Centre for Internet and Society

Dictionary words in software patent guidelines puzzle industry

praskrishna — 2013-09-04T06:20:24Z

Terms not defined in draft guidelines on patents for computer-related inventions leaves room for misinterpretation

The article by C.H.Unnikrishnan was published in Livemint on August 26, 2013. The Centre for Internet and Society's work on access to knowledge is mentioned.

Could the simple Latin phrase, per se, which translates as “in itself”, lead to confusion in verifying whether a computer-related invention deserves a patent or not? Some members of the $108 billion Indian information technology industry, intellectual property (IP) law firms and anti-patent lobby groups say it can.

The inclusion of some terms that are not defined by local laws in the government’s draft guidelines on patents for computer-related inventions (CRIs) leaves room for ambiguity and misinterpretation when examiners grant or reject such a patent, they say. The guidelines were released in early August.

The terms include ‘per se’, algorithm, hardware, firmware —and CRI itself.

CRI “has not been defined in any of the Indian statutes and is construed to mean, for the purpose of these guidelines, any invention which involves the use of computers, computer networks or other programmable apparatus and includes such inventions, one or more features of which are realized wholly or partially by means of a computer programme/programmes”, the Indian Patent Office (IPO) acknowledged in the draft guidelines, and called for feedback from industry stakeholders by 8 August.

	Patent examination is the most crucial function performed by a patent office. An examiner verifies the invention claims made by an applicant by relying on scientific parameters, industrial applicability and previously known technologies, among others, to decide whether the claims are genuine and deserve a patent. IPO’s draft guidelines are aimed at helping examiners in this task. However, with new technologies, the task of granting or rejecting patents has become tougher, as acknowledged by the patent office, in its draft guidelines. The confusion is only compounded with the inclusion of dictionary terms such as per se. The Indian Patent Law does not contain any specific provision regarding the protection of computer software that includes programs, musical and artistic works, studio and video recordings, databases and preparation material and associated documents such as manuals. India does not grant pure software patents (i.e., a patent over a “computer programme per se”).

Patent examination is the most crucial function performed by a patent office. An examiner verifies the invention claims made by an applicant by relying on scientific parameters, industrial applicability and previously known technologies, among others, to decide whether the claims are genuine and deserve a patent.

IPO’s draft guidelines are aimed at helping examiners in this task. However, with new technologies, the task of granting or rejecting patents has become tougher, as acknowledged by the patent office, in its draft guidelines. The confusion is only compounded with the inclusion of dictionary terms such as per se.

The Indian Patent Law does not contain any specific provision regarding the protection of computer software that includes programs, musical and artistic works, studio and video recordings, databases and preparation material and associated documents such as manuals. India does not grant pure software patents (i.e., a patent over a “computer programme per se”).

Software, instead, is protected by the Copyright Law, similar to literary and aesthetic works.

In the feedback, a copy which was reviewed by Mint, India’s largest software services exporter Tata Consultancy Services Ltd (TCS), said it “is happy to note that IPO is taking the right steps in the direction of protecting inventions...Moving from the notion of ‘Computer Implemented Invention’ to ‘Computer Related Invention’ itself is a positive shift...”

	“Primary objective of the CRI guidelines, as expected and understood by the stakeholders, is to deliberate on the meaning of “per se” in Section 3(k) for Software Inventions with example pertaining to Software Inventions and not interpret them to be the Hardware-led inventions,” said TCS in its feedback. It added that “while examining the technical character of a CRI, mere usage of the words such as enterprise, business, business rules, supply-chain, order, sales, transactions, commerce, payment, etc. in the (patent) claims should not lead to conclusion of the CRI being just a ‘Business Method’ without any technical character. These terminologies actually qualify the contextual utility and fitment of the inventions..”

“Primary objective of the CRI guidelines, as expected and understood by the stakeholders, is to deliberate on the meaning of “per se” in Section 3(k) for Software Inventions with example pertaining to Software Inventions and not interpret them to be the Hardware-led inventions,” said TCS in its feedback.

It added that “while examining the technical character of a CRI, mere usage of the words such as enterprise, business, business rules, supply-chain, order, sales, transactions, commerce, payment, etc. in the (patent) claims should not lead to conclusion of the CRI being just a ‘Business Method’ without any technical character. These terminologies actually qualify the contextual utility and fitment of the inventions..”

According to Rajiv Kumar Choudhari, a lawyer specializing in IT patent law, a computer program is software ‘per se’ because there may be no transformation of data/signal/input, or there is no tangible benefit to the device if this software is run on the device. “The benefit to the device may be in terms of efficiency, or increase/decrease in certain attributes,” he said in a blog in SpicyIP where he analyzed software patenting position in India earlier.

In such cases, if the applicant fails to define the exact benefit to the device in a tangible manner, the examiner may refuse to grant a patent. In January 2012, for instance, the Delhi patent office rejected a software patent application filed by Netomat Inc., on grounds that it did not fulfil the requirement of Section 3(k).

According to section 3(k) of the Indian Patent Act, “a mathematical or business method or computer programs per se or algorithms” are not inventions.

Between 2006 and 2011, the latest available data, 34,967 IT patent applications were filed with the Indian patent office. It granted about 5,594 patents during the same period.

“We hope that through this consultation (feedback) the prevailing evaluation methods for computer related inventions will become more efficient and encourage the Industry to file and protect their IP. However, we have some major concerns related to the draft guidelines,” said Nassom, the country’s software lobby body.

Overall, the guidelines appear to be “restrictive and may be a hindrance to grant of patents in India, even when such rights would be granted in other countries like Europe, Japan, etc,” said Nasscom, adding that “over a period of time”, it will discourage innovative activities from being carried out in India.

For instance, Nasscom pointed out that since the patent office has not defined ‘per se’, the phrase “computer program per se” should mean a set of instructions by itself or computer program by itself. “This meaning is generally accepted even in the UK and before the EPO (European Patent Office),” it added. The software lobby body has suggested that the scope of the “per se” limitation in Section 3(k) should be changed to cover hardware features, irrespective of whether the features are novel or not.

The guidelines, said Nasscom, seem to imply that for computer program-related claims to be allowed, the software needs to be “machine specific”, which “will unfortunately exclude patent protection for any computer-implemented invention designed to be interoperable across platforms, and not specific to a machine”.

In its feedback to the patent office, the Centre for Internet and Society (CIS), an organization that works on Internet privacy-related issues, underscored the complexity that new technologies could introduce by citing the example of CRIs in the field of data storage.

The first compact disc (CD) was invented in 1982, the digital video disc (DVD) in 1995 and the flash drive in 1999.

“While each of these inventions was far superior to their predecessor, the time between each incremental innovation has drastically reduced,” CIS noted in its feedback

“If an invention can become obsolete in as little as 2 years, it would make little sense to grant monopoly rights for 20 years. So even if a CRI passes the three tests of novelty, inventive step and industrial applicability, it needs to be evaluated from the perspective of its possible obsolescence. In such a scenario, the examiner should look at the history of innovation in that particular field to ascertain that the invention does not become obsolete in a short time.”

Also consider for instance the term, “business methods”. It involves a whole gamut of activities in a commercial or industrial enterprise relating to transaction of goods or services but “the claims are at times drafted not directly as business methods but apparently with hitherto available technical features such as Internet, networks, satellites, tele-communications, etc”, the draft stated.

“The exclusions are carved out for all business methods and, therefore, if in substance the claims relate to business method even with the help of technology, they are not considered patentable,” the guidelines added.

The Japan intellectual Property Association, in its reaction to the India’s new CRI patenting guidelines, also noted that recent computers, including processors or memories, mostly do not rely on any specific programs.

“In addition, software-related inventions should be patentable originally for their functioning on the basis of novel computer programs in combination with general purpose devices. However, these computer-related inventions would be excluded from protection under the new standards for patentability,” it cautioned.

The draft guidelines “have interpreted and applied Section 3(k) of the Indian Patent Act 1970 in a more restrictive way to conclude as to what is patentable, which is a cause of concern to various stakeholders”, said Federation of Indian Chambers of Commerce and Industries (FICCI) in its reaction.

Software patents remain an emotive issue.

Their proponents argue that patents promote investment in research and development, accelerate software development by making previously unknown and not obvious software inventions public and protect IP of software companies. They also encourage the creation of software companies and jobs and increase the valuation of small companies, the proponents add.

Critics counter that traditional copyright has provided sufficient protection to facilitate massive investment in software development and that most software patents cover either trivial inventions or inventions that would have been obvious to persons of ordinary skill in the art at the time the invention was made.

Globally, patents in the IT and software sector are being revisited due to litigation and compensation claims over misuse of patents including the much-hyped patent battle of Apple Inc. with Samsung Electronics and Google Inc. with Microsoft Corp.

In June 2008, technology companies including Google, Intel Corp, Oracle Corp, Cisco and Hewlett-Packard Co. set up the ‘Allied Security Trust’ to address the risk of patent-infringement suits by buying those patents which they feel are most important to their businesses.

AST has 26 members from Europe, North America and Asia. It buys patents that its members have expressed interest from the patent holder, and the cost would be deducted from those companies’ Escrow accounts. AST argues that non-practicing entities, or NPEs, also known as patent trolls, produce no products or services of their own, and yet acquire patents—sometimes hundreds of them—with the sole intention of asserting their right and conduct patent litigation to extract settlements or licensing fees.

In 2008, AST estimated that it costs operating companies an average of $3.2 million through the end of discovery and $5.2 million through trial to defend cases in which there is more than $25 million at stake.

The costs of determining if a particular piece of software infringes any issued patents are too high and the results too are uncertain. A software patent costs, on average, around $20,000, it said.

For more details visit https://cis-india.org/news/livemint-august-26-2013-ch-unnikrishnan-dictionary-words-in-software-patent-guidelines-puzzle-industry

CUSAT Workshop: "Rethinking IPR: Fourth Annual National Workshop for Law Students"

praskrishna — 2017-03-29T10:59:29Z

The workshop was organized by the Inter University Centre for IPR Studies in association with Cochin University of Science and Technology from February 8 to 10, 2017 in Cochin. Pranesh Prakash was the resource person for a copyright workshop for LL.M. students.

Pranesh led and guided student discussion on:

P2P File Sharing - Based on analysis of the Copyright Act I haven't yet written about.
Technological Protection Measures: http://cis-india.org/a2k/blogs/tpm-copyright-amendment
Benefits of Piracy: http://idl-bnc.idrc.ca/dspace/handle/10625/46491
Misrepresentations of copyright industry: http://cis-india.org/a2k/blogs/fallacies-lies-and-video-pirates + http://cis-india.org/a2k/blogs/calling-out-the-bsa-on-bs + http://cis-india.org/a2k/blogs/2010-special-301
John Doe orders: http://cis-india.org/a2k/blogs/john-doe-orders-isp-blocking-websites-copyright-1 (3-part series) + http://cis-india.org/internet-governance/blog/delhi-high-court-orders-blocking-of-websites-after-sony-complains-infringement-of-2014-fifa-world-cup-telecast-rights

See the event brochure
See the programme agenda

For more details visit https://cis-india.org/a2k/news/rethinking-ipr-fourth-annual-national-workshop-for-law-students

Copyrights Amendment Bill to Be Tabled in Indian Parliament – Parallel Import provisions have Been Removed

praskrishna — 2011-09-14T11:47:37Z

This week, the Indian government’s Rajya Sabha (the upper house of Parliament) will debate the Copyright Amendments Act.

The Centre for Internet and Society has raised a number of concerns – including the removal of parallel import provisions that would allowed universities and libraries to access foreign works more cheaply, the extension of copyright terms beyond those required by the TRIPS Agreement, and the introduction of technological protection measures (with stiff penalties for circumventing them).

CIS describes other provisions in the bill: Fair dealing exceptions have been extended “to all works except computer programs;” the “scope of compulsory licensing under sec 31 has been expanded from ‘any Indian work’ to ‘any work’;” and two provisions have been introduced to allow for the conversion, reproduction, and distribution of works for people with disabilities.

According to Prashant Reddy from the National University of Juridical Sciences in Kolkata, the Parliamentary Standing Committee on that reviewed the original legislation had strongly supported parallel imports of books. In a blog post on Spicy IP, he noted that “publishers routinely introduce old versions of books in India,” and that parallel imports would allow students to obtain newer copies at reasonable prices.

However, a news story in Live Mint reports that the publishing industry “had strongly opposed the amendments.”

This article by Mike Palmedo was published in infojustice.org on September 5, 2011. Read the original story here

For more details visit https://cis-india.org/news/copyright-amendment-bill-in-indian-parliament

Copyright bill restricts Net access

praskrishna — 2011-04-02T10:21:40Z

Law to curb piracy may fetter creativity

The government introduced the copyright amendment bill in the Rajya Sabha on April 19. The bill gives independent rights to authors, film directors and musicians and makes it difficult for Internet users to access works protected by copyright.

G R Raghavender, registrar of copyrights, said the amendments are necessary as the Copyright Act of 1957 gives minimum protection to writers and artists against commercial exploitation of their works through the Internet.

Under lock without key

But the bill lacks clarity on some aspects. For instance, it introduces technological protection measures (tpms)—locks that restrict access to copyrighted material and help the copyright holder decide how his or her work should be used.

The bill allows users to bypass the lock if it is for a purpose not prohibited by the law, such as research. But for that the user should have the means to unlock the tpm. The bill assumes the users would know how to bypass the lock but that need not be the case, said Pranesh Prakash, of the non-profit Centre for Internet and Society.

The Spanish law, for instance, requires copyright holders to help legitimate users access their work.

Shamnad Basheer, who teaches intellectual property law at the National University of Juridical Sciences in Kolkata, said tpm is an added restriction and not required. “India is not obligated to import tpms into its copyright law as it is not a member of the World International Property Organization internet treaties (the amended bill conforms to these treaties). Raghavender said tpms are a must for curbing piracy.

The bill evoked mixed reactions in the film and music industry. Abhishek Chaubey, director of the recently released film Ishqiya, said the bill would put creative people in a stronger position. But Hiren Gada who runs the production house, Shemaroo Entertain-ment, is against directors getting copyrights. “It is against the fundamental principle of the film business; directors don’t share losses with producers if a film flops,” he pointed out. Dhruv Jagasia, manager of the music band Indian Ocean, said he was not sure if the bill would be implemented effectively as in the US where “cheques arrive by mail if one’s track is played on the radio”.

Print impaired get short shrift

Non-profits working for the physically challenged said the bill does not address certain handicaps. Rahul Cherian of www.inclusiveplanet.com, an online platform for print impaired, said the bill permits conversion of printed material only to special formats like Braille and sign language, not mainstream formats like audio tapes and text with large font size. “There are about 70 million print disabled persons in India. Those affected by cerebral palsy, dyslexia and visually impaired persons who do not know Braille, would need to access material in mainstream formats. The bill does not benefit them,” said Cherian. He added the bill allows only organizations working for disabled to seek licence to publish works in mainstream formats. Educational institutions, self-help groups and physically challenged individuals can’t obtain the licence.

While copyright amendment bill seeks to protect intellectual property, there are people who think it fetters creativity. “Copyright is a fairly recent phenomenon and should not be considered natural. Were that the case, the entire cultural history of humanity would not have occurred,” said Shuddhabrata Sen of the Centre for Study of Developing Societies. Swaraj Paul Barooah, researcher at the Nalsar university of law in Hyderabad, said, “In a developing country like India the emphasis should be on adapting and improvising on the works in the public domain.”

Given the circumstances, should the copyright on Mahatma Gandhi’s works be renewed. The copyright for his writings expired in 2009. Former governor of West Bengal and Mahatma Gandhi’s grandson Gopalkrishna Gandhi said there was nothing to lament. “The expiration of the copyright term should be the beginning of responsible access and use. It would be important in the computer age to use his manuscripts with great responsibility because no one can sue the user under the copyright law,” he said.

The bill has been referred to the standing committee of the Union Ministry of Human Resource Development for vetting.

Read the original in Down to Earth

For more details visit https://cis-india.org/news/copyright-bill-restricts-net-access

Copyright Amendment Bill in Parliament

nirmita — 2011-08-30T09:26:44Z

The Copyright Amendment Bill is expected to be presented in the Rajya Sabha by the Minister for Human Resource and Development, Kapil Sibal today afternoon. The much awaited Bill (since it has been in the offing since 2006) has undergone significant changes since its initial appearance.

Given below is a very quick first cut highlight of the Bill from a public interest perspective. A more detailed analysis will follow after the session discussions.

Parallel imports: The parallel imports clause which had been put in as sec 2(m) has now been dropped from the present draft. This is a big setback because educational institutions, libraries and archives, second hand book, etc., were looking to this provision to bring down the prices and hasten the availability of books. This also affects persons with disabilities since they will be unable to import books in accessible formats.
Persons with disabilities: There are two provisions relating to persons with disabilities which have been introduced. Section 52 (1) (zb) relates to the conversion, reproduction, issues of copies or communication to the public of any work in any accessible format, provided that these activities are meant to enable access to persons with disabilities and sufficient safeguards are taken to ensure that these materials do not enter the mainstream market. This section in a sense is broader and more encompassing than some provisions found in other countries, which relate exclusively to the blind or visually impaired. This section would adequately cover persons with other disabilities who cannot read print. A new section 31B also provides for compulsory licensing for profit entities wishing to convert and distribute works in accessible formats, provided that they are primarily working for persons with disabilities and are registered under sec 12A of the Income Tax Act or under chapter X of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
Many exceptions under 52 (1) (i) relating to fair dealing have been extended to all works except computer programmes. New sections 52 (1) (b) and (c) protect transient and incidental storage from being classified as infringing copies, which offers protection to entities such as online intermediaries.
The scope of compulsory licensing under sec 31 has been expanded from ‘any Indian work’ to ‘any work’. Three new sections 31 B, 31C and 31 D have been introduced. Section 31 B has already been described in the paragraph on persons with disabilities. Section 31 C lays down strict measures relating to statutory licensing in case of cover version, being a sound recording of a literary, dramatic or musical work. Section 31 D relates to statutory licenses for broadcasting organizations wishing to broadcast a literary or musical work or sound recording.
Non commercial public libraries can now store electronic copies of any non digital works they own (52(n)).
The new Bill introduces Technological protection measures (65A and 65B) and makes circumvention and distribution of works in which rights managements systems have been removed an offence which is punishable with imprisonment upto two years as well as fine. In addition the copyright owner can also avail of civil remedies. As such India is not really required to have these provisions in the copyright legislation since we are not yet a signatory to the WCT or the WPPT and such provisions will hamper consumer interests.
Terms of copyright have been increased significantly without reason, thus preventing works from falling into the public domain. For instance, the term of photographs has been increased from 60 years to life of the photographer plus 60 years. This is far in excess of the minimum term stipulated by international treaties.

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

Consumers International World Congress - Day 3 roundup

praskrishna — 2011-05-06T05:34:47Z

Consumers can be empowered, and consumer organisations can make sure this happens through sharing and networking, speakers at the 19th Consumers International World Congress in Hong Kong said. The programme of the Congress finished on Thursday evening, and on Friday the global consumer body will hold its General Assembly and Council elections. This news was published in the Consumer's International Blog on May 5, 2011.

In his closing remarks, CI President Samuel Ochieng, emphasised "our ability to shape our future," ending the event on a positive note. Acting Director General, Helen McCallum, showed, in her remarks, the real excitement of the last few days.

Earlier, CI Vice President, James Guest, who is also President and CEO, Consumers Union of United States, delivered a keynote address on one of the key themes of the Congress: "The fight for fair financial services - a battle our movement must win".

Guest had this message for delegates and consumers around the world: "If you're wondering whether you, as an individual or through your organisation, can really make a difference in a David versus Goliath battle against the power of special interests, you already know the answer — yes, you can. The banking lobbyists are rich and powerful, and they spend a lot of money trying to buy influence. But there is one important asset that they lack and we have: people power. In the end, although it will be a hard and difficult fight, I believe that people power - mobilised by the over 220 members of CI - will eventually win.

"That’s because our cause and our stories and our passion are real. We fight for change, not because we are well-heeled lobbyists paid to do so, but because we care about our lives and the lives of our children, our neighbours, our countrymen, and citizens of the world - today and tomorrow, for this generation and the next."

Other highlights:

In a video message to the CI World Congress, French Finance Minister Christine Lagarde, that currently holds the presidency of the G20, said that the "G20 called for action on behalf of consumers, and with OECD I am working to protect consumers of financial services". She expressed the view that "consumers should be participants in the process of ensuring their own security," and admitted that "at the time of the crisis we did not focus enough on consumers in the first instance". Christine Lagarde said she remained "interested in the proposals developed for consumer protection and involvement following a successful CI Congress".

Gerd Leonhard, CEO of The Futures Agency, attracted a lot of interest with his views. Consumer organisations must network to have greater impact, they must share and publish; this is how you engage and enable others, he suggested. The difference between MTV and YouTube is the difference between 'the network' and networked, he said.

"'When five billion people are on the internet within a few years, the power of the consumer will be greater than ever," Gerd predicted.

We use social media/mobile phones to 'review' services, and corporations are paying attention, he added and noted that with broadband culture "everything known to man will be copied".

Former CI President Anwar Fazal delivered a rousing speech, which resulted in a standing ovation from the audience. He said that "in a world of big power, big media... networking is the new democracy".

Fazal added: ''CI is a force for social justice, we can do it, we must and we will!' He warned consumer organisations to "train new people or you will have no future," and noted that we "must not allow modernity to replace fundamental human connections".

On the subject of copyright and access to knowledge, David Hammerstein, TACD IP adviser, said: "We are not against copyright, we are for a more direct relation between artists and consumers".

CI's Dr Jeremy Malcolm added: "We want to support authors but not outdated regulation". He also argued that "unbalanced copyright and IP laws hurt consumers not pirates".

We aim to have A2K included in UN guidelines on consumer protection, Malcolm said.

Go to www.a2knetwork.org to comment on draft UN guidelines for A2K.

Sunil Abraham, Executive Director, Centre for Internet & Society, argued that fake mobile phone innovators in China are not pirates but "enablers of connectivity in the developing world".

Sue Rutledge, Coordinator for Global Program on Consumer Protection and Financial Literacy, World Bank, thanked Consumers International and HKCC for tackling the issue of financial services. She said that "all financial services providers should enable consumer redress," and that she "would like to see consumer ogranisations play an active role in protecting consumer financial protection".

Interviews

A number of speakers at CI World Congress have been interviewed by young TV journalists from Hong Kong City University involved in covering the event. Check the following videos:

You can also watch:

Read the original here

For more details visit https://cis-india.org/news/consumers-international-world-congress-day-3-roundup

Consumers International IP Watchlist 2012 — India Report

pranesh — 2012-08-16T10:23:36Z

Pranesh Prakash prepared the India Report for Consumers International IP Watchlist 2012. The report was published on the A2K Network website.

Summary

India's Copyright Act is a relatively balanced instrument that recognises the interests of consumers through its broad private use exception, and by facilitating the compulsory licensing of works that would otherwise be unavailable. However, the compulsory licensing provision have not been utilized so far, because of both a lack of knowledge and more importantly because of the stringent conditions attached to them. Currently, the Indian law is also a bit out of sync with general practices as the exceptions and limitations allowed for literary, artistic and musical works are often not available with sound recordings and cinematograph films. There are numerous other such inconsistencies. Positively retrogressive provisions, such as criminalisation of individual non-commercial infringement also exist. India's Copyright Act is a relatively balanced instrument that recognises the interests of consumers through its broad private use exception, and by facilitating the compulsory licensing of works that would otherwise be unavailable. However, the compulsory licensing provision have not been utilized so far, because of both a lack of knowledge and more importantly because of the stringent conditions attached to them. Currently, the Indian law is also a bit out of sync with general practices as the exceptions and limitations allowed for literary, artistic and musical works are often not available with sound recordings and cinematograph films. There are numerous other such inconsistencies. Positively retrogressive provisions, such as criminalisation of individual non-commercial infringement also exist.

It is unfortunate that the larger public interest in copyright-related issues are never foregrounded in India. For instance, the Standing Committee tasked with review of the Copyright Amendment Bill has held hearings without calling a single consumer rights organization, and without seeking any civil society engagement, except for the issue of access for persons with disabilities. This was despite a number of civil society organizations, including consumer rights organizations, sending in a written submission to the Standing Committee.

This lopsidedness in terms of policy influence is resulting in greater imbalance in the law, as evidenced by the government's capitulation to a handful of influential multinational book publishers on the question of allowing parallel importation of copyrighted works. Furthermore, pressure from the United States and the European Union, in the form of the Special 301 report and the India-EU free trade agreement that is being negotiated are leading to numerous negative changes being introduced into Indian law, despite us not having any legal obligation under any treaties. Such influence only works in one direction: to increase the rights granted to rightsholders, and has so far never included any increase in user rights.

It is true that copyright infringement, particularly in the form of physical media, is widespread in India. However this must be taken in the context that India, although fast-growing, remains one of the poorest countries in the world. Although India's knowledge and cultural productivity over the centuries and to the present day has been rich and prodigious, its citizens are economically disadvantaged as consumers of that same knowledge and culture. Indeed, most students, even in the so-called elite institutions, need to employ photocopying and other such means to be able to afford the requisite study materials. Visually impaired persons, for instance, have no option but to disobey the law that does not grant them equal access to copyrighted works. Legitimate operating systems (with the notable exception of most free and open source OSes) add a very high overhead to the purchase of cheap computers, thus driving users to pirated software. Thus, these phenomena need to be addressed not at the level of enforcement, but at the level of supply of affordable works.

Source URL: http://bit.ly/QEJf5l
Click to download the report [PDF, 201 Kb]

For more details visit https://cis-india.org/a2k/consumers-international-ip-watchlist-report-2012

Consumers International IP Watch List 2009

pranesh — 2011-08-04T04:42:27Z

In response to the US Special 301 report, Consumers International brought out an IP Watch List. CIS contributed the India Country Report for the Watch List.

Every year the Office of the United States Trade Representative (USTR) publishes a report known as the Special 301 Report, documenting IP regimes in various countries, and publishing a list of those countries which do not afford 'adequate and effective' protection for US intellectual property. This year Consumers International, which set up the A2K Network, published a counter-report, the IP Watch List 2009 for which the India report [pdf here] was prepared by the Centre for Internet and Society. While the Special 301 Report labels India a "Priority Watch List" country (meaning that it has an IP regime least conducive to the trade interests of the United States), the Consumers International report holds India to have the most consumer-friendly and balanced IP regulation amongst the sixteen countries surveyed. The CI report lambasts the USTR's attempts to make countries comply with unreasonable demands which go over and above the countries' international obligations. For instance, the WIPO Internet Treaties, which have been criticised by many, is sought to be imposed on countries like Israel, India, and Canada. Prof. Michael Geist of the University of Ottawa even notes that piracy levels and accession to the WCT and WPPT do not seem to be correlated: "In fact, only five countries that have ratified the WIPO Internet treaties have software piracy rates lower than Canada." Still, the USTR has placed both India, whose IP laws are being praised by Consumers International and Canada, which has low piracy rates even by the accounts of the notoriously propagandist BSA, have both been placed in the Priority Watch List. The reasons for doing so are not all that unclear if we look at who really shapes the USTR's Special 301 report.

The India section of the USTR Special 301 report [pdf] (pp. 18-19) notes:
"India will remain on the Priority Watch List in 2009. India has made progress on improving its IPR infrastructure, including through the modernization of its IP offices and the introduction of an e-filing system for trademark and patent applications. Further, the IP offices have started the process of digitization of intellectual property files. In addition, the Indian ministerial committee on IPR enforcement has supported the creation of specialized IPR police units. Customs enforcement has also improved through the implementation of the 2007 IPR (Imported Goods) Enforcement Rules as well as by seizures of unlicensed copyrighted goods intended for export. However, the United States remains concerned about weak IPR protection and enforcement in India. The United States continues to urge India to improve its IPR regime by providing stronger protection for copyrights and patents, as well as effective protection against unfair commercial use of undisclosed test and other data generated to obtain marketing approval for pharmaceutical and agrochemical products. The United States encourages India to enact legislation in the near term to strengthen its copyright laws and implement the provisions of the WIPO Internet Treaties. The United States also encourages India to improve its IPR enforcement system by enacting effective optical disc legislation to combat optical disc piracy. Piracy and counterfeiting, including of pharmaceuticals, remain a serious problem in India. India’s criminal IPR enforcement regime remains weak. Police action against those engaged in manufacturing, distributing, or selling pirated and counterfeit goods, and expeditious judicial dispositions for IPR infringement and imposition of deterrent-level sentences, is needed. As counterfeit medicines are a serious problem in India, the United States is encouraged by the recent passage of the Drugs and Cosmetics (Amendment) Act 2008 that will increase penalties for spurious and adulterated pharmaceuticals. The United States urges India to strengthen its IPR regime and stands ready to work with India on these issues during the coming year."

Large chunks of it seem to have been 'borrowed' from the IIPA submissions. The IIPA (International Intellectual Property Alliance), which is made up of US-based IP-maximalist lobbyists like the Motion Picture Association of America, Recording Industry Association of America, National Music Publishers Association, Association of American Publishers, and Business Software Alliance, is a body that was created to lobby the USTR to impose trade sanctions on those countries which did not follow the path that IIPA thought best for those countries.
Interestingly, the IIPA submissions talk not of IIPA's concern about weak IPR protection and enforcement in India, but instead states: "the United States remains concerned about weak IPR protection and enforcement in India". This exact line even manages to finds itself in the USTR Special 301 report. Many IIPA complaints find themselves as USTR recommendations, including: a) fast-track judical dispositions of IP cases; b) special laws against optical disc piracy; c) ratification of the WCT and WPPT (the "WIPO Internet Treaties"); d) increased criminal enforcement of intellectual property.

Thus, the Special 301 report emerges as a discredited report that the US's trade partners should not (and by many accounts do not) pay attention to. Measurement of IP balance and consumer-friendliness such as the Consumers International IP Watch List are more important, and should eventually lead to a measurement index for Access to Knowledge.

For more details visit https://cis-india.org/a2k/blogs/consumers-international-ip-watch-list-2009

Consilience 2010

praskrishna — 2011-04-05T04:06:51Z

The National Law School of India University, Bangalore is hosting a conference on May 29 and 30 at the Taj Residency in Bangalore.

The Law and Technology Committee (elTek) of the National Law School of India University, Bangalore is hosting ‘Consilience’, a conference, where, as the name suggests, a multi-disciplinary approach is adopted to tackle and discuss a topic of contemporary relevance. Past editions of the conference have brought together luminaries like Mr. Montek Singh Ahluwalia (Deputy Chairman, Planning Commission), Mr. R. Ramraj (MD and CEO, Sify Technologies Ltd.,), Mr. Richard Stallman (Founder – GNU Project), Hon’ble Justice Yatindra Singh (Allahabad High Court, India), Mr. Rahul Matthan (Partner, Trilegal ) and discussed contemporary issues such as “Legal Aspects of Business Process Outsourcing”, “Biotechnology and the Law” and“Free and Open Source Software".

The use of the Internet has proliferated in the past few years, and the positive side is clear to see. However, there is also a huge negative associated with this growth in use of the Internet. With the free dissemination of information, there is also dissemination of illegal and immoral materials. For instance, copyright protected songs and movies are found easily on the internet, sometimes even before they are officially released. The Internet has also made obscene materials like child pornography easily accessible at the click of a button. All of this has a marked negative impact on society and therefore, due to the overriding social interest at stake, the State steps in to regulate and punish the offenders. Internet intermediary liability affects everyone who uses the Internet in numerous ways, both directly and indirectly. Internet intermediary liability could shape the very future of the Internet, yet it surprising how little it has been discussed in India.

For more details visit https://cis-india.org/events/consilience-2010-bangalore

Conference on Standards Settings Organizations (SSO) and FRAND, NLSIU

rohini — 2016-04-02T18:12:41Z

Rohini Lakshané attended the Conference on Standards Settings Organizations (SSO) and FRAND held at NLSIU, Bengaluru on March 21 and 22, 2015. It was organised by the MHRD Chair on Intellectual Property Rights, Centre for Intellectual Property Rights and Advocacy (CIPRA), National Law School of India University, Bengaluru in association with Intel Technology India. This post is a compilation of notes from the conference.

Programme Schedule

Significant Takeaways
It is anti-competitive to seek to exclude competitors from the market by seeking injunctions on the basis of SEPs, if the licensee is willing to take a license on FRAND terms. In these circumstances, the seeking of injunctions can distort licensing negotiations and lead to unfair licensing terms, with a negative impact on consumer choice and prices. -- EU Competition Policy Brief, Issue 8, June 2014. This is a very important issue for India as it thinks about how it can attract foreign investments. India has a unique opportunity to learn from these lessons from around the globe and craft India-specific solutions. India has the intellectual capability and the institutions capable of crafting these solutions, and in doing that we can support Make In India. India needs to be mindful about what is happening in the [South Asian] region. China has moved aggressively to try to curb FRAND abuse. The People's Court in China ruled in Huawei vs. InterDigital that for 2G, 3G, and 4G patents, the license fees of royalties should not exceed 0.019% of the actual sale price. Apple also stated that Ericsson was calculating royalties on the sale price of the iPhone or iPad, whereas the royalty should be calculated on the value of the baseband chip that runs this technology in the mobile device. If such litigation occurs in India, what would be India's position? If a building block contains the technology pertaining to a patent, then royalty should be calculated on the smallest possible patent practising unit and not the entire product. The government of India has adopted a royalty free (RF) approach to licensing open standards. Non-essential claims are excluded from disclosure. Pending patent applications are not. Only 16% patents declared as SEPs are actually SEPs, according to a study. The Delhi High Court has passed interim orders restraining the CCI from deciding these cases. Our appeal to the courts is that these patent infringement lawsuits should not be viewed in isolation. They should not be viewed as merely contractual issues between the licensor and the licensee. They should be seen in the context of their economic effects and their adverse effect on competition. The CCI should be enabled to deal with such cases. Matheson: The phrase "compulsory license" sends a shiver down every corporate's spine every time it is used. International experience is that the judicial system has been the only forum where we have been able to have due process to enable us to construct cases properly in order to explain to the judge or to the jurors how the system works. That has produced very sensible solutions to this problem. Handing it off to the government to institute a compulsory license wouldn't be fair to the SEP holders.

SSOs and FRAND: Licensing issues

John Matheson, Director of Legal Policy (Asia Pacific), Intel

The role of licensing policy

Ensuring market access
Standards often depend on patented technology, which is accessed through the Promise to License on FRAND terms.
It is equally critical to ensure that standards can be implemented without unfair legal games.
It is essential to prevent patent hold-up.
Reasonable compensation

Patent holders remain entitled to fair compensation and benefit from the proliferation of their technologies via standardisation.

Why FRAND?

A FRAND commitment embodies certain fundamental principles that have been recognised widely by the courts and regulators.

The fundamental purpose of a FRAND commitment is widespread adoption of the standard.

Because of the peculiar nature of SEPs, the process is open to abuse.

A FRAND commitment is aimed at preventing patent holders from exploiting a hold-up value and extracting unreasonable royalties and concessions that could otherwise follow from being in a very unique position. Often, the holders of the IP have a single solution to an interoperability or connectivity conundrum that technology is facing.

Why are SEP license negotiations different from Non-SEP ones?

In the context of non-SEPs, one may be negotiating to obtain a license to a patent for a particular feature. If the licensor is being difficult, one can discard the feature to include something else. In a competitive market, this negotiation is focused on the value of the invention to be licensed. Thus one can redesign to avoid a particular claim and, in turn, avoid injunction.

On the other hand, it is necessary to either obtain a license for or infringe an SEP to manufacture the mobile device. There is no workable alternative or workaround to obtaining a license for the desired technology. With the threat of an injunction looming over the negotiations, the prospective licensee is under pressure to obtain a license. So the market negotiations for SEPs and non-SEPs are very different. One-way negotiations raise the possibility of a patent hold-up, and abuse of the standard implementer.

IP policies inevitably involve compromise.

Common areas of misunderstanding include:

Valuations or meaning of "reasonable". Valuations of IP under consideration.
Injunctive relief or exclusion orders
Discrimination or refusal to license
Patent transfer (It requires a continuation of the FRAND commitment, and shouldn't get differential treatment in the IP policy.)

Competition authorities in the US and EU have asked SSOs to reconsider policies to reduce ambiguity in the context of these areas of misunderstanding.

The ex-ante or the incremental value of the SEPs before the standard is set needs to be understood. The SSOs look at several different ways to solve a connectivity problem. The patent owners bring their patents into the standards body and claim that theirs is the best way to solve that problem. The market and consumers want an uncomplicated solution which works and is as cheap as possible. In many cases, there is one single winner, simply because we need one solution. In exchange for being the winner, the FRAND discipline is quid pro quo.

European Commission's response to two different patent lawsuits:

In the Samsung and Motorola cases, the Commission clarifies that in the standardisation context where the SEP holders have committed to:

License their SEPs
Do so on FRAND terms

It is anti-competitive to seek to exclude competitors from the market by seeking injunctions on the basis of SEPs, if the licensee is willing to take a license on FRAND terms.

In other words, if there is a bona fide commitment on the part of the licensee to agree to that test, then it is anti-competitive to seek an injunction.

In these circumstances, the seeking of injunctions can distort licensing negotiations and lead to unfair licensing terms, with a negative impact on consumer choice and prices. -- EU Competition Policy Brief, Issue 8, June 2014.

Anyone who needs access to connectivity or needs interoperability requires to get a SEP license, and if that license is required to be obtained within a time limit, it almost -- by definition -- is not going to work. Patent licenses take years to negotiate, and they're incredibly complex. For example, a patent policy may offer up to 12 months to agree on a license, but that is not the way the market works. So we cannot expect policies that put forth time limits to work in the SEP arena. What we can expect is that the implementers make a bona fide commitment to seek a license.

Motorola vs. Microsoft, Germany:

Motorola sought injunctive relief against Microsoft in Germany. Microsoft moved its distribution centre from Germany to the Netherlands. This resulted in loss of jobs, relocation costs ($11.6 million), and annual increased operating costs of $5 million for Microsoft.

Samsung vs. Apple, Germany

Similarly, on the basis of one patent, a temporary injunction was granted on the sale of the Apple iPad and iPhone. Apple was forced to agree to terms it didn't want to agree to, so that the sale of its products would resume.

This is a very important issue for India as it thinks about how it can attract foreign investments. India has a unique opportunity to learn from these lessons from around the globe and craft India-specific solutions. India has the intellectual capability and the institutions capable of crafting these solutions, and in doing that we can support Make In India.

SEP holders that make FRAND commitments should not be allowed to obtain injunctions against alleged infringers, except in limited circumstances. This formula has been adopted by the IEEE, which has solved this problem. India has the opportunity to leapfrog a lot of patent litigation by adopting the IEEE test.

Learn from what happened with Microsoft in Germany. What kind of message do you want to send to the foreign community about investing in India? Do you want to use the scare tactics of injunctions or do you want to adopt a policy that will avoid litigation?

India needs to be mindful about what is happening in the [South Asian] region. China has moved aggressively to try to curb FRAND abuse. The People's Court in China ruled in Huawei vs. InterDigital that for 2G, 3G, and 4G patents, the license fees of royalties should not exceed 0.019% of the actual sale price.

Reasonable Compensation Considerations

Royalty based on the smallest unit that practices the standard.
Technical value of patented technologies vs. alternatives.
Overall royalty that could reasonably charged for all SEPs.

Non-discrimination

A commitment to license every implementer of the relevant standard.

Transfer

FRAND commitments follow the transfer of a patent to subsequent proprietors.

Dr. Krishna Sirohi, Impact Innovator, GISFI, President, I2TB

As per the Make in India programme, we have to achieve zero imports by 2020. Product development in India by Indian companies will happen with collaborative research and development and IPR sharing through licenses. We are looking at national capacity building through product development and patent uses.

Global Information and Communication Technology Forum for India (GISFI) is a standards setting body involved with standardisation and research. It is a telecommunications standards development body (TSDO) set up with the approval of the DoT. It has peer relationships with ITU, OMA, TTC and a bunch of other SDOs. Internet of Things (IoT), mobility and security are its three major research programmes.

GISFI is working towards defining 5G in India. The 5G standardisation theme in India is called WISDOM (Wireless Innovative System for Dynamic Operating Mega Communications). GISFI is considering the perspective of the Indian user, the network capability, the network architecture, network development and the Indian revenue model, strategic and special purpose networks, inclusive growth, and network security.

However, some India-specific aspects such as illiteracy and lack of basic civic infrastructure need to be considered in the standardisation process.

GISFI plans and stages for 5G definition and adoption

Stage 1 (2014-2018): National agenda for strategic research, innovation and experimentation

Focus on Digital India and Make in India programmes.

Stage 2 (2016-2019): Standardisation

Stage 3 (2017-2021): Product Development

Stage 4 (2019-2023): Early Development

Technical understanding required for IPR issues

Enhancement applicable to general scenarios
- Traffic capacity
- Cell coverage
- Edge cell performance
- Intercell interference
- Network congestion
- Mobility
- Energy consumption
Enhancements targeting new use cases
- machine-type communication
- national security
- public safety services
Carrier aggregation
- Higher throughput owing to intra and inter-band transmission bandwidth of more than 20 MHz.
- Reduced network congestion owing to load-balancing across multiple carriers.
- Improvement in mobility and reduction in inter-cell interference.
Enhanced MIMO
- Improved spatial diversity and multiplexing
- Improved beam-forming
- Multiple access with multi-antenna transmission
Coordinated Multi-Point Operation (CoMP)
- Reduction in intercell interference owing to coordinated scheduling or beamforming (CS/CB)
- Transmission from multiple distribution points (base stations, RRH) in a coordinated way (Dynamic point selection, and Joint transmission)

What do SSOs handle IPR in different parts of the world and what are the issues they face?

GISFI has adopted ITU's IPR policy.

In SSOs, the FRAND principle works well only when participating entities have equal or almost equal IPR clout, and can reciprocate with their own patents every time other entities share their patents. It is difficult to create a balance between entities that only own IPR and those that only consume IPR.

Most of the members of SSOs are IPR owners. The entities that develop [technological] solutions without owning the IPRs are usually not a part of SSOs. However, additional strategies need to be implemented for realising the "Make in India" goal. The goal of zero imports by 2020 can only be achieved if a large number of small companies use these standards to develop products locally. So small manufacturers should be represented even at the highest levels of the standards development body. An IPR policy should be defined/ modified to factor in these needs.

Evaluation of LTE essential patents declared by ETSI

Cyber Creative Institute, June 2013: http://www.cybersoken.com/research/pdf/lte03EN.pdf

A large number of LTE patents are held by a handful of companies. There is no Indian owner of any LTE SEP.

Ericsson sued Apple in the US over infringement of its LTE patents. As of January 2015, Apple countersued Ericsson in a federal court in California and claimed that it did not owe any royalties to the latter.

Apple also stated that Ericsson was calculating royalties on the sale price of the iPhone or iPad, whereas the royalty should be calculated on the value of the baseband chip that runs this technology in the mobile device. If such litigation occurs in India, what would be India's position? If a building block contains the technology pertaining to a patent, then royalty should be calculated on the smallest possible patent practising unit and not the entire product.

Dr. Kumar N. Shivarajan, CTO, Tejas Networks

TSDSI's (Telecommunications Standards Development Society of India) IPR policy states that a member's technology will become a part of a standard as long as the member licenses it on FRAND terms to other members.

By 2017, 70% of the global equipment spend will be on LTE.
TD-LTE subscriber base in India has been projected to reach 67 million by 2017.
Most of the data connections in India are still on 2.5G.
Smartphones have become affordable but 3G continues to languish in India; 4G yet to take off.
The number of 3G connections in India grew from 30 million to 33 million from 2013 to 2014.

Is 5G the answer to India's access problems?

The mobile industry is aiming to go beyond traditional 4G LTE in 2015 and there is increasing focus on adding new bells and whistles to 4G and realise 4G+.

LTE Licensed-assisted access (formerly LTE-Unlicensed)
LTE Direct/ Peer-to-peer
LTE-M for machine to machine communication
CoMP

Countries forming 5G groups to take an early lead:

China: IMT-2020 (5G) Promotion Group
Korea: 5G Forum
EU: 5G Public Private Partnership (5G-PPP)

5G in its current form is souped-up 4G.

Key India-specific requirements for 5G standard development

5G must factor in the Indian requirement for DSL-like connectivity: Always ON, low latency, affordable cost
To minimise costs, 5G must minimise the use of BTS sites and focus on spectral efficiency.
5G should allow virtual network operations enabling multiple operators to use the same physical network infrastructure.
5G must work well in Indian propagation environments: concrete buildings blocking signals, dense barriers.
5G infrastructure should be green as electricity shortfall is a problem. India has 400,000 cell towers. 10% of them are not connected to the electricity grid. More than 70% experience power outages longer than 8 hours per day, and work on diesel-powered generators. As a result, 25% of the operational costs of telcos are their energy bills. India imports 3 billion litres of diesel annually to run these cell sites.

India can try to get a headstart in owning the IPR that would eventually go into the 5G standard.

Prof. Ramakrishna, MHRD Chair, NLSIU, Bengaluru

The attitude of an SSO towards patented technology determines the objective of its IPR policy. For example, an SSO may want to:

Promote widespread implementation of a standard without unnecessary IPR implications.
Ensure transparency and certainty about the declaration of patents and patents' claims as SEPs.
Ensure that every patented technology is available at a reasonable fee, comparable to the value of the technology.

What happens when IP ownership is transferred to another owner? It continues to be a part of the SSO but things get complicated.

New owners, third parties, subsidiaries, and affiliates fall under the purview of the IPR policy, by extension.

IP and Disclosure policies of Indian SDOs

BIS (Bureau of Indian Standards) and TEC (Telecommunication Engineering Centre) do not have IP policies of their own. TEC refers to the ISO/IEC IP policies wherever the technology is equivalent or the same.
GISFI disclosure requirement: Each member is required to inform GISFI in a timely manner of essential IPRs. But members are not under any obligation to conduct IP searches. GISFI's IPR policy is based on that of ETSI.
DOSTI (Development Organization of Standards for Telecommunications in India) is not functional.

IPR policy for open standards in e-governance

The government of India has adopted a royalty free (RF) approach to licensing open standards.

Mandatory Characteristics of Open Standards:

The patent claims necessary to implement the standard should be made available royalty free for the lifetime of the standard.
The standard shall be adapted and maintained by a not-for-profit organisation.
The standard shall have a technology-neutral specification.

The RF approach and the maintenance by a non-profit may be a disincentive for IP owners.

IEEE patent policy:

IEEE invites participants to disclose patent claims essential to a standard under development. Upon disclosure, the patent holder needs to submit a letter of assurance that states:

License(s) will be made available without compensation or at a RAND rate.
A commitment to enforce the essential patent claims against any entity complying with the standard.
Or state its unwillingness or inability to license its essential patent claims.

Common patent policy for ITU-T/ ITU-R/ ISO/ IEC

Recommendations/ deliverables are non-binding -- ensure compatibility of technologies and systems on a worldwide basis.

The "code of practice":

It is desirable that the fullest available information should be disclosed although ITU, ISO or IEC are unable to verify the validity of any such information.

Major types of IPR policies:

Participation-based IPR policies

These are common in small, informal bodies such as consortia.
Members are bound by the terms of membership to commit to licensing SEPs on RAND or RF terms.
SEP holders notify the standards body in case RAND or RF licenses are not available after the draft standard has been published.

Commitment-based IPR policies
- These are commonly followed large, standards setting bodies.
- These bodies identify SEPs to a draft standard through disclosure and submission of licensing commitment.
- Parties may seek alternative solutions or work on a withdrawn standard is the the alternative solutions don't work out.

Basic building blocks of commitment-based IPR policies

Disclosure policies:

Disclosure is important for
- sending requests to SEP holders to make licensing commitments
- ensuring that experts' groups make informed decisions on inclusion of patented technologies
- providing information to prospective standards implementers about the SEP owners

Two forms of disclosure:

A call for patents is made at the start of meetings. This is more informational than binding.
Later, the member states its intentions regarding licensing the patent on RAND terms.

How disclosure obligations arise (and commitments are binding):

IEEE has by-laws that are binding on members.
ITU, IEC, and ISO: It is via a resolution or recommendation.

(Indicative list)

General disclosure procedure:

The nature of disclosure rules concerning self-owned patents depends on the status or the role of the entity.

A "submitter" is a participant in the working group making a conscious decision to submit its technology to the SSO for a license or free of royalty.
A participant in a working group may submit its technology to the SSO free of royalty, on RAND terms, on RAND terms with the right to charge a fee, or with a refusal to license it. (A working group participant who discloses technology is usually a technology expert. When someone who does not have adequate knowledge of patents discloses technology, it has complicated implications.)
A non-working group participant (third-party) may also submit its technology.

ANSI has left it to the accredited SSO to decide the terms of disclosure for participants of working groups. It has not laid out a policy in this regard. Other organisations have laid out obligations on the submitter to disclose SEPs.

Nature of disclosure terms for patents owned by third-parties:

ETSI: It is obligatory.

ITU/ ISO: Obligatory only for participants of the working groups.

IEEE: Entirely voluntary

Non-essential claims are excluded from disclosure. Pending patent applications are not.

Working groups prefer early disclosure so that they may adopt or discard the claim as early as possible in the standard setting process.

ITU: Disclosure from the outset

IEEE: During meetings of the working group

ETSI: "Timely manner"

AFSI: At a sufficiently mature level

There is no mandate for updating the disclosure in case a standard evolves.

Most SSOs make disclosed patents public. Failure to disclose patents may result in accusations of abuse of monopoly or anti-trust/ anti-competitive activities.

It is difficult to identify all potentially essential patents due to the complexity of specifications.

Some SSOs don't require IP disclosure at all. The obligations to license on FRAND terms would be sufficient.

Only 16% patents declared as SEPs are actually SEPs, according to a study.

It makes sense for rightsholders to go for blanket disclosures instead of disclosure of specific patents.

Vinod Dhall, ex-chairperson of the Competition Commission of India (CCI):

Our competition law is new, so there aren't any cases pertaining to patent litigation and involving the competition law, which we can treat as precedents. In one of the mobile phone patent litigation cases in India, the implementer has approached the CCI claiming that the licensor has been abusing its dominant position in the market by charging unreasonable royalties.

The Delhi High Court has passed interim orders restraining the CCI from deciding these cases. Our appeal to the courts is that these patent infringement lawsuits should not be viewed in isolation. They should not be viewed as merely contractual issues between the licensor and the licensee. They should be seen in the context of their economic effects and their adverse effect on competition. The CCI should be enabled to deal with such cases.

Questions-answers round:

What are the criteria for declaring a patent an SEP?

T. Ramakrishnan: SSOs have no role in declaring that a patent is an SEP. The SEP holder declares that their patent is essential to a technical standard. Most of the time, the SEP may turn out to be a non-SEP at a later stage. Statistically, 16 out 100 claimed SEPs are actually SEPs. There is no way for SSOs to tell if a patent is an SEP. IP policies of most SSOs state that they don't search [if a patent is an SEP]. The members of SSOs are under no obligation to search.

The commitment to license an SEP on FRAND terms is more important to an SSO [than determining if the patent is indeed an SEP].

Can compulsory licensing be implemented with government intervention in India so that the Central Government can fix a royalty and put an end to patent litigation?

Matheson: The phrase "compulsory license" sends a shiver down every corporate's spine every time it is used. International experience is that the judicial system has been the only forum where we have been able to have due process to enable us to construct cases properly in order to explain to the judge or to the jurors how the system works. That has produced very sensible solutions to this problem. Handing it off to the government to institute a compulsory license wouldn't be fair to the SEP holders.

With respect to the "safe harbour" approach towards SEP-based injunctions, what does the licensee need to do to prove to the courts that it is a willing licensee, in the event that licensing negotiations fail or take a long time?

Matheson: It gets down to the licensee showing its willingness to negotiate. The licensee cannot make a half-hearted attempt and decline to negotiate or decline the licensor's offer and then disappear. They should physically engage in the negotiation. If and when it gets to a judicial environment, the judges know when people are telling stories and when parties are bona fide. They can tell a ruse when they see one, and I think it is one of the things you observe in practice.

Ramakrishnan: The licensee should be able to demonstrate that it is willing to pay the royalty and should deposit an amount towards royalty. One recommendation from AIPP states that instead of using the terms "willing licensee" and "willing licensor", use "good faith response". For "good faith" we have very well established criteria. The entire licensing process should end within 12 months of starting. If the negotiations fail or if the process takes longer, then they should agree upon an arbitrator to fix FRAND terms. These are indicators that demonstrate the licensee being a "willing licensee" or a "good faith" licensee.

Often technology changes before the legal action can be taken or the lawsuit completed, and the patent over which litigation has happened may no longer be relevant to the technology. How do patent holders deal with this situation?

S.K. Murthy, Research Scholar, NLSIU: Even if the technology becomes obsolete, damages can be claimed retrospectively.

Matheson: You have a commitment to a FRAND solution, so that when you enter the protracted negotiation, you know that at the end of it you will get a fair solution. That's not always the case when you are dealing outside the FRAND world. You're dealing with a FRAND incumbent, not with unlicensed patents.

Why is putting a time limit to negotiations not a good idea? Also, IEEE seems to have done well by taking the threat of negotiations out of its way. Is it practical in India, because injunction is still the most potent weapon to protect intellectual property rights in India currently?

Matheson: Licensing is incredibly complex. There can be claims to the validity of the patent, there are claim charts to be drawn, there is expert evidence to be put together. Litigation over patents can take 2 to 3 years. To say that there must be a solution [arrived at] within a smaller framework gives the licensor the opportunity to wait around till the end of that period and assert its patents through an injunction. If you're leaving injunction at the table, you will not have a fair solution. The licensee will always be at a major disadvantage. The IEEE solution is a good one because it has taken the time limit away, but at the same time the policies that would adopt that solution need to include the discipline to ensure that the negotiations are bona fide.

What percentage of the sale price should be provisioned by a product developer for royalties? Can a mechanism be drawn up for this purpose?

Justice Ratnakala: Definitely. Such a mechanism should be drawn up in the near future.

For more details visit https://cis-india.org/a2k/blogs/conference-on-standards-settings-organizations-sso-and-frand-nlsiu

Competition Commission of India chairman's participation in Assocham conference raises conflict of interests

praskrishna — 2015-09-19T15:33:11Z

The chairperson of the Competition Commission of India (CCI) and three of the six commission members are participating in a conference organised by Assocham and sponsored by private companies like Ericsson, trade associations and two legal firms specialising in intellectual property cases.

The article by Rema Nagarajan was published in the Times of India on August 6, 2015.

This, civil society organisations argue, raises issues of conflict of interest in a quasi-judicial body like CCI participating in a conference organised by private parties that have cases before the commission.

For instance, the event partner Ericsson is facing CCI investigations on matters related to standard essential patents (SEPs), one of the conference topics, and issues related to licensing of technologies on fair and equitable terms. The vice president and head of the legal section of Ericsson also has a speaking slot in the inaugural event. The brochure clearly states that the event partner on payment of Rs 5 lakh gets several privileges including a speaker's slot in the inaugural and business sections.

Several civil society organisations including Alternative Law Forum, Centre for Internet and Society and IT for Change from Bangalore, Knowledge Commons Collective, National Working Group on Patent Laws, and Software Freedom Law Centre from Delhi have written to the CCI protesting against its participation in the conference.

In their letter to CCI chairperson Ashok Chawla, they pointed out that the day-long conference titled Interface between Intellectual property (IP) and Competition Law, being held in a five star hotel on August 7, was focusing on issues being adjudicated by CCI. While Chawla is listed in the brochure as giving the inaugural address, CCI members GP Mittal and MS Sahoo are chairing two technical sessions and a third member SL Bunker is giving a special address at the valedictory function.

Other speakers include Rajiv Aggarwal, Controller General of Patents, Designs and Trademarks, representatives of Google, Intel, Microsoft, the UK IP Office, senior advocates from three Indian law firms specialising in IP and representatives of international law firms and consultancy firms.

"It is a well-set precedent that judicial and quasi-judicial bodies never directly or indirectly discuss matters pending before them. The conference is centred on discussing issues that are currently under the investigation of CCI along with commercial entities, including one which is facing the investigation," stated the letter adding that all the judicial or quasi-judicial bodies were expected to avoid not only actual conflict of interest but also perceived conflict of interest.

The civil society signatories pointed out that the event was not an academic event but a commercial one organised by a chamber of commerce along with the industry with clear commercial objectives. "The participation of CCI in the event would compromise the credibility and independence of CCI. Therefore, CCI as a guardian of public interest should not be subject to the lobbying efforts of IP owners. Providing privileged access to lobbying efforts of private enterprises like Ericsson, Qualcomm, Microsoft and Intel would cast a dark shadow on the neutrality of CCI," stated the letter requesting Chawla not to participate in the conference and to direct CCI members and CCI staff involved in investigations to avoid participation.

For more details visit https://cis-india.org/a2k/news/times-of-india-rema-nagarajan-august-6-2015-competition-commission-of-india-chairman-participation-in-assocham-conference-raises-conflict-of-interests

Comparison of National IPR Strategy September 2012, National IPR Strategy July 2014 and Draft National IP Policy, December 2014

amulya — 2016-03-08T01:49:07Z

This is an analysis of the first draft of India's National IPR Policy with an earlier document "India's National IPR Strategy".

Nehaa Chaudhari provided inputs, analysed, reviewed and edited this blog post.

As part of our IPR Policy Series, we have so far CIS has submitted comments to the Department of Industrial Policy and Promotion on the proposed IPR Policy and the first draft of the National IPR Policy, traced the development of the National IPR Policy, evaluated how the IPR Policy holds up to WIPO’s suggestions , filed RTI’s regarding the formation of the IPR Think Tank and the functioning of the Sectoral Innovation Council.

In this blog post Amulya.P compares the National IPR Strategy September 2012 prepared by the Sectoral Innovation Council, the National IPR Strategy July 2014 and the Draft National IP Policy, December 2014 to understand the commonalities and differences between the three.

Vision/ Mission

The vision stated in the IPR Strategy, July 2014 is “To develop India during the decade of Innovation into a major Innovative competitive and knowledge based economy by strategic utilization of IP as an engine for accelerated growth and sustainable and inclusive development.” This is comparable to the vision statement laid out in the Draft National IP Policy, December 2014 (Draft Policy) that states as follows: “An India where IP led growth in creativity and innovation is encouraged for the benefit of all; an India where IPRs promote advancement in science and technology, arts and culture, traditional knowledge and bio-diversity resources; an India where knowledge is the main driver of development, and knowledge owned is transformed into knowledge shared.” The Mission Statement laid out in the Draft Policy reads as follows “Establish a dynamic vibrant balanced intellectual property system in India to : foster innovation and creativity in a knowledge economy, accelerate economic growth, employment and entrepreneurship, enhance socio-cultural development and protect public health, food security and environment among other areas of socio-economic importance”

Clearly the Draft Policy strives for more balance and envisions IPRs as not only a tool to ensure social welfare alongside economic growth, but also envisions IPR as a tool to ensure the sharing of knowledge.

Objectives/ Approaches

The objectives of both the September 2012 National IPR Strategy and the July 2014 National IPR Strategy are more or less to “ Transform India into an innovative economy that would be reflected in high rankings in development and innovation indices from a global standpoint and develop, sustainable and innovation-promoting IPR management system in India while ensuring that the IP system continues to have appropriate checks and balances conducive to social and economic welfare and to a balance of rights and obligations. Besides measures that need to be taken, the strategy also needs to have an implementation matrix and a time bound schedule.”

In addition to this, the September 2014 IPR Strategy Document lays down a four pronged approach- to promote respect for IP, to simulate creation of IPRs ,creation of new IP regimes to address needs of the country and strengthening protection of IP, and to facilitate commercialization of IP. The IPR Strategy of July 2014 expands on this to include the establishing of cost effective, efficient, service oriented administration, institutional capacity building and development of human capital and the integrating of IP components of national sectoral policy and the Addressing of IP issues in international fora.

The Draft Policy though has enumerated seven objectives throughout the report. They are: a) “To create public awareness about economic social and cultural benefits of IP among all sections of society for accelerating development, promoting entrepreneurship, enhancing employment and increasing competitiveness”.b) “To stimulate creation of growth of IP through measures that encourage IP generation.”c) “To have strong and effective laws with regard to IPRs that are consistent with national priorities and international obligations which balance the interests of rights owners with public interest.” d) “To modernize and strengthen IP administration for efficient, expeditious and cost effective grant and management of IP rights and user oriented services.” e) “To augment the commercialization of IP rights, valuation licensing and technology transfer.” f)”To strengthen the enforcement and adjudicatory mechanisms for combating IP violations, piracy and counterfeiting, to facilitate effective and speedy adjudication of IP disputes to promote awareness and respect for IPRs among all sections of society.” f) “To strengthen and expand human resources, institutions and capacities for teaching, training, research and skill building in IP.”

Clearly the Draft Policy lays more emphasis on raising public awareness about the benefits of IP, strengthening the enforcement and adjudicatory mechanisms to combat violations and on balancing different interests during the creation of new IP laws and regulations.

Raising Awareness

While the September 2012 IPR Strategy speaks of raising awareness as a tool in encouraging creation of IP and facilitating commercialization of IP, the Draft Policy envisions an elaborate awareness raising and publicity program. Some of the schemes suggested in the Draft Policy include: Adoption of the slogan “Creative India: Innovative India” and launching an associated campaign on electronic , print and social media by linking IPRs and other national initiatives such as Make in India, Digital India, Skill India and Smart Cities. Reaching out to industry, MSMEs, R&D institutions, science and technology institutes, universities, colleges, inventors, creators, farmers/plant variety users, traditional knowledge holders, designers and artisans through campaigns tailored to their needs and concerns. Promoting the idea of high quality and cost effective innovation as a particularly Indian competence leading to competitive advantage, Involving of eminent personalities as ambassadors to spread awareness of India’s IP, Using audio visual material in print/electronic/social media for propagation, Creating moving exhibits that can travel to all parts of the country, Establishing Innovation and IPR museums, announcing a National IPR day and celebrating world IPR day etc.

The Draft Policy has a much more elaborate program for awareness raising and publicity and this is reflected throughout the document with almost every stakeholder and department being involved in the awareness programme.

MSMEs

The July 2014 IPR Strategy and the September 2012 IPR strategy both call for very similar policies with regard to MSMEs. Both lie emphasis on educating and incentivizing MSMEs to create new IP and formalize existing ones, on government intervention in setting up IP facilitation centers to bring about collaboration between the facilitation centers and the activities of existing industrial clusters, provision of access to databases on patent and non-patent literature to enable prior art research to IITs and NITs free of cost so that they can assist MSMEs or individuals with determining novelty in their inventions free of cost and other provide assistance with the patent application for a fee. While the September 2014 strategy called for identifying such institutions, the July 2014 Strategy does. Both of these strategies however, call for favorable tax treatments toward MSMEs for R&D Expenditures. Both also call for support mechanisms to offset IP costs and facilitate technology transfer through in-licensing from publicly funded research.

The Draft Policy discusses MSMEs in less detail, but still calls for creation of educational materials for MSMEs and highlighting special mechanisms for them to develop and protect IP, encouraging IP creation by establishing and strengthening IP facilitation centers especially in industrial and innovation university clusters, Introducing “first-time patent” fee waiver and support systems for MSMEs and reduce transaction costs in other ways (e.g. prior art search). It does not specifically mention favorable tax treatment to MSMEs or access to databases to determine novelty or provision of assistance with patent application or call for government intervention to better the IP facilitation centers.

Academia and Research Organisations

The July 2014 IPR Strategy and the September 2012 IPR strategy again recommend similar strategies when it comes to academia and research organisations. They both recommend some sort of education/awareness rising targeted at researchers and innovators regarding precautions to be exercised before patent application such as not selling inventions to company at early stages / not publishing research to public etc. they also recommend promoting university startups to motivate scientists to take up technology ventures. They both promote encouraging IITs and other similar institutions to undertake research on national issues like poverty, health, food, security, energy, information technology, bio-technology etc. They both recommend that IP creation be a key performance indicator for universities and institutions that participate in publicly sponsored/collaborative research and development and that this be gradually introduced in Tier 1 and Tier 2 institutions. And finally they both recommend that basic concepts of IP creation and respect for IP as part of formal education at school/college/university/vocational level including a course on IPR that is to be included in the curriculum of all technical programmes recognized by AICTE and in post grad/research programme in science and applied fields in universities.

The Draft Policy recommends all this and more. It recommends the formulation of institutional IP policy/strategy in higher education, research and technical institutions. Even though it recommends educating researchers and innovators regarding IP and precautions to be taken with respect to protecting their invention before publishing, it doesn’t go into detail or state that there is a need to protect against inventions being sold prematurely to companies. The Draft Policy also recommends that public funded research organisations and private sector are to be tapped to create campaigns highlighting the process of IPR creation and the value generated therefrom. It also recommends that IITs NITs etc. be encouraged to focus on research in areas such as nanotechnology, data analytics and ICT in addition to areas such as food security, healthcare and agriculture. Further in addition to creating educational material about IPR at school and university levels, the Draft Policy also calls for online and distance learning programs for all categories of users that focus on IPR. And for IP courses/modules to be introduced in all major training institutes such as judicial academies, National Academy of Administration, Police and Customs Academies, IIFT, Institute of Foreign Service Training, Forest Training Institutes etc., creating IPR cells and technology development and management units in such institutes. The Draft Policy also recommends that IPR be a compulsory subject in all legal educational institutions, NIDs NIFTs, agricultural universities and management institutes, and making IP teaching a part of accreditation mechanism in institutes under the purview of UGC, AICTE MCI as well as IITs and IIMs.

Large Organisations

The September 2012 IPR Strategy recommends that the government encourage large organisations to take a long term view of R&D and make research investments to create strong self-reliant tech portfolio and also acquire the scale to build strategic global positions, it recommends that the government encourage these organisations to share their expertise and resources for national benefit through PPPs, development of high technology base requires strategic relationships with overseas players, it recommends that it be made mandatory for MNCs to align with innovation strategy and the National Innovation systems and that the MNCs be encouraged by the state to leverage their standing and reach to ensure inflow of best practices and investments.it also recommends sops and preferential treatment in public contracts to large Indian organisations with a strong culture of IP creation. And that these organisations be encouraged to tap open innovation platforms and tie ups with academia. The July 2014 IPR Strategy recommends more or less the same strategies with regard to large organisations.

The Draft Policy recommends that public funded research organisations and private sector be encouraged to create campaigns highlighting the process of IPR creation and its value, that MNCs and large organisations develop IPR programs for their employees, that government encourage large organisations to create, protect and utilize IP in India and that the government create an industry-academia interface for encouraging cross-fertilization of ideas and IPR driven research and innovation in jointly identified areas. It makes no mention of requiring large organisations to align with the National IPR Policy, to ensure best practices but also doesn’t particularly mention tax cuts or other sops to encourage large organisations with a strong IP culture. The Draft Policy makes no mention at all of open innovation platforms. In large parts the Draft Policy is vague and lacks specifics with regard to strategies toward large organisations.

Startups and Individuals

The September 2012 IPR Strategy and the July 2014 IPR Strategy both make separate recommendations aimed at startups and individuals. They both recommend that information on the delivery mechanism for support services including things like venture capital funding should be made expedient and that identified public institutions should offer end to end support for creation, protection and commercialization of IP. The September 2012 Strategy also recommends that procedural mechanisms adopted for giving financial support for patent filing should be made smoother and that the assistance provided should be improved. The Draft Policy does not include any specific recommendations with regard to start ups or individuals apart from involving them in the publicity/awareness campaigns. In this measure the Draft Policy seems to fall short.

Strengthening IP Protection/ Creating New IP Regimes

The September 2012 IPR strategy generally called for improvement in institutions that grant IPRs and in institutions that are responsible for its enforcement and expansion of rights to include new IPRs.

The July 2014 IPR Strategy had a significant advance to this and recommended periodic review and streamlining procedures and process and guidelines for search, grant examination, maintenance and registration of IPRs in consultation with relevant stakeholders and benchmarked with best practices. It also recommended that full benefit be taken of global protection systems of WIPO, Patent Cooperation Treaty, Madrid System for International Registration of Marks etc. and that consequent upon amendment in 2012 of the Copyright Act, 1957, consideration be given to acceding to the Marrakesh Treaty for the blind, that avenues for international cooperation in IPR be studied. And finally it recommended that with respect to traditional knowledge and grant of patents in other countries, the Nagoya protocol is a step in the right direction and while the Patents Act, 1970, Biological Diversity Act, 2002 and the Plant Variety Protection and Farmers Rights Act, 2001 address the issue, a sui generis system of protection to check misappropriation is required at the international level.

The Draft Policy generally recommends that there be a review of existing IP laws to update and improve them and remove any inconsistencies, a review of IP related rules and procedures etc. to ensure clarity, simplification, streamlining, transparency and time bound process in administration and enforcement of IP rights. The Draft Policy also recommends that the government actively engage in negotiating international treaties and agreements in consultation with stakeholders, examine accession to some multilateral treaties that are in the countries interest and become a signatory to those treaty that India has defacto implemented so that India can participate in their decision making process. The central problem here is of course that what is in the countries interest may be open to debate, the Draft Policy does not at any point for example indicate whether or not the Government would consider taking on TRIPS plus obligations, the Draft Policy does not clarify what the Governments general stance on such issues would be.

The Draft Policy further recommends that important areas of study and research for future policy development be identified, some examples provided are: a) Interplay between IP laws and other laws to remove ambiguities or inconsistencies, b) Interface between IP and competition law and policy, c) Protection of undisclosed information not extending to data exclusivity, d) Guidelines for authorities whose respective jurisdictions impact the administration or enforcement of IPRs such as patents and bio-diversity, e) Exceptions and limitations and f) Exhaustion of IP rights. A prominent concern here would be data exclusivity, while the policy uses vague language and only wants these issues to be studied, Data exclusivity among others are demands made by the EU and others in Free Trade Agreements that go beyond our obligation under TRIPS and could harm the public interest.

Establishing Cost Effective, Efficient and Service Oriented IP Administrative Infrastructure

The July 2014 IPR Strategy recommends that IPOs be restructured to aim for ISO 9002 model to increase efficiency, quality and cost effectiveness; that after a review of the need of human resources to enable IPOs to discharged workload efficiently the required amount of manpower be employed; that recruitment training and career development of officials has to be reviewed to recruit and retain best personnel in the IPO; that the possibility of providing advisory services and value added products be studied; and recommends that there should be cooperation with IPOs in other countries in the area of capacity building, human resource development and awareness.

The Draft Policy recommends that IPOs be restructured, upgraded and be granted greater responsibility and autonomy taking into account the rapid growth and diversity of IP users and services, it also recommends an increase in manpower according to findings after a review to ensure speedy liquidation of backlog, requirements of global protection systems and productivity parameters. And that the process of recruitment training, cadre structure and career development of officials be studied and reviewed to retain the best talent to enhance efficiency and productivity. The Draft Policy also recommends that the government collaborate with R&D institutions universities, funding agencies, chambers of industry and commerce in providing advisory services which will improve IP creation and management and utilization, promote cooperation with IP offices in other countries in areas of capacity building, HRD, training, access to databases, best practices in search and examinations, use of ICT and user oriented services, enhance international and bilateral cooperation and post IP attaches in select countries to follow IP developments and advice on IP related matters.

Office of CGPDTM

The September 2012 IPR Strategy recommended that Grant/registration procedure to be quickened through recruitment and increasing human resources, that the functioning of IPOs be improved by measures such as: complete digitization of IP records and uploading for public view to improve transparency, communication with applicant/agents to be improved to bring in transparency meticulousness, database to be made searchable so that researchers can conduct effective searches to identify state of the art technology, electronic filing of applications and subsequent examination through electronic mode to be mandatory, Increase in filing fee with specific discounts for identified sectors such as MSEs.

The 2012 IPR Strategy observed that the quality of examination of IP applications needs to be improved and suggested reassessment of procedures followed in IPO to reduce timelines toward statutory actions.

The July 2014 IPR Strategy recommended that the grant and registration procedure be quickened through recruitment and increasing human resources, and that there be regular meetings between the CGPDTM and the National Biodiversity Authority to resolve issues that arise from implementing guidelines about grant of patents on inventions using genetic resources and TK.

The Draft Policy recommended that the government establish close cooperation between IPOs and create a common web portal for ease of access to statutes regulations, guidelines, databases and for better coordination.

The Draft policy also recommended that the CGPDTM examine joining centralized access for search and examination (CASE) and WIPO digital access services (DAS), that the CGPDTM fix and adhere to timelines for grant of registration and disposal of opposition matters, create a service oriented culture, include appointing public relations officers who would make the IP office user friendly, that the CGPDTM conduct periodic audits of processes being adopted in IP administration for efficient grant and management of IP rights.

The Draft Policy also recommended that the CGPDTM implement quality standards at all stages of operations with the aim to obtain ISO certification and adopt best practices with respect to filing and docketing of documents, maintenance of records and digitizing the same including document workflow and tracking systems, and take steps to expedite digitization of the design office and enable online search and filing in the design office

The Draft Policy also recommended that the CGPDTM ensure that public records in IP office are easily available and accessible both online and offline and establish effective coordination between its office and NBA to enable harmonious implementation of guidelines relating to grant of patents on inventions using genetic resources and associated TK, that the CGPDTM remove disparities among different branches of the trademark registries and patent offices and adopt standardized procedures in examination/grant of applications including maintenance of rights, implement centralized priority field wise on a national basis and provide value added services in form of helpdesks, awareness and training materials, patent mapping, licensing and technology transfer support services, ease of remote access of the international patent search mechanisms and other IP related databases. And that the CGPDTM implement incentives for MSMEs to encourage filing by the said sector like waiver of official fee, support of examiners and pro-bono legal help for the first time filing.

Administrative Departments of Other IP Institutions

The September 2012 IPR Strategy and the July 2014 IPR Strategy both generally recommended that the administrative departments of other IP institutions also take up similar actions as the CGPDTM.

The Draft Policy however, goes into this with some detail. The Draft Policy recommends that with regard to the office of Registrar of Copyright, the Government take measures to expedite modernization of the office both in terms of office space and infrastructure and in terms of introducing e filing facility including e- applications, electronic processing and issuance of final extracts of registrations etc. It also recommends that all copyright records be digitized and that the government introduce an online search facility and provide necessary manpower and adequate training facilities to personnel in the copyright office. It further recommends that the government take urgent measures for the effective management and administration of copyright societies to ensure transparency and efficiency in the collection and disbursement of royalties in the best interests of rights holders and that the government provide user friendly services in the form of help desks, awareness raising and training materials.

The Draft Policy recommends that the registrar of Semiconductor Integrated Circuits Layout Design study the reasons for lack of interest in filings under the Semiconductor Integrated Circuits Layout Design Act, 2000 and suggest appropriate measures. The Draft Policy also recommends that the government formalize a consultation and coordination mechanism between the National Biodiversity Authority and the IPOs with a view to harmonious implementation of guidelines for grant of IP rights and access to biological resources and associated traditional knowledge and benefit sharing.

Institutional Capacity Building

The July 2014 IPR Strategy recommended that the RGNIIPM act as a think tank, carry out research on IP matters, formulate and deliver training courses and develop teaching curricular for academic institutions, develop linkages with other national and international institutions involved in similar fields and develop joint training programs and conduct joint research studies on IPRs including programs for plant variety protection and issues related to traditional knowledge and bio resources. And establish IP institutes with state governments for raising awareness and training and teaching.

It also recommended that the MHRD IPR chairs provide support to all ministries and departments in policy making law making and negotiations under bilateral or multilateral frameworks. The Strategy also recommended that institutes responsible for training customs, police, judiciary, forest research institutes have IP training as an essential part of the curriculum, that National level institutes associated with creation enforcement or commercialization should be encouraged to incorporate IP training and capacity building in their operations and finally that industry, business, IP professional bodies, inventers associations, venture capital funds etc. should be encouraged to develop IP training modules for their members as well.

The Draft Policy recommends all this and more and suggests that RGNIIPM Nagpur conduct training for IP administrators , managers in the industry, academicians, R&D institutions, IP professionals, inventors, civil society apart from training the trainers, developing training modules and links with other similar entities at the international level and set up state level institutions. Further it recommended that the MHRD IPR Chairs provide high quality teaching and research, develop teaching capacity and curricula and evaluate their work on performance based criteria.

The Draft Policy also recommends that the CGPDTM provide continuous training to the IPO staff and update them with developments in procedures, substantive laws and technologies along with the RGNIIPM.

The Draft policy also recommends that the government establish national level institutes of excellence to provide leadership in IP, conduct policy and empirical research, examine trends and developments in the field of IP at the national and international level, support the government in strategic development of IP systems and international negotiations, establish links with similar institutes and experts in other countries for exchange of ideas, information and best practices and suggest approaches and guidelines for inter-disciplinary human capital development. And that the government facilitate industry associations, inventors and creators associations and IP support institutions to raise awareness of IP issues for teaching, training and skill building.

Strengthening Institutional Set-up to Improve Enforcement of IPRs and Create Respect for IPRs

The September 2012 IPR Strategy and the July 2014 IPR Strategy both recommend that the government encourage small and niche businesses to protect their products through trademarks, the September 2012 Strategy also adds that these businesses should be encouraged to seek international protection to participate in global competition and contribute to international trade activities. The Draft Policy recommends increasing awareness of international mechanisms and treaties (e.g. PCT, Madrid and The Hague) to encourage creation and protection of IP in global markets.

The 2012 IPR Strategy and the July 2014 Strategy go into further detail, they recommend that the service sector be encouraged to adopt strategies for registration of trademarks to ensure competitiveness and to leverage the goodwill of strong indigenous brands that have acquired traction in international markets. They also recommend that SME clusters be encouraged to develop a comprehensive database of their products to ensure that a parent isn’t issued on unprotected innovations.

As far as GI is concerned, both the July 2014 and the September 2012 IPR Strategy recommend that central public bodies such as the development commissioner for handicrafts and handlooms etc. partner with the suitable state, district and Panchayat level entities to educate communities on the benefits of registering GIs, to put in place examination protocols to ensure GI owners comply with quality standards. They further recommend that these bodies develop a roadmap to build brands for better market presence for products registered as GIs and coordinate with relevant state authority on enforcement and provide periodical updates to enforcement taskforce on issues that need redressal.

The Draft Policy only recommends that the government encourage registration of GI through support institutions and assist GI producers to define and maintain acceptable quality standards and providing better marketability.

As far as designs are concerned, both the July 2014 IPR Strategy and the September 2012 IPR Strategy recommend that the government encourage a move from informal to formal practices of protecting designs by administrative intervention, while the Draft Policy recommends the encouraging of creation of design related IP rights by identifying, nurturing, and promoting aspects of innovation protectable under the design law and educating designers to utilize and benefit from their designs , involve the NIDs , NIFTs and other institutions in sensitization campaigns.

With regard to plant varieties, both the 2014 and 2012 IPR Strategies recommend awareness generation programmes to encourage filings of new extant and essentially derived varieties. While the 2012 IPR Strategy further stated that there was a need to evaluate whether restructuring institutions/merging all IP issues under one umbrella would improve efficiency and a need for centrally managed National IP Enforcement Taskforce that could :a) Maintain database on criminal enforcement measures instituted for trademark infringement and copyright piracy, civil cases filed to be collated also, b) Mandated to deliberate upon operational issues of enforcement with the concerned Central and State agencies, c) Conduct periodic industry wise infringement surveys d) Coordinate capacity building programmes for the central and state enforcing agencies.

The Draft Policy recommends that the protection of plant varieties and farmers rights authority should: a) Support increased registration of new, extant and essential derived varieties and streamline procedures, b) Facilitate development of seeds and their commercialization by farmers., c) Establish links with agriculture universities, research institutions, technology development and management centers and Krishi Vikas Kendras, d) Coordinate with other IPOs for training sharing expertise and adopting best practices, e) Augment awareness building, training and teaching programs and modernize office infrastructure and use of ICT.

With regard to Traditional Knowledge, the Draft Policy also recommends that the government create a sui generis system for protecting TK which will safeguard misappropriation of traditional knowledge as well as promote further research and development in products and services based on traditional knowledge.

Creation of New IP Rights to Address Gaps

The September 2012 IPR Strategy recommended protection of utility models, utility patents as they have Protection of utility model. Utility patents / models proposed as they have less stringent patentability criteria, faster examination/grant, shorter term of protection as a cost effective way to incentivize incremental innovation and encourage creation of IPRs, with sector specific exemptions to ensure TRIPS compliance. And included a proposal for a predictable recognizable trade secret regime to improve investor confidence and facilitate flow of information.

The Draft Policy also recommended that the government facilitate creation and protection of small inventions through a new law on utility models, enact laws to address national needs to fill gaps in protective regimes of IPRs such as utility models and trade secrets to keep up with advancements in science and technology to strengthen IP and innovation ecosystem from example IP created from public funded research, to protect and promote traditional knowledge. As pointed out in the CIS Submission to the IPR Think Tank, the creation of utility models should by no means be assumed to be completely uncontroversial, many countries that had this system have now given it up, further this could lead to granting of frivolous patents and thereby harming development.

Facilitating Commercialization of IPRs

Both the July 2014 and the September 2012 IPR Strategies have similar recommendations with respect to facilitating commercialization of IPRs; they both recommend policy interventions to create strong and transparent national strategies to encourage: licensing of rights to another entity for commercialization, cross licensing agreements, leveraging the intellectual assets for future R&D growth and improved services, sale merger acquisition of either IPR or entire business distinguished and appropriately valued by their intellectual capital, patent pooling, reinforcing stability of IP license contracts.

And they both recommend that National research laboratories and academia and public institutions to stimulate commercialization of research resultants: intervention in building strengthening institutional capacity of research led organisations to enable utilization of IP.

The 2012 IPR Strategy also recommends national level policy changes to encourage development of indigenous technologies, that government fund (grants/loans) demonstration projects of new technologies that require large investment, suitable tax breaks for indigenously developed and commercialized products till attainment of some maturity levels, that qualification requirements during tendering process to accord acceptance to indigenously developed products where heavy development investments have been incurred, strengthening the indigenous R&D ecosystem policy frameworks should provide for flexibility in outsourcing technical expertise in niche areas and type testing of prototypes. Further it visualizes the emergence of open innovation systems and the role of voluntary SSOs.

The Draft Policy does all this and more. It recommends that the government establish an IP Promotion and Development Council (IPPDC) as a nodal organization for promotion and commercialization of IPR, the IPPDC is supposed to, among other things, promote licensing and technology transfer of IP, devise suitable contractual and licensing guidelines to enable commercialization of IP, promoting patent pooling and cross licensing to create IP based products and services and also establishing links with similar organisations for exchange of information and ideas as also to develop promotional educational products and services for promotion and commercialization, to facilitate access to databases on Indian IP and global databases of creators/innovators, market analysts, funding agencies, IP intermediaries, to study and facilitate implementation of best practices for promotion and commercialization of IP within the country and outside. IPPDC to establish IP Promotion and Development Units (IPPDU) in various regions The IPPDC is also tasked with identifying opportunities for marketing Indian IPR based products and services to a global audience.

The government is also recommended to provide statutory incentives like tax benefits linked to IP creation for the entire value chain from IP creation to commercialization, to support financial aspects of IP commercialization by: a)Enabling valuation of IP rights by application of appropriate methodologies including for better accounting as intangible assets, b) Facilitating investments in IP driven industries and services through the proposed IP exchange for bringing investors/funding agencies and IP owners /users together, c) Providing financial support to less empowered groups of IP owners or creators like farmers weavers, artisans, craftsmen etc. through financial institutions like rural banks or cooperative banks offering IP friendly loans, d) Taking stock of all IP funding by the government and suggesting measures to consolidate the same to the extent possible generating scale in funding and avoiding duplication, enhancing the visibility of IP and innovation related funds so that utilization is increased, performance based evaluation for continued funding, c) Regulating IP created through publicly funded research by a suitable law.

The Draft policy also recommends that the government promote going to market activities by: a) Creating mechanisms to help MSMEs and research institutions to validate scale and pilot through market testing, b) Providing seed funding for market activities such as participating in trade fairs, industry standards bodies and other forums, c) Providing guidance and support to IPR owners about commercial opportunities of e commerce through internet and mobile platforms. And that the government study the role of IPRs in setting standards in various areas of technology, actively participate in standards setting processes at national, international and industry SSO levels and to encourage the development of global standards that are influenced by technologies and IP generated in India

Facilitating and Encouraging Commercialization of IP Assets

The July 2014 IPR Strategy had specific recommendations to make in this regard. It recommended that the government forge links between creators and inventors , universities, industry and financial institutions for commercialization, that the government establish an IP exchange to stimulate trading of IP and creating markets for IP assets, to facilitate MSMEs to identify protect and commercialize their IP, creations through facilitation centers by providing package of services, to encourage technologies acquired under the patent pool of the Technology Acquisition and Development Fund (TADF) and licensed as per provision in manufacturing policy.

The Draft IP policy recommends all of these, tasking the IPPDC with most of these tasks and also recommends that the government improve awareness of the value of copyright for creators, the importance of their economic and moral rights and the rationalization of payment mechanisms for them, and to support initiative taken by public sector research entities to commercialize their IPRs for commercialization and lastly to develop skills among scientists to access , interpret and analyze the techno-legal and business information contained in IP documents.

Enforcement and Adjudication

The Draft Policy makes very specific recommendations with regard to enforcement and adjudication, apart from suggestions that go toward creating awareness and sensitizing the public, students, industry and inventors about IP, the policy also recommends that the government establish a Multi-Agency Task Force for coordination between various agencies and providing direction and guidance on enforcement measures, creating a nationwide database of known IP offenders, coordination and sharing intelligence and best practices at the national and international levels, studying the extent of IP violations in various sectors, examining the implications of jurisdictional difficulties among enforcement authorities and introducing appropriate technology based solutions for curbing digital piracy.

The government is also tasked with working with state governments in establishing IP cells and including IP crimes under their special laws, increasing manpower and infrastructure of the enforcement agencies and building capacity to check proliferation of digital crimes, providing regular training for officials in enforcement agencies, encouraging application of tech-based solutions in enforcement of IP rights, initiating fact finding studies in collaboration with stakeholders concerned to assess the extent of counterfeiting and piracy and the reasons behind it as well as the measures to combat it and taking up the issue of Indian works and products being pirated and counterfeited abroad with countries concerned.

On improving IP dispute resolution, the Draft Policy recommends the designation of specialized patent bench in the High Courts of Bombay, Calcutta, Delhi and Madras, the designation of one IP court at the district level depending on the number of IP cases filed, working with judicial academies to conduct regular workshops for judges, promoting ADRs in the resolution of IP cases by strengthening mediation and conciliation centers and developing ADR capabilities, creating regional benches of the IPAB in all five regions where IPOs are located, increasing the powers of IPAB in its administration including autonomy in financial matters and selection of technical and judicial members and providing necessary infrastructure for its effective and efficient funding and also taking urgent steps to make the copyright board function effectively and efficiently and provide adequate infrastructure and manpower to it.

Work Plans

In addition to all of the above, the July 2014 IPR Strategy also recommends a work plan which includes commissioning a study on schemes and programs financed by the government including under the PP mode for innovation, signing and acceding to the Marrakesh Treaty, the NICE agreement on international classification of goods and services for the purpose of registration of trademarks, assessing the Hague Agreement regarding registration of industrial design vis a vis India’s Designs Act with a view to accede to the treaty, assessing the possibility of accepting facilitation centers run by universities/academic institutions/departments of science and technology as receiving offices for patent applications where there are no patent offices.

The Draft IP Policy also makes recommendations to integrate IP with other government Initiatives like Make in India and Digital India, and plans to integrate into these government initiatives the different schemes of the Department of Electronics, and IT for IP promotion and global protection. It further recommends the establishing of a high-level body in the government to co-ordinate, guide and oversee the implementation and development of IP in India in accordance with the National IP Policy. The body will be responsible for bringing cohesion and coordination among different ministries and departments with regard to how they deal with IP matters, laying down priorities for IP development and preparing plans of action for time bound implementation of national and sector specific IP policies, strategies and programs, monitoring the progress and implementation of the National IP policy linked with performance indicators, targeted results and deliverables, annual evaluation of the overall working of the policy and a major review of the policy ever three years.

Concluding Observations

The National IPR Strategies of 2012 and 2014 contain more or less similar recommendations, the key differences being that the 2014 IPR Strategy emphasizes the need to address IP issues in international fora and in establishing cost effective, efficient and service oriented IP administrative infrastructure. It does not, in contrast to the 2012 IPR Strategy, recommend the introduction of laws on utility models or protection of trade secrets, policy changes to encourage development of indigenous technologies, but it does more specifically address facilitating commercialization of IP.

The Draft Policy is an important advance over the National IPR Strategy of July 2014 and September 2012. It places makes important new recommendations with regards to publicity and awareness raising, creation of legal regime with regard to traditional knowledge, utility patents and trade secrets, enforcement and adjudication- including the setting up of new courts, creation of the IPPDC and of a new high-level government body to oversee the implementation of the policy. It does however miss out on the chance to help start-ups, MSMEs and individuals in contrast to recommendations of the previous IPR Strategies. And in context of its avowed aim to turn knowledge owned into knowledge shared does little to encourage open access and focuses heavily on IP creation assuming that increase in IP would promote innovation and thereby lead to national development.

Table - Comparison of National IPR Strategy September 2012, National IPR Strategy July 2014 And Draft National IP Policy, December 2014

Sectoral Innovation Council, National IPR Strategy, September 2012, Available at: http://dipp.nic.in/english/Discuss_paper/draftNational_IPR_Strategy_26Sep2012.pdf (Hereafter : National IPR Strategy, September 2012)

National IPR Strategy, July 2014, Available at: http://dipp.nic.in/English/Schemes/Intellectual_Property_Rights/national_IPR_Strategy_21July2014.pdf (Hereafter: National IPR Policy, July 2014)

IPR Think Tank, Draft National IP Policy, December 2014, Available at: http://dipp.nic.in/English/Schemes/Intellectual_Property_Rights/IPR_Policy_24December2014.pdf (Here after: Draft Policy)

National IPR Strategy, July 2014, p.5

Draft Policy, p.5

[5] National IPR Strategy, July 2014, p.5

Draft Policy, p.5

National IPR Strategy, September 2012, pp.11 and Draft Policy, December 2014, pp.5

National IPR Strategy, September 2012, pp.11

National IPR Strategy, July 2014, pp.5-6,

Draft Policy, p.6,

Draft Policy, p.8.

Draft Policy, p.11.

Draft Policy, p.13.

Draft Policy, p.17.

Draft Policy, p.20.

Draft Policy, p.23.

National IPR Strategy, September 2012, pp. 7, 11, 12, 19 20

National IPR Strategy, September 2012, pp. 21

Draft Policy, p.6-8

National IPR Strategy, September 2012, pp.6-7 , 12-13 and National IPR Strategy, July 2014 , pp.6-8

Draft Policy, p.5, 9-10, 15,18-19

National IPR Strategy, September 2012, pp. 7, 13-14 and National IPR Strategy, July 2014 , pp.8-9.

Draft Policy, p.8,11,24

National IPR Strategy, September 2012, pp.6, 14-15 and National IPR Strategy, July 2014 , pp.9-10

Draft Policy, p.7-8, 10

National IPR Strategy, September 2012, pp. 7, 15 and National IPR Strategy, July 2014 , pp.10

National IPR Strategy, September 2012, pp. 7, 15

National IPR Strategy, September 2012, pp. 15

National IPR Strategy, July 2014 , pp.10-12

Draft Policy, p.12-13,

Draft Policy, p.13

Swaraj Paul Barooah, Data Exclusivity back on the table for India, SpicyIP, March 27, 2015, Available at: http://spicyip.com/2015/03/data-exclusivity-back-on-the-table-for-india.html

National IPR Strategy, July 2014 , pp.11-12

Draft Policy, p.14

National IPR Strategy, September 2012, pp. 15-16

National IPR Strategy, September 2012, pp. 16

National IPR Strategy, July 2014 , pp. 12-14

Draft Policy, p. 15-16

Draft Policy,p. 16

Draft Policy, p.15

Draft Policy, p. 15-16

National IPR Strategy, September 2012, pp.16 and National IPR Strategy, July 2014 , pp.14

Draft Policy, p.16

Draft Policy, p.17

National IPR Strategy, July 2014 , pp.14-15

National IPR Strategy, July 2014 , pp.15

Draft Policy, p.24

Draft Policy, p.23

Draft Policy, p.24

National IPR Strategy, September 2012, pp.18 and National IPR Strategy, July 2014 , pp.15-16

Draft Policy, p.11

National IPR Strategy, September 2012, pp.17-18 and National IPR Strategy, July 2014 , pp.16-17

National IPR Strategy, September 2012, pp.19 and National IPR Strategy, July 2014 , pp.16

Draft Policy, p. 11

National IPR Strategy, September 2012, pp.19-20 and National IPR Strategy, July 2014 , pp. 17-18

Draft Policy, p.11

National IPR Strategy, September 2012, pp. 20 and National IPR Strategy, July 2014 , pp.18

National IPR Strategy, September 2012, pp. 18

Draft Policy, p.11

Draft Policy, p. 12

National IPR Strategy, September 2012, pp. 20-22

Draft Policy, p.12

See, CIS Comments to the First Draft of the National IP Policy, Available at: http://cis-india.org/a2k/blogs/national-ipr-policy-series-cis-comments-to-the-first-draft-of-the-national-ip-policy

National IPR Strategy, September 2012, pp. 22 and National IPR Strategy, July 2014 , pp. 18-19

National IPR Strategy, September 2012, pp.22 and National IPR Strategy, July 2014 , pp.18

National IPR Strategy, September 2012, pp.23

Draft Policy, p. 18-19

Draft Policy, p.19

Draft Policy, p.10,19

Draft Policy, p.19-20

Draft Policy, p. 12-13

National IPR Strategy, July 2014 , pp.19

Draft Policy, pp. 10, 18-19.

Draft Policy, pp. 20-22

Draft Policy, p. 22

Draft Policy, p.22-23

National IPR Strategy, July 2014 , pp.22

Draft Policy, pp. 25-26.

Draft Policy, p.26

Draft Policy, p.27-28

For more details visit https://cis-india.org/a2k/blogs/comparison-of-national-ipr-strategy-september-2012-national-ipr-strategy-july-2014-and-draft-national-ip-policy-december-2015

Comments to the Ministry on WIPO Broadcast Treaty (March 2011)

pranesh — 2012-12-14T10:29:20Z

As a follow up to a stakeholder meeting called by the MHRD on the WIPO Broadcast Treaty, CIS provided written comments on the April 2007 Non-Paper of the WIPO Broadcast Treaty, emphasising the need for a signal-based approach to be taken on the Broadcast Treaty, and making it clear that India should continue to oppose the creation of new rights for webcasters.

On February 22, 2011, the Ministry of Human Resource Development held a meeting to decide on the Indian position on the WIPO Broadcast Treaty. The Ministry asked the participants at the meeting to send in written submissions on four matters. We sent in submissions on those four issues, as well as a few others.

Comments on the non-paper for the WIPO Broadcast Treaty by the Centre for Internet and Society

On February 23, 2011, the Ministry of HRD had asked for comments on four matters:

Article 3 of the Non-paper which was circulated earlier
Term of protection for signal
Nature of limitations and exceptions
Protection of signal and retransmission

We have made submissions on those and a few other matters as well. Unless noted otherwise, all comments made in this note pertain to the final non-paper (April 2007) and not the draft non-paper (March 2007).

Article 3

Article 3 of the draft non-paper that was circulated (March 2007) for comments from country delegates stated:

3. Scope of Application

The provisions of this Treaty shall not provide any protection in respect of

(i) mere retransmissions;

(ii) any transmissions where the time of the transmission and the place of its reception may be individually chosen by members of the public (on-demand transmissions); or

(iii) any transmissions over computer networks (transmissions using the Internet

Protocol, “webcasting”, or “netcasting”).

A number of people present at the recent MHRD-organized meeting noted that “mere retransmissions” is a confusing term. In the revised non-paper (April 2007), it has been clarified that protection is not granted to third parties for merely retransmitting another’s signal (Art. 3(4)(i)).

3. Specific Scope and Object of Protection

(4) The provisions of this Treaty shall not provide any protection

(i) to retransmitting third parties in respect of their mere retransmissions by any means of broadcasts by broadcasting organizations;

(ii) to any person for transmissions where the time of the transmission and the place of its reception may be individually chosen by members of the public (on-demand transmissions); or

(iii) to any person for transmissions over computer networks

In addition, Art. 3(4)(iii) is currently ambiguous since it is not clear whether “retransmissions” are subsumed under the word transmission. By allowing for separate rights for retransmission over computer networks, the Treaty allows for the creation of two classes: traditional broadcasters who will have rights over retransmissions over computer networks, and all other persons who will have no rights over transmissions. Thus, if “retransmission” is not subsumed under the word “transmission”, it would be advisable to alter that clause to read “to any person for transmissions or retransmissions over computer networks”.

Lastly, Art. 3(4) should additional prevent protection for persons broadcasting materials for which they have not acquired copyright, or for broadcasting materials in the public domain.

Term of Protection of Signals

No term of protection should be provided. As was noted by the US government in its response to the draft non-paper, it is questionable “whether a 20-year term of protection is consistent with a signal-based approach”. The Brazilian delegation also states: “Article 13 should be deleted. A twenty-year term of protection is unnecessary. The agreed “signal-based” approach to the Treaty implies that the objected of protection is the signal, and therefore duration of protection must be linked with the ephemeral life of the signal itself.” Thus, a term is only needed if we stray away from a signal-based approach. As we do not wish to do so, there should be no term of protection.

Limitations and Exceptions

The limitations and exceptions (L&E) currently provided for allow for mirroring of copyright L&E limited by a Berne-like three-step test.

However, reasons for providing protection over broadcasting are not the same as those for copyright. For instance, a country may wish to make exceptions to signal protection for cases such as broadcast of a national sport, as India has done with the Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharati) Act.

This might well afoul of the three-step test proposed in Article 10(2). Furthermore, a country may wish to limit the application of broadcasters rights for national broadcasters (whose programming is paid for by taxpayers, and thus should be available to them), but may not be able to do so under the provisions of Article 10(2). Thus, Article 10(2) should be deleted, and Article 10(1) should be expanded to include issues of national interest and for free-to-air broadcast signals.

Protection of Signal and Retransmission

It should be a sine qua non condition of India’s that that this be a purely signal-based treaty with no fixation or post-fixation rights. Thus, it should restrict itself to protection of signals, and simultaneous retransmission.

As a result, no separate right to prevent unauthorized “decryption” should be granted, since signal-theft is already a crime. For instance, this provision would also cover decrypting an unauthorized retransmission without authorization from the retransmitter. This provides the unauthorized retransmitter rights, even though s/he has no right to retransmit. This leads to an absurd situation.

As stated by the Brazilian government:

“[Article 10 of the draft non-paper and Article 9 of the non-paper] is inconsistent with a “signal-based approach”. It creates unwarranted obstacles to technological development, to access to legitimate uses, flexibilities and exceptions and to access to the public domain. It does not focus on securing effective protection against an illicit act, but rather creates new exclusive rights so that they cover areas unrelated with the objective of the treaty, such as control by holder of industrial production of goods, the development and use of encryption technologies, and private uses. The prohibition of mere decryption of encrypted signals, without there having been unauthorized broadcasting activity, is abusive.”

Other comments

Article 7

Article 7 of the non-paper provides broadcasters rights post-fixation (“Broadcasting organizations shall enjoy the exclusive right of authorizing … the deferred transmission by any means to the public of their fixed broadcasts. ”). This is contrary to a signal-based approach. A signal-based approach would necessarily mean that it is only signal theft (which happens only via unauthorized simultaneous retransmission) that should be protected. Deferred transmission should implicate the rights of the owner of copyright, but not of the broadcasting organization.

Article 4

As suggested by the Brazilian government, Article 4(1) which proposes a non-prejudice clause should be amended to add the words “and access to the public domain” at its end. This is consistent with the WIPO Development Agenda.

Article 5

India should re-iterate its suggestion to add the following to the definition of “broadcast” under Art. 5(a): “‘broadcast’ shall not be understood as including transmission of such a set of signals over computer networks. ”

Further, the phrase “general public ” should be retained in Art.5 (as was present in the draft non-paper), and should not be made into “public”. The danger is that a limited public (say family members) could possibly be covered by the term “public”, while they will be excluded from “general public”, which in any case is the target audience of all broadcast.

For more details visit https://cis-india.org/a2k/blogs/wipo-broadcast-treaty-comments-march-2011

Comments on the Science, Technology and Innovation Policy (Draft)

snehashish — 2012-12-01T15:36:38Z

The Department of Science and Technology invited public comments on the Science, Technology and Innovation Policy (Draft). Accordingly, the Centre for Internet and Society has made the following comments on the draft policy document.

Department of Science and Technology,
Ministry of Science and Technology,
Government of India

Subject: Comments on the Science, Technology and Innovation Policy (Draft)

Dear Sir/Madam,

We at the Centre for Internet and Society commend the drafting of the Science, Technology and Innovation Policy 2013 (Draft). It is a well rounded policy which will pave the way for further informed policy decisions on innovation and research and development in the country.

Few of the notable and welcome policy statements are:

The Policy aims at ‘inclusive innovation’ and takes into consideration the “need to ensure access, availability and affordability of solutions to as large a population as possible”. It also aims at building a conducive environment for research and development by modifying the IPR policy to include marching rights with respect to social goods funded by public. This in line with the aim of the policy to provide access new technologies. The use of government funding in commercially viable research would not only assure better access to medicine and other technological innovations but also ensure knowledge transfer.

The policy decision to "foster data sharing and access" is most welcome and will act as a catalyst for further research and development through open and collaborative research and development.

Policy also lays emphasis on open source discoveries for "public and social good" and it is indeed a pleasure to note that the Policy wishes to build knowledge commons by collaborative generation of IPR. This will definitely go a long way in encouraging further innovation in the country.

It is also appreciated that the policy will aim at "increasing accessibility, availability and affordability of innovations" and will establish a fund for innovation in this direction.

The Policy also states that the "people" and "decision makers" should be made aware of the implications of emerging technologies, including their ethical, social and economic dimensions. Implementation of such policy is a necessity and will enable the government to make informed policy decisions in the future.

Suggestion:

It is submitted that the policy document should take into account that in order ensure ‘inclusive innovation’ and accessibility, the policy should specifically include mandates to encourage and foster innovation in technology related to accessibility tools for persons with disabilities.www.dst.gov.in/sti-policy.pdf

For more details visit https://cis-india.org/a2k/blogs/comments-on-science-technology-and-innovation-policy-draft

Comments on the Protection of Broadcasting Organizations: Technical Background Paper Prepared by the WIPO Secretariat

Nehaa Chaudhari and Amulya Purushothama — 2015-09-03T01:47:59Z

Technical Background Paper prepared by the WIPO Secretariat in relation to the Broadcast Treaty (“Technical Background Paper) provides information on new and emerging technologies and on legal developments in the broadcasting sector. This Technical Background Paper will be discussed at the upcoming 30th session of the SCCR in Geneva on 29th June- 3rd July 2015. The Ministry of Information and Broadcasting, Government of India had called for comments on the same. This is a submission made by Nehaa Chaudhari and Amulya Purushothama on behalf of the Centre for Internet and Society in this regard.

We thank Amulya Purushothama for her assistance with research and other assistance on this subject. While Amulya was acknowledged as the co author in the actual submission itself, the blurb didn't say so and this has now been changed. Click to view the PDF.

I. Preliminary

1. This submission presents preliminary comments by the Centre for Internet and Society ("CIS") on the Technical Background Paper prepared by the WIPO Secretariat in relation to the Proposed WIPO Treaty on the Protection of Broadcasting Organisations ("Broadcast Treaty").

2. This submission is based on the Technical Background Paper Submitted By the Secretariat at the Seventh Session of the Standing Committee on Copyright and Related Rights ("SCCR") held at Geneva from May 13 to 17 2002 (SCCR/7/8) dated April 4, 2002.[1]

3. CIS commends the Ministry of Information and Broadcasting, Government of India for its efforts at seeking inputs from various stakeholders prior to framing India's response to this document. CIS is thankful for the opportunity to provide this detailed submission.

II. Overview

Governing Principles

4. CIS is a non-governmental organization engaged in research and policy work in the areas of, inter alia, access to knowledge and openness. [2] CIS values the fundamental principles of justice, equality, freedom and economic development. This detailed submission is consistent with CIS' commitment to these values, the safeguarding of general public interest and the protection of India's National Interest at the International Level. Accordingly, the comments in this submission aim to further these principles and are limited to those sections of the document in question that most directly have an impact on these values.

Adoption of a Signals-Based Approach

5. CIS has consistently recommended the adoption of a Broadcast Treaty consistent with the signals based approach, [3] in consonance with the 2007 mandate of the WIPO General Assembly, binding on the SCCR. In this submission as well, we re-iterate our commitment to the same.

III. Detailed Comments

On the 'Introduction'

6. The Technical Background Paper was prepared twelve years ago, in 2002. Accordingly, more recent legal and technological developments, national approaches and industry practices would need to be addressed. Accordingly, it is submitted that at SCCR 30, the Indian delegation request that the SCCR be presented with an updated study. This would be in line with the stated aims of the Technical Background Paper itself, i.e., to focus on technological changes that affect the activities of broadcasting organizations.[4] Further CIS believes that the current Technical Background Paper reads as a justification for the Broadcast Treaty as opposed to a neutral study. It is submitted that an updated version of this paper with including inter alia, some of the safeguards discussed later in this submission might address this imbalance.

7. The Technical Background Paper excludes from its scope the rationale for protection as well as the scope of protection for broadcasters. [5] CIS is of the opinion that this limits the Technical Background Paper - issues such as the justification/ need for the treaty, the scope of protection to be offered and the kind of protection, go to the very heart of the issue and must be discussed in the Technical Background Paper if it is to inform a meaningful debate on the subject.

8. CIS further believes that the very need for a Broadcast Treaty has not been clearly established in the Technical Background Paper. As we have indicated earlier,[6] investments made by broadcasters in broadcasting infrastructure, licensing of copyrighted works and creation of copyrighted works are already protected under existing legal systems. While the licensing and creation of copyrighted works are protected under copyright law, the investment in broadcasting infrastructure might be construed to be a "broadcast right", which is enshrined [7] in the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, 1961.[8] A detailed discussion on the existing legal framework is available in the next section of this submission.

On 'Broadcasting Organizations and the Rome Convention'

The Legal Framework Applicable to Broadcasting

9. This part of the Technical Background Paper discusses in detail the various provisions of the Rome Convention. However, it is noted that there is a very limited discussion of legal developments that have happened since the Rome Convention.[9]

10. CIS believes that for a complete understanding of the legal framework applicable to broadcasting, it is important that the Technical Background Paper document the evolution of international law on the subject since the Rome Convention. This is particularly critical when the need for this treaty itself is disputed.[10] In this regard CIS believes that the Technical Background Paper is inadequate and must be revised and updated to include other legal developments[11] including but not limited to the WIPO Copyright Treaty, 1996 ("WCT"), WIPO Performances and Phonograms Treaty, 1996 ("WPPT"), the Convention Relating to the Distribution of Programme -Carrying Signals Transmitted by Satellite, 1974, ("Brussels Convention") and the Beijing Treaty on Audio-Visual Performances, 2012 ("Beijing Treaty").

11. CIS further believes that for a complete understanding of the legal framework applicable to broadcasting, it is imperative for the Technical Background Paper to document national level legal developments in all member countries on this issue. Precedent for this exercise exists in the form of the study conducted in related to the Proposed International Legal Instrument on Limitations and Exceptions for Libraries and Archives. [12] In this regard CIS calls for a comprehensive study on legislation surrounding broadcasters rights - both as related rights and as a separate right - and on the nature and extent of protection offered to broadcasters under the national legislations of all member states.

12. CIS believes that for a complete understanding of the legal framework applicable to broadcasting, it is important for the Technical Background Paper to further document any other widely followed industry practices and contractual arrangements that might have developed in the field. In this regard CIS believes that the present Background Paper should be edited and the above mentioned information be made available to the SCCR.

Signal, Content and Program

13. This part of the Technical Background Paper documents how a signal is defined and how it is different from the content carried on the signal. Further this part also states that it has been generally indicated that protections should be granted to broadcasting organisations for their signals independent of the copyright and related rights protection of the content.[13] In this regard CIS submits that definition of a signal is well settled under various international legal instruments, which have adopted uniform terminology that excludes content underlying the signal.[14] It is submitted that the Technical Background Paper must be edited to include all of this information to allow for informed debate on the matter. It is further submitted that technologically neutral terminology must be avoided and only terminology based on the "signals based approach" decided at the 2007 WIPO General Assembly must be adopted. [15] It is lastly submitted that any deviation from the signals based approach would lead to a Para-copyright regime for broadcaster's rights which would substantially harm public interest and increase costs to access to knowledge. [16]

14. This part of the Technical Background Paper also avers "during the discussions in the Standing Committee, it has generally been indicated that protection should be granted to broadcasting organizations for their signals independently of the copyright and related rights protection of the content." [17] It is submitted that this statement is not entirely accurate. Several Member States and Observers have submitted at various sessions of the SCCR that any protection granted must be limited to signal to address signal theft only; and that any other sort of protection would create a legal fiction that would lead to uncertainty, the creation of multiple rights holders, a Para-copyright regime and increased costs for legitimate use of copyrighted material.[18]

On 'Legal Issues to be Considered'

15. CIS reiterates the impetus to fully establish the need and the justification for the Broadcast Treaty, before considering other substantive legal issues. CIS strongly believes that the need for the treaty has not been fully established.[19]

16. It is also suggested that a recommendation be made for the Technical Background Paper to include a section on limitations and exceptions as 'legal issues to be considered', critical from the perspective of the protection of freedom of speech and expression and access to knowledge.

Broadcasting and Piracy

17. This part of the document discusses the signal piracy and its effect on markets in developing and developed countries. [20]

18. CIS submits that since the justification for this treaty is based on signal piracy, this section of the Technical Background Paper ought to be more detailed. Illustratively, this section must be updated to include studies on the losses that occur due to signal piracy in various countries, and the exact lacunae in the current legal system that render it inadequate to address this issue.

Program-Carrying Signals

19. In this part the Technical Background Paper discusses program carrying signals that are sent from point to point before the broadcast that could possibly be pirated.[21]

20. CIS believes that the claim that pre-broadcast signals have been stolen before[22] must be backed up by adequate data and studies. As of this document they remain assertions. CIS further believes that any steps taken in this regard must adopt the 'signals based approach' mandated by the 2007 WIPO General Assembly[23] and ensure that the underlying content is not subject to an additional layer of protection.[24]

The Object of Protection

21. This part of the paper provides a cursory overview of the different definitions adopted to define the object of protection, i.e., the broadcast under the Rome Convention, the Brussels Convention, and the WPPT.[25]

22. CIS believes that a more in-depth study of definitions of broadcast under all international instruments [26]is called for. CIS further believes that in keeping with the 2007 WIPO General Assembly mandate as mentioned above, 'signals based approach' is to be adopted which would preclude technologically neutral terminology from being adopted in the object of the protection.

The Subject of Protection

23. This part of the paper provides a cursory overview of the different definitions adopted to define the subject of protection, i.e., the broadcast under the Rome Convention, the Brussels Convention, the WPPT and the ITU Radio Regulations.[27]

24. CIS believes that the mandate of 'signals based approach' as mentioned in the 2007 WIPO General Assembly mandate must be adhered to (as stated earlier) and only those entities that broadcast signals and are therefore vulnerable to signal theft must be considered beneficiaries under the Broadcast Treaty. As stated above, technologically neutral terminology would fall outside of this mandate. CIS believes that this should be made clear in the Technical Background Paper.

IV. Concluding Observations

25. In conclusion, CIS submits the following recommendations on the Technical Background Paper.

a) Updating the Technical Background Paper to include legal and technological developments to better inform the discussion on the Broadcast Treaty.

b) Updating the Technical Background Paper with an expanded scope that explores all issues relevant to discussion including the scope for protection and the justification for protection.

c) Updating the Technical Background Paper to include provisions made under all relevant international conventions, even those that have come into existence after the Rome Convention.

d) Updating the Technical Background Paper to include widely prevalent industry practices that could affect the discussion around the Broadcast Treaty.

e) Conducting a comprehensive study on legislations regarding broadcasters' rights and broadcasting under all national regimes to enable a more informed discussion on the possible effects of the proposed treaty.

f) Updating the Technical Background Paper to include a discussion on limitations and exceptions under the proposed treaty.

g) Conducting a separate study on the extent of signal piracy and losses incurred due to signal piracy including a section that traces the causes behind signal piracy and explores whether or not a legal lacunae is to blame.

h) Updating the Technical Background Paper keeping in mind the WIPO 2007 General Assembly mandate on 'signals based approach' especially in parts relating to object, subject and scope of protection.

V. Other Resources

Statements made by CIS to the SCCR on Broadcast Treaty

1. 29^th Session of the WIPO SCCR :CIS 2^nd (brief) Intervention on the Broadcast Treaty, http://cis-india.org/a2k/blogs/wipo-sccr-29-cis-second-brief-intervention-on-broadcast-treaty (last accessed 25 June, 2015)

2. CIS Intervention on Proposed Treaty of Broadcasting Organizations, SCCR 29: http://cis-india.org/a2k/blogs/wipo-sccr-29-cis-intervention-on-proposed-treaty-for-protection-of-broadcasting-organizations (last accessed 25 June, 2015)

3. CIS Statement at SCCR 28 on the Proposed Treaty for Protection of Broadcasting Organisations, Available at: http://lists.keionline.org/pipermail/a2k_lists.keionline.org/2014-July/002720.html (last accessed 25 June, 2015)

4. CIS Statement at 27^th SCCR on the WIPO Proposed Treaty for the Protection of Broadcasting Organisations, Available at: http://cis-india.org/a2k/blogs/cis-statement-27-sccr-on-wipo-proposed-treaty-for-protection-of-broadcasting-organizations (last accessed 25 June, 2015)

5. CIS' Statement at SCCR 24 on WIPO Broadcast Treaty, Available at: http://cis-india.org/a2k/blogs/cis-statement-sccr24-broadcast-treaty (last accessed 25 June, 2015)

6. Statement of CIS on the WIPO Broadcast Treaty at the 23^rd SCCR, Available at: http://cis-india.org/a2k/blogs/sccr-23-broadcast-cis-statement (last accessed 25 June, 2015)

7. Statement of CIS, India on the WIPO Broadcast Treaty at the 22^nd SCCR, Available at: http://cis-india.org/a2k/blogs/sccr-22-broadcast-cis-statement (last accessed 25 June, 2015)

8. CIS Statement on the WIPO Broadcast Treaty at SCCR 19, Available at: http://cis-india.org/a2k/blogs/sccr19-broadcast-treaty (last accessed 25 June, 2015)

Submissions made by CIS on the Broadcast Treaty

1. CIS Submission to the Expert Committee: Protection of Broadcasting Organisations under the Proposed Treaty as Compared to Other International Conventions, 21 December 2014, Available at: http://cis-india.org/a2k/blogs/protection-of-broadcasting-organisations-under-proposed-broadcast-treaty (last accessed 25 June, 2015)

2. CIS Submission to the Expert Committee: Comment on the Broadening of Definitions in the Proposed Braodcast Treaty Compared to Other International Conventions, 11 December 2014, Available at: http://cis-india.org/a2k/blogs/the-broadening-of-definitions-in-the-proposed-broadcast-treaty-compared-to-other-international-conventions (last accessed 25 June, 2015)

3. CIS Comments to the Ministry of Human Resource Development on the Proposed WIPO Treaty for the Protection of Broadcasting Organisations, 7 December 2013, Available at: http://cis-india.org/a2k/blogs/comments-to-hrd-ministry-on-wipo-treaty-for-protection-of-broadcasting-organizations (last accessed 25 June, 2015)

4. Comments to MHRD on WIPO Broadcast Treaty, March 2013, Available at: http://cis-india.org/a2k/blogs/comments-on-wipo-broadcast-treaty

5. Comments on the Broadcast Treaty and Exceptions and Limitations for Libraries and Archives, 29 November 2012, Available at: http://cis-india.org/a2k/blogs/comments-on-broadcast-treaty-and-exceptions-and-limitations-for-libraries-and-archives (last accessed 25 June, 2015)

6. Comments to the Ministry on WIPO Broadcast Treaty, March 2011, Available at: http://cis-india.org/a2k/blogs/wipo-broadcast-treaty-comments-march-2011 (last accessed 25 June, 2015)

On behalf of the Centre for Internet and Society,

Nehaa Chaudhari Amulya Purushothama

Lawyer/Programme Officer Lawyer/Research Assistant

nehaa@cis-india.org amulyaindavar@gmail.com

[1] Hereafter "Technical Background Paper"

[2] See www.cis-india.org (last accessed 25 June, 2015) for details about CIS' work.

[3] WIPO General Assembly, 34th (18th Ordinary Session, Geneva, September 24- October 3 2007,WO/GA/34/16, p. 55-56;

[4] Protection of Broadcasting Organisations, Technical Background Paper Prepared by the Secretariat, WIPO, Seventh Session, Geneva , April 4 2002, SCCR/7/8, p.3.

[5] Id at p.2.

[6] See for Instance CIS' Statement at SCCR 24 on the WIPO Broadcast Treaty, Available at: http://cis-india.org/a2k/blog/cis-statement-sccr24-broadcast-treaty (last accessed 25 June, 2015).

[7] Id.

[8] Hereafter, the Rome Convention.

[9] Protection of Broadcasting Organisations, Technical Background Paper Prepared by the Secretariat, WIPO, Seventh Session, Geneva , April 4 2002, SCCR/7/8, p.4-5

[10] See 'Overview' of this submission.

[11] See for instance CIS Submission to the Expert Committee: Protection of Broadcasting Organisations under the Proposed Treaty as Compared to Other International Conventions, CIS, Available at: http://cis-india.org/a2k/blogs/protection-of-broadcasting-organisations-under-proposed-broadcast-treaty#_ftn79 (last accessed 25 June, 2015) ; See Also CIS Submission to the Expert Committee: Comment on the Broadening of Definitions in the Proposed Broadcast Treaty Compared to Other International Conventions, C IS, Available at: http://cis-india.org/a2k/blogs/the-broadening-of-definitions-in-the-proposed-broadcast-treaty-compared-to-other-international-conventions#_ftn1 (last accessed 25 June, 2015).

[12] See for example, Study on Copyright Limitations and Exceptions for Libraries and Archives, Available at: www.wpio.int/copyright/en/limitations/libraries_and_archives.html (last accessed 25 June, 2015).

[13] Protection of Broadcasting Organisations, Technical Background Paper Prepared by the Secretariat, WIPO, Seventh Session, Geneva , April 4 2002, SCCR/7/8, p.5

[14] CIS Submission to the Expert Committee: Comment on the Broadening of Definitions in the Proposed Broadcast Treaty Compared to Other International Conventions, C IS, Available at: http://cis-india.org/a2k/blogs/the-broadening-of-definitions-in-the-proposed-broadcast-treaty-compared-to-other-international-conventions#_ftn1 (last accessed 25 June, 2015).

[15] WIPO General Assembly, 34th (18th Ordinary Session, Geneva, September 24- October 3 2007,WO/GA/34/16, p. 55-56;

[16] CIS Submission to the Expert Committee: Protection of Broadcasting Organisations under the Proposed Treaty as Compared to Other International Conventions, CIS, Available at http://cis-india.org/a2k/blogs/protection-of-broadcasting-organisations-under-proposed-broadcast-treaty#_ftn79 : http://cis-india.org/a2k/blogs/protection-of-broadcasting-organisations-under-proposed-broadcast-treaty#_ftn79(last accessed 25 June, 2015) ; See Also CIS Submission to the Expert Committee: Comment on the Broadening of Definitions in the Proposed Broadcast Treaty Compared to Other International Conventions, C IS, Available at: http://cis-india.org/a2k/blogs/the-broadening-of-definitions-in-the-proposed-broadcast-treaty-compared-to-other-international-conventions#_ftn1 (last accessed 25 June, 2015)

[17] Protection of Broadcasting Organisations, Technical Background Paper Prepared by the Secretariat, WIPO, Seventh Session, Geneva , April 4 2002, SCCR/7/8, p.5

[18] For details see CIS Submission to the Expert Committee: Protection of Broadcasting Organisations under the Proposed Treaty as Compared to Other International Conventions, CIS, Available at: http://cis-india.org/a2k/blogs/protection-of-broadcasting-organisations-under-proposed-broadcast-treaty#_ftn79 (last accessed 25 June, 2015) ; See Also CIS Submission to the Expert Committee: Comment on the Broadening of Definitions in the Proposed Broadcast Treaty Compared to Other International Conventions, C IS, Available at: http://cis-india.org/a2k/blogs/the-broadening-of-definitions-in-the-proposed-broadcast-treaty-compared-to-other-international-conventions#_ftn1 (last accessed 25 June, 2015).

[19] See comments under Introduction in this submission.

[20] Protection of Broadcasting Organisations, Technical Background Paper Prepared by the Secretariat, WIPO, Seventh Session, Geneva , April 4 2002, SCCR/7/8, p.15

[21] Protection of Broadcasting Organisations, Technical Background Paper Prepared by the Secretariat, WIPO, Seventh Session, Geneva , April 4 2002, SCCR/7/8, p.15-16

[22] Protection of Broadcasting Organisations, Technical Background Paper Prepared by the Secretariat, WIPO, Seventh Session, Geneva , April 4 2002, SCCR/7/8, p.15

[23] WIPO General Assembly, 34th (18th Ordinary Session, Geneva, September 24- October 3 2007,WO/GA/34/16, p. 55-56;

[24] CIS Submission to the Expert Committee: Protection of Broadcasting Organisations under the Proposed Treaty as Compared to Other International Conventions, CIS, Available at: http://cis-india.org/a2k/blogs/protection-of-broadcasting-organisations-under-proposed-broadcast-treaty#_ftn79 (last accessed 25 June, 2015).

[25] Protection of Broadcasting Organisations, Technical Background Paper Prepared by the Secretariat, WIPO, Seventh Session, Geneva , April 4 2002, SCCR/7/8, p.16-17

[26] CIS Submission to the Expert Committee: Comment on the Broadening of Definitions in the Proposed Broadcast Treaty Compared to Other International Conventions, C IS, Available at: http://cis-india.org/a2k/blogs/the-broadening-of-definitions-in-the-proposed-broadcast-treaty-compared-to-other-international-conventions#_ftn (last accessed 25 June, 2015).

[27] Protection of Broadcasting Organisations, Technical Background Paper Prepared by the Secretariat, WIPO, Seventh Session, Geneva , April 4 2002, SCCR/7/8, p.17-18

For more details visit https://cis-india.org/a2k/blogs/comments-on-the-protection-of-broadcasting-organizations-technical-background-paper