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The 2010 Special 301 Report Is More of the Same, Slightly Less Shrill
https://cis-india.org/a2k/blogs/2010-special-301
<b>Pranesh Prakash examines the numerous flaws in the Special 301 from the Indian perspective, to come to the conclusion that the Indian government should openly refuse to acknowledge such a flawed report. He notes that the Consumers International survey, to which CIS contributed the India report, serves as an effective counter to the Special 301 report.</b>
<h1>Special 301 Report: Unbalanced Hypocrisy</h1>
<p>The United States Trade Representative has put yet another edition of the Special 301 report which details the copyright law and policy wrongdoings of the US's trading partners. Jeremy Malcolm of Consumers International notes that the report this year claims to be "well-balanced assessment of intellectual property protection and enforcement ... taking into account diverse factors", but:</p>
<blockquote>
<p>[I]n fact, the report largely continues to be very one-sided. As in previous editions, it lambasts developing countries for failing to meet unrealistically stringent standards of IP protection that exceed their obligations under international law.</p>
</blockquote>
<p>More the report changes, <a href="http://cis-india.org/advocacy/ipr/blog/consumers-international-ip-watch-list-2009">the more it stays the same</a>. <a href="http://www.michaelgeist.ca/content/view/4684/195/">Despite having wider consultations</a> than just the International Intellectual Property Alliance (IIPA, consisting of US-based IP-maximalist lobbyists like the Motion Picture Association of America, Recording Industry Association of America, National Music Publishers Association, Association of American Publishers, and Business Software Alliance) and the Pharmaceutical Research and Manufacturers of America (PhRMA, consisting of US-based pharma multinationals), things haven't really changed much in terms of the shoddiness of the Special 301 report.</p>
<h1>India and the 2010 Special 301 Report</h1>
<p>The Special 301 report for 2010 contains the following assessment of India:</p>
<blockquote>
<p>India will remain on the Priority Watch List in 2010. India continues to make gradual progress on efforts to improve its legislative, administrative, and enforcement infrastructure for IPR. India has made incremental improvements on enforcement, and its IP offices continued to pursue promising modernization efforts. Among other steps, the United States is encouraged by the Indian government’s consideration of possible trademark law amendments that would facilitate India’s accession to the Madrid Protocol. The United States encourages the continuation of efforts to reduce patent application backlogs and streamline patent opposition proceedings. Some industries report improved engagement and commitment from enforcement officials on key enforcement challenges such as optical disc and book piracy. However, concerns remain over India’s inadequate legal framework and ineffective enforcement. Piracy and counterfeiting, including the counterfeiting of medicines, remains widespread and India’s enforcement regime remains ineffective at addressing this problem. Amendments are needed to bring India’s copyright law in line with international standards, including by implementing the provisions of the WIPO Internet Treaties. Additionally, a law designed to address the unauthorized manufacture and distribution of optical discs remains in draft form and should be enacted in the near term. The United States continues to urge India to improve its IPR regime by providing stronger protection for patents. One concern in this regard is a provision in India’s Patent Law that prohibits patents on certain chemical forms absent a showing of increased efficacy. While the full import of this provision remains unclear, it appears to limit the patentability of potentially beneficial innovations, such as temperature-stable forms of a drug or new means of drug delivery. The United States also encourages India to provide protection against unfair commercial use, as well as unauthorized disclosure, of undisclosed test or other data generated to obtain marketing approval for pharmaceutical and agricultural chemical products. The United States encourages India to improve its criminal enforcement regime by providing for expeditious judicial disposition of IPR infringement cases as well as deterrent sentences, and to change the perception that IPR offenses are low priority crimes. The United States urges India to strengthen its IPR regime and will continue to work with India on these issues in the coming year. </p>
</blockquote>
<p>This short dismissal of the Indian IPR regime, and subsequent classification of India as a "Priority Watch List" country reveals the great many problems with the Special 301.</p>
<h2>On Copyrights</h2>
<ol>
<li>
<p>The report notes that there are "concerns over India's inadequate legal framework and ineffective enforcement". However, nowhere does it bother to point out precisely <em>how</em> India's legal framework is inadequate, and how this is negatively affecting authors and creators, consumers, or even the industry groups (MPAA, RIAA, BSA, etc.) that give input to the USTR via the IPAA. Nor does it acknowledge the well-publicised fact that the statistics put out by these bodies have time and again <a href="http://www.cis-india.org/a2k/blog/fallacies-lies-and-video-pirates">proven to be wrong</a>:</p>
</li>
<li>
<p>Apart from this bald allegation which has not backing, there is a bald statement about India needing to bring its copyright law "in line with international standards" including "the WIPO Internet Treaties". The WIPO Internet Treaties given that more than half the countries of the world are not signatories to either of the WIPO Internet Treaties (namely the WIPO Copyright Treaty and the WIPO Performance and Phonograms Treaty), calling them 'international standards' is suspect. That apart, both those treaties are TRIPS-plus treaties (requiring protections greater than the already-high standards of the TRIPS Agreement). India has not signed either of them. It should not be obligated to do so. Indeed, Ruth Okediji, a noted copyright scholar, <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1433848">states</a>:</p>
</li>
</ol>
<blockquote>
<p>Consistent with their predecessors, the WIPO Internet Treaties marginalize collaborative forms of creative engagement with which citizens in the global South have long identified and continue in the tradition of assuming that copyright’s most enduring cannons are culturally neutral. [...] The Treaties do not provide a meaningful basis for a harmonized approach to encourage new creative forms in much the same way the Berne Convention fell short of embracing diversity in patterns and modes of authorial expression.</p>
</blockquote>
<ol>
<li>
<p>Some of the of the 'problems' noted in the report are actually seen as being beneficial by many researchers and scholars such as Lawrence Liang, Achal Prabhala, Perihan Abou Zeid <a href="https://sites.google.com/site/iipenforcement/bibliography">and others</a>, who argue that <a href="http://www.altlawforum.org/intellectual-property/publications/articles-on-the-social-life-of-media-piracy/reconsidering-the-pirate-nation">lax enforcement has enabled access to knowledge and promotion of innovation</a>. In a panel on 'Access to Knowledge' at the Internet Governance Forum, <a href="http://a2knetwork.org/access-knowledge-internet-governance-forum">Lea Shaver, Jeremy Malcolm and others</a> who have been involved in that Access to Knowledge movement noted that lack of strict enforcement played a positive role in many developing countries. However, they also noted, with a fair bit of trepidation, that this was sought to be changed at the international level through treaties such as the Anti-Counterfeiting Treaty Agreement (ACTA).</p>
</li>
<li>
<p>The scope of an optical disc law are quite different from copyright law. The report condemns "unauthorized manufacture and distribution of optical discs", however it does not make it clear that what it is talking about is not just unlicensed copying of films (which is already prohibited under the Copyright Act) but the manufacture and distribution of blank CDs and DVDs as well. The need for such a law is assumed, but never demonstrated. It is onerous for CD and DVD manufacturers (such as the Indian company Moserbaer), and is an overbearing means of attacking piracy.</p>
</li>
<li>
<p>The report calls for "improve[ment] [of India's] criminal enforcement regime" and for "deterrent" sentences and expeditious judicial disposition of IPR infringement cases. While we agree with the last suggestion, the first two are most unacceptable. Increased criminal enforcement of a what is essentially a private monopoly right is undesirable. Copyright infringment on non-commercial scales should not be criminal offences at all. What would deter people from infringing copyright laws are not "deterrent sentences" but more convenient and affordable access to the copyright work being infringed.</p>
</li>
</ol>
<h2>On Patents</h2>
<p>Thankfully, this year the Special 301 report does not criticise the Indian Patent Act for providing for post-grant opposition to patent filings, as it has in previous years. However, it still criticises section 3(d) of the Patent Act which ensures that 'evergreening' of drug patents is not allowed by requiring for new forms of known substances to be patented only if "the enhancement of the known efficacy of [the known] substance" is shown. Thus, the US wishes India to change its domestic law to enable large pharma companies to patent new forms of known substances that aren't even better ("enhancement of the known efficacy"). For instance, "new means of drug delivery" will not, contrary to the assertions of the Special 301 report and the worries of PhRMA, be deemed unpatentable.</p>
<p>The United States has been going through much turmoil over its patent system. Reform of the patent system is currently underway in the US through administrative means, judicial means, as well as legislative means. One of the main reasons for this crumbling of the patent system has been the low bar for patentability (most notably the 'obviousness' test) in the United States and the subsequent over-patenting. An <a href="http://supreme.justia.com/us/447/303/case.html">American judgment</a> even noted that "anything under the sun that is made by man" is patentable subject matter. It is well-nigh impossible to take American concerns regarding our high patent standards seriously, given this context.</p>
<h2>Miscellanea</h2>
<p>The harms of counterfeit medicine, as <a href="http://www.cis-india.org/a2k/blog/fallacies-lies-and-video-pirates">we have noted earlier</a>, are separate issues that are best dealt under health safety regulations and consumer laws, rather than trademark law.</p>
<p>Data exclusivity has been noted to be harmful to the progress of generics, and seeks to extend proprietary rights over government-mandated test data. It is [clear from the TRIPS Agreement][de-trips] that data exclusivity is not mandatory. There are clear rationale against it, and the Indian pharmaceutical industry [is dead-set against it][de-india]. Still, the United States Trade Representative persists in acting as a corporate shill, calling on countries such as India to implement such detrimental laws.</p>
<h2>Conclusion</h2>
<p>Michael Geist, professor at University of Ottowa <a href="http://www.michaelgeist.ca/content/view/4997/125">astutely notes</a>:</p>
<blockquote>
<p>Looking beyond just Canada, the list [of countries condemned by the Special 301 report] is so large, that it is rendered meaningless. According to the report, approximately 4.3 billion people live in countries without effective intellectual property protection. Since the report does not include any African countries outside of North Africa, the U.S. is effectively saying that only a small percentage of the world meet its standard for IP protection. Canada is not outlier, it's in good company with the fastest growing economies in the world (the BRIC countries are there) and European countries like Norway, Italy, and Spain.
In other words, the embarrassment is not Canadian law. Rather, the embarrassment falls on the U.S. for promoting this bullying exercise and on the Canadian copyright lobby groups who seemingly welcome the chance to criticize their own country. </p>
</blockquote>
<p>His comments apply equally well for India as well.</p>
<h1>IIPA's Recommendation for the Special 301 Report</h1>
<p>Thankfully, this year <a href="http://www.iipa.com/rbc/2010/2010SPEC301INDIA.pdf">IIPA's recommendations</a> have not been directly copied into the Special 301 report. (They couldn't be incorporated, as seen below.) For instance, the IIPA report notes:</p>
<blockquote>
<p>The industry is also concerned about moves by the government to consider mandating the use of open source software and software of only domestic origin. Though such policies have not yet been implemented, IIPA and BSA urge that this area be carefully monitored.</p>
</blockquote>
<p>Breaking that into two bit:</p>
<h2>Open Source</h2>
<p>Firstly, it is curious to see industry object to legal non-pirated software. Secondly, many of BSA's members (if not most) use open source software, and a great many of them also produce open source software. <a href="http://hp.sourceforge.net/">HP</a> and <a href="http://www-03.ibm.com/linux/ossstds/">IBM</a> have been huge supporters of open source software. Even <a href="http://www.microsoft.com/opensource/">Microsoft has an open source software division</a>. [Intel][intel], <a href="http://www.sap.com/usa/about/newsroom/press.epx?pressid=11410">SAP</a>, <a href="http://www.cisco.com/web/about/doing_business/open_source/index.html">Cisco</a>, <a href="http://linux.dell.com/projects.shtml">Dell</a>, <a href="http://www.sybase.com/developer/opensource">Sybase</a>, <a href="http://www.entrust.com/news/index.php?s=43&item=702">Entrust</a>, <a href="http://about.intuit.com/about_intuit/press_room/press_release/articles/2009/IntuitPartnerPlatformAddsOpenSourceCommunity.html">Intuit</a>, <a href="http://www.synopsys.com/community/interoperability/pages/libertylibmodel.aspx">Synopsys</a>, <a href="http://www.apple.com/opensource/">Apple</a>, <a href="http://www.theregister.co.uk/2005/04/22/jbuilder_eclipse/">Borland</a>, <a href="http://w2.cadence.com/webforms/squeak/">Cadence</a>, <a href="http://usa.autodesk.com/adsk/servlet/item?siteID=123112&id=6153839">Autodesk</a>, and <a href="http://news.cnet.com/8301-13505_3-9967593-16.html">Siemens</a> are all members of BSA which support open source software / produce at least some open source software. And <em>all</em> BSA members rely on open source software (as part of their core products, their web-server, their content management system, etc.) to a lesser or greater extent. BSA's left hand doesn't seem to know what its right hand -- its members -- are doing. Indeed, the IIPA does not seem to realise that the United States' government itself uses [open source software], and has been urged to <a href="http://news.bbc.co.uk/2/hi/7841486.stm">look at FOSS very seriously</a> and is doing so, especially under CIO Vivek Kundra. And that may well be the reason why the USTR could not include this cautionary message in the Special 301 report.</p>
<h2>Domestic Software</h2>
<p>As <a href="http://arstechnica.com/tech-policy/news/2010/04/indias-copyright-proposals-are-un-american-and-thats-bad.ars">this insightful article by Nate Anderson in Ars Technica</a> notes:</p>
<blockquote>
<p>Open source is bad enough, but a "buy Indian" law? That would be <a href="http://www.canadainternational.gc.ca/sell2usgov-vendreaugouvusa/procurement-marches/buyamerica.aspx?lang=eng">an outrage</a> and surely something the US government would not itself engage in <a href="http://www.canadainternational.gc.ca/sell2usgov-vendreaugouvusa/procurement-marches/ARRA.aspx?lang=eng">as recently as last year</a>. Err, right?</p>
</blockquote>
<p>Furthermore, the IIPA submission do not provide any reference for their claim that "domestic origin" software is being thought of being made a mandatory requirement in governmental software procurement.<br />
</p>
<h2>WCT, WPPT, Camcording, and Statutory Damages</h2>
<p>The IIPA submission also wish that India would:</p>
<ol>
<li>Adopt a system of statutory damages in civil cases; allow compensation to be awarded in criminal cases;</li>
<li>Adopt an optical disc law;</li>
<li>Enact Copyright Law amendments consistent with the WCT and WPPT;</li>
<li>Adopt an anti-camcording criminal provision.</li>
</ol>
<p>Quick counters:</p>
<ol>
<li>Statutory damages (that is, an amount based on statute rather than actual loss) would result in ridiculousness such as the $1.92 million damages that the jury (based on the statutory damages) slapped on Jammie Thomas. The judge in that case <a href="http://arstechnica.com/tech-policy/news/2010/01/judge-slashes-monstrous-jammie-thomas-p2p-award-by-35x.ars">called the damage award</a> "monstrous and shocking" and said that veered into "the realm of gross injustice."</li>
<li>The reasons against an optical disc law are given above. Quick recap: it is a) unnecessary and b) harmful.</li>
<li>India has not signed the WCT and the WPPT. Indian law satisfies all our international obligations. Thus enacting amendments consistent with the WCT and the WPPT is not required.</li>
<li>Camcording of a film is in any case a violation of the Copyright Act, 1957, and one would be hard-pressed to find a single theatre that allows for / does not prohibit camcorders. Given this, the reason for an additional law is, quite frankly, puzzling. At any rate, IIPA in its submission does not go into such nuances.</li>
</ol>
<h2>Further conclusions</h2>
<p><a href="http://spicyipindia.blogspot.com/2010/05/us-special-301-report-and-not-so.html">Shamnad Basheer</a>, an IP professor at NUJS, offer the following as a response:</p>
<blockquote>
<p>"Dear USA,</p>
<p>India encourages you to mind your own business. We respect your sovereignty to frame IP laws according to your national priorities and suggest that you show us the same courtesy. If your grouse is that we haven't complied with TRIPS, please feel free to take us to the WTO dispute panel. Our guess is that panel members familiar with the English language will ultimately inform you that section 3(d) is perfectly compatible with TRIPS. And that Article 39.3 does not mandate pharmaceutical data exclusivity, as you suggest!
More importantly, at that point, we might even think of hauling you up before the very same body for rampant violations, including your refusal to grant TRIPS mandated copyright protection to our record companies, despite a WTO ruling (Irish music case) against you.</p>
<p>Yours sincerely,</p>
<p>India."</p>
</blockquote>
<p>Basheer's suggestion seems to be in line with that Michael Geist who believes that other countries should join Canada and Israel in openly refusing to acknowledge the validity of the Special 301 Reports because they lack ['reliable and objective analysis'][geist-reliable]. And that thought serves as a good coda.</p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/2010-special-301'>https://cis-india.org/a2k/blogs/2010-special-301</a>
</p>
No publisherpraneshDevelopmentConsumer RightsAccess to KnowledgeCopyrightPiracyAccess to MedicineIntellectual Property RightsData ProtectionFLOSSTechnological Protection MeasuresPublications2011-10-03T05:37:27ZBlog EntryTechnological Protection Measures in the Copyright (Amendment) Bill, 2010
https://cis-india.org/a2k/blogs/tpm-copyright-amendment
<b>In this post Pranesh Prakash conducts a legal exegesis of section 65A of the Copyright (Amendment) Bill, 2010, which deals with the stuff that enables 'Digital Rights/Restrictions Management', i.e., Technological Protection Measures. He notes that while the provision avoids some mistakes of the American law, it still poses grave problems to consumers, and that there are many uncertainties in it still.</b>
<p><a href="http://www.wipo.int/enforcement/en/faq/technological/faq03.html">Technological Protection Measures</a> are sought to be introduced in India via the Copyright (Amendment) Bill, 2010. This should be quite alarming for consumers for reasons that will be explained in a separate blog post on TPMs that will follow shortly.</p>
<p>In this post, I will restrict myself to a legal exegesis of section 65A of the Bill, which talks of "protection of technological measures". (Section 65B, which talks of Right Management Information will, similarly, be tackled in a later blog post.)</p>
<p>First off, this provision is quite unnecessary. There has been no public demand in India for TPMs to be introduced, and the pressure has come mostly from the United States in the form of the annual "Special 301" report prepared by the United States Trade Representative with input coming (often copied verbatim) from the International Intellectual Property Alliance. India is not a signatory to the WIPO Copyright Treaty (WCT) which requires technological protection measures be safeguarded by law. That provision, interestingly, was pushed for by the United States in 1996 when even it did not give legal sanctity to TPMs via its copyright law (which was amended in 2000 by citing the need to comply with the WCT).</p>
<p>TPMs have been roundly criticised, have been shown to be harmful for consumers, creators, and publishers, and there is also evidence that TPMs do not really decrease copyright infringement (but instead, quite perversely through unintended consequences, end up increasing it). Why then would India wish to introduce it?</p>
<p>Leaving that question aside for now, what does the proposed law itself say?</p>
<blockquote>
<p>65A. Protection of Technological Measures </p>
<p> (1) Any person who circumvents an effective technological measure applied for the purpose of protecting any of the rights conferred by this Act, with the intention of infringing such rights, shall be punishable with imprisonment which may extend to two years and shall also be liable to fine.</p>
<p> (2) Nothing in sub-section (1) shall prevent any person from:</p>
<p> (a) doing anything referred to therein for a purpose not expressly prohibited by this Act:</p>
<p> Provided that any person facilitating circumvention by another person of a technological measure for such a purpose shall maintain a complete record of such other person including his name, address and all relevant particulars necessary to identify him and the purpose for which he has been facilitated; or</p>
<p> (b) doing anything necessary to conduct encryption research using a lawfully obtained encrypted copy; or</p>
<p> (c) conducting any lawful investigation; or</p>
<p> (d) doing anything necessary for the purpose of testing the security of a computer system or a computer network with the authorisation of its owner; or</p>
<p> (e) operator; or [<em>sic</em>]</p>
<p> (f) doing anything necessary to circumvent technological measures intended for identification or surveillance of a user; or</p>
<p> (g) taking measures necessary in the interest of national security.</p>
</blockquote>
<h1>Implications: The Good Part</h1>
<p>This provision clearly takes care of two of the major problems with the way TPMs have been implemented by the Digital Millennium Copyright Act (DMCA) in the United States:</p>
<ul>
<li>
<p>In s.65A(1) it aligns the protection offered by TPMs to that offered by copyright law itself (since it has to be "applied for the purpose of protecting any of the rights conferred by this Act"). Thus, presumably, TPMs could not be used to restrict <em>access</em>, only to restrict copying, communication to the public, and that gamut of rights.</p>
</li>
<li>
<p>In s.65A(1) and 65A(2) it aligns the exceptions granted by copyright law with the exceptions to the TPM provision. Section 65A(1) states that the act of circumvention has to be done "with the intention of infringing ... rights", and s.52(1) clearly states that those exceptions cannot be regarded as infringement of copyright. And s.65A(2)(a) states that circumventing for "a purpose not expressly prohibited by this Act" will be allowed.</p>
</li>
</ul>
<p>A third important difference from the DMCA is that</p>
<ul>
<li>It does not criminalise the manufacture and distribution of circumvention tools (including code, devices, etc.). (More on this below.)</li>
</ul>
<h1>Implications: The Bad Part</h1>
<p>This provision, despite the seeming fair-handed manner in which it has been drafted, still fails to maintain the balance that copyright seeks to promote:</p>
<ul>
<li>
<p>TPM-placers (presumably, just copyright holders, because of point 1. above) have been given the ability to restrict the activities of consumers, but they have not been given any corresponding duties. Thus, copyright holders do not have to do anything to ensure that the Film & Telivision Institute of India professor who wishes to use a video clip from a Blu-Ray disc can actually do so. Or that the blind student who wishes to circumvent TPMs because she has no other way of making it work with her screen reader is actually enabled to take advantage of the leeway the law seeks to provide her through s.52(1)(a) (s.52(1)(zb) is another matter!). Thus, while there are many such exceptions that the law allows for, the technological locks themselves prevent the use of those exceptions. Another way of putting that would be to say:</p>
</li>
<li>
<p>The Bill presumes that every one has access to all circumvention technology. This is simply not true. In fact, Spanish law (in <a href="http://noticias.juridicas.com/base_datos/Admin/rdleg1-1996.l3t5.html">Article 161 of their law</a>) expressly requires that copyright holders facilitate access to works protected by TPM to beneficiaries of limitations of copyright. Thus, copyright holders who employ TPMs should be required to:</p>
<ul>
<li>tell their customers how they can be contacted if the customer wishes to circumvent the TPM for a legitimate purpose</li>
<li>upon being contacted, aid their customer in making use of their rights / the exceptions and limitations in copyright law</li>
</ul>
</li>
<li>
<p>How seriously can you take a Bill that has been introduced in Parliament that includes a provision that states: "Nothing in sub-section (1) shall prevent any person from operator; or" (as s.65A(2)(e), read in its entirety, does)?</p>
</li>
</ul>
<h1>Uncertainties</h1>
<p>As mentioned above, the provisions are not all that clear regarding manufacture and distribution of circumvention tools. Thus, the proviso to s.65A(2)(a) deserves a closer reading. What is clear is that there are no penalties mentioned for manufacture or dissemination of TPMs, and that only those who <em>circumvent</em> are penalised in 65A(1), and not those who produce the circumvention devices. However:</p>
<h2>On "shall maintain" and penalties</h2>
<p>In the proviso to s.65B(2)(a), there is an imperative ("shall maintain") requiring "any person facilitating circumvention" to keep records. It
is unclear what the implications of not maintaining such records are.</p>
<p>The obvious one is that the exemption contained in s.65(1)(a) will not apply if one were facilitated without the facilitator keeping records. Thus, under this interpretation, there is no independent legal (albeit penalty-less) obligation on facilitators. This interpretation runs into
the problem that if this was the intention, then the drafters would have written "Provided that any person facilitating circumvention ... for
such a purpose <em>maintain</em>/<em>maintained</em> a complete record ...". Instead, <em>shall maintain</em> is used, and an independent legal obligation seems,
thus, to be implied. But can a proviso create an independent legal obligation? And is there any way a penalty could <em>possibly</em> be attached
to violation of this proviso despite it not coming within 65A(1)?</p>
<h2>On "facilitating" and remoteness</h2>
<p>The next question is who all can be said to "facilitate", and how remote can the connection be? Is the coder who broke the circumvention a
facilitator? The distributor/trafficker? The website which provided you the software? Or is it (as is more likely) a more direct "the friend who sat at your computer and installed the circumvention software" / "the technician who unlocked your DVD player for you while installing it in your house"?</p>
<p>While such a record-keeping requirement is observable by people those who very directly help you (the last two examples above), it would be more difficult to do so the further up you get on the chain of remoteness. Importantly, such record-keeping is absolutely not possible in decentralized distribution models (such as those employed by most free/open source software), and could seriously harm fair and legitimate circumvention.</p>
<h1>More uncertainties</h1>
<p>It is slightly unclear which exception the bypassing of Sony's dangerous "Rootkit" copy protection technology would fall under if I wish to get rid of it simply because it makes my computer vulnerable to malicious attacks (and not to exercise one of the exceptions under s.52(1)). Will such circumvention come under s.65A(2)(a)? Because it does not quite fall under any of the others, including s.65(2)(b) or (f).</p>
<h2>On "purpose" as a criterion in 65A(2)(a)</h2>
<p>A last point, which is somewhat of an aside is that 65A(2)(a) states:</p>
<blockquote>
<p>Nothing in sub-section (1) shall prevent any person from doing anything referred to therein for a purpose not expressly prohibited by this Act.</p>
</blockquote>
<p>There's something curious about the wording, since the Copyright Act generally does not prohibit any acts based on purposes (i.e., the prohibitions by ss.14 r/w s.51 are not based on <em>why</em> someone reproduces, etc., but on the act of reproduction). In fact, it <em>allows</em> acts based on purposes
(via s.52(1)). The correct way of reading 65A(2)(a) might then be:</p>
<blockquote>
<p>Nothing in sub-section (1) shall prevent any person from doing anything referred to therein for a purpose expressly allowed by this Act.</p>
</blockquote>
<p>But that might make it slightly redundant as s.65A(1) covers that by having the requirement of the circumvention being done "with the intention of infringing such right" (since the s.52(1) exceptions are clearly stated as not being infringements of the rights granted under the Act).</p>
<h1>Conclusion</h1>
<p>It would be interesting to note how leading copyright lawyers understand this provision, and we will be tracking such opinions. But it is clear that TPMs, as a private, non-human enforcement of copyright law, are harmful and that we should not introduce them in India. And we should be especially wary of doing so without introducing additional safeguards, such as duties on copyright holder to aid access to TPM'ed works for legitimate purposes, and remove burdensome record-keeping provisions.</p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/tpm-copyright-amendment'>https://cis-india.org/a2k/blogs/tpm-copyright-amendment</a>
</p>
No publisherpraneshAccess to KnowledgeCopyrightIntellectual Property RightsFLOSSTechnological Protection MeasuresPublications2012-05-17T16:51:38ZBlog EntryApril 2010 Bulletin
https://cis-india.org/about/newsletters/april-2010-bulletin
<b>Greetings from the Centre for Internet and Society! We bring you updates of our research, events and news for the month of April 2010.</b>
<h2><b>News Updates </b></h2>
<p class="ecxdocumentdescription"><b>Worries voiced over ID Project</b><span style="text-decoration: underline;"><br /> </span>The Government of India's Unique Identification (UID) Project came under flak at a workshop organised jointly by the Citizen Action Forum (CAF), the People's Union of Civil Liberties - Karnataka, the Alternative Law Forum and the Centre for Internet and Society - An article in The Hindu - 17th April.<br /> <a href="https://cis-india.org/news/worries-voiced-over-id-project" target="_blank">http://cis-india.org/news/worries-voiced-over-id-project</a></p>
<p class="ecxdocumentdescription"><b>UID: A debate on the Fundamental Rights</b><span style="text-decoration: underline;"><br /> </span>UID: A debate on the Fundamental Rights - was jointly organized by the Citizen Action Forum, People's Union for Civil Liberties - Karnataka, Alternative Law Forum and the Centre for Internet and Society on April 16th at IAT, Queens Road, Bangalore - An article in the Prajavani news paper - April 17th. <br /> <a href="https://cis-india.org/news/uid-a-debate-on-fundamental-rights" target="_blank">http://cis-india.org/news/uid-a-debate-on-fundamental-rights</a></p>
<p class="ecxdocumentdescription"><b>UID is an invasion of Privacy: Experts</b><br /> The Nandan Nilekani headed Unique Identification Authority of India (UIDAI) came in for much criricism at the first of a series of debates on the issue organised in the city on Friday - Deccan Chronicle, April 17th.<br /> <a href="https://cis-india.org/news/uid-is-an-invasion-of-privacy-experts" target="_blank">http://cis-india.org/news/uid-is-an-invasion-of-privacy-experts</a></p>
<p class="ecxmsonormal"><b>Experts debate on UID and rights </b><span style="text-decoration: underline;"><br /> </span>Bangalore, Apr 16, DHNS: A debate on ‘UID and Fundamental Rights’ organised by several city-based organisations, discussed the social, ethical issues, economic and legal issues that accompanies the UID. <br /> <a href="https://cis-india.org/news/experts-debate-on-uid-and-rights" target="_blank">http://cis-india.org/news/experts-debate-on-uid-and-rights</a></p>
<p class="ecxmsonormal"><b>Amendment to Copyright Act opposed </b><span style="text-decoration: underline;"><br /> </span>A report on the press conference held on 15th April, at the Press Club, Bangalore: The Hindu <br /> <a href="https://cis-india.org/news/amendment-to-copyright-act-opposed" target="_blank">http://cis-india.org/news/amendment-to-copyright-act-opposed</a></p>
<p class="ecxmsonormal"><b>They fight for the visually challenged </b><span style="text-decoration: underline;"><br /> </span>Times News Network - A report on the press conference held at the Press Club, Bangalore on 15th April, 2010. <br /> <a href="https://cis-india.org/news/they-fight-for-the-visually-challenged" target="_blank">http://cis-india.org/news/they-fight-for-the-visually-challenged</a></p>
<p class="ecxmsonormal"><b>Digital Natives Research Project Coordinator </b><span style="text-decoration: underline;"><br /> </span>The Centre for Internet and Society, Bangalore, in collaboration with Hivos Netherlands, is looking for a Research Project Coordinator to help develop a knowledge network and coordinate international workshops for the project "Digital Natives with a Cause?" <br /> <a href="https://cis-india.org/news/research-coordinator" target="_blank">http://cis-india.org/news/research-coordinator</a></p>
<p class="ecxmsonormal"><b>Expel or not? That is the question </b><span style="text-decoration: underline;"><br /> </span>The decision of an international school to expel 14 students for their alleged ‘promiscuous’ behaviour has led to much debate and discussion. <br /> <a href="https://cis-india.org/news/expel-or-not" target="_blank">http://cis-india.org/news/expel-or-not</a></p>
<p class="ecxmsonormal"><b>Nokia eyes GeNext to tap mobile email mkt </b><span style="text-decoration: underline;"><br /> </span>Finnish handset giant banks on youth to be in the technology race <br /> <a href="https://cis-india.org/news/nokia-eyes-genNext" target="_blank">http://cis-india.org/news/nokia-eyes-genNext</a></p>
<h3><b>Research</b></h3>
<p class="ecxmsonormal" style="text-align: justify; "><b>Critical Point of View: Videos </b><span style="text-decoration: underline;"><br /> </span>The Second event for the Critical Point of View reader on Wikipedia was held in Amsterdam, by the Institute of Network Cultures and the Centre for Internet and Society. A wide range of scholars, academics, researchers, practitioners, artists and users came together to discuss questions on design, analytics, access, education, theory, art, history and processes of knowledge production. The videos for the full event are now available for free viewing and dissemination.</p>
<p class="ecxmsonormal" style="text-align: justify; "><b>Colour Me Political </b><br /> What are the tools that Digital Natives use to mobilise groups towards a particular cause? How do they engage with crises in their immediate environments? Are they using their popular social networking sites and web 2.0 applications for merely entertainment? Or are these tools actually helping them to re-articulate the realm of the political? Nishant Shah looks at the recent Facebook Colour Meme to see how new forms of political participation and engagement are being initiated by young people across the world.<br /> <a href="https://cis-india.org/research/dn/dn2" target="_blank">http://cis-india.org/research/dn/dn2</a></p>
<p class="ecxmsonormal" style="text-align: justify; "><b>Meet the Web 2.0 Suicide Machine</b><br />Digital Natives live their lives differently. But sometimes, they also die their lives differently! What happens when we die online? Can the digital avatar die? What is digital life? The Web 2.0 Suicide machine that has now popularly been called the 'anti-social-networking' application brings some of these questions to the fore. As a part of the Hivos-CIS "Digital Natives with a Cause?" research programme, Nishant Shah writes about how Life on the Screen is much more than just a series of games. <br /> <a href="https://cis-india.org/research/dn/dn1" target="_blank">http://cis-india.org/research/dn/dn1</a></p>
<p class="ecxmsonormal" style="text-align: justify; "><b>Digital Natives with a Cause? </b><span style="text-decoration: underline;"><br /> </span>Digital Natives With A Cause? - a product of the Hivos-CIS collaboration charts the scholarship and practice of youth and technology with a specific attention for developing countries to create a framework that consolidates existing paradigms and informs further research and intervention within diverse contexts and cultures. <br /> <a href="https://cis-india.org/research/dn/dnrep" target="_blank">http://cis-india.org/research/dn/dnrep</a></p>
<h2><b>Advocacy</b></h2>
<h3><b>Accessibility</b></h3>
<p class="ecxmsonormal"><b>e-Accessibility: A Wiki Project </b><span style="text-decoration: underline;"><br /> </span>Envisaged and funded by the National Internet Exchange of India, and executed by the Centre for Internet and Society, a Wiki site pertaining to issues of disability and e-accessibility has recently been launched. <br /> <a href="https://cis-india.org/advocacy/accessibility/blog/e-accessibility-a-wiki-project" target="_blank">http://cis-india.org/advocacy/accessibility/blog/e-accessibility-a-wiki-project</a></p>
<p class="ecxmsonormal"><b>Copyright Law as a tool for Inclusion </b><span style="text-decoration: underline;"><br /> </span>Can Copyright Law be used as a tool for Inclusion? Rahul Cherian examines this in his blog on copyright. <br /> <a href="https://cis-india.org/advocacy/accessibility/blog/copyright-law-as-tool-for-inclusion" target="_blank">http://cis-india.org/advocacy/accessibility/blog/copyright-law-as-tool-for-inclusion</a></p>
<p class="ecxmsonormal"><b>Web Accessibility as a Government Mandate?</b><span style="text-decoration: underline;"><b> </b><br /> </span>Is Web accessibility just a Government Mandate? Should private sites be ignored? Wesolowski examines this in light of the steps taken by ictQATAR to make its website accessible to W3C standards, and hopes that Qatar and eventually all other Arab nations will follow suit and make Web accessibility much more of a mandate. <br /> <a href="https://cis-india.org/advocacy/accessibility/blog/web-accessibility-government-mandate" target="_blank">http://cis-india.org/advocacy/accessibility/blog/web-accessibility-government-mandate</a></p>
<h3><b>Intellectual Property</b></h3>
<p class="ecxdocumentdescription"><b>When Copyright Goes Bad </b><span style="text-decoration: underline;"><br /> </span>A part of the Access to Knowledge Project, this short film by Consumers International is available on DVD and online at A2Knetwork.org/film. <br /> <a href="https://cis-india.org/advocacy/ipr/blog/when-copyright-goes-bad" target="_blank">http://cis-india.org/advocacy/ipr/blog/when-copyright-goes-bad</a></p>
<h3><b>Openness</b></h3>
<p class="ecxdocumentdescription" style="text-align: justify; "><b>Research Project on Open Video in India </b><span style="text-decoration: underline;"><br /> </span>Open Video Alliance and the Centre for Internet and Society are calling for researchers for a project on open video in India, its potentials, limitations, and recommendations on policy interventions. <br /> <a href="https://cis-india.org/advocacy/openness/blog/open-video-research" target="_blank">http://cis-india.org/advocacy/openness/blog/open-video-research</a></p>
<p class="ecxmsonormal" style="text-align: justify; "><b>Does the Social Web need a Googopoly?</b><br />While the utility of the new social tool Buzz is still under question, the bold move into social space taken last week by the Google Buzz team has Gmail users questioning privacy implications of the new feature. In this post, I posit that Buzz highlights two privacy challenges of the social web. First, the application has sidestepped the consensual and contextual qualities desirable of social spaces. Secondly, Google’s move highlights the increasingly competitive and convergent nature of the social media landscape. <br /> <a href="https://cis-india.org/advocacy/openness/blog/does-the-social-web-need-a-googopoly" target="_blank">http://cis-india.org/advocacy/openness/blog/does-the-social-web-need-a-googopoly</a></p>
<p class="ecxmsonormal" style="text-align: justify; "><b>The (in)Visible Subject: Power, Privacy and Social Networking </b><span style="text-decoration: underline;"><br /> </span>In this entry, I will argue that the interplay between privacy and power on social network sites works ultimately to subject individuals to the gaze of others, or to alternatively render them invisible. Individual choices concerning privacy preferences must, therefore, be informed by the intrinsic relationship which exists between publicness/privateness and subjectivity/obscurity. <br /> <a href="https://cis-india.org/advocacy/openness/blog/the-in-visible-subject-power-privacy-and-social-networking" target="_blank">http://cis-india.org/advocacy/openness/blog/the-in-visible-subject-power-privacy-and-social-networking</a></p>
<h3><b>Internet Governance</b></h3>
<p class="ecxdocumentdescription" style="text-align: justify; "><b>Does the Safe-Harbor Program Adequately Address Third Parties Online? </b><span style="text-decoration: underline;"><br /> </span>While many citizens outside of the US and EU benefit from the data privacy provisions the Safe Harbor Program, it remains unclear how successfully the program can govern privacy practices when third-parties continue to gain more rights over personal data. Using Facebook as a site of analysis, I will attempt to shed light on the deficiencies of the framework for addressing the complexity of data flows in the online ecosystem. <br /> <a href="https://cis-india.org/advocacy/igov/blog/does-the-safe-harbor-program-adequately-address-third-parties-online" target="_blank">http://cis-india.org/advocacy/igov/blog/does-the-safe-harbor-program-adequately-address-third-parties-online</a></p>
<p class="ecxmsonormal" style="text-align: justify; "><b>Sense and censorship </b><span style="text-decoration: underline;"><br /> </span>Sunil Abraham examines Google's crusade against censorship in China in wake of the attacks on its servers in this article published in the Indian Express. <br /> <a href="https://cis-india.org/advocacy/igov/blog/sense-and-censorship" target="_blank">http://cis-india.org/advocacy/igov/blog/sense-and-censorship</a></p>
<p class="ecxmsonormal" style="text-align: justify; "><b>Report on the Fourth Internet Governance Forum for Commonwealth IGF </b><span style="text-decoration: underline;"><br /> </span>This report by Pranesh Prakash reflects on the question of how useful is the IGF in the light of meetings on the themes of intellectual property, freedom of speech and privacy. <br /> <a href="https://cis-india.org/advocacy/igov/blog/report-on-fourth-IGF" target="_blank">http://cis-india.org/advocacy/igov/blog/report-on-fourth-IGF</a></p>
<h3><b>Telecom</b></h3>
<p class="ecxdocumentdescription" style="text-align: justify; "><b>The Right Ring Tone </b><span style="text-decoration: underline;"><br /> </span>Focus on improving service quality with a strong partner, and not on one-shot stake sales, says Shyam Ponappa in his article published in the Business Standard on April 1, 2010. <span style="text-decoration: underline;"><br /> </span><a href="https://cis-india.org/advocacy/telecom/blog/ring-tone" target="_blank">http://cis-india.org/advocacy/telecom/blog/ring-tone</a></p>
<h2><b>Other Advocacy</b></h2>
<p class="ecxdocumentdescription" style="text-align: justify; "><b>Maps for Making Change Wiki Now Open to the Public </b><br /> Since December 2009, CIS has been coordinating and nurturing the Maps for Making Change project, organised in collaboration with Tactical Tech. During the past four months, participants have been on a challenging yet fertile and inspiring journey that is now slowly coming to an end. Would you like to know more about what has happened in the time that has passed? The Maps for Making Change wiki is a good place to start. <br /> <a href="https://cis-india.org/advocacy/others/maps-for-making-change-wiki-now-open-to-the-public" target="_blank">http://cis-india.org/advocacy/others/maps-for-making-change-wiki-now-open-to-the-public</a></p>
<p>
For more details visit <a href='https://cis-india.org/about/newsletters/april-2010-bulletin'>https://cis-india.org/about/newsletters/april-2010-bulletin</a>
</p>
No publisherpraskrishnaAccess to KnowledgeDigital NativesTelecomIntellectual Property RightsAccessibilityInternet GovernanceCISRAW2012-08-13T04:51:19ZPageMarch 2010 Bulletin
https://cis-india.org/about/newsletters/march-2010-bulletin
<b>Greetings from the Centre for Internet and Society! We bring you updates of our research, news, and events for the month of March 2010 in this bulletin.</b>
<h3><b>News Updates</b></h3>
<p class="ecxmsonormal" style="text-align: justify; "><b>An Open Answer to Office</b><span style="text-decoration: underline;"><br /> </span>OpenOffice with its new features is giving Microsoft Word tough competition, says Deepa Kurup in this article published in The Hindu.<br /> <a href="https://cis-india.org/news/open-office" target="_blank">http://cis-india.org/news/open-office</a></p>
<h3><b>Upcoming Events</b></h3>
<p class="ecxmsonormal" style="text-align: justify; "><b>CPOV: Wikipedia Research Initiative</b><span style="text-decoration: underline;"><br /> </span>The second WikiWars conference will be held in Amsterdam from 26 to 27 March 2010<br /> <a href="https://cis-india.org/research/conferences/conference-blogs/cpov" target="_blank">http://cis-india.org/research/conferences/conference-blogs/cpov</a></p>
<p class="ecxmsonormal" style="text-align: justify; "><b>CI Global Meeting on A2K</b><span style="text-decoration: underline;"><br /> </span>CIS is a co-sponsor of the Consumers International Meeting on A2K to be held in Kuala Lumpur, Malaysia on April 21 and 22, 2010.<br /> <a href="https://cis-india.org/events/ci-global-meeting-a2k" target="_blank">http://cis-india.org/events/ci-global-meeting-a2k</a></p>
<h3><b>Research</b></h3>
<p class="ecxmsonormal" style="text-align: justify; "><b>India Game Developer Summit Bangalore 2010</b><span style="text-decoration: underline;"><br /> </span>The India Game Developer Conference held at Nimhans Convention Centre on the 27th of February, 2010 was attended by Arun Menon who is working on The Gaming and Gold Project at The Centre for Internet and Society. The Developer forum brought together game developers from different sectors of the Game Production Cycle, with hardware manufacturers like Nvidia demonstrating their latest 3d technology and Software developers like Crytek and Adobe demonstrating the latest in developer tools for creating and editing games on multiple platforms.<br /> <a href="https://cis-india.org/research/cis-raw/histories/gaming/india-game-developer-summit-in-bangalore-2010" target="_blank">http://cis-india.org/research/cis-raw/histories/gaming/india-game-developer-summit-in-bangalore-2010</a><br /> <br /> <b>10 Legendary Obscene Beasts</b><br /> Nishant Shah analyses a peculiar event of vandalism which has now become the core of free speech and anti-censorship debates in mainland China. Looking at the structure of user generated knowledge websites and the specific event on the Chinese language encyclopaedia, 'Baidu Baike', he shows how, in cities where spaces of political spectacle and public protest are quickly diminishing, the Internet has become a tool for producing new public spaces of demonstration and protest.<br /> <a href="https://cis-india.org/research/grants/ISShanghai/itcity4" target="_blank">http://cis-india.org/research/grants/ISShanghai/itcity4</a></p>
<p class="ecxmsonormal"><b>WikiWars - A report</b><br /> In this blog, Nishant Shah analyses about the WikiWars, the first of the three events held in Bangalore on January 12 and 13.<br /> <a href="https://cis-india.org/research/conferences/conference-blogs/wwrep" target="_blank">http://cis-india.org/research/conferences/conference-blogs/wwrep</a></p>
<h3><b>Telecom</b></h3>
<p class="ecxmsonormal"><b>Understanding Spectrum</b><span style="text-decoration: underline;"><b><br /> </b></span>What is spectrum and how do government and commercial decisions on this scientific phenomenon affect public facilities and costs? Shyam Ponappa examines this in his latest blog published in the Business Standard on March 4, 2010.<b><br /> </b><a href="https://cis-india.org/advocacy/telecom/blog/understanding-spectrum%0c" target="_blank">http://cis-india.org/advocacy/telecom/blog/understanding-spectrum</a></p>
<p>
For more details visit <a href='https://cis-india.org/about/newsletters/march-2010-bulletin'>https://cis-india.org/about/newsletters/march-2010-bulletin</a>
</p>
No publisherpraskrishnaAccess to KnowledgeDigital NativesTelecomIntellectual Property RightsAccessibilityInternet GovernanceCISRAWOpenness2012-08-13T05:02:42ZPageArguments Against Software Patents in India
https://cis-india.org/a2k/blogs/arguments-against-software-patents
<b>CIS believes that software patents are harmful for the software industry and for consumers. In this post, Pranesh Prakash looks at the philosophical, legal and practical reasons for holding such a position in India. This is a slightly modified version of a presentation made by Pranesh Prakash at the iTechLaw conference in Bangalore on February 5, 2010, as part of a panel discussing software patents in India, the United States, and the European Union.</b>
<p>This blog post is based on a presentation made at the <a href="http://www.itechlaw-india.com/">iTechLaw conference</a> held on February 5, 2010. The audience consisted of lawyers from various corporations and corporate law firms. As is their wont, most lawyers when dealing with software patents get straight to an analysis of law governing the patenting of computer programmes in India and elsewhere, and seeing whether any loopholes exist and can be exploited to patent software. It was refreshing to see at least some lawyers actually going into questions of the need for patents to cover computer programs. In my presentation, I made a multi-pronged case against software patents: (1) philosophical justification against software patents based on the nature of software; (2) legal case against software patents; (3) practical reasons against software patents.</p>
<h2>Preamble</h2>
<p>Through these arguments, it is sought to be shown that patentability of software is not some arcane, technical question of law, but is a real issue that affect the continued production of new software and the everyday life of the coder/hacker/software programmer/engineer as well as consumers of software (which is, I may remind you, everywhere from your pacemaker to your phone). A preamble to the arguments would note that the main question to ask is: <strong>why should we allow for patenting of software</strong>? Answering this question will lead us to ask: <strong>who benefits from patenting of software</strong>. The conclusion that I come to is that patenting of software helps three categories of people: (1) those large software corporations that already have a large number of software patents; (2) those corporations that do not create software, but only trade in patents / sue on the basis of patents ("patent trolls"); (3) patent lawyers. How they don't help small and medium enterprises nor society at large (since they deter, rather than further invention) will be borne out by the rest of these arguments, especially the section on practical reasons against software patents.</p>
<h2>What are Patents?</h2>
<p>Patents are a twenty-year monopoly granted by the State on any invention. An invention has to have at least four characteristics: (0) patentable subject matter; (1) novelty (it has to be new); (2) inventive step / non-obviousness (even if new, it should not be obvious); (3) application to industry. A monopoly over that invention, thus means that if person X has invented something, then I may not use the core parts of that invention ("the essential claims") in my own invention. This prohibition applies even if I have come upon my invention without having known about X's invention. (Thus, independent creation is not a defence to patent infringement. This distinguishes it, for instance, from copyright law in which two people who created the same work independently of each other can both assert copyright.) Patents cover non-abstract ideas/functionality while copyright covers specific expressions of ideas. To clarify: imagine I make a drawing of a particular machine and describe the procedure of making it. Under patent law, no one else can make that particular machine, while under copyright law, no one can copy that drawing.</p>
<h2>Philosophical Justification Against Software Patents</h2>
<p>Even without going into the case against patents <em>per se</em> (lack of independent creation as a defence; lack of 'harm' as a criterion leading to internalization of all positive externalities; lack of effective disclosure and publication; etc.), which has been done much more ably by others like <a href="http://www.researchoninnovation.org/">Bessen & Meurer</a> (especially in their book <a href="http://researchoninnovation.org/dopatentswork/">Patent Failure</a>) and <a href="http://www.againstmonopoly.org/">Boldrin & Levine</a> (in their book <a href="http://levine.sscnet.ucla.edu/general/intellectual/againstnew.htm">Against Intellectual Monopoly</a>, the full text of which is available online).</p>
<p>But there is one essentially philosophical argument against software as subject matter of a patent. Software/computer programs ("instructions for a computer"), as any software engineer would tell you, are merely <a href="http://en.wikipedia.org/wiki/Algorithm">algorithms</a> ("an effective method for solving a problem using a finite sequence of instructions") that are meant to be understood by a computer or a human who knows how to read that code.</p>
<p>Algorithms are not patentable subject matter, as they are mere expressions of abstract ideas, and not inventions in themselves. Computer programs, similarly, are abstract ideas. They only stop being abstract ideas when embodied in a machine or a process in which it is the machine/process that is the essential claim and not the software. That machine or process being patented would not grant protection to the software itself, but to the whole machine or process. Thus the abstract part of that machine/process (i.e., the computer program) could be used in any other machine/process, as it it is not the subject matter of the patent. Importantly, just because software is required to operate some machine would then not mean that the machine itself is not patentable, just that the software cannot be patented in guise of patenting a machine.</p>
<h2>Legal Case Against Software Patents</h2>
<p>In India, section 3(k) of the Patent Act reads:</p>
<blockquote class="webkit-indent-blockquote">
<p>(3) The following are not inventions within the meaning of this Act: (k) a mathematical or business method or computer programme (<em>sic</em>) <em>per se</em> or algorithms.</p>
</blockquote>
<p>As one can see, computer programs are place in the same category as "mathematical methods", "algorithms", and "business methods", hence giving legal validity to the idea propounded in the previous section that computer programs are a kind of algorithms (just as algorithms are a kind of mathematical method).</p>
<p>Be that as it may, the best legal minds in India have had to work hard at understanding what exactly "computer programme <em>per se</em>" means. They have cited U.S. case law, U.K. case law, E.U. precedents, and sought to arrive at an understanding of how <em>per se</em> should be understood. While understanding what <em>per se</em> means might be a difficult job, it is much easier to see what it does <em>not</em> mean. For that, we can look at the 2004 Patent Ordinance that Parliament rejected in 2005. In that ordinance, sections 3(k) and (ka) read as follows:</p>
<blockquote class="webkit-indent-blockquote">
<p>(3) The following are not inventions within the meaning of this Act: (k) a computer programme <em>per se</em> other than its technical application to industry or a combination with hardware; (ka) a mathematical method or a business method or algorithms.</p>
</blockquote>
<p>Thus, it is clear that the interpretation that "computer programme <em>per se</em>" excludes "a computer programme that has technical application to industry" and "a computer programme in combination with hardware" is wrong. By rejecting the 2004 Ordinance wording, Parliament has clearly shown that "technical application to industry" and "combination with hardware" do not make a computer programme patentable subject matter.</p>
<p>Indeed, what exactly is "technical application to industry"? <a href="http://wordnetweb.princeton.edu/perl/webwn?s=technical">"Technical"</a> has various definitions, and a perusal through those definitions would show that barely any computer program can be said not to relate to a technique, not involve "specialized knowledge of applied arts and sciences" (it is code, after all; not everyone can write good algorithms), or not relate to "a practical subject that is organized according to scientific principles" or is "technological". Similarly, all software is, <a href="http://wordnetweb.princeton.edu/perl/webwn?s=software">by definition</a>, meant to be used in combination with hardware. Thus, it being used in combination with hardware must not, as argued above, give rise to patentability of otherwise unpatentable subject matter category.</p>
<p>In 2008, the Patent Office published a new 'Draft Manual Of Patent Practice And Procedure' in which it sought to allow patenting of certain method claims for software inventions (while earlier the Patent Office objected to method claims, allowing only device claims with hardware components). This Draft Manual was withdrawn from circulation, with Shri N.N. Prasad (then Joint Secretary of DIPP, the department administering the Patent Office) noting that the parts of the Manual on sections 3(d) and 3(k) had generated a lot of controversy, and were <em>ultra vires</em> the scope of the Manual (which could not override the Patent Act). He promised that those parts would be dropped and the Manual would be re-written. A revised draft of the Manual has not yet been released. Thus the interpretation provided in the Draft Manual (which was based heavily on the interpretation of the U.K. courts) cannot not be relied upon as a basis for arguments in favour of the patentability of software in India.</p>
<p>In October 2008, CIS helped organize a <a href="https://cis-india.org/advocacy/openness/blog/the-national-public-meeting-on-software-patents">National Public Meeting on Software Patents</a> in which Indian academics, industry, scientists, and FOSS enthusiasts all came to the conclusion that software patents are harmful for <a href="https://cis-india.org/openness/software-patents/software-patenting-will-harm-industry-consumer">both the industry as well as consumers</a>.</p>
<h2>Practical Reasons Against Software Patents</h2>
<p>This is going to be an attempt at distilling and simplifying some of the main practical arguments against patenting of software.</p>
<p>There are traditionally <a href="http://www.patenthawk.com/blog/2005/04/patent_economics_part_4_incent.html">four incentives that the patent system caters to</a>: (1) incentive to invent; (2) incentive to disclose; (3) incentive to commercialize; and (4) incentive to invent substitutes. Apart from the last, patenting of software does not really aid any of them.</p>
<ol>
<li>
<h3>Patent Landmines / Submarine Patents / Patent Gridlocks / No Exception for Independent Creation</h3>
<p>Given that computer programs are algorithms, having monopolies over such abstract ideas is detrimental to innovation. Just the metaphors say a lot about software patents: landmines (they cannot be seen/predicted); submarines (they surface out of the blue); gridlocks (because there are so many software patents around the same area of computing, they prevent further innovation in that area, since no program can be written without violating one patent or the other).</p>
<p>Imagine the madness that would have ensued had patents been granted when computer programming was in its infancy. Imagine different methods of sorting (quick sort, bubble sort) that are part of Computer Science 101 had been patented. While those particular instances aren't, similar algorithms, such as data compression algorithms (including the infamous <a href="http://en.wikipedia.org/wiki/LZW">LZW compression method</a>), have been granted patents. Most importantly, even if one codes certain functionality into software independently of the patent holder, that is still violative of the patent. Computer programs being granted patents makes it extremely difficult to create other computer programs that are based on the same abstract ideas. Thus incentives # (1) and (3) are not fulfilled, and indeed, they are harmed. There is no incentive to invent, as one would always be violating one patent or the other. Given that, there is no incentive to commercialize what one has invented, because of fear of patent infringement suits.</p>
<p>An apt illustration of this is the current difficulty of choosing a royalty-free video format for HTML 5, as it shows, in practical terms, how difficult it is to create a video format without violating one patent or the other. While the PNG image format was created to side-step the patent over the LZW compression method used in the GIF image format, bringing Ogg Theora or Dirac (both patent-free video format) to surpass the levels of H.264/MPEG-4 AVC or VC-1 will be very difficult without infringing dozens if not hundreds of software patents. Chris DiBona of Google, while talking about <a href="http://www.mail-archive.com/whatwg@lists.whatwg.org/msg15476.html">improving Ogg Theora</a> as part of its inclusion in HTML 5 specifications said, "Here’s the challenge: Can Theora move forward without infringing on the other video compression patents?" Just <a href="http://74.125.153.132/search?q=cache:jRnXmHcZCMsJ:www.mpegla.com/Lists/MPEG%2520LA%2520News%2520List/Attachments/140/n_03-11-17_avc.html+http://www.mpegla.com/news/n_03-11-17_avc.html&cd=2&hl=en&ct=clnk&gl=in">the number of companies and organization that hold patents over H.264</a> is astounding, and includes: Columbia University, Electronics and Telecommunications Research Institute of Korea (ETRI), France Télécom, Fujitsu, LG Electronics, Matsushita, Mitsubishi, Microsoft, Motorola, Nokia, Philips, Robert Bosch GmbH, Samsung, Sharp, Sony, Toshiba, and Victor Company of Japan (JVC). As is the amount of royalties to be paid ("[t]he maximum royalty for these rights payable by an Enterprise (company and greater than 50% owned subsidiaries) is $3.5 million per year in 2005-2006, $4.25 million per year in 2007-08 and $5 million per year in 2009-10"; with royalty per unit of a decoder-encoder costing upto USD 0.20.)</p>
<p>Indeed, even the most diligent companies cannot guard themselves against software patents. FFII estimates that a very simple online shopping website <a href="http://webshop.ffii.org">would violate twenty different patents at the very least</a>. Microsoft recently lost a case against i4i when i4i surfaced with a patent covering custom XML as implemented in MS Office 2003 and MS Office 2007. As a result Microsoft had to ship patches to its millions of customers, to disable the functionality and bypass that patent. The manufacturers of BlackBerry, the Canadian company Research in Motion, had to shell out <a href="http://en.wikipedia.org/wiki/NTP,_Inc.#RIM_patent_infringement_litigation">USD 617 million as settlement</a> to NTP over wireless push e-mail, as it was otherwise faced with the possibility of the court shutting down the BlackBerry service in the U.S. This happened despite there being a well-known method of doing so pre-dating the NTP patents. NTP has also filed cases against AT&T, Sprint Nextel, T-Mobile, Verizon Wireless, and Palm Inc. <a href="http://copyfight.corante.com/archives/2005/12/15/rimntp_mud_splashes_microsoft.php">Microsoft was also hit by Visto Corporation</a> over those same NTP patents, which had been licensed to Visto (a startup).</p>
<ul><li>
<h4>Don't These Cases Show How Software Patents Help Small Companies?</h4>
<p>The astute reader might be tempted to ask: are not all of these examples of small companies getting their dues from larger companies? Doesn't all of this show that software patents actually help small and medium enterprises (SMEs)? The answer to that is: no. To see why, we need to note the common thread binding i4i, NTP, and Visto. None of them were, at the time of their lawsuits, actually creating new software, and NTP was an out-and-out "non-practising entity"/"patent holding company" AKA, patent troll. i4i was in the process of closing shop, and Visto had just started up. None of these were actually practising the patent. None of these were producing any other software. Thus, none of these companies had anything to lose by going after big companies. In other words, the likes of Microsoft, RIM, Verizon, AT&T, etc., could not file counter-suits of patent infringement, which is normally what happens when SMEs try to assert patent rights against larger corporations. For every patent that the large corporation violates of the smaller corporation, the smaler corporation would be violating at least ten of the larger corporation's. Software patents are more helpful for software companies as a tool for cross-licensing rather than as a way of earning royalties. Even this does not work as a strategy against patent trolls.</p>
</li></ul>
<p>Thus, the assertion that was made at the beginning is borne out: software patents help only patent trolls, large corporations that already have large software patent portfolios, and the lawyers who draft these patents and later argue them out in court.</p>
</li><li>
<h3>Term of Patents</h3>
<p>Twenty years of monopoly rights is outright ludicrous in an industry where the rate of turnover of technology is much faster -- anywhere between two years and five months.</p>
</li>
<li>
<h3>Software Industry Progressed Greatly Without Patents</h3>
<p>In India, software patents have never been asserted in courts (even though many have been <a href="https://cis-india.org/advocacy/openness/blog/the-national-public-meeting-on-software-patents">illegally granted</a>), yet the software industry in India is growing in leaps and bounds. Similarly, most of the big (American) giants of the software industry today grew to their stature by using copyright to "protect" their software, and not patents.</p>
</li>
<li>
<h3>Copyright Exists for Software</h3>
<p>As noted above, the code/expression of any software is internationally protected by copyright law. There is no reason to protect the ideas/functionality of that software as well.</p>
</li>
<li>
<h3>Insufficient Disclosure</h3>
<p>When ordinary computer programmers cannot understand what a particular software patent covers (which is the overwhelming case), then the patent is of no use. One of the main incentives of the patent system is to encourage gifted inventors to share their genius with the world. It is not about gifted inventors paying equally gifted lawyers to obfuscate their inventions into gobbledygook so that other gifted inventors can at best hazard a guess as to precisely what is and is not covered by that patent. Thus, this incentive (#2) is not fulfilled by the current system of patents either -- not unless there is a major overhaul of the system. This ties in with the impossibility of ensuring that one is not violating a software patent. If a reasonably smart software developer (who are often working as individuals, and as part of SMEs) cannot quickly ascertain whether one is violating patents, then there is a huge disincentive against developing software in that area at all.</p>
</li>
<li>
<h3>Software Patents Work Against Free/Libre/Open Source Software</h3>
<p>Software patents hinder the development of software and FOSS licences, as the licensee is not allowed to restrict the rights of the sub-licensees over and above the restrictions that the licensee has to observe. Thus, all patent clearances obtained by the licensee must be passed on to the sub-licensees. Thus, patented software, though most countries around the world do not recognize them, are generally not included in the default builds of many FOSS operating systems. This inhabits the general adoption of FOSS, since many of the software patents, even though not enforceable in India, are paid heed to by the software that Indians download, and the MP3 and DivX formats are not enabled by default in standard installations of a Linux OS such as Ubuntu.</p>
</li></ol>
<h2>Conclusion</h2>
<p>Currently, the U.S. patent system is being reviewed at the administrative level, the legislative level, as well as the judicial level. At the judicial level, the question of business method patents (and, by extension, software patents) is before the Supreme Court of the United States of America in the form of <a href="http://en.wikipedia.org/wiki/Bilski_v._Kappos"><em>Bilski v. Kappos</em></a>. Judge Mayer of the Court of Appeals for the Federal Circuit (CAFC, which heard <em>In re Bilksi</em>) noted that "the patent system has run amok". The Free Software Foundation submitted a most extensive <a href="http://endsoftpatents.org/amicus-bilski-2009"><em>amicus curiae</em> brief</a> to the U.S. Supreme Court, filled with brilliant analysis of software patents and arguments against the patentability of software that is well worth a read.</p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/arguments-against-software-patents'>https://cis-india.org/a2k/blogs/arguments-against-software-patents</a>
</p>
No publisherpraneshOpen StandardsAccess to KnowledgeSoftware PatentsIntellectual Property RightsPublicationsPatents2012-03-13T10:43:12ZBlog EntryEnforcement of Anti-piracy Laws by the Indian Entertainment Industry
https://cis-india.org/a2k/blogs/piracy-and-enforcement
<b>This brief note by Siddharth Chadha seeks to map out the key actors in enforcement of copyright laws. These bodies not only investigate cases of infringement and piracy relating to the entertainment industry, but tie up with the police and IP law firms to pursue actions against the offenders through raids (many of them illegal) and court cases. Siddharth notes that the discourse on informal networks and circuits of distribution of cultural goods remains hijacked with efforts to contain piracy as the only rhetoric which safeguards the business interests of big, mostly multinational, media corporations.</b>
<h3>International Intellectual Property Alliance<br /></h3>
<p>The <a class="external-link" href="http://www.iipa.com/">International Intellectual Property Alliance</a> (IIPA) is an international lobby group of US media industries with close ties to the <a class="external-link" href="http://www.ustr.gov/">United States Trade Representative</a>. It has in its reports consistently expressed dissatisfaction with Indian efforts to deal with piracy. IIPA works in close cooperation the other US lobby groups like the MPAA (Motion Picture Association of America) and the BSA (Business Software Alliance). The IIPA reports, which place India in a 'danger zone', significantly influence regional and international discourses on piracy. Interestingly, the IIPA in India has been very successful in regionalizing and nationalizing a global discourse. Thus, in the past few years, local industry associations in India in cinema, music and software have independently run highly emotional campaigns against piracy, reminiscent of IIPA's own campaigns. </p>
<h3>Motion Pictures Association</h3>
<p>The <a class="external-link" href="http://www.mpaa.org/AboutUs.asp">Motion Picture Association of America</a> (MPAA) through its international counterpart, Motion Pictures Association (MPA), has been unofficially operational in India for the last 15 years. Its member companies are <a class="external-link" href="http://corporate.disney.go.com/">Walt Disney</a>, <a class="external-link" href="http://www.paramount.com/">Paramount</a>, <a class="external-link" href="http://www.sonypictures.in/">Sony Entertainment</a>, <a class="external-link" href="http://www.foxmovies.com/">Twentieth Century Fox</a>, <a class="external-link" href="http://www.patents.com/Universal-City-Studios-LLLP/Universal-City/CA/90328/company/">Universal Studios</a>, and <a class="external-link" href="http://www.warnerbros.com/">Warner Bros.</a> The MPA's work in India was mostly non-obtrusive till 1994 when MPA Asia-Pacific, based in Singapore, started being represented by the high profile legal firm Lall & Sethi Advocates.</p>
<p>They have collectively worked on forming enforcement teams for coordinated raids in Mumbai and Delhi since 1995. Earlier this year, MPA announced its first India office to be set up in Mumbai, called the <a class="external-link" href="http://www.mpda.in/hollywoodinvestment.html">Motion Picture Distributor's Association India (Pvt.) Limited</a> (MPDA), under the directorship of Rajiv Dalal. Mr. Dalal had previously directed strategic initiatives from the MPAA's Los Angeles office. The MPDA will engage itself in working jointly with local Indian film industries and the Indian government to promote the protection of motion pictures and television rights. </p>
<p>According to the organization's own assertion, in 2006 the <a class="external-link" href="http://www.filmpiracy.com/">MPA's Asia-Pacific operation</a> investigated more than 30,000 cases of piracy and assisted law enforcement officials in conducting nearly 12,400 raids. These activities resulted in the seizure of more than 35 million illegal optical discs, 50 factory optical disc production lines and 4,482 optical disc burners, as well as the initiation of more than 11,000 legal actions.</p>
<h3>Indian Music Industry</h3>
<p>The world's second-oldest music companies' association, <a class="external-link" href="http://www.indianmi.org/index.htm">Indian Music Industry</a> (IMI), was first established as Indian Phonographic Industry in 1936. It was re-formed in its present avatar in 1994, as a non-commercial and non-profit organization affiliated to the <a class="external-link" href="http://www.ifpi.org/">International Federation of Phonographic Industry</a> (IFPI) and is registered as a society in West Bengal. IMI members includes major record companies like <a class="external-link" href="http://www.saregama.com/">Saregama</a>, HMV, <a class="external-link" href="http://www.umusicindia.com/">Universal Music (India)</a>, <a class="external-link" href="http://www.tips.in/landing/">Tips</a>, <a class="external-link" href="http://www.venusgroup.org/newaudio/about_us.html">Venus</a>, <a class="external-link" href="http://www.sonybmg.co.in/">Sony BMG (India)</a>, Crescendo, Virgin Records, <a class="external-link" href="http://www.music-from-india.com/">Magnasound</a>, Milestone, <a class="external-link" href="http://www.timesmusic.com/">Times Music</a> and several other prominent national and regional labels that represent over 75 per cent of the output in corporate recordings.</p>
<p>It was one of the first organizations in the country to start the trend of hiring ex-police officers to lead anti-piracy operations. In 1996, IMI hired Julio Ribeiro (a former Commissioner of Police, Mumbai; Director General of Police, Punjab; and Indian Ambassador to Romania) to head its anti-piracy operations. Their anti-piracy work is split into three specific regions, North and North Eastern, Western and Southern and East, each zone headed by a former senior police officer. IMI operates through offices in Kolkata, Mumbai, New Delhi, Chennai, Bangalore and several other cities and towns across India, focusing on surveillance, law enforcement, and gathering intelligence through an 80 member team hired to tackle piracy. During 2001 to 2004, IMI registered over 5500 cases, seized over 10 lakh music cassettes, and around 25 lakh CDs.</p>
<h3>Business Software Alliance</h3>
<p>Headquartered in Washington DC, <a class="external-link" href="http://www.bsa.org/country.aspx?sc_lang=hi-IN">the Business Software Alliance has a regional office in Delhi</a>, and has been instrumental in conducting anti-piracy operations across the country. According to the <a class="external-link" href="http://www.bsa.org/country.aspx?sc_lang=hi-IN">BSA</a>, India ranks 20 in global software piracy rankings, with a rate of 73 per cent while the Asia Pacific average is 53 per cent. China ranks second with a rate of 92 per cent and annual losses of $3,823 million while Pakistan ranks nine with 83 per cent piracy rate. They have engaged the general public in providing them with information on pirated software through an anti-piracy initiative – The Rewards Programme. Launched in 2005, reward amount up to Rs.50, 000, would be provided for information leading to successful legal action against companies using unlicensed software. The reward program was aimed to encourage people to <a class="external-link" href="http://www.siliconindia.com/shownews/BSA_Nasscom_launch_initiative_to_curb_software_piracy-nid-27871.html">support the fight against piracy and to report software piracy to the NASSCOM-BSA Anti-Piracy Software Hotline</a>.</p>
<p>In 2006, <a class="external-link" href="http://www.bsa.org/country.aspx?sc_lang=hi-IN">BSA</a> and <a class="external-link" href="http://www.nasscom.org/">NASSCOM</a> got a shot in their arms by <a class="external-link" href="http://www.indianmba.com/Faculty_Column/FC39/fc39.html">winning the largest settlement amount for a copyright case in India</a>, with <a class="external-link" href="http://www.netlinxindia.com/">Netlinx India Pvt. Ltd</a>. The case had emerged after a civil raid was conducted at the premises of <a class="external-link" href="http://www.netlinxindia.com/">Netlinx</a> in December 2000, leading to inspection and impounding of 40 PCs, carrying illegal unlicensed software. The settlement includes damages of US$ 30,000, complete legalization of software used by them, removal of all unlicensed/pirated software and submission to an unannounced audit of computer systems during next 12 months.</p>
<h3>Industry Enforcers</h3>
<p>Bollywood Film and Music companies, such as <a class="external-link" href="http://www.tseries.com/">T-Series</a> and <a class="external-link" href="http://www.yashrajfilms.com/">Yashraj Films</a>, have established anti-piracy arms to combat piracy in specific markets. <a class="external-link" href="http://www.tseries.com/">T-Series</a> has been in the industry for over 15 years, as a brand of Gulshan Kumar founded Super Cassettes Industries Limited, and has often been at the forefront for conducting raids along with police officials to check piracy of its copyrighted content. In its latest announcement earlier this year, <a class="external-link" href="http://www.tseries.com/">T-Series</a> launched an<a class="external-link" href="http://www.thaindian.com/newsportal/entertainment/t-series-to-nab-digital-content-pirates-on-own_100200953.html"> anti-piracy campaign</a> against those stealing digital content. The announcement came after they filed a complaint on June 1 with a police station in Mangalore against Classic Video shop for infringement of its copyright works like <em>Billu</em>, <em>Ghajini</em>, <em>Aap Ka Suroor</em>, <em>Apne</em>, <em>Fashion</em> and <em>Karz</em> that had been illegally downloaded and copied onto multiple discs, card readers and pen-drives.</p>
<p><a class="external-link" href="http://www.yashrajfilms.com/">Yashraj Films</a>, a leading film studio, has long been a part of enforcement activities against piracy, both in the Indian market and internationally. Most recently, it was a key member in the formation of the United Producers and Distributors Forum, which also included chairman Mahesh Bhatt, Ramesh Sippy, Ronnie Screwalla of <a class="external-link" href="http://www.utvnet.com/">UTV</a>, Shah Rukh Khan, Aamir Khan and <a class="external-link" href="http://www.erosplc.com/">Eros International</a>. This organization is now trying to enforce anti-piracy laws by conducting raids across the country with the help of another ex-cop from Mumbai, A.A. Khan. <a class="external-link" href="http://www.yashrajfilms.com/">Yashraj Films</a> has also established anti-piracy offices in the United Kingdom and the United States to curb piracy in those markets, as overseas returns of its films, watched by the desi diaspora is one of its largest revenue earning sources. The website of <a class="external-link" href="http://www.yashrajfilms.com/">Yashraj Films</a> lists news reports from across US and Europe of instances of crackdown on pirates. </p>
<p>In the context of intellectual property in the creative industries, these anti-piracy agents have successfully created the halo of illegality around the subject of piracy. The discourse on informal networks and circuits of distribution of cultural goods remains hijacked with efforts to contain piracy as the only rhetoric which safeguards the business interests of big media companies and multinational corporations.</p>
<p> </p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/piracy-and-enforcement'>https://cis-india.org/a2k/blogs/piracy-and-enforcement</a>
</p>
No publisherpraskrishnaPiracyIntellectual Property RightsAccess to Knowledge2011-08-04T04:35:48ZBlog EntryTime Out Bengaluru - Software Patenting
https://cis-india.org/news/time-out-software-patenting
<b>An article by Akhila Seetharaman published as a precursor to the national public meeting on software patents held on 4th in Bangalore. </b>
<p style="text-align: justify; "><a class="external-link" href="http://www.timeoutbengaluru.com/aroundtown/aroundtown_feature_details.asp?code=14">Original article on Time Out Bengaluru website</a></p>
<p style="text-align: justify; ">In August this year, the US Patents and Trademarks Office granted Microsoft ownership of “page up” and “page down”. So in theory, no other company can scroll without permission and acknowledgement to Microsoft in monetary terms.<br /> <br />A number of seemingly ubiquitous software ideas have been patented: the use of tabs to shift from one hyperlink to another on a web page, the “Add to Shopping Cart” function that appears on every online store, automated online loan requests, and even reducing image size to make a webpage load faster.<br /> <br />“Most companies register defensive patents to protect themselves, not offensive ones,” said Sunil Abraham of Centre for Internet and Society. “Not many actively pursue patent infringement, but it is still very scary for a small-time entrepreneur.”<br /> <br />At a time when the Indian Patent Office is in the process of putting together a new Manual of Patent Practice and Procedure, the Centre for Internet and Society is holding a one-day consultation on the issue of software patenting in the city. Participants include the Delhi Science Forum, RedHat, IT for Change, Open Space, as well as the Alternative Law Forum.<br /> <br />From mobile phone technology to pacemakers in healthcare, everybody is dependent on software. “Each software patent is a 17-year monopoly on an idea,” said Anivar Aravind of the Free Software User Group Bangalore.<br /> <br />“If formulaic Hindi films were protected by patent laws, we would be able to make only one film,” joked Abraham. The system of software patenting wipes out smaller businesses and innovation, he said. “Software, like poetry and literary works, is already protected by copyright. After all, Bill Gates made his fortunes from copyright and not patents. But many software companies are trying to get additional protection.”<br /> <br />Copyright and patents are both part of intellectual property rights, but copyright restricts the expression of an idea while patents restrict the idea itself, according to Abraham. Under a patenting regime, even before a kid writes one line of code he has to read many patents.”<br /> <br />Kiran Patil of Turtle Linux Lab agreed. “If every little thing is patented, there’s nothing a developer can do.” He cited Richard Stallman, founder of the Free Software Movement and the GNU (a recursive acronym for GNU’s Not Unix) Project, who likened patents to explosive devices: “Software patents are the software project’s equivalent of land mines: each design-decision carries a risk of stepping on a patent, which can destroy your project.”<br /> <br />Worst of all, the world sees those with patents as the innovators, said Patil, which, according to him, is a big misconception.<br /><br />While corporate giants like Microsoft and IBM fix exchange deals through cross-licensing, smaller companies get left out of the loop entirely. Despite not having many patents of their own, several Indian software companies support software patenting because they have huge contracts with the large software companies in the United States and Europe who do.<br /> <br />The Indian Patent Act of 1970 did not allow for software patents until 2002 when an amendment, which ironically excluded “computer programmes per se” from the scope of patenting, was introduced.<br /> <br />The amendment implied that while computer programmes themselves were not eligible for patents, programmes used in combination with hardware were. The Act was further amended through an ordinance in 2005 to narrow the scope of software excluded, but the ordinance was rejected by the Indian<br /> <br />Parliament and the Act effectively reverted to what it was after the 2002 amendment. “The law has left it somewhat ambiguous,” said Abraham. “Nobody is sure what can or cannot be patented. Many people are using the clause “computer programmes per se” to get pure software patents.”<br /> <br />This occurs either due to incompetence among patent officers or by accident, he said. “While many of the patent officers have expertise in the area of industrial inventions or medical inventions, very few know enough about software patents at the moment.”</p>
<p style="text-align: justify; ">-- Akhila Seetharaman</p>
<p>
For more details visit <a href='https://cis-india.org/news/time-out-software-patenting'>https://cis-india.org/news/time-out-software-patenting</a>
</p>
No publisherpraneshOpennessSoftware PatentsAccess to Knowledge2013-01-16T06:39:27ZNews ItemWorld Day Against Software Patents
https://cis-india.org/news/world-day-against-software-patents
<b>A global coalition of more than 80 software companies, associations and developers has declared the 24th of September to be the "World Day Against Software Patents". The Hindu, a national daily dedicated one page of its Bangalore edition to software patents and software freedom. Deepa Kurup contributed written two articles titled "Will patenting take the byte out of IT here?" and "How would it be if you read only one type of book?" which reflects some of the concerns of the Free/Libre/Open Source Software community. </b>
<h2>Will patenting take the byte out of IT here? [<a class="external-link" href="http://www.hinduonnet.com/thehindu/thscrip/print.pl?file=2008092461910300.htm&date=2008/09/24/&prd=th&">link</a>]</h2>
<p>Deepa Kurup</p>
<blockquote>
<p>There has been little debate on patent laws and the software industry. Today is World Day Against Software Patents.</p>
<p>IT software, services and outsourcing industry has been rooting for software patenting<br />Delhi Patent Office receives around 50 applications for software patents every month</p>
</blockquote>
<p style="text-align: justify; "><br />BANGALORE: Picture this. Indian mathematicians came up with the concept of the “zero” — often touted as India’s greatest contribution to civilisation — and got a patent for it. By now they would have raked in inestimable amounts in royalty. Seems preposterous? Members of the Free Software community say that patenting every other algorithm would be somewhat in the same league.<br /><br />While there has been substantial discussion on how patents will affect the pharmaceutical sector, there has been little debate about its implications on the software industry. To the layman, software patenting sounds like an abstract issue applicable to an even more abstract domain. However, with a growing software industry which is trying to spread its indigenous roots, the issue becomes an important one.<br /><br />Traditionally, software comes under the Copyright Law (just like any literary work) and anyone who writes a program owns it. After Indian Parliament in 2005 scrapped an ordinance which declared “software in combination with hardware” patentable, the controversial and ambiguous clause — “software per se” — has now resurfaced in a recently formulated Patent Manual.<br /><br />And how will the common man be affected by this proposed change in the patent manual? For example, when Global Patent Holdings patented usage of images on websites, a bunch of small and big companies had to cough up to $50 million each. And where does this cost reflect? “The consumer will find that products will get a lot more expensive. Take a DVD player which has about 2,000 patents (many of them software-related). Every time a local company makes a DVD player, they have to pay royalties and the costs will naturally be reflected on the sale price,” says Sunil Abraham of Centre for Internet and Society, a research and advocacy organisation.<br />Backdoor entry<br /><br />The Free Software community feels that patents will make a backdoor entry, courtesy this manual and that ongoing public consultation (by the Patent Office) does not take their voices into account. Mr. Abraham says: “We feel that the powerful software lobbies around are pushing for this clause. If allowed, it will affect the basis of innovation, and will in turn affect the industry.” While the Bangalore consultation was “postponed indefinitely,” the Patent Office in its Delhi meeting said this issue called for an “exclusive meeting with the software industry.”<br /><br />The powerful IT software, services and outsourcing industry has been rooting for software patenting. Under the guile of the seemingly innocuous clause in the Indian Patent Bill 2005, software companies and the MNC lobby is trying to carve out a slice for the specific “software embedded with hardware” industry saying that it will increase the value of indigenous home-grown software, pump up software exports and thereby rake in greater revenue.<br /><br />However, the other side of the story is worth telling. Software, per se, is simply a set of instructions to carry out a certain process. Software experts put forth the argument that big corporations — with money, muscle and hired talent — will seek to impose patents along the software value chain, starting from source code to the recent demand for “embedded software.”<br /><br />Sources in the Delhi Patent Office say that they receive around 50 applications for software patents every month. In the U.S. 25,000 patents are granted every year. In a software-driven world, blurring the lines between software and software “per se” could be risky. “Patenting is an expensive and tedious process. The challenge for every programmer would be to verify each time, to see if any two lines of his code would infringe upon a patent. In the U.S., a single verification can cost as much as $5,000. The fundamental issue is that if I arrive at anything independently, should I not use it only because someone had got it patented before me?” asks a senior official at Red Hat, an open source service provider.<br /><br />A paper written by members of the Alternative Law Forum (ALF), the case against software patenting is presented as a very basic one. “Software evolves much faster than other industries, even with its own hardware industry. Microprocessors double in speed every two years. So, a patent that lasts up to 17 years (minimum period -15) is alarming. In this field, the idea underlying may remain the same but a product has to be replaced on an average of every two years,” it states. The paper also points out that in software “research costs are little because ideas are as abundant as air.”<br /><br />Prashant Iyengar of ALF feels that patent laws will effectively curtail innovation, like it has done in the U.S. “Software, unlike other industries in India, is end-driven but is also on a “body shopping” model. Given that, a strong start-up company will be either be shut down or bought over if patent laws come in,” he explains.</p>
<h3>How would it be if you read only one type of book? [<a class="external-link" href="http://www.hinduonnet.com/thehindu/thscrip/print.pl?file=2008092550590300.htm&date=2008/09/25/&prd=th&">link</a>]</h3>
<p>Deepa Kurup</p>
<blockquote>
<p>Little or no attention is paid to what is being taught in schools and colleges</p>
</blockquote>
<p style="text-align: justify; ">BANGALORE: A computer literacy programme in a public sector organisation teaches the following modules: MS Office, MS Power Point, MS Excelsheet and Internet Explorer. A glance through the “computer syllabus” in most schools, and the list is similar. All items on this checklist have one thing in common: proprietary software. So, if every computer user is being taught exclusively on proprietary platforms, would they ever be comfortable switching to the easier, cheaper and readily available alternatives?<br /><br />Advocates of Free Software — software which can be used, studied and distributed without restriction — say that this is a ploy by proprietors to turn learners into potential customers. They allege that educational systems and the State are in cahoots with these large corporations which insist that children and learning adults be taught to only follow their system.<br /><br />In a recent meeting with a State Government official about the use of Free Software on e-governance platforms, the official complained that none of his officials knew how to use it or repair it if things went wrong.<br /><br />“This takes you to the root of the problem,” says Sunil Abraham of Centre for Internet and Society, Bangalore. “Students are taught to use only proprietary software. The Government is subsidising training in proprietary technology and little or no attention is paid to what is being taught in schools and colleges,” he explains.<br /><br />The “back-office” tag that our IT industry has learnt to live with is also a product of this malaise, experts point out. “When students learn only proprietary software, they will qualify only as computer operators and never learn about using the nuts and bolts of the profession. This is one of the reasons why there are no innovative products that come out of this country,” says Mr. Abraham.<br />Simple analogy<br /><br />A simple analogy would be that of a child taking up reading as a habit. If a child reads a lot of books, they say, they learn to write and express better. Academics feel that in the absence of any familiarity with Free Software, where the source is easily available, engineering students and computer graduates never get to read any code and are thus hardly familiar with the languages.<br /><br />FOSS supporters have written to the Ministry of Human Resource Development and several universities to point this out. Anivar Aravind, a member of Free Software Users Group, says that the progress so far has been staggered. Recently, CDAC and Anna Univeristy (KB Chandrashekar Research Centre) came up with a Free Software syllabus and offers trained to teachers in engineering colleges.<br />Cost factor<br /><br />A study by International Open Source Network (an UNDP initiative) study on FOSS and education states that using open source software could reduce the costs involved in ICT education significantly. In a country like ours, this fact that Open Source Software usually involves low or no cost would be perceived as an important step towards reducing the digital divide. With no licensing fee, they can be made available on CD or downloaded.</p>
<p>
For more details visit <a href='https://cis-india.org/news/world-day-against-software-patents'>https://cis-india.org/news/world-day-against-software-patents</a>
</p>
No publisherpraneshSoftware PatentsAccess to Knowledge2013-01-16T07:15:16ZNews ItemCI IP Watch List 2009 - India Report
https://cis-india.org/publications-automated/cis/pranesh/IP%20Watch%20List%20-%20India%20Report.pdf
<b>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.</b>
<p>
For more details visit <a href='https://cis-india.org/publications-automated/cis/pranesh/IP%20Watch%20List%20-%20India%20Report.pdf'>https://cis-india.org/publications-automated/cis/pranesh/IP%20Watch%20List%20-%20India%20Report.pdf</a>
</p>
No publisherpraneshIntellectual Property RightsCopyrightAccess to Knowledge2009-12-09T10:09:52ZFilePUPFIP Bill
https://cis-india.org/a2k/publications/pupfip
<b>A new bill which tries to promote innovation through privatization of public-funded research and is unnecessary, misguided, and will prove harmful to Indian research, innovation, and will harm the interests of taxpayers and consumers.</b>
<p>
For more details visit <a href='https://cis-india.org/a2k/publications/pupfip'>https://cis-india.org/a2k/publications/pupfip</a>
</p>
No publisherpraneshAccess to Knowledge2011-08-20T15:15:08ZFolderArguments Against the PUPFIP Bill
https://cis-india.org/a2k/publications/pupfip/why-no-pupfip
<b>The Protection and Utilisation of Public Funded Intellectual Property Bill (PUPFIP Bill) is a new legislation being considered by Parliament, which was introduced in the 2008 winter session of the Rajya Sabha. It is modelled on the American Bayh-Dole Act (University and Small Business Patent Procedures Act) of 1980. On this page, we explore some of the reasons that the bill is unnecessary, and how it will be harmful if passed.</b>
<h2>Summary</h2>
<h2 style="text-align: justify;"><a title="How is the legislation unnecessary?" href="#how-is-the-legislation">How is the legislation
unnecessary?</a></h2>
<ol><li><a title="1) The Indian government
does not have vast reserves of underutilized patents, as the U.S. did
in 1980." href="#1-the-indian-government">The Indian government does not have vast reserves of underutilized patents, as the U.S. did in 1980.</a></li><li><a title="2) Technology transfer is very important, but pushing IPRs aggressively is not the best way of ensuring technology transfer." href="#2-technology-transfer-is">Technology transfer is very important, but pushing IPRs aggressively is not the best way of ensuring technology transfer.</a></li></ol>
<p align="justify"> </p>
<h2 style="text-align: justify;"><a title="How is the legislation
harmful?" href="#how-is-the-legislation-1">How is the legislation
harmful?</a></h2>
<ol><li><a title="1) It's very foundation
is flawed and unproven: excessive patenting lead to gridlocks and
retard innovation." href="#1-it-s-very">Excessive patenting lead to
gridlocks and retards innovation.
</a></li><li><a title="2) The legislation makes
mandatory that which is optional now, and is anyway being followed in
many institutions." href="#2-the-legislation-makes">The legislation
makes mandatory that which is optional now, and is anyway being
followed in many institutions.</a></li><li><a title="3) Copyright, trademark,
etc., seem to be covered under the definition of public funded
IP." href="#3-copyright-trademark-etc">Copyright,
trademark, etc., seem to be covered under the definition of “public
funded IP”.</a></li><li><a title="4) It will result in
a form of double taxation for research, and will increase the consumer cost of
all products based on publicly-funded..." href="#4-it-will-result">It will result in
a form of double taxation for research, and will increase the consumer cost of
all products based on publicly-funded research.</a></li><li><a title="5) It could have
unintended consequences of varied kinds, including discouraging
fundamental research as well as discouraging industrial..." href="#5-it-could-have">It could have
unintended consequences of varied kinds, including discouraging
fundamental research as well as discouraging industrial research.</a></li><li><a title="6) Non-disclosure
requirements in the Bill restricts the dissemination of research within the academic community, and curtails freedom of..." href="#6-non-disclosure-requirements">Non-disclosure
requirements in the Bill restricts the dissemination of research within the academic community, and curtails freedom of speech.</a></li><li><a title="7) Exclusive licensing enables restriction on the dissemination of
academic research in the marketplace, and increase in cost of products..." href="#7-exclusive-licensing-enables">Exclusive
licensing enables restriction on the dissemination of academic research in the marketplace, and increase in cost of products based on public-funded research.</a><br /></li></ol>
<p align="justify"> </p>
<h2 align="justify"><a title="Additional Resources" href="#additional-resources">Additional resources</a></h2>
<ul><li><a title="On the PUPFIP Bill" href="#on-the-pupfip-bill">On the PUPFIP Bill</a></li><li><a title="On Bayh-Dole" href="#on-bayh-dole">On Bayh-Dole</a></li></ul>
<h2 align="justify"><br /></h2>
<h2 align="justify">Arguments<br /></h2>
<h2 align="justify"><a name="how-is-the-legislation"></a>How is the legislation unnecessary?<br /></h2>
<h3 align="justify"><a name="1-the-indian-government"></a>1) The Indian government
does not have vast reserves of underutilized patents, as the U.S. did
in 1980.</h3>
<p align="justify">The idea behind the
Bayh-Dole Act was that the research funded by the government (and
owned, in the US, by the government) was being underutilized. In 1980, over 28,000 unlicensed patents lay with the U.S. government.[1] The Act shifted the title of such works
from the government to the University or small business that
conducted the research, thus allowing them to take out patents on the
research outputs. In India, under present laws, the researcher(s)
own the rights over their research whether they be government-funded
or not. Usually, due to employment contracts, the research
institutes already have the right to patent their inventions. Thus,
currently, there is no need for an enabling legislation in this
regard, as there was in the U.S. </p>
<p align="justify">In fact, currently, the Council of
Scientific and Industrial Research (CSIR) has over 5173 patents
(counting both those in force and those under dispute), while only
222 patents are licensed (with 68 of them being under dispute).
Thus, even with the IP being in the institute's hands, there is a
"problem" situation similar to that which necessitated
Bayh-Dole in the U.S. Thus, quite contrary to the aims of the Act,
further patenting will only lead to a situation of even more
underutilized patents.</p>
<p align="justify"> </p>
<h3 style="text-align: justify;"><a name="2-technology-transfer-is"></a>2) Technology transfer is very important, but pushing IPRs aggressively is not the best way of ensuring technology transfer.</h3>
<p align="justify">At a recent seminar held at NUJS Kolkata on
the PUPFIP Bill, it was revealed that while IIT-Kharagpur’s
TTO-equivalent (called the Sponsored Research & Industrial
Consultancy division - SRIC) currently handles over Rs.300 crores
through 850 projects, only around Rs. 5-15 crores (exact figures
weren't available) are currently made through its patent
portfolio.[2] Thus patents don't seem, on the face of things, to be the
best way of ensuring technology transfer. Indeed, the oft-cited 28,0000 unlicensed patents held by the U.S. government were composed primarily of patents for which industry had refused to take exclusive licences.[3]</p>
<p align="justify">Many contend that one of the most important functions of a patent is to get inventors to disclose their inventions rather than keep them as secrets. This reason for awarding a patent is invalidated if stronger protection is granted to trade secrets (no term limit, for instance) than for patents. Secondly, this reason for granting patents is not valid in case of government-funded research in academia and research
institutes. The culture of publication and the economy of reputation
are sufficient to ensure disclosure. Even without these intrinsic factors, there grant requirements can necessitate publication. If mere publication is believed to be insufficient, then the government would do well to ask for technology dissemination plans before grants are made. At any rate, monopoly rights in the form of patents are
thoroughly unnecessary.</p>
<p align="justify"> </p>
<h2 style="text-align: justify;"><a name="how-is-the-legislation-1"></a>How is the legislation
harmful?</h2>
<h3 align="justify"><a name="1-it-s-very"></a>1) Excessive patenting lead to gridlocks and
retard innovation.</h3>
<p align="justify">It sees protection of IPR
as the sole means of encouraging innovation and driving research to
the doorstep of consumers. The trend around the world is that of
exploring alternative forms of spurring innovation. Even in India,
CSIR has gone for an innovative "<a class="external-link" href="http://www.osdd.net/">Open Source Drug Discovery</a>"
project, which has proven very successful so far. Furthermore, recent literature shows that excessive
patenting is harming research and innovation by creating gridlocks.[4] If platform technologies and basic research (such as SNP) gets mired in patents, then the transaction costs increase (not only in terms of money, but more importantly in administrative terms). This ends up in research clearances getting blocked, and thus retards innovation. It must be remembered that intellectual property is not only an output, but also an input. The more aggressively the outputs are guarded and prevented from being shared, the more the inputs will be affected. The study of patent thickets and gridlocks has reached such a stage that the U.S. law has been changed to reflect this. Firstly, the Bayh-Dole Act was amended in 2000 to state that the objectives of the Bayh-Dole Act were to be carried out "without unduly encumbering future research and discovery". Now, the courts (in the <em>Bilski</em> case) have increased the standard of obviousness in patent law (which means that less patents will be granted). Furthermore, the U.S.P.T.O. and the U.S. Senate are currently considering means of overhauling the U.S. patent system, which many fear is close to breaking down due to over-patenting. All these are signs that the footsteps we are seeking to follow are themselves turning back.</p>
<p align="justify"> </p>
<h3 align="justify"><a name="2-the-legislation-makes"></a>2) The legislation makes
mandatory that which is optional now, and is anyway being followed in
many institutions.</h3>
<p align="justify">While the CSIR labs
pursue patents aggressively, they also run the OSSD project. The latter
might not be permissible if the Act is passed as it stands.
Furthermore, this would increase the number of underutilized patents,
which is a problem faced currently by CSIR, which has had an
aggressive patent policy since the 1990s. Unlicensed patents constitute around 93% of CSIR's total patent portfolio. (In contrast, MIT averages
around 50% licensing of patents.) If aggressive patenting is made mandatory, it adds substantially to administrative costs of all institutes which receive any grants from the government. These institutes might not be large enough to merit a dedicated team of professionals to handle</p>
<p align="justify"> </p>
<h3 align="justify"><a name="3-copyright-trademark-etc"></a>3) Copyright, trademark,
etc., seem to be covered under the definition of "public funded
IP".</h3>
<p align="justify">This leads to a ridiculous need to attempt to commercialise
all government-funded research literature (and the government funds
science research, social sciences, arts, etc.). Furthermore, while the definition of "public funded IP" includes copyrights, trademarks, etc., yet the substantive provisions seem to only include those forms of IP which have to be registered compulsorily (copyright and trademark don't -- copyright comes into existence when an original work is expressed in a medium, and trademark can come into existence by use). Importantly, seeking to commercialise all copyrighted works of research would hamper
the movement for open access to scholarly literature. The inititative towards open access to scholarly literature is something that National Knowledge Commission has recommended, and is a move that would result in increased dissemination of public-funded research, which seems to be an aim of the PUPFIP Bill as well.</p>
<p align="justify"> </p>
<h3 align="justify"><a name="4-it-will-result"></a>4) It will result in
a form of double taxation for research, and will increase the consumer cost of
all products based on publicly-funded research.</h3>
<p align="justify">This bill would increase the
consumer cost of all products based on publicly-funded research,
because of the additional burden of patent royalties. </p>
<p align="justify">Public funds research -> Institute patents research -> Pharma MNC gets exclusive license over research -> Drug reaches market.</p>
<p align="justify">Assuming an exclusive licence: Cost of the drug = cost of manufacturing, storage, etc. + <em>mark-up (monopolistic) cost</em> + <em>cost of licence</em>.</p>
<p align="justify">Thus, in
effect, the public has to pay twice for the research: it pays once to enable the
scientist to conduct the research, and once again in the form of royalties to have that research brought to the marketplace. </p>
<p align="justify"> </p>
<h3 align="justify"><a name="5-it-could-have"></a>5) It could have
unintended consequences of varied kinds, including discouraging
fundamental research as well as discouraging industrial research.</h3>
<p align="justify">The former could happen since
institutions and individual scientists have a financial incentive to
<a class="external-link" href="http://www.researchoninnovation.org/tiip/archive/2003_5b.htm">shift their focus away from fundamental research</a>; the latter,
conversely, because the filings and bureaucracy involved <a class="external-link" href="http://www.spicyip.com/docs/ppt-premnath-pdf.pdf">could drive
scientists away from reporting or even engaging in industrial
research</a> [pdf]. Faculty and researcher involvement in the business of
licensing is a sub-optimal usage of their talents, and there are
scientists who would rather stay away from business (as is shown by
the intake of former industry-researchers into government-funded labs
such as those of CSIR).</p>
<p align="justify"> </p>
<h3 align="justify"><a name="6-non-disclosure-requirements"></a>6) Non-disclosure
requirements in the Bill restricts the dissemination of research within the academic community, and curtails freedom of speech.<br /></h3>
<p align="justify">This will bring about a shift in science and research which is always done upon others' work. This is why in the U.S., the National Institute of Health (N.I.H.) has sought to ensure (without any legal authority) that it only finances that research that on single nucleotide polymorphism (S.N.P.) which is not patented, and is shared freely amongst scholars. Since this requirement of the N.I.H.'s does not have any legal backing (since it is contradictory to the Bayh-Dole Act), institutions are free to get the grant from N.I.H. and then go ahead and patent their inventions.</p>
<p align="justify"> </p>
<h3 align="justify"><a name="7-exclusive-licensing-enables"></a>7) Exclusive licensing enables restriction on the dissemination of
academic research in the marketplace, and increase in cost of products
based on public-funded research.</h3>
<p>The bill allows for both assignment of licences as well as exclusive licences. Both of these enable monopolistic pricing to be undertaken by the licensee/assignee. There are not even any mechanisms in the Act to ensure, for instance, that a public call is made to ascertain that no parties are willing to consider a non-exclusive licence. Patents are generally said to grant a monopoly right because of the opportunity to recover costs of research and development. When the research is being done by public-funded money, there is no justification for monopoly rights on that research, since there are no excessive costs to recover.</p>
<p> </p>
<p align="justify">Footnotes:</p>
<p align="justify">[1] See <a class="external-link" href="http://www.plosbiology.org/article/info:doi/10.1371/journal.pbio.0060262">So et al.</a> and <a class="external-link" href="http://opensource.mit.edu/papers/Thursby.pdf">Thursby and Thursby</a>, quoted in the <a class="external-link" href="http://knowledgecommission.gov.in/downloads/recommendations/LegislationPM.pdf">National Knowledge Commission's letter to the Prime Minister</a>.</p>
<p align="justify">[2] See Prof. Vivekanandans' presentation "<a class="external-link" href="http://www.spicyip.com/docs/ppt-vivek.pdf">Patenting and Technology Transfer-the IIT Khargpur Experience</a>"</p>
<p align="justify">[3] See <a class="external-link" href="http://www.plosbiology.org/article/info:doi/10.1371/journal.pbio.0060262">Anthony So et al., <em>Is Bayh-Dole Good for Developing Countries</em>, 6 PLoS Biol e262 (2008)</a></p>
[4] See <a class="external-link" href="http://www.sciencemag.org/cgi/content/full/280/5364/698">Michael A. Heller & Rebecca S. Eisenberg, Can Patents Deter Innovation? The Anticommons in Biomedical Research, 280 Science 698 (1998)</a>
<p> </p>
<p align="justify"> </p>
<h2 style="text-align: justify;"><a name="additional-resources"></a>Additional Resources</h2>
<h3><a name="on-the-pupfip-bill"></a>On the PUPFIP Bill</h3>
<ul><li>February 5, 2004: <a class="external-link" href="http://www.expresspharmaonline.com/20040205/happenings05.shtml">NIPER holds parallel session of Indian Science Congress (Express Pharma)</a> <br /></li><li>October 27, 2006: <a class="external-link" href="http://bayhdole25.org/node/40">Susan
Finston, India to Propose New Technology Transfer Legislation
(Bayh-Dole 25)</a></li><li><span id="__citationid396739" class="citation">January 16, 2007: <a class="external-link" href="http://knowledgecommission.gov.in/downloads/recommendations/LegislationPM.pdf">National Knowledge Commision's Letter to Indian Prime Minister (National Knowledge Commission)</a> </span></li><li>April 15, 2007: <a class="external-link" href="http://www.downtoearth.org.in/full6.asp?foldername=20070415&filename=news&sid=23&page=2&sec_id=50">Archita Bhatta, Proposed IPR law raises concern (Down to Earth)</a></li><li>May 31, 2007: <a class="external-link" href="http://www.pib.nic.in/release/release.asp?relid=28342">Science & Technology needs to be core of the economic development says Kapil Sibal (<span class="Apple-style-span"></span></a><a class="external-link" href="http://www.pib.nic.in/release/release.asp?relid=28342">PIB Press Release)</a></li><li>November 13, 2007: <a class="external-link" href="http://www.pib.nic.in/release/rel_print_page.asp?relid=32628">Government Accords Approval to National Biotechnology Development Strategy (PIB Press Release)</a></li><li>February 1, 2008: <a class="external-link" href="http://www.sciencemag.org/cgi/content/summary/319/5863/556a">Yudhijit Bhattacharjee, Indian Government Hopes Bill Will Stimulate Innovation (Science)</a> </li><li>February 19, 2008: Shamnad Basheer, Exporting Bayh Dole to India: Whither Transparency? <a class="external-link" href="http://spicyipindia.blogspot.com/2008/02/exporting-bayh-dole-to-india-whither.html">(Part 1)</a> <a class="external-link" href="http://spicyipindia.blogspot.com/2008/02/exporting-bayh-dole-to-india-whither_21.html">(Part 2)</a> (SpicyIP)<br /></li><li>March 17, 2008: <a class="external-link" href="http://www.business-standard.com/india/storypage.php?autono=317122">Kalpana Pathak, Varsities may soon own patent rights (Business Standard)</a> <br /></li><li>March 17, 2008: <a class="external-link" href="http://www.thehindubusinessline.com/2008/03/17/stories/2008031751080100.htm">P.T. Jyothi Datta, Public-funded research may pay dividends for scientists (Business Line)</a></li><li>March 17, 2008: <a class="external-link" href="http://www.iam-magazine.com/blog/Detail.aspx?g=c2472b7c-0f57-4e16-b1ea-389c44c3b4a6">Joff Wild, India considers Bayh-Dole style legislation (IAM Magazine)</a><br /></li><li>April 30, 2008: <a class="external-link" href="http://www.pharmabiz.com/article/detnews.asp?articleid=44083&sectionid=46">M.K. Unnikrishnan and Pradeepti Nayak, Lessons from Bayh Dole Act and its relevance to India (PharmaBiz)</a></li><li>July 2008: <a class="external-link" href="http://ssrn.com/abstract=1265343">Sean M. O'Connor, Historical Context of U.S. Bayh-Dole Act: Implications for Indian Government Funded Research Patent Policy (STEM Newsletter)</a><br /></li><li>July 7, 2008: Shamnad Basheer, <a class="external-link" href="http://spicyipindia.blogspot.com/2008/07/mysterious-indian-bayh-dole-bill.html">Mysterious Indian "Bayh Dole" Bill: SpicyIP Procures a Copy (SpicyIP)</a></li><li>July 09, 2008: <a class="external-link" href="http://www.business-standard.com/india/storypage.php?autono=328187">Latha Jishnu, Does India need a Bayh-Dole Act? (Business Standard)</a><br /></li><li>September 2008: <a class="external-link" href="http://nopr.niscair.res.in/handle/123456789/2036">V.C. Vivekanandan, Transplanting Bayh-Dole Act- Issues at Stake Authors (13 Journal of Intell. Prop. 480)</a></li><li>September 18, 2008: <a class="external-link" href="http://www.scidev.net/en/opinions/indian-patent-bill-let-s-not-be-too-hasty.html">Shamnad Basheer, Indian Patent Bill: Let's not be too hasty (SciDev.net)</a></li><li>October 28, 2008: <a class="external-link" href="http://www.plosbiology.org/article/info:doi/10.1371/journal.pbio.0060262">Anthony So et al., <em>Is Bayh-Dole Good for Developing Countries</em>, 6 PLoS Biol e262 (2008)</a></li><li>October 31, 2008: <a class="external-link" href="http://pib.nic.in/release/release.asp?relid=44316">Cabinet gives approval for Protection and Utilization of Public Funded Intellectual Property Bill, 2008 (</a><a class="external-link" href="http://pib.nic.in/release/release.asp?relid=44316">PIB Press Release)</a></li><li>November 2008: <a class="external-link" href="http://www.essentialmedicine.org/wordpress/wp-content/uploads/2008/11/uaem-white-paper-on-indian-bd-act.pdf">Annette Lin et al., The Bayh-Dole Act and Promoting the Transfer of Technology of Publicly Funded-Research (UAEM White Paper on the Proposed Indian Bayh-Dole Analogue)</a> <br /></li><li>November 1, 2008: <a class="external-link" href="http://www.livemint.com/2008/10/11002336/2008/11/01001052/Not-in-public-interest.html?d=2">Editorial: Not in Public Interest (Mint)</a><br /></li><li>November 12, 2008: <a class="external-link" href="http://www.genomeweb.com/biotechtransferweek/india-mulls-bill-modeled-bayh-dole-critics-claim-it-may-stifle-innovation">Ben Butkus, As India Mulls Bill Modeled on Bayh-Dole, Critics Claim It May Stifle Innovation (Biotech Transfer Weekly)</a> <br /></li><li>December 16, 2008: <a class="external-link" href="http://mail.sarai.net/pipermail/commons-law/2008-December/002973.html">Pranesh Prakash, Indian "Bayh Dole" Bill before Parliament (Commons Law)</a></li><li>January 23, 2009: <a class="external-link" href="http://www.scidev.net/en/editorials/time-to-rethink-intellectual-property-laws-.html">Editorial: Time to Rethink Intellectual Property Laws (SciDev.net)</a><br /></li><li>March 12, 2009: <a class="external-link" href="http://www.thehindu.com/seta/2009/03/12/stories/2009031250021400.htm">Feroz Ali Khader, Does Patenting Research Change the Culture of Science? (The Hindu)</a><br /></li><li>April 24, 2009: <a class="external-link" href="http://www.indianexpress.com/story-print/450560/">Sunil Abraham & Pranesh Prakash, Does India Need Its Own Bayh-Dole? (Indian Express)</a></li><li>September 21, 2009: <a class="external-link" href="http://www.livemint.com/2009/09/20235448/Proposed-patent-Bill-is-flawed.html?h=A1">C.H. Unnikrishnan, Proposed Patent Bill Is Flawed, Say Experts (Mint)</a></li><li>September 23, 2009: <a class="external-link" href="http://www.livemint.com/Articles/PrintArticle.aspx?artid=F92B5F6A-A789-11DE-A362-000B5DABF613">Editorial: An Idea That's A Patent Misfit (Mint)</a><br /></li><li>October 2009: <a class="external-link" href="http://ictsd.org/downloads/2009/11/sampat-policy-brief-5.pdf">Bhaven N. Sampat, The Bayh-Dole Model in Developing Countries: Reflections on the Indian Bill on Publicly Funded Intellectual Property (UNCTAD - ICTSD Policy Brief No. 5)</a><br /></li><li>January 2010: <a class="external-link" href="http://www.icrier.org/publication/WorkingPaper244.pdf">Amit Shovon Ray & Sabyasachi Saha, Patenting Public-Funded Research for Technology Transfer: A Conceptual-Empirical Synthesis of US Evidence and Lessons for India (ICRIER Working Paper No. 244)</a></li><li>January 2010: <a class="external-link" href="http://nopr.niscair.res.in/bitstream/123456789/7196/1/JIPR%2015%281%29%2019-34.pdf">Mrinalini Kochupillai, <em>The Protection and Utilization of Public Funded Intellectual Property Bill, 2008: A Critique in the Light of India's Innovation Environment</em>, 15 J. Intell. Prop. Rights 19 (2010)</a><br /></li><li>January 16, 2010: <a class="external-link" href="http://www.financialexpress.com/printer/news/567807/">Amit Shovon Ray & Sabyasachi Saha, Intellectual Bottlenecks (Financial Express)</a><br /></li><li>January 21, 2010: <a class="external-link" href="http://www.business-standard.com/india/news/latha-jishnu-perilsthe-us-model/383179/">Latha Jishnu, Perils of the US Model (Business Standard)</a></li><li>January 22, 2010: <a class="external-link" href="http://timesofindia.indiatimes.com/india/Scientists-fume-over-new-patent-bill/articleshow/5486588.cms">Rema Nagarajan, Scientists Fume Over New Patent Bill (Times of India)</a></li><li>January 26, 2010: <a class="external-link" href="http://www.livemint.com/2010/01/26202909/The-problem-with-patents.html">Shamnad Basheer, The Problem with Patents (Mint)</a><br /></li><li>February 5, 2010: <a class="external-link" href="http://www.thehindubusinessline.com/2010/02/05/stories/2010020550960900.htm">Shalini Butani, Public Research May Become More Private (Business Line)</a></li><li>February 8, 2010: <a class="external-link" href="http://www.livemint.com/2010/02/07225403/Scientists-want-changes-in-inn.html">Anika Gupta, Scientists Want Changes in Innovation Bill (Mint)</a></li><li>February 9, 2010: <a class="external-link" href="http://www.livemint.com/Articles/PrintArticle.aspx?artid=AD533A7C-15A2-11DF-A92D-000B5DABF636">C.H. Unnikrishnan, Parliament Panel Wants Govt Review on Innovation Bill (Mint)</a><br /></li><li>February 15, 2010: <a class="external-link" href="http://www.downtoearth.org.in/full6.asp?foldername=20100215&filename=croc&sec_id=10&sid=2">Leena Menghaney, A Bad Example from the U.S. (Down to Earth)</a></li><li>February 19, 2010: <a class="external-link" href="http://www.indianexpress.com/story-print/581701/">Pranesh Prakash, A Patent Conundrum (Indian Express)</a><br /></li><li><a class="external-link" href="http://spicyipindia.blogspot.com/search/label/Bayh%20Dole">SpicyIP coverage by tag 'Bayh Dole'</a></li><li><a class="external-link" href="http://spicyip.com/ip-resources">Presentations from NUJS, Kolkata conference on the PUPFIP Bill</a><br /></li></ul>
<p> </p>
<h3><a name="on-bayh-dole"></a>On Bayh-Dole</h3>
<strong>Newspapers and Magazines</strong>
<ul><li><a class="external-link" href="http://www.nybooks.com/articles/17244">Marcia Angell, The Truth About the Drug Companies, New York Review of Books, July 15, 2004</a><br /></li><li><a class="external-link" href="http://money.cnn.com/magazines/fortune/fortune_archive/2005/09/19/8272884/index.htm">Clifton Leaf, The Law of Unintended Consequences, Fortune Magazine, Sept. 19, 2005</a></li><li><a class="external-link" href="http://www.economist.com/science/PrinterFriendly.cfm?story_id=5327661">The Bayh-Dole act's 25th birthday, The Economist, Dec. 20, 2005</a><br /></li><li><a class="external-link" href="http://www.nytimes.com/2008/09/07/technology/07unbox.html?_r=1&pagewanted=print">Janet Rae-Dupree, When Academia Puts Profit Ahead of Wonder, N.Y. Times, Sept. 7, 2008</a><br /></li></ul>
<p> </p>
<strong>Academic Journals</strong>
<ul><li><a class="external-link" href="http://www.btlj.org/data/articles/20_02_02.pdf">Amy Kapczynski et al., Addressing Global Health Inequities: An Open Licensing Approach for University Innovation, 20 Berkeley Tech. L.J. 1031 (2005) </a><br /></li><li><a class="external-link" href="http://www.plosbiology.org/article/info:doi/10.1371/journal.pbio.0060262">Anthony So et al., <em>Is Bayh-Dole Good for Developing Countries</em>, 6 PLoS Biol. e262 (2008)</a><br /></li><li><a class="external-link" href="http://www.law.duke.edu/shell/cite.pl?66+Law+&+Contemp.+Probs.+289+%28WinterSpring+2003%29">Arti K. Rai & Rebecca S. Eisenberg, <em>Bayh-Dole Reform and the Progress of Biomedicine</em>, 66 Law & Contemp. Probs. 289 (2003)</a></li><li>David C. Mowery & Arvids A. Aiedonis, <em>Numbers, Quality, and Entry: How Has the Bayh-Dole Act Affected U.S. University Patenting and Licensing?</em>, 1 Innovation Pol'y Econ. 187 (2000)</li><li>David C. Mowery, et al., <em>Learning to Patent: Institutional Experience, Learning, and the Characteristics of U.S. University Patents After the Bayh-Dole Act, 1981-1992</em>, 48 Mgmt. Sci. 73 (2002)</li><li>Donald Kennedy, <em>Editorial: Enclosing the Research Commons</em>, 294 Science 2249 (2001)</li><li>F.M. Scherer, <em>The Political Economy of Patent Policy Reform in the United States</em>, 7 Colorado J. Telecomm. High Tech. L. 167 (2009)</li><li>Henry Steck, <em>Corporatization of the University: Seeking Conceptual Clarity</em>, 585 Annals of Am. Acad. Pol. & Soc. Sci. 66 (2003)</li><li>Jason Owen-Smith, <em>Trends and Transitions in the Institutional Environment for Public and Private Science</em>, 49 Higher Educ. 91 (2005)</li><li>Jerry G. Thursby & Marie C. Thursby, <em>University Licensing and the Bayh-Dole Act</em>, 301 Science 1052 (2003)</li><li>Jerry G. Thursby & Marie C. Thursby, <em>Who is Selling the Ivory Tower? Sources of Growth in University Licensing</em>, 48 Mgmt. Sci. 90 (2002)</li><li>Josh Lerner,<em> Review of 'Ivory Tower'</em>, 43 J. Econ. Litt. 510 (2005)</li><li>Joshua B. Powers,<em> R&D Funding Source and University Technology Transfer: What is Stimulating Universities to Be More Entrepreneurial?</em>, 45 Research in Higher Educ. 1 (2004)</li><li>Lita Nelsen, <em>The Rise of Intellectual Property Protection in the American University</em>, 279 Science 1460 (1998)</li><li>Marcia Angell & Arnold S. Relman, <em>Patents, Profits & American Medicine: Conflicts of Interest in the Testing & Marketing of New Drugs</em>, 131 Daedalus 102 (2002)</li><li>Maria Jelenik, <em>Review: Two Books on Technology Transfer</em>, 50 Admin. Sci. Q. 131 (2005) (Review of '<em>Ivory Tower</em>')</li><li><a class="external-link" href="http://www.sciencemag.org/cgi/content/full/280/5364/698">Michael
A. Heller & Rebecca S. Eisenberg, Can Patents Deter Innovation? The
Anticommons in Biomedical Research, 280 Science 698 (1998)</a></li><li>Rebecca Henderson, et al., <em>Universities as a Source of Commercia Technology: A Detailed Analsis of University Patenting, 1965-1988</em>, 80 Rev. Econ. Statistics 119 (1998)</li><li>Rebecca S. Eisenberg, <em>Public Research and Private Development: Patents and Technology Transfer in Government-Sponsorded Research</em>, 82 Virginia L. Rev. 1663 (1996)</li><li>Rebecca S. Eisenberg & Richard R. Nelson, <em>Public vs. Proprietary Science: A Fruitful Tension?</em>, 131 Daedalus 89 (2002)</li><li>Richard Jensen & Marie Thursby,<em> Proofs and Prototypes for Sale: The Licensing of University Inventions</em>, 91 Am. Econ. Rev. 240 (2001)</li><li>Roberto Mazzoleni & Richard R. Nelson, <em>Economic Theories about the Benefits and Costs of Patents</em>, 32 J. Econ. Issues 1031 (1998)</li><li>Thomas A. Massaro,<em> Innovation, Technology Transfer, and Patent Policy: The University Contribution</em>, 82 Virginia L. Rev. 1729 (1996)</li><li>Walter W. Powell & Jason Owen-Smith, <em>Universities and the Market for Intellectual Property in the Life Sciences</em>, 17 J. Pol'y Analysis Mgmt. 253 (1998)</li><li>William M. Sage, <em>Funding Fairness: Public Investment, Proprietary Rights and Access to Health Care Technology</em>, 82 Virginia L. Rev. 1737 (1996)</li><li>Zach W. Hall & Christopher Scott, <em>University-Industry Partnership</em>, 291 Science 553 (2001)</li></ul>
<p> </p>
<strong>Resources</strong>
<ul><li><a class="external-link" href="http://www.researchoninnovation.org/tiip/archive/issue2003_5.htm">TIIP Newsletter: Patents and University Technology Transfer (2003) </a></li><li><a class="external-link" href="http://www.bayhdole25.org">Bay-Dole 25</a></li></ul>
<p> </p>
<p> </p>
<img src="file:///C:/Users/REBECCA/AppData/Local/Temp/moz-screenshot.png" alt="" />
<p>
For more details visit <a href='https://cis-india.org/a2k/publications/pupfip/why-no-pupfip'>https://cis-india.org/a2k/publications/pupfip/why-no-pupfip</a>
</p>
No publisherpraneshBayh-DoleAccess to KnowledgeAccess to MedicineIntellectual Property RightsPUPFIPPatentsPublications2011-09-12T11:03:09ZPageResources
https://cis-india.org/a2k/publications/pupfip/resources
<b>A collection of resources that will help one navigate through the arguments and evidence for and against the Indian "Bayh-Dole" bill.</b>
<p><u><strong><br /></strong></u></p>
<h2><strong>PUPFIP</strong></h2>
<h3>News-related/General Coverage</h3>
<p><a class="external-link" href="http://www.financialexpress.com/news/relook-at-publicfunded-r&d-bill-to-address-red-tape/376844/0">Relook at public-funded R&D Bill to
address red tape</a> (The Financial Express)</p>
<p><a class="external-link" href="http://www.livemint.com/2008/12/01144901/CSIR-looks-at-commercializing.html">CSIR looks at commercializing, leasing
out patent</a> (Live Mint)</p>
<p><a class="external-link" href="http://spicyipindia.blogspot.com/2008/02/exporting-bayh-dole-to-india-whither_21.html">Exporting Bayh-Dole to India: Whither Transparency Part II</a><span class="post-author"> (Shamnad Basheer)</span></p>
<p><a class="external-link" href="http://ww.scidev.net/es/science-and-innovation-policy/intellectual-property/news/proyecto-de-ley-de-patentes-suscita-debate-en-la-i.html">Indian Patent Bill stirs debate among scientists</a> (Science and Development Network)</p>
<p><a class="external-link" href="http://www.knowledgecommission.gov.in/recommendations/legal.asp">Letter from the Knowledge Commission</a> (GoI)</p>
<h3>Scientific
Culture</h3>
<p><a class="external-link" href="http://blogs.thehindu.com/delhi/?p=16251">Does Patenting research change the Culture of Science?</a> (The Hindu)</p>
<h3>Analytical Pieces<strong> </strong></h3>
<p>
<a class="external-link" href="http://www.scidev.net/en/opinions/indian-patent-bill-let-s-not-be-too-hasty.html">Indian Patent Bill: Lets not be too Hasty</a>(Shamnad Basheer)</p>
<p><a class="external-link" href="http://www.livemint.com/2008/11/01001052/Not-in-public-interest.html">Not in public interest</a>(Live Mint)<a class="external-link" href="http://findarticles.com/p/articles/mi_qa3867/is_6_128/ai_n32062853/"><br /></a></p>
<p><a class="external-link" href="http://findarticles.com/p/articles/mi_qa3867/is_6_128/ai_n32062853/">The Indian Public Funded IP Bill: Are we Ready?</a>(K. Satyanarayana)</p>
<p> </p>
<h2><strong>Bayh-Dole</strong></h2>
<h3>Technology
Transfer</h3>
<p>
<a class="external-link" href="http://www.economist.com/displaystory.cfm?story_id=1476653">Innovation's Golden Goose </a>(The Economist)</p>
<p><a class="external-link" href="http://www.economist.com/science/displaystory.cfm?STORY_ID=10787664">Improving Innovation</a>(The Economist)</p>
<h3><strong>Scientific
Culture</strong></h3>
<p>
<a class="external-link" href="http://www.highbeam.com/doc/1G1-129366990.html">Patents and America's Universities</a>(The Economist)</p>
<p><a class="external-link" href="http://www.nytimes.com/2008/09/07/technology/07unbox.html?_r=1&pagewanted=print">When Academia Puts Profits Ahead of Wonder</a>(The New York Times)</p>
<p>
<a class="external-link" href="http://www.economist.com/displayStory.cfm?Story_ID=E1_VPNSGGT">Bayhing for blood or Doling out cash?</a>(The Economist)</p>
<h3>Evaluative
Pieces</h3>
<p>
<a class="external-link" href="http://opensource.mit.edu/papers/Thursby.pdf">University Licensing under Bayh-Dole: What are the Issues and
Evidence?</a>(Thursby and Thursby)</p>
<p>
<a class="external-link" href="http://www.plosbiology.org/article/info:doi/10.1371/journal.pbio.0060262">Is Bayh-Dole Good for Developing Countries? Lessons from the US
Experience</a>(So et al.)</p>
<p><a class="external-link" href="http://money.cnn.com/magazines/fortune/fortune_archive/2005/09/19/8272884/index.htm">The Law of Unintended Consequences</a>(Fortune Magazine)</p>
<p><a class="external-link" href="http://www.sciencedirect.com/science/article/B6V77-41NCXY8-6/2/fa828bbd7705f51ffd8fcf60338daf16">The Growth of patenting and licensing by U.S. universities and the Bayh-Dole Act</a> (Mowery et al.)</p>
<p><a class="external-link" href="http://www.researchoninnovation.org/tiip/archive/2003_5g.htm">Overall Assessment of the Bayh-Dole Act</a> (Nelson, Mowery, et al.)</p>
<p> </p>
<h2><strong>General Resources</strong></h2>
<p> <a class="external-link" href="http://www.researchoninnovation.org/tiip/archive/2003_5b.htm">Joint Ventures and Intellectual Property</a>(Andreas Panagopoulos)</p>
<p><a class="external-link" href="http://www.researchoninnovation.org/tiip/archive/2003_5c.htm">Patents vs. Other Knowledge Transfer</a>(Agrawal and Henderson)</p>
<p><a class="external-link" href="http://www.researchoninnovation.org/tiip/archive/2003_5f.htm">Incentives Structure and Licensing Success</a>(Dan Elfenbein)</p>
<p><a class="external-link" href="http://www.researchoninnovation.org/tiip/archive/2003_5e.htm">University Licensing and Research Behavior</a>(Lach and Schankerman)</p>
<a class="external-link" href="http://www.researchoninnovation.org/tiip/archive/2003_5b.htm">Open Science and Private Property</a>(Paul David)
<p> <strong><br /></strong></p>
<h2><strong>IP Alternatives</strong><br /></h2>
<p><a class="external-link" href="http://www.plosmedicine.org/article/info:doi%2F10.1371%2Fjournal.pmed.0040293">New Approaches to Filling the Gap in TB Drug Discovery </a>(Casenghi, Cole and Nathan)</p>
<p><a class="external-link" href="http://keionline.org/misc-docs/Prizes/prize_tb_msf_expert_meeting.pdf">The Role of Prizes in Developing Low-Cost Point-of-Care Rapid Diagnostic Tests and Better Drugs for TB</a>(James Love)</p>
<p>How to boost R&D for essential drugs and diagnostics</p>
<p><a class="external-link" href="http://bmj.com/cgi/reprint/333/7582/1279.pdf">Scrooge and intellectual property rights</a> (BMJ January 2006)</p>
<p> </p>
<p> </p>
<div id="refHTML"> </div>
<div id="refHTML"> </div>
<p>
For more details visit <a href='https://cis-india.org/a2k/publications/pupfip/resources'>https://cis-india.org/a2k/publications/pupfip/resources</a>
</p>
No publisherpraneshBayh-DoleAccess to KnowledgeAccess to MedicineOpen AccessPublic AccountabilityOpen Innovation2009-10-20T03:29:16ZPageWorld IT Forum 2009
https://cis-india.org/a2k/blogs/witfor-2009
<b>At the World IT Forum, Pranesh Prakash made a brief presentation on intellectual property rights, how ill-suited they are to be considered "property" rights, and how they have been foisted upon the developing world.</b>
<div class="moz-text-html">
<div class="moz-text-html">
<p>At the
recently-concluded World IT Forum, 2009, the Commission on Social, Ethical, and Legal Issues organized three sessions. One
on 'Digital Intellectual Property Rights and Digitisation of Divides',
a second on 'Employment of ICTs Toward Effective Realization of
Millenium Development Goals' and a third on 'E-Governance and
Biometrics: Evaluating Opportunities and Threats'. The individual
sessions had K.M. Gopakumar of Third World Network ("Digital Technology
and Access to Knowledge: Policy Space for the Third World), Naveen
Thayyil ("Digital IPRs: Implications for Divides in New and Emerging
Biotechnologies"), Anita Gurumurthy of IT for Change,("Reimagining the
Digital Opportunity" ), Chat Garcia Ramilo of APC Women's Networking
Support Programme ("Gender Dimensions of ICT Development"), Ajit
Narayanan of AUT ("What Does Your Passport Say About You?"), Sohel
Iqbal of Korea University ("Obligation and SWOT of E-Governance in
Developing Countries") and Dinh Ngoc Vuong of the Institute of
Lexicography and Encyclopedia of Vietnam ("Legal Aspects and Role of
E-Governance in Vietnamese Reforms") speaking. As part of the first
session, I spoke on how IPR as a property regime leads to
mischaracterisation, and how IPR is a foreign system for developing
countries. </p>
<p>Amongst the many reasons that IPR should not be regarded in the same
light as property (even though that conceptual framework is <a class="external-link" href="http://volokh.com/2003_09_07_volokh_archive.html#106337694122641243">supported
by the likes of Eugene Volokh</a>) are to be found in David Levine's
rejoinder to Volokh that <a class="external-link" href="http://levine.sscnet.ucla.edu/general/intellectual/coffee.htm">IPR
are analogous to property</a>, along with the <a class="external-link" href="http://lsolum.blogspot.com/2003_09_01_lsolum_archive.html#106338119420336709">two</a>
<a class="external-link" href="http://lsolum.blogspot.com/2003_09_01_lsolum_archive.html#106349932466050651">rejoinders</a>
by Larry Solum. Volokh's main point is that not only control of use
and excludability, but incentives to create are also part of property
law, for both tangible property and intangible "property". This is
questioned not only by David Levine and Larry Solum, but by Mark
Lemley, Wendy Gordon, and a host of other scholars. Three simple
points to note: (1) IP deals with internalisation of positive
externalities, which is not something we normally associate with
property law -- thus, IP actually <a class="external-link" href="http://volokh.com/posts/1173221206.shtml">does not give me
control over my 'property', but over yours</a>;
(2) IP deals with a truly non-exhaustable, non-rivalrous good -- ideas
-- which, as shown in the articles linked above, are not suited to
being governed by property regimes; (3) IP goes much beyond what
property law does with tangible property, since it not only governs the
sale of IP and exclusion of others from my IP, but also governs the
subsequent usage of IP.</p>
<p>Another relevant consideration is the way that IP law has been
spread through the globe through means like colonisation and modern-day
unbalanced trade treaties.&nbsp; India got its first copyright law
in 1914 and <a class="external-link" href="http://www.wipo.int/treaties/en/Remarks.jsp?cnty_id=969C">signed
the Berne Convention in 1928</a>,
much before its independence. The TRIPS Agreement of 1995 mandated
things like product patents for pharma products for all countries, even
though an industrialised Western country like Spain only started
recognizing them in 1992, and even though Italy, which was then the
fifth largest manufacturer of pharmaceutical products, was forced to
introduce product patents by a petition of foreign pharma companies in
1978. The benefits of product patents for pharma products have not been
empirically proved, but the <a class="external-link" href="http://news.bbc.co.uk/2/hi/science/nature/7632318.stm">harms
caused by patents to production of newer medicines</a>
have been well documented. Given these, it is imperative that
developing countries push back against IP expansionism that is knocking
on their doors through instruments like Free Trade Agreements.</p>
</div>
</div>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/witfor-2009'>https://cis-india.org/a2k/blogs/witfor-2009</a>
</p>
No publisherpraneshIntellectual Property RightsAccess to Knowledge2011-08-04T04:44:33ZBlog EntryCivil Society Letter Against TRIPS-Plus IP Enforcement
https://cis-india.org/a2k/blogs/civil-society-letter-against-trips-plus-ip-enforcement
<b>This open letter was sent to the president of Confederation of Indian Industry (CII) and high-level government officials on the eve of the Third International Conference on Counterfeiting & Piracy organized by CII. This conference aims to strengthen the enforcement of intellectual property rights and thus creating an imbalance in the protection that intellectual property offers to both those who own it as well as those who don't.
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<h2>An Open Letter to the President of Confederation of Indian Industry (CII) on the Third International Conference on Counterfeiting & Piracy</h2>
<p><br />To<br />Mr. Venu Srinivasan <br />The President <br />Confederation of Indian Industry (CII) <br />The Mantosh Sondhi Centre, 23, <br />Institutional Area, Lodi Road <br />New Delhi - 110 003 <br /><br />Dear Mr. Srinivasan,<br /><br />We understand that Confederation of Indian Industry (CII) is hosting the Third International Conference on Counterfeiting and Piracy from 19-20th August 2009 in partnership with the Embassy of the United States and the Quality Brand Protection Committee (QBPC), China. As stated in the invitation letter the primary objectives of the conference are: 1) to initiate coordinated action for cross border enforcement; 2) to highlight the importance of protection of intellectual property rights (IPRs); 3) to combat the growing threat of piracy and counterfeiting; 4) to facilitate a global meeting of customs officials across the globe; 5) to recommend the creation and setting up of a governmental “National Brand Protection” group; 6) to serve as a forum to discuss legal guidelines related to the prosecution of IPR infringement and to eliminate ‘loopholes’ within the existing laws; and 7) to strengthen cooperation between enforcement agencies and chalk out strategies for enforcement agencies a industry action both at national & international level. We also understand that this international conference is part of CII Intellectual Property Division’s special initiative on enforcement of IPRs. As part of this special initiative CII aims at “engaging government to create conducive legislative measures, policy levels reform and impressing [upon them] to adopt stringent enforcement initiatives and exemplary punitive and monetary measures to further safeguard and secure the interest of industry”. CII also wants to “create a global partnership to synergise efforts of international community and to support and participate in India's efforts in combating counterfeiting both at domestic and international levels”. We, the undersigned, representing various civil society organizations in India, write this letter to express our strong reservation on the conference as well as on CII’s special initiative on IP enforcement. Without raising any question on CII’s right to organize events we would like to convey the following concerns with regard to the conference and CII’s initiative on IP enforcement.</p>
<p>Many of the above mentioned objectives of the conference and the special initiative are directed towards the enhancement of intellectual property (IP) standards like coordinated action on border measures, common guidelines for prosecution of IP infringement, exemplary punitive and monetary measures, etc. In other words, enhancement of IP standards means using more public money to protect private rights; very often protecting the monopoly over intangible property rights of multi-national corporations (MNCs).</p>
<p>As you may be aware, MNCs and their developed country hosts are currently engaged in the implementation of <a class="external-link" href="http://www.iqsensato.org/wp-content/uploads/Sell_IP_Enforcement_State_of_Play-OPs_1_June_2008.pdf">a multi-pronged strategy to enhance IP enforcement standards</a>.[1] This is similar to the MNC’s initiatives in the mid 80s to enhance international IP protection, which resulted in the Agreement on Trade-Related aspects of Intellectual Property Rights (TRIPS). Unlike the 80s, now MNCs and developed countries use multiple forums to pursue the objective of enhancement of IP enforcement standards. Some developed countries have unilaterally enhanced their IP enforcement strategy to force other countries, especially developing countries, to accept the same through various multilateral organizations, namely the World Customs Organization (WCO), World Health Organization (WHO), Universal Postal Union (UPU), Interpol, WIPO and WTO. Developed countries are also using Free Trade Agreements (FTAs), Bilateral Agreements on IP Enforcements as well as financing lobbyist studies, conferences and policy recommendations to impose higher IP enforcement standards. These efforts for the enhancement of IP enforcement standards are a matter of grave concern for the people of developing countries and their governments. By partnering with the US Embassy and <a class="external-link" href="http://www.qbpc.org.cn/About_QBPC/Introduction/2008-08/01_116.html.">Quality Brand Protection Committee of China</a> (QBPC)[2] in the organization of this conference, CII is allowing itself to play in the hands of MNCs and some developed countries, whose interests do not match with that of India industries and that of the Indian people.</p>
<p>As you are aware, the Government of India is taking a very strong position in resisting enhancement of IP enforcement standards in all the multilateral forums. India along with like-minded developing countries successfully pushed back TRIPS-plus[3] IP enforcement agenda at WCO and WHO. India is also trying its level best to convince other developing countries the need to stick to TRIPS-compliant standards rather than adopting TRIPS-plus enforcement standards. In the wake of the controversial generic drug seizures by EU customs authorities, <a class="external-link" href="http://www.livemint.com/2009/02/04232721/India-Brazil-raise-EU-drug-se.html">India has also raised the issue of TRIPS-plus IP enforcement standards</a> contained in the EU IP Enforcement Directive at least two times at the TRIPS Council.[4] The <a class="external-link" href="http://www.keionline.org/blogs/2009/07/08/india-ecosoc-seizures/#more-2404">Indian political leadership has unequivocally raised its concern</a> over the enhancement of IP enforcement standards at other forums also.[5] In adopting this stance, the Government of India has cited <a class="external-link" href="http://www.centad.org/focus_77.asp">public interest as well as the operating freedom of Indian industry</a> as its justifications.[6] By partnering at this vital stage with an MNC lobby group and a heeding to developed country governments, CII is not acting in furtherance of the legitimate public interests of Indian domestic industry and the Indian people.</p>
<p>It is a well-evidenced fact that TRIPS-plus enforcement standards adversely impact not only legitimate trade between nations (as shown by the EU seizures) but also the <a class="external-link" href="http://www2.ohchr.org/english/bodies/hrcouncil/docs/11session/A.HRC.11.12_en.pdf">day-to-day life of millions of people</a> especially in India and other developing countries.[7] Unfounded IP enforcement measures would adversely impact access to life saving medicines and educational materials. Thus the IP enforcement measures also have the potential to deny right to development to people in the global South. Hence an organization like CII should not view IP as only a business tool but should look at the larger scheme of things especially in the social and economic realities of India. In fact, by promoting enhancement of IP enforcement standards CII is advocating a policy, which would violate the right to health, the right to knowledge, as also the right to development.</p>
<p>We would also like to point out that Indian pharmaceutical industry is one of the victims of TRIPS-plus IP enforcement standards. In 2008 alone, <a class="external-link" href="http://www.thehindubusinessline.com/2009/06/08/stories/2009060851700300.htm">17 consignments</a>[8] were seized in transit at Europe using the <a class="external-link" href="http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2003:196:0007:0014:EN:PDF">EU Directive on IP Enforcement</a>, which allows seizure of goods in transit.[9] These consignments were being exported from developing countries (such as India and Brazil) to other developing countries, and the contents of the consignments are perfectly legal in both the exporting as well as the importing nations. These highly questionable seizures resulted in the crisis of health programmes as it resulted in delays in and prohibitive costs of access to life-saving medicines in developing countries of Africa and Latin America. CII can barely claim to be representative of the interests of Indian industry if it ignores such episodes and partners with self-promoting MNCs and developed countries’ governments to advocate for the enhancement of IP enforcement standards.</p>
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<p>In the light of above-mentioned issues, we request you to consider the following:</p>
<ul><li>Rejecting the TRIPS-plus enforcement agenda in toto. We demand CII, Federation of Indian Chambers of Commerce and Industry (FICCI), Associated Chambers of Commerce and Industry(ASSOCHAM) and other Indian business associations to reject any and all attempts of bringing in a TRIPS-plus enforcement agenda in India, in the interests of Indian industry and the Indian people.</li><li>Completely disengaging from any collaborative efforts with foreign institutions to further TRIPS-plus standards of IP protection in India and also abstaining from any engagements on the anti-counterfeiting efforts with foreign agencies. CII should attempt to engage with domestic institutions and build national consensus before engaging with foreign institutions with the claim of representatives of Indian industry.</li><li>Taking necessary proactive steps to safeguard the interests of access to medicine and access to knowledge along with interest of the Indian domestic industry.</li><li>Participating in a more creative discussion on IP and development rather than simply accepting the simplistic and largely discredited view that stronger IP regime leads to more innovation and is a necessary condition for socio-economic development. </li></ul>
<p><br />CC:<br />Shri Anjan Das <br />Senior Director & Head <br />Technology, Innovation, IPR & Life Sciences <br />Confederation of Indian Industry (CII) <br />Plot No. 249-F, Sector-18; Udyog Vihar, Phase-IV, <br />Gurgaon-122015, Haryana <br /><br />Shri. P. Chidambaram<br />Minister<br />Ministry of Home Affairs<br />Government of India<br />North Block, Central Secretariat<br />New Delhi 110001 <br /><br />Shri G. K. Pillai<br />Secretary Justice<br />Department of Justice<br />Ministry of Home Affairs<br />Government of India<br />North Block, Central Secretariat<br />New Delhi 110001 <br /><br />Shri Naresh Dayal,<br />Secretary, Dept. of Health and Family Welfare<br />Ministry of Health and Family Welfare<br />Government of India<br />149-A, Nirman Bhawan, New Delhi – 110 011 <br /><br />Shri Ajay Shankar<br />Secretary<br />Department Of Industrial Policy & Promotion<br />Ministry of Commerce and Industry<br />Room 153, Udyog Bhavan,<br />New Delhi – 110 011 <br /><br /></p>
<h3>Signatories to this letter</h3>
<ul><li>Centre for Trade and Development (Centad), New Delhi</li><li>Centre for Internet and Society, Bangalore</li><li>National Working Group on Patent Laws, New Delhi</li><li>Lawyers Collective (HIV/AIDS Unit)</li><li>All India Drug Action Network (AIDAN)</li><li>International Treatment Preparedness Coalition (ITPC), India</li><li>Consumers Association of India, Chennai</li><li>IndoJuris Law Offices, Chennai</li><li>All Indian People’s Science Network, New Delhi</li><li>Delhi Science Forum</li><li>Alternative Law Forum, Bangalore</li><li>Knowledge Commons</li><li>Moving Republic</li><li>IT for Change</li><li>Centre for Health and Social Justice(CHSJ), New Delhi</li><li>Navdanya, New Delhi</li><li>Support for Advocacy and Training to Health Initiatives (SATHI)</li><li>Centre for Enquiry Into Health and Allied Themes (CEHAT)</li><li>Initiative for Health Equity & Society</li><li>International Peoples Health Council (South Asia)</li><li>Drug Action Forum – Dharwad, Karnataka</li><li>Dr. Mira Shiva, New Delhi</li><li>Tina Kuriakose, PhD Scholar, Jawaharlal Nehru University, New Delhi</li><li>Dr Gopal Dabade, Dharwad</li><li>Dinesh Abrol, Scientist NISTADS, CSIR, New Delhi</li><li>Madhavi Rahirkar, Lawyer/Consultant, Pune</li><li>Gautam John, Bangalore</li><li>Achal Prabhala, Bangalore</li></ul>
<p><br />Endnotes</p>
<p>[1] See Susan K Sell, The Global IP Upward Ratchet, Anti-counterfeiting and Piracy Enforcement Efforts: The State of Play.<br />[2] QBPC barely qualifies as a representative of Chinese interest, as it comprises more than 180 multinational member companies.<br />[3] ‘TRIPS-plus’ refers to any protection of IPRs that surpasses the standards and requirements spelt out in WTO-TRIPS provisions.<br />[4] See Jonathan Lyn, India Brazil raise EU drug Seizures issue at WTO, available at http://www.livemint.com/2009/02/04232721/India-Brazil-raise-EU-drug-se.html<br />[5] Indian Minister of State for External Affairs Broaches Seizures of Generics at ECOSOC, available at http://www.keionline.org/blogs/2009/07/08/india-ecosoc-seizures/#more-2404<br />[6] Indian Commerce Secretary’s Speech to the African Community Ambassadors. available at http://www.centad.org/focus_77.asp.<br />[7] For two very recent examples, see Intellectual Property Enforcement: International Perspectives, Xuan Li & Carlos Correa (eds.) (2009); Anand Grover, Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, A/HRC/11/12 (2009).<br />[8] Jyoti Datta, 16 out of 17 drug consignment seizures in the Dutch were from India available at http://www.thehindubusinessline.com/2009/06/08/stories/2009060851700300.htm<br />[9] The EC Regulation No 1383/2003 allows for seizure of goods in transit.</p>
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For more details visit <a href='https://cis-india.org/a2k/blogs/civil-society-letter-against-trips-plus-ip-enforcement'>https://cis-india.org/a2k/blogs/civil-society-letter-against-trips-plus-ip-enforcement</a>
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No publisherpraneshAccess to MedicineConsumer RightsIntellectual Property RightsAccess to Knowledge2011-09-22T12:48:51ZBlog EntryLecture by Eben Moglen and Mishi Choudhary
https://cis-india.org/a2k/blogs/lecture-by-eben-moglen-mishi-choudhary
<b>The Software Freedom Law Center, National Law School, and the Centre for Internet and Society organised a lecture by Mishi Choudhary and Eben Moglen for students of NLS on Saturday, December 13, 2008.</b>
<p>Saturday, December 13, 2008 had Mishi Choudhary and Eben Moglen of the New York-based Software Freedom Law Center speaking to the students of the National Law School of India University in Nagarbhavi, Bangalore, in a talk organized by CIS.<br /><br />Mishi Choudhary, who will head the Software Freedom Law Center in New Delhi, spoke on "Globalising Public Interest Law: The SFLC Model". She told the students about the importance of non-profit legal work as well as its viability as a career choice. She also laid out the background to the work that SFLC does, and traced a brief history of software patent cases <br /><br />Eben Moglen chose to speak on "Who Killed Intellectual Property and Why We Did It?". He started off by talking of the interconnections between law and societal change: how law can't keep pace with the changes we see around us, and how law actually sometimes changes in the reverse direction, while trying to maintain the status quo. <br /><br />This is not a new phenomenon, he noted, and that when law is responsive to anybody, it listens to the 'people of the past' more carefully than the 'people of the future'. This, he says, is compounded by the fact that the primary mode of change in the law is not legislation (since there is nothing legislators hate more than legislating), and that the better lawyers usually represent only those who can afford to pay them, hence resulting in systemic injustice. He emphasised that the clients of the SFLC, on the other hand, are people who create software worth billions of dollars, but who do not own it.<br /><br />On that point of creation for the purpose of sharing and not owning, a student raised the question of why proprietary rights shouldn't exist in creations of the intellect. In response Mr. Moglen pointed out that while his personal opinions might be different, the Software Freedom Law Center does not seek to bring into dispute the concept of property rights in software, nor the fundamentals of patent law: it is merely concerned with the scope of patent law, and seeks a literal enforcement of patent law as it exists in most jurisdictions.<br /><br />Another question that cropped up was on the economics of software creation and the anti-competitive nature of free software. To this, Mr. Moglen provided a brief summary of the tragedy of the anticommons by using land to be acquired for public works in the centre of a city as an example. In software, this problem is only exacerbated, he pointed out. Most physical creations over which patents are granted have something like 8 or 10 steps. Software code is different because it contains thousands of instructions. Even big companies face the anticommons problem; but they manage to evade it by cross-licensing agreements which results in efficient transactions for them since it involves no exchange of money whatsoever. Small companies are in a worse situation, since they don't have those kinds of patent portfolios to be able to enter into cross-licensing agreements, no matter how innovative they are. Thus, in effect, the system is rigged against them. This provides a partial answer to the antitrust question, he noted. Competition law is actual in favour of free software. The right to practise a trade or profession, and the right to speech get implicated in any case where a FLOSS-based company is hauled up before a court being accused of conspiring with other to take cost to zero.<br /><br />Mr. Moglen further explained that when it comes to software, the problem of patenting is very different. A 20-year monopoly is more reasonable from the viewpoint of physical creations. Patent law, however doesn't tailor the rights that are granted by a patent. The problem starts right from the process of granting a patent. The job of a patent office being to apply the tests of non-obviousness, novelty and utility, most patent offices can do a reasonable job in most fields of technological endeavour, since there is a large body of innovation with which the proposed patent can be compared. Software, however, is a recent field with a large number of applications coming in all at once. While the patents that are sought might include claims on ideas and applications that existed in software in 1956, those aren't easy for the patent offices to dig up, since the field of software patents and software itself have not existed for the same length of time.</p>
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For more details visit <a href='https://cis-india.org/a2k/blogs/lecture-by-eben-moglen-mishi-choudhary'>https://cis-india.org/a2k/blogs/lecture-by-eben-moglen-mishi-choudhary</a>
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No publisherpraneshIntellectual Property RightsSoftware PatentsAccess to Knowledge2011-08-23T02:55:59ZBlog Entry