Centre for Internet and Society

RTI request to Indian Patents Office for Form 27 (Statement of Working of patents), 2015

rohini — 2017-10-13T04:37:13Z

The Centre for Internet and Society filed this request under the Right to Information Act in 2015 as part of research for the paper: Patent Working Requirements and Complex Products: An Empirical Assessment of India's Form 27 Practice and Compliance (July 2017). We sought Form 27 (also known as Statements of Working) pertaining to randomly selected patents found in our patent landscaping study. These forms were not available on the online public databases, InPASS and IPAIRS, at the time of the filing the RTI request. Research assistance was provided by intern Nayana Dasgupta.

Patent Working Requirements and Complex Products: An Empirical Assessment of India's Form 27 Practice and Compliance (July 2017)

Patent landscaping study -- Patents and Mobile Devices in India: An Empirical Survey (April 2016)

This was our first RTI request filed with the Controller General of Patents, Designs and Trade Marks for the research on practices and compliance of patent holders to the Form 27 requirement. The response contained generic instructions about how to download Form 27 from the publicly-accessible online databases. The IPO also stated that, “The desired information relates to about 1700 patents for all the years, to supply and trace out the information physical form requires huge humane resource and need to divert the office staff for some days which would hampers the day-todays- official work therefore, the information is proactively disclosed in the office website for the public”.

We subsequently filed another RTI request with the Indian Patents Office while limiting the number of patents to 61. (View the application and response here).

Text of the application and IPO's response

(View a scanned copy of the application here and the response here)

10 June 2015

To
Central Public Information Officer
Office of the Controller General of Patents, Designs, and Trade Marks
Boudhik Sampada Bhawan
Near Antop Hill Post Office, S.M. Road,
Antop Hill, Mumbai - 400037

Dear Sir/ Madam,

Subject: Request for information under section 6 of the Right To Information Act, 2005; regarding Form 27 submissions for patents

Full name of the applicant: Ajoy Kumar
Address of the applicant: 194, 2^nd C Cross, Domlur 2^nd stage, Bangalore 560071
Details of the information required: Please consider this an application under Section 6 of the Right To Information Act, 2005. This is an application for three pieces of information.

Firstly, you are requested to provide us with the Form 27 submissions for all the following patents for all the years for which they are available.

Secondly, we also request a record of all the years for which such Form 27 submissions have not been made for each of the patents listed here.

Thirdly, we request a record of all the patents among those listed here which do not have a single Form 27 submission from the year of application/ grant.

In the event that you do not possess these documents, please transfer this application to the concerned authority within five days of its receipt and inform us of the same; as mandated under Section 6(3) of the Act.

[List of patent numbers]

*************************************************************

Response from the IPO (reproduced verbatim)

Government of India

Patent Office, Boudhik Sampada Bhavan

S.M. Road, Near Post Office,

Antop Hill, Mumbai 400037, India

Email: mumbai-patent@nic.in

Website: www.ipindia.nic.in

No. RTI/Mum/38

Date: 17/06/2015

To,

Shri Ajoy Kumar,

194, 2^nd C Cross,

Domlur 2^nd Stage

Bangalore - 56007

Sub: Supply of information sought under RTI Act - reg.

Sir,

With reference to your application under RTI, dated 15.06.2015, wherein the information sought for form 27 details (commercial working of patent) for all the years for about 1700 patents application.

Reply:

a) The requested information can be had from the office website for the filing of form 27 www.ipindia.nic.in,, go to http;//ipindiaservices.in/workingofpatents/

b) Pelase see the print screen from where one can access the desired information

[Screenshot from ipindiaservices.gov.in/workingofpatents]

c) Or the desired information also can be obtained under section 153, Rule.27 of the patents Act and Rules, as the information can be inspected the physical records under the Act.

d) The desired information relates to about 1700 patents for all the years, to supply and trace out the information physical form requires huge humane resource and need to divert the office staff for some days which would hampers the day-todays- official work therefore, the information is proactively disclosed in the office website for the public.

[Screenshots from ipindiaservices.gov.in/workingofpatents]

Thanking you,

Yours faithfully

(N. Ramchander)

Astt. Controller of Patents & Designs

& CPIO, Patent Office, Mumbai

For more details visit https://cis-india.org/a2k/blogs/rti-request-to-indian-patents-office-for-form-27-statement-of-working-of-patents-2015

Rise of the bot: all you need to know about the latest threat online

praskrishna — 2014-01-31T07:16:36Z

In the last week of December, 2013, former union railway minister Pawan Kumar Bansal lodged a police complaint in Chandigarh after witnessing “an unusual rise in his online fan following”. The former minister told the police that his Facebook page had received more than 10,000 likes, within a span of 24 hours. While his allegation that the ‘likes’ were “fabricated” may be true, information technology experts believe a bot was at work.

The article by Danish Raza was published in the Hindustan Times on January 5, 2014. Snehashish Ghosh is quoted.

A bot is a software that mimics human behaviour on the Internet. Bots can be used to create artificial accounts on social media, provide numerous likes on a particular page, send tweets or visit various websites. All this is done without any human involvement.

Bots already constitute a significant percentage of Non Human Traffic (NHT) online, which has, according to some estimates, eclipsed human traffic. Comscore, a US-based Internet technology company noted on its blog that NHT, also known as Artificial Traffic, increased from approximately 6% of the total web traffic in 2011, to 36% in 2012. Last month, a report from Incapsula, a cloud-based security service, which aids the security and performance of websites, stated that more than 60% of web traffic was non-human in 2013. The figure was based on data collected from the 20,000 sites on Incapsula’s network .

Other than bots, NHT on the web includes traffic generated by Internet routers and back end services used by websites to communicate with third parties.

India is not immune to the problem. According to the Symantec Internet Security Threat Report for 2012, there was a 280% increase in bot infections in India between 2011 and 2012. 17% of bot-infected computers, the highest in the world, are in India and 15% of global bot-net spam is generated here. The report also states that 69 Indian cities are prone to bot infections which includes Bhubaneswar, Surat, Cochin, Jaipur, Visakhapatnam, Indore, Kota, Ghaziabad and Mysore.

Bot spotting
How do you spot a bot? When a bot or its friend is at work, the browser directs you to sites other than the ones you intend to visit, you get full-page pop ups and pop unders, and when you quit the browser, it gets relaunched after a few minutes. Chances are your computer is part of a chain of online events which create NHT on the web, the purpose of which may be to attack a site or a server.

Why you should be wary
Malicious traffic, malware, hacking attempts, viruses slow down the Internet and delay legitimate traffic and services. Used to target systems or take down websites, NHT generates fake clicks on advertisements to increase website statistics.

One of the perils of ignoring artificial web traffic is that it gets counted for real impressions for which clients end up paying. For example, a website owner may hire the services of a digital marketing firm to publicise the site. In the guise of increasing page views, the marketing firm can produce a bill for fake impressions, supplementing actual human traffic to the page with bot usage.

“Unless there is a curb on this practice of malicious NHT, one stands at risk of being duped by marketers, agencies and even clients,” said Chiragh Cherian, director, online PR at Perfect Relations, a brand management firm. Recent studies have estimated bot traffic to be between 4 - 31% of total web traffic in the US, which translates to between $650 million and $4.7 billion in wasted marketing spend. According to Miaozhen Systems, a leading Chinese advertising technology company, NHT caused advertisers in China to lose approximately US$ 1.6 billion between July 2012 and June 2013.

How to combat Non-Human Traffic
Most servers have defence mechanisms to tackle spam and cyber attacks. Websites are also now developing mechanisms such as asking for human authentication which is difficult for a bot to execute. “But even personal computers should be equipped with strong Internet security applications such as anti-virus and anti-spyware to prevent hacking and phishing attempts and to prevent being used as slave machines for distributed cyber attacks,” said Chintu Cherian Abraham, a digital media professional. Figures show that we need to watch out where and how we go online. According to Norton Report, 2013, 61% Indians access their social network accounts from unsecured wi-fi connections, while 42% access bank accounts and 44% shop online using unsecured wi-fi connections.

Social media companies are gradually devising mechanisms to filter bots. “When a page and a fan connect on Facebook, we want to ensure that connection involves a real person interested in hearing from a specific page and engaging with that brand’s content. As such, we have recently increased our automated efforts to remove Likes on Pages that may have been gained by means that violate our terms,” mentions Facebook’s site integrity policy.

Agency-client intervention is necessary to ensure that artificial traffic is not presented as real. “It’s also important to make all agencies, advertisers and clients aware of their responsibility to keep the Internet free from malicious NHT,” said Chiragh Cherian.

Government involvement is also needed to control the problem of malicious bots. “A lot needs to be done from the government’s side to tackle bots which can be used to target the country’s critical infrastructure such as banking websites,” said Jiten Jain, a cyber security analyst, adding, “Last year, I highlighted the flaws in HDFC’s net banking website which have been rectified now. They could have been exploited to block the net-banking service.”

Until we have a robust mechanism to filter out bogus traffic from real, it will be difficult to say whether the social media followers of Bansal and other public figures are human or not.

Know your Bots
Not all bots are used with a negative intent. Some help in research and monitoring.

The Malicious
Bots can be effectively used to impersonate and to hack accounts leading to financial losses and intellectual property theft. “Theft of personal details, username and password to operate one’s bank account is a classic example of how bots can lead to financial losses. It is an organised cyber crime,” explained Commander (Retd) Mukesh Saini, former national information security coordinator, Government of India. In May 2013, cyber criminals broke into the Mumbai-based account of the RPG group and siphoned off `2.4 crore. Three people were arrested in the case.

“The rate at which NHT is increasing is alarming,” says Tinu Cherian Abraham. “Any computer connected to the Internet is vulnerable to such attacks. The user will not get to know about it unless he or she has installed an Internet security application.”

Besides bots, computers also generate other kinds of secondary activities, while the user is surfing the Internet. This activity remains in the background and is never seen by the user, unlike the bot-generated pop ups, observes Comscore. For example, your computer might be being used as a channel to reach a server with the intention of hacking it. And you will never know.

The Good
Not all NHT is bad, though. In fact, good bots such as scrapers can be effectively used to conduct research. “Wikipedia can be scraped to investigate the frequency of edits on a Wikipedia page and track the increase in the number of editors,” explained Snehashish Ghosh, policy associate at the Bangalore-based Centre for Internet & Society.

Good bots are also used by search engines to track content on websites and enhance their search results. Search bots and other good bots formed 31% of total bots, the Incapsula report noted.

The Social
Apart from malicious and good bots, there are social media bots too. “Extensive analysis is done on social media traffic for monitoring, business lead generation, as well as reputation management. This has amounted to a lot of automated or non-human traffic,” said Abraham.

According to Facebook’s filings published in a Forbes report in February 2012, around 83 million of its users are bogus. “It’s a violation of our policies to use a fake name or operate under a false identity, and we encourage people to report any user they suspect of doing this, either through the report links we provide on the site or through the contact forms in our help centre,” a Facebook spokesperson told HT.

Twitter bots have also made its presence felt on the platform. “Twitter has witnessed very interesting bots which have found appreciation from the community for being funny and creative. The microblogging site cracked down on some harmful bots, but still some of the advanced level bots slip through the net,” said Ghosh.

In August 2012, London-based firm Digital Evaluators, which evaluates social media presence of worldwide companies, released an analysis of Twitter followers of the US Presidential Election candidates Barack Obama and Mitt Romney. 21.9% of Barack Obama’s 17.82 million Twitter followers were found to be bogus.

The Big Brother
Ghosh said that the increase in NHT related to the Internet of things, the concept which enables communication between two or more devices, results in privacy issues. “Take a situation where your mobile device is constantly tracking your location for the purpose of switching on the air conditioner at your home before you reach. Such applications produce huge amounts of personal data and there is no clarity whether this data is being stored,” he said.

“As the new networks link data from products, company assets, or the operating environment, they will generate better information and analysis, which can enhance decision making significantly. Some organisations are starting to deploy these applications in targeted areas, while more radical and demanding uses are still in the conceptual or experimental stages,” noted a McKinsey & Company report on Internet of things.

For more details visit https://cis-india.org/news/hindustan-times-january-5-2014-danish-raza-rise-of-the-bot

Ring Side View : Update on WIPO Negotiations on the Treaty for the Visually Impaired

Rahul Cherian — 2012-08-13T04:34:22Z

As a legal advisor of the World Blind Union and part of the World Blind Union delegation to the 24th meeting of the WIPO Standing Committee on Copyright and Related Rights (SCCR) that concluded on July 25, 2012 I had a ring side seat to the negotiations that happened between Member States in relation to the Treaty.

On call almost 24 x 7 to answer questions and clarify positions to Member States on aspects relating to the Treaty and the ground reality faced by the print disabled community, those were possibly the most grueling 10 days of my life.

Progress at the last 3 SCCRs was painfully slow. At the start of this SCCR on July 16 2012 the single biggest hurdle to progress on the Treaty was the stand that the African Group had taken at the earlier SCCRs with respect to a comprehensive text covering exceptions and limitations to copyright for education, libraries, archives and disabilities. See my discussion with Jamie Love from Knowledge Ecology International on this issue. It was evident that while a comprehensive text had its merits, it would be impossible to make progress on this comprehensive text because, other that for exceptions for disabilities, the issues relating to education, libraries and archives had not reached the level of maturity required to progress to a Treaty. So it was essential that exceptions for disabilities were de-linked from exceptions for education etc. This is exactly what the African Group did much to the excitement of the WBU team.

Much was left to be done over the next few days including discussion on the text of the working document which prepared by Chair after SCCR 23, available here. Normally, discussions on text happen at the plenary session attended by Member States as well as accredited organizations such as the World Blind Union, my organization Inclusive Planet Centre for Disability Law and Policy and others. This process, while adding to transparency and more participation is sometimes slow and the request of some Member States considering the urgency of the matter, discussions were taken out of plenary into a closed room round table discussion. All Member States could participate and many did. Unfortunately, accredited organizations were not invited to attend. Full credit to Member States in terms of effort put into this effort as they worked well beyond normal working hours on most days in an attempt to reach consensus on the text.

Another critical outcome we had hoped for was that there would be consensus between Member States that the instrument would be in the form of a Treaty. As the negotiations between Member States progressed it became clear that the United States and the European Union were blocking the Treaty while everybody else was pushing hard for the Treaty. The United States and the European Union were pushing for some form of non-binding instrument that would be more in the nature of a recommendation. Further coverage of this is at Huffington Post and in the Guardian. The drawbacks of a soft law as opposed to a Treaty is obvious in that a soft law has no binding force as opposed to a Treaty. Rumor has it that the reason for the United States not supporting the Treaty is that the publishing lobby is apparently a huge contributor to President Obama’s re-election campaign and that he could ill afford to alienate this lobby by pushing for the Treaty. The European Union’s opposition to a binding Treaty was despite a resolution adopted by the European Parliament in February 2012 calling on the European Union to support a binding Treaty.

We had hoped that SCCR 24 would close with agreement on the text, agreement that it would be a Treaty and finally that the SCCR referring the Treaty to the upcoming General Assembly in October 2012 to call for a Diplomatic Conference in 2013 to expressly agree on the Treaty.

However, this was not to be. Although much progress was made on the text, the text remains incomplete, with a lot of brackets in the text on undecided points. There was no consensus that the instrument should be a treaty. And lastly there was no decision on referring the issue to a diplomatic conference.

The next steps as outlined in the conclusions to SCCR 24 are the following:

an inter-sessional meeting of the SCCR be held in Geneva between the 2012 General Assembly and the 25th session of the SCCR to continue work;
the 25th session of the SCCR will attempt to conclude or advance substantially the text of the document; and
that the General Assembly convene an extraordinary session to be held in December 2012 to evaluate the text from SCCR/25 and to make a decision on whether to convene a diplomatic conference in 2013.

SCCR 24 made more progress on this issue that any of the previous SCCRs I have attended. We are very optimistic that the Treaty will become a reality of the next 18 to 24 months with the increased pressure being exerted on the US and the European Union by the blind groups in these jurisdictions respectively. Needless to say, the Treaty will benefit developing countries the most since the majority of persons with print disabilities are in these countries. India and other developing countries are mindful of this and are pushing as hard as possible to make it happen.

My next post will be on the pros and cons of the text that was proposed at the end of SCCR 24.

For more details visit https://cis-india.org/accessibility/ring-side-view

RightsCon Toronto 2018

Admin — 2018-06-07T14:31:20Z

RightsCon is organizing the 2018 edition of the event at Beanfield Centre at Exhibition Place, Toronto in Canada. A session on Pervasive Technologies project titled "Cheap and chipper: IP in India’s affordable smartphones" is scheduled on May 17, 5.15 p.m. to 6.15 p.m. in the International Trade and the Commons track. (Room #203B, Beanfield Centre).

We present the findings of the Centre for Internet and Society’s "Pervasive Technologies" research project that concluded last year. The project was an endeavour to study how Internet-enabled mobile phones sold for USD 100 or less interact with India's intellectual property laws. These low-cost technologies that lie in a grey zone of IP laws have been instrumental in bringing access to the Internet and, in turn, access to knowledge and information to people. The project undertook a study of the mobile device landscape in India while developing legal strategies to ensure that consumers continue to have access to inexpensive devices; that manufacturers, software developers and content creators operating in the budget device segment are not snuffed out by litigation; and that the rights of IP holders are not infringed upon.

Each researcher will elucidate on her findings in the areas of patents and copyright pertaining to the hardware, software and media content and the interaction of these findings with public policy.

Maggie Huang, Amba Kak, Rohini Lakshané, Vidushi Marda and Anubha Sinha are among the speakers at the event. For more info click here

Amber Sinha remotely participated in a private meeting on 'Strategizing Civil Society Roles in the Artificial Intelligence Debate'.
Anubha Sinha, Maggie Huang, Rohini Lakshané and Vidushi Marda presented their findings from the Pervasive Technologies project in a panel titled "Cheap and Chipper: IP in India's Affordable Smartphones". Prof Michael Geist moderated the session. Anubha Sinha and Vidushi Marda participated remotely.
Elonnai Hickok participated in these sessions: IDRC cyber policy meeting; GNI board meeting; GNI learning session on MLATs; FOC-AN meeting; GNI session on Intermediary Liability.

For more details visit https://cis-india.org/a2k/news/rightscon-toronto-2018

RightsCon 2018

Admin — 2018-02-28T15:15:06Z

Rohini Lakshané, Anubha Sinha, Vidushi Marda, and Amba Kak will be participating in the seventh event in the RightsCon Summit Series to be held in Toronto from May 16 - 18, 2018 as speakers.

Rohini's proposal “Cheap and chipper: IP in India's affordable smartphones” has been accepted!

As the world’s leading conference on human rights in the digital age, RightsCon brings together business leaders, policy makers, general counsels, government representatives, technologists, and human rights defenders from around the world to tackle pressing issues at the intersection of human rights and digital technology. This is where our community comes together to break down silos, forge partnerships, and drive large-scale, real-world change toward a more free, open, and connected world.

For more info click here

For more details visit https://cis-india.org/a2k/news/rightscon-2018

Review Meeting for the Pervasive Technologies Project

praskrishna — 2017-03-22T14:25:50Z

The Centre for Internet & Society in partnership with Beijing Normal University Institute for Internet Policy & Law organized a review meeting of the Pervasive Technologies project in Macau on February 20 - 21, 2017.

Sunil Abraham, Anubha Sinha, Rohini Lakshane and Vidushi Marda were speakers. Sunil introduced the participants to the Pervasive Technologies project. Anubha Sinha spoke on Intellectual Property in Mobile App Development in India. Vidushi Marda gave a talk on Competition Law and Standard Essential Patents. Rohini Lakshane gave a talk on Patent Landscaping in the Indian Mobile Device Marketplace. The agenda can be accessed here.

For more details visit https://cis-india.org/a2k/news/review-meeting-for-the-pervasive-technologies-project

Responses to the DIPP's Discussion Paper on SEPs and their Availability on FRAND Terms

Anubha Sinha, Nehaa Chaudhari, and Rohini Lakshané — 2016-07-07T16:24:01Z

The Department of Industrial Policy and Promotion (DIPP), Government of India, requested comments through its "Discussion Paper on Standard Essential Patents and Their Availability on FRAND Terms" on March 1, 2016. This post is a compilation of various comments submitted in response to it.

The Centre for Internet & Society (CIS) commends the DIPP for its efforts at seeking inputs from various stakeholders on this important and timely issue. CIS is thankful for the opportunity to put forth its views. The submission is divided in 3 main parts. The first part, ‘Preliminary’, introduces the document; the second part, ‘About CIS’, is an overview of the organization; and, the third part, ‘Submissions on the Issues’, answers the questions raised in the discussion paper. A list of annexures and their URLs is included at the end of the document. The submission to the DIPP was prepared by Anubha Sinha, Nehaa Chaudhari and Rohini Lakshané.

Download

Discussion Paper on Standard Essential Patents and their Availability on Frand Terms (Government of India, Department of Industrial Policy and Promotion, Ministry of Commerce and Industry, March 1, 2016)
Centre for Internet and Society
Centre for Internet and Society (hosted on Social Science Research Network)
Prof. Jorge L. Contreras
Joint Comments of the American Bar Association (ABA) Sections of Anti-Trust Law, Intellectual Property Law, International Law, and Science & Technology Law
Global Antitrust Institute, George Mason University School of Law
CMAI-TEMA (Communication Multimedia and Infrastructure Association of India - Telecom Equipment Manufacturers Association of India)
Software Freedom Law Centre (SFLC)
Yogesh Pai

For more details visit https://cis-india.org/a2k/blogs/responses-to-the-dipps-discussion-paper-on-seps-and-their-availability-on-frand-terms

Resources

pranesh — 2009-10-20T03:29:16Z

A collection of resources that will help one navigate through the arguments and evidence for and against the Indian "Bayh-Dole" bill.

PUPFIP

Bayh-Dole

Technology Transfer

Innovation's Golden Goose (The Economist)

Improving Innovation(The Economist)

Scientific Culture

Patents and America's Universities(The Economist)

When Academia Puts Profits Ahead of Wonder(The New York Times)

Bayhing for blood or Doling out cash?(The Economist)

Evaluative Pieces

University Licensing under Bayh-Dole: What are the Issues and Evidence?(Thursby and Thursby)

Is Bayh-Dole Good for Developing Countries? Lessons from the US Experience(So et al.)

The Law of Unintended Consequences(Fortune Magazine)

The Growth of patenting and licensing by U.S. universities and the Bayh-Dole Act (Mowery et al.)

Overall Assessment of the Bayh-Dole Act (Nelson, Mowery, et al.)

General Resources

Joint Ventures and Intellectual Property(Andreas Panagopoulos)

Patents vs. Other Knowledge Transfer(Agrawal and Henderson)

Incentives Structure and Licensing Success(Dan Elfenbein)

University Licensing and Research Behavior(Lach and Schankerman)

Open Science and Private Property(Paul David)

IP Alternatives

New Approaches to Filling the Gap in TB Drug Discovery (Casenghi, Cole and Nathan)

The Role of Prizes in Developing Low-Cost Point-of-Care Rapid Diagnostic Tests and Better Drugs for TB(James Love)

How to boost R&D for essential drugs and diagnostics

Scrooge and intellectual property rights (BMJ January 2006)

For more details visit https://cis-india.org/a2k/publications/pupfip/resources

Research Studies on Indian Language Wikimedia Projects 2019-21

sneha — 2022-10-21T12:59:55Z

This is a compilation of the final reports from a series of short-term studies undertaken by the CIS-A2K team in 2019-2021, on an array of topics related to Indian language Wikimedia projects. The projects were undertaken by Subodh Kulkarni, Bodhisattwa Mandal, Bhuvana Meenakshi Koteeswaran, Ananth Subray, Satpal Dandiwal and Nitesh Gill, with research oversight and editorial support by Puthiya Purayil Sneha, and internal review by Sumandro Chattapadhyay and Ambika Tandon.

See the full report on Wikimedia Commons here

Click to download the full report here

Wikipedia and its many sister projects have been rich sites of study for researchers across the world for many years now. The online encyclopedia presents a microcosm of the real world in terms of the dynamics of knowledge production and use, including content and infrastructure, and community interaction among many other things. Research about Wikimedia projects and platforms has been undertaken in various languages, and from multidisciplinary perspectives, as illustrated by the research index on Wikimedia Meta-Wiki, and several important publications over the last several years. Research on Indian languageWikimedia projects and platforms, and on topics related to the sub-continent have also emerged significantly over the last several years.However, as understood in the course of the studies in this compilation as well, awareness about such research within the communities itself remains limited. While there is a lot of important work being undertaken on topics relevant to Indian Wikimedia projects, often by researchers who are Wikimedians themselves, factors such as dissemination beyond academic spaces, and accessibility in terms of language and context seem to also affect their availability to the larger communities, and in terms of implementation of learnings and recommendations.

The six short-term research studies undertaken by the Access to Knowledge team over 2019–2021 were therefore initiated as a pilot, an initial foray into the space of research on Wikimedia projects in India. Based on the recommendations of the Wikimedia Foundation, this work was undertaken primarily to tap into new areas of work, while also drawing upon existing expertise at CIS, and in order to build the capacity of the team. With these broader motivations in mind, the research was structured with the following objectives to:

Identify knowledge gaps, challenges, and opportunities in different aspects of content creation and participation in Indian language Wikimedia projects.
Develop a better understanding of systemic issues such as gender bias in Indian language communities, access to and reuse of cultural content, open learning in multilingual classrooms, and specific experiences of content creation within Wikimedia communities in India and associated initiatives.
Develop recommendations and best practices towards addressing existing challenges and optimising available resources for the larger free knowledge movement.

The studies in this compilation therefore examine different aspects of Wikimedia platforms and projects in India, in close alignment with existing work in the programme. These include the gender gap in Indian Wikimedia communities, creating multilingual and open educational platforms and resources, focus on specific projects such as GLAM and Wikidata, and efforts and challenges with content creation, access and outreach in specific language communities.

Working on these studies has been a learning experience, especially given the diverse contexts in which the projects are located, and the capacities and interests of the researchers themselves. The design of the studies was also therefore developed and modified to build on existing capacities within the team, and its learnings from previous years of working with various language communities. Capacity-building for team members on research design, methods, fieldwork and documentation was mostly done through close individual supervision and collaborative work. The methods used were largely qualitative, and ranged from interviews, literature reviews, data visualisations, focused group discussions and comparative analyses. The effort was also to try and capture the scale and diversity of the nature of work being undertaken in different Indian language communities through these projects. There were several challenges as well, beginning with framing the research questions and project design in a way that they were accessible to a wider community of people who would be engaged in contributing their inputs towards the work. Process-related challenges, such as translation of interview questionnaires into Indian languages revealed several interesting gaps, such as the lack of technical terms related to digitization or open access in these languages. The outbreak of the COVID-19 pandemic in early 2020 led to restrictions on field visits, thus effectively hampering in person conversations and easier access to community members.

There have been several learnings in the course of working on these studies, key among them being questions of awareness, relevance and impact. The lack of existing and easily accessible research (including those outside academic work) on several areas of Wikimedia in the Indian context has been a limitation in many ways, offering little in terms of available knowledge and best practices to work with. The limited awareness about, and imagined relevance of research in the regular work of communities has also been an impediment. As illustrated by learnings from a short research needs assessment carried out earlier this year, few community members were aware of research on Wikimedia projects being undertaken in India, and on a global scale. More importantly, there needs to be a conversation on its relevance to their own work, and to the larger movement. An effective communication strategy for research work, in different Indian languages, would perhaps address some of these gaps. A closely related question is also that of impact. The studies in this collection largely focus on short-term impact, through best practices and recommendations that may be developed through the research studies. While this is definitely a pragmatic approach, often the interest in a problem-solution design may look at research purely from an instrumental lens to identify quick solutions and their implementation, without a critical take on exploring and understanding larger, systemic or structural gaps that may be contributing to the problems itself. Going forward, it would be imperative therefore to identify areas of research, and build processes of research design that may address these challenges. Given the dynamic nature of Wikimedia, its platforms and communities, it is important to identify immediate gaps and possible solutions, but also to speak precisely to this aspect of long-term impact and relevance, to both current areas of work and the growth of the larger movement. We hope the studies in this compilation offer some insights towards these, and many more interesting questions related to research on Wikimedia and the free knowledge movement in India.

For more details visit https://cis-india.org/a2k/blogs/research-studies-on-indian-language-wikimedia-projects

Research Publishing: Is ‘One Nation, One Subscription’ Pragmatic Reform for India?

sinha — 2021-04-28T17:09:14Z

Anubha Sinha examines the feasibility of the proposed 'One Nation, One Subscription' approach in the draft national Science, Technology and Innovation Policy (2020) on access to scientific literature. This article was first published in The Wire Science on October 23, 2020.

The story of open access (OA) publishing in India has been a chequered one. While we have had some progress with institutional initiatives, the landscape remains fractured without a national OA mandate. And now some reports suggest that the Indian government is considering striking a ‘one nation, one subscription’ deal with scholarly publishers for access to paywalled research for all of India’s citizens. Only last year, India had decided against joining Plan S. K. VijayRaghavan has been at the helm of these decisions, as the principal scientific advisor to the Government of India.

OA refers to the level of access different people have to a published paper, like a scientific paper. Typically, a researcher submits their manuscript to a journal to consider for publication. If the paper passes peer-review, the journal publishes the paper in its pages, and online. In the ‘conventional’ research publishing model, a reader who wishes to read the paper pays a fee to the journal to do so. In the (gold) OA model, the journal makes its money by having the researcher – or their funder – pay to have their paper published.

While it is heartening to see the momentum towards settling on a suitable OA approach, the ‘one nation, one subscription’ scheme is a curious proposition for India. A consortium of Indian science academies had recommended it last year. The scheme entails the Government of India to negotiate for and purchase a single, unified subscription from a consortium of publishers of scientific books and journals, after which the books and papers will be available to all government-funded institutions as well as all tax-payers.

Around the world, this scheme has been implemented in Uruguay and Egypt, while some European countries have adopted versions of it. Experts around the world have suggested that the model could be a feasible interim solution for developing countries. Note that both Egypt and Uruguay obtained financial assistance from the World Bank to secure their deals.

In Uruguay, since 2009, citizens have enjoyed free access to (otherwise) paywalled scientific and technological journals and platforms via the online platform Portal Timbó. However, some content remains available only to scientific, academic, and educational institutions and researchers. The 2019 budget for Portal Timbó was $2.3 million (Rs 16.94 crore).

Egypt launched its Egyptian Knowledge Bank (EKB) initiative in 2015. EKB provides a population of 92 million people access to journals, e-books and archives from multiple publishers across the sciences, humanities and cultural disciplines, and has certainly benefited society. However, the question remains whether incurring an annual expense of $64 million, in 2017 (Rs 416.47 crore), in subscription costs is justified. In both Egypt and Uruguay, it is not clear if all material is readable immediately upon publication or whether there is a delay.

So what could a ‘one nation, one subscription’ deal look like for India?

Currently, India spends Rs 1,500 crore a year to read research via journal subscriptions (about $205 million). So while a shift to nationwide subscription could yield a low per capita cost of access, our limited ICT infrastructure and digital divide remain barriers to unlocking the full potential of the deal. It is equally crucial to ensure that the deal covers key journals and databases – which may have to be negotiated with publishers with different types of collections across multiple disciplines.

Further, and perhaps more importantly, a nationwide subscription deal will not solve for an uneven OA publishing culture among Indian researchers. A rough calculation suggests India’s annual publishing spend is Rs 985 crore ($134.5 million), including article-processing charges (APCs) for both OA and hybrid-OA journals (which have a mix of OA and ‘conventional’ publishing policies). While a common national subscription could potentially lower the cost of reading research, we don’t know if authors will still have to pay APCs to publish their papers in publications covered by the deal.

Irrespective of how the deal plays out, the Indian research community is currently divided over the issue of paying to publish. Some researchers and disciplines argue that APCs should not be the basis for ruling out publication in a journal – the choice should rather be balanced against the journal’s disciplinary relevance and its ‘prestige’ factor (captured in a controversial metric known as the journal impact factor). In India, publishing charges are typically fronted by government grants and private funders, and it costs Rs 70,000 on average to publish in OA journals.

On the other hand, OA supporters and several institutional initiatives advocate ‘green’ OA – which requires posting the preprint version of papers in an open online repository, often immediately after publication. It remains to be seen whether India will unanimously decide to adopt green OA.

We also need to deliberate further as to what a nationwide subscription would mean for the country’s and the world’s OA movement. While a ‘one national, one subscription’ plan would appear to temporarily alleviate the financial problem of access, how far can it really go towards solving for legal and technical barriers of access? For example, the reader may still not have legal permissions to reuse the article, or reuse may be prevented technically by anti-copy measures. Or should we brush these concerns aside since the deal is somewhat of an incremental reform for India?

The OA movement was conceived to address global inequality in accessing scientific research. Would India’s position and contribution to the movement – as a large consumer and producer of scientific research – get sidelined? It appears that the nationwide subscription deal could feature in India’s upcoming ‘Science, Technology and Innovation Policy’ as well. Then, to address the gaps, it is necessary to add other policy solutions to complement the deal’s impact. The goal for a national science policy should be to create a sustainable, longer term environment that improves the quality of access and production of scientific research, and does so in alignment with the values of OA.

Access this article on The Wire Science here.

For more details visit https://cis-india.org/a2k/blogs/research-publishing-is-2018one-nation-one-subscription2019-pragmatic-reform-for-india

Report: Global Intellectual Property Convention 2015

rohini — 2015-06-21T13:36:18Z

The Global Intellectual Property Convention was held in January 2015 in Mumbai. Interns Anna Liz Thomas and Nayana Dasgupta assisted with the making of this report.

Conference Schedule [PDF]

National IPR Policy Recommendations [PDF]

Harshvardhan Lale, Price Waterhouse Coopers (PWC)

Digital piracy in India

Special 301 Report:

India is second among 10 countries on the Priority Watch List of the United States Trade Representatives (USTR), according to the Special 301 Report published in May 2014. Once every two years, the US, through its trade representatives releases the Special 301 Report, which deals with piracy across the globe, especially in the places where US business interests lie. Though the police conduct at least 25 raids every week across India, it has made no difference to the rate of piracy in the country. When a couple of software publishers entered India, they were very confident that none of their products, in any shape and form, could be pirated in India. I took one of the heads of Compliance to the [pirated goods] market where we got a product worth Rs. 5 crores for Rs. 100.

The Special 301 Report also suggests that none of the previous governments or government bodies in India have taken any initiative whatsoever to ensure that even the products used in the government offices are not pirated. According to US government agencies (2013), there were serious difficulties in attaining constructive engagement on IPR issues with the UPA government.

Video piracy:

India is rated as one of the countries with the highest incidence of video piracy by MPDA, well above Bulgaria, Costa Rica, Greece, and Peru. We [supporters of stricter IP] are now trying to get the digital rights management provision in the [Indian] Copyright Law [redacted], but that is still in the future.

Broadcast piracy:

A few Indian television channels are facing this problem because of demand [to view their content] from Indians living abroad.

Online piracy:

The Internet has been an enabler for the movie and music industry. Many cinema and music publishers have their own channels, say, on YouTube. Although content cannot be directly downloaded from YouTube, "YouTube grabber" software enables piracy.

Surreptitious recording of public performances on mobile phones and recording of cinema screenings using camcorders are other instances of piracy. These recordings are later circulated on the Internet.

Software piracy:

Recently, one automobile manufacturer had to recall a set of its vehicles from the Indian market. Investigations revealed that one of the automobile components, which was procured from a supplier, was created using pirated software. There is a fair chance that a pirated product won't provide all the functionalities that you might otherwise get, or that some APIs (Application Programming Interface) may be missing, which may lead to erroneous or inaccurate design.

Counterfeiting, online piracy, end user piracy, client overuse, and hard disk loadings [sideloading] amount to most of the software piracy in India. One of the software companies for whom we [PWC] are doing an audit - it happens to be one of the leading information technology companies in India - we identified a gap of 20 million [US] dollars for one software publisher in their India operations. Whether this was deliberate or not can be debated, but it is a serious problem.

A survey on software piracy conducted across the globe by Business Software Alliance indicates that India has improved from bring ranked tenth to twelveth. Estimated use of unlicensed software stands at 43% globally; India is at 60% [as per the latest figures]. In 2010, India was at 64%, in 2011 at 63%. There is a recent case of a patent getting rejected because the organisation that had applied for it had used unlicensed software for designing the product. Another serious impact with regard to RnD and patents is on privacy. [Pirated software could contain] malware with the potential of stealing information].

Some of the major problems are that organisations are not aware of the implications of using pirated software and media, leading to potential non-compliances. [Owing to] lack of knowledge of licensing, the different software licenses, software publishers not using a standard format of licensing, the end consumer does not understand what licensing is. In the license terms, there is a "Right to Audit", which gives every software publisher the right to evaluate your organisation at any time.

Corporates are trying to align themselves with consultants like us [PWC] to support the industry in curbing piracy. The Make in India program has a dedicated section on intellectual property (IP). There is a special focus on intellectual property rights (IPR) for the manufacturing sector, which is directly affected by digitalisation. We hope that with the new government, some change will happen in the software piracy space.

Omesh Puri, Senior Associate, LexOrbis

Effective Copyright Enforcement in the Digital Era: Relevance of John Doe Orders

Copyright enforcement challenges in the digital world:

Rapid growth in digital technology presents enormous opportunities for copyright owners as it expands their customer base, reduces distribution costs, and makes territorial boundaries almost a nullity. The disadvantage is that, unless regulated properly, it exposes copyrighted work to threat of blatant infringement spread across different media including the Internet. The main problem before copyright owners is ever-growing online piracy. The Internet grants anonymity to copyright infringers. There can be a number of occasions where copyright owners are not able to ascertain the infringer's identity even after spending considerable time or money. In such cases, a John Doe order comes as an effective enforcement tool.

The name John Doe is used to identify unknown and nameless infringers or defendants who have allegedly committed some wrong, but whose identity is unknown to the plaintiff. To avoid delay and injustice, the court names the defendant John Doe, until such time as the defendant is identified. The orders passed by courts in such cases are known as John Doe orders, and is an internationally accepted practice to enforce IPR, especially with respect to copyright and trademark. This is prevalent in various jurisdictions including the US, Canada, Australia and New Zealand. This order has also been formalised in the statutory provision of these countries. It is an ex-parte interim injunction with the added benefit that the plaintiff is given the liberty to add to the array of parties who would be identified after the filing of the suit. These orders are an exception to the general rule which requires the defendant to be identified prior to the filing of the suit. The ex-parte interim injunction then applies even against the later defendants. It is also against the defendants whose identities are unknown during the filing of the suit. The orders enjoin unknown defendants from engaging in any infringing activity.

Why are John Doe orders so popular?

These orders allow for immediate action in case any instance of infringement comes to light. As the copyright owners only need to serve a copy of the order to the erring parties instead of filing of a new suit. By filing a single action, and after obtaining a single John Doe order, the plaintiff would be able to cover all alleged and even potential infringements and violators, which would ultimately save a lot of time and costs. The plaintiff would not be required to file separate court actions before different courts in India. Once they obtain this order, it will block all unknown defendants and infringers. It is also able to reduce online piracy by mandating that internet service providers block access to infringing websites.

Some of the important John Does copyright injunctions passed in India:

The first John Doe order was passed in the famous case of Ten Sports entitled Taj Television v. Rajan Mandal. The plaintiff, Taj Television, a Dubai-based company, owned and operated an exclusive sports channel by the name Ten Sports. They had acquired the exclusive rights to broadcast the 2002 FIFA World Cup. They entered into agreements with various cable operators for transmission of the channel. However, many unlicensed cable operators started displaying Ten Sports without any permission or authorisation from Taj Television, which then instituted a suit against named and unnamed cable operators. In 2002, the Delhi High Court passed a pathbreaking order which stopped the unauthorised broadcast of FIFA World Cup matches.

The Indian Court has specifically held that such orders may be enforced against persons whose identities are unknown at the time of instituting the suit.

Whose identities fall within the scope of action?

So long as the litigating finger is directed at an unknown person, the inability to identify him by name is a mere misnomer. The principle of litigating finger was affirmed in this case. After this there have been a series of John Doe orders. However it is only in recent times that the Indian Judiciary has started granting these orders on a regular basis, especially for blocking websites. In another case in 2014, Star India Pvt. Ltd. vs. Haneeth Ujwal, the plaintiff was one of the leading broadcasters in India. They had acquired the exclusive broadcasting rights, which includes television, mobile, Internet or on-demand rights with respect to the 2014 India vs. England Test Series. Star India filed the suit against websites, many of which were unidentifiable in nature or the owners could not be located. They were showing these cricket matches live without the permission of Star India. The websites' viewers could either view the ad-supported free version or the video-on-demand or pay-per-view subscription-enabled version. The availability of this content is supported by advertisements found on these websites.

How could the exclusive rights of the plaintiff be protected, and what can be the appropriate remedy?

Should the websites be blocked completely or only the specific URL providing access to the infringing content? The court held that both known and unknown defendants were liable for infringement as there was no remedy available to the plaintiff other than blocking the entire website. Blocking URLs was considered to be insufficient remedy by the court because, in its opinion, the website owners could easily change the specified URL by merely one character to circumvent the John Doe order passed by the Court.

Challenges:

While it has become routine to seek John Doe copyright injunctions before every big movie release or any major sporting event, many claim that they have largely remained unsuccessful in checking and controlling small street pirates. Lack of police cooperation may also render these orders unenforceable. There is another dispute going on whether these orders should be limited to entire websites or specific URLs. The Delhi HC has previously granted orders to extend the inclusion of these orders on the entire website. However, there is another opinion by Madras HC which said that these orders would be limited to specific URLs. In the absence of specific judicial guidelines, there is no clarity on the scope of these orders or under what circumstances these may be granted. There is a risk of misuse and improper implementation of these orders.

James Martin, Director, Fieldfisher

Online Infringement In the European Union

(Recent Court Rulings in the European Union Regarding Online Copyright Infringement and Database Rights)

The Svensson case:

The Court of Justice of the European Union (CJEU) ruled that the owner of a website may use hyperlinks to redirect Internet users to protected works available on other websites without the authorisation of the copyright holder of the linked website, provided that the linked website is freely available, that is, it can be accessed by anyone on the Internet.

The Retriever Sverige website operated to provide clickable links to articles published by other websites on the internet. The claimants were journalists who wrote articles for the Goteborgs-Posten website, and those articles were being linked by the Retriever Sverige website. The claimants argued that the Retriever Sverige hyperlink constituted an infringement of the claimant's copyright by making a communication to the public without the author's permission and they alleged that this was contrary to Article 3 of the Information Society Services Directive, commonly known as the InfoSoc Directive, which is the European Directive that harmonises copyrights across the 28 member states of the EU within the Information Society. The case made its way to the Swedish Court of Appeal which stayed the proceedings pending references to four questions to the CJEU.

1. If anyone other than the holder of copyright in a certain work supplies a clickable link to the work on his website, does that constitute communication to the public within the meaning of Article 3(1) of the InfoSoc Directive?

2. Is the assessment under Q1 affected if the work which the link refers is on a website on the Internet, which can be accessed by anyone without restrictions or if access is restricted in some way?

3. When making the assessment under Q1, should any distinction be drawn between a case where the work, after the user has clicked on the link, is shown on another website and one where the work, after the user has clicked on the link, is shown in such a way as to give the impression that the content is appearing on the same website, in other words, framing the content.

4. Is is possible for a [an EU] Member State to give wider protection to the author's exclusive rights by enabling communication to the public to cover a greater range of acts than provided for in Art. 3(1) of the Info Soc Directive?

In answer to the first question, the Court of Justice determined that "communication to the public " requires both a "communication" and a "public". The hyperlinks were determined to be making available, and therefore, they were an act of communication. However, there is a sting in the tail, because the Court of Justice held that the public must be a new public, and the communication must be directed to a new public. A public that wasn't taken into account by the copyright holders when they first authorised their initial communication to the public. In the second stanza for Svensson, the public targeted by the journalists' original articles consisted of all potential visitors to the Goteborgs-Posten website, which was unrestricted. Therefore they could be freely used and read by any Internet user. Consequently the links provided by the Retriever Sverige website were not to a new public and there was no need to obtain the author's consent.

In response to the second question, the situation would be different if the link allowed users to bypass restrictions designed to limit access to the public such as a paywall as can be found on The Times London websites, the Wall Street Journal websites and many others. Such users were not taken into account by the original copyright holders when the initial communication was authorised. So those people would constitute a new public.

Regarding the third question, the framing, the Court of Justice unusually held that it was irrelevant. The Internet user who clicks on a hyperlink is given the impression that the link is appearing on the site that contains the link, in other words, framing somebody else's content that is already freely available on the internet on your own website is absolutely fine, and there are obviously issues that arise out of that concerning advertising revenue streams that some people have on their websites where they are effectively making money by putting content freely on the internet by having advertising revenue surrounding their content. But of course if somebody can freely embed that content on their website, those adverts aren't necessarily seen. But as far as the European Court of Justice is concerned in the context of copyright, this is perfectly acceptable, and this applies across all 28 EU Member States.

In answering the fourth question, the CJEU held that member states do not have the right to give wider protection to copyright holders by widening the concept of "communication to the public" from that which is given in the InfoSoc Directive, as this would otherwise give rise to legislative differences between member states contrary to the purposes of the directive.

Bestwater ruling:

The Bestwater case reconfirmed the liberal approach that the Court of Justice takes towards embedding copyright material on a third party website. The judgement has been stayed pending the outcome of the decision handed down in the Svensonn case. And the CJEU has ruled that unless an original publisher uses technical access restrictions, then embedded content does not reach a new public. The effect of this judgement, combined with the Svensonn judgement is likely to lead to more restrictive publishing practices within the EU. Copyright holders will seek to avoid free riders taking advantage of the loophole that the court seems to have legitimised. So to provide background,

The Bestwater case was referred to the Court of Justice by the German Federal Court of Justice. It deals with a promotional video about water pollution that was produced by Bestwater International, a company that makes water filters. The film was originally published by Bestwater on its own company website and later uploaded to YouTube, allegedly without the permission or knowledge of Bestwater. The defendants were competitors of Bestwater, and they embedded the video on their websites, with the frames pointing to the YouTube copy. Now Bestwater objected to this use and sought an injunction against the two representatives of the rival company from the German Court. Bestwater's position was that the video was protected by copyright and that the exclusive rights to use the film belonged to Bestwater. So the German court referred the case to the CJEU asking whether the embedding of content of a third-party website on one's own website constitutes a communication to the public within the meaning of Article 3(1) of the InfoSoc Directive.

After the Svensonn decision, the Court of Justice felt that it had already put an end to the debate regarding content on the Internet and it reverted to the German Court suggesting that the latter should withdraw its submission. In other words, saying that they did not want give an answer, saying that they had already answered it. The German Court insisted on a decision, one of the main reasons apparently being that in the Bestwater case, the YouTube video which the defendants were linking to and embedding on their website was itself a copyright violation. Nevertheless, in delivering its decision the CJEU followed the same rationale as in Svensonn and held that embedding content from another website does not amount to communication to the public if the uploader did not restrict access to the content and communicated it to the entire web community. There was no new public accessing the Bestwater video when it was embedded on the defendant's website, because when the video was uploaded on YouTube, whether lawfully or unlawfully, it was intended to be accessed by all who have access to the Internet. So this ruling somewhat cast doubt on the technical and economic understanding of modern media publication because the CJEU's position seems to be that the Internet is a medium rather than a mere technology. In other words, by analogy, a website does not compare to a particular magazine, newspaper, or a particular TV channel, but print media, TV in general, i.e, the relevant audience being all those who have access to magazines and newspapers rather than access to a particular newspaper, and all those who have access to TVs rather than a specific channel. So from a purely economic perspective these decisions raise concerns as they open up numerous possibilities to take advantage of copyright holders and content of other parties on the Internet. Based on these decisions, it's now possible to use written content, images or other videos that are hosted on another website for one's own website simply by embedding them. Apart from using somebody else's Internet bandwidth (which wasn't addressed by the CJEU at all), the CJEU in these copyright cases haven't taken account that the embedded content is actually taken out of its original context, and the advertisements displayed on the original website alongside the uploaded content may not appear on the embedded website, and the embedder may therefore spoil an important source of revenue for the copyright owner and use third-party copyright content for its own economic benefit. The most obvious response to these decisions will be that copyright owners will need to protect their content by implementing paywalls or other restrictive measures from the outset.

Another decision that the ECJ handed down involved the low-cost European Airline, RyanAir. This has been a long running dispute with various third parties, but one third party in particular, which accessed content on the RyanAir website to enable the sale of RyanAir flights and details about RyanAir time tables and schedules available on that third-party website, and interestingly, one thing that the Court of Justice raised in that decision is that it may be possible for owners of content to bind third parties in contract, but obviously you need to ensure that you are binding that third party in contract by accessing the website so that even if you cannot sue them for copyright infringement, you may be able to sue them for breach of contract for accessing your content and placing it on their website.

Database rights (AutoTrack v. GasPedaal)

The Court of Justice ruled in 2014 that the use of a meta-search engine can, in certain circumstances, constitute re-utilisation of the contents of the database in the meaning of Article 7(2)(b) of the Database Directive.

Database rights is an unusual concept, very newly come into the EU, and they provide protection above and beyond copyright protection. You don't necessarily need to have original content in a database, it's really protecting the investment an individual makes in actually producing the database, and that investment can be assessed on a qualitative or quantitative basis.

The Database Directive introduced the bespoke new form of legal protection. It is commonly referred to as the sui generis right . Article 7(1) in particular provides a "right for the maker of a database which shows that there has been qualitatively and/ or quantitatively a substantial investment in either obtaining, verification or presentation of the content to prevent extraction and/or re-utilisation of the whole or of a substantial part, evaluated quantitatively and/or qualitatively, of the contents of that database". Now for this purpose, Article 7(2)(b) provides that "re-utilisation means any form of making available to the public of all or a substantial part of the contents of a database by the distribution of copies, by renting, by online, or other forms of transmission". Article 7(5) provides that "the repeated and systematic extraction and/or re-utilisation of insubstantial parts of the contents of the database implying acts which conflict with a normal exploitation of that database or which unreasonably prejudice the legitimate interests of the maker of the database shall not be permitted."

The recitals to the Directive also back this up. So recital 42 of the Directive provides for "The right to prevent extraction and/or re-utilization related to acts by the user which go beyond his legitimate rights and thereby harm the investment". "The right to prohibit extraction and or re-utilization of all or a substantial part of the contents of a database relates not only to the manufacture of a parasitical competing product but also to any user who, through his acts, causes significant qualitative or quantitative detriment to the investment".

Turning to the facts of this case, Wegener operated a website called AutoTrack which carried car sale advertisements updated daily of to a 190,000 to 200,000 second hand cars of which around 40,000 were to be found on the AutoTrack website. Now Innoweb operated an online car advertisement website called GasPedaal. Rather than having its own database, it used a dedicated meta-search engine which then searched third party websites including AutoTrack's, using those websites to obtain results. So when a user typed in search terms on the GasPedaal website, the site's search engine would translate the relevant command into a language that could be understood by the AutoTrack web search engine. The AutoTrack search engine would then find any relevant advertisements and make them available on the GasPedaal search engine, which would then sort and collate those results from other dedicated search engines on other websites as well. The GasPedaal search engine would then note where more than one site produced the same advertisement and then made a single search result of those, presenting the user with links to the multiple sources. For each search performed, the GasPedaal search engine only returned results representing a small number of the advertisements on the AutoTrack site, but that is because it was only returning results that matched the relevant search terms given by the Internet user. Now Wegener successfully sued Innoweb for infringement of its database right. Innoweb appealed and the Hague Court of Appeal stayed the proceedings pending reference to the CJEU for a ruling on nine questions. The Court of Justice did not consider it necessary to consider all the nine questions. It ruled that it would be an infringement to the database right to use the meta-search engine in circumstances such as that involved in such proceedings. Under Article 7(1), an operator who makes available on the internet a dedicated meta-search engine such as GasPedaal re-utilises the whole or substantial part of the contents of a protected database, when that database's meta-search engine:

1) provides the end user with a search form which essentially offers the same range of functionality as the search form on the original database site.

2) where it translates queries from end users into the search engine for the database site in real time so that all the information on that database is searched through.

3) where it presents the results to the end user using a format of the website grouping duplications together into a single block item in an order that reflects the criteria comparable to those used by the search engine of the database site concerned for presenting results.

A dedicated meta-search engine is different from a general search engine based on an algorithm (like Google), primarily because a meta-search engine does not have its own data itself. It makes use of search engines of third party websites by transferring the queries from its users to the other search engines having first translated them into the relevant format required. It therefore offers the public a service where it searches the entire contents of the third-party databases or part of them in real time.

So Article 7(2)(b) has been broadly drafted to include "any other form of making available". The EUCJ attributed a broad meaning to the concept of reutilisation in its case law focusing on the objective of the database right which is to stimulate investment in data storage and processing systems. So in light of this objective, the re-utilisation has been construed as referring to any unauthorised act of making available to the public the results of the database maker's investment. Accordingly, in this case, it included any distribution to the public of the contents of the database regardless of the nature and form of the process used. When a website operator makes a dedicated meta-search engine available on the Internet, it does more than just point out the third-party databases that exist that a user can go to and consult. It gives the end user the means of searching all that data in most third-party databases without even visiting those third party databases' websites and akin to the Svensson and Bestwater case, this might mean that advertisers might stop advertising on the original third-party's site and might start placing advertisements on the meta-search engine's site. Now in this case we are looking at database rights, the EUCJ considered this dedicated meta-search engine to be close to a parasitical competing product. But it made a reference to the fact that this wording exists in Recital 42 of the Preamble of the Database Directive. The legislation is different, so this is why it has reached a different result, but still, it leads to a conflicting approach. So the Court of Justice held that the meta-search engine sites are close to being parasitical competing products and they've gone on to explain the fact that they resemble databases even though they themselves do not contain databases. And therefore in this case, and in similar cases, operators of such search engines would be making available to contents of third party websites within the meaning of Article 7(2)(b).

What are the effects of this judgement?

By bypassing the homepage and most other pages of the site that actually contain the database, meta-search engines can divert hits, and potentially advertising revenues. Operators of websites that scrape data from third parties and enable those third party sites to be searched, and by doing so thereby risks diverting advertising revenue may therefore need to review their technical business model in light of this judgement.

Chaitanya Prasad, Controller General of Patents, Designs & Trade Marks, India

In India, patents, trademarks, designs, and geographical indications are administered by the Controller General of Patents, Designs and Trademarks. We have offices in New Delhi, Mumbai, Chennai, Kolkata and Ahmedabad. We have a Geographical Indications Registry located in Chennai as well as an Institute of Intellectual Property Management in Nagpur.

There are other IPR laws administered by different ministries. The Ministry of Human Resource Development looks after the Copyright laws. The Department of Information Technology looks after the Semiconductors, Integrated Circuits, and Layouts and Designs Act.

The number of patents in force in India in 2013 was 41,103 out of which 82 per cent were owned by non-resident Indians. The average age of patents in force in India is around 11.6 years, incidentally the second- highest in the world. The reason could be that India is a large market and companies want to exploit these patents and keep them in force.

National IP Trends

The filing of patents in India has gone up from around 35,000 to around 43,000 from 2007 to 2014, and the resident filing has gone up from 17% to 25%. In the year 2011-12, 11,000 patent applications were examined while in 2013-14, the number was 18,000. On a comparative basis, in India one patent examiner examined 140 patent applications in 2014 against 50 and 70 in the US and EU respectively. Therefore, it is the lack of human resources that is creating a backlog in the processing of patents in India vis-a-vis other countries.

Initiatives of the Indian Patent Office aimed at creating easy access to patents offices, and at Improving Its Quality and Services:

Comprehensive e-filing has been introduced where every document and form can be filed online, with regard to patent and trademarks. A payment gateway was launched in 2014, wherein Internet banking facilities of more than 70 banks can be used in addition to debit cards and credit cards for filing any patent or trademark. There is complete electronic processing in the patent and trademark office. Every paper that comes in is scanned, digitised and uploaded. Every paper that is issued from or received by the office is made available on the website.

An entry in the national phase can be done by filing Form 1 and the last page of the specification as we are directly streaming specifications from the WIPO patents scope. Incentives are being given for online filing. There is a 10% cost differential between online and offline filing since February 2014. One month after the incentive was introduced, online filing went up from 30% to 75%.

A new category has been introduced for Medium and Small Enterprises (MSMEs) in patents and designs. MSMEs get 50% discount for filing.

Quality management teams have been hired and skill development of personnel has been undertaken. Measures to introduce more transparency have been sought and efforts have been made to disseminate information with regard to IPRs. Real-time status of IP applications is available within tier file wrappers and e-registers.

The Indian Patent Office does weekly publication of online journals. We have a free public search facility. We have started instant email communications to applicants in trademarks specifically for filing purposes. We have started QR-coded communications for smartphones.

We have introduced a number of dynamic utilities where one can avail of information in real-time. Using the "stock and flow utility" one can find the stock of applications as well as the flow of applications from one process to another. From this, one can drill down to the office, the field, and the application itself and go to the file in the file wrapper and see the entire office thrown open to the world. One of the utilities counts and publicly displays the number of lapsed and expired patents in real-time. Because the patents have either lapsed or expired, these can be searched through fields of technology through any patent application that was not renewed or has expired. These applications are available on the website with the specification and search facility on a real-time basis. A number of other dynamic utilities for examinations, show-cause hearings, publications, registrations, et cetera have been made available online in real-time. We have started working as an international searching authority and have started giving high quality reports. These are currently available to all Indians.

We are shortly going to provide a searchable patent database. We are also bringing in an integrated search engine and are augmenting our human resources. The new government has approved 1,033 new posts in the patent and trademark offices, and with the training and skill of the increased human resources, we will stand on par with the best in the world with regard to the examination and disposal of both patent and trademark applications. We are completely overhauling our hardware and processing software. We will soon introduce new guidelines - one on computer-related inventions and another on search and examination generally.

Dr. Stefan V. Steinbrener, Consultant, Bardehle Pagenberg

Patentability of Computer-Implemented Inventions at the EPO

"Computer-implemented invention" (CII) is defined in the guidelines of the European Patents Office as an expression intended to cover claims which involve computers, computer networks, or other programmable apparatus, whereby prima facie one or more of the features of the claimed invention are realised by means of a programme or programs. Such a claim directed at computer-implemented inventions may take the form of a method of implementing said apparatus, apparatus set up to execute the method, or following the computer programme itself or as well as the physical media carrying the programme, computer programme product claims such as data carrier, storage medium, computer readable medium, or signal.

One can assume that an important part of all applications will fall under this definition. In 2010, the EPO granted 60,000 patents out of which 20,000 were covered by the said definition.

The core regulation is Article 52 of the EPC: European patents shall be granted for inventions in all fields of technology provided that they involve an inventive step and are susceptible for industrial application. Further, there is a list of non-inventions which include discoveries, scientific theories, mathematical methods, schemes, rules and methods for performing mental acts, playing games, doing business, programmes for computers, and presentations for information. This will include or exclude patentability only to the extent to which the European patent application or patent related to such subject matter or activity.

The nature and language of such a regulation mandate the identification of a criterion delimiting excluded items from non-excluded ones. On the one hand, we have no definition of statutory subject matter apart from stipulation that inventions arise from all fields of technology. On the other hand we have a definition of a non-exhaustive list of exceptions, which are not patentable or have non-patentable subject matter. This regulation is, however, contrasting with respect to US regulations. In paragraph 101 in the US, the definitions of statutory subject matter can be found and the non-patentable subject matter is determined through findings of the Supreme Court, abstract ideas, laws of nature and natural phenomena.

Thus from a legal aspect, there are two hurdles for patent eligibility. The first is the patent eligibility of the subject matter. If this is in the affirmative, then the next hurdle is whether the elements of a patent are satisfied, namely, novelty, innovativeness, and industrial applicability.

According to European standards, an invention may not be innovative but may be patent eligible so long as the subject matter is patentable. The judicial issues that are to be addressed are the development of a coherent method of identifying the patentability of a subject matter and subsequently dealing with the grey areas in technicality by sifting through individual cases in order to arrive at certain guidelines for approaching individual cases of patent eligibility.

The finding of the case law upon the first issue is that an invention is such if the claimed subject matter has some technical matter. A subject matter is said to have technical character if it relates to a technical device, product or relates to technical means. "Technical means" has been liberally construed such that in a particular matter a method of storing information using paper and a pencil is patent eligible subject matter because the method employs technical means such as paper and pencil. However, the same would not be patented as the implementation of the same is trivial. The answer to the same question of patentability would be no if it is among the excluded subject matter or is similar to another invention. The barrier to patent eligibility will not disappear but the threshold is much lower. It is only when a subject matter is completely devoid of technical means can it be not called can invention. Barriers also come into play when the idea is abstract or even if there is a possibility of the use of technical means to some extent but claims for the same are not made.

Are computer-implemented innovations patent eligible under the EPC?

The answer would be yes, if explicitly tied to technical means.

When determining whether the invention has the required qualities of a patent, the answer would be in the affirmative if those of the technical features that contribute to the technical character are noble, inventive and industrially applicable. Thus only features of a technical character are taken into consideration while the others making no such contribution are ignored. For example, there have been a lot of patent applications for business methods from the United States, after the State's Street Bank Decision. These applications may have about forty pages of description of the business innovation with a disclaimer note at the end stating that the implementation of the same can be achieved through basic hardware that are already in use. Such applications lack an inventive step and can therefore cannot be patented. Thus, the basic test of patent eligibility with regard to the definition of an invention is the determination of whether there is a technical solution to a technical problem.

Some of the excluded subject matter may contribute towards technical character. Mathematical methods, for example, in the case of cryptography, wherein a mathematical algorithm may assist in the implementation of the same; then such a mathematical method may be patentable.

Further, "technical" should be understood to mean technological. But generally, it is difficult to define the term "technical", even through case laws. The meaning of the same in the core area is however undisputed while the semantics which lack definition are only at the fringes which may be identified in individual cases. We thus work with a dynamic concept of technology.

Ravi Bhola, Partner, KnS Partners

Patent Valuation and its Interplay with FRAND Terms

There are two broad methodologies for the valuation of patents. One is quantitative valuation by taking into consideration the income, the cost, and the market. However, the more relevant method is the qualitative analysis wherein one can look into the scope of the claims, geographical coverage, et cetera. Patent valuation is sometimes speculative. However, in an observation made by a court in the Federal Circuit, a judge directed a re-trial stating that in the study by the patentee, which was an SEP holder, the damages were predicted on speculation and unrealistic assertions. Thus one can ponder about whether there is a requirement to take into consideration a greater number of tools, software, or parameters for the valuation of intellectual property.

In order to strike a balance with society, SEP holders are obligated to licence their patents on FRAND terms to interested parties. The observed trend is that because SEPs are more important, they are valued higher than regular patents. Therefore, the question arises: Are SEPs are over- valued? For this purpose, reference must be made to four ongoing cases concerning SEPs.

Ericsson v. Micromax:

While the adjudication had commenced, it was observed that Ericsson has prior license agreements on FRAND terms of its 8 SEPs (under litigation in this case) with players in the West and other parts of the world. The court thus called forth these agreements for perusal.

Therefore, the first contentious concern is the manner or methodology adopted by the courts to arrive at the unrealistic rates of royalties. However, it is evident in this case that the court, by referring to prior agreements with the same set of SEPs, are trying to bring down the rates of royalty to more realistic values, even at the interim stage.

A similar situation has been observed in the case between Ericsson and Xiaomi, which is pending in the Delhi High Court. Here the court arrived at the amount of Rs. 100 as an interim arrangement, till the adjudication of the matter has been completed. It was again speculated here as to whether the amount was inflated.

The trend observed in the patent litigation at the Delhi High Court where most of such matters are adjudicated, is that unlike the pharmaceuticals sphere, there is a greater tendency in the telecommunication patent litigation to grant a temporary injunction, modify or even vacate the same while determining royalties payable, even at this stage.

How has the West handled these matters with regard to SEP valuation?

Motorola sued Microsoft in the US over the infringement of some of its SEPs. The former sought 2.25% royalty, but the court set a lower rate, such that the royalty amount fell from 4 million USD to about 1.8 million USD. The question which arises is with regard to the manner of determination of such royalties and whether sufficient parameters are in existence [to determine royalties].

Another example is of a European case wherein Apple was found to be infringing SEPS owned by Motorola Mobility. Apple's claim before the European Commission was that as an interested and willing licensee, it had made efforts to obtain a license for the said patents under FRAND terms which Motorola Mobility deterred vehemently. The European Commission upon investigation found that Motorola was exploiting its dominant position in the market and it intentionally sought to oust Apple from the usage of technology protected by means of the SEPs. Damages were accordingly awarded in this case.

Therefore, there is uniformity in the notion that there is an obligation on SEP holders to license their patents to interested licensees on FRAND terms.

What constitutes reasonableness?

The presumption with subjective issues such as these is that the courts will define the same through case laws. While FRAND terms have been dealt with by the courts and even the European Commission, it is pertinent to note whether there have been any anti-trust or competition matters pertaining to the ongoing litigation in telecommunication patent infringement. The Competition law comes into picture while determining the checks and balances to ensure that the SEP holder acts in a reasonable manner.

In Micromax v. Ericsson and Intex v. Ericsson placed before the Competition Commission of India (CCI), Micromax and Ericsson claimed that they had approached Ericsson as licensees but the immense royalty rates put forth by Ericsson deterred them. The CCI after investigation affirmed the claims of Micromax and Intex, with the finding that Ericsson has indeed abused its dominant position. However, the Delhi High Court has directed the CCI to abstain from passing the final order as long as the case is sub-judice.

Daniel R. Bereskin , Q.C. Founding Partner, Bereskin & Parr LLP

Patents as Catalysts to Economic Growth

The more I studied WIPO data and other sources, the more I came to the conclusion that patent numbers, whether in terms of filing or grants are a pretty poor indicator of the level of innovation in a country. Many commentators have taken the view that the patent system throughout the world is in crisis and there are many reasons for this. Far too many patents are granted for very trivial innovative steps, if they are even innovative at all. They are tiny sideways steps, even backwards steps.

When I started in 1965, in order to get a patent, you had to have an invention that was new, "unobvious" and useful. Now we see many thousands of patents granted annually for inventions that are of very dubious merit. Not only does this not encourage economic growth, it tends to retard economic growth. Think of small and medium-sized enterprises, for example. When they are confronted with many thousands of patents that are far too expensive for them to properly evaluate, covering very trivial or insignificant steps.

It is really up to the government to a large extent to encourage innovation and they do that in many countries in different ways such as through research and development tax incentives. The trouble is that if a government spends money in encouraging research and development, it tends to be invisible to the ordinary member of the public whereas building roads and doing other things that are much more concrete in nature are easier and better from the short-term political view. At the same time, if a country is to grow economically, and to prosper in the future, it is absolutely crucial that governments make an investment. I think a rough rule of thumb is for governments to devote up to about 2% of their GDP to encouraging R&D, and that money is significant, but it has to be spent wisely.

Now India has come up for criticism by the US Chamber of Commerce for not adequately protecting IP rights. The International Trade Commission is conducting a survey right now of US firms to understand how the policies of India discriminate against US exports and investment. Canada is also on the watch-list, although it is the US's greatest trading partner and is in close proximity to the US. I find these comments to be very ironic because the US has a history of discriminating against foreigners when it comes to protecting its own citizens. In fact Prof. Jane Ginsburg who is a prominent teacher and writer called the US in the 19th century a pirate nation, and the reason why she said that is because the US refused to grant copyright to works of foreign authors and that did not change till 1891. The reason for that was that Americans liked to read British authors in preference to the works of American authors. So the solution was to not give copyrights to British authors. When they finally, grudgingly, granted copyright protection, it was on the condition that the books of foreign authors had to be manufactured in the United States. This manufacturing clause was not repealed until fairly recently and that was done only because by then the US realized that the US had become a big exporter of books by authors. So we have to take with a grain of salt the comments we get about IP policies in every country. It is very important to take a realistic view of what is really going on.

China has grown steadily in the past eight years to the point where the growth is now over nine trillion dollars. The growth in filing patents in China is incredible. It is going up exponentially and shows no signs of abating. In 2012, WIPO showed that Chinese nationals were responsible for almost 150,000 granted Chinese patents and the number of issued patents to foreigners was roughly 75,000. The problem with China is that there is no way of knowing what the mix is between patents of invention and utility models. Given the enormous disparity between the number of applications filed by the Chinese people in China compared with those filed by them abroad, most of the inventions that are utility models, or patents that are of very dubious economic value. My feeling is that these huge numbers are due to government policy in dictating to Chinese companies that they have to file a lot of patent applications, because it is easy for a government to say, "Look at how impressive our filing statistics are". You have to dig deeper to try to find out what the value is of the innovations that are represented by these patents. My feeling is that since such a small number, roughly 4% of all applications filed by the Chinese in China were filed abroad, that is an indication that the vast majority of these huge Chinese filings are not of any great economic importance.

India's GDP is over 1.3 trillion dollars. Economists predict that in 15 years, the Indian economy is expected to rival that of the US. Of course, India has a population of over 1.3 billion. The US has, maybe, a quarter of that. So you cannot exactly compare them.

Patent applications in Indiai show a somewhat disturbing trend. Although there is some growth in the patent filings by resident applicants, non-residents' filings swamp [outnumber] those of the residents. The number of applications filed abroad by companies and individuals of Indian origin is less than 10,000, which is a very small number given the size of the Indian economy.

There has been a very sharp decline in the past four years in the number of patents that are actually granted to individuals or companies where the inventors are of Indian origin. In 2014, less than 600 patents were granted to Indian nationals [WIPO statistics]. The number of patents granted to foreign applications is likewise declining and it is surprising. It could mean that the Indian Patent Office is getting tougher on "unobviousness". Nevertheless, the numbers are still pretty low.

Korea is a real success story. Their GDP is not yet at the level of India or China, but it is at 1.3 trillion dollars, which is not insignificant. But take a look at their patent application filings. Korean inventors were responsible for almost 150,000 filings in 2012. Koreans filed more than 50,000 applications abroad in the same year. These grants are substantial compared with [erstwhile] figures for India and China.

The US GDP is close to 17 trillion dollars and the economy seems to be continuing to grow. Right now the US economy is about 27% of the worldwide GDP. It is reasonable to conclude that the US has a very strong and vested interest in trying to ensure that IP rights are protected outside of the US because their continued growth depends on the protection of their homegrown IP.

Questions-Answers

How do you compare and contrast recent litigation in pharma versus litigation in the high-tech space, especially Ericsson and Vringo?

Pravin Anand (Managing Partner, Anand & Anand): In the Francis Xavier case in New Delhi, a division bench of the Delhi High Court said that an ex-parte injunction must not be granted in patent cases. The law, however, changed subsequently. The first evidence is of a DCJI clearance required when an application was moved by a pharma company and the news reached the patent owner by means of a right-to-information (RTI) request and private investigation. The patent owner then approached the court in order to prevent to the marketing of the product. Thus, before the launch of the product, the patent holder obtained a status quo. The rules of the division bench did not apply because balance of convenience was observed in maintaining the status quo. But that order essentially acted as an ex-parte injunction in a patent matter. This was phase one. Phase two saw the grant of injunction as the number of status quo order had exceeded twenty five in litigation against well known companies such as Pfeizer and Bristol Meyers. These orders were converted to injunctions by the judges.

The third phase was brought on by the Ericsson, Vringo, and other electronics companies, which albeit through lesser litigations, were able to create quite a stir. Ex-parte injunctions were granted in these cases. However, the judges felt the need to arrive at interim arrangements in lieu of the injunctions. Earlier, pending trial, these arrangements involved the payment of money and royalty by the defendants through their sales, directly to the plaintiff.

Therefore, the present stance is that both status quo orders and temporary injunctions are in use in pharma litigation before the launch of the product. Subsequently, the grant of such orders is rare. The impediment after launch is that the price difference between the plaintiff's and the defendant's product are evident to the question. Prior to the launch, only the plaintiff's product exists in the market. Hence, the grant of such orders is said to be in favour of balance of convenience. The mobile phone patent litigation cases, however, are witnessing the grant of interim orders, rather, arrangements.

Why is it that the Courts cannot wait another day to hear both the parties before granting the ad interim injunction?

Abhay Pandey, Partner, LexOrbis: The main issue that is going to come up in electronic product litigation is the pleading which contains the product mapping. In the Ericsson cases, there is an indirect reference made to the infringements, i.e., the devices are following the standards and not the readings to the claims. Therefore, the issue of injunctions will arrive only once the product is broken down into the claims.

D.P. Vaidya (Lakshmikumaran Sreedharan)

Computer Related Inventions and Indian Patent Law

Section 2 of the Indian Patent Act defines “invention” as any new process or new product which has or which involves an inventive step and is capable of industrial applications. “Inventive step” as well as “capable of industrial application” are defined in the Act. Section 3 defines what are not inventions. With respect to computer related inventions (CRIs), section 3(k) is worded differently than the provision for CRIs in the European Patent Convention (EPC). In Indian law, mathematical methods, algorithms, and business methods are not considered “inventions”, irrespective of whether they are “as such”. Computer programs are qualified with the phrase “per se” instead. The only common thing between EPC and Indian patent law is that “computer programs per se” or “computer programs as such” are not inventions. So programs that do not quality “per se” or “as such” could be patentable.

What are CRIs?

CRIs can be classified as: CRIs related to general purpose computers and CRIs implemented by specific computers (and not special purpose computers). General purpose computers are inventions that work towards different types of solutions. The solutions could be purely mathematical calculations or technical problems.

The term “business method” is not precisely defined in law as much as the abstract idea is. Generally speaking, any commercial transaction will qualify as a “business method” going by my observations from various decisions in the US, UK, and Europe.

Example technical problem: What is the point of presence (PoP) for designing network topology or network architecture?

Based on rules and various parameters defined for the topology or architecture, a schematic is drawn up. It shows the locations where the PoPs should be placed to minimise the cost of operations and the investment. This is also an application that can be implemented over a general purpose computer.

Would it fall under the definition of an “algorithm”? The definition of “algorithm” in the guidelines is very broad. Whether or not it is implemented on a [general purpose] computer, it will be treated as a “computer” because there is no qualifier as “per se” or “as such”. If it is an algorithm, it is not patentable.

Then, what is not an “algorithm”? It could be argued that all methods will fall under the definition of “algorithm”. The IEEE definition of a “solution to a problem” is that it is a finite set of well-defined rules in a finite number of steps. For example, a complete specification for a sequence of arithmetic operations for evaluating the value of sin “x” for a given precision. When the aim is mainly to determine a certain value or function for optimisation or for arithmetic calculations, the method or process can be treated as an “algorithm”. From a legal point of view, methods are patentable, but paradoxically, algorithms are not considered inventions.

Then next level of general-purpose computer-implemented inventions (CII) are those that make changes in the operating systems [instead of sitting on top of the operating system]. By making changes in the operating system, the CII is changing the character of the computer. It is improving the computer, and therefore it is patentable. Also, a general purpose computer operating a machine or a technical process is patentable.

Embedded Computer-Implemented Inventions:

Wherever there is embedded software, the patent controllers generally do not have any issues related to patentability. They may have issues related to inventive step.

For more details visit https://cis-india.org/a2k/blogs/report-global-intellectual-property-convention-2015

Report on Wikipedia Hackathon held in Hyderabad

Yuvi Panda — 2012-12-03T06:37:11Z

BITS Hyderabad had a tech fest from October 25 to 27, 2012, and wanted to conduct a technical wiki hackathon. We decided to do it on October 26 — all night.

We had a Google form that people filled up with a few simple questions — and picked out 12 from the 70 that signed up. This was important since I was the only one conducting it — and I wanted to keep it to a manageable number. It was an all night event that started at 7 p.m. in the evening and was supposed to go on till 6 a.m. next morning.

Hackathon

The hackathon started as scheduled around 7.00 p.m. As people trickled in I talked to them individually and mentally sorted them into two groups — 'people who are already programmatically competent enough to contribute code' and people who were not. A lot of people who were not selected but applied also showed up — since we had not sent rejection emails. I got them started on learning either Javascript or Python — and helped push them along. However, a good amount of time was spent with people who already had prior coding experience.

Most people worked on Gadgets, and a few on Python — exploring the API. We started off with basics of how to customize your Wikipedia experience with JS and CSS, building a very basic user script that changed colours / added new links. Some of the participants spent the entire night building this and others finished this in a few minutes and were on to the next project. Everyone worked at their own pace — and since there were smaller number of people I was able to (mostly) provide individual attention.

As people started working on stuff past hello world, I introduced them to IRC (#wikipedia-en and #mediawiki) and had them say 'hi' to editors. I also introduced them to a bunch of local hacker channels on IRC — and quite a few of them stayed on.

A fair amount of people left at around midnight — but a 'core' group seemed to have formed that stayed on. We hacked on to the wee hours of the morning, and even took small naps. We wound up at around 6 a.m., and staggered back to the hostels (and then proceeded to have long conversations about Linux, history of programming, and graphical raytracing).

Outcomes

We had some students who contributed substantially including Thomas Matthew, Vishwajit Kolathur, Aravind Peddapudi and Varun Chappidi. Most of them have been introduced to the local hacker community via IRC, and I see reports of continuing participation — after accounting for their ongoing exams. They all are technically very competent and have expressed interest in doing Google Summer of Code this year. Among the projects did at the hackathon are:

'Reading mode' gadget
'Reading mode' Chrome Extension that is wikipedia specific
Major work on a '3 hours later' type extension (a tool to produce graphs like (http://xkcd.com/214)

The fact that these people went from having no experience with Wiki related programming to being able to build code for it in a few hours time makes me very happy.

Learnings

Make sure people know that 'Hack'athon has nothing to do with cracking wifi passwords or breaking into Facebook accounts. We had a 'lot' of people apply thinking that was this despite a clear description. I was told that some of the people evangelizing the event also thought the same — so clearer messaging around this was needed.
Send rejection emails. We missed this, and sent only acceptance emails. A lot of people who weren't accepted turned up and we had to figure a way to engage them.
More organized followups. Currently all I can do is introduce them to the local hacker community and hope they 'stick'. GSoC is a good spot, but is too infrequent — and too high stakes.
Find more things for them to do. We had to actually stretch a bit to find them things to do — they were all raring to go, but we found it hard to find 'easy' bugs for them to fix that were actually useful to editors. Clearly editors have a lot of things in their mind that would make their lives better — but they are not listed anywhere public. Having a publicly available list of such things would be helpful. (There is a Gadget requests page (https://en.wikipedia.org/wiki/Wikipedia:WikiProject_User_scripts/Requests), but it hasn't been updated in ages).

Finally, I would like to thank the Centre for Internet & Society for supporting my travel for the event, Thomas from BITS for organizing most of the logistics and Ravi Chandra from the Tor community for helping provide technical mentorship.

For more details visit https://cis-india.org/openness/blog-old/wikipedia-hackathon-hyderabad

Report on the WIPO Director General’s Meeting with NGO’s

puneeth — 2014-04-30T05:33:27Z

The Director General’s meeting with NGO’s was held on March 25, 2014. This is an annual meeting where accredited NGO’s have an opportunity to have a one on one discussion with the Director General on issues that concern them.

The webcast of the meeting can be found here.

This year’s meeting featured queries on a whole range of issues from mainstreaming the development agenda recommendations to the number of WIPO meetings. The Director General engaged in a frank exchange of views with NGO representatives and stressed the importance of NGO’s in WIPO’s work.

Opening Statement

The meeting kicked off with a statement by the Director General. He reported that the demand for IP titles was greater than the world economy- citing the growing number of patent and trademark applications. He also commended the SCCR in concluding the Marrakesh Treaty and said that the engagement and alignment of civil society actors was crucial to the signing of the Treaty. He also noted the role of the World Blind Union and the publishing community in supporting the Treaty.

The Director General also had updates on the work of various committees for the 2014-15 biennium. With respect to the Design Law Treaty in the SCT, he stated that the US and Canada had accepted the possibility of an article on technical assistance but not as a condition to convene a diplomatic conference. On the Broadcast Treaty in the SCCR, he said that a lot of work needs to be done and that the SCCR needs to decide if a Treaty with a narrower scope is feasible and if a Diplomatic Conference has to be convened in September. On the IGC, he stated that this committee was WIPO’s greatest political risk and that the Committee must find a way to deliver on a project that has been on since 2001.On the Lisbon Agreement, the Director General stated that 28 States had agreed to renew the agreement and the new agreement would cover GI and Appellations. He noted that this was a huge step forward as GI’s become more and more valuable.

In addition, he noted three areas of interest for the future work of the WIPO:

Balance between collaboration and competition: The Director General noted that there should be greater emphasis on collaboration and competition at the WIPO. He called for emphasis on cooperation, open innovation in global value chains. At the same time he stated that IP also creates competition. He stated that the tension between competition and collaboration should be under consideration in the future as it is growing into a major geopolitical issue.
Digital Economy: The Director General said that Member States should engage on the impact of an increasingly digital world on the environment. While this issue has been under discussion since the 90’s, there have been new developments that need further consideration.
Appropriate Technology: The Director General commented on the passive transfer of technology and said that there is a knowledge gap between having technology and knowing how to use it, and this should be kept in mind in future wok.

Q&A

Following the opening statement, the Director General fielded questions from NGO representative. Below is a summary of a few notable responses from the Director General.

On a question regarding the mainstreaming of the Development Agenda, the Director General said that it is up to the Members to decide how to make the Development Agenda normative. But he pointed out that both the Beijing and Marrakesh Treaties refer to the Development agenda in their text.

In response to a question on future plans and projects on public health and IP, he said that the WIPO is encouraging research projects on the issue. He also pointed out that the WTO, WIPO and WHO are engaged in an active collaboration on this issue and had also organised a seminar on it. He also said that the three Director Generals had published studies on the topic.

MSF made a number of interventions on the issue of public health. They argued that ongoing WIPO research did not meet the needs for medical innovation and that there was need for serious rethink on how to make it work better. They also said that the focus of WIPO research was currently only on LDC’s and this left out developing countries and consequently a large number of people.

In response the Director General said that the WIPO could only “build with what it’s got” and said that they should engage with more parties and with what they do. He also said that they are beginning to engage with middle income countries. He also said that WIPO research was free and that it could be easily shared and the fee was only if there was a sale.

MSF also called for a change on the nature of technical assistance as there were repeated seminars on anti-counterfeiting measures with little or no focus on the quality of medicines. On this, the Director General agreed with MSF and said that the larger problem was quality assurance which needed to be addressed, but he also pointed out that WIPO as an IP agency could not get into the issue of quality assurance.

He also fielded a question from the author on making WIPO sessions more accessible with the possible use of remote participation in the future. The Director General said that this was a good idea, but he pointed out that this was up to the Members to consider and possibly implement. He also noted that it was only recently that WIPO started webcasting meetings and that there would be issues of time management with remote participation.

On a question about the increasing number of meetings at the WIPO, the Director General acknowledged that this was a problem and that the respective Committees had to decide if it was essential to convene a meeting ever so often. But he also pointed out that the Secretariat cannot interfere in such matters and could only facilitate discussion on these issues. He also said that it might be better if experts met regularly to discuss technical issues and negotiators met only when an issue had matured.

On a further question on the number of documents being released for every meeting and their increasing length, the Director General joked that it was unlikely that anyone under the age of 30 would read all the documents. He said that this is an issue that should be looked into.

For more details visit https://cis-india.org/a2k/blogs/report-on-wipo-director-general-meeting-with-ngos

Report on the 31st Session of the Standing Committee on Trademarks

puneeth — 2014-05-06T07:22:11Z

Puneeth Nagraj reports about the 31st Session of the Standing Committee on Trademarks (SCT) that he attended.

The 31st meeting of the SCT was held from March 17 to 21, 2014.[1]The meeting was important as Members sought to finalise the issues in the Design Law Treaty (DLT) before the Diplomatic Conference. The session also saw proposals by the delegations of Jamaica, the United States and Hungary.[2].

Adil El Maliki of Morocco was elected Chair, and Mr. Imre Gonda of Hungary and Ms. Günseli Güven of Turkey were elected Vice-Chairs of the 31^st session. The Session was dominated by negotiations around the DLT and very little time was devoted to the Plenary attended by this observer.

Design Law Treaty

The 31^st session had a mandate from the WIPO General Assembly to finalise the text of the DLT before the Diplomatic Conference. However, disagreements over the technical assistance and capacity building provisions threatened to delay the process further. While Developing Countries preferred a provision in the Treaty on technical assistance, developed countries were against a binding provision and were in favour of a resolution on the issue.

Members of the African Group insisted that a Diplomatic Conference would be convened only if the Treaty included a provision on Technical Assistance and Capacity Building. The Delegate of Kenya said that the adoption of this treaty would require significant changes in the national IP systems of developing countries which are likely to go beyond the capacity and ability of individual countries to implement the treaty. The Delegate then emphasised the need for such a provision in upgrading their national IP system to conform with and to implement the treaty. The stance of the Kenyan delegate was further supported by Brazil, the GRULAC and Bangladesh in addition to other DAG members.

The delegate of Japan on behalf of Group B said that the text of the designs law treaty aimed to streamline and enhance design law formalities and would benefit all countries irrespective of their status of development. The delegate also stated that the issue of technical assistance should not stop the convening of a Diplomatic Conference. The EU on a similar note said that the convening of a Diplomatic Conference should be priority outcome of the 31^st Session.

Proposals

The delegate of Jamaica submitted a proposal for the protection of country names.[3]The proposal sought to establish a coherent and consistent framework to deal with trademark cases which deal with country names. The proposal received support from some delegations in addition to suggestions to revise it. Switzerland emphasised the need for “pragmatic affordable way to protect country names” and to ensure that product names were used only for countries that produce such products. The EU also noted that this issue has been under discussion since 2009 and called for an awareness mechanism to ensure refusal of trademarks for products with country names. The US raised many doubts as to whether such a proposal would be feasible arguing that the government would have to act as a brand owner like others and that this was not a historical role that governments have played. The US also stated that not all countries shared an interest in protecting such rights and that it was premature to initiate text based questions on the proposal. Instead, the delegate called on the chair to conduct research on whether a system to protect country names could exist. In response to suggestions, the delegation of Jamaica offered to consider them and present a revised proposal at the next session.

There were also two proposals on Geographical Indications. The US submitted a proposal to suggest a work plan for the reform of the GI filing system.[4] While some delegations supported this proposal, others expressed opposition. The delegation of Hungary submitted a joint proposal to conduct a study concerning the protection of geographical indications in the domain name system. Again opinion on this proposal was divided- with some asking for more time to consider the proposal since it was submitted late. The Chair cited the lack of agreement on these proposals to put off further discussions until the next session.

[1]. See http://www.wipo.int/meetings/en/details.jsp?meeting_id=32083.

[2]. The Hungarian proposal was jointly sponsored by Czech Republic, Germany, Hungary, Italy, Moldova and Switzerland.

[3]. See SCT/31/5.

[4].See SCT/31/7.

For more details visit https://cis-india.org/a2k/blogs/report-on-31-session-of-standing-committee-on-trademarks

Report on the 9th Session of the WIPO Advisory Committee on Enforcement

puneeth — 2014-03-14T13:54:36Z

The 9th Session of the Advisory Committee on Enforcement ended here in Geneva last week. In this report, I look at the major issues discussed at the Session and the deadlock over future work of the Committee.

The 9^th Session of the Advisory Committee on Enforcement (ACE) was held from 3^rd-5^th March here in Geneva. The Meeting featured presentations from Member States, NGOs and IP experts from around the world on the use of alternate dispute resolution mechanisms for the settlement of IP disputes.

About ACE

Unlike other Committees, the ACE is a knowledge sharing platform where Member States discuss their experiences in relation to the enforcement of intellectual property. The Committee’s Mandate is limited to discussing technical assistance and coordination in the field of enforcement and specifically excludes norm setting. There is little debate and most of the proceedings are based on presentations.

9^th Session

Ambassador Thomas Fitschen, Deputy Permanent Representative, Permanent Mission of Germany, was elected as the Chair of the 9^th Session of the ACE, and was a proactive chair during the session, encouraging States to resolve disagreements through compromise and ensuring the session ran on time. Ms Ekaterine Egutia, Deputy Chair of the National Intellectual Property Center (SAKPATENTI) of Georgia, and Mr Wojciech Piatkowski, First Counsellor, Permanent Mission of Poland were elected as Vice-Chairs.

The presentations kicked off with Mr Trevor Cook from Wilmer Hale who made an informative presentation about the resolution of international IP disputes through ADR. In all the Session saw 22 presentations on two broad issue areas:

Practices and operation of alternative dispute resolution (ADR) systems in IP areas; and
Preventive actions, measures or successful experiences to complement ongoing enforcement measures with a view to reducing the size of the market for pirated or counterfeited goods.[1]

Notable among the presentations is the growing cooperation between private actors and States in the enforcement of IP rights, and the use of outreach programmes at the grassroots level to increase awareness about IP rights. The issue, however is whether these programmes paint a holistic picture of IP rights- with due regard for flexibilities or merely stress on the importance of enforcement of rights.

Discussion

Developing countries raised issue with the fact that the ACE was becoming enforcement centric and not enough attention was being paid to coordination and technical assistance. They stressed the relation between development and enforcement of IP in developing countries. The delegation of Egypt on behalf of the Development Agenda (DAG) Group in particular highlighted the fact that Development Agenda Recommendation 45 and other items directly related to the competencies of the ACE, but the ACE had to expand the scope of its discussions to make them consistent with the objective of building respect for IP, which is broader and more inclusive than sheer IP enforcement.[2]

However, the Delegate of the Czech Republic on behalf of the CEBS (Central Europe and Baltic States) Group stated that IP enforcement was a key tool to development and allowed countries to be more competitive and was in line with Recommendation 45. Echoing the sentiment, the delegate of Japan on behalf of Group B (which comprises Japan, US, EU and other developed countries) stated that the core agenda of ACE, namely, the exchange of experiences on enforcement contributed to Recommendation 45, and that the strength of IP enforcement mechanisms in a country were becoming an important factor for investors to invest in a country- and this in turn contributed to the overall development of the country.

Future Work

There was agreement on proposals 1 and 2 (which were already discussed during the current session) with respect to future work of the Committee, as under:

Continuation of practices and operation of alternative dispute systems in IP areas
Preventive actions, measures or successful experiences to complement ongoing enforcement measures with a view to reducing the size of the market for counterfeit or pirated goods.

However, there was a deadlock on item 3; and there was insufficient time to discuss items 4 and 5. Item 3, proposed by the DAG Group related to exchange of information and national experiences on WIPO’s enforcement-related technical assistance to build respect for IP[3] . The disagreement was on extending legislative and administrative assistance to prevent abuse of IPR enforcement procedures and to use the flexibilities of the IP system. Group B objected to this as they believed it sent the wrong message. But the proposers were keen on the holistic treatment of IP and the importance of public interest considerations with respect to enforcement.

Item 4, proposed by Group B related to the exchange of information and national experiences on awareness building activities as a means for building respect for IP, especially among school aged children and students. Item 5, proposed by Poland, the US and UK was about the specialization of the judiciary and intellectual property courts. These issues will be discussed under future work of the committee at the next session of the ACE to be held in 2015.

[1]. See http://www.wipo.int/enforcement/en/news/2014/news_0003.html

[2]. See Chair Summary of the 9th Session (yet to be made public, in file with the author).

[3]. Italicised text represents the exact wording of the proposal.

For more details visit https://cis-india.org/a2k/blogs/report-on-ninth-session-of-wipo-advisory-committee-on-enforcement

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