Centre for Internet and Society

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

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

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

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

I. Preliminary

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

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

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

II. Overview

Governing Principles

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

Adoption of a Signals-Based Approach

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

III. Detailed Comments

On the 'Introduction'

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

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

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

On 'Broadcasting Organizations and the Rome Convention'

The Legal Framework Applicable to Broadcasting

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

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

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

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

Signal, Content and Program

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

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

On 'Legal Issues to be Considered'

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

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

Broadcasting and Piracy

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

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

Program-Carrying Signals

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

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

The Object of Protection

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

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

The Subject of Protection

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

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

IV. Concluding Observations

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

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

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

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

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

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

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

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

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

V. Other Resources

Statements made by CIS to the SCCR on Broadcast Treaty

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

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

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

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

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

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

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

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

Submissions made by CIS on the Broadcast Treaty

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

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

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

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

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

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

On behalf of the Centre for Internet and Society,

Nehaa Chaudhari Amulya Purushothama

Lawyer/Programme Officer Lawyer/Research Assistant

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

[1] Hereafter "Technical Background Paper"

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

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

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

[5] Id at p.2.

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

[7] Id.

[8] Hereafter, the Rome Convention.

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

[10] See 'Overview' of this submission.

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

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

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

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

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

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

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

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

[19] See comments under Introduction in this submission.

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

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

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

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

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

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

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

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

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

National IPR Policy Series: What Have the Sectoral Innovation Councils Been Doing on IPR

nehaa — 2015-08-13T01:36:35Z

In this post, Nehaa Chaudhari and Varun Baliga delve into the question of what the mandate of the Sectoral Innovation Councils is, what its activities are, and what vision for IPR development in India has it put forth. An RTI Application has been filed by CIS to attain information on these issues.

Thanks to Amulya.P for her support on this.

The National Innovation Council [“NIC”] was constituted by the Prime Minister’s Office “to create a roadmap for innovation for the ‘Decade of Innovation - 2010-2020’ focussing on five key parameters namely Platform, Inclusion, Eco-system, Drivers and Discourse”.[1] Pursuant to the creation of the NIC, Sectoral Innovation Councils [“SIC”][2] were established in order to promote innovation in particular sectors.

The focus of this post is on the SIC established by the Department of Industrial Policy and Promotion [“DIPP”] – a 12 member body on Intellectual Property Rights [“IPR”]. What is the mandate of this body? What have been its activities over the few years of its existence? What vision does it have of the development of IPR in India over the course of this critical decade?

In 2012, the body drafted a strategy document that did three things: an overview of the contemporary IP system, stakeholders’ involved in the protection and commercialization of IPRs and recommendations for an IPR Strategy.[3] This ambitious document merits significant work in order for actionable recommendations that will form the basis for a coherent IPR Strategy. The body has the burden to show how its work will be consistent with that of the IPR Think Tank and the National IPR Policy. In light of the circulation of the 2012 first draft of the strategy, Ajay Dua, former Secretary of the DIPP commented that the strategy would help in improving trade and capital flows. CIS has noted the increasingly trade-oriented approach to IPR in a previous comment on the US 301 Report.[4] However, the work and action that the SIC has taken does not reflect any of these ambitious documents or statements. In limbo for the past three years, we know very little about its functioning.

First, we know the Terms of Reference of the SIC.[5] The SIC has the mandate to formulate the National IPR Strategy to “address key concerns of sustainable development, inclusive growth and food security”. Further, formulation of medium term policy objectives that would provide the proper context to the strategy itself. Significantly, the SIC is required by the Terms of Reference to submit a roadmap within six months of its establishment.

The IPR Think Tank constituted by the DIPP also has a similar mandate, in so far as the Terms of Reference for the IPR Think Tank includes tasks such as drafting the National IPR Policy, identifying areas in IPRs that require further studying, creating views on the implications of demands by various negotiating partners, keeping the government informed about developments in IPR law, advising the government on best practices to be followed in different government offices that work with IPRs, advising the Ministry on solutions to any anomalies in IPR legislation, examining issues raised by industry associations and those that may have appeared in the media and providing suggestions to the Ministry on the IPR issues of the day.[6]

This raises questions of whether the SIC is required at all and what if any purpose it serves that is not already covered by the National IPR Think Tank.

Second, we know the minutes of the meeting of the SIC on IPRs dated 30 April 2013.[7] No further information of any other meetings, if any, is provided by the DIPP or the NIC. The minutes are an insightful window into the functioning of this body. Of the 12 members of the SIC, only 6 were present at the meeting. Of these 6 individuals, 2 – Mr. Sushil Kumar Jain and Professor Surendra Prasad – were not present in person but sent representatives instead. This was noted in a slightly disapproving tone by the body: “It was agreed that in future since members have been nominated by name, they may not send representatives and may instead provide their valuable views in the meeting”. We do not know whether future meetings, if any, witnessed better attendance.

In conclusion, the dormant nature of the SIC can only be probed further using the tools of the Right to Information Act [“RTI”]. What, however, is the harm of an institution like the SIC that is doing nothing. At a pragmatic level, it is a drain on public resources and time. More egregiously, on a principled level, such bodies serve to only legitimize contemporary trends in IP discourse. We have explored some of these trends in past blog posts.[8] Whether it is its trade-oriented nature or the undue emphasis on rights-holders, bodies like the SIC serve to entrench the alienation of the raison d’etre, the founding principles, of IP – innovation and creativity for all.

Annex I – RTI filed by CIS with the DIPP seeking information on the functioning of the NIC

26 June 2015

To,

Central Public Information Officer,
IPR I, II, III, IV, V and VI Sections,
Room No. 260,
Udyog Bhawan, New Delhi.

Subject: Request for Information under Section 6 of the Right to Information Act, 2005 regarding Functioning of the Sectoral Innovation Council on Intellectual Property Rights under the National Innovation Council

Dear Sir/Ma’am,

Full Name of the Applicant: Nehaa Chaudhari
Address of the Applicant: Centre for Internet and Society, G-15 Top Floor, Hauz Khas, New Delhi - 110016. Mailing Address: nehaa@cis-india.org
Information Required: Context

Please consider this an application for information under Section 6 of the Right to Information Act, 2005.

Therefore, I seek information on the following:

a) How many meetings has the Sectoral Innovation Council [“SIC”] of the DIPP on Intellectual Property Rights [“IPR”] held since its establishment?

b) Please supply minutes and all related documents of all its meetings?

c) How much are members of the SIC paid? Are members paid on the basis of time or number of meetings held?

d) Has the SIC done any work or produced any outputs other than the 2012 draft of the National IPR Strategy?

This is to certify that I, Nehaa Chaudhari, am a citizen of India.

A fee of Rs. 10/- (Rupees Ten Only) has been made out in the form of a demand draft drawn in favour of “Public Information Officer, ..................................................”

Please provide me this information in electronic form, via the email address provided above.

[1] http://innovationcouncilarchive.nic.in/index.php?option=com_content&view=article&id=74&Itemid=47

[2] http://innovationcouncilarchive.nic.in/index.php?option=com_content&view=article&id=25&Itemid=18

[3] http://dipp.nic.in/english/Discuss_paper/draftNational_IPR_Strategy_26Sep2012.pdf

[4] http://cis-india.org/a2k/blogs/us-301-report-a-myopic-view-of-ip-rights

[5] http://innovationcouncilarchive.nic.in/index.php?option=com_content&view=article&id=74&Itemid=47

[6] http://pib.nic.in/newsite/PrintRelease.aspx?relid=110790

[7]http://innovationcouncilarchive.nic.in/images/stories/sectoral/minutes/IPRs%20-%20Minutes%20of%20the%20meeting%20-%2020April2013.pdf

[8] http://cis-india.org/a2k/blogs/us-301-report-a-myopic-view-of-ip-rights

For more details visit https://cis-india.org/a2k/blogs/national-ipr-policy-series-what-have-sectoral-innovation-councils-been-doing-on-ipr

29th Session of the WIPO SCCR: CIS Intervention on the Proposed Treaty for the Protection of Broadcasting Organizations

nehaa — 2014-12-12T11:55:51Z

The Centre for Internet and Society (CIS) made its intervention on the proposed treaty in the ongoing WIPO session on December 9, 2014.

Nehaa Chaudhari on behalf of CIS made the following statement:

Thank you, Mister Chair.

This intervention will be based on the chart detailing the ‘Concepts’ corresponding to the Definitions. We believe that certain elements of these concepts are inconsistent with a broadcast treaty based on a signals based approach; and over the course of the next few minutes, I will briefly discuss these.

First, Mr. Chair in the first column- on broadcasting or cablecasting organizations (in the traditional sense); where communication of the signal has been listed under scope of responsibility. Mr. Chair, ‘communication’ itself is an element of copyright and is distinct from broadcast rights that are related rights. A signal, Mr. Chair, may be broadcast or transmitted. Accordingly, Mr. Chair under the element of Scope of Responsibility, we are of the opinion that it should read Broadcast or Transmission of the signal and not communication of the signal; and the focus should not be at regulating communication to the public.

Second, Mr. Chair, in the second column- on broadcasting and cablecasting transmission- we have three observations. First- under the means of transmission, we believe that transmission over computer networks encompasses IP based transmissions, and should be excluded, in order for the treaty to remain consistent with a signals based approach. Second- on the reception of the broadcast or cablecast transmission, we believe that it should be qualified using the phrase ‘general public’. We are of the opinion that there is a danger that a limited public (say family members) could possibly be covered by the term “public”, but would be excluded from “general public”; which in any case is the targeted audience of a broadcast. Third, Mr. Chair, on whether the transmission would be encrypted or not- which also flows into the third column on the Signal- and whether it is encrypted or not; which then also relates to whether broadcasting organizations will have the right to prevent unauthorized decryption. Mr. Chair, we don’t think that there should be a separate right to prevent unauthorized decryption. Given that signal theft is already a crime, having a specific right to prevent unauthorized decryption might result in an absurdity, where it could even cover decrypting an unauthorized retransmission without authorization from the retransmitter.

This provision might result in an absurdity, where it would cover decrypting an unauthroised retransmission without authorization from the retransmitter, where the retransmission in the first instance was illegal to begin with.

Finally, Mr. Chair, on the third column and the meaning of signal- we submit that our preferred definition would be where the definition of a signal is confined, and it understood as an electronically generated carrier transmitting a broadcast or cablecast and NOT one which has the capability of such a transmission, as stated in the third column in your Chart on concepts.

Thank you, Mr. Chair.

For more details visit https://cis-india.org/a2k/blogs/wipo-sccr-29-cis-intervention-on-proposed-treaty-for-protection-of-broadcasting-organizations

29th Session of the WIPO SCCR: CIS- 2nd (brief) Intervention on the Broadcast Treaty

nehaa — 2014-12-12T11:56:14Z

On Day 3 (December 10, 2014), the SCCR briefly re-convened at the Plenary. The Chair, Martin Moscoso updated the Committee on the discussions and the developments that had taken place over the course of the past two days in the Informals. The Centre for Internet and Society made a brief pointed intervention on one of the documents being discussed in the Informals.

Note: The documents cannot be made public yet. They were shared with Observers and Member States (even those that did not participate in the Informals) on the condition of maintaining confidentiality.

Nehaa Chaudhari on behalf of CIS made the following statement:

Thank you, chair.

First on the making available these documents, we would like to echo what CCIA and KEI said- we would also like to see the informal papers made public, so that we can have a more informed discussion on these issues.

Second, very briefly, on some of the rights to be granted- in one of the Informal Discussion Papers laid out, in -- in the third column, which are essentially fixation and post fixation rights, just very briefly, that whatever is done in any case after the signal is fixed is already covered by copyright law and we find it frightening and we see little sense in providing two sets of incompatible, and overlapping rights- copyright, that is already existing, and a sort of a para-copyright (that this treaty seeks to create) for the same underlying content.

Thank you, Mr. Chair

For more details visit https://cis-india.org/a2k/blogs/wipo-sccr-29-cis-second-brief-intervention-on-broadcast-treaty

29th Session of the WIPO SCCR: CIS Intervention : Questions to Prof. Kenneth Crews on his Updated Study on Limitations and Exceptions for Libraries and Archives

nehaa — 2014-12-14T02:56:46Z

Nehaa Chaudhari on behalf of the Centre for Internet and Society (CIS) on December 11 during one of the sessions in WIPO asked two questions to Prof. Kenneth Crews.

In 2008, WIPO commissioned a study on Limitations and Exceptions for Libraries and Archives.This was prepared by Prof. Kenneth Crews. On December 10-11, 2014, at SCCR 29, Prof. Crews presented an updated (2014) version of this study and addressed comments and questions from Member States and Observers.

CIS Statement:

Thank you, Madam Chair.

Thank you very much, Professor Crews for your presentation yesterday, and for this comprehensive study on Limitations and Exceptions for Libraries and Archives, very timely, and very important to us, from the perspective of access to knowledge and information.

I have two questions:

My first question: Did you find, in your examination, that, in terms of/ or on the question of limitations and exceptions, did you find, that there was an equal or equitable treatment of digital resources in comparison to resources available in more traditional formats? And if not, where do you think that lever of change lies to ensure that fair dealing provisions are extended equitably to the digital environment as well?

My second question, is on the interoperability of Limitations and Exceptions: Given that copyright is a very national thing, and, as your study has also well established, countries have a whole range of very diverse approaches and practices on Limitations and Exceptions; but also given that we live in an increasingly globalized world, we need a system that is interoperable with respect to the trans-boundary movement of works, with as little friction as possible, both- in the physical as well as in the digital environments. So, what did your examination show us of how interoperable- or not- the range of Limitations and Exceptions actually are?

Those are my two questions.

Thank you very much.

Response by Prof. Kenneth Crews:

Thank you very much. On the second question, I'm afraid I might mind myself only repeating some of the concepts that have already said about transborder and really about in the statutes anyway, a lack of recognition of transborder. And the transborder concept, so I will add this piece to the conversation, the transborder concept seldom if ever appears in these library exceptions to the extent that we are going to find it in copyright law or some other part of a national law it may very well be over in the import/export kind -- area of the law. But that also goes to the interoperability which think we have answered a few times just this sort -- the lack of exact harmonization and as others have reminded me I have said before that I may not be a fan of exact precise harmonization and indeed it may not be possible or even desirable. But some degree of harmonization can help with that interoperability. Interesting question, you do -- you did raise a new point about digital. We have talked several times in this conversation about use of digital technologies in the exercise of the rights of use under the exception. However what I think you were asking about is the ability to apply the exception to works that are digital in the first place that are what we call born digital and that's a very interesting question. The statutes do not address that. Sometimes you will see a statute that refers to -- that says it applies to all these different kinds of works but not computer software. That tells you somebody was thinking it shouldn't apply to software but somehow software is different and there are problems with that. We know that software has changed and been incorporated in to many different works. But we generally see a statute almost always see a statute that's about books or archival materials or some other kind of work without specifying the technology. So can it apply to an e-book in addition to the paper book? The statutes don't go there. They don't sort that out. So in my common law tradition I look at that and see that as a question for interpretation. In a civil code system I might look at it and see it a little bit more firmly for lack of a better word about what the scope of that word book, for example, really means.

Really good question. And it is one that the statutes have not picked up on.

Thank you very much.

For more details visit https://cis-india.org/a2k/blogs/cis-intervention-questions-to-prof-kenneth-crews-on-limitations-and-exceptions-for-libraries-and-archives

Leading Up To The GCIP: A Chat With Michael Geist

Job Michael Mathew — 2016-01-31T05:37:58Z

Continuing the lead-up to the GCIP, the following discussion is with Dr. Michael Geist.

Click to read the blog post originally published on Global IP Congress website on December 12, 2015.

Profile: Dr. Michael Geist is a law professor at the University of Ottawa, where he holds the Canada Research Chair in Internet and E-commerce Law. He will be giving a keynote address during the inaugural plenary session scheduled for December 15^th.

JMM: The UK recently made a major push towards open access after the recommendations of the Finch Report dealing with expanding access to research publications. The major thrust of the Finch Report is towards sustaining an open access model through Article Processing Charges (APC) as opposed to other alternatives such as Advertisement/Sponsorship based model or the subsidy-based model. This has raised concerns over predatory open access journals using APC which are said to undermine peer review and privilege wealthy universities and grant holding scholars. What do you think are the implications of following such a model for the open access movement at large?

MG: I have real concerns about the APC model, which may price open access out of the hands of many scholars. We need experimentation with different open models, recognizing the economic uncertainty of switching away from high priced subscriptions. However, APC may entrench much of the current model and is among the least desirable (though increasingly common) publisher approaches to OA.

JMM: One of the barriers to open access in Canada was the lack of campus support towards open access. You have written that even as many of the world’s top universities adopt open access strategies, universities in Canada remain reluctant to follow open access mandates. What explains this reluctance to open access among universities and is it something found in other parts of the world as well?

MG: We are starting to see more movement towards OA in Canada. Part of this is driven by our federal granting councils, which have emphasized OA requirements within their guidelines. I think there is also a growing recognition of the scholarly benefits of OA. That said, there are still many scholars who pay little attention to the publishing contracts they sign and the restrictions that may be imposed on their work through their choice of journal. This is an ongoing education issue, particularly for senior scholars, who may still be unfamiliar with OA issues.

JMM: In early 2013, the University of Ottawa Press released “The Copyright Pentalogy: How the Supreme Court of Canada shook the foundations of Copyright Law” in open access. The book was one of the most accessed on the University of Ottawa Press website and in less than 6 months of release was top among 35 books on page views. Writing about the book, you noted that the book was also a top seller in the University webpage in spite of being available for free. Over the last few years, many more of such examples have surfaced. Is open access actually not at odds with commercial sales as commonly understood?

MG: I think open access works hand-in-hand with commercial sales. Indeed, in some instances, it may increase sales. I have long come from the position that there are three potential purchasers of my books. The first group – librarians, people focused on digital issues, etc. – will buy the book regardless of whether it is freely available online. There is a second group that might have purchased the book, but chooses not to do so because there is a free version available. This group represents a financial loss. There is a third group, however, who would not have purchased the book or even been aware of it, but find it through open access. This group may decide it likes what it has read and will buy the book. If group three is larger than group two, the publisher ends up ahead. In fact, the third group doesn’t even need to be larger, because the publisher may be able to use OA to cross-sell other publications. Note that the fourth group – those that would not buy the book but choose to download it – do not factor into this analysis because this group would never have been purchasers.

JMM: Recently you wrote about an Ottawa Court ruling asking a man to pay damages amounting to $13,470 for circumvention of a digital lock. The case involved a man who received from his friend an online publication that he had not subscribed to himself. Apart from Canada, United States of America has strict anti-circumvention rules under the Digital Millennium Copyright Act (DMCA) which makes it illegal to circumvent technological protection measures irrespective of whether or not the reasons for doing so are perfectly legal or non-infringing. Further the TPP under Article 18.68 provides for legal protection against circumvention of effective technological measures without reference to any exception for legal or non infringing use just as in the DMCA. In the light of active endorsement of such measures from certain quarters of the developed world do you think such measures could become a global norm that developing countries may soon be forced to adopt?

MG: There is a real danger of this occurring. The US has aggressively pressured others to implement restrictive anti-circumvention rules. These rules often go well beyond those required by the WIPO Internet treaties. This is a significant problem that cuts across all economies, both developed and developing.

JMM: Almost a year back, there were reports indicating that Canada was the leading opponent of the IP chapter in the Trans-Pacific Partnership. However a year later the negotiations have been completed and parties have agreed to the same text. According to you, what helped quell the Canadian dissent to contentious areas such as extension of the term of copyright protection, criminal liability for copyright infringement among others? Further do you think the victory of the Liberal Party in the just concluded elections will force a rethink on the TPP?

MG: Earlier leaks did indeed indicate that Canada opposed many provisions in the IP text, reflecting differences between Canadian and U.S. copyright law. On several issues, Canada caved (such as term extension). Given the secrecy associated with the negotiations, it is hard to know precisely why certain provisions ended up the way they did. However, the final text suggests that IP was not a top Canadian priority, other than preserving the notice-and-notice system.

As for the change in government, I think Canada will sign the TPP alongside other signatories, but conduct an extensive review of the treaty before deciding whether to implement it. Whether it moves forward likely depends more on what happens in the U.S., where there appears to be significant opposition from some presidential candidates and members of Congress

JMM: Article 18.66 of the TPP deals with Balance in Copyright and Related Rights system. The article allows countries to achieve a balance in copyright and related rights system by crafting exceptions or limitations ‘giving due consideration to legitimate purposes such as, but not limited to: criticism; comment; news reporting; teaching, scholarship, research, and other similar purposes; and facilitating access to published works for persons who are blind, visually impaired or otherwise print disabled’. Do you think this article is drafted broadly enough to allow meaningful fair use? Further, article 18.65, to which 18.66 is subject to, states that exceptions permitted under the TRIPS, Berne Convention, WIPO Copyright Treaty and WIPO Performance and Phonograms treaty shall apply to TPP as well. The Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired, or Otherwise Print Disabled is absent in Article 18.65 but is present in a footnote referencing to the exception of ‘facilitating access to published works for persons who are blind, visually impaired or otherwise print disabled’ in Article 18.66. What do you think explains this treatment of Marrakesh Treaty and what will its implications be?

MG: I do think that the TPP allows for fair use. However, it does not require fair use, which suggests that many other countries may not implement it.

There is definitely a double standard with respect to international copyright treaties in the TPP. Where the treaty is viewed as a rights-oriented treaty, it is a requirement. Where it is a user-oriented treaty such as Marrakesh, it is optional.

[1] Dr. Geist has written numerous academic articles and government reports on Internet and Technology and is a syndicated columnist on technology law issues with his regular columns appearing on the Hill Times, the Tyee and the Toronto Star.

He is the editor of several copyright law books including “The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law”, “From “Radical Extremism” to “Balanced Copyright”: Canadian Copyright and the Digital Agenda”, and “In the Public Interest: The Future of Canadian Copyright Law” along with being the editor of several monthly technology law publications and author of a popular blog on internet and intellectual property rights.

Dr. Geist serves an the director and on advisory boards of several Internet and IT law organizations including the Canadian Internet Registration Authority, the dot-ca administrative agency, the Canadian IT Law Association, Watchfire, and Verifia. He is Chair of a global Internet jurisdiction project for the American Bar Association and International Chamber of Commerce. He is regularly quoted in the national and international media on Internet law issues and has appeared before government committees on e-commerce policy

More information can be obtained at http://www.michaelgeist.ca/.

For more details visit https://cis-india.org/a2k/blogs/leading-up-to-the-gcip-a-chat-with-michael-geist

Leading Up To The GCIP: A Chat With Susan K. Sell

Job Michael Mathew — 2016-01-31T08:36:57Z

After Mr. Zakir Thomas and Dr. Michael Geist, our third discussion is with Prof. Susan K. Sell.

Click to read the blog post published on Global Congress page on December 12, 2015.

Profile: Susan Sell is a Professor of Political Science and International Affairs at George Washington University where her teaching focuses on theories of international politics, international political economy and relations between the North and South. She will be giving a keynote address during the inaugural plenary session scheduled for December 15th.

JMM: The Australian Government’s plain packaging legislation is being challenged by Philip Morris International under the Investment State Dispute Settlement provisions under the Australia-Unites States of America Bilateral Investment Treaty. The treaty under question is a purely investment treaty with no references to public interest or health pre-dating the TRIPS. What do you think will be the implications of adjudicating an intellectual property enforcement dispute at an investment tribunal? Further, such provisions are present in the recently concluded TPP as well even though an exception is carved out for tobacco. However TPP vide Article 18.6 affirms the party’s commitment to TRIPS and public health and explicitly states that parties have the right to determine what constitutes a national emergency and take measures to protect public health even if it conflicts with the obligations under the IP chapter. Do you think the presence of such an explicit undertaking will fundamentally alter the power dynamics within an investor State dispute settlement tribunal which is generally seen as a pro-corporate body?

SS: I think the implications are very troubling. One thing I have looked at a lot and continue to look at is the practice of forum shifting, where parties shift to different forums to try to get what they want and I look at Investor State Dispute Settlement (ISDS) as another forum that raises troubling implications. ISDS has become extremely popular over the last few years; in 1982 there was only one ISDS case, it rose to 50 in 2012 and now in 2015 we are up to 500 cases in 50 different countries. To me this is troubling because it represents a trend of deal making behind closed doors that circumvents democratic deliberation and public scrutiny.

IP is now being defined as an investment asset under the ISDS provisions. In 2014, Susy Frankel and R Dreyfuss wrote about this redefinition of intellectual property. In 2012 a multinational law firm Jones Day published a report arguing that ISDS was a new way forward for pharmaceutical firms to address the assault on their patents in the developing world. So this is a new strategy of intellectual property owners.

The ISDS provisions, by identifying intellectual property as an investment asset, are like getting a camel’s nose inside a tent. Once these issues get adjudicated under ISDS provisions it will open the floodgates for much more ISDS activity focused on IP. Now there is some interesting pushback against these provisions since ISDS is getting more scrutiny in Europe. Germany has gotten less excited about it, the EU is openly debating it and the Eli Lily case against Canada is gaining a lot of notoriety. A number of developing countries, especially in Latin America, who have been very hard hit by ISDS provisions in a number of sectors have requested that ISDS provisions, that they are party to, be formally annulled. Now that’s not going to happen but it is an important symbolic groundswell against ISDS provisions because they override sovereignty, they override decisions of the highest courts of the land, and they are not transparent and there is no appeals process.

To answer the second part of the question, I would love it if states could use the flexibilities in the TPP as a defense of their public health laws but I am a little skeptical about that happening. We have had the Doha Declaration for many years and it has not really stopped pharmaceutical companies from pushing for further protection and enforcement of intellectual property and intellectual property obligations. Therefore even though the language is in there, I doubt if it will change a lot of things in terms of power dynamics on the ground.

JMM: In one of your papers you make the claim that non-governmental organizations (NGOs) working towards lowering intellectual property standards in movements such as access to medicine are not all that different from big businesses that these organizations are fighting. The claim proceeds to argue that both parties are influenced by normative as well as instrumental objectives as opposed to belief that NGOs are only informed by normative objectives. Yet, how important do you think it is for the NGO movements such as Access to Medicine to maintain a distinction from the pharmaceutical companies they are fighting considering the fact that one of the major victories of the Access to Medicine movement was in relation to the HIV/AIDS crisis where the whole issue was framed as a moral life or death question?

SS: I think it is extremely important for the movement to maintain the distinction and the life or death framing of the issue was important too. I want to clarify that the comparison in the piece ‘Using ideas strategically’ between pharmaceutical companies and NGOs is only at the level of strategy. Both parties are very different in terms of resources, structural power, etc. Pharmaceutical companies have access to more resources and are more powerful structurally. Therefore the framing of issues becomes very important for the structurally weaker party.

There are big differences between NGOs in the access to medicine movement and pharmaceutical companies. However, that said, I think there are many representatives of pharmaceutical firms that really believe in the morality of their position – that you need protection to innovate the next generation of drugs. People from Monsanto, many of whom advocate for patents for seeds feel this is important because they believe that this can increase food security. They sincerely believe that the development of drought-resistant plants is something that is good for the world. So these people also make a moral claim whether or not you agree with it. The point is such claims are not purely cynical or instrumental on the part of such actors.

JMM: One of the major criticisms against the TPP has been the lack of transparency in negotiations with even Congressmen not being allowed to see the text till it was released earlier this month. You have spoken about how this is troubling from a legitimacy and accountability standpoint and insulates private players from scrutiny while pushing unpopular articles within the agreement. Yet, in the case of tobacco, an industry which is quite powerful in the US, the TPP has carved out an exception in relation to ISDS. Article 29.5 gives parties the right to elect to deny the benefits of ISDS in relation to tobacco control measures. The statement of United States Trade Representative Michael Froman explaining the exception reads “Developed following extensive consultations with Congress and with a wide range of American stakeholders – from health advocates to farmers, representing many views on whether and how to address tobacco-related health policy measures in a trade agreement”. Even as criticism abound on lack of transparency there seems to have been a surprising amount of transparency as far as this particular provision is concerned. What do you think explains this anomaly?

SS: First of all, I am not very sure that there has been a lot of transparency in the tobacco discussions. I would need to find out more about the process. That statement alone from Michael Froman is not much to go by considering the fact that Stan McCoy before Michael Froman and now Michael Froman himself have always maintained that they have been consulting a wide range of stakeholders during the entire process of TPP negotiations. However the consulted stakeholders have only been their cleared advisors, most of whom are IP owners, major corporations, Wall Street players and the like. Consumers and public interest NGO’s have been shut out of this process. Therefore I am not aware, despite what Froman has said, that there has been an open public deliberation about tobacco provisions.

In fact right now, in the United States, there is a lot of pushback against the carve-out for tobacco in ISDS. This is a sticking point for Obama getting the deal through Congress. Tobacco firms are very upset about the carve-out. Similarly pharmaceutical companies are very upset that they did not get the 12 year data exclusivity on biologics. Senators and Congressmen from states that have a big pharmaceutical presence are saying that the deal must be renegotiated and the higher standards be put in place. So there is an interesting process going on now, but I am not aware of any open and public negotiations.

JMM: An exception to the global movement towards stricter IP regimes as evidenced by deals such as ACTA, TPP among others has been India. The patent law has set the bar pretty high for granting of patents and the Government hasn’t shied away from using tools such as compulsory licenses. What explains the Indian isolation to pressures of the western world, particularly the United States, and what are the lessons the Indian model has to offer to other developing countries?

SS: India is a really interesting case and I am a little nervous about recent statements made by Narendra Modi referencing the need to be open to stronger IP protection. India has a long history of standing up to pressure, for example being the leader of the Non-Aligned Movement, so it has a history of carving out its own path. It has been a pioneer with the passing of the Indian Patent Act, 1970, which allowed it to develop a highly robust and successful generic industry. The adoption of Section 3(d) of the Patents Act, which prevents the evergreening of patents, has been emulated by the Philippines in its Patent Act and is totally TRIPS compliant.

Some of the lessons of the Indian model are to use flexibilities under TRIPS and tailor IPR regimes to suit one’s national needs. Of course India has a large economy and that gives it a more power than some of the smaller developing countries. I think it is important that countries support each other’s rights to use these flexibilities and I would like to see more South-South corporation in drafting laws and offer some pushback against the relentless pressure to go over and above what is required by TRIPS.

JMM: At the turn of the 21^st century there was a move to evolve minimum standards of protection for IP which culminated in the TRIPS agreement. There was a feeling that that the TRIPS agreement was an unbalanced agreement with respect to the interests of the developing world and it was hoped that the Doha Declaration on Public Health and TRIPS would make the agreement more balanced. Added to this, the US trade policy of 2007 marked a shift in the approach of the United States towards IP by lowering standards of protection for the first time. However, recently agreements such as ACTA and TPP tip the balance in favour of developed countries and its MNCs by dismantling many of the inherent flexibilities in the TRIPS agreement. What, according to you, explains this latest shift to a more restrictive IP regime evident from bilateral and plurilateral agreements?

SS: I would argue that if you look back historically, the May 2007 amendment to the Trade Policy to allow for more flexibility in the area of public health is an anomaly. It is this anomaly that needs to be explained rather than the pressure for higher standards. The pressure for higher standards has been ongoing ever since the TRIPS negotiations were concluded. For right-holders the provisions in the TRIPS were always a floor, a bare minimum of protection whereas other parties saw it as ceiling considering their level of development and capacity. So when we see agreements like ACTA and TPP, they are consistent with what US trade policy has been and increasingly Europe as well in its bilateral and regional agreements. Firms have never stopped pushing for stricter standards and they are never going to.

I think one of the most concerning things is firms engaging in what I would call Private Power 2.0. We saw how private power was very instrumental in crafting and achieving the TRIPS agreement. What we see now, however, is less transparency and more anti-competitive conduct flourishing behind closed doors as evidenced by deals such as TPP and ACTA. I just read a manuscript by Natasha Tusikov titled ‘Choke Points’ in which she talks about the fact that even though the Stop Online Piracy Act and Protect Intellectual Property Act were shelved as a result of online activism and mobilization of opposition, that helped to unravel ACTA abroad and seemed like a very big victory. People were celebrating it as a David and Goliath story as it was the first time rights holders did not get what they wanted in a big way. However in reality the provisions of SOPA and PIPA are in practice after having been adopted through private contracts between Internet Service Providers and content owners. These contracts are entered into behind closed doors and the public is not privy to this. So if you are watching a 12 episode show on Netflix and after 8 episodes it is no longer available then you begin to wonder what happened. What happened is these private agreements behind closed doors where companies like eBay and Google are increasingly policing the rights of the right-holders and increasingly enforcing wishes of right-owners online. These are some of the worrying trends that need to be addressed.

One other issue is that the firms are still making the argument that they have always tried to get higher standards of protection and that this is about competitiveness and creating jobs. However recently, Irish company Amgen acquired Pfizer which was based in New York. It will be interesting to see how compelling the larger competiveness and jobs argument will be given that Pfizer will now be based in Ireland and no longer paying the United States tax revenue. The Pfizer spokesperson was saying that the acquisition is good for the United States and that’s a real puzzler. So this is a really interesting move that has happened and it undercuts the rationale these firms have been using to get the support of the US Government behind their preferences.

[1] Prof. Sell has written extensively on the politics behind the international IP rights regime most notably in her book “Private Power, Public Law, The Globalization of Intellectual Property Rights”. She is also the author of “Intellectual Property Rights: A Critical History” and “Power and Ideas: North South Politics of Intellectual Property and Antitrust”. Apart from the books, she has a number of publications dealing with and describing the forces that shape IPR regimes, the implications of the present IPR regime in relation to access to medicine, importance of developing a humanitarian conception of IPR among others.

For more details visit https://cis-india.org/a2k/blogs/leading-up-to-the-gcip-a-chat-with-susan-k-sell

Leading Up To The GCIP: A Chat With Shamnad Basheer

Job Michael Mathew — 2016-01-31T08:57:01Z

The next discussion in our pre-GCIP discussion series is with Prof. Shamnad Basheer.

The blog post was published on the Global Congress page on December 13, 2015.

Profile: Shamnad Basheer is the founder of SpicyIP, India's premier blog on IP and innovation law and policy. Basheer was the first Ministry of Human Resource Development Chaired Professor of Intellectual Property Law at the National University of Juridical Sciences, Kolkata, and a Frank H. Marks Visiting Associate Professor of Intellectual Property Law at the George Washington University Law School in Washington DC.

JMM: The years after TRIPS have seen a number of battles in developing countries over IP rights. In response, some developing countries like India have incorporated measures such as Form 27 requirements for patents and Section 3(d) in the Patents Act to prevent over-broad exclusionary rights. What explains the presence of such creative interpretation of inherent flexibilities in some developing countries and their absence in others?

SB: Indeed! Some developing countries such as India have been a little more successful in using TRIPS flexibilities than others. I believe this is due to several factors:

Firstly, you need a very strong domestic constituency that prods the government to actively exploit TRIPS flexibilities. In the case of India, there were two very powerful constituencies at play -

a. We have a very strong generic industry, which has historically benefited from a not-so-stringent patent regime and was keen on ensuring the widest possible use of TRIPS flexibilities so that they could continue to remain competitive in a market that was soon to be flooded with pharmaceutical patents.

b. Also, a very powerful civil society played an important role in shaping the 2005 Amendments to the Patents Act, which contained a number of flexibilities to rein in the impact of pharmaceutical patents.

Thanks to the powerful advocacy of these two constituencies, we see measures such as section 3(d) of the Indian Patents Act, strong compulsory licensing and patent working provisions, parallel import provisions, strong Bolar provisions etc.

Further the spirited defense by our domestic generic majors in patent infringement actions by multinational pharmaceutical companies triggered a strong line of public interest jurisprudence from our Courts. All of this contributed to a relatively more progressive patent regime than present in a number of other developing countries.

Even if domestic industry interest has begun aligning itself more with the interests of Big Pharma, with whom they are partnering in large numbers, the fact that we have an active civil society that continues to challenge problematic patents is a great boon for patients and public health.

Secondly, though not a perfect democracy, India’s law and policy making processes are relatively more transparent than a number of other developing countries. This permits civil society and the wider public, including the academia, to engage with law makers and influence the course of patent policy in India.

Thirdly, the adversarial litigation system and the relative openness of our court processes and procedures, coupled with a vibrant media helped infuse more public interest norms and TRIPS flexibilities within Indian patent decisions.

JMM: How far have measures undertaken by the governments and the judiciaries of developing countries been able to balance public interest and rising exclusionary norms that are coming to characterize global IP regimes?

SB: On the issue of balancing a private patent monopoly interest with the larger public interest, I think a lot more needs to be done. I still can’t get over the fact that despite extensive engagement by the civil society and the public with IP issues, we still have so many Free Trade Agreements being signed! Not to mention the highly opaque TPP agreement which just got signed and will certainly take us back to the dark ages in terms of the gains in a more progressive vision of IP and its place in the changing knowledge economy which relies more on openness and sharing. As a result of these pressures from the Western nations and the corporations that lobby them to take these hard-hearted stances, many countries will be under pressure to desist from deploying their full range of TRIPS flexibilities and will never be able to infuse more public health and public interest concerns within their domestic regimes. So these regimes will remain unbalanced at least for the foreseeable future, I’m afraid.

However, this is not just a simple developed versus developing countries concern. Even within developed countries, there is a lot of rethink on the role of patents in innovation. An increasingly heated discussion on the downside of patents and their deleterious impact on innovation is taking place, thanks to the advent of trolls and various other funny creatures that have cropped up due to an excessive one-sided ratcheting up of IP rights and enforcement.

If these developed country lobbies that are critical of the patent regime get stronger, there might be hope for a more sweeping IP paradigm change the world over! And perhaps a lot more developing countries may be freer to begin experimenting with TRIPS flexibilities.

JMM: The generic drug industry of India is world renowned for making life saving medicines accessible to a large part of the world. This industry had actively opposed the revision to the patent law in 1970 and there was a belief that the interests of the generic drug industry coincided with the interests of Indian patients. In the years since 1970, these industries have experienced tremendous growth and even as there are 50-60 companies making identical generic medicines the market is dominated by 3-4 companies. How far would you say the interests of the generic drug industry overlap with the interests of the Indian patients now?

SB: Great question! The interests between the domestic generic industry and civil society in India clearly overlapped earlier, but unfortunately there is an increasing divergence today. The clearest example of this is Cipla, an Indian Robin Hood of sorts, which fearlessly took on global MNCs and slashed prices of HIV medications and promoted access to affordable medication.

Today they prefer to partner and meekly sign up to problematic licensing arrangements with Big Pharma such as the one they signed with Sovaldi, a notoriously priced Hep C drug by Gilead. Incidentally, this patent was initially challenged in India by Natco and Zydus, but these companies later signed up to partnerships with Gilead, after which they dropped their patent challenges! So much for relying on our generic majors to protect the public health turf and guard our interests! But perhaps that is not their job! For after all, these are “corporations” at the end and the quest for more profits and dividends to satisfy their shareholders is hard wired into their very DNA!

It is this “corporate” sense and sensibility that is driving this increasing partnership between Indian generic companies and foreign multinationals. Originator drug makers want to show a “generic” face to governments that are racing to squeeze public health budgets and cut costs by tendering more generic supplies. Similarly our generic majors want to be the next Teva, and come up with the next big molecule that will help them rake in some serious moolah! Therefore partnerships with big pharmaceutical companies are attractive propositions for generic manufactures to enhance their R&D skill sets. Leading to what I call the “Ardhnarishwar” model, a term of art from Hindu divinity, referring as it does to a godlike figure comprising half man and half woman. In our context, this term roughly translates to: half originator: half generic!

These cozy connects between originator and generic firms may perhaps help explain why there are no compulsory license applications in India, despite Natco’s stellar success with the first license application concerning Bayer’s excessively priced Nexavar. Worryingly, the number of patent oppositions from generic companies against originator patent applications are also coming down.

In all, the gap between generic interests and patient interests are widening. As a result of this there is increasing pressure on civil society to fight the good fight and continue opposing frivolous pharma patents!

JMM: You were part of a team that played a pivotal role in getting through, the amendment to the Indian Copyright Act in relation to the exception that made it legal to convert copyrighted content to forms accessible for the disabled. Has the amendment satisfactorily addressed issues of access that the disabled face in India? Do you think other measures are also required to supplement this?

SB: I think the Indian exception is one of the broadest in the world and needs to be applauded. One of the rare instances where politicians across party lines supported the Amendment after we had advocated for it for more than a year! All thanks to the wonderful Rahul Cherian (unfortunately snatched away from us thanks to a quirk of fate) and his ability to bring a number of disability activists, policy makers and academics together to achieve this phenomenal outcome.

Though the government did not endorse our proposal in its entirety, the final clause that found its way into the Copyright Amendment Act 2012 comes close to what we had suggested.

Unfortunately, despite this stellar statutory provision, I’m not sure how many people on the ground are actively deploying it, at least as third party organizations that work for the benefit of the differently-abled. We need to create more awareness around this provision and its potential for social transformation.

JMM: The informal economy represents a major share of output and employment in middle and low income countries. In these countries the informal economy is a major area of innovation though little is known about what incentives prompt individuals and communities to innovate. What do you think is the role of IP in informal sectors and how has the relative absence of IP in such fields affected knowledge diffusion?

SB: I think the honest answer to this question is that we don’t know because no one has ever really studied this sector! At least in terms of its innovation ecosystem and its dynamics- what drives creativity here, how is it diffused, and how are ideas translated to products? Are people driven by money or by love of their fellow humans or do they create for reputational benefits, as is the case with open source software? Or is there is some mystical magic to all of this, where people believe they are conduits for a higher energy/force such as traditional medicinal healers who don't charge any money for their medicines or healing?

I explored some of these aspects for a short piece I did for WIPO as part of a joint project with other academics and policy makers. We came across anecdotal evidence to suggest that the innovation ecosystem in the informal economy differs in important particulars from that of the formal economy. Of course, a lot more needs to be done to understand this sector. In the meantime, the assumption that blindly transposing IP regimes built largely for the formal sector will somehow unleash creativity within the informal sector is highly misguided! Rather than blithely assuming that the informal sector needs to learn from the formal sector, perhaps we could learn from them?

JMM: The Delhi University Photocopy case which involved a small photocopy shop in Delhi being taken to Delhi High Court for copyright infringement by big publishing houses such as Oxford University Press and Cambridge University Press for photocopying copyrighted content belonging to these presses. The copyrighted content in dispute involved course-packs recommended by the University with excerpts from several books. The Indian Copyright Act’s fair dealing provision incorporated specifically provides an exception for educational use in Section 52(1)(i) and in that sense is wider than fair dealing provisions in some other parts of the world. Yet the Delhi High Court issued a temporary injunction restraining the photocopying shop from selling the (allegedly) infringing course-packs until the case was decided. Leaving aside the outcome of the case, do you think countries like India require explicit guidelines from the Executive that categorically state that photocopying of academic material does not constitute copyright infringement like in Costa Rica to isolate such uses from judicial construction or do you have any other such suggestions that can work well in the Indian context?

SB: This case is currently pending before the Delhi High Court and we are awaiting the court’s decision. So clearly, at this stage, we need to wait for guidance from the courts. To a large majority of us, it is very clear that educational photocopying is exempt under the terms of section 52(1)(i). The publishers of course don’t seem to think so. Therefore I think it would be best for the court to issue the verdict and provide clarity. If the final ruling does not favour educational use in the way that we seek to now advocate, we may need to persuade our lawmakers to then amend the law and make this clearer. I am hoping things don’t come to that and that the judge rules in favour of a robust and strong educational exception, which is what Parliament intended when they crafted the exception.

At this stage however, I don't think Executive fiat will work, particularly since there is a statute in place and a judge is currently interpreting that very statutory provision. More importantly, relying on the Executive is a double edged sword, given the money and lobbying power of the publishing industry, more than amply demonstrated when the last government under Minister Kapil Sibal did a volte face and removed a provision at the last minute that would have fully exempted parallel imports from the scope of copyright infringement.

JMM: Can you shed some light on the term ‘public interest’ since different stakeholders such as governments, pharmaceutical companies, activists and academics are all working in ‘public interest’ and yet their paths towards achieving ‘public interest’ diverge more often than converge?

SB: This is a difficult question to answer! You are right: public interest means different things to different people. At one level, even a big pharmaceutical corporation that takes out a patent can invoke public interest stating that they are inventing the drug in public interest…and that, but for the introduction of the drug, there would be no question of access at all!

Therefore the term itself is a bit relative. But to the extent that it helps, one might need to examine it on the specifics of each case and determine whether the argument being advanced by a party is really furthering personal interest or the interests of the community or society at large. Good faith is a large part of this equation and it can help determine if what one is doing is in larger public interest or private interest.

[1] Shamnad Basheer has been a research fellow at the Institute of Intellectual Property, Tokyo, an International Bar Association scholar and an Inter‑Pacific Bar Association scholar. He is also the founder and managing trustee of Increasing Diversity by Increasing Access (IDIA), a non-profit body that aims to empower under privileged communities by facilitating access to legal knowledge and education to the common man.

For more details visit https://cis-india.org/a2k/blogs/leading-up-to-the-gcip-a-chat-with-shamnad-basheer

IP Meetup #01: Prof. Biswajit Dhar on 'Intellectual Property issues: The Way Forward post Nairobi WTO Ministerial'

sinha — 2016-02-04T13:25:34Z

Prof. Biswajit Dhar will deliver a short talk on what the WTO Nairobi Ministerial means for intellectual property issues, and the way forward, on Sunday, February 7, 2016 at the Centre for Internet & Society's Delhi office, at 4 p.m.

We would like to invite you to the inaugural session of a series of IP focused meetups. The meetups are aimed at bringing folks together working within or interested in IP law, to discuss recent developments with reference to access to knowledge, climate change, health, trade, etc.

The talk will be followed by a round of discussion, after which the floor will be thrown open for other pressing/relevant IP developments.

Please join us for tea and refreshments at 3.30 pm.

Please RSVP by dropping a line at anubha@cis-india.org.

CIS Delhi's location on Google Maps: https://goo.gl/maps/nPKkoQFhRSt

For more details visit https://cis-india.org/a2k/events/ip-meetup-01-prof-biswajit-dhar-on-intellectual-property-issues-the-way-forward-post-nairobi-wto-ministerial

Did Sibal just get arm-twisted by book publishers?

praskrishna — 2012-05-28T06:08:57Z

The publishing industry seems to have got the better of the Human Resources Development Minister Kapil Sibal. Pranesh Prakash's article on parallel importation of books is referred in this article published in FirstPost on May 25, 2012.

The move to open up the market for distribution of international books to competition has been successfully thwarted with the removal of an amendment allowing parallel imports from the Copyright (Amendment) Bill, 2012 that was passed by the Lok Sabha on 22 May.

This despite the Parliamentary Standing Committee supporting the amendment on the grounds that it will increase student access to books.

But it could well only be a temporary victory for the publishing giants with Sibal promising to restore the amendment if the National Council of Applied Economic Research – to which the matter has been referred – should in its report (expected in August) recommend parallel imports.

The draft bill (which included the amendment) had created a furore in publishing circles last year. Parallel imports, claimed leading publishing houses, would destroy the industry. Read Thomas Abraham’s Death of Books published last year in The Hindustan Times.

While that remains open for debate, there is no denying the larger common good of faster and cheaper availability of books to millions of students that parallel imports will make possible. Ordering books may no longer be a click away if Flipkart had to take permission from the Indian copyright owner every time you ordered an international title.

In an article titled Why Parallel Importation of Books should be Allowed published by The Centre for Internet and Society Pranesh Prakash makes a compelling case for ending the distribution monopoly.

Underlying the huge benefit to students, the author says “Currently a large percentage of educational books in India are imported, but with different companies having monopoly rights in importation of different books. If this was opened up to competition, the prices of books would drop, since one would not need to get an authorisation to import books—the licence raj that currently exists would be dismantled—and Indian students will benefit.

“This is especially important for students and for libraries because even when low-priced editions are available, they are often of older editions.”

The article also argues how the business model of hugely popular site such as Flipkart depends on parallel imports to deliver books to its customers at great bargains.

Allowing parallel imports, argues the author, will dismantle distribution monopoly rights and help book publishers, libraries, the print-disabled and consumers in general. He also makes the important distinction between the black market and parallel imports, which is legal.

Offering a point-by-point rebuttal of the publishing industry’s claims of the destructive impact of parallel imports, the author observes “It seems to us that the publishing industry – especially foreign publishers with distributorship in India – don’t want to open themselves up to competition in the distribution market and are opposing this most commendable move.”

He concludes that allowing parallel imports will, in fact, result in an expansion of the reading market.

“It is mainly foreign publishers’ monopoly rights over distribution which will be harmed by this amendment, while Indian publishers, Indian authors, and Indian readers, especially students, will stand to gain. Furthermore, in the long run, even foreign publishers will stand to gain due to market expansion. Any legitimate worries that publishers may have are better dealt with under other laws (such as the Customs Act) and not the Copyright Act.”

Read the original from FirstPost.India

For more details visit https://cis-india.org/news/did-sibal-just-get-arm-twisted-by-book-publishers

January 2011 Bulletin

praskrishna — 2012-07-30T11:25:44Z

Greetings from the Centre for Internet and Society! It gives us immense pleasure to present regular updates on the progress of our research on the mainstream Internet media. In this issue of we bring our latest project updates, news and media coverage:

Researchers@Work

RAW is a multidisciplinary research initiative. CIS believes that in order to understand the contemporary concerns in the field of Internet and society, it is necessary to produce local and contextual accounts of the interaction between the Internet and socio-cultural and geo-political structures. To build original research knowledge base, the RAW programme has been collaborating with different organisations and individuals to focus on its three year thematic of Histories of the Internets in India. Monographs finalised from these projects have been published on the CIS website for public review:

Digital Natives

CIS has interest in developing Digital Identities as a core research area and looks at practices, policies and scholarships in the field to explore relationships between Internet, technology and identity.

Column on Digital Natives

A fortnightly column on ‘Digital Natives’ authored by Nishant Shah is featured in the Sunday Eye, the national edition of Indian Express, Delhi, from 19 September 2010 onwards. The following article was published in the Indian Express recently:

Is That a Friend on Your Wall? [published in the Indian Express on 9 January 2010]

Workshop

The third and final workshop in the Digital Natives with a Cause? research project will take place in Santiago, Chile, from the 8 to 10 February. Open Call and FAQs for the workshop are online:

Blog Entry by Maesey Angelina

Maesy Angelina is a MA candidate on International Development, specializing in Children and Youth Studies at the International Institute of Social Studies, Erasmus University of Rotterdam. She is working on her research on the activism of digital natives under the Hivos-CIS Digital Natives Knowledge Programme. She spent a month at CIS, working on her dissertation, exploring the Blank Noise Project under the Digital Natives with a Cause framework. She writes a series of blog entries. The latest is:

The Digital Tipping Point

Announcement

Rising Voices Seeks Micro-Grant Proposals for Citizen Media Outreach

Accessibility

Estimates of the percentage of the world's population that is disabled vary considerably. But what is certain is that if we count functional disability, then a large proportion of the world's population is disabled in one way or another. At CIS we work to ensure that the digital technologies, which empower disabled people and provide them with independence, are allowed to do so in practice and by the law. To this end, we support web accessibility guidelines, and change in copyright laws that currently disempower the persons with disabilities.

New Blog Entry

Accessibility in Telecommunications

Intellectual Property

Copyright, patents and trademarks are the most important components on the Internet. CIS believes that access to knowledge and culture is essential as it promotes creativity and innovation and bridges the gaps between the developed and developing world positively. Hence, the campaigns for an international treaty on copyright exceptions for print-impaired, advocating against PUPFIP Bill, calls for the WIPO Broadcast Treaty to be restricted to broadcast, questioning the demonization of 'pirates', and supporting endeavours that explore and question the current copyright regime. Our latest endeavour has resulted into these:

New Blog Entry

New Release of IPR Chapter of India-EU Free Trade Agreement

Internet Governance

Although there may not be one centralised authority that rules the Internet, the Internet does not just run by its own volition: for it to operate in a stable and reliable manner, there needs to be in place infrastructure, a functional domain name system, ways to curtail cybercrime across borders, etc. The Tunis Agenda of the second World Summit on the Information Society (WSIS), paragraph 34 defined Internet governance as “the development and application by governments, the private sector and civil society, in their respective roles, of shared principles, norms, rules, decision-making procedures, and programmes that shape the evolution and use of the Internet.” Within the larger field of Internet governance, the Internet Governance Forum (IGF), a multi-stakeholder policy dialogue forum that was instituted by the WSIS processes and that is their only formal outcome, has fast emerged as one of the key institutions. As the definition quoted above indicates, a unique feature of the field of Internet governance is that, unlike many other governance spheres, it does not only involve governments. Historically, not only governments but also the technical community and private players have played a crucial role in the development of the Internet. In the context of the IGF, that role is not only explicitly acknowledged but also institutionalised as the IGF formally brings together governments, private players and civil society actors from all areas of and organisations involved in Internet governance. Moreover, now that the open and egalitarian potential of the Internet is increasingly under attack, this unique nature of the IGF, in addition to its WSIS roots, has made it a prime venue to remind stakeholders in all areas of Internet governance of the commitment they have made earlier to building a “people-centred, inclusive and development-oriented Information Society” (WSIS Geneva Principles, Para 1). CIS involvement in the field of Internet governance has the following shape:

New Blog Entry

Jurisdictional Issues in Cyberspace

Privacy

CIS has undertaken many new and exciting projects. One of these, "Privacy in Asia", is funded by Privacy International (PI), UK and is being completed in collaboration with Society and Action Group. "Privacy in Asia" is a two-year project that commenced on 24 March 2010 and will complete within two years from the commencement date, unless otherwise agreed to by the parties. The project was set up with the objective of raising awareness, sparking civil action and promoting democratic dialogue around privacy challenges and violations in India. In furtherance of these goals it aims to draft and promote an over-arching privacy legislation in India by drawing upon legal and academic resources and consultations with the public.

Apart from "Privacy in Asia" CIS is also participating in the " Privacy and Identity" project, which is funded by the Ford Foundation and managed by the Centre for Study of Culture and Society. The project is a research inquiry into the history of Privacy in India and how it shapes the contemporary debates around technology mediated identity projects like Aadhaar. The "Privacy and Identity" project started in August 2010.

New Blog Entries

Staff Update

Prashant Iyengar is a lawyer and legal scholar who has worked extensively on intellectual property issues particularly focusing on copyright reform and open access. He is a past recipient of an Open Society Institute fellowship for research into Open Information Policy, and has been affiliated with the Alternative Law Forum – a collective of lawyers in Bangalore engaged in human rights practice.

Prashant joined the Centre for Internet and Society as a lead researcher in the Privacy India project recently.

Telecom

The growth in telecommunications in India has been impressive. While the potential for growth and returns exist, a range of issues need to be addressed for this potential to be realized. One aspect is more extensive rural coverage and the second aspect is a countrywide access to broadband which is low at about eight million subscriptions. Both require effective and efficient use of networks and resources, including spectrum. It is imperative to resolve these issues in the common interest of users and service providers. CIS campaigns to facilitate this.

Column

Shyam Ponappa is a Distinguished Fellow at CIS. He writes regularly on Telecom issues in the Business Standard and these articles are mirrored on the CIS website as well.

The policy langurs [published on 6 January 2011]

News & Media Coverage

Civic hackers seek to find their feet in India (Livemint, 24 January 2011) and (IndiaInfoline, January 2011)
A Tweet and a poke from the CEO (Livemint, 24 January 2011)
Clicktivism & a brave new world order (Mail Today, 2 January 2011)
Would it be a unique identity crisis? (Bangalore Mirror, 2 January 2011)
Nel suk dei nativi digitali. Perché gli studenti 2.0 hanno bisogno di una bussola per orientarsi (Il Sore24 ORE, 2 January 2011)
A Refreshing Start! (Verveonline, Volume 19, Issue 1, January, 2011)
Getting Connected (Livemint, January 2011)
Knowledge Warriors (Il Sore24 ORE, January 2011)
Nishant Shah Quoted in Livemint 2011 Tweet-out (Livemint, January 2011)
Digital Natives with a Cause? - Workshop in Chile seeks participants (Bahama islands info, 30 December 2010)
Mothers discuss kids, music, fashions, on Net (The Hindu, 26 December 2010)

Follow us elsewhere

Get short, timely messages from us on Twitter
Follow CIS on identi.ca
Join the CIS group on Facebook
Visit us at www.cis-india.org

Looking forward to hearing from you. Please feel free to write to us for any queries or details required. If you do not wish to receive these emails, please do write to us and we will unsubscribe your mail ID from the mailing list.

For more details visit https://cis-india.org/about/newsletters/january-2011-bulletin

Exhaustion PDF

praskrishna — 2011-10-03T05:16:58Z

file

For more details visit https://cis-india.org/a2k/publications/exhaustion.pdf

admin — 2011-08-24T06:58:10Z

For more details visit https://cis-india.org/a2k/publications/amended-copyright-act.html

At WIPO, Study On Copyright Exceptions Stimulates Broad Discussion With Author

praskrishna — 2014-12-27T14:33:46Z

During the recent meeting of the World Intellectual Property Organization copyright committee, a study was presented on exceptions and limitations to copyright for libraries and archives at the national level. The presentation spurred a full day of discussion about how to ensure libraries can continue to provide an indispensable service, and a substantive exchange with the author.

The article by Catherine Saez was published in Intellectual Property Watch on December 18, 2014

The 29th session of the Standing Committee on Copyright and Related Rights (SCCR) took place from 8-12 December.

On 10 December, Kenneth Crews, former director of the copyright advisory office at Columbia University and now in the private sector, presented an update [pdf] of his 2008 WIPO-commissioned study on Copyright Limitations and Exceptions for Libraries and Archives (IPW, WIPO, 12 December 2014).

The study provided safe ground for broad discussions on the sensitive issue of exceptions and limitations, and the role of WIPO in the issue, with a large number of countries taking the floor to offer comments on the study and its findings, providing specific details on their own legislation and/or asking questions.

Harmonisation

Mexico, for example, asked whether there was a general movement leading to a harmonisation exercise in international copyright law.

Crews answered there was no movement toward an era of harmonisation, but harmonisation could be an answer in the field of limitations and exceptions if it left sufficient policy space to countries.

On the one hand, he said, “there is virtue in harmonisation, in allowing for the predictability of the law … as your business activities move from one country to another.” It makes the law easier to understand, and easier to address some of the issues of cross-border exchange..,” he said.

But the major disadvantage of harmonisation would be the loss of opportunity for countries to “experiment, test new ideas in lawmaking, and to move in some new directions,” he added.

Maybe the answer lies in the middle, said Crews: harmonise the law to a certain extent, “and then leave some of the details to individual countries.”

The European Union delegate remarked that even in an integrated legal system such as the EU, very few exceptions to copyright are mandatory for EU members. Member states “remain free to implement most of the exceptions in the EU legislation in their national systems,” he said.

Implementation Issues

Tunisia stressed the issue of the implementation of copyright exceptions and limitations in developing countries, particularly for libraries. Libraries often are “fearful of the complications,” referring to the exceptions and limitations legislation, and simply do not use it, preferring “what is possible and available,” he said

Crews said it is important to find “the right formula” for drafting a statute that is detailed enough that users are law-abiding citizens, “and at the same time not be so complicated in the structure of the law that it is difficult or impractical for most – even trained professionals – to follow.”

Cross-Border Exchange, TPMs

Brazil said the study sheds light on certain areas where further cooperation would be welcome. The Brazilian delegate said this cooperation could take into account the dynamic evolution of digital technologies and the “growing cross-border cooperation among libraries and archives.”

The delegate said some factors pose concrete problems for cross-border cooperation, such as the fact that some 33 WIPO members do not provide exceptions for libraries, and a higher number of countries do not provide exceptions and limitations that “could be deemed adequate” to address the new challenges created by the digital environment, and limitations and exceptions provided by national legislation vary deeply from country to country.

Now that the research has started with the 2008 report has been updated, we can see that from the universe of the WIPO membership 33 countries still do not provide limitations and exceptions for libraries and archives in their national legislation. A even greater number of WIPO members do not seem to provide limitations and exceptions that could be deemed adequate in order to address the new challenges libraries and archives increasingly face with the emergence of the digital environment

He also said the study states that technological protection measures (TPM) can have a negative impact on countries’ ability to “legitimately implement exceptions and limitations,” which is a “growing concern as countries seek to better regulate and avoid abuses in the use of TPMs.”

Crews said the issue of cross-border activity and the difficulty in cooperation between countries induced by the difference in laws is perhaps one of the most important that WIPO could address. Part of the solution to that problem might be a trusted third party facilitating the transfer of copyrighted works, he said. A sharing of resources should be allowed while protecting the interest of right-holders, he said, “so that they can participate in this and encourage this activity as well.”

Many developing countries keep insisting that the major issue for libraries and archives is the digital era. The digital revolution “has barely begun,” Crews said. “The transformation of technology and the way we communicate and the way we share information is only beginning, so it is important not to prescribe exact details, but … to take some steps to open up the issue,” he said.

Chile also underlined the fact that the study showed a low number of countries providing exceptions for interlibrary loans.

According to Crews, using licences for cross-border activities is limited to the countries which the licence covers. The risks of having licences as a solution to cross-border exchange is that “it leaves the terms to private negotiations,” and many countries might not have laws on licensing.

Licensing Agreements

Sweden said the country has a dual system: “traditional limitations” in the law or preservation and replacement, for example, and a licensing agreement system. The two systems run side-by-side smoothly, he said.

Crews said that the licensing agreement system is not adaptable to all countries. “There are many reasons why it has not been adopted” in some countries, he said, adding, “I would express some concern about requiring it as an international matter.”

The European Union said exceptions and limitations and licences often coexist well. Those licences are often collectively negotiated, said the EU delegate, and sometimes cover broader uses than the exceptions themselves.

Crews said conceptually in the law-making process, countries need to reckon with the relationship not only of the rights of owners and the public rights of use or the copyright exceptions, but also the role of licences, and should they be allowed to override an exception that is in the law.

“That is a tough question,” he said. “It not only goes to the balance of rights,” he added, but lawmakers should decide to what extent an agreement can impede the statute they have worked hard to develop.

Countries Provide Clarifications, New Legislations

Some countries provided clarifications or additions to the study. For example, Saudi Arabia, which was mentioned in the study as one of the countries with no exceptions and limitations, said the 1984 copyright law provides an exception in paragraph 3.

Ecuador said it is working on a substantial reform of its current intellectual property legislation, including exceptions and limitations for people with disabilities, teaching and educational institutions, and libraries and archives.

China said it is undergoing the third revision of its copyright law, and Thailand said in November it passed an amendment to its copyright law, on TPMs, and this amendment includes an exemption for the circumvention of TPM for libraries and archives, educational institutes, and public broadcasting organisations.

Crews said many countries, including the United States and those in the European Union, have exceptions for TPMs, with two basic procedures: an exception that allows the user to “do the act of circumventing the measures to access the content,” and a legal system that calls on the rights holder to provide the means to users to access the content.

The United States said the US Congress is currently reviewing elements of its domestic copyright law, including library-related exceptions and limitations.

In November, the Czech Republic introduced a new amendment to its copyright system, the delegate said, “and the amendment brought a new exception for libraries and archives and for other cultural and educational institutions and for public broadcasters,” enabling them to use orphan works existing in their collection, under specific terms and for certain specific uses.

NGO Questions and Comments

The representative of the Electronic Information for Libraries (eIFL) asked Crews how WIPO, as a United Nations agency with a commitment to enhance developing countries’ participation in the global innovation economy, could support countries to be at the forefront of digital developments. The representative also asked how libraries can accommodate their increasing need to send and receive information across border, within the realm of copyright law.

Many countries have either no exceptions, or have exceptions but very limited applications, which do not cover digital technology, Crews said, adding that WIPO is in a position to shape the next model.

The International Publishers Association said that legislation is one thing but to know whether they are implemented and how they work is another. The representative advised looking at what kind of practice, and also practical initiatives between stakeholders can solve issues at stake.

In many cases, the representative said, issues are solved by alternative means, citing collective licensing, but also solutions bringing together stakeholders, he said, which provide space and flexibility for adaptation and further change. On cross-border document delivery, he said, “It is not true that documents are not crossing continents or crossing borders.” He explained that there are many alternative ways of receiving content across borders.

Crews said he is supportive of alternatives outside of the law, however, they might not be optimal solutions, he said. In particular, it often takes no less time to develop those alternatives than writing law, he said. He added that those alternatives, such as licences, are available only with respect to certain types of works, whereas statues apply to all types of works.

“The private extra-legal systems are not going to solve all of the issues,” said Crews.

The International Federation of Library Associations and Institutions said the United Kingdom reform of its copyright law includes for the first time provisions that prevent contracts and licences from overriding the exceptions and limitations enjoyed by libraries and archives for non-commercial uses.

The Center for Internet and Society (India) asked about the interoperability of limitations and exceptions to allow for easier trans-boundary movement of works. Crews said the trans-border concept seldom appears in library exceptions. Trans-border sometimes is governed by copyright law and sometimes by some other part of national law, such as import and export, he said. Some degree of harmonisation can help with interoperability, he said.

In general terms, and following an intervention by the TransAtlantic Consumer Dialogue mentioning public involvement in the discussions, Crews said, “We are all copyright owners and we are all users of other people’s copyrights to some extent.”

The public does not realise that they are all owners and users of copyrighted works on a daily basis, he said, and they need to become participants in the process.

[Update:]

Knowledge Ecology International asked if the periodical revision of the Berne Convention’s standards for copyright exceptions, which ended in 1971, should be resumed. The KEI representative also asked whether the copyright three-step test contained in the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) applies to specific limitations and exceptions to remedies for infringement, in part III of TRIPS (Enforcement of Intellectual Property Rights).

Crews answered that the three-step test does not apply to the remedies, or other matters. The test is on “its own terms applicable to the limitations and exceptions,” he said.

On the revision on the Berne Convention, Crews said “the answer is yes” but it is a “bigger subject than we are convened here today to discuss.”

KEI also mentioned a Spanish tax which “apparently” is taken on snippets from news organisations and asked if this tax does not violate the two mandatory exceptions in the Berne Convention, which are news of the day, and quotations.

Crews said the issue might be about the interrelationship of copyright with other areas of the law. The Spanish tax mentioned might be relative to a tax law, he said.

For more details visit https://cis-india.org/a2k/news/ip-watch-catherine-saez-december-18-2014-wipo-study-on-copyright-exceptions-stimulates-broad-discussion-with-author

WIPO Delegates Hear Concerns of NGOs on Exceptions for Libraries

praskrishna — 2014-12-27T14:40:05Z

As World Intellectual Property Organization member states launched into discussions on exceptions and limitations to copyright for the benefit of libraries and archives this week, non-governmental organisations were given the opportunity to present their views on the issue. They delivered vibrant, sometimes contradictory, statements on the opportunity for a treaty to preserve exceptions in the international copyright system.

The 26th session of the WIPO Committee on Copyright and Related Rights (SCCR) is taking place from 16-20 December. After two days devoted to the protection of broadcasting organisations, the focus of the next two days has been on a potential international instrument providing exceptions and limitations for libraries and archives.

In their general statements, countries remained faithful to their known positions. Developing countries generally underlined the necessity of achieving a balanced international copyright system and their wish to establish a legally binding instrument, and developed countries were of the view that the existing international copyright system already provides exceptions which could be used by libraries and archives.

The African Group said the countries in the group: find it difficult to set up and understand the existing limitations and exceptions; believe an international legally binding instrument would enable them to understand better how they can provide exceptions and limitations for libraries and archives; and consider that it would provide a mechanism for cross-border exchange for such entities.

The European Union clearly stated that its member countries were not willing to consider a legally binding instrument, and said that exceptions and limitations for libraries and archives did not require the same kind of action that was taken in favour of visually impaired people, referring to the recently adopted Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled.

Developed countries, in particular those in the European Union, did not always stand in favour of a treaty providing exceptions and limitations to copyright for visually impaired people. In the discussion on libraries and archives, developed countries are in favour of sharing national experiences rather than establishing binding new norms.

The United States said it was not in support of norm-setting through treaty provisions. The delegate also said exceptions and limitations should be consistent with other member state obligations, including the so-called three step test.

The notion of three-step test haunted the discussions leading to the Marrakesh Treaty. It stems originally from Article 9(2) of the Berne Convention for the Protection of Literary and Artistic Works (IPW, WIPO, 14 June 2013) and provides conditions for reproduction.

A large number of non-governmental organisations took the floor on 18 December, with stark differences in the approach of the issue of exceptions and limitations to copyright for libraries and archives.

Industry, Creators: International Instrument Superfluous

The industry, such as the International Federation of Film Producers, the Motion Picture Association (MPA), The International Association of Editors (IPA), the International Video Federation (IVF), the Ibero-Latin-American Federation of Performers (FILAIE), and the International Association of Scientific, Technical and Medical Publishers (STM), said that the existing international copyright framework already provides exceptions and limitations, and national legislations can be develop to address issues met by libraries and archives.

FILAIE said that it was in support of the Marrakesh Treaty but that a balance between society and the rights holders should be maintained. The IPA said there is no need for change in the international law, and suggested active legislative assistance to WIPO member states by the secretariat.

IVF concurred and said effective technical assistance in implementing the existing international copyright framework should be a focus of the SCCR.

The International Federation of Reproduction Rights Organisation (IFRRO), in its statement, also said the current international conventions adequately provide for the establishment of relevant library exceptions in national legislation, such as reproduction for preservation proposals. The sharing of experiences ” both in the wording of library and archive exceptions and practical solutions seems to IFRRO to be the most appropriate way to enhance the performance of library and archive services,” the representative said.

“Exceptions and limitations are already part of the toolkit of existing treaties,” the representative for the International Federation of Actors and the International Federations of Musicians said. The international normative framework is providing “a coherent and flexible structure with just recognition of the contribution of creators to the information society and knowledge society, and the establishment of exceptions and other mechanisms providing access for the public to creative content,” he said.

The International Authors Forum concurred with the idea that existing provisions contain sufficient flexibility and asked that WIPO member states “will take advantage of the opportunity provided by the WIPO texts for adequate remuneration for the authors in accordance with the three-step test.”

Libraries, Archive Underline Inadequacies, Support Treaty

Libraries and archivists have a different view of the issue and reported on problems as they experience them on the ground.

The German Library Association cited a new study published by the European Commission (Study on the application of Directive 2001/29/EC on copyright and related rights in the information society [pdf]), and said it “paints a dire picture of the adequacy of the Directive for exceptions for libraries in the European Union in the digital environment.”

In particular, the representative said, it “identifies a lack of cross-border application of exceptions for libraries and a patchwork of national laws as preventing libraries from fulfilling their functions,” in particular presenting cross-border issues, he said.

“There is a high level of international copyright protection,” he said, but “there is no such uniformity of limitations.” To act legally, he said, “library staff has to know about the limitations and exception, not only in their own country, the country of origin, but also in the country of destination of its service.”

The Canadian Library Association said it came to WIPO “to ensure a basic copyright framework is made available to libraries everywhere, and not just in Canada to deliver essential information services, and so that other communities can benefit from the same societal and economic impacts as we have in Canada.”

Even in Canada, the representative said, libraries’ activities are under threat, “as increased restrictions such as technology group protection measures and licensing terms and conditions degrade the environment in which we work, leaving libraries changing our role to simple market access intermediaries for publishers.”

For Electronic Information for Libraries, an international framework establishing basic standards is necessary to avoid increasing inequalities in public knowledge. “We recognise the theory that the international copyright framework provides legal space to ensure meaningful limitations and exceptions,” the representative said, “But when the reality is different, and the gap between countries is widening, intervention is required to ensure the integration of key public interest concepts into the international framework.”

The International Federation of Library Associations and Institutions also underlined the disparity in national exceptions and limitations making it impossible for libraries to “competently fulfil our role as intermediaries between rights holders and users.”

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