Centre for Internet and Society

Research Project on Open Video in India

pranesh — 2011-08-23T02:51:36Z

Open Video Alliance and the Centre for Internet and Society are calling for researchers for a project on open video in India, its potentials, limitations, and recommendations on policy interventions.

Project Timeline

From mid-April to mid-July.

Summary of Outputs

A 15-20 page paper surveying the online video environment in India and the opportunities it presents for creative expression, political participation, social justice, and other such concerns. The paper should deal with the structural limitations of the medium (e.g.: limited bandwidth, IP lobbies discourage re-appropriation of cultural materials, online video is inaccessible to the deaf, and so on) and how they can be addressed. Recommendations should be bold but in touch with the real policy and business frameworks of present-day India.
Several 1-2 page briefs on specific policy matters like: where is jurisdiction being exercised? what are the policy inflections? and, what interventions are needed to solve the structural limitations of the medium?

Survey Paper

The survey paper should describe the online video scenario in India, and three or more policy tensions. The paper should focus on areas of intellectual property rights, network issues, standards, device freedom and interoperability, accessibility, etc. The Open Video Alliance website[ova] for a complete list of relevant issues.

Overall, it should paint both a qualitative as well as a quantitative picture of online video in India, and in which structural improvements are needed (if any) to empower individuals.This paper should not be viewed as a recommendation to policymakers but instead as a general interest document which will inform and appeal to many audiences. While we expect the paper to span several distinct issues, there should be a prevailing narrative to weave them together.

Basic Assumptions

We want online video to be a participatory and collaborative social medium powered by open source. We also value the ability of individuals to express themselves using these tools, and the ability of new entrants to challenge incumbents and innovate on top of existing technologies. No time is needed to be spent establishing these values—instead, through this paper we try to identify structural improvements to the online video medium. How do we get from the status quo to the ideal open video environment? What investments must be made? What protections must be put into place for users, producers, etc.? Further, we should be able to make some broad recommendations to governments, foundations, and big institutions.

Because the network and IP enforcement environment in India are still malleable, we want to stress that there are many possible shapes that the online video medium could take. Our goal is to shine some light on how a medium that privileges the values outlined above could take shape.

Suggested Methodology

First, you would need to carry out a basic survey of the literature. Second, you should talk to various organizations using video, discover what they consider the structural limitations of online video, and what might be considered open video practices: some are legal, some are technical. You would use this data to direct original research and weave your findings into an engaging narrative.

Next Steps

You send 2 writing samples, a CV, and letter of recommendation;
We'll discuss the unifying themes and identify a more detailed timeline;
We produce a contract;
We Pick a regular time to meet every other week, to track progress.

For more details visit https://cis-india.org/openness/blog-old/open-video-research

March 2010 Bulletin

praskrishna — 2012-08-13T05:02:42Z

Greetings from the Centre for Internet and Society! We bring you updates of our research, news, and events for the month of March 2010 in this bulletin.

News Updates

An Open Answer to Office
OpenOffice with its new features is giving Microsoft Word tough competition, says Deepa Kurup in this article published in The Hindu.
http://cis-india.org/news/open-office

Upcoming Events

CPOV: Wikipedia Research Initiative
The second WikiWars conference will be held in Amsterdam from 26 to 27 March 2010
http://cis-india.org/research/conferences/conference-blogs/cpov

CI Global Meeting on A2K
CIS is a co-sponsor of the Consumers International Meeting on A2K to be held in Kuala Lumpur, Malaysia on April 21 and 22, 2010.
http://cis-india.org/events/ci-global-meeting-a2k

Research

India Game Developer Summit Bangalore 2010
The India Game Developer Conference held at Nimhans Convention Centre on the 27th of February, 2010 was attended by Arun Menon who is working on The Gaming and Gold Project at The Centre for Internet and Society. The Developer forum brought together game developers from different sectors of the Game Production Cycle, with hardware manufacturers like Nvidia demonstrating their latest 3d technology and Software developers like Crytek and Adobe demonstrating the latest in developer tools for creating and editing games on multiple platforms.
http://cis-india.org/research/cis-raw/histories/gaming/india-game-developer-summit-in-bangalore-2010

10 Legendary Obscene Beasts
Nishant Shah analyses a peculiar event of vandalism which has now become the core of free speech and anti-censorship debates in mainland China. Looking at the structure of user generated knowledge websites and the specific event on the Chinese language encyclopaedia, 'Baidu Baike', he shows how, in cities where spaces of political spectacle and public protest are quickly diminishing, the Internet has become a tool for producing new public spaces of demonstration and protest.
http://cis-india.org/research/grants/ISShanghai/itcity4

WikiWars - A report
In this blog, Nishant Shah analyses about the WikiWars, the first of the three events held in Bangalore on January 12 and 13.
http://cis-india.org/research/conferences/conference-blogs/wwrep

Telecom

Understanding Spectrum
What is spectrum and how do government and commercial decisions on this scientific phenomenon affect public facilities and costs? Shyam Ponappa examines this in his latest blog published in the Business Standard on March 4, 2010.
http://cis-india.org/advocacy/telecom/blog/understanding-spectrum

For more details visit https://cis-india.org/about/newsletters/march-2010-bulletin

The First IJLT-CIS Lecture Series on Jurisdictional Issues in Cyberspace

praskrishna — 2011-04-05T04:12:05Z

The IJLT-CIS Lecture Series will be held at the National Law School of India University in Bangalore on 3 April, 2010.

The Indian Journal of Law and Technology (IJLT) is the law and technology journal of the National Law School of India University, Bangalore. The Centre for Internet and Society (CIS) is a leading research organisation devoted to the study of the Internet and its interface with the society. The IJLT-CIS Annual Law Lecture Series is an effort to promote a better understanding about crucial legal issues pertaining to the Internet and other emerging technologies.

The core theme of the lecture is Jurisdictional Issues in Cyberspace. Hon'ble Dr. Justice S. Muralidhar (Judge, Delhi High Court) shall be the Chief Guest and the first speaker. The other speakers are Amit Sachdeva (Advocate, Delhi High Court), Aditya Sondhi (Advocate, Karnataka High Court) and Dr. Lorna E. Gillies (Lecturer in Law, University of Leicester).

The Lecture Series is open to all law students and the general public. There are no charges or fees applicable to participants. However, all participants are requested to register through an e-mail to “editorialboard@ijlt.in”. All student participants shall be provided certificates of participation.

For more details visit https://cis-india.org/events/ijlt-cis-lecture

CI Global Meeting on A2K

praskrishna — 2011-04-05T04:08:06Z

CIS is a co-sponsor of the Consumers International Meeting on A2K

The Consumers International Global Meeting on A2K 2010 is to be held at the Holiday Villa hotel in Subang, Kuala Lumpur, Malaysia on 21 and 22 April 2010.

The meeting will bring together CI members and other NGOs from around the world to discuss and collaborate on issues of access to knowledge (A2K) and communications rights. Highlights will include the launch of the Consumers International IP Watch List for 2010, the launch of CI's new film on A2K, and a preview of the results of our access barrier survey.

Don't miss the most important day on the A2K calendar for the global consumer movement!

For more details visit https://cis-india.org/events/ci-global-meeting-a2k

Arguments Against Software Patents in India

pranesh — 2012-03-13T10:43:12Z

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

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

Preamble

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

What are Patents?

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

Philosophical Justification Against Software Patents

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

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

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

Legal Case Against Software Patents

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

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

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

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

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

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

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

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

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

Practical Reasons Against Software Patents

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion

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

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

No Software Patents: Meetup at CIS on February 6

praskrishna — 2011-04-05T04:14:13Z

Our team at CIS India thanks you for opposing software patents in India by signing the petition. If you stay in Bangalore, we invite you to a meetup on the topic of Software Patents, this Saturday (Feb 6th). We will have a few subject matter experts amongst us too.

There will be Barcamp style discussions on Software Patents with the following interesting elements:

How do software patents affect entrepreneurs, particularly start-ups and SMEs.
Impact of software patents on open source.
What can we do about it.

Please send an email to "Amit Singh" amitsingh.mail@gmail.com amitsingh.mail@gmail.com with the subject line "Software Patents Meetup" to confirm your participation.

If you want to organise a similar meetup in your city, please write to "Pranesh Prakash" pranesh@cis-india.org,

If you cannot make it for the event kindly continue to support the cause by referring your friends to http://petition.nosoftwarepatents.in.

We are targeting as many virtual supporters as can be, to sign the petition.

For more details visit https://cis-india.org/events/meet-up-software-patents

Year Ahead Copyright 2010: Between An Enforcement “Gold Standard” And Stronger Limitations

praskrishna — 2011-04-02T13:43:24Z

Whereas copyright is increasingly being exchanged for contractual relationships why all the debate and new efforts in national and international copyright legislation. Monika Ernet's article in the Intellectual Property Watch examines this in the wake of the Anti-Counterfeiting Trade Agreement and the international treaty on access to online books for the visually impaired. The article also carries Pranesh Prakash's views on introduction of technical protection measures and the protection of them by law.

The secretly negotiated Anti-Counterfeiting Trade Agreement is now in centre stage in the global debates around copyright, as is a prospective new international treaty on access to online books for the visually impaired which comes as part of a broader push to clarify limitations and exceptions to copyright. But some are asking, why all the debate and new efforts in national and international copyright legislation when copyright is increasing being exchanged for contractual relationships?

ACTA may bring with it the punishment of internet denial for infringement that has been fiercely discussed in several European countries and adopted in France, New Zealand, South Korea, and Taiwan. ACTA is seen by critics as another push by governments backing their rights holders in the eternal wars over copyright.

But on the other side, there is much hope that a new treaty for the visually impaired will be negotiated at the World Intellectual Property Organization (WIPO). Open-ended consultations on outstanding issues were promised to be finalised over the early months of 2010 by the WIPO Standing Committee on Copyright and Related Rights.

ACTA and Enforcement

The seventh round of negotiations for ACTA ended after four days of talks in Guadalajara on 29 January. Round eight is expected for April in Wellington, New Zealand. If you ask the negotiators, they will tell you that they expect to get this done in 2010.

There seems to be a sense of urgency to complete ACTA just at the moment when a growing list of members of national parliaments from the United States (Congress), the United Kingdom and Germany are asking for access to the ACTA documents and while the first small street protest was organised outside the meeting place in Guadalajara, Mexico. “Are the commitments of negotiators to transparency real or a strategic move?” asked New Zealand’s Labour Party politician Clare Curran before the meeting in Guadalajara.

“We will have a hearing on ACTA presumably in March,” said EU Member of Parliament Alexander Alvaro, who has questioned the European Commission on the transparency, timeline and scope of the agreement. The Commissioner Designate for International Trade, Karel de Gucht, said clearly: “If there is confidentiality, I will respect it and I have to respect it.” It is impossible, he said, to change the terms during the negotiations.

While he promised that he would make sure Parliament - which has now to agree to ACTA under the newly in effect Lisbon Treaty - would be “duly informed,” the Parliament which just engaged in its first fights over its new competencies with the European Council and Commission might not take that bite, said Alvaro.

The Commission, meanwhile, is for 2010 preparing to put forward a follow-up to the IP enforcement directive (IPRED), as a draft text on IPRED II for criminal sanctions is expected to be put forward in May or June, immediately after the evaluation report on IPRED due in April.

Rethinking Limitations and Exceptions

While there is a big push for ACTA - which International Trademark Association President Richard Heath from Unilever said should be set as “gold standard” - there are growing concerns in academic circles. Annette Kur, IP law expert at the Max Planck Institute of Intellectual Property and Tax Law, said there is a feeling in the expert community that “we cannot go on and on tightening the screw.”

Talks at WIPO about a treaty to grant exemptions for blind and visually impaired people have shown promise, but might also slow down other initiatives for a re-balancing of copyright that academics were hoping for. The implementation of other elements of the WIPO Development Agenda would be a good counterpoint against the current wave of maximal demands in rights protection, according to Kur.

But proponents say there is gathering momentum for the visually impaired exception now - including a draft treaty text, which does not exist for any other issue in the committee - and to wait risks losing the chance and gambling on an uncertain and potentially very lengthy process.

National Copyright Reforms and FTAs

Some ongoing national copyright legislative reforms echo the demand for the re-balancing, with Brazil’s copyright reform the most far-reaching of these, as copyright law expert Volker Grassmuck recently wrote. The Brazilian law could be the first copyright law “balancing copyright with access and usage rights and consumer protection its declared goal,” Grassmuck wrote, but also said that the reform work might be stopped by the Brazilian election campaign in 2010. For several months, a final draft has been announced, Grassmuck told Intellectual Property Watch, yet every time publication has been postponed. “There certainly are concerns that the delay results from industry lobbying against the reform at the highest levels,” Grassmuck said.

Indian copyright reform (that like the Brazilian effort started in 2005) also has made a reference to amendments to secure limitations and exceptions for the visually impaired, but is more conservative when it comes to other issues. It more closely follows the line of harmonising its regulation to the international treaties, namely the WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty.

The reform effort just got a new push when the Indian Copyright office published a final draft on 24 December. Pranesh Prakash, programme manager at the Center for Internet and Society in Delhi, said that the introduction of technical protection measures and the protection of these by law would bring a big change in India.

Prakash said he is afraid that intermediary liability is on the political agenda of the Indian Copyright Office. This would make sense if one considers the negotiations for a free trade agreement between India and the EU that can be expected to include a lengthy section covering intellectual property, copyright and online service provider liability similar to the one in the EU-Korea FTA. The EU-Korea FTA was to be voted on by EU Parliament this week; the EU-India FTA is expected to be finalised in 2010.

Copyright reforms are also under way in Canada, Hong Kong, Serbia, and in the United Kingdom the digital economy bill is under heavy discussion because of far-reaching regulatory power planned for UK communications regulator OFCOM. In Germany, a third round of copyright law reform is on the agenda with private broadcasting companies, publishers and the music industry asking for better copyright protection.

Contracts Instead of Copyright?

But while these reforms and treaty and FTA negotiations are ongoing, there is also another trend seen by experts and users of copyright, said Jeanette Hofmann, an internet governance expert. “Copyright, this moral beacon, more and more ceases to play a role in practical terms. As an author I have to live with a complete buy-out and as a copyright customer, let’s say in the library, I am often dependent on the contracts that the library has with private companies, too.”

Benjamin White, head of the intellectual property at the British Library, has asked the question of whether copyright is still relevant in the digital age. “What I deal with is contracts,” he said, warning that “in most EU member states contracts effectively trump copyright laws. Limitations and exemptions are irrelevant, if there is a contract that says otherwise.” Libraries are contracting with private companies that could help them to fund digitisation projects, but would then regulate access to these objects.

White said while he credits Google for getting the discussion started on how digitisation could be funded, he also wants to see a debate on whether people are comfortable with one private company having access to million of books. The Google book settlement and contracts with libraries in the US and other countries in effect could be seen as a monopoly being created around orphan works and a way to control access to millions of works for years. The EU Commissioner Designate for the Digital Agenda Neelie Kroes, when asked what she thought of Google’s book project, said she liked competition. Regulation for orphan works is on the EU Commission’s work agenda.

Competition and more business offers were also said by Swiss IP lawyer Rolf Auf der Maur to be the focus of the music industry instead of enforcement. Auf der Maur, regular panellist at Midem (the largest annual conference of the music industry), said acknowledgement was trickling down in the music industry that collective licence models, for example licensing music to internet service providers, or even thoughts about flat-rates might be better than only focussing on enforcement.

The major labels are interested in ventures like streaming service Spotify. Paul Brindley, co-Founder of digital music expert consultant Music Alley, said government funding for digital music service models could be expected from the British Technology Strategy Board.

Yet this message could sound overly optimistic given that the music industry is the party heavily promoting a ‘three strikes and you’re out’ approach against copyright infringers.

Or might there be rights owners that think what Joe McNamee, political expert for European Digital Rights (EDRI), predicts: “you can forget about enforcement of copyright, if you focus on copyright and do not get the right content in the right formats available to consumers then you will not solve the problem.“ Innovation would be blocked, he warned, and ever stronger enforcement regulation would finally lead to a lot of collateral damages in civil rights.

For librarian White there also is an urgent need for a change. He said regulators need to create clear rules on access in the digital world like are set out in the Brazilian copyright reform proposal. White said he was hoping that WIPO, whose secretary general, Francis Gurry, had acknowledged the challenge of solving the relationship between private contracts and copyright, would act on the issue of access. Will that happen in 2010?

Monika Ermert may be reached at info@ip-watch.ch

For original article on IP Watch, click here.

For more details visit https://cis-india.org/news/year-ahead-copyright-2010

CIS Statement on the WIPO Broadcast Treaty at SCCR 19

pranesh — 2012-02-01T09:07:41Z

This statement on the WIPO Broadcast Treaty was delivered on December 17, 2010 at the 19th session of the Standing Committee on Copyright and Related Rights by Nirmita Narasimhan on behalf of CIS.

CIS Statement on the WIPO Broadcast Treaty at SCCR 19

The Centre for Internet and Society believes that the protection that may be afforded to broadcasters under existing international treaties, including Article 14 of the TRIPS Convention, are sufficient to safeguard the interests of broadcasters, and that the Broadcast Treaty, which has been under discussion for more than a decade without any progress, is, as the WIPO Chair observed, an expenditure of "time, energy and resources to no avail" (SCCR/15/2/rev).

We believe that at any rate webcasting/netcasting should be kept out of the ambit of the broadcast treaty, even if only restricted to "retransmission" of broadcasts as in the current draft, since by its very nature webcasting is very different from broadcasting. Webcasting is currently quite vibrant, with a recent report by Arbor Networks estimating that around ten per cent of all Web traffic is streaming video, making webcasting the fastest growing application on the Internet. Given this situation, a strong case has to be made to show that an international treaty is required to protect and promote webcasting, which has not been done.

Specifically, we believe that Paragraph 16 of the WIPO Development Agenda, which relates to preservation of a vibrant public domain, will be endangered by a right being given to webcasters which is separate from the underlying content of the transmission.

Statements by other organizations on WIPO Broadcast Treaty at SCCR 19

For more details visit https://cis-india.org/a2k/blogs/sccr19-broadcast-treaty

Piracy Studies in India

praskrishna — 2011-08-04T04:35:42Z

The word ‘piracy’ assumes negative connotations. In the imagination of an ordinary middle class urban Indian it is linked directly to the informal economy, crime and even terrorism. But the ‘pirated good’, that is, the ‘optical disc’ is not seen with a similar perception. The ‘CD’ is the access key to the cultural wealth of music, cinema and software contained inside. This paradox is created in the sphere of information and knowledge that is created by anti-piracy agencies using extensive reports and statistics that are published every year. These statistics often have a tendency to create a feeling of ‘shock and awe’ for the readers that see these numbers splashed across headlines of news and media reports. Till 2004, the creation of numbers conjuring losses up to millions was mostly the domain of the International Intellectual Property Alliance (IIPA), which is now supplemented by reports commissioned to consultancy groups like McKinsey, PWC, and Ernst & Young. This article by Siddharth Chadha traces a few reports that have come to become popular benchmarks of piracy in the past few years.

Special ‘301’ Reports

The ‘Special 301 Reports’ are published annually by the office of the United States Trade Representative (USTR) to examine ‘in detail the adequacy and effectiveness of intellectual property rights protection’ in countries around the globe. Sections 301-310 of the Trade Act of 1974, as amended by the Omnibus Trade and Competitiveness Act of 1988, empower the USTR ‘to identify foreign countries that deny adequate and effective protection of intellectual property rights or fair and equitable market access for U.S. persons that rely on intellectual property protection.’

India has faced considerable pressure to amend and enforce its copyright laws, more to the needs of the United States rather than reflecting the needs of its population, businesses and innovation. The 301 reports over the last decade have been largely concerned with the general problems of counterfeit and piracy in India, unlike China where specific laws adopted and enforced by the state have been critiqued. Over the course of the decade, according to the reports, the United States has been concerned with a large number of subjects including the backlog and inadequacy of India’s legal system, lack of enforcement of IP protections for media oriented products like ‘motion pictures, music, software, books and video games’, need for stronger protection of copyrights, trademarks and patents, optical media and procedural inadequacies. In 2004 the USTR reported, ‘copyright piracy is rampant, and the U.S. copyright industry estimates that lost sales resulting from piracy in India of U.S. motion pictures, sound recordings, musical compositions, computer programmes, and books totaled approximately $500 million in 2004.’

The United States articulates the reasons for concern in India – the challenge posed by Indian pirated and counterfeit goods entering American markets. It expresses its concern for lack of piracy enforcement as ‘‘growing concern for U.S. copyright industries, especially given the pirated imports are entering the market from Southeast Asia.

Over the past few years, it has also included suggestions of taking criminal action against those engaging in copyright infringement. India’s supposed ‘weak’ criminal system is mentioned in the 2008 reports, focused specifically on the need for a greater police presence enforcing IPR infringements through criminal means and ‘stronger’ border control.

The Effects of Counterfeiting and Piracy on India’s Entertainment Industry

Published in March 2009 by United States-India Business Council (USIBC) and prepared by Ernst and Young India, claims that as much as Rs.16, 000 crores are lost due to piracy. Alongside, as many as 80,000 jobs are lost directly as a result of theft and piracy, afflicting India’s entertainment industry. This report was commissioned as a part of the USIBC–FICCI Bollywood–Hollywood initiative and covered film, music, television and video games. It was funded by the Global Intellectual Property Center of the U.S. Chamber of Commerce. The spectacular press launch meeting was organized in Mumbai and also attended by Yash Chopra, chairman of FICCI Frames and Ramesh Sippy, the famed director who commented on the occasion, “I know first hand the importance of fighting piracy to support the growth of Bollywood. I commend the USIBC–FICCI initiative for enlisting all elements of the entertainment industry against piracy.” The President of USIBC, Ron Summers used the opportunity to suggest stronger legal means to tackle piracy. He said, “We strongly support passage by India of optical disc legislation that will thwart piracy in this important industry. We are pleased to stand shoulder to shoulder with counterparts in India to help protect jobs and revenues that are now being needlessly lost to piracy.”

Sixth Annual BSA and IDC Global Software Piracy Study

Business Software Alliance, in partnership with a market analysis firm IDC, published their annual study on global trends in software piracy in May 2009. Sixth in its annual series, the report critically blames the Asia Pacific region, especially India and China, for the growing levels in piracy, despite countries bringing down their piracy rates. The report says, ‘In 2008, the rate of PC software piracy dropped in slightly more than half (57) of the 110 countries studied, remained the same in nearly one third (36), and rose in just 16. However, the worldwide PC software piracy rate rose for the second year in a row, from 38 per cent to 41 per cent, mainly because PC shipments grew fastest in high-piracy countries such as China and India, overwhelming progress in these and other countries.’

In addition, it also makes an India specific point by highlighting India’s piracy trends,

‘India’s rate has dropped six points in five years, despite its sprawling PC market, of which consumers and small businesses account for 65 per cent. While consumer PC shipments grew more than 10 per cent last year, shipments to other categories dropped 7 per cent.’

Motion Pictures Distributors Association’s Internet Piracy Studies

Earlier this month, the MPA Office in India named Motion Pictures Distributors Association, along with a DtecNet a global anti-piracy company, released a study on the Internet piracy trends in India. This report places India as the fourth largest global hub of online film piracy, behind United States, Britain and Canada, with Delhi, Bangalore and Mumbai accounting for the major share of illegal downloads. It estimates that Vishal Bhardwaj’s Kaminey, was downloaded 350, 000 times on Bit Torrent with about 2/3rds of downloaders being from India. MPDA also links this study to another consultancy, Envisional’s similar suggestions, while MPDA’s managing director, Rajiv Dalal pushed for strong laws to support copyright, strong enforcement and stiff sentences for people who violate laws, on the basis of these reports.

Despite the availability of a large number of critiques available in the academic world, the media – both broadcast and print, reports shock inducing statistics verbatim, treating them as expert evidence without engaging in any analysis of the published material. Most of the piracy studies are quantitative in nature and do not provide any social class or demographic break up either of those who engage in piracy or those who buy pirated goods. It has also been pointed out by scholars like Shujen Wang that it is unreasonable to assume that every pirated copy could be counted as a lost sale, and thus a loss. In absence of research on the cultural aspects of piracy and the subsequent circulation, these reports have been successful in creating a fear psychosis in the civil society.

For more details visit https://cis-india.org/a2k/blogs/piracy-studies-india

Enforcement of Anti-piracy Laws by the Indian Entertainment Industry

praskrishna — 2011-08-04T04:35:48Z

This brief note by Siddharth Chadha seeks to map out the key actors in enforcement of copyright laws. These bodies not only investigate cases of infringement and piracy relating to the entertainment industry, but tie up with the police and IP law firms to pursue actions against the offenders through raids (many of them illegal) and court cases. Siddharth notes that the discourse on informal networks and circuits of distribution of cultural goods remains hijacked with efforts to contain piracy as the only rhetoric which safeguards the business interests of big, mostly multinational, media corporations.

International Intellectual Property Alliance

The International Intellectual Property Alliance (IIPA) is an international lobby group of US media industries with close ties to the United States Trade Representative. It has in its reports consistently expressed dissatisfaction with Indian efforts to deal with piracy. IIPA works in close cooperation the other US lobby groups like the MPAA (Motion Picture Association of America) and the BSA (Business Software Alliance). The IIPA reports, which place India in a 'danger zone', significantly influence regional and international discourses on piracy. Interestingly, the IIPA in India has been very successful in regionalizing and nationalizing a global discourse. Thus, in the past few years, local industry associations in India in cinema, music and software have independently run highly emotional campaigns against piracy, reminiscent of IIPA's own campaigns.

Motion Pictures Association

The Motion Picture Association of America (MPAA) through its international counterpart, Motion Pictures Association (MPA), has been unofficially operational in India for the last 15 years. Its member companies are Walt Disney, Paramount, Sony Entertainment, Twentieth Century Fox, Universal Studios, and Warner Bros. The MPA's work in India was mostly non-obtrusive till 1994 when MPA Asia-Pacific, based in Singapore, started being represented by the high profile legal firm Lall & Sethi Advocates.

They have collectively worked on forming enforcement teams for coordinated raids in Mumbai and Delhi since 1995. Earlier this year, MPA announced its first India office to be set up in Mumbai, called the Motion Picture Distributor's Association India (Pvt.) Limited (MPDA), under the directorship of Rajiv Dalal. Mr. Dalal had previously directed strategic initiatives from the MPAA's Los Angeles office. The MPDA will engage itself in working jointly with local Indian film industries and the Indian government to promote the protection of motion pictures and television rights.

According to the organization's own assertion, in 2006 the MPA's Asia-Pacific operation investigated more than 30,000 cases of piracy and assisted law enforcement officials in conducting nearly 12,400 raids. These activities resulted in the seizure of more than 35 million illegal optical discs, 50 factory optical disc production lines and 4,482 optical disc burners, as well as the initiation of more than 11,000 legal actions.

Indian Music Industry

The world's second-oldest music companies' association, Indian Music Industry (IMI), was first established as Indian Phonographic Industry in 1936. It was re-formed in its present avatar in 1994, as a non-commercial and non-profit organization affiliated to the International Federation of Phonographic Industry (IFPI) and is registered as a society in West Bengal. IMI members includes major record companies like Saregama, HMV, Universal Music (India), Tips, Venus, Sony BMG (India), Crescendo, Virgin Records, Magnasound, Milestone, Times Music and several other prominent national and regional labels that represent over 75 per cent of the output in corporate recordings.

It was one of the first organizations in the country to start the trend of hiring ex-police officers to lead anti-piracy operations. In 1996, IMI hired Julio Ribeiro (a former Commissioner of Police, Mumbai; Director General of Police, Punjab; and Indian Ambassador to Romania) to head its anti-piracy operations. Their anti-piracy work is split into three specific regions, North and North Eastern, Western and Southern and East, each zone headed by a former senior police officer. IMI operates through offices in Kolkata, Mumbai, New Delhi, Chennai, Bangalore and several other cities and towns across India, focusing on surveillance, law enforcement, and gathering intelligence through an 80 member team hired to tackle piracy. During 2001 to 2004, IMI registered over 5500 cases, seized over 10 lakh music cassettes, and around 25 lakh CDs.

Business Software Alliance

Headquartered in Washington DC, the Business Software Alliance has a regional office in Delhi, and has been instrumental in conducting anti-piracy operations across the country. According to the BSA, India ranks 20 in global software piracy rankings, with a rate of 73 per cent while the Asia Pacific average is 53 per cent. China ranks second with a rate of 92 per cent and annual losses of $3,823 million while Pakistan ranks nine with 83 per cent piracy rate. They have engaged the general public in providing them with information on pirated software through an anti-piracy initiative – The Rewards Programme. Launched in 2005, reward amount up to Rs.50, 000, would be provided for information leading to successful legal action against companies using unlicensed software. The reward program was aimed to encourage people to support the fight against piracy and to report software piracy to the NASSCOM-BSA Anti-Piracy Software Hotline.

In 2006, BSA and NASSCOM got a shot in their arms by winning the largest settlement amount for a copyright case in India, with Netlinx India Pvt. Ltd. The case had emerged after a civil raid was conducted at the premises of Netlinx in December 2000, leading to inspection and impounding of 40 PCs, carrying illegal unlicensed software. The settlement includes damages of US$ 30,000, complete legalization of software used by them, removal of all unlicensed/pirated software and submission to an unannounced audit of computer systems during next 12 months.

Industry Enforcers

Bollywood Film and Music companies, such as T-Series and Yashraj Films, have established anti-piracy arms to combat piracy in specific markets. T-Series has been in the industry for over 15 years, as a brand of Gulshan Kumar founded Super Cassettes Industries Limited, and has often been at the forefront for conducting raids along with police officials to check piracy of its copyrighted content. In its latest announcement earlier this year, T-Series launched an anti-piracy campaign against those stealing digital content. The announcement came after they filed a complaint on June 1 with a police station in Mangalore against Classic Video shop for infringement of its copyright works like Billu, Ghajini, Aap Ka Suroor, Apne, Fashion and Karz that had been illegally downloaded and copied onto multiple discs, card readers and pen-drives.

Yashraj Films, a leading film studio, has long been a part of enforcement activities against piracy, both in the Indian market and internationally. Most recently, it was a key member in the formation of the United Producers and Distributors Forum, which also included chairman Mahesh Bhatt, Ramesh Sippy, Ronnie Screwalla of UTV, Shah Rukh Khan, Aamir Khan and Eros International. This organization is now trying to enforce anti-piracy laws by conducting raids across the country with the help of another ex-cop from Mumbai, A.A. Khan. Yashraj Films has also established anti-piracy offices in the United Kingdom and the United States to curb piracy in those markets, as overseas returns of its films, watched by the desi diaspora is one of its largest revenue earning sources. The website of Yashraj Films lists news reports from across US and Europe of instances of crackdown on pirates.

In the context of intellectual property in the creative industries, these anti-piracy agents have successfully created the halo of illegality around the subject of piracy. The discourse on informal networks and circuits of distribution of cultural goods remains hijacked with efforts to contain piracy as the only rhetoric which safeguards the business interests of big media companies and multinational corporations.

For more details visit https://cis-india.org/a2k/blogs/piracy-and-enforcement

IJLT-CIS Law Essay Competition

pranesh — 2011-08-04T04:35:20Z

The Indian Journal of Law and Technology and CIS are conducting a legal essay competition to encourage law students across India to think critically about the techno-legal issues facing us today. Students can write on any of the four themes, with the top prize being Rs. 7500 and an internship at CIS.

The Indian Journal of Law and Technology (IJLT) is an annual law journal published by the Law and Technology Committee of the National Law School of India University, Bangalore. IJLT aims to provide a platform for promoting discussion on issues relating to the interface between law and technology, particularly from the perspective of the developing world.

The Centre for Internet and Society (CIS) is a leading research organisation that engages with issues of digital pluralism, public accountability and pedagogic practices, in relation to the field of Internet and Society, with special emphasis towards South-South dialogue and exchange. IJLT and CIS are proud to announce the 1st IJLT-CIS Annual Law Essay Competition 2009, which is a competition open to undergraduate law students across India. The competition seeks to encourage creative thinking and promote research and writing about crucial legal issues in the field of Information Technology and the Internet.

Themes

Criminality and Second Life: Dr. Jekyll and Mr. Hyde
Trademark and the Internet: Cybersquatting and the Google Adwords-Consim Controversy -- Reasonable Limits to Trademark Protection
3G Services and Spectrum Allocation: Fair Competition, Welfare and Freedom of Speech and Commerce on the Airwaves
Easier to Be Criminals: Judicial and Legislative Responses to Cyber Crime in India.

Judging

The winning law essays shall be determined through a blind review by a panel of eminent academicians in the field of law and technology.

Prizes

Ist Prize: Rs. 7500 and an internship at CIS

2nd Prize: Rs. 5000

3rd Prize: Rs. 4000

Please note that the terms of the above internship shall be decided by CIS on its own initiative, and as such shall not be negotiable. The winning law essay shall be considered for publication in the next issue of IJLT in accordance with the Editorial Policy of IJLT.

Eligibility

The competition is open to all undergraduate law students in any college/law school in India.

Submission Guidelines

The entries must be between 5000-7500 words inclusive of all footnotes. The entries that fall short of or exceed the above word limit shall be penalised.
Substantive footnoting is not permitted and shall be penalised. The use of endnotes or other citation methods is not permitted.
The entries should be accompanied by a 150-word abstract. The abstract is not counted towards the word limit.
All entries should be in Times New Roman, size 12, 1.5 line spacing. The footnotes used should be in Times New Roman, size 10, single line spacing.
The footnotes used should follow a uniform and complete system of citation. However, the use of the Harvard Blue Book (18th edition) system of citation is encouraged.
The entries must be submitted in the Microsoft Word format and with all identifying information removed from the text of the entries and the file properties. The covering e-mail should contain the name, e-mail address, postal address, institution, course and year of study of the author.
The entries must be submitted via e-mail to essay@ijlt.in.
The deadline for entries is 11:59 P.M., 23rd January, 2010.

For any clarifications, please send an e-mail to editorialboard@ijlt.in.

For more details visit https://cis-india.org/a2k/blogs/ijlt-cis-law-essay

CC Salon

radha — 2011-04-05T04:21:24Z

Creative Commons Casestudies, Featuring Status.Net - The Centre For Internet and Society and JAAGA are organising a CC Salon on 02nd December, 2009 at 7.30pm.

Creative Commons Casestudies, Featuring Status.Net

CIS and JAAGA are organising a CC Salon (http://wiki.creativecommons.org/Salon) by Jon Phillps on Creative Commons Casestudies, Featuring Status.Net

Venue: JAAGA

Time: 7.30pm

The aim of this get together is to share knowledge and experiences of alternative copyright licensing. Artists, lawyers dealing with copyright licensing and others are encouraged to highlight their own work, experiences and queries about Creative Commons and other alternative licenses.

An abstract of the presentation and the bio of Jon is given below.

ABSTRACT:

Creative Commons Casestudies, Featuring Status.Net

Creative Commons is a well-known nonprofit organization that increases sharing and improves collaboration. Its key tools are six licenses that fit between public domain and complete control, copyright, to give you control over how your work is shared with the world. This presentation explores high level case studies that use Creative Commons licenses to make a successful project. The key featured case study is Status.Net, a new status updating hosted service and open source software that uses Creative Commons licensing for content.

http://wiki.creativecommons.org/Salon

BIO:

Jon Phillips is a community and business developer contributing to society and building meaningful relationships. In 2002 he helped launch the open source drawing tool, Inkscape and founded the Open Clip Art Library. From 2005 until 2008 he built Creative Commons’ community and business development projects and is currently a Creative Commons Fellow. Currently, he is growing the media company Fabricatorz with Cantocore Art Exhibitions, Laoban Open Soundsystems, and is recently assisting with an upcoming re-launch of Status.Net (Identi.ca). He is known for growing successful open communities globally, leading international business development in Asia (particularly China), and developing Open Marketing.

http://rejon.org/bio/#images

VIDEOS

For more details visit https://cis-india.org/events/cc-salon

Access to online information and knowledge – advancing human rights and democracy

radha — 2011-08-04T04:34:31Z

An article by Achal Prabhala in GISW 2009 (Global Information Society Watch, 2009)

Information and knowledge are crucial factors in human development. We are reminded of this constantly, from the “knowledge economy” we live in, to the emotional and financial power that information and communications technologies (ICTs) have over our lives. In the words of philosopher Francis Bacon, “Scientia potentia est” – knowledge itself is power. Present-day movements for access to knowledge and the right to information have their origins in this simple and arguably ancient idea. Despite a rich history and wide intellectual acceptance, the right to know is not universally granted, and the right to know on the internet is a particularly bitter struggle in many parts of the world.[1]

Information, knowledge and access are terms with a multiplicity of meaning. Even as they constitute an ambitious goal that disparate global actors work towards, it is worth considering how these terms are construed in relation to each other.[2]

“Information” in this context usually refers to government and institutionally held records. Legislation that mandates greater transparency is critical. The earliest example of this kind of legislation was implemented in Sweden as far back as the late 18th century, while countries such as South Africa and India have had theirs enacted as recently as 2000 and 2005 respectively. Freedom of information and the resulting power to make informed decisions are bedrocks of liberal democracy, essential tools for active citizen participation – and the foundation of dominant ideas of the better life, such as that of an open society.

“Knowledge” in its most instrumental sense usually refers to the elements of learning; to scholarly and artistic work and its tools. The access to knowledge movement [3] for instance, works on copyright law reform and the promulgation of open access. Access to knowledge in its present incarnation is a relatively new frame of reference compared to the right to information, which has been demanded for a longer period of time. But it is worth bearing in mind that the underlying theme has always existed and even been expressed, most notably in the hope and anxiety surrounding every disruptive technological shift, from the printing press to the internet.

The most frequently misunderstood term in this troika is, perhaps, “access”. The common interpretation of the term is its strict dictionary meaning, which is to use, to consume, to be allowed entry into or contact with. In relation to information and knowledge, however, and especially since the advent of the internet, access is just as much about production as it is about consumption. Knowledge is not something that Northern countries produce and Southern countries consume; it is a vast and porous domain that consists of formal and as yet unrecognised realms, all of which are growing and evolving. To read is a necessary precondition to being able to write; access, by analogy, implies entry not just into the world of knowledge consumption but also knowledge creation.

One manifestation of this fusion is Wikipedia, the encyclopaedia that is collaboratively produced online. Granted, many more people read Wikipedia than edit it. Nevertheless, for a growing global volunteer base, it is simultaneously a place to read and consume as well as edit and produce. In a similar vein, it is access to information that propels people around the world to intervene in public processes and change laws; without the information, there could be no change.

With regards to government information, it is important that not only are there mechanisms put in place that facilitate access to it, but also that these mechanisms work. The history of events leading up to the enactment of the Right to Information Act in India provides valuable lessons as to what the scope of government information should be, in how punitive measures can be implemented to guarantee that the process works, and, above all, as to how marginalised citizens can gain the space and the means to use the law to their advantage [4] To a large extent, the rich genealogy of the right to information has naturalised it as an obvious, just and urgent issue. Furthermore, it is an umbrella concern, covering as much as specific local contexts demand.

In contrast, the movement for access to knowledge works primarily on one crucial barrier, namely, intellectual property. For some, this focus is problematic. If, for instance, knowledge is imparted by education, then isn’t access just as much hampered by the lack of skilled teachers as restrictive intellectual property laws? This is certainly true, and yet, there are at least three good reasons why this narrow focus makes strategic sense.
One: education is a long-standing priority of societies and governments the world over, and there is an inestimably large group of individuals and institutions who work in the area. However, relatively few people are aware of the impact of intellectual property on access to educational material, and even fewer research it.
Two: the advent of the internet has created hitherto unprecedented opportunities in the knowledge domain, opportunities that could turn into unrealised potential if the application of intellectual property online is decided by copyright industries alone.
Three: knowledge is more than just formal education, and the internet provides limitless ways in which it can be redefined and multiplied. The overzealous application of intellectual property significantly limits the manner in which knowledge operates online.

A chain of events that unfolded in France over the last two years dramatically illustrates the level of threat faced by those seeking information and knowledge online. In 2008, at the insistence of the domestic recording industry, the French government began considering the enactment of a law designed to thwart online piracy. As industry forces pressed on and Nicholas Sarkozy added his support, the effort culminated in a bill that would be popularly known as HADOPI [5] after the enforcement agency it intended to create. HADOPI employed the three strikes principle. If an internet user was found to have committed an act of piracy, the copyright holder in question was entitled to warn the user through HADOPI. No details as to the exact nature of the copyright violation were required to be provided other than that a violation had occurred. After three such warnings, internet service providers (ISPs) in France would be mandated under HADOPI to bar the user from being allowed access to the internet for a period of up to one year.

The prospect of HADOPI had people up in arms. A broad coalition of internet users, consumers and their allies quickly assembled in France and elsewhere in the world. To users in France, it represented an immediate threat; to users elsewhere in the world, it represented the extent to which their online freedoms could be restricted in the future. Apart from the draconian nature of the punishment meted out by this bill, users were outraged that every kind of misdemeanour – whether deliberate, inadvertent, supposed or even mistaken – would be treated the same, with the benefit of doubt given to the copyright holder. [6]

Throughout 2009, the bill faced several setbacks, including a complete rejection by the French National Assembly. But its backers pushed on, eventually winning approval after modifications; until 10 June 2009, when the Constitutional Council of France struck down HADOPI on the grounds that it was inconsistent with the country’s Constitution – for going against freedom of expression and the presumption of innocence.

To involve infrastructure providers (ISPs) in enforcing private copyright disputes and suspend user privileges in the wake of alleged copyright violations, as HADOPI wished to do, was admittedly an extreme step. But there are other, less visibly harmful ways by which access to online information and knowledge is threatened and thwarted, and the problem is that some of these ways appear innocuous – though in fact any investigation of them would provide cause for serious alarm. Of the many concerns that exist, at least a few deserve our immediate attention:

Digital Rights Management (DRM) and Technological Protection Measures (TPMs);
copyright law provisions that affect online education, whether by distance or in a physical classroom setting, or in a library;
the lack of provisions that would meaningfully allow disabled learners and users (particularly the visually disabled) to access information and knowledge online; and
the extent to which users can usefully integrate online copyrighted material into their lives in a manner that would be considered fair.

A primary anxiety around copyrighted material in the online environment has been, on the part of copyright industries, how to regulate the flow of exchange. Previous to the advent of mass use of the internet, a song or a book was limited in its capacity for exchange by the physical, tangible form it came in. With the proliferation of digital material and peer-to-peer systems, however, the possibility for exchange is virtually boundless, and this makes content industries nervous – for it signals the end of an already outdated business model and the beginning of another. In return, industry retaliation has consisted of a strategy of lockdown. The tools of this strategy are DRM and TPMs – software that regulates what one can do with a digital file, or rather cannot do – and the vehicles by which these are legislated and proliferated around the world are a set of World Intellectual Property Organization (WIPO) agreements collectively known as the WIPO Internet Treaties.[7]

DRM is oblivious of the specific circumstances of the user, and is therefore unaware of both the user’s individual needs as well as her rights – for example, the nuances of copyright law in the country of the user’s residence. It doesn’t matter therefore that a user may be blind, or work for a public library, and that national copyright law in the country might specifically extend provisions to visually disabled people and libraries (for instance, by enabling permission-free format changes and reproductions for research). DRM will still operate on a one-size-fits-all model that supersedes national law. In some countries, fair dealing – or fair use – might allow for ways of personal consumption of copyrighted material that the DRM withdraws, resulting in a situation where the whims of a multinational industry render national law meaningless.

DRM is software that can be hacked – up to an extent. In this way, it is still possible for users to legitimately exercise their rights with and upon DRM-protected material. Yet, following the model of the Digital Millennium Copyright Act (DMCA) – the United States’ (US) interpretation of the WIPO Internet Treaties – many countries have legislated that such circumvention constitutes a copyright violation. In some cases this renders sections of their own copyright law redundant, and in effect, casts an unnecessarily heavy shroud over certain copyrighted material merely because it happens to be online. More worryingly, the WIPO Internet Treaties themselves do not ask of countries that anti-circumvention provisions apply even when a user is exercising a legitimate right such as fair use, and yet countries around the world have allowed their laws to imply so [8] because of bilateral persuasion, often from the US or the European Union, without a clear understanding of how this can stunt the potential of the internet within their borders.

It must be noted that copyright law in general – in most countries around the world [9] – generally does not do enough for access to knowledge. To the extent that the majority of the world learns not online but from the printed and spoken word, copyright law in its general application matters tremendously. When considering the potentially limiting aspects of copyright regulation online, one must keep in mind that many countries around the world do not have the kind of provisions that could be limited by new regulation of online material. In fact, most countries do not expressly facilitate distance learning, nor make all the provisions they can for access for the visually disabled, or freedom of information, or even education in general. [10] In part, this is because ever since the globalisation of intellectual property rights, including as recently as the founding of the World Trade Organization (WTO) in 1996 and the instituting of its Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), [11] there has been a distinct shift away from the minimum copyright protection demanded by this trade rule to a maximally protectionist approach.

In the majority of national circumstances today, copyright law is what is referred to as TRIPS-plus, which is to say, excessively protective of copyright-holders’ interests. The excess is overwhelmingly in favour of copyright industries and at the expense of users of copyrighted material. In such a situation, when copyright as it applies offline is already imbalanced, it is even harder to demand a balanced interpretation of copyright in the online space.

Finally, it hardly needs repeating that without a strong sovereign commitment to freedom of speech and information – in effect, a guarantee against censorship – any gains made in access rights stand to be nullified. And this commitment, worryingly, is by no means universally evident.

For one understanding of the right to know, see Stiglitz, J. (2009) On Liberty, the Right to Know, and Public Discourse: The Role of Transparency in Public Life, Oxford Amnesty Lecture, Oxford, UK, 27 January. siteresources. worldbank.org/NEWS/Resources/oxford-amnesty.pdf
For an understanding of how countries restrict access to the full potential of the internet, see Reporters Without Borders’ list of “Internet Enemies”: www.rsf.org/List-of-the-13-Internet-enemies.html
Naturally, all three words offer a wide scope of understanding. The descriptions that follow are only an attempt at clarifying a functional definition, not at fixing definitive meaning.
The movement for access to knowledge (sometimes abbreviated as A2K) refers to a loose grouping of individuals and institutions who work locally as well as on a potential international treaty on access to knowledge; an early draft is available at: www.cptech.org/a2k/a2k_treaty_may9.pdf
For an understanding of the concerns of a key Indian social movement, the Mazdoor Kisan Shakti Sangathan (MKSS), in the years leading up to the enactment of India’s Right to Information Act, see Sampat, P. and Dey, N. (2005) Bare Acts and Collective Explorations, in Narula, M. et al. (eds.) Sarai Reader 05: Bare Acts, Sarai, New Delhi. www.sarai.net/publications/readers/05-bare-acts/02_preeti.pdf
HADOPI: Haute Autorité pour la Diffusion des OEuvres et la Protection des Droits sur Internet (High Authority for the Diffusion of Works and the Protection of Rights on the Internet).
For one account of the story of HADOPI, see O’Brien, D. (2008) The Struggles of France’s Three Strikes Law, Electronic Frontier Foundation. www.eff.org/deeplinks/2008/05/struggles-frances-three-strikes-law
The WIPO Internet Treaties consist of the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT).
For instance, in a recent eight-country study in Africa, it was found that Morocco, Kenya and Egypt all have anti-circumvention provisions enacted into law. See the ACA2K Briefing Paper for the WIPO Development Agenda meetings, April 2009: www.aca2k.org/attachments/180_ACA2K%20Briefing%20Paper1_WIPODevtAgenda-042009.pdf
Among several country studies, regional and international reports, one recent survey that confirms this finding is the Consumers International IP Watch List report for 2009, in which it is reported that in relation to access to knowledge, “no countries adequately took account of consumers’ interests.”
See:a2knetwork.org/sites/default/files/ip-watchlist09.pdf
Ibid.
TRIPs is currently the overarching international trade rule that governs the global sovereign application of intellectual property; for the full text of the TRIPs agreement, see: www.wto.org/english/tratop_e/trips_e/trips_e.htm

Link to the original article

For more details visit https://cis-india.org/a2k/blogs/access-to-online-information-and-knowledge

At the end of the niche optical pirate

siddharth — 2011-08-04T04:44:58Z

In this blog post, Siddharth Chaddha goes enquiring into the modus operandi of a video pirate / film lover / businessman in Bangalore's famed National Market.

Getting to the National Market

Wading through Majestic Bus Stand, Flea Markets, Private Bus Stops and vehicles going around in circles, you could almost miss this board outside one of the shopping plazas. NATIONAL MARKET, the famed "pirate market" at the heart of the city. Most of the business here is illegal and the local police raid the thirty odd shops selling goods, which within the purview of any multilateral agreement under WIPO or TRIPS regime would be an infringement of copyright, at least once a month. The shops run shutter to shutter, each one five by four feet. Crowded with sellers and customers, all pirate markets typically smell the same. Pirated DVDs, DVD players, Chinese mobile phones and PDAs, even VHS players of the yore, smuggled MP3 music systems, fake Ray-Bans and Police sunglasses, gaming consoles. You name it, and National Market has it.

Meet the Pirate

Tall and sporting a stubble, Sooraj (name changed) is a Malayali who has been in the trade for over 8 years. "Earlier, I used to have the best English Movie collection ever. But now, its all going away. Most people have shifted from DVD's to Digital Storage and Bit Torrents", says Sooraj. A family comes across the counter. A middle aged man accompanied by two women in a burqua, one of them carrying a young baby boy in their hand. "Tom and Jerry!", says the man and Sooraj's helper brings out a carton full of animated Hollywood films. Finding Nemo, The Lion King, Madagascar, its all there. "No Tom and Jerry. This doesn't have Tom and Jerry", growls the stout customer. Sooraj jumps into the action, hunts out a DVD from a stack and puts it on the table. "Tom and Jerry Tales - 13 episodes", reads the the outside with a classic Tom chasing Jerry picture on the cover. Satisfied, the family puts it aside and goes on to explore other popular cartoon series. In the end, the man calls for Maharathi, a recent Bollywood flick. He looks at the cover intriguingly and I decide to butt in, "Amazing movie. Just saw it last week. Great plot." The deal is seized and after a bout of bargaining over the price. As the family dissolves into the market, Sooraj turns back and says to me, "A lot of customers bargain. I get a headache. And my shop is the first one in the market, inside people operate on margins of 5-10 rupees. That just ruins everything for us. They don't think of the amount of the risk involved."

The Business of Piracy

Sooraj explains to me how Chennai is the biggest market of the South. "Chennai is a sea. You will get everything there. Once you take a dive in that ocean, it's all there." When I ask him of the chain of distribution, he says, "No one will say that I print the covers of fake DVDs or I copy prints. For me, I just call my distributor and everything comes from Chennai. I don't ask beyond that. The stock comes in the price range of 25-35-40 Rupees. Now, there is only one quality of stock. The market is dying. No one has good stock. Earlier, we used to sell DVDs for Rs.70-80. Now, there is no demand. Even the wholesale business is at a low.'' I ask him, "So what are you going to do, now that soon DVDs will be gone?" Sooraj is not flustered. "We will shut this and start a new business," he says. I quietly step back, as another customer comes asking for audio CDs. He doesn't deal in those.

Enforcement Threat

When the customer is gone, I ask him, "How often does the police raid this market?" He smiles and replies, "Not often anymore. The business is almost dead. But yes, they come sometimes. Then you are taken away and a case ensues." I decide to ask him candidly, "How many times have you been booked?" He smiles again. "5-7 times. I have a few cases pending, dates that I have to go and visit the court. They arrest you for a day but that's all they can do. After all this is not a big crime." He continues dealing with customers who have various demands for music and films. Some he sells to, he guides others to the inside shops. "I sell about a 1000 DVDs everyday. Earlier, the figure used to be much higher. Mostly English. Hindi, Tamil and Telugu too. No Kannada," he volunteers. I probe further, "Why no Kannada?" He says that that he supports protection for their own industry. "And the market price for Kannada films is appropriate. Some are Rupees 60, 90, 110. That's reasonable. We do not need to pirate it."

I ask him for Tamil titles. He asked if I wanted Ghajani. “I saw it when it released. Give me something that's worth watching.” He picks out two. Saroja and Subramaniya Puram. He doesn't make a profit in this deal but something tells me that he is happy to spread the love of good films. "Can I click a picture?" He refuses, saying it would not be a good idea. I shake his hand. Until next time.

For more details visit https://cis-india.org/a2k/blogs/at-the-end-of-the-niche-optical-pirate

Arguments Against the PUPFIP Bill

pranesh — 2011-09-12T11:03:09Z

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

Summary

How is the legislation unnecessary?

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

How is the legislation harmful?

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

Arguments

How is the legislation unnecessary?

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

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

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

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

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

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

How is the legislation harmful?

1) Excessive patenting lead to gridlocks and retard innovation.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Footnotes:

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

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

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

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

Additional Resources

On the PUPFIP Bill

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

On Bayh-Dole

Newspapers and Magazines

Academic Journals

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

Resources

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

Centre for Internet and Society

Research Project on Open Video in India

Project Timeline

Summary of Outputs

Survey Paper

Basic Assumptions

Suggested Methodology

Next Steps

March 2010 Bulletin

News Updates

Upcoming Events

Research

Telecom

The First IJLT-CIS Lecture Series on Jurisdictional Issues in Cyberspace

CI Global Meeting on A2K

Arguments Against Software Patents in India

Preamble

What are Patents?

Philosophical Justification Against Software Patents

Legal Case Against Software Patents

Practical Reasons Against Software Patents

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

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

Term of Patents

Software Industry Progressed Greatly Without Patents

Copyright Exists for Software

Insufficient Disclosure

Software Patents Work Against Free/Libre/Open Source Software

Conclusion

No Software Patents: Meetup at CIS on February 6

Year Ahead Copyright 2010: Between An Enforcement “Gold Standard” And Stronger Limitations

ACTA and Enforcement

Rethinking Limitations and Exceptions

National Copyright Reforms and FTAs

Contracts Instead of Copyright?

CIS Statement on the WIPO Broadcast Treaty at SCCR 19

CIS Statement on the WIPO Broadcast Treaty at SCCR 19

Statements by other organizations on WIPO Broadcast Treaty at SCCR 19

Piracy Studies in India

Special ‘301’ Reports

The Effects of Counterfeiting and Piracy on India’s Entertainment Industry

Sixth Annual BSA and IDC Global Software Piracy Study

Motion Pictures Distributors Association’s Internet Piracy Studies

Enforcement of Anti-piracy Laws by the Indian Entertainment Industry

International Intellectual Property Alliance

Motion Pictures Association

Indian Music Industry

Business Software Alliance

Industry Enforcers

IJLT-CIS Law Essay Competition

Themes

Judging

Prizes

Eligibility

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Arguments Against the PUPFIP Bill

Summary

How is the legislation unnecessary?

How is the legislation harmful?

Additional resources

Arguments

How is the legislation unnecessary?

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

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

How is the legislation harmful?

1) Excessive patenting lead to gridlocks and retard innovation.

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

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

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

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

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

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

Additional Resources