Centre for Internet and Society

WIPO SCCR 41: Notes from Day 1

sinha — 2021-06-29T13:40:49Z

Member states delivered opening statements and deliberated on the progress, substantive provisions, and method of work on the draft broadcasting treaty text. This blog post summarises positions and contentions that supported: 1) transparency in SCCR work 2) limitations and exceptions 3) addressing the object of protection and overbroad scope of rights in the draft treaty text.

Agenda Item: Protection of Broadcasting Organisations

1. Opacity around informal work on the broadcasting treaty agenda

Indonesia, Pakistan, Iran, South Africa and Chile shared their disappointment on the lack of transparency of informal meetings on the treaty text, and urged for greater openness. The informal meetings were conducted between WIPO and an ad hoc group of countries known as ‘Friends of the (SCCR) Chair’. This group currently includes Argentina, Colombia, the European Union, Finland, Germany, Japan, Kenya, Mexico, the Philippines, Republic of Korea, Russian Federation, and the United States of America. The group met in April and June 2021, but Indonesia questioned whether there was a mandate for it in the first place.

Indonesia and Pakistan requested for further updates on the status of the treaty text from the WIPO SCCR Chair and Vice-Chair, especially as an outcome of the informal work. The two delegations also noted the lack of diversity and imbalance in representation in the ‘Friends of the Chair’ group. Pakistan noted that this agenda item had always had a diversity of viewpoints, and that this new mechanism was reductive and not inclusive.

The WIPO SCCR Chair’s and Vice-Chair’s response was that the ‘Friends of the Chair’ mechanism was adopted to do inter-sessional work (work between two SCCRs), in a flexible and less-time consuming manner. The Chair added that the group was created in 2019 (i.e in the previous Chair's term). However, it should be noted that the group was created only for an “exceptional informal intersessional meeting” with the objective to “brainstorm on possible ways to make progress on the draft treaty on the protection of broadcasting organizations in view of the upcoming WIPO General Assembly and the 40th session of the SCCR which will be held in October.” Indonesia made a request to join this group, which was denied by the Chair. The Chair only assured that the concerns raised will be addressed.

2. Support for adding better limitations and exceptions to the treaty text

South Africa emphasised on the critical role of broadcasting organisations in transmitting information and knowledge, and cautioned that the treaty text should be balanced and not negatively impact access to information, culture and education. Iran (speaking on behalf of Asia-pacific group) highlighted the public interest stakes in the treaty and stated that the way forward was to ensure that no layer of rights is created which might affect the right to access information. Chile also was in favour of a more balanced approach that should include limitations and exceptions. Indonesia and Pakistan added that limitations and exceptions in the current text need to be addressed more properly, as they are essential provisions for digital preservation, online use and research.

3. Alternative legal solutions to address broadcast piracy

Canada highlighted how in its national law it provides signal protection and combats piracy without granting exclusive rights to broadcasters on transmission.

Agenda Item: Limitations and Exceptions

1. Support for Limitations and Exceptions agenda item

India noted the importance of the limitations and exceptions agenda for the benefit of the work of libraries, archives, museums, and educational and research institutions, and shared its support for the agenda item.

For more details visit https://cis-india.org/a2k/blogs/wipo-sccr-41-notes-from-day-1

WIPO SCCR 41: Statement by CIS on the Protection of Broadcasting Organisations Agenda Item

sinha — 2021-06-29T13:19:47Z

Anubha Sinha delivered a statement on behalf of CIS, on day 1 of the 41st WIPO SCCR session on the Protection of Broadcasting Organisations Agenda Item.

Thank you, Mr. Chair.

I'm speaking on behalf of the Centre for Internet and Society, India.

In the Asia-Pacific region, where there exists a deep digital divide in many countries, radio and TV broadcasting was instrumental in meeting quality education requirements during the pandemic. It would be invaluable and forward-looking for an international broadcasting treaty to have adequate limitations and exceptions for another emergency scenario such as COVID019. I urge the Committee to deliberate more deeply on this aspect.

Thank you.

For more details visit https://cis-india.org/a2k/blogs/wipo-sccr-41-statement-by-cis

WIPO SCCR 41: Statement by CIS on Limitations and Exceptions Agenda Item

sinha — 2021-06-29T13:20:59Z

Anubha Sinha delivered a statement on behalf of CIS, on day 2 of the 41st WIPO SCCR session, on the limitations and exceptions agenda item.

Thank you Mr. Chair.

I’m speaking on behalf of the Centre for Internet and Society, India.

The pandemic has hit the world hard, and developing countries even harder. The committee should urgently lead the way on developing concrete solutions in the domain of limitations and exceptions that are timely and meaningful. Useful suggestions have already been offered by member states in the nature of tools that could enhance cross-border cooperation and international norm setting. This could take the form of guidelines, model laws, and the like.

Further, the regional consultations should have proper representation and give proper weightage to views of beneficiaries of this agenda item. WIPO should also plan to institute measures to enable proper participation, in view of the digital divide

It should further be borne in mind that there exists wide socio-economic disparity in the region, and there has traditionally been a strong reliance by students and researchers on knowledge generated in foreign countries. Thus a lack of international harmonisation of limitations and exceptions disproportionately affects developing countries. These limitations and exceptions need to urgently address cross-border uses, online uses, and digital preservation to create the maximum developmental impact.

Thank you.

For more details visit https://cis-india.org/a2k/blogs/wipo-sccr-41-statement-by-cis-on-limitations-and-exceptions-agenda-item

WIPO SCCR 41: Notes from Day 2

sinha — 2021-07-08T14:55:30Z

Member states delivered opening statements and deliberated on the scope, direction, and progress of work on the limitations and exceptions agenda. This blog post summarises positions and contentions around: 1) Information Session on impact COVID 2) Creating a binding limitations and exceptions international instrument 3) Work Plan under the L&E agenda 4) Conducting regional consultations as per the report on regional seminars and international conference on limitations and exceptions.

There was a strong consensus on the fact that COVID had adversely affected actors and beneficiaries involved with the copyright system, but there was less consensus on which stakeholders and beneficiaries to focus on as a priority, and which next steps and remedies should be considered. The gamut of stakeholders under the limitations and exceptions agenda item includes authors, publishers, creative cultural industries, educational and research institutions, persons with disabilities, libraries, museums, and archives, licensing societies, and users’ rights advocates.

Agenda Item: Limitations and Exceptions

1. Conducting an Information Session on impact of COVID

Bangladesh (on behalf of Asia-Pacific group) proposed an information session on the copyright framework in the format of presentations from experts and relevant stakeholders as well as exchange of views among them at the next SCCR (SCCR42) to understand the impact on COVID-19, especially as developing countries, with a view of rights, related rights and exceptions and limitations. It noted the lack of international settings that could have enabled a collaborative approach during COVID-19 to handling the impact on education, research, culture and knowledge.

Pakistan, Indonesia, and Iran supported the proposal. South Africa backed both the proposal and the regional consultations along with a preference for completing them in a time bound manner by the next SCCR. Belarus was in support as well.

Georgia (on behalf of the CEBS group) was in favour of an information session for evaluating an all-round impact of the pandemic which was not only from a limitations and exceptions viewpoint. In a similar vein, USA suggested that the information session be holistic in its framing – all parts of the copyright system should be taken into consideration. UK (on behalf of Group B) stated that it would prefer to examine a formal proposal document on such a session first, that should adopt a ‘holistic approach’.

Towards the end, Indonesia questioned whether the idea of a ‘holistic’ information session equally focused on rights and related rights could even be counted or considered as a next step in the limitations and exceptions (“L&E”) agenda item.

2. Working towards a binding international L&E instrument

Georgia (on behalf of the CEBS group) stuck to its position of 1) taking an evidence-based approach on the way forward for the L&E agenda and preference to 2) exchanging national best practices instead of creating a binding treaty. Ecuador was also in favour of exchanging best practices. UK (on behalf of group B) was in favour of providing technical assistance to countries, and the EU and USA maintained their position against an international instrument.

Bangladesh (on behalf of Asia-Pacific group) stated that COVID had forced a rethink of role of copyright in ensuring access to educational and resource materials as well as protecting the rights of the creators of the copyrighted works, in situations such as the pandemic. The absence of an international instrument on limitations and exceptions has been widely felt in this context.

Pakistan stated that a baseline international instrument was necessary and would be useful for looking at one’s own national law. South Africa (on behalf of Asia-Pacific group) Indonesia reminded everyone that work under this agenda item should proceed under the 2012 mandate of developing a legal instrument on limitations and exceptions. Iran also expressed its support for a norm-setting instrument.

3. Work Plan under the L&E agenda

South Africa said that a clear way forward for limitations and exceptions was necessary, and that way forward should not be limited to the views and steps mentioned in the report on the regional seminars and international conference on limitations and exceptions ("report"). It also supported the 2012 mandate on developing an international instrument on limitations and exceptions.

UK (on behalf of group B) stated that access to knowledge should not inhibit the remunerative rights to authors and performers. Ecuador said that it supported narrow limitations and exceptions that comply with the Berne three-step test.

Russia suggested the creation of a set of “general principles” underpinning this agenda item, to set a base standard agreed by everyone and begin work from that point. It noted that it was crucial to resolve the issues of cross-border sharing, legal uncertainty between countries, and digital preservation. It added that the principles could become the guiding principles for national legislation as well.
Pakistan, noting the COVID impact, stated that cross-border cooperation or international norm-setting could be useful. Brazil stated that there was a consensus on preservation and cross-border issues, and room for further discussions on limitations and exceptions for ‘persons with other disabilities’ under this agenda item. Chile added that international guidelines were desirable at least in the area of education, libraries, and archives.

In the end, Indonesia in its statement reminded everyone that there was still no concrete work plan (under this agenda) on the table. This despite the draft report indicating issues such as preservation, online uses, cross-border uses, and safe harbour as feasible for discussion on next steps. The report had also recommended formation of expert groups to study these issues further (para 400 of the report (SCCR42/2)) It added that while it was aligned to the 2012 mandate (of producing a legal instrument), the work plan could include a joint recommendation.

4. Regional Consultations (as per report's recommendation)

China endorsed the regional consultation. EU supported regional consultations, noting that COVID had impacted creative cultural industries as well. Pakistan stated that it was important for the consultations to include beneficiaries of this agenda item.

UK (on behalf of Group B) questioned whether holding regional consultations were necessary during a pandemic, and later added that the regional consultations and information session exercises should not be executed together.

For more details visit https://cis-india.org/a2k/blogs/wipo-sccr-41-notes-from-day-2

36th SCCR: CIS Statement on the Proposed Treaty for the Protection of Broadcasting Organizations

sinha — 2018-05-28T14:04:53Z

Anubha Sinha, attending the 36th Session of the World Intellectual Property Organization (“WIPO”) Standing Committee on Copyright and Related Rights (“SCCR”) at Geneva from May 28, 2018 to June 1, 2018, made this statement on the Proposed Treaty for the Protection of Broadcasting Organizations on behalf of CIS on Day 1, May 28.

Thank you Mr. Chair

We would like to highlight that some of the existing alternatives to the text of the Broadcasting treaty have serious issues.

Some of the points that bear re-emphasizing are problems with watering down of limitations and exceptions, and the contemplation of a fifty year term of protection without any rationale or justifications.

If you look at the history of the Committee’s deliberations, the limitations and exceptions have been significantly diluted over the years. On the other hand, the ask for increased protections in terms of number of rights, scope and term has only increased.

Further, if the protection extends only to the signal and not to the programmes contained therein, it is not clear as to why a 50 year protection is needed for an ephemeral signal.

Reiterating the words of the Asia-Pacific Group - this matter requires proper balancing from a developmental perspective. I submit that in my opinion, it does not appear that we are anywhere close to achieving that.

Thank you.

For more details visit https://cis-india.org/a2k/blogs/36th-sccr-cis-statement-on-the-proposed-treaty-for-the-protection-of-broadcasting-organizations

36th SCCR: CIS Statement on Limitations and Exceptions Agenda

sinha — 2018-05-31T09:43:08Z

Anubha Sinha, attending the 36th Session of the World Intellectual Property Organization (“WIPO”) Standing Committee on Copyright and Related Rights (“SCCR”) at Geneva from May 28, 2018 to June 1, 2018, made this statement on the Limitations and Exceptions agenda on behalf of CIS on Day 3, May 30.

Thank you, Mr. Chair.

I’m speaking on behalf of the Centre for Internet and Society, India.

As we move forward on this agenda, we believe that for a true balance to be realised, the rights of all users of copyrighted works will have to be treated on par with those of the rightholders for purposes of access to knowledge. We are disappointed with the state of the limitations and exceptions in the broadcast treaty, that made some progress yesterday (in terms of increasing rights).

Further, as we have submitted earlier, it is our belief that the present international legal framework does not sufficiently address the opportunities presented by new information and communication technologies. We reiterate the need for open ended exceptions and limitations in this area - which should also facilitate smooth cross border exchange of knowledge.

Thank you.

For more details visit https://cis-india.org/a2k/blogs/36th-sccr-cis-statement-on-limitations-and-exceptions-agenda

36th SCCR: CIS Statement on the Draft Action Plan for Libraries, Archives and Museums

sinha — 2018-05-31T09:47:15Z

Anubha Sinha, attending the 36th Session of the World Intellectual Property Organization (“WIPO”) Standing Committee on Copyright and Related Rights (“SCCR”) at Geneva from May 28, 2018 to June 1, 2018, made this statement on the Draft Action Plan on advancing limitations and exceptions for libraries, archives and Museums on behalf of CIS on Day 3, May 30.

Thank you, Mr. Chair.

I’m speaking on behalf of the Centre for Internet and Society, India.

Very recently we concluded a qualitative study on archives in India to examine how limitations and exceptions help them in achieving their mission.

We found that the Indian Act goes to the extent of making an exception for preservation for libraries. To make up for unintended gaps in this clause, Indian archives and museums owing to overlapping functions with libraries use this exception within limits – which counts as an ‘implied’ application of the exception, as reported by the ex- registar of the Indian Copyright Office in 2010 to WIPO. Undeniably, an institutional approach has created unintended barriers for other institutions performing the exact same function.

The draft action plan adopts a similar institutional approach in its three different tracks for libraries, archives and museums. As many of the core functions of these institutions overlap, and indeed they may be an archive housed in a library or vice-a-versa, we must change our approach to focus on the functions and not the formal identification of such institutions.

Hence, I submit that the draft action plan be suitably amended to reflect a purposive approach to drafting this treaty, and not create artificial distinctions between institutions that do not reflect reality.

Thank you.

Note: Please find the Draft Action Plan here (SCCR/36/3).

For more details visit https://cis-india.org/a2k/blogs/36th-sccr-cis-statement-on-the-draft-action-plan-for-libraries-archives-and-museums

WIPO SCCR 41: Notes from Day 3 and Day 4

sinha — 2021-07-08T14:51:23Z

Day 3 and 4 saw the presentation of four studies conducted by external experts on music markets in various regions in the world and one study on rights of stage directors of theatrical productions. Day 4 saw member states sharing their positions on a proposal for creation of two rights 1) rights of stage directors of stage productions and 2) public lending right. The Chair also presented the draft summary of the session upon its conclusion, on Day 4. This blog post shares the specific text under the broadcasting and limitations and exceptions agenda items, relevant from an access to knowledge perspective.

1. On the issue of transparency and inclusivity in informal work on the 'protection of broadcasting organisations' agenda item, that emerged on Day 1, the Chair summarised:

" The chair and vice chair and will take the views expressed during the session on the modalities of the informal work into consideration, including the need to uphold the principles of transparency and inclusivity."

2. An 'information session' on impact of COVID was proposed by the Asia-pacific group on Day 2, the Chair summarised:

" The Committee requested the Secretariat to organise 1/2 day information session, footnote 1, the text of the footnote is as follows. The reference to half day is based on a meeting day with two three-hour sessions, in case SCCR/42 has truncated meeting days with single daily meeting sessions of up to three hours, the information session could take place during one entire day.

So, back to the sentence after the footnote. I will repeat, the Committee requested the Secretariat to organise 1/2 day information session on the topic of the impact of COVID-19 on the cultural, creative and educational ecosystem including copyright, related rights and limitations and exceptions during the week of the 42nd session of the Committee. During the session following presentations from experts, member states will have the opportunity to exchange views and experiences. This process will be guided by a holistic and balanced approach. The information session will be separated from the rest of the agenda during the 42nd session."

For more details visit https://cis-india.org/a2k/blogs/wipo-sccr-41-notes-from-day-3-and-day-4-1

Breakdown of the list in the July 23rd Order

sinha — 2014-07-08T05:31:47Z

For more details visit https://cis-india.org/Untitled.jpg

Delhi High Court Orders Blocking of Websites after Sony Complains Infringement of 2014 FIFA World Cup Telecast Rights

sinha — 2014-07-08T07:02:16Z

Of late the Indian judiciary has been issuing John Doe orders to block websites, most recently in Multi Screen Media v. Sunit Singh and Others. The order mandated blocking of 472 websites, out of which approximately 267 websites were blocked as on July 7, 2014. This trend is an extremely dangerous one because it encourages flagrant censorship by intermediaries based on a judicial order which does not provide for specific blocking of a URL, instead provides for blocking of the entire website.

The High Court of Delhi on June 23, 2014 issued a John Doe injunction restraining more than 400 websites from broadcasting 2014 FIFA world cup matches. News reports indicate that the Single judge bench of Justice V. Kameswar Rao directed the Department of Telecom to issue appropriate directions to ISPs to block the websites that Multi Screen Media provided, as well as “any other website identified by the plaintiff” in the future. On July 4, Justice G. S. Sistani permitted reducing the list to 219 websites.

Background

Multi Screen Media (MSM) is the official broadcaster for the ongoing 2014 FIFA World Cup tournament. FIFA (the Governing body) had exclusively licensed rights to MSM which included live, delayed, highlights, on demand, and repeat broadcast of the FIFA matches. MSM complained that the defendants indulged in hosting, streaming, providing access to, etc, thereby infringing the exclusive rights and broadcast and reproduction rights of MSM.

The court in the instant order held that the defendants had prima facie infringed MSM’s broadcasting rights, which are guaranteed by section 37 of the Copyright Act, 1957. In an over-zealous attempt to pre-empt infringement the court called for a blanket ban on all websites identified by MSM. Further, the court directed the concerned authorities to ensure ISPs complied with this order and block the websites mentioned by MSM presently, and other websites which may be subsequently be notified by MSM.

Where the Court went Wrong

The court stated that MSM successfully established a prima facie case, and on its basis granted a sweeping injunction to MSM ordering blocking 471 second level domains. I’d like to point out numerous flaws with the order-

Dissatisfactory "Prima facie case"

In my opinion the court could have scrutinised the list of websites provided by MSM more carefully. There is nothing in the order to suggest that evidence was proffered by MSM in support of the list. The order reveals that the list was prepared by MarkScan, a “consulting boutique dedicated to (the client’s) IP requirements in the cyberspace and the Indian sub-continent.” The list throws up names such as docs.google.com, goo.gl & ad.ly (provide URL shortening service only), torrent indexing websites, IP addresses, online file streaming websites, etc., at a cursory glance. Evidently, perfectly legitimate websites have been targeted by an ill conducted search and shoddily prepared list which may lead to blocking of legitimate content on account of no verification by the court. 471 websites out of 472 mentioned in the first list are second level domains and 23 websites have been listed twice.

2. Generic order which abysmally fails to identify specific infringing URLS

Out of the 472 websites (list provided in the order by MarkScan)-

471 are file streaming websites, video sharing websites, file lockers, URL shorteners, file storage websites; only one is a specific URL [http://www.24livestreamtv.com/brazil-2014-fifa-world-cup-football-%20%C2%A0%C2%A0live-streaming-online-t ].

The order calls for blocking of complete websites. This is in complete contradiction to the 2012 Madras High Court’s order in R K Productions v BSNL which held that only a particular URL where the infringing content is kept should be blocked, rather than the entire website. The Madras High Court order had also made it mandatory for the complainants to provide exact URLs where they find illegal content, such that ISPs could block only that content and not the entire site. MSM did not adhere to this and I have serious doubts if the defendants brought the distinguishing Madras High Court judgment to the attention of the bench. The entire situation is akin to MarkScan scamming MSM by providing their clients a dodgy list, and MSM scamming the court and the public at large.

3. Lack of Transparency – Different blocking messages on different ISPs

The message displayed uniformly on blocked websites was:

"This website/URL has been blocked until further notice either pursuant to court orders or on the directions issued by the Department of Telecommunications."

I observed that a few websites showed the message “Error 404 – File or Directory not found” without the blocking message (above) on the network provider Reliance, and same Error 404 with the blocking message on the network provider Airtel highlighting the non-transparent manner of adherence to the order. Further, both the messages do not indicate the end period of the block.

Legality of John Doe orders in Website Blocking

It is pertinent to reiterate the ‘misuse’ of John Doe orders to block websites in India. The judiciary has erred in applying the John Doe order to protect copyrightable content on the internet. While the R K Productions v BSNL case appears reasonable in terms of permitting blocking of only URL specific content, the application of John Doe order to block websites remains unfounded in law. Ananth Padmanabhan in a three part study (Part I, II and III) had earlier analysed the improper use of John Doe injunctions to block websites in India. The John Doe order was conceived by US courts to pre-emptively remedy the irreparable damages suffered by copyright holders on account of unidentified/unnamed infringers. The interim injunction allowed collection of evidence from infringers, who were identified later as certain defendants and the final relief was accordingly granted. The courts routinely advocated judicious use of the order, and ensured that the identified defendants were provided and informed of their right to apply to the court within twenty four hours for a review of the order and a right to claim damages in an appropriate case. Therefore, the John Doe order applied against primary infringers per se.

On the other hand, whilst extending this remedy in India the courts have unfortunately placed onus on the conduit i.e. the ISP to block websites. This is tantamount to providing final relief at the interim stage, since all content definitely gets blocked; however, this hardly helps in identifying the actual infringer on the internet. The court is prematurely doling out blocking remedies to the complaining party, which, legally speaking should be meted out only during the final disposition of the case after careful examination of the evidence available. Thus, the intent of a John Doe order is miserably lost in such an application. Moreover, this lends an arbitrary amount of power in the hands of intermediaries since ISPs may or may not choose to approach the court for directions to specifically block URLs which provide access to infringing content only.

For more details visit https://cis-india.org/internet-governance/blog/delhi-high-court-orders-blocking-of-websites-after-sony-complains-infringement-of-2014-fifa-world-cup-telecast-rights

CIS-India Projects: Overlaps with Digital India

sinha — 2015-10-11T05:19:30Z

This post documents the overlap of CIS India's work with the nine pillars of the Digital India campaign. The list reflects work completed/underway as of September 2015.

Broadband Highways

National Fibre Optics Network: Studying the implementation BBNL and promoting shared backhall infrastructure.
Net Neutrality: Made submissions to the TRAI consultation, DoT Panel and testified before the Parliamentary Standing Committee on IT.
Internet Governance: Engaging with WSIS processes and the ICANN; participating in internet governance consultations.

Universal Access to Mobile Connectivity

CIS advises the deployment of shared spectrum test beds in IIT Hyderabad and IIT Delhi, supported by DEITY (Budget: INR 47.6 lakhs).
Text to Speech engine for 12 Indic languages using FOSS (Budget: INR 1.8 crores).
CIS serves on the High level committee for the National Electronic Accessibility Policy.

Public Internet Access Programme

Advising the Task-force constituted by the Delhi government for the roll out of Delhi Public WiFi.

e-Governance: Reforming Government through Technology

Policy, technical and mathematical research on UID.
Conducting case studies on public sector Big Data initiatives in India (Budget: 80K USD), and designing a research network for multi-year project on Big data in the global south (estimated total budget: 2M USD).
Privacy textbook featuring 50 court cases and 50 laws/policies, citizen’s draft of the privacy bill; domain specific briefs; multi stakeholder roundtables (Budget: 220K Pounds).

e-Kranti Electronic Delivery of Services

Voluntarily advising implementation of the CCTNS project for Karnataka.
Submitted comments on Information Technology (Electronic Service Deliverables) Rules, 2011.

Electronics Manufacturing

Pervasive Technologies Project: This is a 430K CAD research project aimed at increasing indigenous manufacturing of mobile devices in India and China.
National IP Policy and Strategy: CIS has submitted comments to the DIPP on IP reform, in sync with the Make in India campaign.

Information for All

Participation in and research around WIPO negotiations and meetings in support of Indian negotiators aimed at reforming Indian IP.
Submitted comments to the CSIR, DBT-DST and ICAR on development of Open Access policy.
Indic Wikipedia programme: Creating content and engaging with community for six Indic wikipedias (Budget: 200K USD per annum).
Augmenting, supporting, and capacity building for supply and demand of open (government) data in India (Budget: 500K for 2 years).

IT for Jobs

FOSS in curriculum: Encouraged the introduction of FOSS in university curriculum through RTI requests and outreach programmes.
IP reform of product development: Studying the impact of IP on mobile applications development in India.
Undertaking research and analysis of technology incubators in India.
Hosting and facilitating work of several startups, a continuing collaborative process.

Early Harvest Programme

Completed work on Open Educational Resources (OERs) through Wikipedia programmes, providing functioning of NMEICT and other steps.

For more details visit https://cis-india.org/a2k/blogs/cis-india-projects-overlaps-with-digital-india

Summary of CIS Comments to DIPP’s Discussion Paper on SEPs and their availability on FRAND terms

sinha — 2016-04-26T12:07:30Z

This blog post summarises CIS’ responses to DIPP’s Discussion Paper on SEPs and their availability on FRAND terms. The response made specific recommendations regarding adequacy of Indian law to determine SEP litigation, remedies for FRAND assured SEPs, FRAND royalty rates, SSO’s policies, parties’ non-disclosure agreements and transparency, and essentiality of SEPs and their declassification.

On April 22nd, 2016, CIS filed a comment with the Department for Industrial Policy and Promotion (DIPP), regarding Standard Essential Patents(SEPs) in India and their availability on FRAND terms. A TL;DR version of the comment follows.

Whether IPR and antitrust legislations should be amended

CIS submitted that no amendments to either the Patents Act, 1970 or the Competition Act, 2005 may be preferred. The changes that need to be brought forth are the adoption of a balanced National IPR Policy, and a National Competition Policy - both of which have been in the works for a while. Further, we urge the government to not enter into FTAs like the Regional Comprehensive Economic Partnership.

IPR Policies of SSOs, and prescribing Guidelines for their functioning

CIS recommended that, first, Indian SSOs adopt an IPR Policy factoring in “India specific requirements”; second, on TSDSI’s IPR Policy (and DOSTI, GIFSI), certain changes be made to the policy to a) require the members to refrain from seeking injunctive relief b) delete the condition where FRAND negotiations may be subject to a condition of reciprocity; (c) to identify in detail the procedure to be followed in case of patent ‘holdups’ and patent ‘holdouts’; (d) to identify in detail the procedure to be followed in case of refusal to license by TSDSI members, and, nonmembers, both; and, (e) to include a detailed process on the declassification of a standard or technical specification. Further, SSOs may consider recommending the use of royalty-free licenses, in tune with the W3C and Open Mobile Alliance.

The government should prescribe Model Guidelines that may be adopted by Indian SSOs (incorporating the suggestions above), in view of increasing complexity of SEP litigation, and potential abuse of FRAND process. The Model Guidelines may additionally cover (a) the composition of the SSO; (b) the process of admitting members; (c) the process of the determination of a standard or technical specification; (d) the process of declassification of a standard or technical specification; (e) the IPR Policy; (f) resolution of disputes; (g) applicable law.

Royalty Rates

The government should also intervene in the setting of royalties and FRAND terms, in light of severe inadequacies in the SSOs’ IPR policies. CIS suggested that the government should initiate the formation of a patent pool of critical mobile technologies and apply a compulsory license with a five per cent royalty. Also, payment of royalties on SEPs should be capped by fixing a limit by the DIPP.

Further, royalty rates for SEPs should be based on the smallest saleable patent practising component.

Non-Disclosure Agreements and Transparency

On the use of Non-Disclosure Agreements in SEP/FRAND litigation, CIS submitted that . pending a final determination by the CCI (and subsequent appeals) it would be premature to make an absolute claim on whether the use of NDAs results in an abuse of dominant position in all instances.

On making the practices of cross-licensing and patent pooling transparent, CIS strongly urged the DIPP to strictly enforce the compliance of Form 27s by patentees. Availability of Form 27s will critically enable willing licensees to access patent working information in a timely manner. The Form 27 template may be modified to include more details, including patent pool licenses, with an explicit declaration of the names of the licensees and not just the number.

Further, guidelines may be drawn up on whether it was discriminatory to charge no royalties (whether on the SSPPU or on the whole device) for a patent holder in a cross licensing arrangement with another, when it charges royalty on the selling price of the device from a non cross-licensor.

Remedies for FRAND- assured SEPs

CIS recommended that courts adopt a more cautious stance towards granting injunctions in the field of SEP litigation, because a) injunctions may deter willing licensees from agreeing to the FRAND commitment, and also harm them b) accurately proving irreparable damage is difficult to establish in the Indian context for smartphone manufacturers c) there exists ambiguity in Indian jurisprudence to determine the conduct of an unwilling licensee, inter alia.

In CIS’ opinion, there is no need for an independent expert body to determine FRAND terms for SEPs and devising the methodology for such a purpose. The existing legal and regulatory framework is reasonably equipped to determine FRAND terms. Analytical frameworks may be studied in American jurisprudence to determine reasonable royalty rates, and patent damages.

Essentiality of SEPs and their declassification

To determine whether a patent declared as SEP is actually an Essential Patent, CIS submits that various methodologies have been used by studies to analyse the same. Goodman and Myers led a study on the subject in 2005; and additionally, laboratory tests and expert opinions can be taken into account to determine the essentiality.

Lastly, CIS suggested that Indian SSOs maintain a publicly accessible database of SEPs found to be invalid or non-essential in India. Such a record will assist the process of declassifying SEPs timely.

For more details visit https://cis-india.org/a2k/blogs/summary-of-cis-comments-to-dipp2019s-discussion-paper-on-seps-and-their-availability-on-frand-terms

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

sinha — 2021-04-28T17:09:14Z

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Access this article on The Wire Science here.

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

The STI Policy Proposes a Transformative Open Access Approach for India

sinha — 2021-04-28T17:22:43Z

Anubha Sinha explains what the draft national Science, Technology and Innovation policy means for open access to scientific literature for Indians. This article was first published in The Wire Science on January 21, 2021.

Indians may soon be able to read scientific papers for free.

Reading scientific papers is currently an expensive affair. Many scientific journals charge a couple of hundred dollars for a single article. Under a proposed ‘One Nation, One Subscription’ plan of India’s fifth (draft) Science, Technology and Innovation (STI) Policy, the government will negotiate with journal publishers to enable access for everyone. The policy also suggests that research produced in Indian publicly funded institutions be made freely accessible to everyone, at the time of publication.

These proposals are a big shift in how we learn and do science, as a country. The previous edition of the policy (2013) did not even recognise affordability or availability of scientific literature as problems. While ‘One Nation, One Subscription’ could alleviate this issue partly, its success will depend largely on how negotiations with publishers materialise. The approach is uncommon: it has been tried in two countries, with limited success, as I discussed here, in an analysis of the idea’s feasibility.

While it is crucial for people to be able to access locked-in research, it is equally important to address the practices that prevent research from being openly accessible in the first place.

The STI policy prescribes a green open access (OA) approach to ensure that research output and data produced with public funds are immediately accessible to the people – as opposed to taxpayers funding the research and paying again to access the results. Under green OA, researchers will be obligated to place their publications and data in online repositories, without any restrictions on how the output may be used.

Individual research and funding agencies, such as the Departments of Science & Technology and of Biotechnology, the Indian Council of Agricultural Research and the Wellcome Trust adopted green OA a while ago. A national STI policy stands to provide an extra impetus to adopt and enforce it.

These promising shifts come at a time when the biggest research publishers have launched a copyright infringement lawsuit in India to block Sci-Hub and LibGen on the Indian web. Sci-Hub and LibGen host copyrighted and paywalled research articles and ebooks. Anyone can download this material for free from their servers. As such, these ‘shadow libraries’ serve a vital function for everyone, and the Delhi high court has already deemed this litigation to be one of public importance. The Indian scientific research community will be intervening as well. While the case will proceed at its own pace, it would definitely be in the public interest for the STI policy to implement green OA as a mandatory requirement.

It is also notable that the policymaking process was a collaborative effort by academics, scientists and policymakers. There were multiple thematic consultative rounds with stakeholders. It has been heartening to see the results of a democratic consultation reflected in our national open access approach.

However, as is the case with high-level policies, bringing meaningful implementation often requires more operational and committed work at all levels. It would be a shame to not capitalise on the direction and vision of OA as described in the policy.

Access this article on The Wire Science here.

For more details visit https://cis-india.org/a2k/blogs/the-sti-policy-proposes-a-transformative-open-access-approach-for-india

35th SCCR: CIS' Question to Dr. Rostama on her Study on the Impact of the Digital Environment on Copyright Legislation

sinha — 2017-11-19T07:50:49Z

Anubha Sinha, attending the 35th Session of the World Intellectual Property Organization (“WIPO”) Standing Committee on Copyright and Related Rights (“SCCR”) at Geneva from 13 November, 2017 to 18 November, 2017, posed this question on the agenda 'Other Matters' on behalf of CIS on Day 5, 17 November, 2017.

Thank you for the presentation, Dr. Rostamma.

My question relates to provisions allowing reverse engineering of computer programmes. You mentioned that 81% of member states (with the scope of your study) have exceptions for compilation and interoperability of computer programmes.

Can you comment, qualitatively, on how open/ strict you have found the limitations and exceptions to be in your study? Is there a member state that stands out in its treatment of limitations and exceptions for computer programmers, and/or users of such digital objects?

Answer: I would not like to make any qualitative comments.

Read Dr. Rostamma's study here.

For more details visit https://cis-india.org/a2k/blogs/35th-sccr-cis-question-to-dr-rostama-on-her-study-on-the-impact-of-the-digital-environment-on-copyright-legislation

Centre for Internet and Society

WIPO SCCR 41: Notes from Day 1

Agenda Item: Protection of Broadcasting Organisations

1. Opacity around informal work on the broadcasting treaty agenda

2. Support for adding better limitations and exceptions to the treaty text

3. Alternative legal solutions to address broadcast piracy

Agenda Item: Limitations and Exceptions

1. Support for Limitations and Exceptions agenda item

WIPO SCCR 41: Statement by CIS on the Protection of Broadcasting Organisations Agenda Item

WIPO SCCR 41: Statement by CIS on Limitations and Exceptions Agenda Item

WIPO SCCR 41: Notes from Day 2

Agenda Item: Limitations and Exceptions

1. Conducting an Information Session on impact of COVID

2. Working towards a binding international L&E instrument

3. Work Plan under the L&E agenda

4. Regional Consultations (as per report's recommendation)

36th SCCR: CIS Statement on the Proposed Treaty for the Protection of Broadcasting Organizations

36th SCCR: CIS Statement on Limitations and Exceptions Agenda

36th SCCR: CIS Statement on the Draft Action Plan for Libraries, Archives and Museums

WIPO SCCR 41: Notes from Day 3 and Day 4

Breakdown of the list in the July 23rd Order

Delhi High Court Orders Blocking of Websites after Sony Complains Infringement of 2014 FIFA World Cup Telecast Rights

Background

Where the Court went Wrong

Legality of John Doe orders in Website Blocking

CIS-India Projects: Overlaps with Digital India

Summary of CIS Comments to DIPP’s Discussion Paper on SEPs and their availability on FRAND terms

Whether IPR and antitrust legislations should be amended

IPR Policies of SSOs, and prescribing Guidelines for their functioning

Royalty Rates

Non-Disclosure Agreements and Transparency

Remedies for FRAND- assured SEPs

Essentiality of SEPs and their declassification

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

The STI Policy Proposes a Transformative Open Access Approach for India

35th SCCR: CIS' Question to Dr. Rostama on her Study on the Impact of the Digital Environment on Copyright Legislation