Centre for Internet and Society

MHRD IPR Chair Series: Information Received from IIT, Madras

nehaa — 2016-05-24T17:12:48Z

This post provides a factual description about the operation of Ministry of Human Resource Development IPR Chair’s Intellectual Property Education, Research and Public Outreach (IPERPO) scheme in IIT Madras.

Nisha S. Kumar assisted in compilation of the document.

The author has analysed all the data received under various heads such as income, grants from MHRD, planned and non-planned expenditure, nature and frequency of programmes organised and the allocation of funds for the same. Throughout the course of observation and presentation of the analysed data, the author seeks to trace the presence of unjustified underutilization of funds by the aforementioned university as provided by the MHRD during the period of 2006-2014.

To collect the information for the given study, an RTI application was filed to the Indian Institute of Technology, Madras on 17/12/2014 by the Centre for Internet and Society. The reply to this RTI application was received on 02/02/2014. Following the inadequacy of the response by the institute, the Centre for Internet and Society filed a second RTI application on 09/02/2015. The reply to this application was received on 12/03/2015. These are the documents received by CIS from IIT Madras:

Click for response to first RTI and supporting documents provided click here
For response to second RTI application click here

Hereinafter, in order to receive any information about IIT Madras’s RTI reply, kindly refer to the above mentioned links. Following are the queries mentioned in the RTI application along with their replies.

Reports on the implementation of the IPERPO scheme of the Ministry of Human Resource Development and the implementation of the MHRD IPR Chair funded under the scheme at IIT Madras from 2006-2014
Reply: IIT Madras replied that there is no report with respect to the implementation of the scheme and the IPR chair at IIT Madras.
Documents detailing the release of grants to the MHRD IPR Chairs under the IPERPO Scheme
Reply: The University received a grant of Rs. 25,00,000 from the Ministry of Human Resource and Development under the IPERPO scheme. This amount was sanctioned for the purpose of furthering the objectives of the scheme.
Documents relating to receipts of utilisation certificates and audited expenditure statements and matters related to all financial sanctions with regard to funds granted to the MHRD IPR Chair established under the IPERPO scheme at IIT Madras.
Reply: The University has submitted utilization certificates from 2006 to 2014.

Comparative Analysis between University Response and the guidelines of MHRD Scheme Document

The Scheme Document of MHRD (http://copyright.gov.in/Documents/scheme.pdf) is a comprehensive document which consists of guidelines regarding Intellectual Property Education, Research and Public Outreach. It talks about a list of objectives, purposes, conditions and eligibility criteria for a University to ensure in order to implement IPERPO in a truest sense. This document provides the procedural as well as qualifying conditions for an Institute to ensure or fulfil before applying for the MHRD grant. Some of these conditions include maintenance of utilization certificates, audit reports, expenditure statements and event information which would be open to access on demand by MDHR or Comptroller and Auditor General of India.

A. Objectives
The University has not provided any documents detailing any activities undertaken to further th objectives of the IPERPO scheme.

B. Eligibility
IIT Madras is recognized by the University Grants Commission. Therefore, it fulfils the eligibility criteria mentioned in the scheme document.

Financial Analysis
The University has provided the utilization certificates for the period 2006-2014.

A. Financial year 2006-07

A sanctioned amount of Rs. 25,00,000 was received by the University with a carried forward balance of Rs. 1,09,119. There were no expenditures incurred by the University.

B. Financial year 2007-08

The University did not receive any grant from the Ministry of Human Resource and Development. However, last year’s unutilized balance of Rs.26,09,119 carried over with an additional Rs. 2,00,000 received as interest. There were no expenses incurred.

C. Financial year 2008-09

The University did not receive any additional grant from the Ministry, however, last year’s unutilized balance of Rs. 28,09,119 carried over with an additional Rs. 2,00,000 received as interest. There were no expenses incurred.

D. Financial year 2009-10

The University did not receive any grant from the ministry however, the last year’s balance of unutilized balance of Rs. 30,09,119 carried forward entirely with an additional Rs. 1,33,177 received as interest. There were no expenses incurred.

E. Financial year 2010-11

The University did not receive any grant from the ministry however, the last year’s balance of unutilized balance of Rs. 31,42,296 carried forward entirely with an additional Rs. 1,33,176 received as interest. There were no expenses incurred.

F. Financial year 2011-12

The University did not receive any grant from the ministry however, the last year’s balance of unutilized balance of Rs. 32,75,472 carried forward entirely with an additional Rs. 1,33,176 received as interest. There were no expenses incurred.

G. Financial year 2012-13

The University did not receive any grant from the ministry however, the last year’s balance of unutilized balance of Rs. 34,08,648 carried forward entirely with an additional Rs. 1,33,176 received as interest. There were no expenses incurred.

H. Financial year 2013-14

The University did not receive any grant from the ministry however, the last year’s balance of unutilized balance of Rs. 35,41,824 carried forward entirely with an additional Rs. 1,33,176 received as interest amounting to a total of Rs. 36,75,000. Expenses amounting to Rs. 5,25,783 were incurred by the University leading to an unspent balance of Rs. 31,49,217.

An expenditure breakdown has not been provided by the University.

For more details visit https://cis-india.org/a2k/blogs/mhrd-ipr-chair-series-information-received-from-iit-madras

MHRD IPR Chair Series: Information Received from NLU, Jodhpur

nehaa — 2016-05-26T02:03:42Z

The author has analysed all the data received through which, the author seeks to trace the presence of unjustified underutilisation of funds by the aforementioned university as provided by the MHRD during the period of 2013-2014.

Nisha S. Kumar assisted in compilation of the document.

To collect the information for the given study, an RTI application was filed to NLU, Jodhpur on 09/02/2015 by the Centre for Internet and Society. The reply to RTI application was received on 12/03/2015.

These are the documents received by CIS from NLU, Jodhpur:

For the reply to the RTI application click here
For the proposal to establish the IPR chair at NLU Jodhpur click here

Hereinafter, in order to receive any information about NLU, Jodhpur’s RTI reply, kindly refer to the above mentioned links. Following are the queries mentioned in the RTI application along with their replies.

Reports on the implementation of the IPERPO scheme of the Ministry of Human Resource Development and the implementation of the MHRD IPR Chair funded under the scheme at NLU, Jodhpur.

Reply: NLU, Jodhpur has submitted the documents required under this track for the period of 2008-2015. To view the relevant documents, download the file (2008-09 –Part one,Part two and Part three; 2009-10 – Part one, Part two, Part three and Part four; 2010-11 – Complete; 2011-12 – Part one and Part two; 2012-13 – Part one and Part two; 2013-14 - Complete; 2014-15 - Complete).

Documents detailing the release of grants to the MHRD IPR Chairs under the IPERPO Scheme
Reply: NLU, Jodhpur has submitted the documents required under this track for the period of 2008-2010 and the financial year of 2013-2014. To view all the documents submitted by the University in reply,click here.(nlu jodhpur F. No. 10.2008-IC’)
Documents relating to receipts of utilisation certificates and audited expenditure statements and matters related to all financial sanctions with regard to funds granted to the MHRD IPR Chair established under the IPERPO scheme at NLU, Jodhpur.
Reply: The University has provided utilisation certificatefor the period of 2008-11 and 2013-14. To view the supporting documents, click here. (nlu jodhpur Utilisation Certificate’)

Comparative Analysis between University Response and the guidelines of MHRD Scheme Document

A. Objectives
In order to fulfil the objectives mentioned in the scheme document, NLU Jodhpur undertook following activities:

Introduction of UG and PG level courses on IPR
Conducting lecture series on the subject of IPR.
Conducting multiple workshops over the years to further the training of teachers as well as at a student level
Hosting numerous conclaves on the subject of IPR and their relation to business
Providing short term course on training of teachers in the field of IPR
Held various symposiums, seminars and conferences for the furtherance of IPR
Invited esteemed professors from the field for guest lectures
Established an IPR library in the IPR cell

B. Eligibility
NLU, Jodhpur is recognized by the University Grants Commission. Therefore, it fulfils the eligibility criteria mentioned in the scheme document.

Financial Analysis
A.Financial year 2008-09

The University received a grant of Rs. 14,00,000 out of which it utilized Rs. 11,90,115 for the implementation of the IPERPO scheme leaving an unspent balance of Rs. 2,09,885.

B. Financial year 2010-11

First installment

The University incurred an expenditure of Rs. 11,27,740 against a grant of Rs. 15,00,000 leaving an unutilized balance of Rs. 3,72,260.

Second Instalment

The University incurred an expenditure of Rs. 26,21,369 against a grant of Rs. 40,00,000 leaving an unspent balance of Rs. 13,78,631 as unutilized balance.

C. Financial year 2013-14

The University incurred an expenditure of Rs. 16,86,566 against a grant of Rs. 36,00,000 leaving an unspent balance of Rs. 19,13,434.

Expenditure Analysis

For more details visit https://cis-india.org/a2k/blogs/mhrd-ipr-chair-series-information-received-from-nlu-jodhpur

MHRD IPR Chair Series: Information Received from IIT, Kanpur

nehaa — 2016-06-04T03:35:09Z

Nisha S Kumar assisted in compilation of the document.

The author has analysed all the data received under various heads such as income, grants from MHRD, planned and non-planned expenditure, nature and frequency of programmes organised and the allocation of funds for the same. Throughout the course of observation and presentation of the analysed data, the author seeks to trace the presence of unjustified underutilisation of funds by the aforementioned university as provided by the MHRD during the period of 2013-2014.

To collect the information for the given study, an RTI application was filed to the Indian Institute of Technology, Kanpur on 16/02/2015 by the Centre for Internet and Society. The reply to the same was received on 27/02/2015.

These are the documents received by CIS from IIT, Kanpur:

For the RTI application filed by the CIS click here
For the reply to the RTI application click here

IIT,Kanpur did not entertain the RTI and furnished no documents for perusal.

For more details visit https://cis-india.org/a2k/blogs/mhrd-ipr-chair-series-information-received-from-iit-kanpur

Comments on the Draft ICAR Open Access Policy

nehaa — 2013-05-28T06:44:45Z

The following comments were submitted to the Indian Council for Agricultural Research on May 23, 2013.

Introduction

The Centre for Internet and Society,[1] is is a not-for-profit research organization. Our substantive areas of work include openness (including openness of government data, open access to scholarly literature, open standards, free and open source software, open educational resources, and open video) access to knowledge and IPR reform, freedom of expression, privacy, accessibility for persons with disabilities, digital humanities and digital natives.[2]It is our belief that openness and collaboration are the agents of innovation and creativity, and the advent of the internet has radically redefined the meaning and practice of openness and collaboration. Pursuant to our vision, we have been actively involved in the area of Openness and the promotion of open access.[3]

Key research and highlights of our work in these areas are as under:

Comments on the Interoperability Framework for e-Governance (Phase 1), submitted to the Department of Information and Technology.[4]
A Status Report on Open Access to Scholarly Literature in India.[5]
A Survey Report on the Online Video Environment in India.[6]
A Report on Open Government Data in India.[7]
An Open Government Data Study.[8]
Publication of multiple blog posts and the conduction of various events including workshops and seminars around Openness and Open Access.[9]

We hope that our commitment to Open Access and Openness, substantiated with our work in these areas leads you to consider our comments to your Draft Open Access Policy favourably.

The Structure of the Report

This report will deal provide feedback on the structure of the policy, various clauses of the policy, what clauses may be omitted (if any) and other clauses that may be included. Additionally, possible challenges that might require to be addressed in the implementation of this policy have also been indicated.

Overview

It is felt that the ICAR Draft Policy on Open Access is fairly comprehensive, covering most areas associated with its implementation, detailed, embodies the principles of openness and open access, and is a step in the right direction towards achieving open access to scientific and scholarly literature, acting as an example for other communities to do the same.[10]

Structural Feedback

It is suggested that the policy be structured along the lines of the UNESCO Library Open Access Policy, with headings including Introduction, the Objectives/Mission Statement of the Policy, Applicability, Repository, Roles and Obligations of various participants, Intellectual Property Law Issues and Implementation.[11]

Feedback on Existing Clauses

The decision of the ICAR to implement an Open Access Policy is commendable, and an encouragement to other institutions to follow suit.

The adoption of OAI-MHP standard will ensure interoperability, given that it is seen as the cornerstone in open access to institutional research output, and failure to utilize this standard would reduce accessibility and therefore the impact of materials, since they are invisible to each other.

The provisions of the content to be made a part of the repository, and the implementation are comprehensive and detailed. Inter alia, measures involving encouragement to publish in journals that allow for open access through archiving, workshops for advocacy and capacity building, adoption of the CC-NC-SA license are appreciated.

Suggested Changes

It is suggested that the Policy include provisions on information to be made available in accessible formats. In pursuance of the same, it is particularly suggested that the ICAR adopt measures to publish literature that is made available through this Open Access mechanism in formats accessible for visually impaired/print disabled persons, to truly realise the underlying aims of Open Access.

It is suggested that in addition to class/lecture notes already included under the content, ‘course content’ developed for any class/seminar/lecture in any university/college/educational institution be made a separate category of material to be included for open access.

It is suggested that the following sentence in the proposed policy be further clarified: “Scientists are advised to mention the ICAR’s Open Access policy while signing the copyright agreements with the publishers”- A clarification is required regarding the application of this sentence and its applicability. Would the policy apply to both those cases where the scientists have copyright over their work, and where the institute has copyright, or to only one of these scenarios?

It is suggested that the ICAR participate in the development and promote the building of cross institutional services (cross repository services) to further the aims of Open Access,[12] and the same be reflected in the forthcoming policy.

It is suggested that the forthcoming policy include an explicit provision on long term digital preservation[13] of the collected information, including possible measures that the ICAR may adopt to this end.

It is suggested that the forthcoming policy include a specific provision that requires contributing scientists/researchers etc. to explicitly declare that they have the copyright for and have obtained the necessary permissions to post and contribute to the Open Access Project.

It is suggested that the ICAR take steps for aiding the development of Open Access Journals. In furtherance of the same, the ICAR could have links of the websites of these Journals on its own repository, such that the link to the articles on the websites of these Journals leads directly to the ICAR Repository. Such a move would incentivise authors to contribute, since their effort would be recognised, and researchers would have a persistent source to cite from an archive. This effort would also be in consonance with the broader aims of Open Access that the ICAR is keen to achieve through its proposed policy.

It is suggested that the policy also include measures to encourage persons not members of the ICAR to contribute to the Repository.

It is suggested that as regards the implementation aspects of the creation of this repository, the ICAR would also have to ensure the creation of digital document identifiers for all content to be contributed to and housed on the repository. Additionally, the policy ought to also lay down standards of training and development of the staff and authors to submit content to the repository, and to be able to efficiently utilize the same. It is also suggested that the policy encompass the development of a framework for feedback for users and feedback from users, where the former would provide current statistics and details about articles and contributions to users, and the latter would be a mechanism for users to comment on their experience in utilising the repository.

Concluding Observations

The Centre for Internet and Society deeply appreciates the effort undertaken by the ICAR to bring about Open Access in its area of work, which is definitely a welcome step in the right direction. CIS hopes that given its commitment to Open Access and strong tradition of work in this area, the ICAR would give due regard to the observations made out in this report.

[1]. Hereafter referred to as CIS.

[2]. See http://cis-india.org/about for more details.

[3]. See http://cis-india.org/openness for our work on Openness.

[4]. Available at http://cis-india.org/openness/blog/comments-ifeg-phase-1

[5]. Available at http://cis-india.org/openness/blog/open-access-to-scholarly-literature

[6]. Available at http://cis-india.org/openness/online-video-environment-in-india

[7]. Available at http://cis-india.org/openness/blog/ogd-draft-v2-call-for-comments

[8]. Available at http://cis-india.org/openness/blog/open-government-data-study

[9]. See http://cis-india.org/@@search?SearchableText=open+access for details of our posts and events on Open Access.

[10]. United Nations Educational, Scientific and Cultural Organization, Open Access Policy Concerning UNESCO Publications, available at http://www.unesco.org/new/fileadmin/MULTIMEDIA/HQ/ERI/pdf/oa_policy_en_2.pdf (last accessed 22 May, 2013).

[11]. Id.

[12]. Gerard van Westrienen and Clifford A. Lynch, Academic Institutional Repositories: Deployment Status in 13 Nations as of Mid 2005, available at http://dlib.org/dlib/september05/westrienen/09westrienen.html (last accessed 22 May, 2013).

[13]. Leslie Chan, Supporting and Enhancing Scholarship in the Digital Age: The Role of Open Access Institutional Repositories , Canadian Journal of Communication, Vol. 29 (3&4), 277, 282.

For more details visit https://cis-india.org/openness/blog-old/comments-on-draft-icar-open-access-policy

The Indian Council of Agricultural Research Adopts an Open Access Policy

nehaa — 2013-09-30T15:03:04Z

In this blogpost, Nehaa Chaudhari discusses the newly adopted Open Access Policy of the Indian Council of Agricultural Research.

Earlier this month, the Indian Council of Agricultural Research (ICAR) adopted an Open Access Policy. Inter alia, this policy requires each ICAR institute to set up an Open Access Institutional Repository (OAIR), with the ICAR to set up a central harvester to harvest the meta data and full text of all the records from the Open Access (OA) repositories so set up. What is interesting from the IPR perspective is that the meta-data and other information of these repositories is copyrighted with the ICAR and has been licensed for research and academic purposes, for using, re-using and sharing. Commercial and other reuse would require the written permission of the ICAR. In a nod to the increasing importance of social media, ICAR’s Open Access Policy encourages its institutes to share their works on public repositories and social networking sites, besides adopting the mandate to have all publications, including its journals placed under Open Access. What might be harder to realize, however, is the publication of their research by scientists and other researchers across ICAR institutes or elsewhere, with publishers that allow self archiving Open Access Institutional Repositories. The ICAR Open Access Policy is available here.

In May, earlier this year, the ICAR had released a draft version of this policy, inviting comments. CIS’ comments had lauded the Policy as being comprehensive, detailed, and as being a positive step in the right direction, and had suggested some possible changes to the same.

It is observed that the adopted Open Access Policy (OAP) differs from the Draft Policy (DP) in certain respects, some of which are a cause for concern, whereas a few others expand the scope of the OAP. First, while the OAP requires that Institutional Repositories be established; the requirement contained in the DP to use Free and Open Source Software which was OAI-MHP compliant has been removed. Given that this is an endeavour to foster openness, requiring the use of Open Source Software was definitely a welcome step sought to be adopted by the ICAR, and its elimination renders the OAP lacking in the spirit of openness to its greatest realizable extent. Further, compliance with OAI-MHP would have ensured interoperability, as noted by us in our comments to the DP, and a failure to utilize this would reduce the accessibility and impact of archived materials. Second, the OAP requires that authors of scholarly articles deposit both, preprints and post-prints of their papers accepted for publication in the OAIR. This is a departure from the position in the DP, which required only preprints be deposited. Given that there is likely to be a difference in content and form of the article between the preprints and post-prints (which are after peer review), the inclusion of both preprints and post-prints in the OAIR is seen to be a beneficial move. Third, the period of embargo while signing copyright agreements with publishers had been envisaged to be six months in the DP, whereas the OAP extends the same to twelve months. It is felt that scientific writing is likely to be time sensitive, and twelve months might be an inordinate delay for its availability in the public domain, possibly reducing its applicability and relevance. Therefore, it is suggested that the earlier embargo period of six months might be the better alternative between the two. Fourth, the OAP incorporates an End Note, that was absent in the DP, which stipulates the time period of three years for compliance with the Open Access initiative, and recognizes the OAP as the first stage of a larger process. Both, the time period for compliance, and the recognition that the adoption of the OAP is but the first stage, are appreciated.

In sum, the OAP of the ICAR, while addressing some of the issues associated openness does leave room for desirability. Besides the suggestions that we had made earlier, other concerns include those reflected in this blog post, particularly regarding the departure from the DP in certain specific instances. Nonetheless, the adoption of the OAP by the ICAR is a welcome move- one that would hopefully be followed by other Government agencies such as the Department of Atomic Energy, the University Grants Commission, the Department of Biotechnology, etc.

For more details visit https://cis-india.org/openness/blog-old/icar-adopts-open-access-policy

Feedback on the Framework on OSS Adoption in E-Governance Systems

nehaa — 2013-10-28T10:35:04Z

CIS gave its feedback to the Department of Electronics and Information Technology (DeitY) on the Framework on Open Source Software Adoption in E-Governance Systems on October 26, 2013.

In September, 2013, the DeitY invited comments on the Framework on the proposed adoption of Open Source Software in E-Governance Systems (available at https://egovstandards.gov.in/Public_review_Framework_on_oss).

The Framework, published in September, 2013, provides a set of recommendations and procedures to encourage, manage and increase the adoption of Open Source Software in E-Governance systems. Further, the Framework goes on to discuss various important issues, including the deployment of unified software for all major devices, with the utilization of a standards based web browser, the integration of OSS with other on-going initiatives, and the development of an eco-system consisting of institutions, industry, academia and other key stakeholders to promote and adopt OSS. The envisaged Centre of Excellence on OSS to realize this Framework is noteworthy.

CIS commends the DeitY for this initiative, and appreciates the opportunity to provide feedback on the Framework.

The text of CIS Feedback is reproduced below:

PRELIMINARY

This submission presents comments from the Centre for Internet and Society[1] on the Framework on Open Source Software Adoption in ‘E-Governance’ (“Framework”), published by the Department of Electronics and Information Technology, Ministry of Communications and Information Technology, Government of India (DeitY).[2]

The Framework, published in September, 2013, provides a set of recommendations and procedures to encourage, manage and increase the adoption of Open Source Software in E-Governance systems.[3] Further, the Framework goes on to discuss various important issues, including the deployment of unified software for all major devices, with the utilization of a standards based web browser, the integration of OSS with other on-going initiatives, and the development of an eco-system consisting of institutions, industry, academia and other key stakeholders to promote and adopt OSS. The envisaged Centre of Excellence on OSS to realize this Framework is noteworthy.

CIS commends the DeitY for this initiative, and appreciates the opportunity to provide feedback on the Framework. CIS’ comments are as stated hereafter.

COMMENTS

Scope and Applicability

In the section pertaining to Scope and Applicability, the Recommendation proposed is to give priority to preferred areas for the adoption of this Framework.[4]

It is suggested that the preferred areas alluded to aforesaid be identified and disclosed. It is further suggested that the Framework identify a timeline for operationalization of all of the proposed recommendations, including the identification of the preferred areas and the adoption of the Framework in these areas. It is also suggested that a time frame be provided for the implementation of the Framework to all other areas, besides the preferred ones.

Preamble

In the section titled Preamble, the Recommendation proposed is to consider OSS along with Closed Source Software.[5] considering the socio- economic and strategic benefits provided by OSS.[6]

CIS appreciates the welcome measure in considering OSS alternatives along with CSS. While viewing this as indeed the first step in the right direction, CIS would suggest the development of a mechanism and the adoption of further measures in order to migrate entirely to an entirely OSS based system; with preference being given to OSS between OSS and CSS.

Factors Influencing the Adoption of OSS in Government

In the section dealing with Factors Influencing the Adoption of OSS in Government, the Framework states that the influencing factors are to be prioritized on the basis of feedback from managers/users.[7]

CIS proposes that it may be clarified who the managers/users being spoken of are, and what is the type and manner of feedback expected for the evaluation of influencing factors. CIS suggests that feedback also be sought in a more inclusive and holistic manner, after seeking consultation from other stakeholders as well.

Device Drivers

Under the section dealing with Device Drivers, the onus to ensure availability of device drivers for GNU Linux Operating Systems has been placed on the users.[8]

CIS strongly suggests that this be modified to state that the availability of device drivers for GNU Linux Operating Systems must be assured by vendors as a part of procurement requirements.

Procurement Guidelines

Under the section dealing with Procurement Guidelines, it has been recommended that vendors must provide justifications for excluding OSS in their response to proposals.[9]

CIS suggests that vendors be given a time frame within which to ensure compliance with the Framework, and thereafter be required to include OSS in their response to proposals, post which justifications ought not to be considered, as a matter of policy, but could be on an exceptional case to case basis.

CONCLUDING OBSERVATIONS

CIS welcomes the initiative of the DeitY towards the adoption of OSS in E-Governance Systems. This Framework, while indeed addressing the important issues associated towards the end of adoption of OSS in E- Governance, would be further strengthened by addressing the concerns enumerated above.
CIS is thankful to the DeitY for the opportunity to provide feedback on this Framework. As a non-governmental research organization working in the areas of Openness[10] and Access to Knowledge.[11] CIS appreciates this effort by the DeitY, and would be privileged to work with the Government on this and other matters in these areas.

[1]. See www.cis-india.org (last accessed 26 October, 2013).

[2]. See https://egovstandards.gov.in/system/files/PublicReviewDocument/Framework_on_OSS_Ver0.8.pdf (last accessed 26 October, 2013).

[3]. Hereafter referred to as OSS.

[4]. See Page 9 of the Framework.

[5]. Hereafter referred to as CSS.

[6].See Page 12 of the Framework.

[7].See Page 16 of the Framework.

[8].See Page 20 of the Framework.

[9].See Page 22 of the Framework.

[10].See http://cis-india.org/openness (last accessed 26 October, 2013)

[11].See http://cis-india.org/a2k (last accessed 26 October, 2013).See http://cis-india.org/a2k (last accessed 26 October, 2013).

This submission was prepared on behalf of CIS by Nehaa Chaudhari. Click to download the submission file here. For specific section wise review comments, click here.

For more details visit https://cis-india.org/openness/blog-old/feedback-on-framework-on-oss-adoption-in-e-governance-systems

Comments on the Open Licensing Policy Guidelines of the National Mission on Education through Information and Communication Technology

nehaa — 2014-06-30T11:26:44Z

The Centre for Internet and Society submitted its comments on the Open Licensing Policy Guidelines to the National Mission on Education through Information and Communication Technology (NMEICT), Ministry of Human Resource Development, Government of India, on May 28, 2014. The comments were prepared by Sunil Abraham and Nehaa Chaudhari.

I. PRELIMINARY

1.1 This submission presents comments from the Centre for Internet and Society (“CIS”)[1] on the Open Licensing Policy Guidelines (“Guidelines”) of the National Mission on Education through Information and Communication Technology (“NMEICT”).

1.2.The Guidelines provide a set of recommendations and procedures to ensure that content produced under the NMEICT is openly licensed.

1.3 CIS commends the NMEICT for this initiative, and appreciates the opportunity to provide feedback on the Guidelines. CIS’ comments are as stated hereafter.

II. SECTION-WISE COMMENTS

2.1 Preamble

2.1.1 Recognizing the role of intergovernmental agencies in promoting the use of open licenses, the Preamble makes a reference to the 2012 Paris OER Declaration.[2] CIS appreciates this inclusion and suggests that reference may also be made to another important declaration, i.e., the Cape Town Open Education Declaration, released in 2008,[3] which encourages the publishers and governments to make available, at no charge, via the internet, publicly funded educational materials.

2.2 Principles of Openness

2.2.1 The first principle[4] requires the treatment of information products as “national resources.” The phrase “national resource” most often used in connection with rivers, forests, mines and minerals or spectrum would imply specific legal connotations and might therefore prove to be a misnomer for information products. It is suggested that “national resources” be replaced with “commons” or, alternatively, the sentence be restructured to state that content, software and technology would be treated as “information commons”.

2.2.2 The third principle[5] states that “information and knowledge resources” shall be available “freely”. “Freely” has a wide array of connotations including the absence of restrictions and the absence of payment/costs. It is suggested that “freely” be further clarified and perhaps be replaced with “on a gratis basis”.

2.2.3. The fifth principle deals with the transfer of “all intellectual property rights” to the Government of India and the retention of “moral rights” with the contributor. Intellectual property rights is a wider term including among others copyright and related rights, patents, trademarks and industrial designs. There are two types of right under copyright- moral rights (of attribution for the work) and economic rights (which allow the owner to derive financial benefit and reward from the use of her/his work).[6] It is submitted that the intention behind the fifth principle is seemingly to transfer all economic rights to the Government of India while ensuring due credit to the author/contributor for her/his work. “Intellectual property rights” being a wider term would be a misnomer in this sense, as would the use of “copyright”, since this does not appreciate the distinction between economic and moral rights. Therefore, it is suggested that “intellectual property rights” be replaced with “economic rights” for the applicable branch of copyright law.

2.2.4. The sixth principle deals with the release of information and knowledge resources in a “suitable open licence”. “Suitable open licence” could include both indigenously developed as well as existing licences. It is submitted that in the interests of interoperability, one of the fundamental principles of open access, it would be appropriate to adopt an existing system of licensing. It is recommended therefore, that the Creative Commons approach could be adopted for content and the GNU or BSD licenses could be considered for software. It is strongly suggested that “suitable open licence” be replaced with a specific license framework to ensure interoperability, particularly between information and knowledge resources produced by other nations also funding and adopting OER.

2.3 Guidelines

2.3.1 The second guideline mandates a single portal/gateway for all knowledge resources under this project. It is suggested that this be replaced with the adoption of the principle ‘lots of copies keep stuff safe’, the basis for the LOCKSS Program of Stanford University.[7] The LOCKSS Program allows participating libraries to take custody of and preserve access to the content to which they have subscribed. It is suggested that a similar approach be adopted towards the content being developed under the NMEICT OER project.

2.3.2. The fourth guideline makes a reference to the possible adoption of a CC-BY-SA licence to make content available. The rationale behind a Share-Alike clause could be to prevent the appropriation of the education market by ‘rent seekers’. However, it is necessary to examine this further. The danger of appropriation and subsequent monopolization of content is one that needs to be addressed provided that the process of content creation itself is dependent on contributions from subsequent utilizers of content. Content under the NMEICT model is developed as a result of government contributions and is not dependent on subsequent utilizers feeding back into the system, thus invalidating the need for a Share -Alike clause. Additionally the absence of a Share-Alike clause is likely to incentivise private participation. Private players would have the freedom to utilize the content generated under this scheme, modify and develop it further and make it available in the market for sale. This would be extremely useful in meeting the last mile connectivity and ensuring the wider availability of content. It is therefore submitted that that the licence to be adopted should be CC-BY.

2.3.3. The fifth guideline places a requirement on the grantee/creator to intimate the NMEICT about the use of other open license materials. It is submitted that this could be excessive regulation. It is suggested that this guideline be modified and a two- fold requirement be placed on the content creator/grantee- one, to specify clearly and explicitly the licence being used and the licensing conditions in her/his work, and two, to attribute any and all content used to the rightful creator and holder of copyright.

2.3.4. The eighth guideline mandates the use of “open formats” for delivery of outputs. It is suggested that “open formats” be replaced with the mandatory adherence to “open standards” and a reference be made to the National Policy for Open Standards notified in 2010. The eighth guideline also discourages the use of proprietary software. It is submitted that the requirements of sharing the source file along with the relevant APIs need a more detailed explanation. It is suggested that the difference between a development platform/environment and the software written subsequently over this platform be clarified. Notwithstanding that the former may be proprietary if no other alternative is available, developers/creators/licensees would be obligated to openly license any code/software they create using the platform. It is suggested that it ought to be made explicit that there shall be no choice for the latter and that the choice was limited to the type of platform being employed.

2.3.5. It is suggested that a ninth guideline be included. This guideline would deal with accessibility for persons with disabilities. The Web Content Accessibility Guidelines 2.0[8] may be referenced and invoked.

CONCLUDING OBSERVATIONS

3.1. CIS welcomes the initiative of the NMEICT towards the adoption of an OER Policy. These Guidelines, while indeed addressing the important issues associated towards the end of adoption of an OER Policy, would be further strengthened by addressing the concerns enumerated above.

3.2. CIS is thankful to the NMEICT for the opportunity to provide feedback on this Policy. As a non-governmental research organization working in the areas of Openness and[9] and Access to Knowledge,[10] CIS appreciates this effort by the NMEICT, and would be privileged to work with the Government on this and other matters in these areas.

[1].See www.cis-india.org (last accessed 26 May, 2014).

[2].See http://www.unesco.org/new/fileadmin/MULTIMEDIA/HQ/CI/CI/pdf/Events/Paris%20OER%20Declaration_01.pdf (last accessed 26 May, 2014).

[3].See http://www.capetowndeclaration.org/read-the-declaration (last accessed 26 May, 2014).

[4].See 2(a), Principles of Openness of the Guidelines.

[5].See 2(c), Principles of Openness of the Guidelines.

[6]. See illustratively http://www.wipo.int/freepublications/en/intproperty/909/wipo_pub_909.html#moral_rights (last accessed 26 May, 2014); http://cyber.law.harvard.edu/property/library/moralprimer.html (last accessed 26 May, 2014); http://www.ipo.gov.uk/types/copy/c-otherprotect/c-moralrights.htm (last accessed 26 May, 2014).

[7]. See http://www.lockss.org/about/what-is-lockss/ (last accessed 26 May, 2014).

[8].See http://www.w3.org/TR/WCAG20/ (last accessed 28 May, 2014).

[9].See http://cis-india.org/openness (last accessed 26 May, 2014).

[10].See http://cis-india.org/a2k (last accessed 26 May, 2014).

For more details visit https://cis-india.org/openness/blog-old/comments-on-open-licensing-policy-guidelines-of-national-mission-on-education-through-information-and-communication-technology

India's Ratification of the Marrakesh Treaty Celebrated; Accessible Books Consortium Launched

nehaa — 2014-07-01T11:09:08Z

On Day 1 of the 28th Session of the World Intellectual Property Organization (“WIPO”) Standing Committee on Copyright and Related Rights (“SCCR”), the WIPO organized an event to mark India’s ratification of the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled, 2013 (“Marrakesh Treaty”), and to launch the Accessible Books Consortium (“ABC”).

India Becomes the First Country to Ratify the Marrakesh Treaty

Francis Gurry, Director General, WIPO said that the Marrakesh Treaty received 79 signatures in the twelve month period that the treaty was open for signatures. He further said that India’s ratification of the Marrakesh Treaty one year from its conclusion was a “WIPO record of sorts” and a “great example from a major country” of the importance attached to the Marrakesh Treaty.

Dilip Sinha, Ambassador and Permanent Representative of India to the United Nations in Geneva handed over India’s Instrument of Accession to the Marrakesh Treaty to Francis Gurry. Ambassador Sinha in his speech stressed on the importance of the Marrakesh Treaty to India and said that it helped that India had its amendments to its Copyright Act, 1957 in place, incorporating the provisions of the Marrakesh Treaty.

Maryanne Diamond, the Immediate Past President of the World Blind Union (“WBU”) congratulated India on its ratification. Calling it a country who showed “huge leadership” in negotiations of the Marrakesh Treaty, Ms. Diamond said that this ratification was extremely significant, with India being home to a large number of blind and print disabled people and a part of the Global South. Ms. Diamond urged other nations to follow India’s example and make it a priority to ratify the Marrakesh Treaty.

Jens Bammel, Secretary General, International Publishers Association (“IPA”) also congratulated India on its ratification of the Marrakesh Treaty and called on other member states to ratify it.

Accessible Books Consortium Launched

At the launch of the ABC, Mr. Gurry said that the Marrakesh Treaty was only the means to an end, where the end was books in the hands of print disabled and visually impaired persons across the world. “To make it operational,” said Mr. Gurry, “we need to have operational activities.” He said that the ABC was an operational activity which would “breathe life” into and “make operational” the legal framework provided by the Marrakesh Treaty.

What Does it Do?

Mr. Gurry said that the ABC aimed at achieving three things- first, capacity building; second, international book exchange and third, international book exchange.

Capacity Building- Mr. Gurry said that the ABC seeks to provide training on accessible book production and distribution. He thanked the Republic of Korea which has committed to providing financial assistance for training in respect of production of books in accessible formats.
International Book Exchange- Mr. Gurry said that this activity was an IT supported facility, namely, the TIGAR Service which has its origins in India. This would allow participating institutions to perform international searches of databases to find out if accessible formats of books are available.
Inclusive Publishing- Mr. Gurry said that at the end of the day, “books should be born accessible” and technology was creating the “promise of the realization of this aspiration.” Mr. Gurry said that the ABC would promote accessible publishing and to this end, had drawn up a charter of accessible publishing- Accessible Publishing Best Practice Guidelines for Publishers. Elsevier is the first publisher to have signed this charter.

India, WBU and IPA delighted

Praising the ABC, Ambassador Sinha called it an indicator of what multi-stakeholder cooperation needs to do. He said that the ABC would assist organizations such as the DAISY Forum of India in achieving the goal of access to books in accessible formats. Congratulating the WIPO for its efforts on this front, Ambassador Sinha said that this would help nations like India realize their goal of achieving the purposes of the Marrakesh Treaty. Ms. Diamond, representing the WBU congratulated Elsevier on signing the charter. Jens Bammel, on behalf of the IPA expressed concern for making books available in accessible formats for non English speakers. The ABC, he said, was a project initiated to “genuinely complement” the Marrakesh Treaty, and would create a global catalogue of accessible works, whether provided by libraries or by publishers. Expressing his delight that the ABC was being supported equally by all stakeholders, Mr. Bammel reached out to member states to support this initiative politically.

For more details visit https://cis-india.org/accessibility/blog/indias-ratification-of-marrakesh-treaty-celebrated

The constitutionality of MHA surveillance order

nehaa — 2018-12-31T14:06:04Z

The rules require review committees to examine all surveillance orders issued under this section every couple of months.

The article by Nehaa Chaudhari was published in Asian Age on December 30, 2018.

The MHA notification authorising 10 agencies to intercept, monitor and decrypt “any information” generated, transmitted, received or stored in “any computer” has kicked up a row. One section calls it electronic surveillance at the behest of the Big Brother. This time the qualitative difference is data stored anywhere, not just data in motion, can be intercepted.

Privacy is a fundamental right in India. Nine Supreme Court judges agreed on this in late August, last year. It is “the constitutional core of human dignity” and flows primarily from the “guarantee of life and personal liberty” of our Constitution, they said, in the case of K.S.Puttaswamy vs Union of India. This meant two rules for the Indian state. Rule number 1.) Do not intrude upon a citizen’s right to life and personal liberty; and rule number 2.) Take all necessary steps to safeguard individual privacy.

However, because no fundamental right is absolute, the Indian state is allowed to deviate from rule number 1 in certain situations. It can restrict individual privacy provided that it first fulfills three conditions: The restriction must be backed by law; it must be for a legitimate state aim; and, it must be proportionate.

All laws (including existing ones) and government actions, with consequences for individual privacy, must meet the three conditions listed above to be valid.

Those that fail to do so are unconstitutional, and must be suitably amended, or will be struck down, as was the case with Section 377 of the Indian Penal Code, earlier this year. Section 69 of the Information Technology Act, under which the Ministry of Home Affairs has issued its recent surveillance order, warrants similar scrutiny.

Section 69 empowers the Centre and all state governments to authorise any of their officers to surveil citizens’ electronic communications and information. They may do so for any of the reasons laid down in the same section, including India’s sovereignty, integrity, defence, security and foreign relations, or public order, or to prevent the incitement of certain offences, or to investigate any offence. Government orders issued under this section must be reasoned, and in writing. These orders, and the resultant surveillance activity, must follow the procedure laid down in a set of rules framed under the Information Technology Act in 2009. The rules require review committees to examine all surveillance orders issued under this section every couple of months. The review committee at the Centre examines the Union government’s surveillance orders, while state governments’ orders are examined by committees at their respective states. But, review committees, whether at the Centre, or at any of the states, only have
three members each, tasked with reviewing hundreds of orders every day. Moreover, they consist only of government officials. Neither the Information Technology Act, nor the accompanying 2009 rules, require Parliamentary or judicial oversight of electronic surveillance by the executive.

In the past week, at least two petitions have been filed before the Supreme Court,which claim that the MHA’s surveillance order violates the fundamental right to privacy and is unconstitutional. This order for electronic surveillance is a clear deviation from rule number 1, and so the question before the court will be if it meets each of the conditions above to be valid.

Is the MHA order lawful? Yes, given as it was framed under the framework of the IT Act. There remains however, a larger question of the constitutionality of Section 69 itself. If the court finds Section 69 itself to be unconstitutional, any action taken pursuant to Section 69, including the recent MHA order, will also be unconstitutional.

Is the MHA order pursuant to a legitimate state aim? The order itself does not specify what in particular the government hopes to achieve. However, given as it was issued under Section 69, the government could well argue that it was only for the six purposes laid down in the statute.

Moreover, according to the Supreme Court in the right to privacy judgment, legitimate state aims are “matters of policy to be considered by the Union government.” The court even offered examples of possible legitimate state aims, which included the grounds listed under Section 69.

Is the MHA order proportionate? No; and neither is the IT Act’s framework dealing with electronic surveillance. The IT Act allows government surveillance of citizens, unchecked by either the legislature, or the judiciary. It creates a scenario where tiny government committees must review the government’s own decisions to curtail citizens’ fundamental rights. Moreover, it penalises individuals with up to seven years in jail, in addition to fines, for not complying with any interception, monitoring, or decryption request by an authorised government agency.

In light of the recent MHA order, this means that individuals must comply with surveillance requests by 10 government agencies including tax authorities, the police, and civil and military intelligence agencies, or be prepared to face jail time. This is unethical, undemocratic, and unconstitutional.

Unchecked government surveillance threatens not just an individual’s fundamental right to privacy, but also her fundamental freedoms of speech, movement, and assembly among others, also guaranteed fundamental rights under the Indian Constitution.

These rights and freedoms are the very essence of what it means to be a free citizen in a modern democracy. A democratic state must only exercise its police powers in the narrowest of circumstances, within bright lines, clearly defined.

In August, 2017, the Supreme Court laid down the framework to identify these narrow circumstances and bright lines in so far as the fundamental right to privacy was concerned. But, the promise of Puttaswamy is only as good as its implementation, and here lies its biggest challenge.

As Pranesh Prakash, Fellow at the Centre for Internet and Society, said on a television channel recently, perhaps it is about time that we stopped relying solely on the courts to step in to safeguard our fundamental rights, and started demanding that our elected law-markers did their jobs, or did them better. After all, a general election is but a few months away.

For more details visit https://cis-india.org/internet-governance/news/nehaa-chaudhari-asian-age-december-30-2018-constitutionality-of-mha-surveillance-order

India- EU FTA: A Note on the Copyright Issues

nehaa — 2013-07-03T06:47:08Z

In this blog post, Nehaa Chaudhari gives us an overview of some of the provisions of the Free Trade Agreement (FTA) and the copyright issues identified therein.

Click to download the India-EU FTA: A Note on Copyright Issues (PDF, 205 Kb)

Against the backdrop of ongoing negotiations dating back to 2007, and, more recently, with parties being unable to make substantial progress on the Indo-EU FTA[1] this note presents an overview on some of the provisions of the FTA and the copyright issues identified therein. This note deals with the issues on two levels- first to examine the impact of intellectual property right provisions in FTAs in general and second to apply these generic principles to the Indo- EU FTA specifically.

Introduction

Investment agreements, of which bilateral investment treaties are a part, and investment chapters in various FTAs often result in an increase in the effective levels of intellectual property protection in one of the countries that is a part to the agreement. This can be done either explicitly, where ‘investment’ may be defined to include IP, or implicitly, for instance, through an expropriation provision.[2] This has concurrently witnessed the growing realization that the promotion of these increased IP standards is not suited to the need of developing countries. Therefore, it has been observed[3]that there is now an attempt by the developed countries to use FTAs as a forum to push for higher standards of IP protection in developing countries, and to restrict the scope of the flexibilities offered by TRIPS, most notably in the sectors of protection of plant varieties, patents and access to medicine, farmers rights and access to information.[4]This approach is inherently problematic, because it then infringes on the developing countries’ ability to achieve their developmental objectives.

Dismantling the Arguments In Favour of Increased IP Protection

A prevalent view of thought is that in order to increase Foreign Direct Investment (FDI), developing countries would have to increase their IP protection. This section of the paper seeks to argue that this might not necessarily be the case.

An illustration of the aforesaid proposition may be Heald’s criticism[5] levied on Mansfield’s paper[6] arguing that there was a direct correlation between the level of intellectual property protection in a country and the foreign direct investment into that country. Further, a study[7] conducted under the aegis of the United Nations has suggested that there was a ‘considerable incentive’ for countries to use the flexibilities provided under TRIPS to maximise net benefits for their development; stating that while in countries with a capacity to innovate stronger IPR protection can reap some benefits in terms of greater innovation at home and a greater diffusion of technology, the same cannot be said about nations without such a capacity, and may in fact impose additional costs.[8]

Specifically in the area of copyright, it has been observed that increased copyright protection can hamper the growth and development of knowledge based industries. Sanya Smith argues that those who control copyright have a ‘significant advantage’ in the knowledge based economy, and says that in the current scenario where ownership of copyright is largely in the hands of industrialized nations, this places developing nations, and smaller economies at a significant disadvantage.[9] She also goes on to argue that increasing copyright protection alone does not seem to be sufficient to stimulate industries, and there may other factors involved. Additionally, copyright could also significantly increase the cost of creative industries.[10] More fundamentally however, access to information and knowledge are amongst the most affected areas as a result of tightening of copyright laws, leaving students, academicians, researchers, scientists and persons with print disability significantly disadvantaged.

Implications of the Copyright Provisions in the Proposed Indo- EU FTA

Based on the general discussion earlier, this section of the paper seeks to examine the proposed and long debated Indo- EU FTA for the concerns enumerated earlier. As things currently stand, both parties have failed to reach a consensus on various substantial differences, and a ministerial meet originally scheduled for June seems unlikely to take place.[11]

It has been observed[12] that the Indo- EU FTA[13] includes various provisions that preserve the flexibilities offered under the TRIPS framework. This is extremely critical from the perspective of developing countries, given that access to knowledge is an extremely important ideal to be preserved. For instance, as noted by Knowledge Ecology International[14]the proposed FTA includes Articles 7 (Objectives) and 8 (Principles) of the TRIPS[15] by reference. Further, the language of Article 13 under the proposed FTA explicitly recognizes the importance of the Doha Declaration, which is a positive step.[16] It has been said however, that stronger language where the parties ‘affirmed’ their obligations under the Declaration could have been used.[17] However, this does not take away from the fact that many of the provisions of the proposed FTA are extremely problematic, as will be discussed in the forthcoming parts of this paper.

Problematic Provisions

The main concern that has emerged from this FTA is the fact that some of its provisions dealing with IPR go beyond the mandate as under the TRIPS Agreement. For instance, as pointed out by Shamnaad Basheer to Intellectual Property Watch, various provisions now provide for intermediary liability, which isn’t present in TRIPS. He also adds however, that if the initial stand of the government that India would not go TRIPS plus continues to hold, the government should indeed adopt a strong stance and not cave in to the said provisions.[18] An overview of some of the problematic provisions has been presented hereafter:

International Obligations

As per the proposed treaty, protection granted by the parties should be in accordance with the Berne Convention, the Rome Convention and the WIPO Copyright and Performance and Phonograms Treaties. Snehashish Ghosh in his blog post[19] writes that the EU stipulates compliance with Articles 1 through 22 of the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (1961), Articles 1 through 14 of the WIPO Copyright Treaty – WCT (Geneva, 1996), Articles 1 through 23 of the WIPO Performance and Phonograms Treaty – WPPT (Geneva, 1996). It is critical to note that the Rome Convention is not in force in India[20], and that India is not a party to either the WCT[21] or the WPPT[22], and therefore, this provision would have the effect of substantially surpassing all obligations that India has at the moment under multilateral international agreements.

Technical Protection Measures (TPMs) and Digital Rights Management (DRM)

A TPM, understood simply, is a lock in a digital format, placed on digital material to prevent access to or copying of the material in question. The problem with such measures is that they can prevent even those forms of copying which are legal (for instance, the copying of a movie on which copyright has expired could be prevented), creating a potentially infinite monopoly over the product in question. India, in its negotiations with the EU, has agreed to sweeping language under this provision, where TPMs and DRM measures are broadly defined. The Agreement further provides for limitations on TPM protections only to persons who have “legal access to the protected work or subject matter”.[23]

Copyright Expansion

There are various provisions under the proposed FTA that have the effect of copyright expansion. To begin with, the duration of protection for photographic works is not expressly mentioned in the proposed agreement.[24] Snehashish Ghosh concludes that the term of photographic works is unclear in the proposed FTA. He writes that the proposed FTA makes it mandatory for the parties to comply with the Berne Convention, and all literary and artistic work under the proposed FTA is to be construed as the same as the Berne Convention[25]. Photographic works are included under literary and artistic works under the Berne Convention, and the rights of an author in case of photographic works are protected for a minimum period of 25 years. However, the proposed FTA extends the period of protection to beyond that prescribed by the Berne Convention and states that protection is given to literary and artistic works (as defined in the Berne Convention) for a period of the duration of the life of the author plus fifty years after this death. It further states that works for which the period of protection is not calculated from the death of the author, and which have not been lawfully made available to the public within at least 50 years from their creation, the protection shall terminate.[26]

Article 7.6 (proposed by the EU), limits the resale rights of a downstream purchaser. It has been noted by Knowledge Ecology International[27] that this seems to give the author of an original work of art a right in perpetuity, to receive a royalty for the resale of the piece of art, where such right cannot be waived or transferred by the author of the work. Therefore, a situation would arise where each time a person who has purchased the work wants to resell the same, he would have to pay royalties to the original author.[28] The observations further go on to note that royalties are not limited, and the amount has to be determined by national legislation. Further complicating the situation is the fact that the provision does not cease to apply after a given number of re-sales, and continues to the death of the author (but might not into the 50 year protection post the death of the author).[29]

Exceptions and limitations for copyright have been covered under Article 7.9(1) of the proposed FTA, and they may be created “only” in accordance with the three step test, which is essentially that (a) the exceptions and limitations must apply in certain special cases; (b) must not be in conflict with the normal course of exploitation of the subject matter in question and (c) must not unreasonably prejudice the legitimate interests of the right holders.[30] It has been observed that this test is more restrictive than TRIPS, Berne Convention, Rome Convention or the WCT.[31]

On the plus side, temporary copies have been excluded from copyright protection, as per Article 7.9(2) of the proposed FTA, which would ensure the proper functioning of technology.

Persons with Disabilities

There is nothing that deals with the import/export or cross border exchange of files/documents/books etc. for persons with disabilities.

Cross Border Measures

Cross Border Measures have been dealt with under Article 30 of the proposed FTA. It is interesting to note that under this Article the EU has proposed the application of border measures to exports as well. This is contrary to the position laid down in the TRIPS Agreement, which has this requirement only for importing infringing goods.[32] Further, the EU also seeks to expand the applicability of such measures to include those goods which also infringe designs or geographical indications. Additionally, Article 30 also leaves out certain TRIPS safeguards, for instance, one that requires the right holder to provide adequate evidence for a prima facie case of infringement.[33]

Intermediary Liability

It has been suggested that the EU, under the garb of protecting intermediate service providers from liability for infringement by users, is purporting to place a greater burden on the providers in question, of policing user activity.[34] For instance under Article 35.1.1 of the proposed FTA, while service providers are not under any general obligation to seek facts or circumstances that could indicate illegal activity, they may be obligated to promptly inform competent authorities of these alleged illegal activities undertaken/information provided by recipients of their service. [35] Otherwise, the providers may also be required to communicate to the authorities, on their request, information that would enable the identification of their service with whom they have storage agreements, as per Article 35.1.2.[36] It has been rightly identified by Glover Wright, that such provisions would only serve to increase tensions between the users and their service providers, with relations dictated by concerns about liability, and barriers in the sending, receiving and storing of information freely. It would be a tricky question for intermediate service providers to check what would constitute ‘knowledge’ and how they were to best safeguard themselves from liability.[37] Therefore, the author is inclined to agree with Wright’s submission that India needs to reject all provisions of liability of intermediate service providers as discussed above.

IP Enforcement

There exist, as regards the enforcement of rights, many problematic provisions in the proposed FTA. For starters, the EU has proposed that interlocutory injunctions may also be issued under the same conditions against an intermediary whose services are being used by a third party to infringe intellectual property rights.[38] This may be found under Article 22.1 of the proposed FTA, and is inherently problematic for being a provision far beyond the mandate as laid down by TRIPS.

The EU is also pushing for the use of very explicit language as regards seizing movable and immovable property of the alleged infringer as a precautionary measure. This also extends to the blocking of the bank accounts and other assets of the said infringer, and to this end, competent authorities may even order the communication of bank, financial or commercial documents, or access to the said information.[39] It is critical to note that such a provision is greatly problematic as being rather vague in its approach, and very readily compromising privacy for ‘alleged’ acts of infringement.

It is further critical to note that while Article 20 states that courts should have the power to grant ex parte order to collect evidence that is allegedly infringing, there are no safeguards provided for protection of a bona fide defendant whose premises might have been raided wrongly. It is submitted that provisions that safeguard the interests of defendants are of prime importance, especially in the Indian set up, where courts are as it is rather generous in their granting of ex parte orders.

Concluding Observations

While India may stand to benefit from the proposed FTA with the EU, there remain significant IP related issues that need to be ironed out before India comes to any consensus about the agreement and ratifies the same. On the basis of the discussion over the course of this paper, it may be seen that the provisions on intellectual property rights are problematic on various levels, particularly in the areas of expansion of copyright, the inclusion of TRIPS plus provisions, cross border measures, TPMs, liability of service providers and enforcement mechanisms.

Discussions in the first half of this paper have demonstrated that increased IP protections do not necessarily translate into increased FDI and may in fact stifle innovation. Further, the warning to developing countries against adopting IPR standards fixed by developed nations has been sounded many times over, and is one that needs to be heeded to very closely for developing nations to achieve their developmental objectives.

India has over a period of time established an IP regime that is consumer friendly. In adopting the proposed FTA in its current form, she risks endangering this regime that has thus far been instrumental in proliferating emerging technologies in the county.[40] Given that India has already acceded to international standards for IPRs as a result of being a member of the WTO and being TRIPS compliant, there is no cogent reason to be made out that warrants the accession to an FTA with TRIPS plus provisions. India ought to continue to push back strongly on these fronts, bearing in mind that its stance could very well set the tone for other such agreements in South Asia. From the way things stand at the moment, it is indeed a matter of some relief that the ratification of this proposed FTA still appears to be at a considerable distance.

[1].Hereafter referred to as the FTA.

[2]. Sanya Reid Smith, Intellectual Property in Free Trade Agreements, for the UNDP Regional Trade Workshop (17-18 December, Penang, Malaysia), available at http://bit.ly/11W8dqy (last accessed 04 June, 2013).

[3]. Id.

[4]. Id at 5.

[5]. Supra note 2, citing PJ Heald, Information Economics and Policy 16 (2004) 57-65

[6]. Edwin Mansfield, Intellectual Property Protection, Foreign Direct Investment and Technology Transfer, International Finance Corporation: Discussion Paper No. 19, available at http://bit.ly/18V4D5v (last accessed 05 June, 2013)

[7]. See generally- Rod Falvey et. al., The Role of Intellectual Property Rights in Technology Transfer and Economic Growth: Theory and Evidence, United Nations Industrial Development Organization: Discussion Paper (2006), available at http://bit.ly/11JBR4o (last accessed 05 June, 2013).

[8]. Id.

[9]. Supra note 2 at 23.

[10]. Supra note 2 at 23.

[11]. PTI, India – EU FTA Talks Fail to Bridge Gaps, available at http://bit.ly/19LJaeP (last accessed 05 June, 2013).

[12]. Krista Cox, Quick Reaction to the EU/India (BTIA) Negotiating Text, available at http://keionline.org/node/1693 (last accessed 04 June, 2013).

[13]. Hereafter referred to as the FTA

[14]. KEI Staff, More Notes on the India EU FTA (BTIA), available at http://keionline.org/node/1692 (last accessed 05 June, 2013).

[15]. See http://bit.ly/13XhCfZ for more details, and for the bare text of the Articles. (last accessed 05 June, 2013).

[16]. Supra note 14.

[17]. Supra note 12.

[18]. Patralekha Chatterjee, Leaked IP Chapter of India- EU FTA Shows TRIPS-PLUS Pitfalls for India, Expert Says, available at http://bit.ly/Y7w70e (last accessed 05 June, 2013).

[19]. Snehashish Ghosh, Analysis of Copyright Expansion in the India-EU FTA (July 2010), available at http://bit.ly/ysitEC (last accessed 03 June, 2013).

[20]. For the status of Contracting Parties, see http://bit.ly/UITpsX (last accessed 05 June, 2013).

[21]. For the status of Contracting Parties, see http://bit.ly/f92xL2 (last accessed 05 June, 2013).

[22]. For the status of Contracting Parties, see http://bit.ly/fEsUAF (last accessed 05 June, 2013).

[23]. Supra note 14.

[24]. Supra note 19.

[25]. Supra note 19.

[26]. Supra note 19.

[27]. Supra note 12.

[28]. Supra note 12.

[29]. Supra note 12.

[30]. Supra note 12.

[31]. Supra note 14.

[32]. Supra note 12.

[33]. Supra note 12.

[34]. See Article 35 of the Proposed FTA.

[35]. Glover Wright, A Guide to the Proposed India-European Union Free Trade Agreement, available at http://bit.ly/16Dfuga (last accessed 05 June, 2013) at 12- 14.

[36]. Id.

[37]. Id.

[38]. Thiru, EU-India FTA: EU Pushes for IP Enforcement- IP Chapter Draft Text Under Negotiation (2013), available at http://keionline.org/node/1681 (last accessed 05 June, 2013).

[39]. See Article 22.3 of the proposed FTA.

[40]. Supra note 35.

For more details visit https://cis-india.org/a2k/blogs/india-eu-fta-copyright-issues

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

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

Mobile Phone Patents: Prior Art Survey

nehaa — 2013-10-24T10:33:36Z

In this blog post, Nehaa Chaudhari discusses a study on a portion of the patent landscape around mobile phone patents, commissioned by CIS earlier this year. This prior art search was undertaken by Rohan George of Samvad Partners, who worked as a Consultant with CIS.

This research was not directly funded by an external agency. The author and CIS bear no responsibility for the accuracy of the research.

The researcher wishes to disclose as under:

As you are no doubt aware, the mobile computing related innovation is probably one of the fastest growing fields over the past 15 years. As a result, a considerable number of applications are being granted across jurisdictions on a daily basis. Therefore, it is entirely possible that, once we have completed a search over a certain topic, new patents would have been granted that cover the same topic to some extent or the other.
It is common for some patent agents to invest significant effort into ensuring that the language of the specification (particularly that of the abstract and the title, the being the first point of search ) should reveal as little about the proposed invention as is statutorily possible. This is encouraged by the fact that there are no strict rules regulating the precise manner of presentation and clarity of abstract and title. Accordingly, certain patents may have been missed due to the choice of language used in the drafting of the specification.

For the above reasons, amongst others, this survey should not be considered to be a comprehensive exposition on the field of mobile computing and mobile telecommunication related patents, but should instead be considered as a survey of patents governing the field.

This study employs among others (and other associated keywords), the following criteria as keywords/search terms for the patent searches: SIM; Micro SD; Camera Phone; Imaging Device, Phone; Image Capture, Phone; Disc Drive, Phone; Flash Memory, Phone; USB, Phone; Liquid Crystal Display, Phone; LCD, Phone; Touch Screen; Wireless Fidelity; Wireless Local Area Network, Phone; Bluetooth, Phone; GPS, Phone; GPRS, Phone; Enhanced General Packet Radio Service; EDGE, Phone; First Generation Phone; 1G, Phone; Second Generation, Phone; 2G, Phone; Third Generation, Phone; 3G, Phone; 3GPP; USB Tethering; WAP, Phone; Wireless Application Protocol; Server Push; MMS, Phone; Qwerty, Phone; Vibration, Phone.

For the list of completed searches, please click here.

For the document containing the details of the prior art search, please click here.

For more details visit https://cis-india.org/a2k/blogs/mobile-phone-patents

CIS Comments to the Ministry of Human Resource Development on the Proposed WIPO Treaty for the Protection of Broadcasting Organizations

nehaa — 2013-12-07T07:57:50Z

As a follow up to a stakeholder meeting called by the MHRD on the WIPO Broadcast Treaty, CIS provided written comments on the Working Document for a Treaty on the Protection of Broadcasting Organizations adopted by the Standing Committee on Copyright and Related Rights (SCCR) at its twenty-fourth session, Geneva, July 16 to 25, 2012.

On the November 27, 2013, the Ministry of Human Resource Development, Government of India conducted a Stakeholders Meeting on the proposed WIPO treaty on the Protection of Broadcasting Organizations at New Delhi. Nehaa Chaudhari represented CIS and commented inter alia on the need for a Broadcast Treaty, the necessity to confine the treaty to a signals based approach, the term of protection for broadcasting organizations, and the protection of the general public interest. At this meeting, with representation from the government, academia, industry bodies and civil society, there was a general consensus on the adoption of a treaty that would most further India’s national interest, and on the treaty being limited to a signals based approach, in consonance with the 2007 mandate of the WIPO General Assembly.

In furtherance of the feedback process initiated at the aforesaid meeting, CIS presents this detailed clause-by-clause submission in response to the proposed WIPO Broadcast Treaty. This submission was prepared by Nehaa Chaudhari, on behalf of CIS.

Many thanks to Pranesh Prakash, Snehashish Ghosh and Bhairav Acharya for their inputs and discussions, and to Varun Baliga for his research.

Please click (here) for CIS’ comments. For the Working Document referred to in the Submissions, please "click here".

For more details visit https://cis-india.org/a2k/blogs/comments-to-hrd-ministry-on-wipo-treaty-for-protection-of-broadcasting-organizations