Centre for Internet and Society

India - Europe Conference on Building a Sustainable IPR - ICT Ecosystem for Promoting Innovation

praskrishna — 2015-12-22T02:48:04Z

Centre for Development of Advanced Computing (C-DAC), Pune organized a one-day conference in Bangalore on November 20, 2015. Rohini Lakshané attended this event.

Intellectual property is at the core of business ventures and critical to successfully compete internationally. However, skills to commercialize technological innovations remain a crucial impediment to innovative entrepreneurs and innovators aspiring to become world leaders in global ICTE markets. A robust IPR-ICT ecosystem can help capitalize on the growth-enhancing effects of innovation vis-à-vis ICTE. In order to fulfill the aspiration of its stakeholders, the IPR-ICT ecosystem has to be global in geographic scope, spearhead shaping appropriate framework conditions for innovation and assist in charting out policy roadmaps for sustainable and inclusive growth.

With this in mind Deity and EPO is working together in developing a close cooperation to promote IPR in ICTE domain, especially with respect to sharing of best practices and procedures for filing and processing ICTE patents in India and Europe by Indian and European firms.

The one day conference on “India-Europe Conference on Building a Sustainable IPR-ICT Ecosystem for Promoting Innovation” organised by Centre for Development of Advanced Computing (C-DAC), a premier R&D organisation, aims to address the challenges in building a sustainable global IPR-ICT ecosystem, discuss IP policy issues relevant to Indian and European ICTE industries and concord on various nuances of patenting technology and activities with an ICTE perspective.

Sessions

Parallel 1

11.00 - 13.00: Challenges and Opportunities in Building a Sustainable Global IPR Ecosystem for Promotion of Innovation in ICTE Sector
14.00 - 15.30: IPR Policy Perspective for Promoting Innovation -India and Europe

Parallel 2

14.00 - 15.30: Standard Essential Patent Issues and Perspective with regard to ICTE
15.45 - 17.15: Patent Information and Analysis: A Tool for Building Business Strategies

For more information and brochure of the event, visit this website.

For more details visit https://cis-india.org/a2k/news/india-europe-conference-on-building-a-sustainable-ipr-ict-ecosystem-for-promoting-innovation

An Interview With Arjen Kamphuis

sachia — 2011-08-18T05:01:53Z

In an email interview with the Centre for Internet and Society, Dutch open source activist Arjen Kamphuis discussed his experience of successfully working with the government for a policy mandating open standards for all government IT in the Netherlands.

In 2002 Arjen Kamphuis co-authored a parliament motion to mandate open standards for all government IT in the Netherlands. The motion was unanimously accepted and, in 2007, became policy. The Netherlands thus became the first western country to make the use of open standards in public sector IT mandatory. Arjen is now working to e xport this set of policies to other European countries with the help of local political parties and business partners.

Arjen discussed his experience of lobbying for this policy change and some other questions related to his work as a consultant on IT strategy and the implications of nanotechnology and biotechnology in an email interview with the Centre for Internet and Society.

The Centre for Internet and Society: What is the Dutch government's policy on FOSS and Open Standards specifically and intellectual property rights in general? Provide some history, name the main lobbying factions in the Netherlands and their policy positions. What was your role in the formulation of these policies?

Arjen Kamphuis: The national action plan 'The Netherlands in Open Connection' is the government's answer to a unanimous vote in parliament in November 2002. The parliament stated that the market for desktop software was not functioning as it should and that significant vendor lock-in effects were harming both individual citizens and society as a whole. It requested maximum efforts from the government to change this situation. The suggested method for changing was mandating open standards in all public sector IT and actively supporting the adoption of open source software wherever functionally and technically feasible.

I was one of the people who got this process started by contacting a member of parliament from the Green Party. This was triggered by my inability to access the website of the national railway on 1 January 2002. The website had been redesigned and only allowed access to visiters with Internet Explorer. As a Linux user, I had previously had comparable problems with local government websites and electronic tax forms (usage of which was mandatory for small businesses like my consulting start-up).

After the unanimous vote in parliament, several people in the Dutch open source community, including me, kept the pressure on the government by monitoring major procurements and writing questions for the Members of the European Parliament (MEPs) to ask the government. In 2004 this led to a breakthrough when the Justice Ministry ran a project to procure 147 million euros' worth of desktop software without going through a proper multi-vendor selection process. They only talked to one vendor, and that is against European Union regulations. Since some of the civil servants working on this project were gagged, we can conclude that some people were aware they were breaking the law, yet went ahead anyway.

When the news broke we made sure the MEPs were armed with the proper questions the next day, and the contract was dropped. In reply to questions asked to the government by the MEPs, the responsible ministers admitted that the government was very dependent on Microsoft for basic functioning of its office environments; that this was a problem; and that the government would take active steps to remedy this situation by moving forward with the requests made in 2002 by parliament.

Two-and-a-half years and an election later, a new under-Minister for Economic Affairs, Frank Heemskerk, took up the challenge and promised a comprehensive policy. I gave input for this plan in mid-2007 and it was formally published and adopted later that year as a national policy for all government and public-sector (i.e. tax funded) organisations.

The policy has three objectives:

improving interoperability between public sector organisations;
lowering the vendor-dependence of the public sector;
improving the functioning of the software market and supporting the Dutch knowledge economy

Some of the practical measures are the mandating of the use of open standards in all public sector organisations. Whenever software is procured, open source should be considered and preferred whenever functionally adequate. These two very basic rules change the entire market for IT in the Dutch public sector (40% of the entire market) and is having a profound effect on the way software vendors offer their products as well as the negotiating power of the client organisations.

I continue to advise both the decision makers and the civil servants overseeing the implementation of the policy.

CIS: What is the current status on the implementation of these policies?

AK: After a slow start the government organisation that is responsable for overseeing the implementation is now up and running. The basic problem is lack of awareness about both the practical value that open standards and open source software can contribute and the underlying political reasons for making it the preferred option for government information processing.

Thus a lot of the work for the next few years will be communicating these ideas to civil servants (be they IT professionals or managers who have other jobs). The policy helps a lot because it puts some serious weight behind the whole process. The fact that government organisations have to support Open Document Format for instance significantly heightens their interest in the technical subject matter!

So the policy gives the drive needed to get things moving and now it is up to us to communicate the how and the why in a way that is understandable for people who are new to these concepts. I have no doubt it will be a long process, we have over 20 years of proprietary legacy built up in our public institutions. Replacing those systems with open alternatives will take many years. All the greater a reason to proceed with some urgency.

The complete policy document has been translated into English and released under Creative Commons Licence:
http://appz.ez.nl/publicaties/pdfs/07ET15.pdf

In December 2007 I gave a talk in Berlin. Here a summary, slides and video are available:
http://events.ccc.de/congress/2007/Fahrplan/events/2387.en.html

CIS: What can a country like India learn from the Dutch government's experience in eGovernance and ICT in Education?

AK: I am not familiar with the Indian political process but these are some of my lessons learned:

- The government will not do anything unless constant and significant pressure is applied by citizens. Politicians and civil servants only act if the pain of acting is less than the pain of not acting. Change is achieved by citizens standing up and working on these problems without guarantee of any reward or even achieving any results (it took us five years to get from a unanimous vote in parliament to an actual policy).

- Big IT companies may be your friend or your enemy. But even if they are your friends they generally will not be at the forefront of political action that could be seen as controversial. Once policies are pushed beyond the controversial stage and have been adopted as official policy some of them will support it. Others, with much to lose, will fight you and the policy every step of the way. The more money or loss of market share is involved the more radical the methods that are employed. Massive lobbying, applying political pressure through foreign governments, bribery and all kinds of other activities are well-funded, well organised and very common.

- In moving forward with these policies it's the lack of knowledge and vision with the the management of institutions that is by far the biggest bottleneck. Without a clear policy from the top it is impossible to get things moving in most organisations.

- Another big problem in switching over local governments and other smaller organisations is the fact that many of the advantages of such a switch is national and/or macro-economic in nature while the initial cost and risk is micro-economic in nature. Hence again the need for a national policy.

- The funding required to make significant improvements is often not that large compared to the existing operational budgets. Investing in the smart use of IT in education for instance is something that can pay for itself very quickly. This is generally also true for adoption of open source and open standards in general. By just reducing the yearly spend on software licences by 1% the entire government program can be funded.

- Simply stopping the procurement of new licences (while continuing the use of those already paid for) can often free up enough money to finance a migration process. This has been the case in the city of Amsterdam and the French Gendarmes.

- The actual value of better government services or education is hard to quantify in monetary terms. How do we value improved responsiveness, transparency, national sovereignty in information processing and supporting local service companies instead of foreign software companies?

- IT education should focus on understanding methods and principles, not products. The product life-cycle is 18-36 months, the educational process takes many years and the length of a career is decades. Any education with a focus on products leads to knowledge that is irrelevant by the time the degree is finished. Teach people to drive a car, not just a Volkswagen or Tata.

- The cost of physical books per student per year in the Netherlands is now greater that the cost of a laptop. This is insane since the content of those books is generally written by teachers who get paid very little for it. Using the funds to pay those teachers instad of the publishers and releasing the content under a free licence will free up resources to develop better educational programs and provide all students with computational tools to use them. All without increasing the total cost compared to our current situation. The financial numbers will be different for India but the basic principle is the same and works even better given the larger scale of India. The cost of producing and distributing electronic educational content will drop practically to zero when compared to physical on a per-student basis. Using funds to support teachers in the use of e-learning with open content is the way forward.

CIS: How can a local support environment for open technologies be created? Can local SMEs ever substitute for the transnational proprietary giants?

AK: Whether SMEs can supplant multinationals depends on the product being replaced. CPU manufacturing requires a very high upfront investment in R&D and manufacturing capability. This is usually far beyond any but a handful of companies. With software development and services things are very different. Software development only requires a human with programming skills, a good idea and a computer. The Free Software Movement has shown clearly that distributed methods of software development can lead to high quality products with excellent local support systems. Local organisations (or communities that are not even organisations) can often understand local needs and respond to local changes much better, faster and cheaper than large, lumbering corporations. If local organisations work together globally to share knowledge (and code) for those parts they all need they can beat any centralised system.

What many senior business and government leaders are struggling with is the realisation that many of the 'truths' they have learned while studying economics or business management or some such subject turn out to be empirically incorrect. For example: it has become clear there is no causal relationship between the cost of software and its quality or utility. This must be a fact that is difficult to truly understand and accept if you have been brought up believing the gospel of the Anglo-Saxon economic worldview. The current economic crisis is a great help in questioning some of those beliefs and opens up room for new ideas about economic vs. societal value of technology and its relationship to businesses trying to earn a living.

CIS: Could you tell us about the Dutch government's rollback on electronic voting machines? What is your opinion on the use of electronic voting machines in the upcoming elections in India?

AK: From the mid '80s onward, voting computers were introduced in the Netherlands. By 2006, the vast majority of all elections were being performed by proprietary computer systems. Citizens would press a button and then go home to watch TV. Some software that no-one could control, monitor or properly audit would spit out a result and that would be it -- new government. Only a handful of engineers (all working for the companies that made the voting computers) actually knew what the software did and could make the computer system say anything they wanted.

When the city of Amsterdam (the last holdout using paper ballots) announced in 2006 that it was moving to voting computers, a group of activists organised a campaign to ban voting computers. We felt that the very nature of democracy was under attack by running the election process in a way that makes it impossible for ordinary citizens to check the validity of the election. It also makes fraud a lot harder to detect. Detectability of fraud is the one of the primary properties any election process should have. We all know election fraud is also possible with non-electronic means but keeping it a secret is much harder in such cases (as we saw in the US and Zimbabwean election over the last years). There was a actual case of suspected voter fraud in a Dutch municipal election and the judge concluded that while the fraud seemed likely it could not be proven. Regrettably for the suspected council member the fraud could also not be disproven. This shows very clearly that such a method is wholly unsuitable for application in real democratic processes.

Through lots of media attention, a few spectacular hacks showing the technical insecurity of the systems, and legal pressure, we forced the government in 2007 to reverse the approval of the voting computers and go back to an all-paper balloting system. This reversal is part of a global backlash against electronic voting systems. Comparable changes have been going on in many US states and all over Europe.

I think India should have voting process that can be understood and monitored by its citizens. This understanding and monitoring should be possible without requiring advanced degrees in computer science, software engineering and electronics. The only way to have such a process is when there is a paper ballot involved. Such a ballot could be printed by a computer to increase the ease of use but all-electronic solutions are ruled out by the basic demands of what a democracy is.

India should move to either all paper systems or voting computer backed-up by a voter-verified paper trail.

Are more extensive telling of the tale can be found here: http://wijvertrouwenstemcomputersniet.nl/English

This is a link to the Berlin CCC conference of Rop Gongrijp's 2007 presentation (with video): http://events.ccc.de/congress/2007/Fahrplan/events/2342.en.html

http://www.blackboxvoting.org has a wealth of information on this subject.

CIS: What are the services provided by Gendo? Could you describe some of the projects that you have undertaken?

AK: My company (gendo.nl) also provides consulting services in the area of IT strategy, development of open IT architectures and implementing those in mixed open source/proprietary environments. We are currently advising both national and local government organisations in the implementation of policies and plans to move to open standards and open source software. We are also involved in projects where we do the actual development and implementation of new systems to enable innovation and lessen the dependance of our client on proprietary systems. Currently we are involved with a healthcare organisation where we are assisting in re-architecting their entire IT environment to allow service innovation, lower cost and increase information security.

We have also been involved in information security work and other auditing in the financial services and government sector. Here our activities focus on the grey area between technology and process.

Outside the field of IT we also do other consulting work such as scenario planning and strategic future studies, mostly for large corporate clients. Most of the big Anglo-Dutch multinationals such as Shell or Unilever are on our client list. We also have a large number of clients in the financial services and insurance sector.

For all of these clients we organise presentations and brainstorming sessions, often preceded by research. This helps the leaders in those organisations think about the nature of rapid, technology-driven changes in their markets and the world in general. These insights are then translated into new products, services and ways of delivering them.

Forgive me if this all sounds a bit vague but with many of these clients there is some confidentiality agreement involved.

CIS: Could you tell us more about yourself? Maybe you would like to share some formative experiences.

AK: Writing my first paper on black holes at age 11 showed me that grown-ups usually also don't know what is going on in the universe either. Despite rumours to the contrary parents, teachers, senior managers and politicians are not all-knowing and are stumbling about just like most two-year-olds where complex issues are concerned.

Over the last quarter century I've had this intuition reconfirmed again and again. In a world that is changing faster and faster experience becomes obsolete rather quickly and wisdom is no longer the sole purview of older, more senior, people. We need young smart-asses who have not yet learned what is impossible, so they go out there and do it.

-----

Arjen Kamphuis (born 1972) studied Science & Policy at Utrecht University and worked for IBM as Unix specialist, Tivoli consultant and software instructor. As IT-strategy consultant at Twynstra Gudde he was involved in starting up Kennisnet, the Dutch educational network. Since 2001 he is operating as an independent adviser of companies and governments. He co-authored, in 2002, a motion in parliament that ultimately turned, in 2007, into a full-fledged policy of the Dutch government mandating the use of open source software in all government and public sector IT operations.

Arjen at present divides his attention between IT-policy and the convergence of IT, biotechnology and nanotechnology and its social and economic implications. His customers include: Shell, Unilever, Pfizer, Stork, and various hospitals, governmental institutions and insurance companies. Arjen guest lectures on technology policy at various universities and colleges.

When not consulting Arjen is actively involved in (digital) civil liberties, the open source movement and criticizing the war on terror.

For more details visit https://cis-india.org/openness/blog-old/an-interview-with-arjen-kamphuis

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

Land and Social Justice - An introduction to Georgism

praskrishna — 2013-04-28T07:06:03Z

Cherry G Mathew will be giving a public talk on Georgism at the office of the Centre for Internet and Society in Bangalore on April 12, 2013, from 5 p.m. to 7 p.m.

Abstract

In his popular book of the 1870s "Progress and Poverty", Henry George examined the causes of Poverty in contemporary America, and proposed very specific solutions for economic justice. "His genius has been glowingly acknowledged by such renowned figures as philosophers John Dewey and Mortimer J. Adler, presidents Woodrow Wilson and Dwight D. Eisenhower, scientists Alfred Russel Wallace and Albert Einstein, essayists John Ruskin and Albert Jay Nock, jurists Louis D. Brandeis and Samuel Seabury, columnists William F. Buckley and Michael Kinsley, and statesmen Winston Churchill and Sun Yat-sen.", while being heavily criticised by Karl Marx (who referred to George's teaching as "Capitalism's last ditch."[*]

This talk will make a brief introduction to George's Ideas, and then will attempt to draw discussion on their relevence to information and current copyright and intellectual property landscapes.

Cherry G. Mathew

Cherry G. Mathew is a British Chevening Scholar and an Open Source Kernel Hacker. He has worked on the Linux kernel in the past, and is an active FreeBSD and NetBSD developer/committer. He is an Electronics Engineer by basic training, with a Masters in Evolutionary and Adaptive Systems. He has worn various hats professionally, from Technical Developer, Roboticist, Free Software campaigner, CEO, volunteer teacher and currently software consultant. His current area of professional work is the Xen hypervisor and BSD kernels. His non-technology hobbies include outdoor pursuits and swing dancing.

Click to see the presentation

[*]. http://bit.ly/13HZg7m (Retrieved on March 29, 2013).

For more details visit https://cis-india.org/a2k/events/land-and-social-justice-an-introduction-to-georgism

5th Global Congress on IP and the Public Interest

Admin — 2018-10-02T03:01:50Z

Sunil Abraham, Anubha Sinha and Swaraj Paul Barooah attended the Global Congress on IP and the Public Interest, in Washington DC, from September 24 - 29, 2018. The event was co-organized by PublicCitizen, Washington College of Law, American University, O'Neill Institute and the American Assembly, Columbia University.

CIS participated in several of the sessions spread over the 5 days:

Anubha Sinha attended the pre-Congress trainings on Users' Rights, and Internet and Trade on September 24 and 25, 2018.
Sunil Abraham and Anubha Sinha attended a WIPO SCCR Strategy meeting organised by Knowledge Ecology International, DC.
Swaraj Paul Barooah made a presentation at the Microsoft Panel Event titled "Intellectual Property and Artificial Intelligence" held at the Microsoft Innovation and Policy Centre. His co-panelists were Pam Samuelson (Berkeley Law), Niva Elkin-Koren (Uni of Haifa) and Pedro Mizukami (Founder of Centro, Brazil). The session was moderated by Mike Carroll and Christine Farley (both of American University).
Anubha Sinha and Sunil Abraham along with Jorge Contreras (University of Utah), spoke on the panel titled "Fueling the Affordable Smartphone Revolution in India" where they presented work on the PT project.
CIS signed on as supporting members to the Civil Society Proposal for a Treaty on Education and Research Activities (TERA) which was formally finalized and made ready for organizational and individual endorsements. The treaty can be viewed here.

For more info on the sessions click here

For more details visit https://cis-india.org/a2k/news/5th-global-congress-on-ip-and-the-public-interest

Broadcasters Eager For Global Signal Protection; Others Warn Of Major Players Sneaking In

Admin — 2018-10-16T13:55:10Z

Anubha Sinha was recently part of a panel discussion on broadcast treaty.

The article by Catherine Saez was published in Intellectual Property Watch on October 9, 2018.

The so-called broadcasting treaty being negotiated at the World Intellectual Property Organization is supported by broadcasters’ organisations in the hope that it will stanch signal piracy. Some voices however, warn about creating a right that might be captured by large internet corporations such as Facebook, Google and Netflix, which can be a stone’s throw away from acquiring radio or television channels to qualify for the protection of the potential treaty. They also challenge the duration and scope of the protection. A seminar gathering stakeholders last week looked at implications of the treaty.

Knowledge Ecology International organised a seminar on 3-4 October gathering civil society speakers, international organisation representatives, and a representative of the broadcaster community.

Discussions were based on a working document [pdf] for a treaty on the protection of broadcasting organisations, and a revised consolidated text [pdf] on definitions, object of protection, rights to be granted and other issues, prepared by the SCCR Chair Daren Tang of Singapore, to be discussed at the next session of the WIPO Standing Committee on Copyright and Related Rights, from 26-30 November.

Broadcasters: Current Protection not Sufficient

Heijo Ruijsenaars, head of intellectual property law at the European Broadcasting Union, explained the need for broadcasters to have additional rights going beyond the 1961 Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations.

Key reasons for a treaty include the need for broadcasting to protect their investment in programming and dissemination, he said.

The current protection in view of the technology is not sufficient in a time where viewers want to access content whenever and wherever they want, which means it has to be delivered in a different way than traditional broadcasting, according to Ruijsenaars. This shift in technology also gave way to increasing piracy, he said, adding that signal piracy is a global issue and it is important to have a treaty covering everybody on the planet.

Ruijsenaars said there is evidence of ever-growing piracy and WIPO does not discuss enough the reasons underlining broadcasters’ neighbouring rights. For broadcasters it is not the delivery of signal that matters, he said, but that the public is provided with programmes.

Benefits for the public of those programmes include the provision of diversified information on national and local matters; educational content; special programming for niche or minority audiences; enhancement of public awareness and media literacy; supporting of independent audiovisual production; promotion of local authors, actors and artists; and the creation of new services on multiple platforms, his presentation listed.

If the focus of the discussion remains merely about the signal, he said, then it misses the broadcasters’ activity. Broadcasters make a programme, then embed it in a signal, which is then broadcast. The broadcast is the tool by which programmes are delivered to the public but producing the signal is just a necessary technical activity, he added.

The most important element of broadcasting is its independence from the audience, according to Ruijsenaars, it does not matter how many people are watching. It is also independent from the content since the content is covered by copyright, and independent from transmission, since each signal has its own protection.

In the digital age, most people have hybrid television which can receive both online and traditional signal from broadcasters at the same time, without them being aware of, or caring about, the difference, he said. In Europe, some 60 million households own an internet-connected TV set, he added.

The treaty would not impede but foster freedom of expression, it would stimulate innovation in consumer devices. would have no impact on the public domain or on internet service providers’ liability, he argued, adding, “If there is no treaty, everybody loses out.”

Beware of Large Internet Corporations Morphing

Anubha Sinha of the Center for Internet and Society, said the issue of signal piracy affects mostly sports broadcasters, and a potential narrow treaty could address this particular problem. A treaty as the one considered at the moment could have unintended adverse effects, she said.

The beneficiaries of the treaty appear to be only broadcasting organisations, but today it is impossible to distinguish between computer networks and wired or wireless means, she noted, asking about the risk of accidentally creating rights that could be misused “by the likes of Google, Facebook, Netflix…”

Facebook recently acquired the rights to broadcast La Liga games in the Indian sub-continent, she noted, warning about the “weak treatment” given to exceptions and limitations in the current treaty draft. She added that the treaty would affect the existing commons and the methods by which commons are being made accessible today.

The 1961 Rome Convention is narrow and broadcasters are facing competition from internet-based services that operate with fewer rights, but provide services that the public wants, which is part of the problem, according to James Love from Knowledge Ecology International.

Citing SCCR Chair Tang’s current proposed language, Love said that the definition of a broadcaster stating that “entities that deliver their programme-carrying signal exclusively by means of a computer network do not fall under the definition of a ‘broadcasting organization'” intends to exclude companies such as YouTube, Spotify, and Netflix, but would include other companies being broadcasters and also having internet platforms at the same time, such as the BBC.

That is creating a special right. which might be challenged by other companies arguing that those rights are contrary to a level playing field, he said.

It is also very easy for companies such as Facebook and Amazon to buy a radio station somewhere on the planet, thinking otherwise is naive, he said. This point was also made by Ryan Merkley of Creative Commons.

Love produced a colour-coded document [pdf] showing developments in technologies to distribute, broadcast or stream audio and audiovisual content from 1887 to 2018.

In white, the document lists what concerns traditional broadcasting, in yellow internet technologies, in blue technologies to make physical copies of audio and audiovisual recordings, and in green norm-setting activities. The vast majority of items listed belong to the yellow sections.

Players in the yellow fields will be the beneficiaries, he said. “You will be transferring money” to large platforms, the biggest of which are in the United States, he said, adding that the concentration will be much larger than in the radio and television arena.

To remedy those potential dangers, Love’s presentation suggested to eliminate post-fixation rights, and install mandatory exceptions including news of the day, public affairs, documentary films, education, and quotations.

Ruijsenaars argued that the European Union has legislation protecting post-fixation rights, and that did not bring any issues either with rights holders or the public interest.

50 Years Protection ‘Outrageous’

Love also challenged the proposed 50 years of protection. “If you were to keep a copy of something for 50 years,” the chances are that no technology would still be able to read it, he said, adding that if the treaty protects post-fixation rights, it is no longer protecting a signal.

Cristiana Gonzalez of the Centro: Tecnologia, Espaços, políticas públicas, Brazil, also said the treaty should be confined to immediate transmission without post-fixation rights. In Brazil, she said, organisations may not acquire protection for any deferred transmission.

The proposed term of protection should be no more than a few seconds, 24 hours if one wants to be generous, she said. Extending it further could have consequences for the public domain, impact cultural diversity and democracy, by for example preventing access to historical information, she said, adding that giving a monopoly over content could be dangerous.

Merkley said the current draft of the treaty could have a number of negative impacts. The world has and is changing, he said, and it is no longer a matter of creating rules for industry alone. “Every one of you is a copyright holder,” he said, adding that the draft treaty forgets about the public.

There have been many poor choices for the web, he argued, and the treaty would yet be another wrong choice. Negotiators have to be careful not to disturb the whole ecosystem to support an industry threatened by improvements in technology, he said.

He also called 50 years of protection “unreasonable” and said in the most compelling case of protection for sports event broadcasting, should be termed in hours. The most alarming in the proposed text, according to Merkley is that it would give post-fixation rights for public domain works. “This is outrageous,” he said, as broadcasters do not own this content and did not create it so they should have no rights over it.

Ruijsenaars commented that if the content is in the public domain, like a film, it can be found somewhere else than in the broadcast, which is protected.

Amalia Toledo of the Karisma Foundation said the rights awarded by the treaty to broadcasters could impede or restrict the flow of information that may not be protected by copyright, such as news of the day, and speeches from public officials. In Latin America, she said, there are various examples of how the political power has used copyright protection to silence voices.

This new right would be a direct attack on creators’ possibility to share their works as they see fit, she said. It would also ignore the public interest in having access to information, knowledge and culture, she added.

If a treaty is agreed against signal piracy, the protection should be for hours after the transmission, not 20 or 50 years, she said.

For more details visit https://cis-india.org/a2k/news/broadcasters-eager-for-global-signal-protection-others-warn-of-major-players-sneaking-in

KEI Seminar on "Appraising the WIPO Broadcast Treaty and its Implications on Access to Culture"

Admin — 2018-10-31T01:53:27Z

Anubha Sinha participated in a seminar organized by KEI on October 3 and 4, 2018 at the Graduate Institute of International and Development Studies in Geneva. Anubha spoke on the panel titled "Rationale, Beneficiaries and Scope (of the Treaty)".

Links to the webcast can be found here:

October 3: https://www.youtube.com/watch?v=QYcvaeyS04k

October 4: https://www.youtube.com/watch?v=NC5AdokTF2o

For more details visit https://cis-india.org/a2k/news/kei-seminar-on-appraising-the-wipo-broadcast-treaty-and-its-implications-on-access-to-culture

5th Global Congress On IP And The Public Interest: Successes, Strategies Highlighted

Admin — 2018-10-31T01:57:59Z

More than 400 activists, academics and practitioners from over 50 countries gathered at this year’s Global Congress on Intellectual Property and the Public Interest, according to organisers.

The story by David Branigan was published in Intellectual Property Watch on October 3, 2018.

At the Congress, participants shared success stories, developed strategies, and engaged in critical dialogue to re-think and re-invent intellectual property systems that serve the public interest.

The 5th Global Congress on Intellectual Property and The Public Interest was hosted by American University Washington College of Law in Washington, DC from 27-29 September. The core goal of the Congress, according to the website, is “to promote evidence-based policy-making by fostering partnerships between academics and policy advocates from around the world.”

The Congress featured three concurrent, but interconnected, tracks centred around copyright user rights, access to medicines, and trade. A list of the many panels, workshops and other events of the Congress can be found in the event agenda.

Key themes that emerged from the plenary sessions of the Congress include the need to take a critical look at the association between intellectual property and development, the important roles that both IP activism and academic research play in shifting practice, and the complex tension between pursuing incremental IP reform in the short-term, while envisioning and building toward IP system change in the long-term.

Participants were asked by organisers to contribute statements and to vote in an online poll to chart and map participant perspectives at this year’s Congress. The interactive results of the poll can be viewed here.

Access to Medicines Track

Intellectual Property Watch followed the access to medicines track throughout the Congress, to develop a broad picture of the persistent challenges and new strategies in this field, and to identify key initiatives to feature in the coming months. Below are some of the themes that emerged over the course of the sessions, along with key highlights.

Compulsory Licensing

Some participants highlighted their countries’ use of compulsory licensing to reduce drug prices and to maximise health budget capacity, with notable examples from Ecuador, Chile and Malaysia. Participants identified that many other countries, however, are not taking full advantage of these flexibilities, which can be partly attributable to a lack of awareness regarding these flexibilities, and a lack of systems to employ them. They noted that this is often compounded by IP-centric technical assistance that frames strong IP systems as necessary for development. Many participants argued that compulsory licensing, along with other intellectual property flexibilities, should be fully normalised, and that IP law should be structured to maximize the use of these flexibilities, rather than treat them as exceptions. Some also argued for the institution of international or regional coordination mechanisms for compulsory licensing.

Competition Law

Many participants, representing activist organisations working for access to medicines, noted that their campaigns were largely focused on the price of a particular drug in a particular country. Pursuing access to medicines on such a piecemeal basis, they explained, does not produce sustainable change within the IP system itself. This, they noted, is a similar challenge faced when issuing compulsory licences. Participants explained that pursuing strategies based in competition law could perhaps offer a more sustainable solution to address excessive pricing across a range of drugs. This strategy, they explained, could move forward key legal reforms to systemically challenge pharmaceutical monopolies and bring about more competitive drug pricing.

Innovation

According to participants, the term innovation infers a particular narrative, similar to “intellectual property,” and has been used by industry to justify the pharmaceutical patent system. One participant explained that patents are currently being granted on the basis of utility, rather than real inventiveness. He explained that the term innovation has come to represent the industry-led process of shaping markets and cycles of consumption, and that therefore, we need to reconsider our use of the term.

Research and Development

Many participants highlighted the dysfunction of the current monopoly incentive system for pharmaceutical research and development, and advocated for other systems such as delinking the price of pharmaceuticals from the cost of research and development and the volume of sales. Others highlighted examples of how drugs for neglected diseases can be developed and manufactured without intellectual property incentives, and still others how drug licences can be efficiently pooled to facilitate widespread generic drug production. Another participant further illustrated the dysfunction of the current system, noting that much of the research and development of patented pharmaceuticals was publicly funded, and that there needs to be greater public accountability in drug pricing.

Medicines as Non-Patentable

One important perspective, expressed by participants across tracks, is simply that medicines should be non-patentable and accessible to all people, without restriction.

Intellectual Property Watch will feature some of the key access to medicines initiatives highlighted at the Congress in greater depth and detail in the coming months.

Background of the Global Congress

The First Global Congress on Intellectual Property and the Public Interest was held in 2011 at American University Washington College of Law in Washington, DC, and the specific policy goals of the Congress were summarized in the 2011 Washington Declaration on Intellectual Property and the Public Interest.

The Congress was subsequently hosted in 2012 by Centro de Tecnologia e Sociedade of FGV Direito, in Rio de Janeiro, Brazil, in 2013 by University of Cape Town IP Unit, in Cape Town, South Africa, and in 2015 by the Centre for Internet and Society, in New Delhi, India. Intellectual Property Watch has attended them all.

More background information on the Global Congress on Intellectual Property and the Public Interest can be found at infojustice.org.

For more details visit https://cis-india.org/a2k/news/5th-global-congress-on-ip-and-the-public-interest-successes-strategies-highlighted

Mixed Reactions Among Participants In WIPO Talks On Treaty For The Blind

praskrishna — 2013-04-25T08:08:47Z

At the close of this week’s negotiating session for an international treaty on copyright exceptions for blind and visually impaired persons, some governments, including upcoming host Morocco, expressed disappointment in the outcome of a three-day drafting session, as it left so much for the diplomatic conference. But most said they are optimistic that solutions can be found.

The article by William New was published in Intellectual Property Watch on April 22, 2013. CIS is quoted.

An informal session of the WIPO Standing Committee on Copyright and Related Rights (SCCR) was held from 18-20 April. The diplomatic conference (top-level political negotiation) will be held in Marrakesh, Morocco from 17-28 June. The session concluded a draft treaty text with numerous areas lacking agreement (IPW, WIPO, 22 April 2013).

A delegate from Morocco said at the meeting closing that he had “mixed feelings” about the outcome of the three days and was “somewhat disappointed” by the inability to remove brackets in text, signifying areas of disagreement.

“Marrakesh will be the last chance” to agree on this treaty, he warned. “There will be no room for mistakes. In Marrakesh, we will be in front of the entire international community.” Even with pressure from creators and artists, the membership must persist with this “humanitarian gesture,” he said, adding, “We must conclude, in Marrakesh, a treaty.”

A delegate from Honduras, speaking on behalf of the Group of Latin American and Caribbean countries (GRULAC), cited concern about a “backward trend” occurring in the talks, increasing the risk of failure in Morocco.

The Egyptian delegate said the results “make us worried” for Marrakesh, as new proposals are still coming up at this late stage. “We are going with many difficulties,” he said, stressing the importance of the humanitarian side “rather than the cost and gain criterion.”

But Algeria, on behalf of the African Group, praised the treaty as “an excellent basis for Marrakesh.” Nigeria, which was active on the part of the African Group, also restated the commitment to accomplish a treaty that will be “meaningful to those who need it,” as well as to creators. “The interests are competing but not irreconcilable,” the delegate said.

The United States said the aim is to have a treaty that will lead to a solution for the blind while protecting the “world’s authors.” But there are “simply too many brackets and too many options for us to be comfortable,” he said, so everyone should be prepared to show flexibility.

Rights Holders’ Concern for Protection

Rights holders such as publishers whose works will be exported have sought to explain their concern about a treaty whose purpose would be to allow copyrighted content to circulate freely. Among their concerns is that the accessible formats may be usable by sighted readers and may make it back upstream to developed country markets. They also are viewing the approximately 280 million blind and visually impaired persons worldwide as a potential market.

The International Publishers Association said they are fully committed to a treaty that will address the problem and work on the ground, and that the only accusations of bad faith have come from NGOs, not member states. The international publishers’ community wants access for visually impaired persons, “not only on paper but in reality,” he said.

A representative of the Association of American Publishers told Intellectual Property Watch that negotiators were close to a consensus document two years ago but that industry concerns had gradually increased its complexity. He said publishers “have never opposed this treaty,” and that nothing is stopping nations from adopting limitations and exceptions at the national level. More than 50 countries already have some form of limitations and exceptions, he said, while others consider that it would “politically useful” to have a treaty saying that adoption of such limitations and exceptions is an international norm.

Publishers also understand the need for flexibility for countries to adopt such provisions in suitable ways to their national systems. But in order to agree, publishers wanted it clear that such provisions adhere to international laws, including the 3-step test, which places strict conditions on the use of the limitations and exceptions. Also, this instrument must include a mechanism for accountability, a process for dealing with an authorised entity that is not complying.

“The objectives of this treaty can be attained within the established international framework,” he said.

In creating the first-ever treaty on exceptions to copyright, representatives of a range of rights holders sought to ensure that it will not harm to their existing system. In the hallways of WIPO, they expressed concern that this treaty not set a precedent of exceptions that would erode copyright. Concern over precedent led lobbyists to come not only from the publishing industry but also the film industry.

A representative of the International Video Federation implied that even if a deal is struck on a treaty, governments won’t ratify it if they do not like what it says. The treaty “needs incentives for as many ratifications as possible,” he said, and addressing commercial availability is one way to offer an incentive.

Any instrument needs to provide as much certainty as possible, he added. Fair use and fair practices are not a familiar notion in international copyright law and should not be mentioned in this treaty, he said, adding that members are “absolutely free” to do what they want on fair use.

A Motion Picture Association representative said at closing that the industry has “unambiguous support” for the treaty, but that it rejects what it sees as “attempts to roll back” other treaties. “Attempts to hijack” the treaty talks “cannot be tolerated,” he said.

A Knowledge Ecology International (KEI) representative responded that this was “hypocritical” of the MPA as it has “hijacked the political process to turn this into some kind of ACTA exercise,” referring to the controversial Anti-Counterfeiting Trade Agreement negotiated a couple of years ago.

NGO Concerns about Lost Focus

As described by the World Blind Union (WBU), which contributed to the initial treaty concept, the new treaty is expected to: “Allow specialist organisations to make accessible copies of books in all signatory countries; Make it legal to send accessible books across national borders; Still respect copyright law: it is not an attack on publishers!; Make more books available for blind people.”

But the WBU raised alarm at the close of this week’s session. Fred Schroeder, first vice president of the WBU, said in the statement, “The purpose of this treaty is to ensure access to books for blind people and help end the ‘book famine’ we face. WBU is alarmed that some of the negotiators have focused their efforts almost exclusively on crafting language around copyright protections that have nothing to do with the ability of authorized entities to produce books for the blind and visually impaired.”

“The shift away from a treaty for the blind to a treaty focussed on rights holder protections has taken up precious negotiating time which should be directed at ensuring a treaty that makes it possible for materials to be shared internationally,” he said. “For example, the negotiators have spent considerable time talking about the concept of commercial availability when, in practice, there is no reason why an authorized entity would spend its limited resources to duplicate works in formats that already exist.” A WBU representative noted in the plenary meeting earlier that the treaty is about exceptions and does not require restating details of existing treaties and rights but rather just could make reference.

An Indian delegate asked, “Is this a WIPO treaty on access to published works for [visually impaired persons], or a WIPO treaty on the protection of the 3-step test?” He said the treaty is critical for India, which has 40 percent of the world’s blind and visually impaired people. The treaty would give the important cross-border access to accessible format books and work as a stimulus for Indian publishers to publish in those formats as well.

Jonathan Band, a Washington, DC attorney speaking on behalf of the Library Copyright Alliance, told negotiators that there are now possibly 10 references to the 3-step test in the draft text, and only one indirect reference to the principle of fair use and fair dealing. But those latter principles are found in some 45 national laws, making it a widely adopted norm, he said. Overall, the treaty has become far too complicated for countries to use, and has strayed from the original idea of having a simple template and structure.

A representative of the Center for Internet and Society (CIS) in India, said: “There is nothing in these provisions that would convert infringement by sighted people under the pretence of this treaty magically into lawful acts. And, indeed, there are multifarious ways of infringing copyright without such resort to this treaty. Yet, these very same onerous requirements (such as the “commercial availability” requirement) and bureaucratic processes will unrealistically increase transaction costs for the visually impaired and render infructuous the very purpose of this treaty.

The CIS representative cast particular blame on the European Union for going against the demands of the European Parliament to address the ‘book famine’ of the blind and visually impaired, and to live up to international obligations on disabilities. “The EU, and a few countries of Group B, including the United States, have been slowly bleeding this treaty to death through over-legislation and bureaucracy.”

“Here is what it boils down to,” he continued. “[W]hen it comes to the economic rights of copyright owners, current international law insists that there be no formalities, yet when it comes to the human rights of visually impaired person to access information – a right specifically guaranteed to them under the UN Convention on the Rights of Persons with Disabilities – some delegates in this room wish to ensure as many formalities as possible.”

The representative of KEI told negotiators that for the “non-Berne” clause, they would be better off to use the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) than Berne. He said TRIPS is more balanced, recognises the first-sale doctrine (which says copyright expires after sale of the item), and has other flexibilities. KEI also said in its closing remarks that the purpose of the treaty is to help visually impaired people, and anyone outside the treaty is subject to copyright law already.

A WBU representative told negotiators that the treaty must have a practical application for solving the lack of materials for blind people, especially in developing countries. “We are here to solve a human rights problem,” he said. “Our goal is not a treaty, but rather a treaty that will solve access” to published works.

As one delegate put, members will feel pressure to do whatever it takes to conclude a treaty because whoever stands in the way of this effort for blind people “will be branded as a villain.”

For more details visit https://cis-india.org/news/ip-watch-william-new-april-22-2013-mixed-reactions-among-participants-in-wipo-talks-on-treaty-for-the-blind

On the Unfortunate Rise of the Indian SLAPP Suit

ujwala — 2013-06-05T06:55:41Z

It is not news in this country when the law or other institutions of the state, are used as tools by which to threaten or intimidate citizens into submission to a particular course of action or to a particular point of view. Unfortunate as that is, today’s post will deal with the rising incidence of SLAPP suits, an abuse of the adjudicatory process that is also a feature in a number of jurisdictions elsewhere.

Our interest in them arises from two sources. The first is the particular damage that this device is able to do free speech. Its effects were quite picturesquely described in the following terms by the Delhi High Court in M/S. Crop Care Federation Of India v. Rajasthan Patrika (Pvt) Ltd. “Short of a gun to the head, a greater threat to First Amendment expression can scarcely be imagined.” [Rajasthan Patrika in turn borrowed this language from Gordon v. Marrone, a case in the New York Supreme Court.] The second is this piece of news.

About the Phenomenon
The term “Strategic Lawsuits Against Public Participation” is rather self-explanatory. Nevertheless, some of its features bear the explicit articulation:

First, there is always, and necessarily, a power imbalance between the parties in such cases: the plaintiff or complainant will always have greater and often disproportionately greater access to the resources necessary to enter and sustain a litigation, in addition to social, political or corporate power. A simple shorthand for SLAPP suits will always be Deep Pockets v. Free Expression. And so it has been in India, as this article evidences.

Second, there is always one object: to intimidate a target into silence or apology by way of legal action or the threat of it. SLAPPs are a win-win play for those that employ them: targets are likely to bow to the pressure given that they will not have access to the resources to mount a legal defense. Even where the defendants’ (relatively scarce) resources are diverted to the defense of their speech, even assuming that the threat and costs of litigation, the civil damages and/or penal consequences do not intimidate them, their opportunity cost will be considerably higher than that of the other party. Given the ordinary rigours of the adjudicatory process and the ubiquitous delays associated with it in India, however, the harassment function of the SLAPP is always achieved.

Third, SLAPP suits are always characterized by a flimsy, frivolous or even non-existent cause of action. They will have done their damage irrespective of, and before, the outcome of the suit is decided. The question of legal tenability, and in these cases, its absence is really not one of any relevance. The real damage is done by forcing defendants to bear the trouble (monetary and otherwise) with preparing and mounting the legal response/defense itself, rather than by the litigation’s ultimate success or failure. A little amusing then that in the latest instance, which I describe later in this post, it is a law student, presently in law school and writing for a legal blog who finds herself on the receiving end of such threats.

Defamation SLAPPs
Defamation is a classic tool by which contrary opinions are sought to be silenced by those in (political, social or corporate) power. Rajeev Dhavan argues here that defamation is becoming an increasingly popular tool by which the “politics of exposé” and whistleblowers participating in it are being threatened. [SLAPPs in India have arisen on the back of other causes of action as well. See, for instance, the case of S. Khushboo v. Kanniammal and Frontline discussing it.] Lawrence Liang details a number of older instances in which defamation has been used in Indian courts to silence speech here.

Much more recently, Tata Sons Ltd. v. Greenpeace International, involved intellectual property and defamation claims in a game designed to bring attention to the threat to Olive Ridley turtles from developmental activity in Orissa. The IIPM saga that rose to prominence in February this year is another instance of such litigation. It is also one that carries the added ignominy that a university, whose function one would presume is to foster critical thinking and the ability to constructively respond to criticism, would sue for defamation against criticism and use the state apparatus to employ opaque means by which to silence the allegedly offending content online [see here and here]. IIPM also demonstrates how SLAPPs will involve what have been called “creative ways” to abuse of process: more than one suit can be filed, and they can be filed in more than one jurisdiction or in jurisdictions in which it is difficult for the target of the suit to appear or defend him or herself.

On Attempts at Silencing Academic Opinion
While the Activist v. Corporation trope is by now a tired one, it appears that the incidence of SLAPP proceedings, both civil and criminal, against commentators and academics are on the rise:

Ajay Shah’s case has been a well-documented one [see here and here], and one in which the Bombay High Court did not appear to appreciate the SLAPP dynamic. Closer to home, Shamnad Basheer [see here and here] a professor at NUJS and founder of SpicyIP saw a defamation SLAPP suit for what appears to be an exercise in only academic analysis.

As of the 21^st of this month, it was reported that a student contributor at the same blog, Aparajita Lath faces similarly suspect allegations of defamation from a newspaper [see here and here]. Here is a case not of Activist v. Corporation or Whistleblower v. Government, but of Academic Opinion v. Press. There is a special and truly unfortunate irony in the press having recourse to tools like the defamation suit, and even more egregiously, the criminal complaint.

Why We Worry
A number of rights of the target are ordinarily affected by SLAPP suits. In what was a significant case for the United Kingdom involving a defamation suit brought by McDonald’s against two authors of a pamphlet criticizing it, the European Court of Human Rights (‘ECtHR’) recognized in Steel and Morris v. United Kingdom a number of the following rights:

First, there is the right to free expression itself. Violations of this right would arise on two levels, although the second may not be actionable. First, there is the right of the defendant to the SLAPP suit. Steel and Morris affirmed that the fact that the defendants to the defamation suit were not journalists did not mean that the scope of their free speech protection would differ [¶89]. Instead, it held that “the limits of acceptable criticism” where “large public companies” were concerned was wider than those that would otherwise apply [¶ 94]. India’s Supreme Court has, in one notable instance, disagreed on the proposition that bloggers should have similar rights to journalists. Next, there is the chilling effect: others placed similarly to the targets of SLAPP suits would self-censor to avoid legal retaliation for their views and the significant cost of defending themselves.

The importance of Steel and Morris however comes from this latter set of holdings. The ECtHR found that the right to fair trial, in civil and criminal cases, which included the right of access to court and to justice presumed an “equality of arms” as between contesting parties [¶ 59]. It held to this effect on the understanding that European Convention on Human Rights, the underlying rights instrument, was a guarantee of practical and effective rights. In the circumstances of that case, it found that since the financial disadvantage of the defendants in the defamation suit disallowed them the opportunity to mount an effective defence, there was a clear inequality of arms with McDonalds that rendered the trial unfair for the purpose of Convention Article 6 (1) [¶72].

The IIPM blocks add a further dimension to the problem. When the content complained against is online, India’s lack of clear legal principles to determine, and more crucially limit, where the cause of action will have arisen and can be tried will only exacerbate the blogger’s situation, given the arguably global spread of an audience for online content.

A final point about this trend, particularly as it relates to silencing academic comment, is that it is a dangerous one, and one against which we must all speak out: these cases, in which the challenged content offers studied comment against the powers that be, will be a good acid test for the strength of our speech protections as they fall squarely within the class of speech which constitutional protections seek to maximize and disinhibit. It should be the very minimum that the Article 19(1)(a) guarantee entails.

Pervasive Technologies: Patent Pools

nehaa — 2013-07-03T06:57:59Z

In this research paper, Nehaa Chaudhari gives an analysis of patent pools. She discusses the working of a patent pool, study patent pool in other areas of technology, and patenting in telecom and related technology.

Click to download the full research paper here (PDF, 475 Kb)

Introduction

The network landscape over the past few years has been characterized by several battles of supremacy between two or more rival technologies. [1] These battles have included, inter alia, the constant efforts at besting rivals in the arena of patenting innovations in technology, often as a result characterised by the imposition of high royalties on rivals, for the use of one’s patents. However, having realised that such efforts at besting the other could prove detrimental for all parties concerned in the long run, and stall technological advancements which would in turn translate into lower business revenue, mechanisms were devised to ensure a relatively equitable utilization of patents in the market place. One such mechanism that has been developed is that of patent pools.

Patent pools have been developed around most areas of high end technology and research and development. Over the course of this paper, the author has confined herself to a study on patent pools in the area of telecommunications, and the issues to be addressed therein. Specifically, the author will be dealing with patent pools around 3G, 4G, LTE, TD-SCDMA and TD-LTE technologies. Within this framework, the author seeks to examine what are patent pools, whether and what kind of patent pools exist, their associated costs, their licensing arrangements and the structure of the payment of royalty, and the feasibility of these patent pools.

Understanding Patent Pools

Patent pools are agreements among patent owners through which patent owners combine their patents, waiving their exclusive rights to the patent to enable others, or themselves, to obtain rights to license the pooled patents.[2] Therefore, such pools may be focussed either on cross licensing, that is companies mutually making their patents available to each other, or on out licensing, that is, a group of companies making a collection of patents available to companies that do not or might not have patents of their own to contribute to the pool.[3] Typically, modern patent pools combine patents of various companies and are around inventions that are required to implement an established industry standard, are licensed as a whole (on an all or nothing basis) and not as individual licenses for patents owned by various companies within that pool, and are available to any non member for licensing.[4] Such licensing is done under a standard agreement and royalty rates, on a non discriminatory basis. The exception to this rule is that if certain members have contributed patents to the pool, they may receive more favourable terms, in recognition of their cross licensing relationship to the pool.[5] When viewed from a law and economics perspective, patent pools are seen to be an efficient institutional solution to various problems that arise when companies have complementary intellectual property rights, and these rights are essential to new technologies being used and employed. [6] However, this perspective also warns about the antitrust risks that may arise when competitors or potential competitors are involved in the coordination of their intellectual property. For instance, such pools may be used to allocate markets or otherwise chill competition. [7]

The Working of a Patent Pool

Generally, a patent pool may be administered in one of two ways- it may either have an administrative entity, or may also just be a system of cross licensing between two firms.[8] In case of the former, the licensing agency may be one of the patent holders, [9] or may be an independent licensing company (e.g. MPEG).[10]

The ownership of patents within the pool is retained by the owners, who then license them to the operator/administrator on a non exclusive basis, with sub licensing rights. This means that the owners are free to continue to license their patents on an individual basis, and the administrator also has the right to further license the patents to any party who is interested in licensing from the patent pool.[11] The responsibility of managing licensing and licenses is vested in the operator/administrator of the patent pool. Licensees are required to report sales and pay royalties to the pool administrator, who in turn would enforce the conditions of the license.[12] The distribution of royalties between the members of the pool is on the basis of a formula which may, or may not be transparent to non member licensees, with the pool operator retaining a management fee.[13] Typically, pool licenses are also structured in a manner so as to render difficult early termination by the licensee. The nature of the contract, once signed by a licensee, is typically binding in nature. Therefore, this would mean that the administrator of the patent pool could sue the licensee for non performance of the contract.[14] However, unless a pool operator is a member of the pool itself, it cannot sue for the infringement of patents. [15] Therefore, in the event that a patented technology were to be utilised without having taken a license, one or more of the individual patent owners would be required to take legal action. The involvement of the pool operator would be limited to being a part of any settlement discussions, if they were to occur, since one of the options for the alleged infringer could be to obtain a license for the patent pool.[16]

Drawing Parallels with Other Patent Pools

In this section of the paper, the author seeks to study patent pools in other areas of technology in order to better understand the structure and pricing of patent pools.

The ‘3C DVD’ Patent Pool
Established in 1998, the 3C DVD Patent Pool was the brainchild of Philips, Sony and Pioneer, and L.G. was subsequently inducted as a member. Philips acts as a licensing administrator for patents held by all the companies, which are over two hundred in number. These patents include those for the manufacture of the DVD players, and for the manufacture of the DVD disks themselves. [17] The player license per unit royalty was set as 3.5% of the net selling price of each player sold. This was subject to a minimum fee of $7 per unit, which after January 1, 2000 became $5 per unit. The disc license royalty was set as $0.05 per disc sold.[18]

The ‘DVD- 6C’ Patent Pool
Established in June 1999, the members of this pool at the time of its inception were Hitachi, Matsushita, Mitsubishi, Time Warner, Toshiba, and JVC. This pool was also for the DVD-ROM and the DVD- Video formats, with Toshiba acting as the administrator. [19] The royalties were set at $.075 per DVD Disc and 4% of the net sales price of DVD players and DVD decoders, with a minimum royalty of $4.00 per player or decoder, which saw a substantial reduction in 2003.[20] Subsequently, there were various changes that were made to this group, including the inclusion of newer standards, the joining and subsequent departure of IBM and other organizations as a member etc. Hitachi and Panasonic also act as regional agents in certain regions of the world.

The MPEG LA pool
The MPEG-2 is a standard for describing the coding of data inter alia, on DVD discs. For MPEG-2, a patent pool has been established, where the administrator is an independent, external organization known as the MPEG Licensing Authority, that set itself the aim to develop a patent pool for this standard. [21] The MPEG LA invited parties that thought they owned patents essential to this standard to join the program, which took off in 1997. At present, the pool has over a hundred patents and thousands of licensees.[22]

Patenting in Telecom and Related Technology

In this section of the paper, the author examines the working of patenting and patent pools in the telecommunications sector and in areas of related technology.

Early Developments and the Emergence of GSM
Patent pools are slowly developing into a key component of the telecommunications and the technological industry. The technology industry has been said to be an ecosystem, wherein there is a complex correlation between those who develop the technology and those who implement it in the creation and development of products.[23] In the telecommunications industry for instance, each handset manufacturer has declared only a small percentage of the various types of intellectual property assets that are necessary to implement a 3G compatible cellular phone. Therefore, the working in such a context is that various companies develop different technologies, and the same is shared by various manufacturers that seek to make use of this technology.[24]

The revival of patenting in the sector of telecommunications, post a period of decline in the decades of the 19540s to the 1980s, is attributed to the advent of the GSM standard for mobile communications in Europe.[25] In 1988, the main European operators invited equipment suppliers and developed a procedure wherein manufacturers would have to give up their intellectual property rights and to provide free world wide licenses for essential patents.[26] After opposition from the manufacturers, the approach was modified to one wherein the operators required the suppliers to sign a declaration agreeing to serve all of the GSM community on fair, reasonable and non discriminatory conditions.[27] In the early 1990s, Motorola by refusing to grant non discriminatory licenses for its substantial portfolio of essential patents and only agreeing to enter into cross license agreements further intensified the debate over IPRs in telecommunications. The company only lifted these restrictions after various countries across the world expressed a preference for this standard. The experience in this standard has demonstrated that it would not be accurate to expect that all parties holding essential patents would be willing to license them to all interested parties.[28] Companies were only willing to relax their licensing conditions once revenue generating opportunities increased.

The 3G3P and the UMTS
In July 2000 the 3G Patent Platform Partnership (3G3P) and its 18 partners notified various agreements to the end of establishing a worldwide patent platform. The purpose behind this was disclosed to be that of providing a voluntary and cost effective mechanism to evaluate, verify and license patents that were essential for third generation (3G) mobile communication systems.[29] It was also claimed that the said agreements would have pro competitive effects and that the purpose behind this Platform was the facilitation of access to technology and consequent entry into the markets.[30] On the intellectual property front, the purpose was to reduce cost uncertainties and the delays that were accompaniments of licensing numerous essential patents for complex technologies.

While it has often been considered to be a patent pool, this arrangement has been said to be only similar to a patent pool.[31] The 3G3P itself has argued that since it was a mere facilitator of transactions between patent holders and licensees, and that membership was open to both licensors and licensees as opposed to only licensors as in the case of patent pools, it would be fallacious to classify the Platform as a patent pool. Further, it has also been argued that licensing by members is not restricted to the Platform and that there was no bundling or real pooling of the patents per se and those licensees have the opportunity to pick and choose between patents with the licensing being carried out on a bilateral basis. Additionally, unlike in a patent pool, there is no single license between the patent holders as a collective and the licensee, and the parties have a choice between the Standard License of the Platform, and a negotiable individual license.[32] A Standard License provides for Standard Royalty Rate, a Maximum Cumulative Royalty Rate and a Cumulative Royalty Rate.[33] Bilateral transactions on the other hand, are negotiated between the parties where the consideration is to be determined on fair and equitable terms.[34] This Platform also provides for a price cap, which, instead of being absolute and set at a pre-determined royalty rate, is a default five percent maximum (not minimum) cumulative royalty rate for potential licensees per product category.[35] The royalty rate for each individual patent will differ for each of the licensees and this depends on the patent portfolio under each product category that the licensee has chosen.[36]

The concerns and challenges of the GSM experience were well perceived during the determination of the course of action for UMTS. European actors were especially wary of Qualcomm and expected the firm to demand high license fees, with some even fearing them to be in excess of 10%.[37] Subsequently, various attempts at developing licensing schemes failed, until 2004 and the establishment of the W-CDMA Patent Licensing Programme for UMTS FDD patents.[38] At the outset, seven licensors offered their patents as a bundle to prospective licensors, a number which decreased over time.[39]

The Development of LTE Patent Pools
The next stage in the process of innovation in the realm of telecommunications was the development of the Long Term Evolution (LTE) Standard, which while being essential to 4G technology has also seen application in the realm of 3G. Consequently, patent pools or similar structures have been developed in these areas. LTE patents are being viewed as among the most valuable intellectual property resource in the mobile telecommunications industry, with most operators around the world building LTE networks.[40]

As per in a study conducted in 2011, 23% of the patents about this technology were owned by L.G. Electronics, with Qualcomm coming in second with 21%. Motorola Mobility, InterDigital, Nokia and Samsung each owned 9%, China’s ZTE owned about 6%[41] and Nortel owned 4%, which were later sold to a consortium of Apple, EMC, Ericsson, Microsoft, Research in Motion (RIM) and Sony, after Nortel filed for bankruptcy in 2009.[42] Ericsson also independently owns 2% of the patent pool and RIM owns 1%.[43] However, another analysis[44] of IP databases conducted by ZTE in 2011 revealed differing results. As per this analysis, InterDigital was the leader, with its Patent Holdings arm controlling 13% and the Technology arm controlling 11% of LTE essential patents. Qualcomm controlled 13%, Nokia and Samsung 9% each, Ericsson controlled 8%, as did Huawei, ZTE controlled 7%, L.G. controlled 6% and NTT DoCoMo brought up the rear with 5%. The remaining 11% was held by various other firms.[45] It is to be realized that these studies have often come under criticism from different companies, with each of them eager to portray themselves as the market leader.[46] Setting aside criticism driven by corporate egos, the principle of it, that is, the difficulty in assessing and valuing patents cannot be disputed. Valuing patents is far from merely counting the number of patents owned by a company. The complications are especially evident when it comes to determining which of these patents are essential and which of them aren’t. Additionally, the worth of these patents varies depending on the existence or the absence of certain conditions, including transfer restrictions, cross licensing arrangements, ownership and market conditions.[47]

The aforesaid discussion reveals the complexity and the fragmentation of the LTE environment, which further underscored the need to have patent pools in this field. Although the need for a patent pool was realized in 2009-2010, given that the WCDMA patent pool had been met with very limited success,[48] industry watchers were reluctant to be optimistic. This was in part fuelled by the understanding of the attitude of dominant players, wherein they continued to believe that they could derive more monetary, cross licensing and litigation defence value if they did not pool their patents.[49]

The development of LTE patent pools can be traced back to 2009, and the response of Via Licensing¸ Sisvel and MPEG LA to a Request for Information on forming such a patent pool by the Next Generation Mobile Network Alliance (NGMN).[50] Sisvel’s proposal, which it subsequently made at a public conference in 2010 sought to demonstrate that patent pools could prevent excessive costs from royalty stacking.[51] Among various other examples, Roberto Dini, the founder of Sisvel suggested that if patents were to be licensed individually, for instance, 85 patents for MPEG video at 50 cents apiece would cost $42.50. As opposed to this, the patent pool charged $2.50.[52] In 2011, the NGMN reiterated its recommendation to all stakeholders in the mobile industry that were interested in developing patent pools to hasten their development process to avoid further delays in LTE licensing.[53] The NGMN also went on to state that it would be ideal if all the parties were to agree on a single patent pool that promoted reasonable royalties, offered certainty on the availability of the licenses for patents and created a framework for evaluation of their essentiality, where the value of the patents essential to the pool would be established by the industry.[54] These recommendations were not without their fair share of criticism, both, from industry watchers[55] and from vendors.[56] Notwithstanding these reservations, both, Sisvel[57] and Via Licensing have gone on to issue calls for patents for the purposes of creating patent pools in the LTE marketplace.

The Sisvel LTE Patent Pool materialized in late 2012, wherein licenses were offered under a portfolio of patents essential to LTE.[58] The pool includes patents owned by Cassidian, the China Academy of Telecommunication Technology, the Electronics and Telecommunications Research Institute, France Telecom, TDF, and KPN, in addition to some patents that had been originally filed by Nokia but were acquired by Sisvel in 2011.[59] The pool is also open to other organizations that have patents essential to LTE. At present, the current portfolio of these patents is available under standard terms and conditions. The running royalty rate is 0.99 Euros per device.[60]

Having promised a launch within a few months in June, 2012[61] Via Licensing has also developed its own LTE Patent Pool, with the initial companies in this pool being AT&T, Clearwire Corporation, DTVG Licensing, HP, KDDI Corporation, MTT DoCoMo, SK Telecom, Telecom Italia, Telefónica and ZTE.[62] Like Sisvel’s Patent Pool, this pool is also open to other organizations that believe they possess essential LTE patents, and they are encouraged to submit the same for evaluation.[63] The patent pool floated by Via leans heavily towards service providers, but some of the big players in the industry including Nokia, Ericsson, Huawei Technologies and Samsung Electronics are conspicuous by their absence.[64] This absence is felt even in Sisvel’s patent pool, with the reasoning being proposed[65] that these key patent holders may prefer private licensing and subsequent litigation over pooled resources in patent pools.[66] Understandably, the launch of the LTE Patent Pools has been met with approval by the NGMN[67] but given the nascent stages in which both of these pools find themselves, it would be premature to comment (without first observing for a few months) the likelihood of their success or failure and how they would play out against each other.

The TD-SCDMA and the TD-LTE
Reportedly, China has spent several billion dollars on the import of analog and GSM technology,[68] and the country’s mobile communications industry continues to be dominated by foreign players.[69] Therefore, in continuation of a purportedly growing trend[70] in the area of telecommunications as well, domestically developed systems are being preferred and developed over standardized technologies that enjoy strong patent protection outside China.[71] Besides the avoidance of paying royalties to foreigners, the idea is also to use China’s strong market presence and have more participants in China’s home grown technology.[72]

Time Divisional- Synchronous Code Division Multiple Access (TD-SCDMA), developed by the China Academy of Telecommunications Technology (CATT), in collaboration with Datang and Siemens[73] is a Chinese indigenously developed 3G technology standard developed by China to reduce its dependence on western standards.[74] Interestingly however, it has been reported that the Chinese hold core patent technology only about 7% whereas most of the rest of it is taken by other foreign organizations.[75] In 2000, an industry consortium, the TD-SCDMA forum was established. The participants were China Mobile, China Telecom, China Unicom, Huawei, Motorola, Nortel, and Siemens, with the objective of developing and supporting this technology. Government support was received in 2002, following which the TD-SCDMA Industry Alliance was founded by well known market players including Datang, SOUTEC, Holley, Huawei, LENOVO, ZTE, CEC and China Putian. There has also been the creation of various joint ventures with international giants such as Alcatel, Ericsson, Nokia, (erstwhile) Nortel, Philips, Samsung and Siemens have also been created.[76]

Information about the existence of patent pools in this technology has been hard to come by. One of the few to write about patent pools in his 2008 paper,[77] Dazheng Wang proposes patent pools as a solution to the problem of commercialization of TD-SCDMA. He suggests that the framework of this patent pool should be on the industry principles of fair, reasonable and non discriminatory licensing terms for essential patents, with the end result being one of increased innovation and competition and an overall increase in market presence. Interestingly, a few articles[78] on blog posts on the internet speak about the existence of patent pools and their apparent misuse[79] as well.

It is submitted that these inconsistencies regarding the division of patents between various patent holders, where the percentage of patents held by each company have been pegged differently,[80] and about the existence of a patent pool or not raise pressing concerns about the payment of royalties and how licensing works in such a situation. On a very basic level, in order to be able to pay royalties and enter into licensing agreements, the existence of an identified, non disputed patent holder would be the sine qua non, which seems to be missing in the case of patents for TD-SCDMA. This problem is only further compounded by the lack of clarity on the very existence of patent pools. Had there been specified patent pools, the issues of determination of essential patents and the setting of royalties and licensing fees would have been standardized, a situation that cannot be invoked, without dispute, in the present Chinese context.

It is further submitted that despite China being the world’s largest market for mobile communications, and its progress from a mere importer to a developer of some parts of technology,[81] the Chinese experiment with TD-SCDMA seems to have met with limited success, in comparison to what was envisaged. For instance, while an agency had forecast that the number of TD-SCDMA subscribers in 2010 would be 34 million, by April, 2010 there were only 8 million or (even lower) subscribers.[82] One of the reasons for preferring other standards, for instance, the W-CDMA is the number of handsets compatible with the same and the consequent variety that is available to the consumer. To illustrate, one could look at the figures from June, 2010. At this point of time China Unicom had 94 models for W-CDMA from twenty four manufacturers including nine foreign ones, whereas China Mobile had only twenty eight models that were compatible with TD-SCDMA.[83] Interestingly, if one were to measure popularity in terms of sheer numbers, TD-SCDMA would emerge the winner over W-CDMA by a couple of million subscribers, but if the growth rate were to be considered, W-CDMA would come out on top. While TD-SCDMA grew only by 24%, W-CDMA has grown at 32% monthly since the start of its service is October, 2009.[84]

China’s experiments with creating its home grown telecommunication standards have not stopped with the development of the TD-SCDMA, with the country being on track in the development of the TD-LTE. Reports suggest that although the systems are in ‘trial’ mode officially, the 4G spectrum situation remains uncertain.[85] It is submitted that although this is in the nascent stages as compared to the TD-SCDMA, the concerns expressed earlier about TD-SCDMA and the suggestions made therein for the technology to realise its full potential would be equally applicable in this scenario as well.

Therefore, in light of this discussion it would not be fallacious to conclude that while the TD-SCDMA, and now more recently the TD-LTE standard might still be in its nascent stages, on a fundamental level it seems to have not fulfilled the objectives with which it was developed, especially given that a sizeable portion of its patents continue to be owned by foreign corporations. In addition to the challenges of attracting subscribers, it would also need to streamline its system of patents, royalties and licensing, if it wants to have a truly global or even national presence. To this end perhaps patent pools structured along the lines of those being developed or in place for other mobile communication technologies might provide a viable solution meriting consideration.

Concluding Observations

One of the fundamental concerns that plague most downstream organizations in the mobile communications sector is the prevalence of high licensing fees that need to be paid on essential patents, the cost of which often trickles down to the customers. A study on the licensing arrangements prevalent at the moment[86] reveals that as of the moment, the result of royalty rate caps is that they save money for downstream manufacturers, but this is at the expense of upstream licensors. The most significant savers are the ones downstream with no IP to trade, and vertically integrated companies while losing some revenue, are able to save significantly more in reduced expenses.[87]

Therefore, it comes as no surprise that efforts at limiting aggregate licensing fees have been at the forefront over the past couple of years. It is in this scenario that patent pools have developed, with operators such as Via Licensing and Sisvel even promoting themselves as being able to put together patent pools that would greatly limit licensing fees.[88] However, some owners of intellectual property continue to find bilateral licensing and cross licensing to be more profitable as opposed to patent pools.

One of the key concerns when it comes to fore when dealing with how patent pools are structured is about the distribution of income received from royalties within the members of the pool, which ties in with the bigger question of classifying patents as essential and non essential. More often than not, patent pools also have to grapple with the problem of members having conflicting interests. For instance, manufacturers have the incentive to cap aggregate royalties of certain essential patents that they would use in manufacturing, in order to reduce their licensing costs. However, these manufacturers could have also brought their own essential patents to the pool, perhaps of a new way of doing things, and would certainly be averse of having caps imposed on these royalties.

One of the key other considerations that patent pools need to take into account include the royalty rates affixed. In an interview some time ago, the founder of Sisvel, went on to state that while affixing these royalty rates, there could be no discrimination against licensees, since that would be a sure fire way of ensuring the collapse of the patent pool.[89] Additionally, patent pools also need to account for the difference in regulatory mechanism and their execution that exists across jurisdictions. For instance, customs officials in France pay a lot more attention to counterfeit goods than they would to patent infringing products, whereas those in Germany would have a keen eye on the latter.[90]

Various other concerns have also been identified with regard to patent pools over time. One of these is that they could potentially eliminate competition that comes from outside of patent pools.[91]

Additionally, patent pools are not all inclusive, since participation is entirely voluntary. Therefore, patent pools would not even be reasonably expected to cover all essential patents required to make a standardised product. This problem is rendered even more complex as a result of the presence of multiple patent pools around the same technology, as in the case of DVDs and more recently, LTE technology.

In sum, while portfolio cross licenses and patent pools can be helpful in resolving issues created by patent thickets by reducing transaction costs for licensees, while preserving to a definitive extent financial incentives for inventors to commercialize their existing inventions and undertake new research, the significant shortcomings of these pools also need to be taken into account before they can be heralded as the solution to problems presented by complex patent landscapes. While voluntary patent pools might have proved to be beneficial in some respects, the imposition of patent pools would be a fallacious approach to undertake.

[1]. Hui Yan, The 3G Standard Setting Strategy and Indigenous Innovation Policy in China: Is TD-SCDMA a Flagship?, DRUID Working Paper No 07-01, available at http://www2.druid.dk/conferences/viewpaper.php?id=1454&cf=9 (last accessed 07 12 2012)

[2]. Josh Lerner and Jean Tirole, Efficient Patent Pools, 4 Am. Econ. Rev. 691, 691 (2004)

[3]. Patent Pools- Some Not So Frequently Answered Questions, available at http://blog.patentology.com.au/2012/11/patent-pools-some-not-so-frequently.html (last accessed 10 December, 2012)

[4]. Id.

[5]. Id.

[6]. Philip B. Nelson, Patent Pools: An Economic Assessment of Current Law and Policy, Rutgers Law Journal, Volume 38:539, 559 (2007)

[7].

[8]. Roger B. Andewelt, Analysis of Patent Pools Under the Antitrust Laws, 53 ANTITRUST L.J. 611, 611 (1984).

[9]. Philips has been known to have been the licensing agency for patent pools where it was a member

[10]. Supra note 3

[11]. Supra note 3

[12]. Supra note 3

[13]. Supra note 3

[14]. Supra note 3

[15]. Supra note 3

[16]. Supra note 3

[17]. Rudi Bekkers et. al., Patent Pools and Non Assertion Agreements: Coordination Mechanisms for Multi Party IPR Holders in Standardization, available at http://www-i4.informatik.rwth-aachen.de/Interest/EASST_Bekkers_Iversen_Blind.pdf 22 (last accessed 09 December, 2012)

[18]. Id.

[19]. Id.

[20]. Id.

[21]. Supra note 17 at 23.

[22]. Supra note 17 at 23.

[23]. Keith Mallinson, Fixing IP Prices with Royalty Rate Caps and Patent Pools, available at http://ipfinance.blogspot.in/2011/07/fixing-ip-prices-with-royalty-rate-caps.html (last accessed 10 December, 2012)

[24]. Id. See Appendix 1 for a graphical representation of declared intellectual property assets in 2009.

[25]. Supra note 17 at 25

[26]. Supra note 17 at 27

[27]. Supra note 17 at 27

[28]. Supra note 17 at 28

[29]. Dessy Choumelova, Competition Law Analysis of Patent Licensing Agreements- the Particular Case of 3G3P, available at http://ec.europa.eu/competition/publications/cpn/2003_1_41.pdf- 41 (last accessed 10 December, 2012)

[30]. Id.

[31]. Id.

[32]. Id.

[33]. Id at 42.

[34]. Id at 42.

[35]. Id at 42-43.

[36]. Id at 43.

[37]. Supra note 17 at 29.

[38]. Supra note 17 at 39.

[39]. Supra note 17 at 39.

[40]. Elizabeth Woyke, Identifying the Tech Leaders in LTE Wireless Patents, available at http://www.forbes.com/sites/elizabethwoyke/2011/09/21/identifying-the-tech-leaders-in-lte-wireless-patents/ (last accessed 08 December, 2012)

[41]. Id.

[42]. Id.

[43]. Id.

[44]. Caroline Gabriel, ZTE Claims 7% of LTE Essential Patents, available at http://www.rethink-wireless.com/2011/01/11/zte-claims-7-lte-essential-patents.htm (last accessed 09 December, 2012)

[45]. Id.

[46]. Id.

[47]. Supra note 40.

[48]. Keith Mallinson, Mallinson: Uncertain Futures in LTE Patent Pool Licensing, available at http://www.fiercewireless.com/europe/story/mallinson-uncertain-outlook-patent-pool-licensing/2010-08-25 (last accessed 10 December, 2012)

[49]. Id.

[50]. Id.

[51]. Id.

[52]. Id.

[53]. NGMN Board Recommendation on LTE Patent Pool, available at http://4g-portal.com/ngmn-board-recommendation-on-lte-patent-pool (last accessed 10 December, 2012)

[54]. Id.

[55]. Caroline Gabriel, NGMN’s Calls for an LTE Patent Pool Will be Futile in the Current IPR Climate, available at http://www.4gtrends.com/articles/53511/ngmns-calls-for-an-lte-patent-pool-will-be-futile-/ (last accessed 11 December, 2012)

[56]. Michelle Donegan, Vendors Balk at LTE Patent Pool Proposal, available at http://www.lightreading.com/document.asp?doc_id=212362 (last accessed 11 December, 2012).

[57]. SISVEL: Patent Pool for 3G Long Term Evolution (LTE), available at http://www.thefreelibrary.com/SISVEL%3A+Patent+Pool+for+3G+Long+Term+Evolution+(LTE).-a0199544458 (last accessed 08 December, 2012)

[58]. LTE Patent Pool from Sisvel, available at http://4g-portal.com/lte-patent-pool-from-sisvel (last accessed 09 December, 2012)

[59]. Id.

[60]. Id.

[61]. Mike Dano, Via Promises LTE Patent Pool Launch Within Months, available at http://www.fiercewireless.com/story/licensing-promises-lte-patent-pool-launch-within-months/2012-06-15 (last accessed 07 December, 2012)

[62]. LTE Patent Pool Available Through Via’s Licensing Program, available at http://4g-portal.com/lte-patent-pool-available-through-vias-licensing-program (last accessed 10 December, 2012).

[63]. Id.

[64]. Stephen Lawson, Lte Patent Pool Brings Together Technologies From At&T, Zte, Hp And Others, available at http://www.computerworld.com/s/article/9232043/LTE_patent_pool_brings_together_technologies_from_AT_amp_T_ZTE_HP_and_others (last accessed 09 December, 2012)

[65]. Peter White, Sisvel LTE Patent Pool Emerges After All- Majors Still Hold Back from Committing, available at http://www.rethink-wireless.com/2012/11/05/sisvel-lte-patent-pool-emerges-all-majors-hold-committing.htm (last accessed 09 December, 2012)

[66]. Shankar Pandiath, Sisvel Launches Patent Pool for 3G Long Term Evolution (LTE), available at http://next-generation-communications.tmcnet.com/topics/nextgen-voice/articles/314957-sisvel-launches-patent-pool-3g-long-term-evolution.htm (last accessed 09 December, 2012).

[67].NGMN Board Welcomes Launch of LTE Patent Pool, available at http://4g-portal.com/ngmn-board-welcomes-launch-of-lte-patent-pool (last accessed 09 December, 2012).

[68]. ELSPETH THOMSON AND JON SIGURDSON (EDS.), CHINA’S SCIENCE AND TECHNOLOGY SECTOR AND THE FORCES OF GLOBALIZATION 17 (2008, World Scientific Publishing Company, Singapore).

[69]. Cong Cao, Challenges for Technological Development in China’s Industry, available at http://chinaperspectives.revues.org/924 (last accessed 11 December, 2012)

[70]. Peter Zura, China Launches TD-SCDMA Telecom Standard¸ available at http://271patent.blogspot.in/2006/01/china-launches-td-scdma-telecom.html (last accessed 10 December, 2012)

[71]. Id.

[72]. Id.

[73]. TD-SCDMA (time division synchronous code division multiple access), available at http://searchmobilecomputing.techtarget.com/definition/TD-SCDMA (last accessed 07 December, 2012).

[74]. SHAHD AKHTAR AND PATRICIA ARINTO (EDS.), DIGITAL REVIEW OF ASIA PACIFIC : 2009-2010 8 (2010, Sage Publications, New Delhi).

[75]. Supra note 1 at 2. See Appendix 2 for the breakup of patent holding. However, see details on Infra note 78 for a contradictory view, wherein China claims to own 30% of all TD-SCDMA patents.

[76]. Pierre Vialle, On the relevance of Indigenous Standard Setting Policy: the Case of TD-SCDMA in China, 2^nd International Conference on Economics, Trade and Development, (2012) 36 IPEDR 184-185 (IACSIT Press, Singapore).

[77]. Dazheng Wang, Patent Pool: A Solution to the Problem of TD-SCDMA’s Commercialization, http://ieeexplore.ieee.org/xpl/login.jsp?tp=&arnumber=5076744&url=http%3A%2F%2Fieeexplore.ieee.org%2Fiel5%2F5076660%2F5076661%2F05076744.pdf%3Farnumber%3D5076744 (last accessed 11 December, 2012).

[78]. China Owns 30% of TD-SCDMA Related Patents, available at http://www.cn-c114.net/582/a310685.html (last accessed 11 December, 2012).

[79]. The Legal Regulation on Patent Pool Misuse, available at http://www.socpaper.com/the-legal-regulation-on-patent-pool-misuse.html (last accessed 11 December, 2012).

[80]. Supra notes 75 and 78.

[81]. Tomoo Marukawa, Chinese Innovations in Mobile Telecommunications: Third Generation vs. “Guerrilla Handsets”, Paper presented at the IGCC Conference: Chinese Approaches to National Innovation, La Jolla, California, June 28-29, 2010 at 1.

[82]. Id at 8.

[83]. Id at 9.

[84]. Id at 9.

[85]. China to Speed Up TD-LTE Process, available at http://www.tdscdma-forum.org/en/news/see.asp?id=11998&uptime=2012-11-29 (last accessed 08 December, 2012)

[86]. Supra note 23.

[87]. Id.

[88]. Supra note 23.

[89]. Sisvel’s Patent Strategy, available at http://www.managingip.com/Article/2400452/Sisvels-patent-strategy.html (last accessed 12 December, 2012).

[90]. Id.

[91]. Supra note 23.

For more details visit https://cis-india.org/a2k/blogs/patent-pools

Letter for Establishment of Patent Pool for Low-cost Access Devices through Compulsory Licenses

nehaa — 2013-06-27T08:06:50Z

On June 27, 2013, CIS sent a letter for establishment of a patent pool for low cost access devices through compulsory licenses.

M. Mangapati Pallam Raju
Minister for Human Resource Development
Shastri Bhavan
New Delhi 110 001

27 June 2013

Dear Dr. Pallam Raju,

Subject: Establishment of a Patent Pool for Low-Cost Access Devices through Compulsory Licences

We at the Centre for Internet and Society would like to commend you for the progressive stand you have adopted that while the government is committed to low-cost access devices, students should be able to decide “on which device, whether it is a mobile phone or iPad or Aakash or regular com-puter, they access the content”. It is imperative, though, that low-cost access devices (LCAD) be available to students, and thus the Mehta Committee report rightly acknowledges the importance of the Aakash project as central to the National Mission on Education through Information and Com-munications Technology (NMEICT). We propose a solution that would ensure both easy access to affordable devices for students to enable the NMEICT mission, as well as ensure that the MHRD focus more on educational content than devices.

We would urge you to enable access to LCADs by establishing a patent pool of essential technolo-gies (the ‘Aakash patent pool’) through the issue of compulsory licences. There are, at present in-ternationally, thousands of granted patents and tens of thousands of other intellectual property claims in respect of mobile and tablet technologies. The multiplicity of claims and cross-claims makes it impossible to manufacture, without exposure to adverse claims, generic and affordable tab-let devices. As you know, the assertion of multiple adverse and competing intellectual property claims is one of the main reasons that the Aakash tablet project is stalled. Already the multi-billion dollar patent wars in the US and Europe between Apple, Samsung, and other device manufacturers, are coming to India with Ericsson suing Micromax, India’s second-largest seller of phones and tab-lets, for Rs. 100 crore just a few weeks ago.

The establishment of a patent pool of essential technologies will redress this imminent failure and will enable the manufacturing of affordable tablet devices in compliance with the NMEICT. To es-tablish such a patent pool, the current patents applicable to mobile and tablet devices must be com-pulsorily licensed to a common pool and manufacturers who wish to sell their devices at an afford-able price would be allowed, at uniform terms and conditions, to utlise these patented technologies. This will simultaneously ensure that all patent-holders will benefit from royalty payments and that all manufacturers will gain access to the requisite patented technologies in a fair manner without adverse claims. The manufacturers who benefit from the pool could be required to give the Indian government credit by displaying the Aakash logo on their devices.

In order to establish such a patent pool, it is necessary to, firstly, identify the relevant technologies, and all patent-holders of such technologies, and secondly, compulsorily licence the patents in re-spect of the identified relevant technologies to the patent pool for fair and uniform consideration. Once the patent pool is established, rules may be issued to govern access to the pooled patents, regulate the manufacturing process and prevent misuse. The Patent Act, 1970 contains provisions to permit compulsory licensing of patents by the Controller of Patents on an application made in this behalf. Section 84(1)(b) read with section 84(4) of the Patents Act, 1970 enables the issue of a com-pulsory licence in respect of a patented invention if it “is not available to the public at a reasonably affordable price”.[1]

The establishment of a patent pool will directly promote public interest by advancing and deepening education in India and will also facilitate the realisation of the NMEICT.[2]

Establishing a patent pool for tablet technologies will also stimulate manufacturing in the informa-tion technology and electronics sectors in India. The National Manufacturing Policy, 2011 identifies information technology hardware and electronics and telecommunication equipment as industries of strategic significance that demand special encouragement. The Policy calls for “sector-specific pol-icy interventions” in special focus sectors where India enjoys the benefit of cost competitiveness. It is possible that, if implemented, the patent pool and the Aakash project will become global symbols of India's technological ability. While the farsightedness of the Indian Patent Act and policymakers has resulted in India becoming the “pharmacy of the world”, similar farsightedness may now result in India becoming the “electronics hub of the world”.

Forming such a patent pool for affordable access devices will prove to be a huge opportunity for education, and the credit for that would go to the Indian government and to the MHRD in particular. Further, some of the most important patent pools of the past have only come into existence after government intervention, such as the avionics patent pool proposed by the Secretary of the U.S. Navy during World War I and the radio patent pool, also created as a result of intervention by the U.S. Government. For these and other reasons, we urge you to consider establishing a patent pool for technologies relevant to the manufacture of affordable tablets and other similar devices. We will be happy to meet you, at your convenience, to talk about the legal and other issues involved in such a project.

Thank you.

Yours sincerely,

Sunil Abraham
Executive Director

Copies to:

Dr. Shashi Tharoor, Hon’ble Minister of State for Human Resource Development;
Shri Jitin Prasada, Hon’ble Minister of State for Human Resource Development;
Shri Ashok Thakur, Secretary;
Smt. Amita Sharma, Additional Secretary;
Shri Amit Khare, Joint Secretary.

[1].Compulsory licensing has long been favoured in India to enable public access to essential technologies. The Report on the Revision of the Patent Law, 1959 by a Committee headed by Justice N. Rajagopala Ayyangar advocated a strong compulsory licensing regime that formed the basis for the unamended Patents Act, 1970. The recent decision of the Supreme Court of India in the matter of Novartis v. Union of India (CA 2706-2716 of 2009) creates a judicially enforceable precedent in respect of enabling affordable access to patented technologies in the public interest.

[2]. In addition, the decision of the Controller of Patents, Mumbai, in NATCO Pharma and Bayer Corporation (CL Application 1 of 2011) that upheld the issue of a compulsory licence in respect of a particular pharmaceutical promotes the principle of affordable access to essential technologies. The issuance of a compulsory licence to establish a patent pool will not violate India's commitments under the Agreement on Trade-Related Intellectual Property Rights (TRIPS Agreement) of the World Trade Organisation.

For more details visit https://cis-india.org/a2k/blogs/letter-for-establishment-of-patent-pool-for-low-cost-access-devices

CIS's Closing Statement at Marrakesh on the Treaty for the Blind

pranesh — 2013-07-03T12:01:25Z

Pranesh Prakash read out an abridged version of this statement as his closing remarks in Marrakesh, where the WIPO Treaty for the Blind (the "Marrakesh Treaty") has been successfully concluded. The Marrakesh Treaty aims to facilitate access to published works by blind persons, persons with visual impairment, and other print disabled persons, by requiring mandatory exceptions in copyright law to enable conversions of books into accessible formats, and by enabling cross-border transfer of accessible format books.

Thank you, Mr. President.

I am truly humbled to be here today representing the Centre for Internet and Society, an Indian civil society organization. If I may assume the privilege of speaking on behalf of my blind colleagues at CIS who led much of our work on this treaty, and the many blindness organizations we have been working with over the past five years who haven't the means of being here today, I would like to thank you and all the delegates here for this important achievement. And especially, I would like to thank the World Blind Union and Knowledge Ecology International who renewed focus on this issue more than 2 decades after WIPO and UNESCO first called attention to this problem and created a "Working Group on Access by the Visually and Auditory Handicapped to Material Reproducing Works Produced by Copyright".

While doing so, I would like to remember my friend Rahul Cherian — a young, physically impaired lawyer from India — who co-founded Inclusive Planet, was a fellow with the Centre for Internet and Society, and was a legal adviser to the World Blind Union. He worked hard on this treaty for many years, but very unfortunately did not live long enough to see it becoming a reality. His presence here is missed, but I would like to think that by concluding this treaty, all the distinguished delegations here managed to honour his memory and work.

I am grateful to all the distinguished delegations here for successfully concluding a reasonably workable treaty, but especially those — such as Brazil, India, Ecuador, Nigeria, Uruguay, Egypt, South Africa, Switzerland, and numerous others — who realized they were negotiating with blind people's lives, and regarded this treaty as a means of ensuring basic human rights and dignity of the visually impaired and the print disabled, instead of regarding it merely as "copyright flexibility" to be first denied and then grudgingly conceded. The current imbalance in terms of global royalty flows and in terms of the bargaining strength of richer countries within WIPO — many of who strongly opposed the access this treaty seeks to facilitate right till the very end — is for me a stark reminder of colonialism, and I see the conclusion of this treaty as a tiny victory against it.

It is historic that today WIPO and its members have collectively recognized in a treaty that copyright isn't just an "engine of free expression" but can pose a significant barrier to access to knowledge. Today we recognize that blind writers are currently curtailed more by copyright law than protected by it. Today we recognize that copyright not only may be curtailed in some circumstances, but that it must be curtailed in some circumstances, even beyond the few that have been listed in the Berne Convention. One of the original framers of the Berne Convention, Swiss jurist and president, Numa Droz, recognized this in 1884 when he emphasized that "limits to absolute protection are rightly set by the public interest". And as Debabrata Saha, India's delegate to WIPO during the adoption of the WIPO Development Agenda noted, "intellectual property rights have to be viewed not as a self contained and distinct domain, but rather as an effective policy instrument for wide ranging socio-economic and technological development. The primary objective of this instrument is to maximize public welfare."

When copyright doesn't serve public welfare, states must intervene, and the law must change to promote human rights, the freedom of expression and to receive and impart information, and to protect authors and consumers. Importantly, markets alone cannot be relied upon to achieve a just allocation of informational resources, as we have seen clearly from the book famine that the blind are experiencing. Marrakesh was the city in which, as Debabrata Saha noted, "the damage [of] TRIPS [was] wrought on developing countries". Now it has redeemed itself through this treaty.

This treaty is an important step in recognizing that exceptions and limitations are as important a part of the international copyright acquis as the granting of rights to copyright holders. This is an important step towards fulfilling the WIPO Development Agenda. This is an important step towards fulfilling the UN Convention on the Rights of Persons with Disabilities. This is an important step towards fulfilling Article 27 of the Universal Declaration of Human Rights, Article 15 of the International Covenant on Economic Social and Cultural Rights and Article 30 of the UN Convention on Persons with Disabilities, all of which affirm the right of everyone — including the differently-abled — to take part in cultural life of the community.

While this treaty is an important part of overcoming the book famine that the blind have faced, the fact remains that there is far more that needs to be done to bridge the access gap faced by persons with disabilities, including the print disabled.

We need to ensure that globally we tackle societal and economic discrimination against the print disabled, as does the important issue of their education. This treaty is a small but important cog in a much larger wheel through which we hope to achieve justice and equity. And finally, blind people can stop being forced to wear an eye-patch and being pirates to get access to the right to read.

I also thank the WIPO Secretariat, Director General Francis Gurry, Ambassador Trevor Clark, Michelle Woods, and the WIPO staff for pushing transparency and inclusiveness of civil society organizations in these deliberations, in stark contrast to the way many bilateral and plurilateral treaties such as Anti-Counterfeiting Trade Agreement, the India-EU Free Trade Agreement, and the Trans-Pacific Partnership Agreement have been, and are being, conducted. I hope we see even more transparency, and especially non-governmental participation in this area in the future.

I call upon all countries, and especially book-exporting countries like the USA, UK, France, Portugal, and Spain to ratify this treaty immediately, and would encourage various rightholders organizations, and the MPAA who have in the past campaigned against this treaty and now welcome this treaty, to show their support for it by publicly working to get all countries to ratify this treaty and letting us all know about it.

I congratulate you all for the "Miracle of Marrakesh", which shows, as my late colleague Rahul Cherian said, "when people are demanding their basic rights, no power in the world is strong enough to stop them getting what they want".

For more details visit https://cis-india.org/a2k/blogs/cis-closing-statement-marrakesh-treaty-for-the-blind

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

nehaa — 2013-07-22T05:54:01Z

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

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

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

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

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

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

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

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

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

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

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

ASHOK CHAWLA- CHAIRPERSON, CCI- INAUGURAL ADDRESS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Accession strengthens march towards excellence in IP recognition.

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

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

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

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

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

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

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

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

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

At what stage are you required to license?

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

Do You Have the Right to Unlock Your Smart Phone?

puneeth — 2013-08-07T07:32:52Z

In this blog post Puneeth Nagaraj looks at the recent controversy over the expiration of the exemption granted by the US Library of Congress for unlocking phones and compares the Indian position as per a 2005 Andhra Pradesh High Court judgment.

Being a gadget freak in India is difficult. Smartphone companies take months to release their latest product in India (if they do at all) and even when they are released, they are overpriced. For instance, Google's offering in the entry level tablet market, the Nexus 7 was released in India only in April — a full 9 months after its US debut. It is priced at Rs. 16,000 (USD 300) while it costs only USD 200 in the US. Google’s other device Nexus 10 is yet to make its way to the Indian market.

For long, the Indian gadget freak has relied on friends or family travelling abroad to get his/her hands on the latest gadgets on offer. It was not uncommon in the days following the release of the earlier models of the iPhone for eager owners of foreign bought phones to unlock or “jailbreak” their phones so they could use it in India. But the practice of “jailbreaking” or “android rooting” (hereinafter referred to as unlocking [*] for convenience) phones serves a wider purpose. Unlocking smart phones allows users to overcome limitations imposed by hardware manufacturers or carriers. As a result, users can freely switch service providers. While some manufacturers (like Apple) strongly oppose unlocking- even threatening to cancel warranty in case of unlocked devices, others do not mind it and some (like Google and HTC) even encourage it.

US Library of Congress Exemption

The whole controversy surrounding the legality of unlocking phones started in the US last October when the Library of Congress decided against renewing a copyright exemption it granted in 2006. As a result, the exemption expired in January and caused a furore in the US. The DMCA (1201 of the USC), prohibits circumvention of technological measures that protect access to a copyrighted work. This sort of protection is necessary to protecting copyrighted works in a digital format. But the US Congress was informed of the restrictive effects of such a prohibition. Consequently, the Congress created statutory exemptions to allow circumvention of these technological measures and empowered the Library of Congress to grant or renew such exemptions.

Despite the exemption granted by the Library of Congress in 2006, many phone companies successfully sued hardware providers who enabled unlocking of phones. With the expiration of the exemption in January, the status of phone unlocking hangs in a balance. This is especially troublesome as it is a widespread and in some cases essential practice. Both the White House and the FCC have been petitioned to legalise unlocking. In response, four different proposals have been tabled in the US Congress just for this purpose (here is an analysis of each of the bills).

At the moment, the unlocking of phones to run unapproved software is still legal as a result of an exemption granted in 2012. But this is also up for review in 2015. There is a need for a more comprehensive solution to address both these issues and the proposals before the Congress fall short.

Indian Position

Syed Asifuddin v. State of Andhra Pradesh
A case based on the unlocking of phones came before the Andhra Pradesh High Court in 2005. Certain Employees of TATA Indicom had facilitated the migration of customers contracted to Reliance for 3 years by unlocking their phones. Representatives of Reliance filed a criminal complaint against them alleging criminal breach of trust (IPC Section 409), cheating (IPC Section 420) and criminal conspiracy (IPC Section 120). They also claimed the violation of copyright and sought punishment under Section 63 of the Copyright Act, as well as Section 65 of the IT Act.

The court dismissed the criminal petitions under the IPC, IT Act and the Copyright Act. However, on the question of copyright infringement, the court held that if a person alters computer programme of another person or another computer company, the same would be infringement of copyright. The court also found that a cell phone would fall under the definition of a computer under Section 2(1) (i) of the Information Technology Act. Consequently, the court held that Section 65 of the IT Act, which deals with the tampering of computer source documents, would be applicable to the present case. The decision itself may not have precedent value on the issue as the High Court was merely ruling on the admissibility of the case on the basis of the above provisions and sent the matter back to the trial court to decide based on the evidence available. But the opinion of the court on copyright infringement and the IT Act is troubling.

Criticism

First, the court used the rather expansive definition of computers in the IT Act (Section 2(1) (i)) to include mobile phones as well. The definition under the above section reads as under:

any electronic, magnetic, optical or other high speed data processing device or system which performs logical, arithmetic and memory functions by manipulations of electronic, magnetic or optical impulses, and includes all input, output, processing, storage, computer software or communication facilities which are connected or related to the computer in a computer system or computer network.

It would not be unreasonable to see smartphones as being capable of “high speed data processing” or “input, output, processing, storage”. However, the phones in question here were basic Samsung N191 and LG-2030 phones (images of these phones can be seen here and here). Even if it might be conceivable that such basic phones can be put in the same bracket as desktop computers or laptops, the court had to examine the definition in the context of the substantial provision. In this case, the substantial provisions were Section 65 and 66 of the IT Act, which deal with tampering source documents and hacking computer systems respectively. So, by equating a basic mobile phone to a computer, the court equated unlocking a mobile phone to hacking a computer. This problem is exacerbated by the fact that Section 66 prescribes criminal punishment to hackers.

Second, the court also erred in its ruling on the Copyright Act. Once again, the court held a basic phone to mean a computer under Section 2(ffb). More worryingly, it was held that the Electronic Serial Number (ESN), a unique code given to every phone would qualify as a computer program under Section 2(ffc) and is thus subject to copyright under Section 14 of the Copyright Act. In doing so, the court has set the bar extremely low for copyrightablity of computer programs. Needless to say this judgment needs to be reconsidered if not watered down. While there is recognition that bootloader protection programmes barely meet the standard for copyright, the Andhra Pradesh High Court has granted protection to a randomly generated 11 digit number.

Fortunately, the case of Syed Asifuddin was not a final ruling on the issue as the court sent the matter back to the trial court. However, there is every chance that a future court can rely on the erroneous reasoning in this case. Further, fair use arguments can always be mad in the favour of an individual consumer who wishes to migrate to another service provider.

The larger problem is that by giving an expansive meaning to the provisions in the Copyright Act and the IT Act, it can be used to target businesses that facilitate unlocking devices that can be targeted (like in the US). Unlike in the US, phone unlocking is not a business in India and is usually done by small business owners who sell and repair mobiles. The consequences of suing such businesses can be worse in India as they can end up in jail for an act that falls in an undefined area of the law. It seems that the situation may be resolved in the US in the near future in favour of the consumer — although the issue of the business of unlocking phones must be resolved finally. The position in India is worrisome especially due to the threat of criminal persecution.

[*]. The term jailbreaking is used specifically in the case of iOS devices and android rooting, as the name suggests is used in the case of android devices. Technically speaking, they are very different given that most android devices do not restrict access to their “bootloaders”. Acknowledging the difference between the two, the discussion here is focused on overriding technological measures meant to protect underlying copyrighted works.

For more details visit https://cis-india.org/a2k/blogs/do-you-have-right-to-unlock-your-smart-phone