Centre for Internet and Society

CIS RTI REQUEST TO DIPP - NUMBER 1 - FEBRUARY, 2015

nehaa — 2015-04-14T17:17:53Z

For more details visit https://cis-india.org/a2k/blogs/cis-rti-request-to-dipp-number-1-february-2015

CIS Intervention on Future Work of the WIPO Advisory Committee on Enforcement

pranesh — 2011-12-01T15:30:38Z

The seventh session of the World Intellectual Property Organization's Advisory Committee on Enforcement (ACE) is being held in Geneva on November 30 and December 1, 2011. Pranesh Prakash intervened during the discussion of future work of the ACE with this comment.

Thank you, Chair.

I just wanted to point out that some of the proposals on future work could be worded better to reflect their true meaning. For instance, one of the proposal calls for control of the problem of "parallel import". However, "parallel importation" is actually allowed by both the TRIPS Agreement and by various other instruments such as the Berne Convention? Indeed, calling “parallel import” a problem is like calling "exceptions and limitations" a problem. This is a view that has been firmly rejected here at WIPO, especially post the adoption of the WIPO Development Agenda. This, quite obviously, could not have been the intention of the proposal framers.

Further, the link between some of the proposals and the Development Agenda could be made clearer. It has been established that the Development Agenda is not just something for the Committee on Development and Intellectual Property (CDIP) to consider, but for all committees to make an integral part of their work.

I would also like to underscore the importance of evidence-based policy-making.

Lastly, I would like to mention that a report has already been commissioned by WIPO on intermediary liability, which was written by Prof. Lilian Edwards and was released in a side-event during SCCR 22, in June 2011.

If the ACE is going ahead with a study or an event, I would suggest that the UN Special Rapporteur on Freedom of Expression and Opinion, who in his report to the UN Human Rights Council dealt in some depth with intermediary liability, be involved or invited.

Thank you.

For more details visit https://cis-india.org/a2k/blogs/ace-7-future-work-cis-intervention

CIS Comments on the Draft National Policy on Electronics

pranesh — 2011-11-01T00:05:32Z

These were the comments submitted by CIS to the request for comments put out by the Department of Information Technology on its draft 'National Policy on Electronics'.

The Department of Information Technology must be commended for taking the initiative to create this policy which aims to reduce India’s dependence on other countries for crucial electronic hardware requirements, and to increase Indian production to such a capacity as to not only serve India’s increasing demand for electronics, but to fulfil foreign demand as well.

We have mainly focused our comments on the implications of the patent regime on this laudable goal.

Technology Transfer

An area that the policy is silent on is technology transfer. In relation to technology, the main bargain embedded in the Trade-Related Intellectual Property Rights (TRIPS) Agreement of the WTO was the increase in the level of protection offered under patent laws of developing countries in exchange for increased transfer of technological know-how from the developed countries. While India has increased patent protection in accordance with the TRIPS Agreement, there has been no commensurate transfer of technology from countries which are currently hubs of electronics know-how.

One important example is China’s policy on transfer of technology along the whole value chain to enable domestic firms to gain technological expertise.

The Association of American Manufacturing notes, “One of the most potent weapons China has used to move up the value chain is forced technology transfer … It is only through the acquisition (rather than internal development) of sophisticated technologies that Chinese companies have been able to rapidly enter and expand in sophisticated industries ….”

This insistence on technology transfer as a national policy has served China well, and their experience should be incorporated into India’s National Policy on Electronics. This is not to say that India should not internally develop our own technological capabilities, but that the Indian government must use the policy space available to it to ensure that acquisition of technological capabilities happens alongside.

Outflow of Foreign Exchange as Royalties Creating Adverse Balance of Payments

The latest data from the World Bank shows that our balance of payments is increasing adversely at an alarming rate, and has now reached over USD 2.38 billion.

Our royalty and licence fee payments have kept on increasing at an astounding rate.

Table: India’s royalty and licence fees payments (current USD)

1991	2006	2007	2008	2009	2010
49,565,208	845,949,436	1,159,824,391	1,528,826,913	1,860,283,808	2,437,500,663

Meanwhile India’s income is gaining slowly and erratically, and in 20100 reached USD 59.6 million.

Table: India’s royalty and licence fees, receipts (current USD)

1991	2006	2007	2008	2009	2010
615,525	13,445,053	30,690,000	27,211,957	38,128,141	59,560,687

This bleeds the Indian economy through a very inefficient outflow of capital. Insisting on transfer of technology is an important component in slowing down this trend.

Linking of Value Chain and Preferential Treatment

One important clarification that is needed in the policy (specifically clause IV.1.3) is that “domestically manufactured electronic products” is intended to mean not those products for which the last part of value has been added in India. This way essentially non-Indian products with Indian branding can be seen to be “domestically manufactured electronic products”. The longer the Indian part of the value chain, the more preference it should be given, and holding by Indian companies of essential patent rights (or the availability of greater number of components of the product under royalty-free, FRAND and RAND licences) could be an important criteria. This will also encourage the transfer of technological know-how to Indian firms.

Preferential Treatment

Some may argue that the provision of preferential treatment to domestic manufacturers contravenes the GATT Agreement, however the GATT Agreement itself provides a usable exception in Article 3(8):

Article III: National Treatment on Internal Taxation and Regulation

8 (a) The provisions of this Article shall not apply to laws, regulations or requirements governing the procurement by governmental agencies of products purchased for governmental purposes and not with a view to commercial resale or with a view to use in the production of goods for commercial sale.

(b) The provisions of this Article shall not prevent the payment of subsidies exclusively to domestic producers, including payments to domestic producers derived from the proceeds of internal taxes or charges applied consistently with the provisions of this Article and subsidies effected through governmental purchases of domestic products.

Thus, by crafting any further regulation under this policy to fit within this exception, India would not fall afoul of its obligations under GATT.

Cybersecurity and Source Code

An important aspect of the cybersecurity that is discussed in clause IV.5 is the ability to validate the lack of malicious code in the electronics used in strategically important infrastructure. For this, manufacturers must be required to provide the source code as part of government tenders in strategically important infrastructure.

Distinction between Innovation and Intellectual Property

The Electronic Development Fund must seek to promote innovation, research and development, and commercialization of products, and must be used to strategically acquire patents. Promotion of patents is not an end in itself, unlike promotion of innovation and ensuring that research and development reaches markets through commercialization. Patents are only a means to an end, and may sometimes be strategically useful, and often stand in way of gaining optimal use of technology by markets due to their monopolistic nature. Thus, it is recommended that “promotion of IP” be dropped from this clause, and instead “promotion of strategic acquirement and use of patents” be substituted in its place.

National Electronics Mission

The National Electronics Mission should not only have industry participation but also participation from academia and civil society.

Funding

The issue of funding for the initiatives outlined in this policy must be addressed as well.

For more details visit https://cis-india.org/internet-governance/comments-draft-national-policy-on-electronics

CI IP Watch List 2009 - India Report

pranesh — 2009-12-09T10:09:52Z

The India Report of the Consumers International IP Watch List 2009, detailing ways in which Indian copyright laws are beneficial and harmful for creators and consumers.

For more details visit https://cis-india.org/publications-automated/cis/pranesh/IP%20Watch%20List%20-%20India%20Report.pdf

CI Global Meeting on A2K

praskrishna — 2011-04-05T04:08:06Z

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

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

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

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

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

CCI allowed to probe Ericsson: FAQs on Ericsson’s disputes with Micromax and Intex

nehaa — 2016-05-01T13:46:52Z

The blog post is an analysis of the recent decision of the Delhi High Court, clarifying that the Competition Commission of India could investigate Ericsson for a violation of competition law. A shorter version of this blog post was published in the Quint on April 30, 2016.

Read the original article published by Quint on April 30 here.

The mobile phone is the sole access point to the internet for about half of India’s population. It has an important role to play in India’s development story, one that is amplified given the central government’s focus on leveraging the internet for better governance. The government has recognized this importance, evidenced through electronics manufacturing incentives and, a stated commitment to ensure ‘universal access to mobile connectivity’. Homegrown brands, including Micromax and Intex, with their affordable, low-cost mobile phones, play an important role in this development story.

In March, 2013, the Swedish multinational, Ericsson, sued Micromax for patent infringement, setting in motion a series of events, with the potential to disturb India’s mobile phone dream. Then, last month, the Delhi High Court (the Court) recognized the authority of the market regulator - the Competition Commission of India (CCI) - to probe Ericsson for its allegedly anticompetitive conduct.

Why did Ericsson sue Micromax?

Ericsson claims that Micromax’s mobile phones infringe its standard essential patents (SEPs) on mobile phone technologies, including 3G and EDGE.

How are some patents identified as SEPs?

International Standard Setting Organizations (SSOs) – such as ETSI or IEEE - recognize international standards. 3G and Wi-Fi are examples of such internationally recognized standards.

According to the SSOs, the determination of standards depends on consensus, driven by their members. After a standard is determined, SEP owners (including Ericsson) voluntarily disclose which of their patents are essential to the determined standard, and, undertake to license these on fair, reasonable and non-discriminatory (FRAND) terms, to any willing licensee.

Does this give rise to legal issues?

This process results in a variety of (well-documented) legal questions, many of which have been raised in India’s SEP litigation, and have been alluded to by the Court in the present judgment. The Court has recognized the potential for SEPs to create dominant positions for their owners, noting that “any technology accepted as a standard would have to be mandatorily followed [emphasis, mine] by all enterprises in the particular industry.”

Some other legal issues around SEPs include the enforceability of FRAND commitments; determining what would constitute ‘fair’, ‘reasonable’ and, ‘non-discriminatory’; the possibility of non/incomplete disclosure by patent owners; and, a refusal by licensees to negotiate FRAND terms in good faith. A related issue that has received comparatively less attention is the essentiality of peripheral or, non standard but essential patents, where there is no obligation to license on FRAND terms.

Have there been other SEP infringement suits filed in India?

Yes. Besides Micromax, Ericsson has also sued other low-cost mobile phone sellers/manufacturers, homegrown and otherwise, for patent infringement. These include Intex, Lava, Gionee, Xia and iBall. In addition, Vringo has also sued ZTE and Asus, separately. [In this article, we will limit ourselves to a discussion on Ericsson’s suits against Micromax and Intex.]

What did Micromax and Intex do after being sued by Ericsson?

Ericsson’s suits were followed by deliberations between the parties (Ericsson and Micromax, and, Ericsson and Intex, independently) and some interim orders by the Court. This litigation is ongoing, and final orders are awaited.

Meanwhile, both Micromax and Intex have pursued a series of other remedies. Intex has filed applications for the revocation of Ericsson’s patents. In addition, Micromax and Intex have each filed separate complaints under India’s Competition Act, 2002 before the CCI, alleging that Ericsson had abused its dominant position. This is a punishable offence under Indian competition law.

Micromax and Intex have both claimed that Ericsson’s royalty rates were excessive. In addition, Micromax has objected to Ericsson’s use of the threat of injunctions and custom seizures, and, has also claimed that Ericsson’s conduct results in a denial of market access for Indian handset manufacturers. Intex has alleged, inter alia, that it was forced into signing an onerous non disclosure agreement by Ericsson; and, that it was forced to negotiate licences without a complete disclosure of its patents by Ericsson.

The CCI, finding there to be a prima facie case in each of the above complaints, ordered the Director General to undertake an investigation into the allegations made by both – Micromax and Intex. These orders were challenged by Ericsson in the Court.

On what grounds did Ericsson challenge the CCI’s orders?

Briefly, Ericsson argued-

(a) that the issue was one of patent law, which barred the applicability of competition law;

(b) that it was not an ‘enterprise’ under the Competition Act, 2002, and, that the CCI was empowered to check anticompetitive conduct only of ‘enterprises’;

(d) that since the disputes between the parties were already being heard in other proceedings before the Court, the CCI could not adjudicate them; and,

(e) that Intex and Micromax were barred from making such allegations. Ericsson opined that since they had challenged its ownership of the SEPs, through revocation of petition applications (filed by Intex), and a denial of infringement claims (by Micromax), they could not now present a complaint premised on it being the owner of those same SEPs.

What did the Court hold?

Rejecting Ericsson’s arguments, the Court held that the CCI did [emphasis, mine] have the jurisdiction to examine if Ericsson’s conduct was anticompetitive, finding it to be an ‘enterprise’ under the Competition Act, 2002. However, the Court was clear that the CCI’s actions could be subject to judicial review by the High Court. It also found that the mere applicability of the Patents Act, 1970, did not bar the applicability of competition law, since the legislations covered distinct fields and served different purposes. Further, it opined that Micromax and Intex were free to explore alternative remedies; neither this pursuit, nor, the pendency of disputes on similar issues before the Court, was a bar to the CCI’s jurisdiction.

Interestingly, while not adjudicating the issue of Ericsson’s abuse of dominance in this particular case, Justice Bakhru, citing its conduct as presented by the other parties said that in some cases, “such conduct, if it is found, was directed in pressuring an implementer to accept non-FRAND terms, would amount to an abuse of dominance.”

What does the judgment mean for India’s homegrown brands?

The judgment is a boost for India’s home grown manufacturers in their battle against global patent holders. However, while it certainly validates the role and powers of India’s young market regulator, it will no doubt be appealed. One also expects multiple appeals over the CCI’s findings in the present and, future similar cases.

It is impossible to predict the outcome of legal proceedings in SEP litigation. Accordingly, Micromax, Intex (and others) would do well to augment their own patent portfolios (either by filing their own patents, or, by acquiring those of other companies). This may create a more level playing field, opening up alternate channels of negotiation, including, cross-licensing. They may also seek access to Ericsson’s SEPs under the compulsory licensing mechanism in India’s patent law.

What does the government have to say?

The Department of Industrial Policy and Promotion has recently released a discussion paper on these issues, inviting comments from stakeholders. It would be unsurprising if the government intends to regulate this space, given the strong implications for not just its flagship Make in India and Digital India programs, but also its foreign policy narrative on protecting IPRs and fostering innovation. Immediate welcome steps from the government would be a final word on the National IPR Policy, and, the adoption of the National Competition Policy, awaited since 2014 and 2011, respectively.

For more details visit https://cis-india.org/a2k/blogs/the-quint-nehaa-chaudhari-april-30-2016-cci-allowed-to-probe-ericsson

CC Salon

radha — 2011-04-05T04:21:24Z

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

Creative Commons Casestudies, Featuring Status.Net

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

Venue: JAAGA

Time: 7.30pm

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

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

ABSTRACT:

Creative Commons Casestudies, Featuring Status.Net

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

http://wiki.creativecommons.org/Salon

BIO:

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

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

VIDEOS

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

Calling Out the BSA on Its BS

pranesh — 2011-09-14T18:16:51Z

The Business Software Alliance (BSA) is trying to pull wool over government officials' eyes by equating software piracy with tax losses. Pranesh Prakash points out how that argument lacks cogency, and that tax losses would be better averted if BSA's constituent companies just decided to pay full taxes in India.

In the past we have covered the Business Software Alliance's lack of rigour in their piracy statistics, and disconnect from their constituent members when it comes to opposing free and open source software. In reaction to the criticism they have received over the years, BSA has finally stopped equating lack of sales with losses. But now, they have started equating software piracy with tax losses.

How IDC thinks tax works

In a report prepared by International Data Corporation (IDC) for the Business Software Alliance (BSA), they note:

Substantial value in form of potential industry and tax revenues is lost to software piracy: The situation in India is not healthy with a software piracy rate of 65% in 2009 (more than six out of ten PC software programs installed in 2009 were not paid for). Only one-third of the overall PC software revenues are captured by the industry incumbents and the rest are lost to software piracy. Most of the unlicensed software use occurs in otherwise legal businesses installing the programs on more PCs than allowed by the licenses they have paid for. Consequently, in 2009, the state exchequer tax receipts loss was roughly US$866 million at the current piracy and employment levels, as the industry lost its otherwise legitimate share of revenues to piracy.

For this to be true, there must be two assumptions that are satisfied. First, those who are pirating software must not spend the money that they save by doing so on any other taxable activity. Second, the companies that would get the money if the software weren't pirated must pay the Indian government taxes. As we'll see, neither of these two assumptions are warranted.

The BSA-IDC report reasons as follows: Pirates don't pay taxes on the illegal software that they sell, so that is tax evasion and consequently a tax loss. It states:

Higher demand for legal software will result in higher flow of license volume through the supply chain, resulting in increase in volume of business transactions. Each transaction adds a certain percentage of the deal or value added to the state exchequer's coffers in the form of indirect tax revenue[...] Increase in demand will also result in increased employment. Consequently, revenues from direct taxes will be increased for the government, as employees join newly created high-paying jobs.

How tax actually works

That reasoning is flawed. The majority of software piracy in India happens through two methods: violation of software licence terms by using the software on more computers than it is licensed for; and pre-loading of illegal software by computer sellers. Those 'computer seller' pirates do not sell the software separately, but bundle it with the computer as an additional service. In other words, they don't charge for it in the first place. So, quite clearly, there is no tax evasion.

Despite there being no tax evasion, there is the possibility of tax loss for the state. That would happen when instead of doing taxable activity A with with their money, they do non-taxable activity B. Putting money in special government bonds instead of spending it on software, for instance, is one such instance. However, that is a strange, unwarranted assumption. People don't always put the money that they don't spend on software into government bonds. It is a much more reasonable assumption that people would spend that money on other consumables, like food or other such tangible commodities.

Lastly, there is the unwarranted assumption that increase in demand for legal software increases employment. In fact, it is a much more reasonable assumption that increase in piracy increases employment in case of developing countries. Printing ("DTP") shops use pirated versions of Photoshop, CorelDraw and InDesign, computer education centres use pirated versions of Microsoft Windows, offices use pirated versions of Microsoft Word and Excel. If these didn't teach their employees the use of pirated software, millions of people would lose their jobs. All of these employees pay direct taxes. There is no analysis in the BSA-IDC report that accounts for this, treating all these millions of people as non-existent for purposes of their analysis.

Increasing tax: Make MNC software companies pay full taxes

Thus, there is no real tax loss to the government if the money that would have been spent on commercial software was instead spent on some other commodity. Indeed, there might even be an increase in tax collection because software companies, including leading ones such as Microsoft, are much more likely to avoid taxes than companies that deal in tangible commodities. There are well-known routes of decreasing tax liability for intangible goods such as software. Software companies normally state that they license software instead of selling it (as this suits them on issues such as customs duties), but when it comes to income tax, they try to paint the transaction as a sale of a product. (Microsoft, for instance claims that its earnings in India are 'business income' and not 'royalties' and hence is exempt under the Double Taxation Avoidance Agreement between India and the USA.) A company that deals with tangible commodities has no such 'licensing vs. sale' loop-hole that they can try to exploit. Further, many software companies are located in special economic zones that are "software exporting zones", and hence get large tax deductions.

In India, for instance, Microsoft is resisting payment of income tax for by routing all licensing to distributors in India through a shell company in Singapore and holding that Microsoft India had no income tax liabilities. Microsoft has been fined Rs. 2 crore because it tried to separate the importing of software into India from the (more valuable) granting of licences to customers and pay only nominal customs duties on the former and under-declaring the value of the latter as zero. From nine Microsoft dealers a total of Rs 255 crore was collected as tax. Of the roughly Rs. 4000 crores loss that the BSA-IDC report claims, around 6% is realizable from just a single tax (customs duties) from 9 companies dealing in the products of one company. If we multiply this by all taxes (income tax included) amongst all the dealers of all the constituent companies of BSA, then the Indian government might recover more from taxes than is supposedly lost to piracy!

Elsewhere around the globe, the 'Double Irish' arrangement, the 'Dutch Sandwich' route and other such are used by MNC software companies to evade taxes. Just as there are tax havens, there are some IPR havens that cater to companies selling/licensing software and other such intangible commodities.

If only these software companies were to stop evading taxes in the countries in which they sell software, then the government's tax collections would automatically increase.

Final idiocies, and conclusion

In the BSA-IDC report, they write: "Assessing the relationship between software piracy rates and UN Human Development Index (a measure of average achievements in a country in three basic dimensions of human development) suggests that countries with greater rates of software piracy tend to have lower levels of economic development. This further strengthens the hypothesis that IP rights (IPR) enforcement increases economic activity.".

This is as sensible as saying "countries with greater rates of industrial espionage (such as France, Germany, and USA) tend to have higher levels of economic development" strengthens the hypothesis that industrial espionage increases economic development. While it is empirically true that most countries with greater rates of software piracy have lower levels of economic development, it is equally true that countries with lower levels of economic development (being countries with poorer populations) have more software piracy. It is equally true that software piracy decreases if the cost of software decreases, as shown by the more carefully-conducted analysis in the Media Piracy in Emerging Economies report.

To use greater software piracy and lower economic development as evidence of the causal link between IPR enforcement and economic activity is to betray absolute ignorance about both economics and logic.

The startlingly poor level of analysis of the BSA-IDC report leaves no question that the conclusions were arrived at independently of the analysis. Such misleading analysis is worse than trash: it is downright dangerous as an instrument of policy setting.

To increase tax receipts, the government may as well start by making BSA's constituent companies pay all the taxes they owe.

For more details visit https://cis-india.org/a2k/blogs/calling-out-the-bsa-on-bs

Call to increase awareness of intellectual property rights

praskrishna — 2011-04-02T10:47:26Z

We need more knowledge on IPR itself, says IT Secretary

There is an imperative need to focus on intellectual property rights issues, provide more information to the public on what constitutes IPR and how to deal with violations, Information Technology secretary PWC Davidar said.

“We need more knowledge on IPR itself. Very few people are aware of what IPR is and therefore unaware that they are violating someone's IPR, for instance, even when they copy for an essay,” Mr. Davidar said at the inaugural of the seminar on Access to Knowledge. It was organised by the Consumers Association of India and Consumers International, Kuala Lumpur in association with the Madras Library Association.

Assignments

Even when it came to assignments in schools, colleges and universities, sometimes Ph.D. theses as well, one hears of people borrowing from others' work, Mr. Davidar said.

This kind of thing was very tightly controlled in the West, where software was used to pick up plagiarism. However, that was not so strictly enforced in India, he added.

Debate

Mr. Davidar also highlighted the debate on IPR in areas such as environment or health where lives could be at stake.

“When it comes to academics, you know clearly that you should not borrow without acknowledgement. It is not as simple in situations where a solution can save several lives or prevent destruction of property. Such technologies should be shared, without being safeguarded in the corporate domain by IPR,” he added.

R. Desikan, founder, CAI, provided a brief report on the activities of the organisation and stressed the need to increase awareness of consumer rights, and IPR. Pranesh Prakash, from Centre for Internet and Society, Bangalore, stressing the need to provide access to knowledge in the context of IPR, also hinted at the negative aspects that patents might have on consumers.

Knowledge economy

Former Chief Vigilance Commissioner N. Vittal said consumers were living in a knowledge economy.

Pointing to the example of Japan that worked backwards on creating their own process with an end product (already invented in the U.S.) in mind, he advised that India too should examine whether it could benefit from such reverse engineering.

“Knowledge only grows with distribution,” he added, alluding to the teaching of the Upanishads.

Read the original article in the Hindu

For more details visit https://cis-india.org/news/increase-awareness-of-ipr

Call for Participation: Global Congress on Intellectual Property and the Public Interest

sinha — 2015-06-24T16:11:07Z

We are pleased to announce the call for participation for the fourth edition of the Global Congress on Intellectual Property and the Public Interest (“Global Congress”), being hosted at New Delhi from December 15 to 17, 2015.

The theme for this year’s Congress will be “Three Decades of Openness; Two Decades of TRIPS.” We are now inviting applications to participate in the Congress, including session participation and presentations. We are also welcoming proposals for panels and workshops.

The application form is available now at [http://form.jotformpro.com/form/50854976184973?] Please note that this form is for application purposes, and does not amount to confirmation of participation. The registrations for the plenary sessions, which are open to the public, will open closer to the date of the Global Congress.

Deadlines

August 1st: Priority Deadline for Applications- Applicants will be considered on a rolling basis, with applications made by August 1st being given first consideration. Applications after August 1st to receive travel assistance will be considered only under exceptional circumstances (these details will be collected in a subsequent form).

November 1st: All applications for session participation and paper submissions will close on November 1st.

Application Information

For applications to participate/host: Applications to present or host workshops shall be considered based on the proposals to be submitted in the form.

For applications to attend sessions: Applications to attend sessions as discussants will be considered based on the statement of purpose and/or any other relevant information provided by the applicant.

Limited travel grants to cover accommodation and/or travel to the Congress will be available, with priority to those from developing countries.

Background, Theme and Expected Outcomes

The Global Congress on Intellectual Property and the Public Interest is the most significant event on the calendar for scholars and policy advocates working on intellectual property from a public interest perspective. By sharing their research and strategies, the network of experts and activists supported by the Global Congress are empowered to put forward a positive agenda for policy reform. The Global Congress began in Washington D.C. in 2011, moved to Rio de Janeiro in 2012, and was held in Cape Town in 2013. The fourth Global Congress will now be held in New Delhi, in December 2015. The event would be the largest convening of public interest-oriented intellectual property practitioners ever held in Asia, and would help link in the world's most populous region to these global debates around how intellectual property policy can best serve the public interest.

The fourth edition of the Global Congress brings research, civil society, industry and regulatory and policy-making communities together for active, intense engagement on key public-interest intellectual property issues. Opportunities for these groups to interact are rare but valuable; and have been proven to lead to successful policy outcomes. The 4^th edition of the Congress, slated to be held in December, 2015 in New Delhi seeks to be one such opportunity.

The theme for the 2015 Congress is Three Decades of Openness; Two Decades of TRIPS-coming at a pivotal time for reflection, revision, and further strategizing. Specifically, the 2015 Congress seeks to produce three outcomes- first, the mobilization of existing scholarly research directly into the hands of civil society advocates, business leaders and policy makers, leading to evidence-based policies and practices; second, the collaborative identification of urgent, global and local research priorities and generation of a joint research/advocacy agenda; and third, the solidification of an inter-disciplinary, cross-sector and global networked community of experts focused on public interest aspects of IP policy and practice.

Participation Opportunities

Discussions at the Global Congress will be carried out in the form of plenary sessions, thematic tracks, cross-track sessions, and the room of scholars. Participation is invited for the thematic track sessions, cross-track sessions and the room of scholars.

The thematic tracks at the Global Congress are: 1) Openness, 2) Access to Medicines, 3) User Rights, 4) IP and Development. Cross-track sessions will feature research that cuts across tracks in order to facilitate engagement between tracks on themes of mutual interest.

The Room of Scholars will feature presentations of research outputs such as draft works or white papers that may not fit directly within the thematic tracks but fall within the overall theme of the Global Congress.

Participation could be in the form of presenting / discussing conference papers or policy briefs, or by conducting workshops where they may share their own work and solicit feedback from peers, during the aforementioned sessions.

The application form for participation is available now at http://form.jotformpro.com/form/50854976184973?. Please forward this invitation to interested lists and individuals. For more information or questions, you may contact global-congress@cis-india.org.

Organisation

The 4^th Global Congress on Intellectual Property and Public Interest, is being organised in cooperation with National Law University, Delhi, by the American Assembly at Columbia University, the Centre for Internet and Society, Open A.I.R., and the Program on Information Justice and Intellectual Property at American University Washington College of Law.

For more details visit https://cis-india.org/a2k/blogs/call-for-participation-global-congress-on-intellectual-property-and-the-public-interest

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

Admin — 2018-10-16T13:55:10Z

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

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

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

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

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

Broadcasters: Current Protection not Sufficient

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

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

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

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

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

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

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

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

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

Beware of Large Internet Corporations Morphing

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

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

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

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

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

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

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

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

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

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

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

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

50 Years Protection ‘Outrageous’

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

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

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

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

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

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

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

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

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

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

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

Broadcast Treaty: An Overview

nehaa — 2014-03-20T09:55:45Z

In this blog post, CIS intern Varun Baliga, a third year law student at NALSAR University of Law, Hyderabad, presents an overview of the Treaty for the Protection of Broadcasting Organizations, currently being deliberated by nations at the World Intellectual Property Organization (WIPO) Standing Committee on Copyright and Related Rights (SCCR).

Negotiations on the Treaty for the Protection of Broadcasting Organizations (“Broadcast Treaty”) (draft circulated for discussion at the 26^th SCCR available here- http://www.wipo.int/edocs/mdocs/copyright/en/sccr_26/sccr_26_6.pdf) were initiated for the purpose of protecting such organizations from signal piracy. For a broadcasting organization, their signal is the prime source of revenue. Therefore, state intervention at the international level was required to quell the transnational issue of signal piracy. Moves by a majority of nations indicated that the mood was in favour of drafting a treaty that would codify certain protections for broadcasting organizations in the form of rights. The obvious concerns that arose were the nature and scope of those rights. Overbroad rights often posed significant obstacles to the free flow of information. A number of developing nations were concerned that the latest move was a further entrenchment of the colonization of information and knowledge. It was in the common interest to balance the dire need to combat signal piracy in order to maintain the integrity of the business of broadcasting organizations while at the same time ensuring that it doesn’t come at the cost of the access to the information itself.

From the perspective of the Global South, the focus of the text was Article that protected possible action that states may take in the public interest. The South was interested in elevating the status of the public interest to that of an aspiration that states must seek to live up to. So, public interest must continue to guide even negotiations that seek to protect the interests of multinational corporations. The Broadcast Treaty also protects against the restriction of free flow of technology and access to the same in Article 4. One of the sticking points of negotiations has been the nature and scope of the protection that is to be offered to broadcasting organizations. India, among other countries, has advocated for a strict signal-based approach to the protection. It opines that protection should be offered to the signal alone and not the subject matter that is carried by the signal. Many nations of the developed world look at this as a distinction without a difference. There has also been a strong push from the South to limit protection only to transmission and not cover the retransmission of signals within the aegis of the treaty. Another cleavage of opinion has been on definitional concerns that have plagued the negotiations ever since they commenced. Institutions such as Knowledge Ecology International among others have noted with caution the wide meanings conferred on beneficiaries of protection. Understanding broadcasting organizations and cablecasting organizations in an all-encompassing way would result in not just the proliferation of rights, thereby harming the sanctity associated with the concept, but would also lead to the manifestation of those rights on contexts that harm free speech and access to information. For example, the protection of the rights of broadcasting organizations on the internet could play out in a pernicious fashion, particularly since the internet space has long been one of open and free access.

Many countries, including India, Brazil and South Africa, have questioned the need for the treaty in the first place. Adopting this position doesn’t mean a devaluation of the harms of signal piracy. On the other hand, questions have been raised as to whether the creation of rights is the most effective, or even the right, solution. The harms of this problem-solution mismatch mean that the stakes are high; therefore, subjecting this treaty to critical scrutiny assumes great importance.

India, South Africa and the entire bloc has also argued against the inclusion of webcasts and netcasts in the spectrum of rights being conferred on broadcasting organizations. Broadcasting and webcasting work on completely different investment models and don’t work on the same kind of infrastructure. For that and other speech and access reasons, protection should be given, it was argued, only for traditional transmission of the signal. Consensus was ultimately achieved with the US agreeing that the focus of the treaty should be “true signal piracy, real-time transmission of the signal to the public without authorization".[1]

The Centre for Internet and Society has expressed its reservations about the treaty in no uncertain terms in the past. The underlying philosophy has consistently been a robust signal-based approach to the treaty. A consequence of this would be no term of protection for signals since the rights would exist only for infinitesimal amount of time that the signal does. The absence of a term of protection would also preclude concerns about harm to free flow of information from creeping up. CIS noted that there was a need for greater clarity on the meaning of ‘mere retransmissions’ which would not be granted any rights in the April 2007 Non-Paper circulated for the delegates. When the transmission is over a computer networks, there should be inkling of doubt as to the exclusion of both transmission and retransmission from the ambit of protection. Finally, it has called for a different structure of limitations and exceptions to be conceptualized for the treaty. A simplistic transplantation of the Berne Convention provisions would be ignorant of the particular needs of broadcasting. It is critical that the limitations and exceptions be actualized in a manner that is enabling and empowering for the most vulnerable stakeholders.

[1]. http://keionline.org/node/1701

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

Beyond Property Rights: Thinking About Moral Definitions of Openness

praskrishna — 2013-08-07T09:43:35Z

It is hard for Westerners to realize just how much we take for granted about intellectual property, and in particular, how much the property owner’s perspective--be it a corporation, government or creative artist--is embedded in our view of the world as the natural order of things.

This blog post by David Eaves was published in TECH President on August 6, 2013. Sunil Abraham is quoted.

While sharing and copying technologies are disrupting some of the ways we understanding “content,” when you visit a non-Western country like India, the spectrum of choices become broader. There is less timidity wrestling with questions like: should poor farmers pay inflated prices for patented genetically-engineered seeds? How long should patents be given for life-saving medicines that cost more than many make in a year? Should Indian universities spend millions on academic journals and articles? In the United States or other rich countries we may weigh both sides of these questions--the rights of the owner vs. the moral rights of the user--but there’s no question people elsewhere, such as in India, weigh them different given the questions of life and death or of poverty and development.

Consequently, conversations about open knowledge outside the supposedly settled lands of the “rich” often stretch beyond permission-based “fair use” and “creative commons” approaches. There is a desire to explore potential moral rights to use “content” in addition to just property rights that may be granted under statutes.

A couple of months ago I sat down in Bangalore with Sunil Abraham, the founder and executive director of the Center for Internet & Society (CIS) there, to talk about the center, and his views on the role of technology and openness in politics and society. One part of our conversation led to this WeGov column on “I Paid a Bribe” and the challenge of fighting corruption in India using technology. Here I want to reflect further on how Sunil and his counterparts may be radically challenging how we should think about open information more generally.

As we talked, Sunil outlined how people and organizations were using “open” methodologies to advance social movements or create counter power. To explain his view he sketched out the following “map” of IP rights and freedoms to show people use and view the different “permissions” (some legal, some illegal).

As a high-level overview this map offers a general list of the tools at the disposal of citizens interested in playing with intellectual property, particularly as they pursue social justice issues.

At the top of the chart are the various forms of “permissions” that a property owner may (or may not) grant you. Thus at the far left sits the most restrictive IP regime and, as you move right, the user gets more and more freedoms (or, if you take the perspective of property owners, property loses more and more of its formal legal protections and a different notion, of “moral rights,” arises).

The second row divides the permissions and the actors along what Sunil believes is one of the most important permissions - the requirement to attribute (or the freedom not to).

Finally, at the bottom, I’ve placed various actors along the spectrum to both show where they might be positioned in the access debate and/or how they use these tools to advance their aims. Thus someone like Lawrence Lessig, the intellectual father of Creative Commons, might support many uses of information as long as the owner gives permission; whereas groups like the Pirate Party or the Yes Men edge further out into uses that may not appear legitimate to a property owner.

Particularly interesting is Sunil’s decision to include non-legal “permissions” such as ignoring the property holders rights in his spectrum of openness. He sees this as the position of the Pirate Party, which he suggests advocates that people should have the right to do what they want with intellectual property even if they don’t have permission, with the exception, interestingly, of ignoring attribution.

He also includes two even more radical “permissions” – counterfeiting, that is claiming that you created the work – and false attribution – assigning your work to someone else! Sunil sees Anonymous as often using the former and the Yes Men as using the latter. “They (the Yes Men) are playing with the attribution layer,” he says, by conducting actions such as their fake DOW press release about the Bhopal disaster.

Pushing the identity envelope
To Sunil, the big dividing line is less about legal vs. illegal but around this issue of attribution. “This is the most exciting area because this (the non-attribution area) is where you escape surveillance,” he declares.

“All the modern day regulation over IP is trying to pin an individual against their actions and then trying to attach responsibility so as to prosecute them,” Sunil says. “All that is circumvented when you play with the attribution layer.”

This matters a great deal for individuals and organizations trying to create counter power – particularly against the state or large corporate interests. In this regard Sunil is actually linking the tools (or permissions) along the open spectrum to civil disobedience. Of course, such “permissions” are also used by states all the time, such as pretending that a covert action was the responsibility of someone else, or simply denying responsibility for some action.

This, in turn, has some interesting implications.

The first is, that it allows Sunil to weave together a number of groups that might not normally be seen as connected because he can map their strategies or tools against a common axis. Thus Lawrence Lessig, the Yes Man, companies and journalists can all be organized based on what “permissions” they believe are legitimate. For example, journalists and new publishers are often seen as fairly pro-copyright (it protects their work) but they are quite happy to ignore the proprietary rights of a government or corporate document and publish its contents, if they believe that action is in the public interest. Hence their position on the spectrum as “willing to ignore proprietary rights.” (Leave aside government arguments that publishing such documents is “stealing” when, at least in the US, they are technically already not subject to copyright.) However, a credible newspaper or journalist would never knowingly attribute a quote or document to a different person. Attribution remains sacred, even when legal proprietary rights are not.

It also tests the notions of who is actually an IP radical. As Sunil notes: “The more you move to the right the more radical you are. Because everywhere on the left you actually have to educate people about the law, which is currently unfair to the user, before you even introduce them to the alternatives. You aren’t even challenging the injustice in the law! On the right you are operating at a level that is liberated from identity and accountability. You are hacking identity.”

Sunil is thus justifying how the use of “illegal” permissions may actually be a form of civil disobedience that can be recognized as legitimate. This is something journalists confront regularly as well. Many are willing to publish “illegally” obtained leaked documents when they believe that may serve the public good. What is ethical is not always legal and so there position on this chart is more nuanced than one might initially suspect.

This is not to say that Sunil doesn’t believe in the effectiveness of legal approaches. For him this map represents a more complete range of choices an activist can choose from as they try to develop their strategy.

“So what you do, and the specific change you are trying to precipitate, you’ll have to determine what strategy you need. Sometimes working within the left hand group is sufficient. Having a non-derivative, non-commercial license to enable students to access academic works, in India, is good enough… But then, to do what the Yes Men did to DOW Chemicals? You have to be over on the right side.”

For more details visit https://cis-india.org/news/tech-president-august-6-2013-david-eaves-beyond-property-rights-thinking-about-moral-definitions-openness

Better intellectual property values luring Indian startups abroad

praskrishna — 2015-04-16T01:49:02Z

Prime Minister Narendra Modi says Make in India. But anyone who wants to, finds that their intellectual property is valued much more if the patent is filed in the US, or anywhere else, but India.

The article by Evelyn Fok and Varun Aggarwal was published in the Economic Times on April 10, 2015. Sunil Abraham is quoted.

Take the case of BITS Pilani graduate Sriram Kanuni, for instance, who decided to come back to India after spending 12 years with SAP in Germany. His family thought he was out of his mind, but he wanted to work for India and primarily serve Indian clients.

His core vision hasn't wavered five years down the line, but he has been forced to move a large part of his company's intellectual property (IP) to the US, just to get a better valuation for his next round of funding. And his is not an isolated case. "Global investors seem to value companies with patents in the US much higher. Therefore, it makes more sense to shift patents out of India, in case you're looking to raise money or exit the company," Kanuni, who is the CEO and co-founder of Arteria Technologies, said. Major Indian startups such as Flipkart, Myntra and ZipDial, which have either raised over a billion dollars or exited, already have their IPs outside the country. Experts say that is one of the reasons that attracted investors.

"If a company with its IP in India is acquired by an international firm, and post acquisition the buyer wishes to transfer the IP to a different jurisdiction, such transfer would need to be at a fair value decided by the government and the company is taxed at the rate of 34% on that," one of the bankers who was part of a large exit told ET.

"For tech-centric companies where the value of IP would comprise over 70-80% of their value, such high taxes can possibly make them unattractive for potential investors," they added. With better valuation and exits in mind, startups are moving out their innovation to countries such as Singapore and the US, leaving behind very little intellectual property that the country can proudly call its own.

"You would want to incorporate somewhere with a respected reputation for maintaining legal protection when it comes to copyright and trademarks, especially with global licensees or partners," said Sharad Devarajan, co-founder and CEO of character entertainment company Graphic India, which is incorporated in Singapore. "Incorporation in a country like the US where potential for M&A is higher, especially for core technology startups, will generally make it more attractive to potential buyers as it avoids a lot of legal and financial paperwork," said Brij Bhasin, India investment lead of Japanese venture capital firm Rebright Partners.

Investor concerns over IP are well founded. "Indian courts aren't uniform when it comes to developing jurisprudence around copyright and patent infringement," explained Sunil Abraham, executive director of Bengaluru based research organization Centre for Internet and Society.

"There is a high chance that a judge who doesn't understand the details would give an injunction. Then the loss of six months, etc., can be quite expensive, because in six months' time your competitor might eat into all of your market," he said.

For more details visit https://cis-india.org/a2k/news/economic-times-april-10-2015-evelyn-fok-varun-aggarwal-better-intellectual-property-values-luring-indian-startups-abroad

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