happen when national law recognises the property rights of the community, facilitates protection of these rights, takes legal action against infringements, and provides mechanisms for the collection and distribution of royalties. What might not strike the reader as obvious is that the benefits of protecting the moral and material interests in the world of TK accrue to the community, while in other forms of IP the rights holder is either an individual or corporation.

Article 11 of the ICESCR is also relevant to TK. It recognises the right of everyone to an adequate standard of living, including adequate food, clothing and housing, and to the continuous improvement of living conditions. Article 11 (2) (a) mandates that states parties to the Covenant take measures to “improve methods of production, conservation and distribution of food by making full use of technical and scientific knowledge, by disseminating knowledge of the principles of nutrition and by developing or reforming agrarian systems in such a way as to achieve the most efficient development and utilization of natural resources.”^[15] TK is connected to food in multiple ways, such as ecosystem and landscape management, water management, soil conservation, biological control of pests and diseases, ecological agriculture and livestock practices, and plant and animal breeding – and most importantly, with regard to the latter, breeding and preserving varieties of plant and animal species. Suman Sahai, founder of the Gene Campaign,^[16] helps us understand the connection between food security and traditional knowledge. She argues that farmers are a community of women and men who have not only created several thousand breeds of food and cash crops, but also “identified valuable genes and traits in these crops and maintained them over generations through a highly sophisticated system of crossing and selection.”^[17]

There exist a host of international and national norms, both of a general and a specific nature, enunciating the right of indigenous communities to their traditional knowledge. One specific example is the World Health Organization’s approach to Traditional and Complementary Medicine (T&CM). In this, it urges states to “prevent the misappropriation of T&CM by implementing the relevant international instruments in line with the WHO global strategy and plan of action on public health, innovation and intellectual property, adopting or amending national intellectual property legislation, and enacting other defensive protection strategies.”^[18]

India has signed the Convention on Biological

Diversity (CBD), a treaty with 194 parties in total.^[19] The CBD provides for the respect, preservation and maintenance of “knowledge, innovation and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity”, and also for encouraging the wider application of such practices while ensuring that the benefits arising from such utilisation are shared equit ably with the communities in question.^[20] Having signed this convention, India has the duty to protect this knowledge without appropriating it, and the TKDL is a means to protect this right.

Such provisions have been included in India’s Biological Diversity Act,^[21] which was enacted in pursuance of India’s duties under the CBD. Restrictions on the granting of patents for inventions arising from research on biological resources,²⁶ the transfer of biological resources or knowledge,^[22] and the enforcement of equitable benefit sharing^[23] aim to serve as effective legal bars to biopiracy and unauthorised use of traditional knowledge.

Successes of the TKDL

Since the inception of the TKDL, in just under two years, and in Europe alone, India has succeeded in using this resource to bring about the cancellation or withdrawal of 36 applications to patents traditionally known as medicinal formulations.

Between 2001 and 2015, out of a total of 189 pharmaceutical applications which include medicines, therapeutics, etc., 21 were granted while 17 were rejected. An additional 30 were deemed withdrawn and another 31 were abandoned. At the time of writing, 90 have their examination still in progress. Out of the 10 applications under cosmetics, seven are under progress while one each has been accepted, rejected and deemed to be withdrawn. There was only one application under agriculture which was rejected. The domain of food had three applications out of which one was rejected, one deemed to be withdrawn and the last one in progress.^[24]

India and the US had the maximum number of applications at 75 and 43 respectively. Japan and Korea were third and fourth at 16 and 11 respectively. Most of these applications were in progress, with 12 applications from India being rejected and 17 being abandoned. Only five had been granted to India while three were deemed to be withdrawn; 38 of India’s applications and 12 of those from the US are pending. Taiwan and Jordan’s only applications were granted while Spain’s only application was rejected.^[25]

But do digital databases work as a form of IP protection?

While proponents of the database have been vocal in their vision for its application, it has received criticism on several grounds.

First of all, there is a fair amount of disagreement regarding the best possible means through which TK can be protected.^[26] Indeed, existing literature already features catalogues of international law (both “hard” and “soft”), regional norms and domestic legislation that accord protection to TK within the framework of culture.^[27] While some believe that data aggregation and record creation is the best means to tackle biopiracy, others propose different approaches,^[28] such as negotiating access agreements between indigenous communities and bio-prospectors.^[29]

Secondly, the TKDL has also attracted criticism because of its high level of confidentiality. In response to a right to information application, the Council for Scientific and Industrial Research (CSIR) clarified that the TKDL can only be accessed by foreign patent offices.^[30] It is not made available to the Indian Patent Office or to CSIR scientists. As per the same response, the decision to make the TKDL confidential was taken during a cabinet meeting in 2006, but there exists no legal instrument that mandates such confidentiality. TK databases in other countries do not impose access restrictions. The Korean Traditional Knowledge Portal, for example, explicitly states the motivation behind making itself publicly available:

The database is presented on-line through the Korean Traditional Knowledge Portal (KTKP). The reasons for making the database publicly accessible through the KTKP are as follows:

To lay the foundation for international protection of Korean traditional knowledge, thereby preventing unauthorized use of patents inside and outside the country.
To provide an abundance of information on traditional knowledge and related research, thereby expediting the development of related studies and industries.
To provide essential information for patent examinations, thereby enhancing the quality of intellectual property applications for traditional knowledge.^[31]

Similarly, the contents of the China Traditional Medicine Patent Database are also publicly available on the internet.^[32]

Finally, the TKDL has also raised questions of copyright, with claims that it falls foul of the Indian Copyright Act, 1957, since it has digitised works (such as translations or compilations of ancient texts) that are still under copyright without the consent of their authors.³⁸ Responding to the same right to information application discussed above, the CSIR claimed that no consent was required since the traditional knowledge in question was authored many years ago. This is a perplexing position to take, as there is significant skill and labour involved in translating and compiling these ancient texts and putting this knowledge together, which merits copyright protection.^[33]

The need for open knowledge systems

There seems to be no reason to keep a valuable resource such as the TKDL away from the public’s reach, especially considering the fact that the entire project was bankrolled by the Indian taxpayer. Restricting access to the TKDL severely limits the benefit that the general public could derive from this knowledge. Even if one were to accept that there exist compelling reasons to keep the data confidential, it is clear that the TKDL, by its very nature, cannot possibly be invulnerable to breach. Problems of access control are endemic to large databases – it has been postulated that large aggregations of secret data are fundamentally impossible because security must be traded off for ease of access in such situations. Thus, “you cannot construct a database with scale, functionality and security because if you design a large system for ease of access it becomes insecure, while if you make it watertight it becomes impossible to use.”^[34] For this reason, governments have been urged to make use of centralised databases only when absolutely necessary.^[35] If we accept the premise that centralised databases cannot possibly be both accessible and secure, then we must examine whether the TKDL represents a balanced trade-off between accessibility and confidentiality.

There are three changes that are necessary in this regard:

The need to push for open knowledge A system like the TKDL constitutes a mechanism for defensive protection of TK – it seeks to keep TK in the public domain rather than to exclusively put it in the hands of the community that evolved it. This is similar to the Peer-to-Patent^[36] initiative, which ensures that more eyes are involved in following the process: a crowd-sourced approach to preventing inappropriate appropriation.

The need to address legal barriers Primarily, the TKDL’s data seems to be far from infallible, with several reports of mistranslations^[37] and exaggerated claims^[38] made by the CSIR. Apart from this, the most important requirement that the TKDL must fulfil is for its data to meet the legal criteria established for prior art in various jurisdictions. This would entail ensuring that the knowledge is made available with clear evidence of the date of its publication, and the presentation of the knowledge in a manner that clearly establishes that a patent claim is anticipated by the data contained in the library.^[39] Further, the fundamental challenge faced by any defensive protection mechanism is its vulnerability to differing definitions of prior art in various jurisdictions:

European Patent Convention (EPC): The most TKDL-friendly jurisdictions are those such as the EU. The EPC defines prior art as “everything made available to the public by means of a written or oral description, by use, or in any other way, before the date of filing of the European patent application”.^[40] Thus, innovations detailed in the works indexed by the TKDL would fall within the definition of prior art, and therefore be unpatentable – assuming, of course, that all the works digitised and translated by the database were publicly available. An overwhelming majority of the TKDL’s self-proclaimed “successes” have been achieved in the EU – around 120 of the 180 “successful outcomes” are against European patent applications.^[41]
United States: On the other end of the spectrum is the US definition of prior art. The United States Patent Act provides that a person “shall be entitled to a patent unless (a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent.”⁴⁸ This effectively excludes protection for any non-published knowledge outside the US. Further, given the restrictive access to the TKDL, it appears that the database would not fall within the definition of a “printed publication”, since it has never been “published” – merely circulated among patent examiners on conditions of non-disclosure. Thus, it appears that there is no legal basis for the TKDL to be cited as evidence of prior art in the US, or other jurisdictions that have similar definitions of prior art.^[42]

The need to address structural barriers

In choosing to characterise itself as an archive of prior art, the TKDL has placed the burden of enforcing TK assertions upon patent examiners around the world. In doing so, it has pigeonholed itself into a doctrine (namely prior art) that has a tendency to go largely unheard in patent examinations. With studies showing that more experienced patent examiners, typically occupying higher positions in the patent office, are less likely to cite examples of prior art in their examinations,^[43]^[44] and still other evaluations showing that applicants for patents are extremely unlikely to provide and identify prior art surrounding their claims,^[45] it is evident that there are structural imbalances working against the efficacy of the prior art doctrine in preventing illegitimate patent claims. Thus, efforts must be made to counter this imbalance at two levels: first, access to the TKDL must be made as easy as possible; second, the TKDL has to undertake proactive patent monitoring efforts.

Patent monitoring, while an onerous and expensive task, is nevertheless necessary for the success of a defensive system such as the TKDL, especially in those jurisdictions which do not have the legislative framework to enable provisions of the CBD that mandate disclosure of genetic material sources.

Conclusion

For the reasons stated above, the access policy of the TKDL requires significant modification if the database is to reach its true potential for providing accurate, efficient and time-bound protection to TKbased innovations through the use of a centralised database that is wired into a network of interested parties.

TK systems require all the external support they can get in order to protect their mandate. Civil society must engage effectively with the TKDL initiative, encourage the accuracy of its records through research, and stimulate dialogue regarding the key issues discussed in this report. As pointed out by the UN Special Rapporteur on the rights of indigenous people: “Much more needs to be done to understand fully how … treaties and agreements can undermine or reinforce indigenous peoples’ rights and how they shape the trajectories of national economic development plans.”^[46]

[1] Traditional Knowledge, WIPO. www.wipo.int/tk/en/tk 4 Ibid.

[2] WIPO. (2010). List and Brief Technical Explanation of Various Forms in which Traditional Knowledge May be Found. www.wipo.int/ meetings/en/doc_details.jsp?doc_id=147152

[3] Shiva, V. (2001). Protect or Plunder? Understanding Intellectual Property Rights. London: Zed Books.

[4] See, e.g., Horsbrugh Porter, A. (2006, 17 April). Neem: India’s tree of life. BBC. news.bbc.co.uk/2/hi/south_asia/4916044.stm; BBC. (2005, 9 March). India wins landmark patent battle. BBC. news. bbc.co.uk/2/hi/science/nature/4333627.stm; Hoggan, K. (2000, 11 May). Neem tree patent revoked. BBC. news.bbc.co.uk/2/hi/ science/nature/745028.stm

[5] In re POD-NERS, L.L.C., Re-examination No. 90/005,892, US Fed.

Cir. 2009. law.justia.com/cases/federal/appellate-courts/cafc/08-

[6] /08-1492-2011-03-27.html

[7] It is also noteworthy for another reason: it is illustrative of the time and effort required to contest claims after a patent has been granted. Proponents of the TKDL would argue that what took a decade in the Enola bean case could have been achieved in a manner of weeks at the application stage by a patent office equipped with such a database.

[8] Shashikant, S., & Asghedom, A. (2009, 12 August). The ‘Enola Bean’ dispute: patent failure & lessons for developing countries. Third World Network. twn.my/title2/wto.info/2009/ twninfo20090811.htm

[9] Crouch, D. (2009, 10 July). Mexican Yellow Bean Patent Finally Cooked. Patently-O. patentlyo.com/patent/2009/07/mexican yellow-bean-patent-finally-cooked.html

[10] Gupta, V. K. (2011). Protecting Indian Traditional Knowledge from Biopiracy. WIPO. www.wipo.int/export/sites/www/meetings/ en/2011/wipo_tkdl_del_11/pdf/tkdl_gupta.pdf 13 www.tkdl.res.in/tkdl/langdefault/common/Home.asp?GL=Eng 14 Gupta, V. K. (2011). Op. cit.

[11] PTI. (2015, 9 August). Over 1500 yoga asanas shortlisted to thwart patenting by foreign parties. Indian Express. indianexpress.com/ article/india/india-others/over-1500-yoga-asanas-shortlisted-to thwart-patenting-by-foreign-parties

[12] TNN. (2007, 18 May). US patent on yoga? Indian gurus fume. Indian Express. timesofindia.indiatimes.com/india/US-patent-on yoga-Indian-gurus-fume/articleshow/2058285.cms

[13] Lee, T. B. (2013, 13 December). A yoga patent? Here’s why the USPTO approves so many dubious applications. Washington Post. https://www.washingtonpost.com/news/the-switch/ wp/2013/12/13/a-yoga-patent-heres-why-the-uspto-approves-so many-dubious-applications

[14] Press Information Bureau. (2010, 28 April). India Partners with US and UK to Protect Its Traditional Knowledge and Prevent Bio-Piracy. pib.nic.in/newsite/erelease.aspx?relid=61122

[15] www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx

[16] genecampaign.org

[17] Sahai, S. (1996). Importance of Indigenous Knowledge in IPR. Economic and Political Weekly, 31(47).

[18] World Health Organization. (2013). WHO Traditional Medicine Strategy 2014-2023. apps.who.int/iris/ bitstream/10665/92455/1/9789241506090_eng.pdf?ua=1

[19] List of Parties, Convention on Biological Diversity. https://www. cbd.int/information/parties.shtml

[20] Article 8(j) of the Convention on Biological Diversity. https://www.

cbd.int/convention/text

[21] nbaindia.org/content/25/19/1/act.html 26 Section 6 of the Biological Diversity Act, 2002.

[22] Section 20 of the Biological Diversity Act, 2002.

[23] Section 21 of the Biological Diversity Act, 2002.

[24] www.tkdl.res.in/tkdl/langdefault/Common/ExaminerReport.

asp?homepage=sub

[25] Ibid.

[26] WIPO. (2010). Op. cit., Annex 2.

[27] See, e.g., Coombe, R. J. (2005). Protecting Traditional

Environmental Knowledge and New Social Movements in the

Americas: Intellectual Property, Human Right, or Claims to an Alternative Form of Sustainable Development? Florida Journal of International Law, 17(1), 115-136.

[28] Swiderska, K. (2006). Banishing the Biopirates: A New Approach to Protecting Traditional Knowledge. International Institute for Environment and Development. pubs.iied.org/pdfs/14537IIED.pdf

[29] Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore. (2002). Review of Existing Intellectual Property Protection of Traditional Knowledge. WIPO. www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_3/ wipo_grtkf_ic_3_17-main1.html

[30] Reddy, P. (2012, 29 March). Is the TKDL a ‘confidential database’ and is it compliant with Indian copyright law? SpicyIP. spicyip. com/2012/03/is-tkdl-confidential-database-and-is-it.html

[31] KTKP Introduction, Korean Traditional Knowledge Portal. www. koreantk.com/en/m_about/about_01.jsp?about=1

[32] Brief introduction of China Traditional Medicine (TCM) Patent Database, China TCM Patent Database. 221.122.40.157/tcm_ patent/englishversion/help/help.html 38 Op. cit.

[33] Reddy, P. (2012, 21 April). The need for an ‘independent’ review of the TKDL project. SpicyIP. spicyip.com/2012/04/need-for anindependent-review-of-tkdl.html

[34] Proposed by Ross J. Anderson, this thumb-rule has come to be known as Anderson’s Rule. See: Porter, H. (2009, 10 August). Nine sacked for breaching core ID card database. The Guardian. www. theguardian.com/commentisfree/henryporter/2009/aug/10/ id-card-database-breach

[35] See, e.g., Anderson, R. et. al. (2009). Database State. Joseph Rowntree Reform Trust. www.jrrt.org.uk/sites/jrrt.org.uk/files/

documents/database-state.pdf

[36] www.peertopatent.org

[37] Rathi, M. (2012, 20 April). Guest Post – TKDL: A success – Really?

SpicyIP. spicyip.com/2012/04/guest-post-tkdl-success-really.html

[38] Reddy, P. (2012, 19 March). Guest Post: The Traditional Knowledge Digital Library and the EPO. SpicyIP. spicyip.com/2012/03/guest post-traditional-knowledge.html

[39] Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore. (2003). Practical Mechanisms for the Defensive Protection of Traditional Knowledge and Genetic Resources within the Patent System. WIPO. www.wipo. int/edocs/mdocs/tk/en/wipo_grtkf_ic_5/wipo_grtkf_ic_5_6.pdf

[40] Article 54(2) of the Convention on the Grant of European Patents. https://www.epo.org/law-practice/legal-texts/epc.html

[41] Outcomes against bio-piracy, Traditional Knowledge Digital Library. www.tkdl.res.in/tkdl/langdefault/common/Outcome.asp 48 35 U.S.C. § 102(a).

[42] Quinn, G. (2009, 30 November). US Patent Office to Reject Based on Traditional Knowledge. IPWatchdog. www.ipwatchdog.com/2009/11/30/us-patent office-to-reject-based-on-traditional-knowledge/ id=7502

[43] Lemley, M. A., & Sampat, B. (2012). Examiner Characteristics and

Patent Office Outcomes. The Review of Economics and Statistics,

[44] (3), 817-827. www.mitpressjournals.org/doi/abs/10.1162/ REST_a_00194?journalCode=rest

[45] Sampat, B. (2010). When do Applicants Search for Prior Art? The Journal of Law and Economics, 53(2), 399-416. www.journals. uchicago.edu/doi/abs/10.1086/651959?journalCode=jle

[46] Human Rights Council. (2014). Report of the Special Rapporteur on the Rights of Indigenous People. unsr.vtaulicorpuz.org/site/index. php/documents/annual-reports/26-annual-report-hrc-2014

For more details visit https://cis-india.org/a2k/blogs/giswatch-december-9-2016-sunil-abraham-and-vidushi-marda-digital-protection-of-traditional-knowledge-questions-raised-by-traditional-knowledge-digital-library-in-india

The Digital Oxygen for Odia Language

praskrishna — 2016-07-09T07:52:18Z

The article was published in My City Links on July 4, 2016.

For more details visit https://cis-india.org/a2k/news/my-city-links-july-4-2016-digital-oxygen-for-odia-language

The Digital Classroom: Social Justice and Pedagogy

nishant — 2015-05-08T12:36:29Z

What happens when we look at the classroom as a space of social justice? What are the ways in which students can be engaged in learning beyond rote memorisation? What innovative methods can be evolved to make students stakeholders in their learning process? These were some of the questions that were thrown up and discussed at the 2 day Faculty Training workshop for participant from colleges included in the Pathways to Higher Education programme, supported by Ford Foundation and collaboratively executed by the Higher Education Innovation and Research Application and the Centre for Internet and Society, Bangalore.

The workshop focused on 3 chief challenges in contemporary pedagogy and teaching in higher education in India as identified by HEIRA: The need for innovative curricula, challenges to social justice in education, and possibilities offered by the intersection of digital and internet technologies with classroom teaching and evaluation. In the open discussions, the participating faculty members used their multidisciplinary skills and teaching experience to look at possibilities that we might implement in our classrooms to create a more inclusive and participatory environment. The conversations were varied, and through 3 blog entries I want to capture the focus points of the workshop. In this first post, I focus specifically on the changing nature of student engagement with education and innovative ways by which we can learn from the digital platforms of learning and knowledge production and implement certain innovations in pedagogy that might better help create inclusive and just learning environments in the undergraduate classroom in India.

Peer 2 Peer: One of the observations that was made unanimously by all the faculty members was that students respond better, learn faster, engage more deeply with their syllabus when the instructor has a personal rapport with them. Traditionally, the teachers who have established human contact which goes beyond the call of duty are also the teachers that have become catalysts and inspirations for the students. Especially with the digital aesthetics of non-hierarchical information interaction, this has become the call of the day.

Establishing the teacher as a peer within the classroom, rather than the fountainhead of information flow, is an experiment worth conducting. Like on other digital platforms, can we think of the classroom as a space where the interlocutors each bring their life experience and learning to start an information exchange and dialogue that would make them stakeholders in the process of learning? This would mean that the teacher would be a facilitator who builds conditions of knowledge production and dissemination, thus also changing his/her relationship with the idea of curriculum and teaching.

Reciprocal evaluation: It was pointed out that the grade oriented academic system often leads to students disengaging with innovative and meaningful learning practices. With the pressure of completing the curriculum, the students’ instrumental relationship with their classroom learning and the highly conservative structures of higher education that do not offer enough space to experiment with the teaching methods, it often becomes difficult to initiate innovative pedagogic practices. Learning from the differently hierarchised digital spaces, it was suggested that one of the ways by which this could be countered is by introducing reciprocal evaluation patterns which might not directly be associated with the grades but would recognise and appreciate the skills that students bring to their learning.

Inspired by the Badges contest at HASTAC, it was suggested that evaluation has to take into account, more than grades. Different students bring different skills, experiences, personalities and behaviours to bear upon the syllabus. They work individually and in clusters to understand and analyse the curriculum. Recognising these skills and the roles that they play in their learning environments is essential. Getting students to offer different badges to each other as well as to the teachers involved, helps them understand their own learning process and engages them in new ways of learning.

Role based learning: Within the Web 2.0 there is a peculiar condition where individuals are recognised simultaneously as experts and novices. They bring certain knowledges and experiences to the table which make them credible sources of information and analysis in those areas. At the same time, they are often beginner learners in certain other areas and they harness the power of the web to learn. Such a distributed imagination of a student as not equally proficient in all areas, but diversely equipped to deal with different disciplines is missing from our understanding of the higher education classroom.

We discussed the possibility of making the student responsible not only for his/her own learning but also the learning of the peers in the classroom. Making the student aware of what s/he is good at and where s/he is lacking allows them to gain confidence and also realise that everybody has differential strengths and aptitudes. Such a classroom might look different because the students don’t have to be pitched in stressful competition with each other but instead work collaboratively to learn, research and produce knowledge in a nurturing and supportive learning environment.

These initial discussions look at the possibility of innovative classroom teaching that can accommodate for the skills and differences of the students in higher education in India. The conversations opened up the idea that the classroom can be reshaped so that it becomes a more inclusive space where the quality of students’ access to education can be improved. It also ties in with the larger imagination of classrooms as spaces where principles of social justice can be invoked so that students who are disadvantaged in language, learning skills, socio-economic backgrounds, are not just looked at as either ‘beyond help’ or ‘victims of a system’. Instead, it encourages to look at the students as differential learners who need to be made stakeholders in their own processes of learning and education.

For more details visit https://cis-india.org/digital-natives/pathways/facultyworkshop

The city of Bhubaneswar is going Open

sailesh — 2019-03-07T11:41:16Z

The Openness movement is a concept or philosophy that is characterized by an emphasis on transparency, free and unrestricted access to knowledge and information. The movement across the world is trying to build on the interest of like-minded people and an urgent need of bringing new resources of knowledge for the benefit of people with a method of collaborative or cooperative management. Many successful projects such as OpenStreetMap, Github, Wikimedia projects are free, open for everyone and evolve both by contributions and review efforts by participant volunteers. Open Knowledge Projects across the world are embarking upon a silent revolution to change the way information and knowledge are consumed by people.

Bhubaneswar supporting the concept of Openness movement has joined as one of the ambassadors of the movement in the world by giving citizens the right to access the content online produced by the government and make use of the work. As the city turned 70-year-old as the capital of Odisha in April 2018, Chief Minister Naveen Patnaik launched two websites — Bhubaneswar.me and Smart City Bhubaneswar under a Creative Commons license. The websites were made to provide visitor or tourist information about the city and to showcase various projects being undertaken as a part of the Smart City mission.

A visual walk-through video was released for the visit.Bhubaneswar.me and Smart City website over social media sites for the public to understand the features of the websites which ended saying “Knowledge now made more accessible”, anyone can use the content and data of the website under the campaign for Transparency in Governance. These websites have adopted Creative Commons Attribution 4.0 International license also known as CC-BY-4.0, which allows the citizens of Bhubaneswar to use the work of the government. Creative Commons licenses are a set of open licenses that are used worldwide to enable widen use and reuse of creative work that is otherwise restricted by the strict copyright laws. Currently, the majority of government websites under the Bhubaneswar administration are under an Open license.

Transparency is considered the traditional hallmark of an open government, meaning that the public should have access to government-held information and be informed of government proceedings, says an article from Opensource.com. Transparency, accountability, and participation are one of the needed conditions for the government to ensure that public resources are used efficiently, public policies are designed in the best interest of the population.

Though most of the government websites can be accessed online, the content of those sites are not open by default, the government has to adopt a specific license to open their content. In September 2017, Odisha became the first state in India to release all of its social media contents under a free license such as Creative Commons license, initially eight social media accounts of the state government were part of the project and followed by few other departments under the state government releasing their content under the same license. Because of this initiative by the government, currently, ten or more websites and eight social media accounts are allowing people from all around the world to freely reuse the state government’s work.

As the content of the websites is under a free license it creates an impact on a project like Wikipedia-one of the most popular websites in the world and the largest online encyclopedia available on the internet, committed to free and open copyright licenses from its earliest days on the internet. Currently, a near about files from the websites and social media accounts of the Government of Odisha are added into Wikimedia Commons, Wikipedia’s sister site and an open multimedia repository, under a content donation program of which 70% of files are used in different Wikipedia articles, all of which together has received over 25 million page views in last 18 months.

Cities opening their data and content for the citizens encourages individuals for new innovation and to form new ideas that help to bridge the gap in the city. A report from Forbes in 2012 says Open city data can help app developers, urban planners, and others understand a city’s problems and manage city services in ways that improve the quality of life and business prospects for its residents. When Bhubaneswar led the way of promoting the Openness movement in India, there is a huge scope for the rest of the cities to adopt open licensing to make knowledge more accessible for the citizens and enhance public trust in government.

For more details visit https://cis-india.org/a2k/blogs/the-city-of-bhubaneswar-is-going-open

The Broadcasting Treaty: A Solution in Search of a Problem?

praskrishna — 2015-01-09T02:31:55Z

Nehaa Chaudhari was one of the speakers at this side event held on December 10, 2014.

See the details on Knowledge Ecology International website.

On Wednesday, 10 December 2014, Knowledge Ecology International (KEI) will convene a side event entitled, "The Broadcasting Treaty: A Solution in Search of a Problem?"; the event will take place in Room B of the World Intellectual Property Organization (WIPO) from 13:30 to 15:00. Speakers include: Nehaa Chaudhari, (Programme Officer at Centre for Internet and Society, New Delhi/Banglaore), Jeremy Malcolm, (Senior Global Policy Analyst, Electronic Frontier Foundation), James Love, (Director, KEI) and Viviana Munoz Kieffer, (Coordinator, Innovation and Access to Knowledge Programme, South Centre).

Background

Since its first SCCR (Nov 2-10, 1998) WIPO and member states have been asked to resolve the requests for new legal protections for broadcasting organizations. All participants to the SCCR were asked then "to submit, by the end of March 1999, proposals and/or views in treaty language or in other form."

Since then the rights of broadcasting organizations have been on the agenda. While the committee is still trying to identify precisely the problems Broadcasters' rights (or right?)to be solved (piracy in its broadest definition?), the proposal for a new international norm setting may create a new layer of post fixation rights in content that broadcasters do not create, license nor own.

The demandeurs i.e. some of the broadcasting organizations representatives and some member states are listing endless rights such as transmission, retransmission or deferred transmission whether simultaneous or near simultaneous on demand of a broadcast signal to the public, as well as transmission over the internet. Most of these rights exist in some form or another in most WIPO member states. However, for many SCCR participants, if the committee truly wants to move forward on this new norm setting exercise it must focus on a narrow treaty based on a single right corresponding to the core need of broadcasting organizations for protection from signal piracy.

After 15 years of negotiations, formal and informal, text based or not, it is time to answer some of the following questions:

Would adding a new layer of rights over content on the internet be consistent with the committee's mandate to limit protection to the broadcaster's signal?

Would the new international right (or rights) have an impact on consumers and creative communities globally?

Would the new instrument have the necessary exceptions for quotations or news of the day?

Would the extension of the rights under discussion to cable television (and services which already require subscriber fees) create a redundant layer of protection to services already protected under other legal regimes and thus be anticompetitive?

Would the protection of over the air broadcast signal be sufficient for broadcasters? If not why not?

Download the transcript here

For more details visit https://cis-india.org/a2k/news/kei-10-december-2014-the-broadcasting-treaty-a-solution-in-search-of-a-problem

The Bilski Case - Impact on Software Patents

praskrishna — 2011-08-23T03:24:31Z

The Supreme Court of the United States gave its decision in Bilski v Kappos on 28 June, 2010. In this case the petitioners’ patent application sought protection for a claimed invention that explains how commodities buyers and sellers in the energy market can protect, or hedge, against the risk of price changes. The Court in affirming the rejection by the Court of Appeals for the Federal Circuit also held that the machine- or-transformation test is not necessarily the sole test of patentability. The Court’s ruling of abstract ideas as unpatentable and its admission that patents do not necessarily promote innovation and may sometimes limit competition and stifle innovation have provided a ray of hope. In the light of the developments, the Bilski decision as far as patentability of software is concerned may not be totally insignificant, says Krithika Dutta Narayana.

The United States Supreme Court’s much awaited decision of last month in Bilski v. Kappos (2010) (Bilski), a case that was touted as a potential watershed in the debate surrounding patentability of software, was disappointing, even though it was not without any impact. While the Supreme Court affirmed the rejection by the Court of Appeals for the Federal Circuit (CAFC) of a patent claim for a business method, it failed to define with clarity, any test for patentability which might have constituted a precedent for future cases involving patentability of software or business method. At the same time, it held that the “machine- or- transformation” test which was the test followed by the CAFC in rejecting the claim, was not the sole test to determine patentability, thus effectively providing no guideline to determine patentability of software or business methods in future cases.

The Supreme Court in Bilski, affirmed the rejection by the CAFC in In re Bilski (2008) of a patent claim involving a method of providing insurance against fluctuating energy prices due to changes in weather. The applicants, Bernard L. Bilski and Rand Warsaw filed a patent application for such a method of hedging risks – essentially a claim for a business method – under Section 101 of US Patent Act before the United States Patent and Trademark Office (USPTO). The examiner at the USPTO rejected the claim on the ground that the claim was not for patentable subject matter and that “the invention is not implemented on a specific apparatus and merely manipulates (an) abstract idea and solves a purely mathematical problem without any limitation to a practical application, therefore, the invention is not directed to the technological arts”. The Board of Patent Appeals and Interferences (BPAI) took a re-look at the examiner’s decision and held that the “machine or apparatus” test was in itself insufficient to determine patentability since a claim that included transformation of a physical object from one state to another would also be patent eligible subject matter. The BPAI also struck down the requirement of the invention to be a “technological art”. Thus, it rejected the Bilski claim on the ground that it did not cause transformation of a physical object from one state to another, since transformation of financial liabilities and risks does not constitute transformation of physical matter.

In its decision on October 30, 2008, the CAFC affirmed the ruling of the BPAI and laid down the machine or transformation test for patentability and held that Bilski’s claim was neither tied to any machine or apparatus to derive the result nor did it cause transformation of any physical object from one state to another and is hence, unpatentable subject matter. The Court reasoned that the “machine or transformation” test was crucial for determining patentability as it ensured that the claim based on a fundamental principle did not preempt all other uses of the principle. This test was the first test since the US Supreme Court’s decision in Diamond v. Diehr (1981) – which held that laws of nature, mathematical formulae and algorithms are not patentable – that had a huge potential for laying down definitive rules for patentability including declaring software and business methods to be outside the realm of patentable subject matter. If this test was upheld in the Supreme Court, that would effectively put an end to the rise of software patents since software, in most cases, did not cause transformation of physical object from one state to another. Thus, the decision of the Supreme Court had huge stakes for both sides of the software patent debate.

In light of the same, the Supreme Court’s ruling holding that the machine or transformation test is not the sole test for determining patentability and at the same time, failing to provide any other test on which to determine patentability, was a sore disappointment. Though, it affirmed the rejection of Bilski’s patent claim on the ground that the subject matter claimed was abstract and thus not a patentable “process” under section 101, its core decision was only limited to this particular claim and it did not lay down a concrete and definitive guideline for future claims. However, one must not be too quick to dismiss this decision as either going against the interests of open society and free software or as a completely inconsequential case that simply maintains status quo. There are important takeaways for the patentability of software in the Bilski decision – The Court did not totally reject the machine or transformation test relied on by the CAFC. It only held that the machine or transformation test is not the sole test on basis of which the patentability of a subject matter of a claim can be decided. The Court, in fact, held that the “machine or transformation test” was a “useful and important clue, an investigative tool for determining whether some claimed inventions are processes under section 101.” This leaves open the possibility of using the test to determine patentability in future cases and this is good news for opponents of software patents since software (an algorithm designed to be operated upon by a computer) is merely an abstract idea which, in most cases, does not involve transformation of a physical object from one state to another.

Bilski’s claim was essentially interpreted to be a patent for a business method. The Supreme Court was completely silent on the issue of patentability of software in its decision and stuck to only the narrow issue in hand – that of the patentability of a particular business method. This means that the “machine or transformation test”, whose applicability was ruled out in this particular case, may still be applicable for software patents. Nothing in this case precludes an opponent of a software patent from urging the courts to use the “machine or transformation test” to rule on patentability. Thus, the very fact that the Supreme Court only dealt with the narrow issue in hand ensures that the “machine or transformation test” is not altogether dismissed.

The main ground on which Bilski’s claim was rejected was that the patent claim was for an overly abstract idea which was not patent-eligible. The Court held that the basic concept on which the claim was based – the concept of hedging risks against risk is an unpatentable abstract idea. Further, some of the claims are constituted by equations and are purely mathematical in nature and are abstract and thus not patentable. This means that basic concepts and use of mathematical formulae constitute abstract ideas which are unpatentable. This test can strike down many software patents as these are simply algorithms executed by a computer and incorporate very fundamental and basic concepts which are abstract in nature and are thus, not patentable. This test for determining patentability on the basis of the claim being abstract as laid down in Bilski reaffirms the patentability test laid down in Diamond v. Deihr which kept laws of nature, mathematical formulae and algorithms outside the scope of patentable subject matter. This may serve as an important test to determine and especially, limit the patentability of software in coming years.

Notwithstanding the fact that Bilski’s claim has been interpreted to be one of a business method patent, when examined in detail, the claims indicate that the ‘method’ cannot be implemented without a computer. Certain claims for calculating probability (and risk), although mathematical or algorithmic in nature, have too many variables to be executed in any way other than by using a computer.1 Such algorithms which can be executed only by a computer fall under the category of software and the patent is thus, also, a software patent. That being said, the ruling of the Court that the claim is for an overly abstract idea and thus not patentable lends credence and indicates that software patents can be validly claimed to be abstract ideas not falling under the scope of patentable subject matter.

Another important outcome of the Supreme Court’s ruling was the invalidation of the 1998 CAFC decision in State Street Bank v. Signature Financial Group2 which opened the floodgates for software patents by holding that a practical application of an algorithm or formula to produce “useful, concrete and tangible result” was sufficient to constitute patentable subject matter. The State Street test was too broad and afforded an opportunity for many frivolous patent applications to be admitted. In fact, Justice Stevens, in his concurring opinion, has stated that it would be a “grave mistake” to follow the test. By clearly striking down and dismissing such a test to determine patentable subject matter, the Court in Bilski has precluded future software patent claims for taking recourse to this test and has effectively, to an extent, made it that much harder for a software to be granted patent. The test in State Street Bank which opened the floodgates for software patents was definitively dismissed.

The Court in the 1978 case of Parker v. Flook, had rejected patent for a mathematical algorithm on the ground that an algorithm was a law of nature although its use was limited to a specific field in this case (the “field of use” test) and added an insignificant post solution activity (“post solution activity” test). The test laid down in Flook had been subsequently questioned and thus, subtly dismissed by the Court in Diehr in 1991. The Court in Bilski emphasized on the test for patentability laid down in Flook and opined that the two tests may well come in handy in future challenges or oppositions to a patent claim while determining if the claim pertained to an idea that was abstract and hence, not patentable. Thus, this test can be used in future for invalidating software patents which are characterized by broad claims adding insignificant post solution activity.

It is heartening to note that the Court looked at the importance of patent law while recognizing that patents are not always necessary to encourage innovation. It noted that patents could also limit competition and stifle innovation. They can have ill effects such as increasing prices while slowing progress and could actually be deterrent to free flow of information within society. By recognizing and validating this, the ruling not only helped increase awareness about the debate surrounding software patents but also showed that the Courts are open to such an approach to patent law in future. This can only be good news for busting software patents.

For further reading

Claim 4 of Bliski's claims is as follows - “perform a Monte Carlo simulation across all deals at all locations ... over the last 20 years of weather patterns and establish the payoffs from each deal under each historical weather pattern “ Such a simulation would involve multiple parameters such as deals, locations, weather patterns, to establish a payoff.
149 F.3d. 1368.

For more details visit https://cis-india.org/a2k/blogs/bilski-case

The ASSOCHAM International Conference on the "Interface between Intellectual Property and Competition Law"

nehaa — 2013-07-22T05:54:01Z

An international conference on interface between intellectual property and competition law was organized by ASSOCHAM on July 12, 2013 in New Delhi. In this post, Nehaa Chaudhari shares select notes from the conference.

All views expressed are only of the participants and cannot be taken to be those of any organization or the like that they may represent.

D.S. RAWAT- SECRETARY GENERAL- ASSOCHAM- WELCOME ADDRESS

IPR and competition laws in conflict or have provisions (in existing law) that already take care of this possible conflict?
What happens if an IP right holder acquires a ‘dominant position’ by virtue of these rights?
- Abuse of dominant position provisions get attracted if rights are beyond the boundaries of IPRs.
Anti-competitive agreements (and beyond the objective of preventing infringement)- then what happens?

V. LAKSHMI KUMARAN- MANAGING PARTNER, LAKSHMI KUMARAN AND SRIDHARAN- THEME ADDRESS

Trans-border transactions are normally of two types:
(a) trade (in goods and services) - WTO mandate is free trade of goods and services between nations;
(b) investment.
“Free” trade should also be “fair” trade.
Competition law will not question the grant of the IP rights. It will question how you use them, especially when/if you use in a way that is detrimental to competition.
Patent law places many restrictions on what you can and cannot do- these ‘can’t do actions’- if you perform them, you will be scrutinized under competition law.
Cases in US/Europe- challenging patents were withdrawn by ‘compromise’ but agreements really spoke of ‘something more’ promised by the patent holder if the challenging suit was withdrawn- scrutinized by competition law.

NUNO PIRES DE CARVALHO- DIRECTOR, IP AND COMPETITION POLICY DIVISION, WIPO, GENEVA- SPECIAL ADDRESS (nuno.carvalho@wipo.int)

2007- Agenda for Development at WIPO- Committee on Development and IP (CDIP) to supervise implementation of the AD and coordinate with other Committees.
WIPO- as of now, member states do not want to embark on negotiating processes on IP and Competition but rather want to better understand it.
WIPO- 2011-2012- Project on IP and Competition Law.
WIPO Goal- to establish WIPO as a global forum on IP and Competition policy.
Rationale (WIPO)- same as the 3 DA (2007) recommendations.

CHAITANYA PRASAD- IAS, CONTROLLER GENERAL OF PATENTS, DESIGNS AND TRADEMARKS- KEYNOTE ADDRESS

Monopoly- genesis of both IP and Competition Law (IPRs= regulated monopoly= not bad- IPRs= carefully granted essential monopolies regulated by State).
Competition Law and IP have common goals- better technology etc., and also economic growth and better quality of life for consumers.
IPRs- (a) industrial IPRs- GIs, patents, TMs, IDs, etc and (b) non industrial IPRs- copyright and related rights.
Patent Law- grant of Compulsory licences in some situations- Doctrine of Exhaustion of IPRs- domestic or international?- international committee divided on this.
READ- Adams v. Burke- 1873 SCOTUS.
DB- Delhi HC- parallel imports- allowed under Trademark Law?
New York Times- 06/06/13- generic drug market v. patent holder- anti competitive markets- SCOTUS decision.

Standards- especially in communication networks- generally have higher royalties- disclose existence of IPRs and agree to license at reasonable rates- REQUIREMENT.
IP Law- in built mechanisms to address abuse and these are furthered by competition law.
IP + CL- hand in hand for welfare of market and growth of economy.

ASHOK CHAWLA- CHAIRPERSON, CCI- INAUGURAL ADDRESS

“Very rightly” WIPO is not seeking to harmonize regime across nations- this has to be a domestic process of laws/jurisprudence.
Similarities/intersection of IP and competition law:
- IP + competition law- both put a premium on innovation – IP does this directly and competition law because there is a need to do better than other firms.
- Lead to technical and economic innovation.
- Goals – greater good for consumer and society.
Merger Control- crystal gazing on post merger scenario is required. Competition law authorities required to take nuanced approach in fast growing and tech. sectors- ex ante analysis- need to be upfront to scrutinize kind of restrictions being imposed under the deal- need to balance protection of knowledge of the mind with protecting the interests of the stakeholders as well.- this is the CCI approach.

The aforesaid balancing act is also going to be a critical area over the next twenty years- especially for policy makers.
Wider dissemination of advocacy is required.
Question to Chawla- ‘pay for delay’ agreements/reverses payments- our generic companies (what happens to them?)- what happens to the consumers? Is there going to be a study on this by the CCI?- Chawla said that in the generic drugs sector we are already strong- he said that this is going to be an issue Indian manufacturers will have to grapple with eventually (internationally)- but we will take care when it comes here.- Carvalho intervened and pointed out that ‘pay for delay’ agreements and reverse payments were different things.
Question to Chawla- IPR section on the CCI website does not have any content anymore- Chawla said that they will rectify this and understand that the section would be very useful in terms of clarifying the CCI’s stance on this intersection between Competition Law and IPRs.

Technical Session 1- “Balancing IPRs against Fare Practice”- Moderator- Hitesh S. Barot- Senior Intellectual Property Counsel, GE India.
NUNO PIRES DE CARVALHO- DIRECTOR, IP AND COMPETITION POLICY DIVISION, WIPO, GENEVA- THE INTERFACE BETWEEN IP/COMPETITION IN WIPO DEVELOPMENT AGENDA (nuno.carvalho@wipo.int)

Balanced IP- the Foundation of economic democracy.
Trade name- reputation- basis for survival in the market. Trade secret- sets you apart from competitors- IP not all about reputation- IP protects and promotes intangible differences that businesses introduce in their products/services- that is, differentiation. This could be of origin, quality, invention, creation, location, reputation, price etc. this differentiation is behind every IP asset.
What is balanced IP?
- IP in the right dosage- (not too much- examples of too much- IP for unmodified genes/functional signs/or common terms as trademarks.)- (not too little- example of too little- lack of protection for sound/smell designs, tolerance for counterfeit goods and piracy, no protection for new and inventive traditional knowledge etc).
- IP that is not abused.
- IP that is not distorted by external circumstances- regulation distorts competition and therefore distorts IP. Since IP is about differentiation, before innovation it promotes social, cultural and economic freedom. IP is the foundation of any free market economy based on consumers’ and entrepreneurs’ freedom.

PARTHASARATHY R., SENIOR PARTNER, LAKSHMI KUMARAN AND SRIDHARAN- THE INTERFACE BETWEEN IP/COMPETITION IN THE PHARMACEUTICAL SECTOR (partha@lakshmisri.com)

Patents Act- Section 140- certain prohibitions.
Section 107A of the Patents Act appears to provide for international exhaustion.- Delhi HC (2012)- Kapil Wadhwa v. Samsung International extended international exhaustion to trademarks also.
Areas of concern- ‘pay for delay’ agreements- will Section 3(5) of the Competition Act apply?
US- a granted patent is presumed to be valid. India does not envisage such a framework.
Getting a patent and getting the right to practice a patent are very different in patent law.
Acquiring patents by fraud attracts section 4 of the Competition Act.
Unfair pricing- not an offence to have excessive pricing in the US.
Standards- when you develop patents here, you AGREE to compulsory license on a FRAND basis. Only issue then is what are FRAND terms- won’t get injunctions on this issue here in India, since you can prove damages are enough of a remedy- so it all comes down to negotiations.

MIHIR RALE- AVP- LEGAL AND REGULATORY, STAR INDIA PRIVATE LIMITED - THE INTERFACE BETWEEN IP AND COMPETITION LAW IN THE BROADCASTING SECTOR

Overregulation leads to lack of innovation- this is his conclusion.
Content costs rise constantly- recouping them is very hard since channel prices have remained static for about eleven years now- supposed to have been an interim measure by the SC but TRAI is allowing it to continue.
Question by Barot- who decides how to price is going to be something interesting to debate.
(Sort of answering the ,above> question)- Mandatory Sharing Act- share feed w/ Prasar Bharathi- feed here refers to sporting events of national importance- the purpose is to give access to those who have terrestrial network (not cable/DTH)- but provision in the Cable Act says operators HAVE to carry two DD channels- so.. now operators don’t want to carry other (sports) channels, since Team India is available on DD anyway.

HEMANT KUMAR- GROUP GENERAL COUNSEL, ESSAR GROUP- ANTI COMPETITION AND IPR- DIFFERENT MEANS TO THE SAME END?

Can of course recover costs of innovation- (under IP license agreements)- but only up to a reasonable limit.

SANJEEV GEMAWAT- SENIOR VICE PRESIDENT- LEGAL AND SECRETARIAL, DLF RENTCO GROUP- IPR AND COMPETITION LAW- INDUSTRY PERSPECTIVE

The challenge is not competition, but protecting IPRs, given the size of the economy.
How will authorities interpret limits= challenges?
Challenge- threshold limits under Section 5 of the Competition Act- considering size of the economy.
Barot’s comment- soft convergence is emerging as a solution.

Technical Session 2- “Innovation and Competition”- Moderator- Geeta Gouri- Member, Competition Commission of India
BALAZS GARGYA- FIRST SECRETARY, EUROPEAN UNION DELEGATION TO INDIA – INNOVATION AND IPR

Indo EU FTA
- Agreement will recognize India’s access to medicines policies.
- Both sides have shown flexibility.
- All our flexibilities will be untouched.
- Right to compulsory licenses maintained and recognised.
- Agreement not going beyond existing obligations.

J.L.N. MURTHY- GENERAL COUNSEL- ASIA PACIFIC, RED BULL- RECENT CHANGES ON MADRID PROTOCOL

Anand Sharma recently deposited the instrument of India’s accession to the Madrid Protocol.

This is w.e.f. 08/07/2013 in India.

Accession strengthens march towards excellence in IP recognition.

MUNESH MAHTANI- GLOBAL COMPETITION COUNSEL, GOOGLE, U.K.- COMPETITION LAW ENFORCEMENT IN THE HIGH-TECH SECTOR

Challenges for competition authorities:
- Defining markets and assessing market power- increasing market shares may not indicate market power (e.g.- Microsoft/skype)- need to look at actual competitive dynamics.
- Identify abusive conduct.
- Important to distinguish between harm to competitors and harm to consumers.
Existing antitrust laws can deal with high tech. sectors.

MANAS KUMAR CHAUDHURI- CO-CHAIRPERSON, ASSOCHAM NATIONAL COUNCIL FOR COMPETITION LAW AND PARTNER, KHAITAN AND CO., MONOPOLISTIC BEHAVIOURS IN HORIZONTAL AGREEMENTS AND VERTICAL AGREEMENTS

Monopolistic behaviours in horizontal agreements and vertical agreements.
GI agreements- falling foul of Competition Law?
Assignment agreements- terms anti competitive (if any)- then principle of severability of contract will apply.
Function of patents- to reward innovative work of inventor and NOT to protect public from defects. (ECJ decision 15/74).
The beginning of competition law assessment lies where IPR enters the market.

SAMIR GANDHI- PARTNER, AZB & PARTNERS, RELATIONSHIP BETWEEN IPR, MONOPOLIES AND DOMINANCE

IPR and Competition Law are two sides of a coin aimed at furthering innovation.

Under Section 4 of the Competition Act, 2002, you cannot take the defence of “doing so to protect my IPRs’ stance for your actions.

CCI has not yet had an IPR+ competition law ‘meaty’ case yet.

Refusal to license IPRs- competition law cannot say that you HAVE to license, but MAY be construed as anti-competitive if not backed up by sound objective claims.

At what stage are you required to license?

For more details visit https://cis-india.org/a2k/blogs/the-assocham-international-conference-on-the-interface-between-intellectual-property-and-competition-law