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Interviews with App Developers: [dis]regard towards IPR vs. Patent Hype – Part II
https://cis-india.org/a2k/blogs/interviews-with-app-developers-dis-regard-towards-ipr-vs-patent-hype-2013-part-ii
<b>The following is a second post within a series reporting on interviews conducted with 10 of Bangalore's mobile app developers and other industry stakeholders. Within this research, CIS attempts to understand how they engage with the law within their practice, particularly with respect to IP. Here we examine how these developers responded to a question on legal protection for their works.</b>
<p align="justify">Before one can identify the solution, one must first identify the problem. Yet, in order to understand the problem, we must first understand the individuals involved and the how the problem affects these individuals. We hope that the findings of this preliminary research initiative will provide sufficient groundwork to understand the problems that exist and the different ways of approaching them before determining the most suitable prospective option in changes at the policy level. In this case, the individuals under study are the key contributors to the mobile app space within India; and the problem, being those faced by them as they attempt to navigate an emerging and ambiguous ecosystem.</p>
<p align="justify">Previously, we looked at responses that were given across these mobile app developers interviewed which revealed how they orient notions of intellectual property within their practice and own products, specifically. Findings that were made included deductions that the majority of those interviewed developed mobile app products for clients, and in turn assigned ownership of their products to their clients. Just as well, they commonly shared an interest in leaving the services sector to create products of their own, with some of them already having made the transition within their business model.</p>
<h3><b>Question 2: “How is your IP protected?”</b></h3>
<p align="justify">Next, we asked how they go about protecting their intellectual property to get a feel of who is protecting their apps and who is not. In asking this question, we hoped to learn how they go about protecting their work via legal means. Across their various responses, we observed many patterns and contradictions which are conveyed here with reference to comments made across interviews. It is important to note, however, that no causal relations intend for be argued for, only suggested correlations.</p>
<p><b>How they responded</b></p>
<p align="justify">When asked, those interviewed responded with a variance in answers. Some simply stated that their work is not protected, while a few mentioned that they acquired trademark or intend to apply for trademark protection. One interviewee had a patent pending in India and the US, as well. In many of our conversations, developers mentioned that their code for their apps is under open source licenses, and a couple others entailed sharing that the content is under creative commons licenses, “individual licenses,” or joint copyright. Additionally, within one interview, one mentioned the use of encryption tools as a technical means of protection for their work.</p>
<div class="pullquote" style="text-align: justify; ">“The concept of securing IP is relatively new within the Indian context... it becomes a question of priority between innovation and protection" — Aravind Krishnaswamy, Levitum</div>
<p align="justify">Of the developers interviewed, many exhibited some sort of confusion or misunderstanding related to the protection of their works by means of intellectual property rights (IPR). Those interviewed seemed to either express an interest to acquire IPR in the future for their products in the forms of patent or trademark protection, or expressed their appreciation for openness source licensing—or both! Beneath these immediate responses, however, many repeated patterns, as well as contradictions, are revealed. Conversations that followed within these interviewed entailed the opportunity to hear from personal experiences and opinions on different areas within their practice intersecting IPR.</p>
<p><b>Reasons for IPR protection</b></p>
<p align="justify">If a startup or SME is bootstrapped with very little cash flow to begin with, what would provoke or inspire one to pursue the process of acquiring patent protection then? Aravind Krishnaswamy of startup, <a class="external-link" href="http://levitum.in/">Levitum</a>, considers “the concept of securing IP is relatively new within the Indian context.” So if this is the case, why did so many developers interviewed express an interest in IPR?</p>
<p align="justify">For those who did express interest in acquiring IPR as protection for their mobile app products, most seemed to express an interest in proving ownership over their work, or preventing problems in the future. One developer's commented on how the mobile app market is a “new and potentially volatile area for software development.” For this reason, it was imperative that he and his team attempted to avoid trouble in the future, and ensure that they going about mobile app development the right and moral way.</p>
<p align="justify">Within another interview, developer, John Paul of mobile app SME, Plackal, explains his motives for seeking to acquire patent protection, the application for which is currently pending in India and the US: "For us, applying for a patent is primarily defensive. And if it does get infringed upon, it would give us a good opportunity to generate revenue from it." For the company's trademark, they sought to be able to enforce their ownership over their product's brand: “As a precautionary, we've trademarked the app so that should there be a situation where the app is pirated, we can claim ownership for that app.”</p>
<p><b>Security not so easily attainable</b></p>
<div class="pullquote">“To some extent, IPR law is only accessible after moving away from the startup phase."—John Paul, Plackal</div>
<p align="justify">However, for the startup especially, such protection does not come without a cost. For this reason, IPR is generally perceived as a gamble or tradeoff. It becomes a “question of priority between innovation and protection,” says Krishnaswamy. He continues in saying that, "I feel like even if it’s a great idea if someone else copies it, that’s some level of validation, but as a small company I’d rather be nimble in terms of how we build it up and get it to a certain point. We're trying to move fast and get something going, and then figure it out.” For Krishnaswamy and his team, securing a patent on an area where they feel they feel they have unique work is on their list of things to do, “It's something for us to revisit in the future.”</p>
<p align="justify">Paul explains that he and his team didn't always have IPR within reach: “To some extent, IPR law is only accessible after moving away from the startup phase.” So what discourages startups from acquiring IPR, or simply seeking it out?</p>
<p align="justify">Patent attorney and IP consultant, Arjun Bala explains that “there is a lot to figure out. One aspect is filling it out, the other is how you write it so that it is easily granted and gives you the right sort of patent protection you are looking for. It is a very complex process that requires a lot of technical and legal expertise.” But even if one successfully manoeuvres the IPR system, is protection guaranteed?</p>
<p align="justify">Business Financial Strategist of Out Sourced CFO & Business Advisory Services, Jayant Tewari, illustrates the lack of security for the SME in the patent system, specifically, in saying, “Since a patent becomes public domain on filing, it can be effectively infringed based on the filing, even before it is granted.” Tewari continues in stressing the irrelevance of patents for SMEs due to the difficulty of enforcement: “the infringement will be adjudicated after 2 years at an immense cost to the SME patent-holder, who will go commercially belly-up due to the infringement. The regime does not protect the SME at all.”</p>
<div class="pullquote" style="text-align: justify; ">“It is easy to say 'this is the method and no once can copy', but unless the look and feel is the same, it is very hard to demonstrate that you have been infringed on.” <br />—Samuel Mani, Mani Chengappa & Mathur</div>
<p><b>Nevermind enforcement...</b></p>
<p align="justify">Not only did our interviews shed light on the difficulty for a startup developer to apply for and be granted protection for their intellectual property, but also for the enforcement of such. Partnering Lawyer, Samuel Mani, of technology-focused law firm, <a href="https://cis-india.org/a2k/blogs/www.mcmlaw.in" class="external-link">Mani Chengappa & Mathur</a>, speaks to us about the extensive procedure required to prove one's ownership over their IP: “To demonstrate copyright infringement, it requires going into millions of lines of code—unless it is the interface that is copied, which is easily visible.” Mani continues on the enforcement of patent protection by saying, “For a patent, the scope is even wider. It is easy to say 'this is the method and no once can copy', but unless the look and feel is the same, it is very hard to demonstrate that you have been infringed on.”</p>
<p><b>Planting the initial seed</b></p>
<p align="justify">If there is arguably so much risk associated with applying for IPR protection, as well with enforcement, what specifically gets startups thinking about IPR initially within their practice? What experiences help them formulate their opinions on the matter, and which forms of IPR do they seek out?</p>
<p align="justify">Across interviews conducted, one particular observation entailed the tendency for developers to have worked in the past for corporate employers that have dealt with cases of infringement or have acquired IP protection. Almost half of those interviewed shared the fact that they worked for a corporate employer and became better familiar with different notions of intellectual property through that experience. It may not be too farfetched to suggest, then, that for the developer the idea of acquiring IPR protection is one that may be reinforced from previous employers or other successful development companies with IPR of their own.</p>
<p align="justify">Cofounder and developer for a medium-sized software development enterprise, Anoop[1] explained that it wasn't until after the success of his enterprise's first application with $1 million in sales, that they started thinking about intellectual property and began to understand the value of it. This newly attained understanding, however, had not been enough to sufficiently equip his team with the knowledge to properly secure protection. For them, going after patent protection turned out to be a pursuit in vain.</p>
<p><b>Loss of faith in patents for SMEs</b></p>
<p align="justify">Anoop shares his disappointing experience after attempting to secure a patent for one of their mobile apps:</p>
<p class="callout"><i>“We burned our fingers with patents. We spent a lot of money for a game we invented about 3 years ago. We had a law firm in the US to help us. We applied for it, and it went through 3-4 revisions, costing us $25-30,000. We finally closed the file when we could not get it due to an existing patent. We were really surprised." </i></p>
<p>After much disappointment from not being successful in their attempts to acquire patent protection, however, Anoop came out of the experience with a new outlook on patents and their role for SMEs:</p>
<p class="callout"><i>“They're meant for large companies as means to bully your competitor. Only big players with the capacity to file for a patent as soon as it takes off benefit. The existing system doesn’t really work for startup companies. In India and anywhere. It’s an expensive process. If you’re a startup who’s just bootstrapping, there’s no guarantee that you will get it. It’s going to take you years.”</i></p>
<p align="justify"><b>Patent hype</b><br />Anoop is a prime example of developers in the startup space that fall victim to the promises of the patent system—only to be spat back out having exhausted their time and earnings. Already being aware of the probability for failure, Mani strongly discourages going after patent protection as a means of staying in the race. “With people spending millions on litigation, it is a recipe for disaster, especially considering the inherent delay of the Indian system.” For this reason, Mani stresses the importance of applying for the <i>right </i>protection.</p>
<p align="justify">Mani also suggests that the patent debate is driven by self-interest—people who simply make money off of application filing, regardless of whether or not the case succeeds. As a lawyer in the IT space, Mani claims to have turned away several prospective clients looking to patent their products when he insisted that such means of protection was not suitable for their product and interests...which brings us to an additional area of heated debate: the patentability of mobile apps.</p>
<p><b>Can mobile apps be patented?</b>[2]</p>
<p align="justify">One concept that seemed to receive contested responses across interviews is that of the patentability of mobile apps in the first place. When asked if mobile apps could be patented, former lawyer and startup founder, Vivek Durai, of HumblePaper, put it blatantly in responding, “absolutely not.” Others offered explanations of the Indian Patent Law nuances regarding when a mobile app is patentable and when one is not.</p>
<p align="justify">While consulting a SME with their own patent application, Bala explains their approach to ensure the mobile app's eligibility for patent protection, while providing some insight into the Indian patent system:</p>
<p class="callout"><i>“One approach that we've taken to getting a patent in India is it's not just a pure software, but a software plus a hardware—as in it requires a specific hardware to function. If [the software] makes the hardware perform better, then it has a technical effect... In which case, we have a better chance of getting a patent in India. If your software is agnostic to hardware, however, it is much more difficult to receive a patent in India.” </i></p>
<p align="justify"><b>To patent or not to patent? (or any IPR for that matter)</b><br />To Tewari, on the other hand, the question of whether a mobile app can be patented is one entirely irrelevant. The question Tewari introduces into the developer's market strategy is not 'can I patent my app?' but instead, '<i>should </i>I do so?' In response to which; he would predominantly reply: <i>No</i>.</p>
<p align="justify">“How [startup] mobile app developers regard IP laws—or better yet, disregard—is fine for their sake,” argues Tewari. Alternatively, he suggests developers learn how to maneuver the laws, to prevent themselves from arriving at any sticky situations after unknowingly using another's code. To his clients who have mobile apps of their own, he advises to use an open source equivalent of a piece of code if they do not have the rights to it. Doing so will help keep infringement upon others at a minimal and prevent litigation against oneself.</p>
<div class="pullquote" style="text-align: justify; ">“How [startup] mobile app developers regard IP laws—or better yet, disregard—is fine for their sake."—Jayant Tewari, Out Sourced CFO & Business Advisory Services</div>
<p align="justify">Not all developers interviewed, however, aspired to acquiring patent protection. In fact, some strongly opposed software patents, while expressing their appreciation for openness across the developer community. The other side to the IPR-Open Source dichotomy will be examined in the blog post to follow, after which, we will then look at accounts of infringement and threats of litigation across mobile app developers interviewed.</p>
<p><b>To recap<br /></b></p>
<p align="justify">By looking closely at the individual experiences across mobile app developers interviewed, we hope to begin to map out the mobile app ecosystem and the ways in which industry players engage with each other regarding their IPR. We also hope to begin to shed light on the different attitudes towards the law within one's practice, and how they shape their decisions related to their work. Only after doing so, may we be able to sufficiently assess how India's current IP laws govern this landscape.</p>
<p align="justify">Stay tuned for the next in this blog series! We hope that you may benefit from our findings in your own practice as a mobile app industry player or enthusiast, as well.</p>
<p align="justify"><b>Notes:</b><br />[1] <i>Name changed to protect the interviewee's identity</i></p>
<p align="justify">[2] In conducting interviews, our goal was not to test the legitimacy of responses, but instead, to map them out across various industry stakeholders. For this reason, this blog series will not be able to sufficiently respond to legal question, such as whether or not mobile apps are patentable to begin with. We intend to, however, undergo legal analysis of the Indian IPR system at its intersection with the mobile app space in India at a later stage in this project.</p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/interviews-with-app-developers-dis-regard-towards-ipr-vs-patent-hype-2013-part-ii'>https://cis-india.org/a2k/blogs/interviews-with-app-developers-dis-regard-towards-ipr-vs-patent-hype-2013-part-ii</a>
</p>
No publishersamanthaAccess to KnowledgeCopyrightPervasive TechnologiesResearchPatents2014-08-19T03:51:39ZBlog EntryPreventive Detention for Copyright Violation: Karnataka Amends the 'Goondas' Act
https://cis-india.org/a2k/blogs/spicy-ip-nehaa-chaudhari-august-13-2014-preventive-detention-for-copyright-violation
<b>Last week, the Government of Karnataka amended the Karnataka Prevention of Dangerous Activities of Bootleggers, Drug-Offenders, Gamblers, Goondas, Immoral Traffic Offenders and Slum Gamblers Act, 1985 (“the Karnataka Goondas Act”). The Karnataka Goondas Act would now also apply to offences under the Indian Copyright Act, 1957 and the Information Technology Act, 2000. This article presents an overview on the various provisions of this law and discusses the potential impact of the amendment.</b>
<p>The<i> </i>blog post by Nehaa Chaudhari was first <a class="external-link" href="http://spicyip.com/2014/08/guest-post-karnatakas-goondas-act-an-examination.html?utm_source=rss&utm_medium=rss&utm_campaign=guest-post-karnatakas-goondas-act-an-examination">published on SpicyIP</a> on August 13, 2014.</p>
<hr />
<h3 style="text-align: justify; ">Goondas and Goondas Acts</h3>
<p style="text-align: justify; ">Now used in ‘Indian English’ to mean a ‘<a href="http://www.oxforddictionaries.com/definition/english/goonda">hired thug or bully</a>’, <i>goonda/gunda</i> seems to have Hindi/Urdu <a href="http://dictionary.reference.com/browse/goondas">origins</a>. Incidentally, <i>thug</i> itself has Hindi <a href="http://dictionary.reference.com/browse/thug">origins</a>, with its meaning encompassing a range of criminals from robbers to murderers to gangs of criminals, or <i>anti-social elements</i>.</p>
<p style="text-align: justify; ">In 1923, the <a href="http://www.lawsofindia.org/pdf/west_bengal/1923/1923WB1.pdf">Goondas Act</a> (India’s first) was enacted in Bengal. As per the Act, a <i>goonda</i><i> </i>residing within, habitually frequenting or visiting <i>Culcutta</i> either by herself/himself or as part of a gang, <i>committing/has committed/assisting in the commission of/is about to commit</i> a non-bailable offence against person or property, or the offence of criminal intimidation or causing breach of peace was liable for action under this legislation. Similar laws were soon enacted across the country, including the Central Provinces and Berar Goondas Act, 1946 of Madhya Pradesh, (later struck down as unconstitutional in <a href="http://indiankanoon.org/doc/882909/"><i>State of Madhya Pradesh </i>v.<i> Baldeo Prasa</i>d</a>), the Uttar Pradesh Control of Goondas Act, 1970 (see: an illustrative decision); the Rajasthan Control of Goondas Act, 1975 (see: <a href="http://indiankanoon.org/docfragment/510607/?formInput=goonda%20act%20doctypes:rajasthan">an illustrative decision</a>); The Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Goondas, Immoral Traffic Offenders and Slum-Grabbers and Video Pirates Act, 1982 (legislation prior to the 2004 amendment available here), and the Karnataka Prevention of Dangerous Activities of Bootleggers, Drug-Offenders, Gamblers, Goondas, Immoral Traffic Offenders and Slum-Grabbers Act, 1985, which was amended a few weeks ago.</p>
<p style="text-align: justify; ">While these legislations are broadly similar in their object – that of curtailing the criminal activities of ‘<i>goondas’</i> with provisions for removal as well as preventive detention, there is a variation in scope of the legislation. Karnataka and Tamil Nadu having extended the application of their respective Goondas Acts to a larger number of activities, including video piracy – which is the focus of this post.</p>
<h3 style="text-align: justify; ">The Karnataka Goondas Act: What Remains and What has Changed</h3>
<p style="text-align: justify; "><b>Scope and Definition</b><br />Enacted in 1985 to curb activities of “anti-social” elements, which have frequently disturbed the “even tempo of life” especially in “urban areas”, the Karnataka Goondas Act extended to ‘bootleggers, drug offenders, gamblers, goondas, immoral traffic offenders and slum grabbers’. Amongst others, <span>the 2014 amendment, which comes into effect “at once”, extends the scope of this legislation to “video or audio pirates” and “digital offenders”.</span></p>
<p style="text-align: justify; "><span>As per the new amendment, Section 2(iv) of the Act first refers to a “digital offender” as ‘<i>when he is engaged, or is making preparations for engaging, in any of his activities as a digital offender, which affect adversely or are likely to affect adversely the maintenance of public order.</i><i> </i>An Explanation to Section 2 under Clause (f) specifies that a “digital offender” is <i>any person who knowingly or deliberately violates for commercial purposes any copyright law in relation to any book, music, film, software, artistic or scientific work and also includes any person who illegally enters through the identity of another user and illegally uses any computer or digital network for pecuniary gain for himself or for any other person or commits any of the offences specified under section 67, 68, 69, 70, 71, 72, 73, 74 and 75</i><i> </i>of the <a href="http://www.dot.gov.in/sites/default/files/itbill2000_0.pdf">Information Technology Act, 2000</a>.</span></p>
<p style="text-align: justify; ">These mentioned sections (67-75 of the IT Act), refer to a variety of measures which penalize refusal to decrypt information, publication of obscene information, access or attempts to access a ‘protected’ computer or network, misrepresentation, and breach of confidentiality and privacy, as well as prescription of penalties for some offences. (See more <a href="http://www.vakilno1.com/bareacts/informationtechnologyact/informationtechnologyact.html#67_Publishing_of_information_which_is_obscene_in_electronic_form" target="_blank">here</a>)</p>
<p style="text-align: justify; "><span>The requirement that the action be committed for a “commercial purpose” has been eliminated in those instances where the offence is a violation of any of the listed sections of the Information Technology Act, 2000</span>.</p>
<p style="text-align: justify; ">A “video or audio pirate” as defined under amended Section 2(xiii) is <i>when he is engaged or is making preparations for engaging in any of his activities as a video or audio pirate habitually for commercial gain, which affect adversely, or are likely to affect adversely the maintenance of public order.</i><i> </i>The Explanation to Section 2 under amended Clause (o) states that a “video or audio pirate” <i>means a person who commits or attempts to commit or abets the commission of offences of infringement of copyright habitually for commercial gain, in relation to a cinematograph film or a record embodying any part of the soundtrack associated with the film, punishable under the Copyright Act, 1957.</i></p>
<p style="text-align: justify; ">The Explanation to amended Section 2 lays down the conditions in which<i> <i>public order shall be deemed to have been affected adversely or shall be deemed likely to be affected adversely,</i><i> </i>viz. that <i>if any of the activities of any of the persons referred to in this clause directly or indirectly, is causing or is calculated to cause any harm, danger or alarm, or a feeling of insecurity, among the general public or any section thereof or grave or widespread danger to life or public health.</i></i></p>
<p style="text-align: justify; "><b>Preventive Detention Orders</b><br />The amendment now means the State Government accordingly has the power to detain audio and video pirates and digital offenders, to prevent them from acting in a manner “prejudicial” to public order. In the first instance, such an order may not be for more than three months, it may be extended to a period of twelve months (Section 13), three months at a time, passed for the commission or the suspicion of commission of various offences, including copyright infringement, which under the Copyright Act, 1957 can only be determined by a court of law and is subject to subsequent appeals.</p>
<p style="text-align: justify; ">The 2014 amendment also modifies Section 17, by virtue of which no order of detention can be made under the National Security Act, 1980 against any of the persons named under the Karnataka Goondas Act, including audio or video pirates or digital offenders.</p>
<p style="text-align: justify; ">Section 8 requires grounds of detention to be disclosed to the detainees within five days of their detention, but not when it might not be in the public interest to do so.</p>
<p style="text-align: justify; "><b>Anomalies</b><br />This recent amendment to the Karnataka Goondas Act has resulted in anomalies. There are probably more; but two come to mind straight away.</p>
<p style="text-align: justify; "><span><span><i>First</i>- preventive detention under the Karnataka Goondas Act means that the person arrested need not be produced before a magistrate immediately- there is a significantly long review process and detention may continue for a period of one year.</span></span> This is for offences under the Information Technology Act, 2000, under which persons arrested have to be produced before a magistrate. This is also for offences under the Copyright Act, 1957, under which a person may be arrested only when found guilty of an offence by the court, whereas the Karnataka Goondas Act allows arrest on mere suspicion. Further, persons detained under this legislation cannot secure bail.</p>
<p style="text-align: justify; "><span><span><i>Second-</i><i> </i>the amendments to the Karnataka Goondas Act negate the exceptions laid out under the Copyright Act, 1957</span>.</span> While a reading of the Karnataka Goondas Act suggests that copyright infringement for commercial purposes falls under the purview of the legislation (and therefore non -commercial uses are excluded), however, under its provisions, persons may be detained (preventively) on mere suspicion as well. <span><span>Therefore, even if a person were to be performing an activity permitted under the Copyright Act, 1957 (for instance, converting a coyrighted work into a machine readable format for the benefit of persons with disabilities), this person could be preventively detained</span></span> on the suspicion of engaging in this activity for commercial purposes.</p>
<h3 style="text-align: justify; ">Constitutional Validity</h3>
<p style="text-align: justify; "><b>Legislative Competence</b><br />The legislative competence of the Karnataka Government in amending the Karnataka Goondas Act to apply to audio and video pirates as well as to digital offenders is moot. <span><span><i>Prima facie,</i><i> </i>these amendments seem to be unconstitutional</span>.</span></p>
<p style="text-align: justify; ">Article 246 read with List I (Union List) of the <a href="http://lawmin.nic.in/olwing/coi/coi-english/Const.Pock2Pg.Rom8Fsss%2835%29.pdf">Seventh Schedule</a> of the Constitution of India specifies those subjects on which the Centre has the authority to make laws. Offences related to and committed by “video or audio pirates” or “digital offenders” as explained under the Karnataka Goondas Act are subjects on which the Centre has the authority to make laws, by virtue of the provisions relating to <i>posts and telegraphs; telephones, wireless, broadcasting and other like forms of communication</i> (Entry 31 of List I) and <i>patents, inventions and designs; copyright; trade-marks and merchandise marks and merchandise marks</i> (Entry 49 of List I).</p>
<p style="text-align: justify; ">Article 246 read with List II (State List) of the Seventh Schedule of the Constitution of India specifies those subjects on which the States have the authority to make laws. Seemingly, the Government of Karnataka may have chosen to make laws relating to “video or audio pirates” and “digital offenders” Entry I of List II, i.e., <i>public order</i>. It is my submission, however, that these offences would not fall under an understanding of “public order” and this amendment would still remain unconstitutional.</p>
<p style="text-align: justify; "><b>Freedom of Speech</b><br />Gautam Bhatia’s <a href="http://www.outlookindia.com/article/Goondagiri-Of-The-Goonda-Act/291593">article in the Outlook</a> (with a <a href="http://indconlawphil.wordpress.com/2014/08/05/karnatakas-amendments-to-the-goonda-act-violate-article-191a/">slightly modified version on his blog</a>) make out the case against the recent amendments to the Karnataka Goondas Act violating Article 19(1)(a) of the Constitution of India. Bhatia argues that preventive detention under this legislation would be “prior restraint”, where government action prevents expression before it can take place, which is unconstitutional in most cases. He also argues that in order for free speech to be restricted on the grounds of “public order” under Article 19(2) of the Constitution of India, the State is required to meet a high threshold, which the Karnataka Goondas Act does not meet.</p>
<h3 style="text-align: justify; ">Closing Comments</h3>
<p style="text-align: justify; ">The idea of introducing provisions to deal with online piracy and other ‘digital offences’ under the Goondas Act is not a new one. Mridula Chari <a href="http://scroll.in/article/673042/Why-many-states-are-using-the-1923-Goondas-Act-to-curb-digital-piracy">writes</a> that Tamil Nadu introduced such amendments to its Goondas Act in 2004 and Maharashtra in 2009, with Andhra Pradesh toying with the idea in 2010. She also writes that the Bengali and Punjabi music industries are making demands of their respective governments to introduce their own versions of the Goondas Acts and insert similar provisions. The Economic Times <a href="http://articles.economictimes.indiatimes.com/2014-07-30/news/52237723_1_goonda-act-offences-offenders">report</a> on these recent amendments to the Karnataka Goondas Act also seems to suggest that these changes have been introduced for the protection of business interests. In contrast, in a <a href="http://www.bangaloremirror.com/bangalore/cover-story/we-the-goondas/articleshow/39564603.cms">detailed report</a>, the Bangalore Mirror provides various illustrations of seemingly innocuous actions which may attract a draconian legislation, ranging from forwarding a song to a friend on WhatsApp to posting comments on social media sites.</p>
<p style="text-align: justify; ">The prospect of the protection of business interests with draconian legislations which are prima facie unconstitutional, aside from being ridiculous is deeply concerning. Widening the scope of these legislations to areas on which they have no constitutional authority to legislate, and introducing provisions with grave ramifications on fundamental rights, states in their continued and extended use of the Goondas Act are engaging in callous ill thought out actions with a deep disregard for their implications.</p>
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<p style="text-align: justify; ">Nehaa is a Nalsar Law graduate. She works on intellectual property/openness law and policy at the Centre for Internet and Society, New Delhi. <i>[Note: Due to the examination of definitions in the Act, this post is considerably longer than our standard post. Though the whole post is recommended, readers in a hurry could skip directly to headings titled "Anomalies", "Constitutional Validity" and "Closing comments" for the juicy bits.]</i></p>
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For more details visit <a href='https://cis-india.org/a2k/blogs/spicy-ip-nehaa-chaudhari-august-13-2014-preventive-detention-for-copyright-violation'>https://cis-india.org/a2k/blogs/spicy-ip-nehaa-chaudhari-august-13-2014-preventive-detention-for-copyright-violation</a>
</p>
No publishernehaaCopyrightAccess to Knowledge2014-08-13T12:46:51ZBlog EntryWIPO: Scope and rights of potential broadcasting treaty clarified
https://cis-india.org/news/third-world-network-may-5-2014-wipo-scope-and-rights-of-potential-broadcasting-treaty-clarified
<b>This post by Alexandra Bhattacharya was published in SUNS #7796 dated 5 May 2014.</b>
<p style="text-align: justify; ">Read the story posted on Third World Network <a class="external-link" href="http://www.twnside.org.sg/title2/intellectual_property/info.service/2014/ip140502.htm">here</a>. CIS is quoted.</p>
<hr />
<p style="text-align: justify; ">Integral concepts and the options on the scope of a proposed broadcasting treaty, and the substantive rights envisaged for broadcasting organisations have been further elucidated.<br /> <br /> The 27th session of the WIPO Standing Committee on Copyright and Related Rights (SCCR) completed its two- and-half-day discussion on 30 April of the agenda item on a proposed Treaty on the Protection of Broadcasting Organisations - a 16-year-old issue in WIPO.<br /> <br /> However, a number of member states (India and Brazil) pointed out that there was further need to tackle the technical issues and that there was still no clear consensus.</p>
<p style="text-align: justify; ">The results of the informal consultations (Regional Coordinators plus six) held by the committee's Chair have produced two tables based on Article 6 which deals with the "Scope of Application" of the proposed treaty, and with Article 9 on "Protection for Broadcasting Organisations" in the working document (SCCR/27/2 Rev).</p>
<p style="text-align: justify; ">There is no clear consensus on most of the elements in the tables, but they are meant to consolidate all the options and proposals currently in place.</p>
<p style="text-align: justify; ">The 27th session of the SCCR is taking place in Geneva from 28 April to 2 May.</p>
<p style="text-align: justify; ">In 2007, WIPO's General Assembly agreed to pursue a "signal-based approach" to drafting a new treaty to provide protection for broadcasting organisations, to ensure that provisions on signal theft in themselves did not give broadcasters additional rights over program content.</p>
<p style="text-align: justify; "><b>Results of Informal Consultations: Tables on Scope of Application and Rights</b></p>
<p style="text-align: justify; ">The informal consultations have resulted in a table on the Scope of Application of the treaty which relates to Article 6 of the proposed treaty. The potential applicable areas identified include:</p>
<p style="text-align: justify; ">(i) traditional broadcasting [and cablecasting](wireless or by wire)(+pre-broadcast signal);<br /> <br /> (ii) simultaneous and unchanged transmission of broadcast program (simulcasting);<br /> <br /> (iii) deferred linear transmission of broadcast program;<br /> <br /> (iv) on-demand transmission of broadcasting program (catch up) and program-related material (to be defined); and<br /> <br /> (v) internet originated linear transmission (webcasting).</p>
<p style="text-align: justify; ">Elements (ii) to (v) relate to transmission over the Internet [if included, only for traditional broadcasters/cable casters]. The Chair stated that there was greater emphasis on traditional broadcasting which included both wireless or by wire along with pre-broadcast signals. There was greater divergence with respect to transmissions over the internet with a majority position that simultaneous and almost simultaneous broadcasting should be part of the treaty. Some had also expressed the opinion that webcasting should be beyond the scope of the treaty.</p>
<p style="text-align: justify; ">The second table relates to rights for broadcasting organisations and is in the context of Article 9 on "Protection for Broadcasting Organisations".</p>
<p style="text-align: justify; ">This table includes: (i) simultaneous re-transmission of the broadcast signal to the public over any medium; (ii) Near simultaneous re-transmission of the broadcast signal to the public over any medium (to be defined); (iii) Transmission of the broadcast signal to the public from a fixation and over any medium (not limited in time) including the making available right; (iv) Fixation of a broadcast signal, reproduction of fixation of broadcasts, distribution of fixations (copies) of broadcasts, performance of broadcast signal in places accessible to the public [against payment of an entrance fee]; (v) Protection of pre-broadcast signals; and (vi) National Treatment when the protection is equivalent; reciprocity when there is a difference in the protection.</p>
<p style="text-align: justify; ">After the presentation of the tables in the plenary, Brazil said that "for the sake of transparency", it wanted to state that the informal discussions were helpful in the sense that they had produced a "deeper understanding of what we are talking about".</p>
<p style="text-align: justify; ">It stressed that it had tremendous difficulty in referring to the word "consensus", as many aspects were yet to be clarified. It underlined the need to see the discussion with a "grain of salt".</p>
<p style="text-align: justify; ">India supported the statement by Brazil, noting that although the committee had "grappled with many issues," there was need for a more technical discussion. In this context, it proposed that broadcasting engineering experts be invited to an informal experts' meeting during the next session of the SCCR.</p>
<p style="text-align: justify; ">Support for India's proposal was voiced by the United States, Brazil, El Salvador, Canada, and Colombia.</p>
<p style="text-align: justify; ">The European Union stated that the discussions showed that a number of delegations had expressed their support for covering traditional broadcasting and cablecasting transmissions. The most divergent views were with respect to simulcasting deferred transmissions and on-demand transmissions.</p>
<p style="text-align: justify; ">It also said that there was a need to have more discussion with respect to elements (ii) and (iii) of the table on Rights. It added that there could be flexibility on element four if there was a good solution for two and three.</p>
<p style="text-align: justify; ">The United States was of the opinion that the "charts" that pulled out the multiple proposals on the table allowed the delegation to understand the key elements better and also to get some initial indication of the thinking of different delegations on those elements.</p>
<p style="text-align: justify; ">It observed that there was general agreement as to the inclusion of traditional broadcasting over the air which is clearly within the mandate of the General Assembly.</p>
<p style="text-align: justify; ">Elements (i) and (ii) in the table on rights, the simultaneous and near simultaneous re-transmission of signals to the public were essentially the proposal of the United States for discussion purposes, it added.</p>
<p style="text-align: justify; ">Trinidad and Tobago stated for the record that it would like the scope of protection to include traditional broadcasting and cablecasting.</p>
<p style="text-align: justify; ">China stated that simulcasting should be included in the treaty.</p>
<h3 style="text-align: justify; ">Protection for Broadcasting Organisations: Exclusive Rights Discussed</h3>
<p style="text-align: justify; ">The second day of the SCCR focused on Article 9 on "Protection for Broadcasting Organisations" which deals with the substantive rights envisaged in the protection for broadcasting organisations in the potential treaty.</p>
<p style="text-align: justify; ">The divergence in views related to the scope and range of the substantive rights to be given to broadcasting organisations. This issue, along with the Scope of Protection (Article 6), remains one of the integral areas of the proposed treaty where consensus is yet to be reached.</p>
<p style="text-align: justify; ">A consistent concern expressed by a number of member states and some stakeholders' groups such as those representing copyright providers (authors, actors, musicians) during the session, has been the need to ensure that the potential broadcasting treaty did not infringe or curtail the existing rights of underlying content providers of the broadcast.</p>
<p style="text-align: justify; ">As seen in the discussion on the Scope of Protection, the complexity of the issue was evident and member states were encouraged to work on a matrix of exclusive rights envisaged for broadcasting organisations in order to both cement progress and also for better conceptualisation.</p>
<p style="text-align: justify; ">[The current text of Article 9 on "Protection for Broadcasting Organisations" includes two Alternatives A and B which deal with exclusive rights to be authorised to broadcasting organisations.</p>
<p style="text-align: justify; ">[Alternative A lists fewer rights which include: (i) the re-transmission of their broadcast signals to the public, by any means; (ii) performance of their broadcast signal in places accessible to the public, for commercial advantage or using very large screens; (iii) the use of a pre-broadcast signal intended for them.</p>
<p style="text-align: justify; ">[Alternative B has a more extensive list of exclusive rights and includes: (i) the right of fixation of their broadcasts; (ii) the direct or indirect reproduction, in any manner or form, of fixations of their broadcasts; (iii) the re-transmission of their broadcasts by any means, including re-broadcasting, re-transmission by wire, and re-transmission over computer networks; (iv) the communication to the public of their broadcasts; (v) the making available to the public of the original and copies of fixations of their broadcasts in such a way that members of the public may access them from a place and at a time individually chosen by them; (vi) the transmission by any means for the reception by the public of their broadcasts following fixation of such broadcasts; (vii) the making available to the public of the original and copies of fixations of their broadcasts, through sale or other transfer of ownership.</p>
<p style="text-align: justify; ">[India's proposal in the Annex of the working document is essentially based on the right to prohibit, if done without authorisation, the following: (i) the re-broadcast of their signal through traditional broadcasting means; (ii) causing the broadcast to be seen or heard in public on payment of any charge; and (iii) make a fixation of signal for the purpose of re-broadcast.</p>
<p style="text-align: justify; ">[Additionally, for this session, Armenia, Azerbaijan, Belarus, Kazakhstan, Kyrgyzstan, the Russian Federation, Tajikistan, Turkmenistan, Ukraine and Uzbekistan tabled a proposal (SCCR/27/6) in which a broad range of rights such as fixation and re-transmission rights are included.</p>
<p style="text-align: justify; ">[The United States has also included a proposal for "discussion purposes" which states that "Broadcasting organizations shall have the right to authorize the simultaneous or near-simultaneous re-transmission of their broadcast or pre-broadcast signal over any medium".]</p>
<p style="text-align: justify; ">The Chair sought comments from member states on how to move forward on the issue, particularly with respect to determining the range of rights to be given to broadcasting organisations.</p>
<p style="text-align: justify; ">Belarus, introducing the group proposal SCCR/27/6, said that adequate protection should be afforded to broadcasters, bearing in mind the economic investment required by them. It added that there should be the broadest scope for the protection to be enjoyed by the broadcasters.</p>
<p style="text-align: justify; ">Belarus stated that these rights have to be linked to re-broadcasting of any such content and with the broadcasting of the content in whatever form. It added that the exhaustion of the rights should be left to domestic legislations.<br />With respect to India's proposal, Belarus stated that the right to prohibit was not sufficient.</p>
<p style="text-align: justify; ">The United States stated that its proposal for discussion attempted to "cut through the debate on the scope of rights" and attempted to focus on a "single core right".</p>
<p style="text-align: justify; ">The proposal for a "right to authorize the simultaneous or near-simultaneous re-transmission" focused on the need to address the fundamental concerns of the broadcasting organisations within the scope of the 2007 General Assembly mandate on a signal-based protection.</p>
<p style="text-align: justify; ">The US added that it was suggesting no post-fixation rights at the international level and only for the protection of the signal. Any protection for post-fixation would be relying on the protection of the content.</p>
<p style="text-align: justify; ">The right to authorise the simultaneous or near-simultaneous re-transmission would include the broadcast and pre-broadcast signal, it explained.</p>
<p style="text-align: justify; ">It also noted that there had not been opposition to the treaty covering these elements during the meeting, adding that there had not been any consensus on post-fixation rights.</p>
<p style="text-align: justify; ">The US further suggested an approach which could be either (i) based on the US proposal, or (ii) used the US proposal as a basis and included some version of post-fixation rights.</p>
<p style="text-align: justify; ">It said that there was a need for something that "we can all agree to in the international level".</p>
<p style="text-align: justify; ">India stated that its proposal was based on protection for broadcasting organisations based on a "signal based" approach in the traditional sense. In this context, it supported protection for simultaneous broadcasting in the traditional sense and not for webcasting and simulcasting.</p>
<p style="text-align: justify; ">Mexico was of the opinion that there was a need to seek "the establishment of general standards" and the discussion had to focus on general principles and not on the details.</p>
<p style="text-align: justify; ">In this context, it supported the proposal by the US.</p>
<p style="text-align: justify; ">In a similar vein, South Africa noted the need for a general signal-based approach and supported the proposal by the US which was based on a narrow scope of rights.</p>
<p style="text-align: justify; ">Brazil also expressed support for the US proposal and stated that with this "narrow and simple" approach it would be possible to make progress.</p>
<p style="text-align: justify; ">It however expressed reservation about including other forms of protection other than for simultaneous and near simultaneous re-transmissions.</p>
<p style="text-align: justify; ">The European Union also agreed that there was consensus in the room as to the right to authorise or prohibit simultaneous transmissions by any means. However, there was a need to focus on transmissions from fixations where there was less clarity.</p>
<p style="text-align: justify; ">It added that there was a need to separate the discussion from fixation and post-fixation rights. There was also a need to be clear about what "near simultaneous" transmissions meant.</p>
<p style="text-align: justify; ">The EU said that there was a need to also be clear about what kind of rights were referred to with respect to the right to prohibit.</p>
<p style="text-align: justify; ">Canada stated that a single solution to signal piracy remained a challenge and that it was attached to finding a minimum standard today. It added that there was a need to look at both pre- and post-fixation.</p>
<p style="text-align: justify; ">It also noted that there were different modes of delivery of broadcasts and there were a number of alternatives in the text. In this context, it would be useful to develop a matrix to further the discussion.</p>
<p style="text-align: justify; ">The need to simplify the range of rights on the table was echoed by the US, Ecuador, Chile and Colombia.<br />The Russian Federation supported the approach in restricting rights in some way and to focus on agreements previously reached, particularly with reference to traditional broadcasting.</p>
<p style="text-align: justify; ">It added that with respect to including additional rights in the scope of protection, there would be a need to receive corresponding authority from the General Assembly to do that.</p>
<p style="text-align: justify; ">It reiterated that a signal-based approach had already been decided and " if we are going to keep looking at every nuance, then we will not get anywhere".</p>
<p style="text-align: justify; ">Iran stated that the aim of the exercise should focus on the "anti-piracy function" and the function of the treaty should stop all forms of piracy. It noted that one approach could be an umbrella solution as seen in the WIPO Performance and Phonograms Treaty.</p>
<p style="text-align: justify; ">The Chair proposed informal consultations (Regional Coordinators plus six) in order to make progress on a matrix with respect to the range of rights and the scope of application of the potential treaty.</p>
<h3 style="text-align: justify; ">Concerns Expressed by Observers</h3>
<p style="text-align: justify; ">A number of observers to the SCCR representing broadcasting organisations expressed the need for a treaty for the protection of broadcasting organisations; however, a number of other organisations also expressed reservations with the current work being undertaken in the SCCR.</p>
<p style="text-align: justify; ">The Trans-Atlantic Consumer Dialogue (TACD) stated that it opposed the idea of granting any new layer of intellectual property rights for broadcasters that would make it more expensive and more complex to legally obtain access to and use of information.</p>
<p style="text-align: justify; ">It explained that this treaty could create many problems for consumers especially if it is without very clear fixation rights, the rights in literary, dramatic, musical, artistic works, performances, films, sound recordings, broadcasts and other material in which there are copyright and related rights.</p>
<p style="text-align: justify; ">The Electronic Information for Libraries (EIFL) and the International Federation of Library Associations and Institutions (IFLA) said that they saw no compelling public policy reason for a new international instrument on the protection of broadcasting organisations, because piracy of broadcast signals is already adequately dealt with under existing laws and treaties.</p>
<p style="text-align: justify; ">They explained that the creation of a new layer of rights that affects access to content is of great concern to librarians, because it imposes an additional barrier to access to knowledge, especially to content in the public domain and that libraries have practical experience of such over-protection caused by multiple layers of rights.</p>
<p style="text-align: justify; ">EIFL and IFLA urged the member states to consider the costs to taxpayers and society, as well as the perceived benefits of this proposed treaty.</p>
<p style="text-align: justify; ">The Centre for Internet & Society (CIS) also expressed concerns regarding the intended scope and language of Article 9 on "Protection for Broadcasting Organisations" in Working Document SCCR/27/2 Rev.</p>
<p style="text-align: justify; ">It was of the opinion that the current language expanded the scope of the proposed treaty and was likely to have the effect of granting broadcasters rights over the content being carried and not just the signal.</p>
<p style="text-align: justify; ">It stated that the language in Article 9 envisaged fixation and post-fixation rights for broadcasting organisations, for instance, among others, those of reproduction, distribution and public performance and this was inconsistent with a signal-based approach.</p>
<p style="text-align: justify; ">Secondly, it expressed reservations on the inclusion of "communication to the public" reflected in Article 9 Alternative B.</p>
<p style="text-align: justify; ">It stated that communication to the public was an element of copyright and governs the content layer, as distinct from the "broadcast" or "transmission" of a signal.</p>
<p style="text-align: justify; ">Therefore, attempts to regulate "communication to the public" would not be consistent with a signal-based approach, which the CIS believes is the mandate binding on this Committee.</p>
<p style="text-align: justify; ">The Chair's conclusions on all the agenda items are expected to be circulated and finalised on the last day of the session (2 May 2014).</p>
<p style="text-align: justify; ">The remaining days of the SCCR focused on Exceptions and Limitations for Libraries and Archives as well as Limitations and Exceptions for Educational, Teaching and Research Institutions and Persons with Other Disabilities.</p>
<p>
For more details visit <a href='https://cis-india.org/news/third-world-network-may-5-2014-wipo-scope-and-rights-of-potential-broadcasting-treaty-clarified'>https://cis-india.org/news/third-world-network-may-5-2014-wipo-scope-and-rights-of-potential-broadcasting-treaty-clarified</a>
</p>
No publisherpraskrishnaCopyrightAccess to Knowledge2014-05-28T07:03:17ZNews ItemTranscripts of Discussions at WIPO SCCR 27
https://cis-india.org/a2k/blogs/wipo-sccr-27-discussions-transcripts
<b>We are providing archival copies of the transcripts of the 27th session of the WIPO Standing Committee on Copyright and Related Rights, which is being held in Geneva from April 28, 2014 to May 2, 2014. </b>
<p style="text-align: justify; ">Note: This is an unedited transcript of the discussions at SCCR 27. We are hosting the text for archival purposes:</p>
<hr style="text-align: justify; " />
<ul>
</ul>
<p>Day 1: April 28, 2014:</p>
<ul>
<li><a href="https://cis-india.org/a2k/blogs/2014-04-28_sccr.txt" class="external-link">WIPO SCCR 27 Text</a></li>
<li><a href="https://cis-india.org/a2k/blogs/wipo-sccr-27-day-1-april-28-2014.pdf" class="internal-link">WIPO SCCR 27 PDF</a></li>
</ul>
<p>Day 2: April 29, 2014:</p>
<ul>
<li><a href="https://cis-india.org/a2k/blogs/2014-04-29-sccr-27.txt" class="external-link">WIPO SCCR 27 Text</a></li>
<li><a href="https://cis-india.org/a2k/blogs/wipo-sccr-day-2-april-29-2014.pdf" class="internal-link">WIPO SCCR 27 PDF</a></li>
</ul>
<p>Day 3: April 30, 2014</p>
<ul>
<li><a href="https://cis-india.org/a2k/blogs/wipo-sccr-27-discussions-transcripts-day-3.txt" class="internal-link">WIPO SCCR 27 Text</a></li>
<li><a href="https://cis-india.org/a2k/blogs/wipo-sccr-27-discussion-transcripts-day-3.pdf" class="internal-link">WIPO SCCR 27 PDF</a></li>
</ul>
<p>Day 4: May 1, 2014</p>
<ul>
<li><a href="https://cis-india.org/a2k/blogs/wipo-sccr-27-may-1-2014.txt" class="internal-link">WIPO SCCR 27 Text</a></li>
<li><a href="https://cis-india.org/a2k/blogs/wipo-sccr-27-day-4-may-1-2014.pdf" class="internal-link">WIPO SCCR 27 PDF</a></li>
</ul>
<p>Day 5: May 2, 2014</p>
<ul>
<li><a href="https://cis-india.org/a2k/blogs/2014-05-02-sccr-27.txt" class="internal-link">WIPO SCCR 27 Text</a></li>
<li><a href="https://cis-india.org/a2k/blogs/wipo-sccr-27-discussions-transcripts-day-5.pdf" class="internal-link">WIPO SCCR 27 PDF</a></li>
</ul>
<ul>
</ul>
<ul>
</ul>
<hr />
<p>Click for <a href="https://cis-india.org/a2k/blogs/wipo-sccr-marakkesh-treaty" class="internal-link">WIPO Signing Ceremony for Marrakesh Treaty</a></p>
<ul>
</ul>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/wipo-sccr-27-discussions-transcripts'>https://cis-india.org/a2k/blogs/wipo-sccr-27-discussions-transcripts</a>
</p>
No publishernehaaIntellectual Property RightsCopyrightAccess to KnowledgeWIPO2014-05-25T04:50:59ZBlog EntryCIS Statement at 27th SCCR on the WIPO Proposed Treaty for the Protection of Broadcasting Organizations
https://cis-india.org/a2k/blogs/cis-statement-27-sccr-on-wipo-proposed-treaty-for-protection-of-broadcasting-organizations
<b>The 27th Session of the WIPO Standing Committee on Copyright and Related Rights is being held in Geneva from April 28, 2014 to May 2, 2014. Nehaa Chaudhari, on behalf of CIS made the following statement on April 29, 2014.</b>
<p>This statement was in response to the Chairperson seeking NGO inputs specifically on the Scope of the Treaty and the Rights of Broadcasting Organizations. The statement makes references to a specific Working Document <a href="https://cis-india.org/a2k/blogs/sccr-27-cis-wipo.pdf" class="internal-link">available here</a>. CIS statement is quoted in <a class="external-link" href="http://keionline.org/node/1994">Knowledge Ecology International</a> on April 29, 2014 and in the <a class="external-link" href="http://www.ip-watch.org/2014/05/01/at-wipo-authors-civil-society-watchful-of-rights-for-broadcasters/">Intellectual Property Watch</a> on May 1, 2014.</p>
<hr />
<p style="text-align: justify; ">Thank you, Mister Chair.</p>
<p style="text-align: justify; ">We have some concerns regarding the intended scope and language of Article 9 in Working Document SCCR/27/2 Rev. We believe that this expands the scope of this proposed treaty and is likely to have the effect of granting broadcasters rights over the content being carried and not just the signal. On this issue, we have two brief observations to make:</p>
<p style="text-align: justify; ">First- Article 9 envisages fixation and post fixation rights for broadcasting organizations- for instance among others, those of reproduction, distribution and public performance This, we believe is not within the mandate of this Committee, being as it is, inconsistent with a signal based approach.</p>
<p style="text-align: justify; ">Second- we express our reservations on the inclusion of “communication to the public” reflected in Article 9 Alternative B, which also relates to the definition of communication to the public under alternative to d of Article 5 of this document. Communication to the public is an element of copyright and governs the content layer, as distinct from the “broadcast” or “transmission” of a signal. Therefore, attempts to regulate “communication to the public” would not be consistent with a signal based approach, which we believe is the mandate binding on this Committee. <br /> <br /> That is all, Mr. Chair. Thank you very much.<br /> <br /> In response to CIS' statement, the Chair had this to say:<br /> <br /> <i>Thank you, CIS,. That was a very clear statement and gave us a very clear explanation of the situation. We will indeed take due account of that in the course of this afternoon's further discussion. </i></p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/cis-statement-27-sccr-on-wipo-proposed-treaty-for-protection-of-broadcasting-organizations'>https://cis-india.org/a2k/blogs/cis-statement-27-sccr-on-wipo-proposed-treaty-for-protection-of-broadcasting-organizations</a>
</p>
No publishernehaaIntellectual Property RightsCopyrightAccess to KnowledgeWIPO2014-05-01T14:27:48ZBlog EntrySigning and Ratification of the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired, or Otherwise Print Disabled
https://cis-india.org/a2k/blogs/signing-and-ratification-of-marrakesh-treaty-to-facilitate-access-to-published-works-for-persons-blind-visually-impaired-print-disabled
<b>The Centre for Internet and Society sent the following letter to the Secretary, Ministry of Human Resource Development on March 14, 2014.</b>
<p style="text-align: justify; ">14 March 2014<br />Shri Ashok Thakur<br />Secretary, Ministry of Human Resource Development<br />Government of India<br />New Delhi</p>
<p style="text-align: justify; ">Dear Sir,</p>
<p style="text-align: justify; "><span style="text-decoration: underline;"><span>Subject: Signing and Ratification of the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired, or Otherwise Print Disabled </span></span></p>
<p><span style="text-decoration: underline;"> </span></p>
<ol style="text-align: justify; "><span style="text-decoration: underline;"> </span>
<li>I write to you on behalf of The Centre for Internet and Society, Bangalore, India <b>(“CIS”)</b>. CIS is actively involved in work on accessibility<a href="#fn1" name="fr1">[1]</a> and access to knowledge<a href="#fn2" name="fr2">[2]</a></li>
<li>The Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired or Otherwise Print Disabled<b> (“Marrakesh Treaty”) </b>was signed on June 28, 2013 at Marrakesh, Morocco. Reportedly, the Marrakesh Treaty was signed by over fifty countries on the final day of the Diplomatic Conference held to finalize this treaty, in late June, last year.</li>
<li>We are given to understand that reportedly<a href="#fn3" name="fr3">[3] </a>the Union Cabinet had in its meeting held at the end of last year cleared the Marrakesh Treaty for both, signature and ratification.</li>
<li>We write this letter to enquire about the status of India’s signing of the Marrakesh Treaty.</li>
<li>We strongly believe that the signing and ratification of the Marrakesh Treaty would be in India’s best interests, and in consonance with the amendments made to India’s copyright law in 2012, as reflected in India’s Closing Statement at Marrakesh on the Marrakesh Treaty.<a href="#fn4" name="fr4">[4]</a></li>
<li>In light of this we request you to take the necessary steps for the signature and ratification of the Marrakesh Treaty as a consolidation of India’s long standing commitment to providing access to books and printed material to the blind, visually impaired and persons with other print disabilities.</li>
<li>We would be deeply obliged to provide you with any assistance necessary.</li>
</ol>
<hr style="text-align: justify; " />
<p style="text-align: justify; ">[<a href="#fr1" name="fn1">1</a>]. See <a href="https://cis-india.org/accessibility">http://cis-india.org/accessibility</a> (last accessed 14 March, 2014).</p>
<p style="text-align: justify; ">[<a href="#fr2" name="fn2">2</a>]. See <a href="https://cis-india.org/a2k/">http://cis-india.org/a2k</a> (last accessed 14 March, 2014).</p>
<p style="text-align: justify; ">[<a href="#fr3" name="fn3">3</a>]. Email correspondence from Dr. Sam Taraporevala, available here- <a href="https://groups.google.com/forum/#%21topic/daisyforumofindia/tksq9kAdD0Q">https://groups.google.com/forum/#!topic/daisyforumofindia/tksq9kAdD0Q</a> (last accessed 13 March, 2014). and here- <a href="http://lists.keionline.org/pipermail/marrakesh_lists.keionline.org/2013-November/000240.html">http://lists.keionline.org/pipermail/marrakesh_lists.keionline.org/2013-November/000240.html</a> (last accessed 13 March, 2014).; Email correspondence from Shamnad Basheer, available here- <a href="https://groups.google.com/forum/#%21topic/spicyip/DupESMX2lkg">https://groups.google.com/forum/#!topic/spicyip/DupESMX2lkg</a> (last accessed 13 March, 2014). See also <a href="http://spicyip.com/2013/12/marrakesh-blind-treaty-okayed-for-signature-and-ratification.html">http://spicyip.com/2013/12/marrakesh-blind-treaty-okayed-for-signature-and-ratification.html</a> (last accessed 13 March, 2014).</p>
<p style="text-align: justify; ">[<a href="#fr4" name="fn4">4</a>]. See <a href="https://cis-india.org/a2k/blogs/india-closing-statement-marrakesh-treaty-for-the-blind">http://cis-india.org/a2k/blog/india-closing-statement-marrakesh-treaty-for-the-blind</a> (last accessed 13 March, 2014).</p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/signing-and-ratification-of-marrakesh-treaty-to-facilitate-access-to-published-works-for-persons-blind-visually-impaired-print-disabled'>https://cis-india.org/a2k/blogs/signing-and-ratification-of-marrakesh-treaty-to-facilitate-access-to-published-works-for-persons-blind-visually-impaired-print-disabled</a>
</p>
No publishernehaaCopyrightAccess to Knowledge2014-05-06T08:32:58ZBlog EntryWIPO Standing Committee on Copyright and Related Rights (SCCR) 26th Session- Consolidated Notes (Part 3 of 3)
https://cis-india.org/a2k/blogs/wipo-sccr-26-session-consolidated-notes-part-3
<b>From December 16 to 20, 2013, the Standing Committee on Copyright and Related Rights (SCCR) of the World Intellectual Property Organization (WIPO) met for the 26th session. This blog post (Part 3 of 3) summarizes Day 4 of the proceedings of the 26th SCCR, based on my notes of the session and WIPO's transcripts. </b>
<hr />
<p><i>Many thanks to Varun Baliga for putting this together, and to Alexandra Bhattacharya of the Third World Network for her notes and inputs</i>.</p>
<hr />
<h2>Day 5 – 26th SCCR</h2>
<p style="text-align: justify; ">The agenda for the final day of the 26th SCCR was set as limitations and exceptions for educational and research institutions and for persons with other disabilities.</p>
<p style="text-align: justify; "><b>Trinidad and Tobago</b>, speaking on behalf of the GRULAC group of nations, supported the idea of an international convention on this agenda. It was of the opinion that such an instrument would work for the benefit of the economic development and socioeconomic enablement of millions of people in the GRULAC region. <b>Algeria</b>, speaking on behalf of the African Group, emphasized the digitalization of education, research and living across the world and the impact that this has on the right of peoples of all nations to access knowledge. Responding directly to sustained opinion from the developed world of the absence of a need for an international convention, Algeria spoke about the need for balance and uniformity in regulations. This balance between the right to access knowledge and to protect intellectual property is often achieved through the concept of limitations and exceptions. This balance also requires uniformity because conflicting cross-border norms in our digitally borderless world would render the ameliorative effects of limitations and exceptions moot. Further, the Berne Convention has proved to be of minimal help since interpretations have emerged of its dissonance with the tools needed for distance education. Therefore, in order to cover the digital dimension of limitations and exceptions, an international treaty is critical. In the words of the Algerian delegate, “We know that the balance between Intellectual Property rights and public interest are generally translated by exceptions and limitations. Unfortunately in the area of education and scientific research, national legislation does not seek this balance in a uniform and comprehensive manner.”</p>
<p style="text-align: justify; ">The delegate also responded to concerns about the text proposed by the African Group. The proposal, he said, was a text-oriented tool to find an apt balance. Further, it was also imbibed with a certain degree of flexibility to allow for its adaption to the needs of development as understood by nations, various kinds of copyright protections and various treaties in literary and artistic property. Furthermore, the African Group wished for this text, if adopted, to move on the principle of consensus and expressed a willingness to incorporate any constructive concerns that delegates may have in order to stay true to the ideal of consensus-based diplomacy.</p>
<p style="text-align: justify; ">A number of developing and developed countries supported the need for greater discussion at the international paradigm on the topic of limitations and exceptions, and also the swift adoption of an international instrument in this respect. <b>Kenya</b> and the <b>Islamic Republic of Iran</b> put their weight behind the African Group, emphasizing similar values of digitalization of information and communication, right to access knowledge, public interest and need for an international instrument. <b>Tunisia </b>also supported the notion that an international instrument would lead to the harmonization of standards and benefit the international community.<b><i> China</i></b> came out in strong support of further negotiations. <b>Russia</b> noted that it was in support of a single document for limitations and exceptions that covers within its ambit the entire gamut of protections discussed at this forum. Further, it also supported the contention of the Japanese delegation that the international instrument should not include contentious issues such as instance liability.</p>
<p style="text-align: justify; ">It is also pertinent to note that <b>Japan</b>, on behalf of Group B, came out against the idea of a treaty based approach to the negotiations, much preferring “constructive work on principles and updating of studies by the Secretariat”. The <b>European Union</b> submitted that the extant international copyright framework was both adequate and ideal for the needs of both the digital and analog world of education, research and needs of persons with other disabilities. The EU proceeds to draw a distinction between the needs of educational and research institutions and persons with other disabilities vis-à-vis needs of persons with visual and print impairment. In drawing this distinction, it seeks to achieve principled coherence across its support for the Marrakech Treaty and its opposition to any treaty on limitations and exceptions. It expressed concern that the working document was not an accurate reflection of the views of those countries that were of the opinion that present negotiations should be confined to the sharing of national experiences. Given the diversity in domestic regulations, any international treaty should seek to achieve domestic regulatory harmony and then proceed, assuming that the need argument fails to hold water.</p>
<p style="text-align: justify; ">The <b>Indian</b> delegate submitted that the discussions were in furtherance of earlier deliberation on limitations and exceptions for libraries and archives. There was a dire need to understand libraries and education not in a parochial, institutional sense but in a broad and enabling manner to meet the needs of developing and least developed nations. Both the material and transmission should be covered in order for distance learning to be enabled in any meaningful manner. Further, it was also of the opinion that an expansion of ISP liability is needed, citing the IT Act in support of this.</p>
<p style="text-align: justify; ">At this point, the developing nations made their voice heard in opposition to the fundamental premise of the ongoing negotiations – that an international treaty is a worthwhile goal to work towards. <b>Poland</b>, on behalf of the CEBS Group, commecnced his statement by taking cognizance of the importance of educational and research institutions and activities in our society and economy. The delegate recognized the existence of the knowledge triangle of education, research and innovation. Proceedings from this premise, it was the view of the CEBS Group that the best way to hone this innovation is by establishing a robust and strong system of intellectual property. Further, it went on to draw the link between the critical activities of distance learning, collaborative research with the activities of publishing and other aspects of the creative sector. Copyright policies therefore have to also take into the account the economic and social effects of not enabling access to research. The CEBS Group argued for a balanced copyright approach. It went on to support the idea of each WIPO member incorporating enabling limitations and exceptions within their domestic copyright regimes through a mutual sharing of best practices and national experience using multilateral for a such as this one. It was of the belief that modern copyright systems should provide for efficacious licensing mechanisms that are flexible, supportive and enabling to education, research and teaching activities as well as the needs of persons with other disabilities. Supporting the values emphasized by the developing world does not necessarily require the adoption of a binding international instrument. It concluded that the need to develop a comprehensive understanding of limitations and exceptions should not come at the flexibility that is conventionally afforded to WIPO member states to determine their own educational, research and teaching policies and norms to enable the lived experience of persons with disabilities.</p>
<p style="text-align: justify; ">The <b>United States</b> started by submitting their own document – SCCR/23/4 – on objectives and principle for limitations and exceptions for libraries and archives. The US chose to further the CEBS submission by underscoring the potency of the extant copyright regime – Berne Convention 1886 and WIPO Copyright Treaty 1996. Both have a balance between copyright and education and have the promotion of education, research and teaching as their stated goals. Therefore, notwithstanding the contention that they are anachronistic given the digitalization of information and communication, it is possible to accommodate contemporary needs within existing regimes. The US stated that it was of the opinion that finding common ground on principles and an examination of the diverse national treatment of the issue of limitations and exceptions would render a more productive, positive solution than foisting a treaty or international legal instrument on the domestic regimes of WIPO members. It was of the opinion that this would “permit progress by promoting steps forward on shared goals and principles while enhancing international understanding and maintaining flexibility at the national level. We do not support work towards a treaty.” It also went on to voice concerns about the inclusion of controversial and broad areas of protection within the rubric of the treaty – topics such as public health and ISP liability were causing much consternation to the delegate of the United States. A plethora of reasons were advanced by the US that articulated its layered opposition to this entire process. There was a concern that given fundamental differences of opinion, inclusion of contentious protection would be pernicious to the negotiation itself. It was also of the opinion that a lot of the provisions had only incidental relevance to the central question of education and rights of persons with other disabilities would distract the nations from the purpose of the proposed international instrument. This proliferation of protections would in turn harm the considerable economic, social and political capital invested in the negotiation process.</p>
<p style="text-align: justify; "><b>Senegal</b> affirmed the idea of an international agreement on limitations and exceptions. It believed that the contemporary is far removed from the world in which the Berne Convention and extant international copyright regime was conceptualized. Therefore, Senegal was in favour of a flexible international instrument that responded to digitalization and was proactive rather than reflexive. <b>Sudan</b> also threw its weight behind the African Group proposal and offered a scathing critique of the exclusivist tendencies of the contemporary copyright regime. It called for “efforts to break the current situation faced by certain countries in communication or in building the infrastructure and bridging the digital gap.</p>
<p style="text-align: justify; "><b>Columbia</b>, on the other hand, spoke about the need to understand if there is a lacuna in the present international copyright regime and understand the implications of adding to existing corpus of limitations and exceptions.</p>
<p style="text-align: justify; ">At this juncture, the Chair opened the floor for contributions from <b>civil society representatives</b>. <b>Knowledge Ecology International</b> focussed its submissions on three foci – specific exceptions, three-step test and the corporate system. KEI acknowledged the raft of protections for limitations and exceptions within existing copyright structures but articulated the need for specific exceptions. Further, it reasoned out the incompatibility of the Berne three-step test with the needs of contemporary knowledge creation, research and access. Transplanting the Berne Convention to this context would render it moot and have far-reaching pernicious consequences on the international community’s reactions to dire questions of access particularly in the developing and developed world. KEI acknowledged the underlying premise of US/EU/Group B objections to an international instrument by pointing out the difference in national treatment of limitations and exceptions. As a response to this legitimate concern, it suggested that complimentary confidence building measures such as a multi-stakeholder platform work alongside the treaty negotiations so as to ensure that it is an inclusive process that alienates no stakeholder.</p>
<p style="text-align: justify; "><b>IFRRO</b> came out in strong support of the position against an international treaty. It stated that in pursuit of limitations and exceptions, one must not lose sight of the legitimate rights that creators have over their work. Diluting that principle would do harm to the idea of copyright and by extension creative and innovative thought. In support of this contention, studies were cited that showed a causal link between IP protection and income of authors.</p>
<p style="text-align: justify; "><b>The Centre for Internet and Society</b> underscored the value of universal access to education and knowledge. Information and communication technology in the contemporary carry the tantalizing prospect of the realization of this ideal without excessive expenditure. It is also critical for this access question to be all-inclusive, for “formal and informal institutions and for environments and in digital and non-digital formats”. The experience of developing and least developed nations is a feeling of exclusion from the silos of knowledge in the west and it falls upon the international community to disrupt these silos to ensure equitable access to knowledge and, as a consequence, power. Individuals in these countries not only have to spend more on each book but have to spend a higher proportion of household income on it vis-à-vis Western households. The present international copyright framework lacks the ability to facilitate the realization of this ideal for three reasons. <i>First</i>, the myopic and complex compulsory licensing provisions in the Berne Convention. <i>Second</i>, the incompatibility of the three step test to contemporary limitations and exceptions. And finally, the need for harmonization of national practices and facilitation of cross-border exchange of information and knowledge.</p>
<p style="text-align: justify; ">On being called on by the <b>United States, Ecuador </b>and <b>Egypt</b>, it was decided that the Secretariat would study the possibility of a study on the ambit of copyright and related rights as also limitations and exceptions for persons with disability and from the perspective of learning concerns. It was also decided that the Secretariat would update regional studies on limitations and exceptions for educational, research and teaching institutions.</p>
<p style="text-align: justify; ">The next session, SCCR 27, would focus on a discussion on exceptions and limitations with a focus on libraries and archives.</p>
<h3 style="text-align: justify; ">Draft Conclusions</h3>
<p style="text-align: justify; ">The draft conclusions to this year’s SCCR was put up by the Chair for comments by all members. Belarus and CEBS fully supported the text and praised it for its balanced approach. The United States also supported it but requested an edit to Paragraph 6 Line 4 – a ‘to be defined’ in parenthesis after the words ‘on demand transmissions’. India expressed gratitude that everyone’s views were taken into account in the draft conclusions and asked for two edits. It stated that parts of the discussion on Article 9 were absent from the text. Further, the words beneficiaries in the draft conclusions was included when it had no definition in the document. Finally, it suggested that the word last line in paragraph 5 be changed to might or may. The Chair responded to India’s concerns on paragraph 5 by directing attention to the word ‘if’ in the text. Ecuador and Brazil both supported India’s opinion that the word should be may or might and not should. India submitted that this is not simply an editorial or cosmetic change but one that reflected a substantive issue. Ecuador also stated that countries might in the future want to include internet transmissions and the word should conditions the negotiations, lending it a restrictive air. Brazil also stated that it was crucial for the text to be both balanced and reflective of every stakeholder’s concerns. India stated that this was a demand from two or three groups. The lack of consensus on this point implies that the word should be may and not should. The EU, US, Japan, Switzerland and Poland (on behalf of the CEBS) supported the text <i>in toto</i>- a tacit snub to India’s suggestion. Italy stated that the word ‘if’ in the text provides the kind of flexibility that India is seeking and that altering the word should to may would rob the provision of meaning and be grammatically grotesque. Looking for alternatives, India also requested that the words ‘at least’ be deleted in order for some aspect of its concerns to be taken into account. Belarus characterized the text as entirely factual and accurate portrayal of the negotiations that took place-gave its support to the entire text. The Chair then offered an explanation of the terminology and showed how the wording allowed for both possibilities of inclusion and exclusion of transmission over the internet.</p>
<p style="text-align: justify; ">Indian then turned attention to the lack of a definition to the word beneficiaries. The Chair acknowledged India’s concerns and accepted the US suggestion to add the words ‘to be defined’ after both beneficiaries and on demand transmissions. Brazil also suggested traditional broadcasting/cablecasting or broadcasting/cablecasting organizations in the traditional sense as possible ways to word the text. The EU requested the Chair for some language suggestions on how best to resolve this. The proposals (and not issues, after a request from India) on Articles 5,6,7,9 and 12 were added to the annex. After the incorporation of all these concerns and compromises, the Chair approved this section.</p>
<h3 style="text-align: justify; ">Libraries and Archives</h3>
<p style="text-align: justify; ">On the limitations and exceptions for libraries and archives, the United States made two suggestions. <i>First</i>, that the word may be removed from paragraph 18 as it detracta from the nature of the deliberation on that point. <i>Second</i>, the inclusion of the phrase “other proposals submitted” in paragraph 21. Brazil stated that it stood for the draft conclusions to be a clear picture of the positions adopted by WIPO members. In this light, it called for the inclusion of the names of member states that wished to discuss national laws in paragraph instead of the nebulous phrase ‘some member states’. He also requested a clarification on the last line of paragraph 16. Trinidad and Taboga indicated that it was adopting a flexible approach; it supported the suggestions by the US and Brazil but were also willing to work with the text.</p>
<p style="text-align: justify; ">The European Union wanted the word ‘also’ to be removed from paragraph 14. It also suggested that the final sentence of paragraph 16 be “these studies will serve as information and work resources for the committee”. Ecuador agreed with the US working document. It was of the opinion that the document should better reflect a spirit of compromise. On limitations and exceptions for museums, given the study reflected in the plenary for persons with other disabilities – there was a discrepancy between the discussions and the text. One was with the understanding that it was subject to the availability of resources while the other implied that it was mandatory in nature. The EU wanted licensing to be included in the text. The US thanked Ecuador for working out a compromise on the language and accepted it. Algeria expressed its desire to stick to the language proposed by the Chair on paragraph 13.</p>
<p style="text-align: justify; ">The Brazilian delegate called for flexibility on paragraph 14 in light of the proposal by the EU delegation on the point of discussion on national laws. The United States responded that it didn’t quite follow the position being adopted by the Brazilian delegate on paragraph 14 and much preferred a return to the text originally adopted by the Chair. Egypt pointed out the possible confusion that could emerge between paragraph 16 and 21, and in light of this expressed a willingness to engage in a full scale discussion on proposals from Canada and the EU. The EU responded directly to paragraph 14 in particular. It spoke out against the idea of listing the WIPO members that asked for a discussion on national laws as this would be against WIPO practice both in other parts of the same document as well as in other deliberations. EU stated that it saw no need to list out WIPO members and stood firmly against it. Brazil responded with a modicum of alarm at the opposition to the simple proposal to introduce the elements of precision in a document that is meant to be factual. It is far better for readers to understand the precise picture rather than having a general understanding of issues. Italy, Belarus and Greece threw their collective weight behind the EU opposition to this. All stated that this would be highly inappropriate and would amount to the singling out of the EU and other nations that took a stance, something that they didn’t see a need for. The US proposed a compromise where instead of naming the member states, ‘some member states’ would be used. Brazil said that this term was not just nebulous but could give the wrong impression to future delegates of the precise number of states that wished for discussion on national laws. Ecuador played the role of the voice of reason and stated that the progress of negotiations shouldn’t be hampered because of such a cosmetic set of differences. There was no need for the level of precision that was exemplified by the naming of WIPO members. Instead, it stated that it advocated for a general references to nations that asked for a discussion on national laws. This general reference was supported by Algeria and finally adopted by the Chair as a compromise between the opposing factions. On paragraph 16, the Chair called for the part on limitations and exceptions on museums to be deleted with the understanding that there would be an update by Professor Kenneth Cruz that would include all aspects of this issue. On paragraph 14, the Chair was in favour of the compromise suggested by the United States. It stated that in using the word ‘some’ no particular number or indication thereof was intended and that caveat was always there; instead what was only meant through the word ‘some’ was that the number of was more than one. Asked for Brazil to show some flexibility in this situation. Egypt raised the important issue of not conflating the fundamental disagreement on the nature of the proposed instrument and the desire to have discussions on national laws. It stated that in case both were being included, they be mentioned in separate paragraphs because a conflation would lead to misplaced conclusions being drawn.</p>
<p style="text-align: justify; ">Deliberations on paragraph 16 ensued and the Chair clarified that on paragraph 16, the first and third sentence were being retained while the second was done away with. Ecuador asked for thereto be no confusion between studies on limitations and exceptions and those on museums. Its objection does not extend to the latter. The Chair suggested that all references to museums be deleted. Algeria wanted the words on preparation not being delayed to be retained and applied to all studies being proposed. US agreed with the Chair’s proposal but added that perhaps a separate study on limitations and exceptions on museums be included. Algeria insisted that this principle be applicable to all studies and not just studies on museums. The Chair stated that a separate study on limitations and exceptions for museums be included with the understanding that this would not delay general discussions on limitations and exceptions. The last sentence was also retained. With this, deliberations on this topic were closed.</p>
<h3 style="text-align: justify; ">Limitations and Exceptions For Educational and Research Institutions and for Persons with Other Disabilities</h3>
<p style="text-align: justify; ">The European Union delegate stated that it was in support of the inclusion of the point on licensing as an appropriate point in the text. Sharing Algeria’s concern, it also called for the deletion of the word ‘understood’ in paragraph 23. Algeria had earlier raised a problem with the use of the word ‘understood’, preferring the phrase ‘agreed on’. The EU also called for the text to be accurate reflection of the negotiations. Brazil responded to the concerns of the EU delegate by stating that he would not be in support of a suggestion that this document not be the basis for future work on this topic. Ecuador supported Brazil’s point on this being a text-based negotiations and that this should be the basis for future deliberations. Brazil also expressed a bewilderment at the EU insistence of the inclusion of the point on licensing. It asked for its relevance in an agreement on educational institutions; a clarification was sought from the EU. The EU responded that it was of the opinion that we’re dealing with related subjects that deserve equal treatment. In this context, since licensing was included in the previous agreement, it must also be reflected in these conclusions.</p>
<p style="text-align: justify; ">Egypt supported the Chair’s language in paragraph 23. Further, it went on to attempt a compromise by suggesting that this text be not <i>the</i> basis for future text-based work but <i>a </i>basis. This would lend the issue a degree of much-needed flexibility. The US, on the side, supported the EU on including licensing schemes. The EU responded favourably to the compromise suggested by Egypt and said that a text where the word <i>the</i> is replaced by <i>a</i> is one that is agreeable to the EU.</p>
<p>The Chair outlined the three issues as</p>
<ul>
<li>The word ‘the’ in Item 27</li>
<li>The inclusion of the point on licensing and the tussle between the EU (arguing for inclusion, supported by the US) and Brazil (against the inclusion).</li>
<li>The point of this being the basis for future text-based negotiations and the compromise suggested by Egypt and accepted by the EU.</li>
</ul>
<p style="text-align: justify; ">A compromise was worked out on licensing where the words “but other delegations do not see it that way” be included as a rider. Differences on points 1 and 3 were also ironed out as the Egyptian compromise was accepted. On this point, the third section was approved and deliberations came to an end.</p>
<h3 style="text-align: justify; ">Other Matters</h3>
<p style="text-align: justify; ">It was announced that the reports of the Stakeholders’ Platform – SCCR/26/5 and SCCR/26/7 – be put up on the web page. Finally, suggestions were wielded and discussed for future meetings of the SCCR.</p>
<p style="text-align: justify; ">It was agreed that SCCR 27 would be dedicated to the protection of broadcasting organizations (two-and-half days), limitations and exceptions (two days) and conclusions and discussions on future work (half a day).</p>
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<h3>Additional Links</h3>
<ol>
<li><a href="https://cis-india.org/a2k/blogs/wipo-sccr-consolidated-26-session-consolidated-notes-part-1" class="external-link">WIPO Standing Committee on Copyright and Related Rights (SCCR) 26th Session- Consolidated Notes</a> (Part 1 of 3).</li>
<li><a href="https://cis-india.org/a2k/blogs/wipo-sccr-26-session-consolidated-notes-part-2" class="external-link">WIPO Standing Committee on Copyright and Related Rights (SCCR) 26th Session- Consolidated Notes</a> (Part 2 of 3) </li>
</ol>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/wipo-sccr-26-session-consolidated-notes-part-3'>https://cis-india.org/a2k/blogs/wipo-sccr-26-session-consolidated-notes-part-3</a>
</p>
No publishernehaaCopyrightAccess to KnowledgeWIPO2014-04-01T09:48:59ZBlog EntryWIPO Standing Committee on Copyright and Related Rights (SCCR) 26th Session- Consolidated Notes (Part 2 of 3)
https://cis-india.org/a2k/blogs/wipo-sccr-26-session-consolidated-notes-part-2
<b>From December 16 to 20, 2013, the Standing Committee on Copyright and Related Rights (SCCR) of the World Intellectual Property Organization (WIPO) met for the 26th session. This blog post (Part 2 of 3) summarizes Days 3 and 4 of the proceedings of the 26th SCCR, based on my notes of the session and WIPO's transcripts.
</b>
<hr style="text-align: justify; " />
<p style="text-align: justify; "><i>Many thanks to Varun Baliga for putting this together, and to Alexandra Bhattacharya of the Third World Network for her notes and inputs</i>.</p>
<hr style="text-align: justify; " />
<h2 style="text-align: justify; ">26th SCCR – Consolidated Notes</h2>
<h3><b>Day 3</b></h3>
<p style="text-align: justify; ">The Chair commenced proceedings by noting the need to take stock of the work done over the course of the first two days of proceedings. He stated that we needed to see the points of agreement as well as sticking points that persisted in order to chart a path towards resolution. There was an urgent need for clarity.</p>
<p style="text-align: justify; ">The floor was opened to Delegations and Regional Groups. The document before the countries is the one on draft conclusions for the discussions surrounding the Broadcast Treaty.</p>
<p style="text-align: justify; "><span>Belarus</span> starts by expressing its support for the document before it and is ready to engage with any proposals that nations might have on it. <span>Poland </span>wanted the wording changed to broadcasting an cablecasting organizations in the traditional sense, but expressed its support for the document otherwise. A few other delegations, such as the one from Trinidad and Tobago, also expressed unease at the terminology of ‘traditional broadcasting organizations” in the document and much preferred broadcasting and cablecasting organizations in the traditional sense. Notwithstanding these concerns, there was considerable support for the draft conclusions.</p>
<p style="text-align: justify; ">The EU wants its discussions on transmissions over the internet to also be included as a part of the draft conclusions.</p>
<p style="text-align: justify; "><b><span>Libraries and Archives</span></b></p>
<p style="text-align: justify; ">Trinidad and Tobago expressed its full support for the exceptions and limitations for libraries and archives. They were keen to “close this gap to strengthen the copyright system as well as the human and collective rights for the benefit of creators and users alike”. It stated that the progress made in this regard was entirely consistentwith the Millennium Development Goals and the Development Agenda of WIPO. The CEBS group also came out in support of this framework. Further, it added that it would benefit greatly from the sharing of national experiences in this matter. It was stated that the modern copyright system should have a licensing system that is supportive of libraries, archives and other every day research. CEBS was sceptical however of the need to enter into any sort of international treaty in this regard. The delegate from Bangladesh pointed out the acute need for this limitation and exception particularly from the perspective of a developing nation in dire need of free flow of information. In this context, the Indian delegate was invited to make comments. The EU put on record its opposition to any sort of binding international instrument in this regard, and they wished to see this desire reflected in the title of the document. Iran called for the commencement of text-based negotiation since it was fairly clear that there was a need for an international instrument in this matter. Colombia concluded by stating that access to knowledge should be the guiding principle for the exceptions and limitations. It was very important for the libraries to fulfil the public interest for there to be copyright protection to its activities. It stresses however the need to continue to provide incentive and legitimate copyright protection even within this framework.</p>
<h3><b>Day 4</b></h3>
<p style="text-align: justify; ">Discussions continued on the first topic of preservation as found in the SCCR/26/3 which focusses on exceptions and limitations enabling libraries and archives. For this session, the Chair outlined the issue up for comments as the right of reproduction and safeguarding copies.</p>
<p style="text-align: justify; "><span>Azerbaijan</span>, speaking for the first time, stated that it took cognizance of the importance of exceptions and limitations and supported an international instrument on it. The purpose of limitations and exceptions should be to allow librarians and archives to preserve the documents. The documents protected should be used solely for research purposes and must be in accordance with fair practice. <span>Australia</span> clarified the role of preservation to be the continuing availability of physical and digital works already held in the collections of a library or archive for the benefit of present or past users. Critical to be very specific when talking about preservation in order to prevent the proliferation of rights. It stated that it was yet to be convinced of the need for an international instrument. <span>Belarus</span> noted that it supported the need for an international legislation. It supported the formulation of rules in this regard on the basis of the three step test, in order to maintain the balance of interests at play. It is imperative that strict rules of interpretation are employed while introducing this into domestic legislation in order to avoid ambiguous approaches that will lead to the abuse of the freedoms codified. The non-commercial and non-profit making nature of libraries and archives were emphasized. In explaining the merits of the three step test that would facilitate the entry of this international document into domestic law, <span>Poland</span> shared its national experiences in this regard with the group. <span>Brazil </span>suggested that the concern of proliferation of works voiced by many countries could be resolved by engaging in deliberations that result in clear definitions. It suggested that the intervention made by Canada be made into an annex as a subject that can discussed in the text in the future. <span>Russia</span> noted that the Berne Convention is the bedrock of international intellectual property and copyright law and coupled with reference to national legislation would help in reaching a common understanding on preservation. <span>Morocco </span>was in support of an international legislation since dealing with the problem nationally would be woeful piecemeal approach. <span>Senegal</span> pointed out definitional issues that were plaguing the discussion. If there was no common ground on the idea of a library and an archive, then the discussions on exceptions and limitations would not break any new ground. Therefore, the discussions appeared to be proceeding on two tracks – nature and scope of the exceptions and limitations for libraries and archives and the need for an international instrument that went beyond national legislation. The Chair opened comments on the latter track since that is foundational. The <span>United States</span> reiterated its opposition to any agreement that transcended national legislation. It also wished to introduce a bit of complexity in its discussions by pointing out that its domestic copyright law had no understanding of a library or archive. Therefore, it was going to be difficult to come to an understanding at the international level when national legislations themselves have not reached that point in their trajectory. Both El Salvador and Ecuador tacitly stated that they were in favour of an international legislation by continuing the discussion on merits. El Salvador opined that there was some degree of good faith involved and that was unavoidable in the pursuit of the desire to facilitate the sharing of knowledge. <span>Greece </span>stated that limitations and exceptions should only be applicable when an additional copy is not available in the market. Significantly, it stated that libraries and archives could enter into agreements with the rights holders by themselves. A flexible international framework was what Greece was aiming at, not an international legislation that went beyond national legislation. Both Greece and the EU suggested using the EU Copyright Directive as a starting point for defining libraries and archives. It asked for the flexibility it already had within the EU framework to be respected. <span>Italy</span> stated that it saw no international interest in a transnational agreement on exceptions and limitations. <span>India</span> emphasized the point that there was an international interest in preserving the culture of countries. The international dimension was in the context of cross-border cultural exchange. <span>Congo</span> came out in support of an international agreement as well. There was some degree of opposition from Greece that questioned India on why either manuscripts on cross-border cultural exchange had anything to do with preservation. In its opinion, those two goals could be achieved even without the formation of an international agreement on exceptions and limitations. India responded by clarifying that it did not use the example about ancient manuscripts in the context of copyright but the existence of an international interest in the matter of preservation. The issue of preservation of works within a library are for present and future use. This use, in today’s globalized world, is not just for the citizens of that country but for researchers the world over. In order to allow for thus cultural exchange, it was imperative that the copyright of the work not come in the way. Hence, there was the need for an international, and not merely national, legislation on the issue.</p>
<p style="text-align: justify; ">On France’s concern about Ecuador’s vague understanding of fair use, Ecuador clarified that this would be the same as in the Berne Convention and the three step test would apply. Finland, Jordan and Senegal then shared their countries’ national experience in this regard.</p>
<p style="text-align: justify; ">The Chair concluded the discussion on the first topic by articulating what he saw as a principle that is in the common agreement of all. In order to ensure that libraries and archives can develop their public service of the preservation of works in order to preserve knowledge and heritage, we need exceptions and limitations. Certain circumstances and guarantees are yet to be discussed and disagreements persist but none that threaten the need for a discussion.</p>
<p style="text-align: justify; "><b>Topic 2 – Right of Reproduction and Safeguarding of Copies</b></p>
<p style="text-align: justify; ">The Secretariat noted that there were proposals from the African Group, Brazil, Ecuador, India and the United States.</p>
<p style="text-align: justify; ">The <span>EU</span> opened the discussion with the suggestion that the title of this topic should only be focussed on the right to reproduction. This was in light of the nature of the proposals made by the various groups and nations. <span>Ecuador</span> situated the debate on the right to reproduction within the broader framework of limitations and exceptions for libraries and archives. It was imperative, it stated, that a right for libraries be carved out in order to facilitate the important social role they discharge. <span>France</span> added to the concern voiced by the EU in stating that it felt that safeguarding was already covered within the ambit of the previous topic. <span>Brazil</span> responded to this by drawing a clear cut distinction between the first and second topics. The right of reproduction was applicable to libraries while safeguarding was for archives. Both the role of the library and that of the archive merit discussion, it was emphasized, and both should equally be included in the second topic. <span>Senegal </span>supported the idea of an inclusive topic that mentions both the right of reproduction and safeguarding of copies. It stated that a distinct right of safeguarding was crucial at a time when vital cultural artefacts are vulnerable to destruction. The example of the museum in Timbuktu that was ravaged by militants leading to the irreparable loss of invaluable manuscripts was cited in support.</p>
<p style="text-align: justify; "><span>Italy</span> voiced a two-pronged opposition to the very idea of articulating a right to reproduction. <i>First</i>, it stated that allowing for reproduction, even in University libraries, would open the floodgates to copyright violations. It was afraid that copyrighted material would be reproduced within the library which would then lead to that material appearing on for a not envisaged within the rubric of the treaty. <i>Second</i>, it was against the extension of the idea of research to private research. The transmission of the reproduced material to third parties would lead to a loss of revenue to the rights holder in question. To Italy, the latter was even more egregious since the former at least allowed for the possibility of, via the money paid for the reproduction, monetary compensation of the rights holder. The latter however had no room for this to be effected.</p>
<p style="text-align: justify; "><span>Belarus</span> supported the EU position on the exclusion of safeguarding from the present discussions. Further, Belarus stressed that it wanted a caveat to the exception for scientific and educational research. It wanted the kind of material that would fall under the exception to be limited to “just articles or short works or excerpts from books” since “the student or researcher probably doesn’t need the whole book”.</p>
<p style="text-align: justify; "><span>Brazil</span> assuaged the concerns of the right holders by pointing out that its proposal in paragraph 2 makes national legislation the focus. Fuether, it added that with respect to the international dimension to the rights, the GA had already stated that there would be an “international legal instrument”. Therefore, the multilateral nature of both the subject matter and scope of the negotiations is beyond the pale of doubt.</p>
<p style="text-align: justify; ">The representative from the International Council of Museums noted that all of the rights were equally applicable to museums as well. Very often, museums suffered from a lack of uniformity and harmonization of rules across multiple jurisdictions. This was the need it saw for an international treaty on the issue.</p>
<p style="text-align: justify; ">The Chair summed up the discussions. Despite the emergence of any sort of consensus, most countries had agreed for a need to have exceptions and limitations for libraries and archives. Further, a right to reproduction of works for libraries was recognized to facilitate the reproduction of certain works under certain conditions for the purposes of research. The scope of none of these terms have been agreed upon by states nor has there been much agreement on whether this extends to distribution of the material and to what extent. The EU and the USA mentioned that they did not think there was a need for an international agreement on this and the GA wording was not binding in any sense.</p>
<p style="text-align: justify; "><b>Topic 3 – Legal Deposit</b></p>
<p style="text-align: justify; ">The Secretariat noted that there were proposals from the African Group and India on this. This was not received very warmly by the delegates. Most thought it was out of the place in the current discussions. The US opposed the need for any discussion at the international level since the issues in question were codified in domestic law to varying degrees. Therefore, it could not be said that it was “ripe for harmonization”. Colombia found the concept of legal deposit “strange” in a document on exceptions and limitations.</p>
<p style="text-align: justify; "><b>Topic 4 – Library Lending</b></p>
<p style="text-align: justify; ">The Secretariat noted that there were proposals from the African Group, India, Brazil, Ecuador and Uruguay.</p>
<p style="text-align: justify; "><span>Ecuador</span> explained in great detail that the reason behind this was to allow for libraries to lend copyrighted works to its users or to another library. Very often, research necessitates the movement of the physical copy of a particular work. In other instances, the presence of a particular copyrighted work in a specific library has great symbolic and cultural value, apart from its patent value for research activities. In furtherance of its earlier objections, <span>Italy</span> explained that lending could also lead to egregious copyright violations. Along these lines, it objected to the idea of digital lending since it went against the grain of lending because returning a digital copy was not possible or meaningful. The International Federation of Libraries, representative from civil society, pointed out that there were technological tools that would prevent the unintended and harmful proliferation of lent digital copies. Digital lending could take place by passing along a password encrypted digital copy that would expire after a set period of time.</p>
<p style="text-align: justify; "><span>Greece </span>furthered the harm that this would have on copyrighted works by asking why anybody would want to get the original if lending is applied to the realm of films via digital transmission. Responding to the African Group proposal, it asked how this was in conformity with the three step test. The US responded by drawing a positive causal link between lending and commercial purchase of the product. Again, the Chair summed up by stating that agreement was that exceptions and limitations must extend to library lending but agreement on the scope and nature of this extension evaded consensus.</p>
<hr />
<h3>Additional Links</h3>
<ol>
<li><a href="https://cis-india.org/a2k/blogs/wipo-sccr-consolidated-26-session-consolidated-notes-part-1" class="external-link">WIPO Standing Committee on Copyright and Related Rights (SCCR) 26th Session- Consolidated Notes (Part 1 of 3) </a></li>
<li><a class="external-link" href="http://www.wipo.int/webcasting/en/index.jsp">Videos/Webcast of the 26th SCCR</a></li>
</ol>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/wipo-sccr-26-session-consolidated-notes-part-2'>https://cis-india.org/a2k/blogs/wipo-sccr-26-session-consolidated-notes-part-2</a>
</p>
No publishernehaaCopyrightAccess to KnowledgeWIPO2014-03-20T04:52:53ZBlog Entry004: A License to Share
https://cis-india.org/a2k/blogs/a-license-to-share
<b>In this blogpost Devika Agarwal, a 4th year student at Dr. Ram Manohar Lohiya National Law University, Lucknow, takes a first look at the Creative Commons 4.0 Licence.</b>
<p style="text-align: justify; ">With the increasing amount of information being uploaded online every day, it becomes imperative to facilitate the sharing of this information legally. Creative Commons (CC) license is a tool developed especially with the objective of allowing widespread dissemination of information in a manner so as not to infringe the copyright of a person over the work.<br /><br />A CC license is a valid license. It is ‘non-exclusive’ in nature; this means that the author of a work is free to enter into a different licensing agreement with anybody he wishes despite holding a CC license (the different licensing contracts must also be ‘non-exclusive’ in nature). Simply put, licensees of a CC license will be governed by the terms of the CC license unless they have a different agreement with the license holder.</p>
<p>In India, works licensed under the CC license include <a href="http://www.nextbigwhat.com/india-launches-school-education-portal-under-creative-commons-license-297/">digital copies of educational material by NCERT.</a></p>
<p style="text-align: justify; ">With the first version of the license being published in 2002, Creative Commons has witnessed a number of changes to help serve the needs of internet users better. Version 4.0 of the Creative Commons License was released on November 25, 2013.</p>
<ul>
<li><span style="text-decoration: underline;">A more global license</span></li>
</ul>
<p style="text-align: justify; ">What sets the latest version of the Creative Commons license apart from its precursors is the fact that CC license 4.0 is an ‘<i><b>international license’</b></i>. The earlier versions of CC license required the license to be <a href="http://wiki.creativecommons.org/Porting_Project">“ported” to the different jurisdictions</a>; ‘porting’ was a process which involved the translation and legal adaptation of CC’s core license suite (also known as ‘<i><b>generic’ license suite’</b></i><b> </b>) to conform to the languages and copyright laws of individual jurisdictions). This means that earlier one had to obtain a CC license ported to one’s country; the “ported version of the license” was a modification of the generic CC license, suited to meet the copyright requirements of a particular country.</p>
<p style="text-align: justify; ">The CC license 4.0, on the other hand, is an international license, i.e., the 4.0 license is <b><i>‘jurisdiction neutral’</i></b> in nature and a single version of the license exists for all persons.</p>
<ul>
<li><span style="text-decoration: underline;">Sui generis database rights</span>:</li>
</ul>
<p style="text-align: justify; ">The CC license 4.0 also provides explicitly for protection to <i>sui generis</i> databases in jurisdictions which recognize copyright related to <i>sui generis</i> databases. <i>Sui generis</i> databases were not expressly covered by the earlier versions of the CC license. (<a href="http://spicyip.com/2005/11/database-protection-in-india.html">India does not extend copyright protection to </a><a href="http://spicyip.com/2005/11/database-protection-in-india.html"><i>sui generis</i> databases</a>).</p>
<ul>
<li><span style="text-decoration: underline;">Non-attribution</span></li>
</ul>
<p style="text-align: justify; ">The one element common to all the CC licenses is ‘attribution’ or acknowledgement of the licensor as the author of the work by “giving appropriate credit and providing a link to the license. Where the earlier licenses provided that a licensor may request a licensee to remove attribution from adaptations of the work (in order to preserve anonymity), the 4.0 license extends the right of ‘non-attribution’ of a licensor to works which have not been adapted.</p>
<p style="text-align: justify; ">This right of attribution is recognized under section 57 (1) (a) of The Copyright Act, 1957 in India which states that <i>“even after the assignment either wholly or partially of the said copyright, the author of a work shall have the right to claim authorship of the work.”</i></p>
<ul>
<li><span style="text-decoration: underline;">30-day period to remedy breach of CC license terms </span></li>
</ul>
<p style="text-align: justify; ">A significant change in the CC 4.0 version is that unlike the earlier licenses which terminated the CC license in case of failure to comply with the license terms, the 4.0 licenses allow a 30-day period to the licensees to remedy the breach, after which the license shall resume.</p>
<p style="text-align: justify; ">The terms incorporated in the 4.0 license are aimed at making the license more compatible with the copyright laws of various jurisdictions and at the same time ensure that information can be shared with more freely, thus preserving the spirit of Access to Knowledge.</p>
<p>(Creative Commons <a href="http://spicyip.com/2013/11/creative-commons-india-relaunched.html">re-launched its India chapter</a> in November last year.)</p>
<p style="text-align: justify; ">Similarly, right of ‘non-attribution’ is recognized under section 21 of The Copyright Act, 1957 which provides for relinquishment of copyright by the author. This may be done <i>“by giving notice in the prescribed form to the Registrar of Copyrights or by way of public notice.” </i>A CC license where attribution has been removed at the instance of the licensor will serve as a ‘public notice’.</p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/a-license-to-share'>https://cis-india.org/a2k/blogs/a-license-to-share</a>
</p>
No publishernehaaCopyrightAccess to Knowledge2014-03-20T05:38:34ZBlog EntryZero Project Conference on Accessibility: Innovative Policies and Practices for Persons with Disabilities
https://cis-india.org/news/zero-project-conference-vienna-february-27-28-2014
<b>Essl Foundation, the World Future Council and the European Foundation Centre convened an international conference at the United Nations Office in Vienna, Austria on February 27 and 28, 2014. Pranesh Prakash participated in the conference as a speaker. On February 27 he spoke on e-speak and on the following day (February 28) he spoke in a session on Copyright & the Marrakesh Treaty: Opportunities and Challenges.</b>
<p style="text-align: justify; ">The conference was attended by over 450 people. Dr. Nirmita Narasimhan had submitted two proposals, one on innovative practices (eSpeak) and one on innovative policy (India's copyright policy). Click on the links below to find more on these:</p>
<ol>
<li><a class="external-link" href="http://zeroproject.org/wp-content/uploads/2014/02/India_eSpeak-Text-to-Speech-Engine.pdf">Affordable text-to-speech software from India</a></li>
<li><a class="external-link" href="http://zeroproject.org/wp-content/uploads/2013/12/Copyright-Amendment-Act_India.pdf">Copyright exception for accessible formats</a></li>
</ol>
<p style="text-align: justify; ">Once again, the Essl Foundation, the World Future Council and the European Foundation Centre have joined forces to convene an international conference in Vienna, Austria. On this occasion we aim to raise awareness about innovative solutions from around the world that advance accessibility for persons with disabilities. The conference seeks to strengthen the commitment of all stakeholders to promote, protect and advance the rights of persons with disabilities, and to improve their daily lives.</p>
<p style="text-align: justify; ">At the third Zero Project Conference on “Accesibility: Innovative Policies and Innovative Practices for Persons with Disabilities” parliamentarians, representatives of NGOs and foundations, academics, social entrepreneurs, disability rights activists and the business world will come together to discuss Innovative Policies and Innovative Practices and explore ways to promote and spread them to other countries.</p>
<h3 style="text-align: justify; ">Innovative Policies: Paving the Way</h3>
<p style="text-align: justify; ">Building on the success of our conferences in January 2012 and February 2013, at this Zero Project Conference, 15 Innovative Policies will be presented. They contain promising elements, have achieved identifiable improvements on the ground and point to a positive dynamic change that can be easily replicated in many countries around the world to advance the implementation of the Convention. They overcome conditions that act as barriers to the full exercise of rights by persons with disabilities and constitute the outcome of a multilevel research and selection process.</p>
<h3 style="text-align: justify; ">Innovative Practices: Crucial Steps</h3>
<p style="text-align: justify; ">The Zero Project team has done extensive research worldwide on the most outstanding projects. The expert network that contributed their expertise in actively nominating and evaluating projects included more than 500 persons worldwide from 120 countries.</p>
<p style="text-align: justify; ">These projects cover all areas of accessibility, including built environment, transport, products and services and ICT (information, communication and technology).</p>
<h3 style="text-align: justify; ">Be part of the Zero Project Network!</h3>
<p style="text-align: justify; ">The Zero Project Conference gathers in Vienna the world’s leading representatives of the disability rights movement in order to facilitate a direct exchange of experiences. In this way the world’s most innovative and promising solutions are jointly identified, disseminated and further developed in order to make a noticeable improvement in the daily life and legal situation of persons with disabilities.</p>
<p style="text-align: justify; ">Join the discussion and explore possibilities and potentials on how global implementation of these exemplary solutions can be advanced!</p>
<hr />
<ul>
<li> Click here to see the <a class="external-link" href="http://zeroproject.org/wp-content/uploads/2013/10/At-a-glance-barrierfree-FINAL2.doc">programme schedule</a></li>
<li>Click here to see the <a class="external-link" href="http://zeroproject.org/wp-content/uploads/2013/10/Speakerslist-ZPC-20141.pdf">speakers list</a></li>
</ul>
<p>
For more details visit <a href='https://cis-india.org/news/zero-project-conference-vienna-february-27-28-2014'>https://cis-india.org/news/zero-project-conference-vienna-february-27-28-2014</a>
</p>
No publisherpraskrishnaCopyrightAccessibilityAccess to Knowledge2014-03-06T08:44:00ZNews ItemPranesh Prakash: Influencing India's IP Laws
https://cis-india.org/news/forbes-india-february-15-2014-samar-srivastava-pranesh-prakash-influencing-indias-ip-laws
<b>Pranesh Prakash believes intellectual property laws need to evolve and change with time.</b>
<hr />
<p style="text-align: justify; ">Samar Srivastava's article was <a class="external-link" href="http://forbesindia.com/article/30-under-30/pranesh-prakash-influencing-indias-ip-laws/37177/1">published in Forbes India Magazine</a> on February 15, 2014.</p>
<hr />
<p style="text-align: justify; ">At an age where his contemporaries are still junior litigators and aspiring lawyers, Pranesh Prakash, 28, is already a recognisable name in the filed of legal activism.</p>
<p style="text-align: justify; ">In 2013 he worked with the World Intellectual Property Organization to draft a treaty for the blind. It provides for an exception to copyright laws so that books can be converted into accessible formats for the blind and visually impaired, and exchanged across borders.</p>
<p style="text-align: justify; ">For Prakash the treaty capped a signal achievement in intellectual property and copyright—an area he has been working in since graduating from the National Law School, Bangalore. In his closing speech at the diplomatic conference at Marrakesh, Morocco, Prakash said: “When copyright doesn’t serve public welfare, states must intervene... Importantly, markets alone cannot be relied upon to achieve a just allocation of informational resources, as we have seen clearly from the book famine that the blind are experiencing.”</p>
<p style="text-align: justify; ">Prakash’s work on intellectual property has brought him recognition through affiliations: He is an Access to Knowledge Fellow at the Information Society Project at Yale Law School. In 2012, he was selected as an Internet Freedom Fellow by the US State Department.</p>
<p style="text-align: justify; ">“I was always interested in doing public interest work,” says Prakash. An internship with activist lawyer Rajeev Dhawan cemented his desire. Prakash is now prominent in a line of thinkers working in the area of freedom of expression, internet governance and intellectual property.</p>
<p style="text-align: justify; ">It is clear that existing laws in these areas are inadequate and a new jurisprudential setup needs to evolve. For example, the same standards often apply to print and internet media; they fail to recognise that, say, tweets have a different impact than newspapers headlines.</p>
<p style="text-align: justify; ">Prakash’s criticism of governments blocking websites stood out, but his recommendations were not accepted. He proposed that all intermediaries, like the ISP and the domain host, not be bunched, and separate standards be imposed on them, based on their editorial role in content creation.</p>
<p style="text-align: justify; ">“What distinguishes his work is the impact it has on the public at large,” says Gautam John, head, Karnataka Learning Partnership at the Akshara Foundation. “His work in the area is cutting edge. There is no one doing that work.”</p>
<p style="text-align: justify; ">Then there is his work with Section 66A of the IT Act. Under the section, anyone who sends false, offensive or inappropriate content by a computer or communication device can be punished with three years of imprisonment. This section has been misused by the police. Prakash has long argued that the law must be more specific in what it defines as offensive, and that the government needs to engage more with civil society and industry to end the antagonistic and selective manner in which the law is imposed.</p>
<p style="text-align: justify; ">Efforts of the Centre for Internet and Society (CIS), Bangalore, where Prakash is policy director, have resulted in rules being amended. Now, only officers of the rank of DCP and above can make an arrest. CIS, set up in 2008, has also made representations on the copyright law to Parliamentary Standing Committees.</p>
<p style="text-align: justify; ">Prakash’s activism has had another significant effect on intellectual property in India. By a 2008 Bill, the government had tried to privatise publicly-funded intellectual property. Prakash was part of a sustained campaign against the Bill, and in 2011 it was shelved.</p>
<p>
For more details visit <a href='https://cis-india.org/news/forbes-india-february-15-2014-samar-srivastava-pranesh-prakash-influencing-indias-ip-laws'>https://cis-india.org/news/forbes-india-february-15-2014-samar-srivastava-pranesh-prakash-influencing-indias-ip-laws</a>
</p>
No publisherpraskrishnaIntellectual Property RightsCopyrightAccess to Knowledge2014-02-25T06:20:31ZNews ItemCan Judges Order ISPs to Block Websites for Copyright Infringement? (Part 3)
https://cis-india.org/a2k/blogs/john-doe-orders-isp-blocking-websites-copyright-3
<b>In a three-part study, Ananth Padmanabhan examines the "John Doe" orders that courts have passed against ISPs, which entertainment companies have used to block dozens, if not hundreds, of websites. In this, the third and concluding part, he looks at the Indian law in the Copyright Act and the Information Technology Act, and concludes that both those laws restrain courts and private companies from ordering an ISP to block a website for copyright infringement.</b>
<p style="text-align: justify; ">In the third part of his study, Ananth Padmanabhan looks into the fair use provisions recently introduced in respect of mere conduit intermediaries by the Copyright (Amendment) Act, 2012, and concludes that there is no scope for any general, or specific, access blocking orders at the behest of the plaintiff in a civil suit, in India. He also argues that the <a class="external-link" href="http://eprocure.gov.in/cppp/sites/default/files/eproc/itact2000.pdf">Information Technology Act, 2000</a> read with the<a class="external-link" href="http://deity.gov.in/sites/upload_files/dit/files/GSR314E_10511%281%29.pdf"> Information Technology (Intermediaries Guidelines) Rules, 2011</a> do not in any manner permit the Government to override the provisions of the <a class="external-link" href="http://www.ircc.iitb.ac.in/webnew/Indian%20Copyright%20Act%201957.html">Copyright Act, 1957</a> (as amended) while facilitating the denial of access to websites on grounds of copyright infringement, because the Copyright Act, 1957, is a complete code by itself.</p>
<hr />
<h2 style="text-align: justify; ">Fair Use Provisions Introduced by the Copyright (Amendment) Act, 2012</h2>
<p style="text-align: justify; ">In 2010, the <a href="https://cis-india.org/a2k/blogs/copyright-bill-analysis" class="external-link">controversial Copyright (Amendment) Bill</a> came up for deliberation before the Parliamentary Standing Committee on Human Resource Development headed by Mr. <a class="external-link" href="http://archive.india.gov.in/govt/rajyasabhampbiodata.php?mpcode=173">Oscar Fernandes</a>. While a major part of the discussion on this amendment revolved around the altered royalty structure and rights allocation between music composers and lyricists on the one hand and film producers on the other, it can be safely stated that this is the most significant amendment to the Copyright Act, 1957 for more than this one reason. The amendment seeks to reform the Copyright Board, bring in a scheme of statutory licenses, expand the scope of performers’ rights and introduce anti-circumvention measures to check copyright piracy. As part of its ambitious objective, the amendment also attempts a new fair use model to protect intermediaries and file-sharing websites.</p>
<p style="text-align: justify; ">The Copyright (Amendment) Act, 2012, which gives expression to this fair use model through Sections 52(1)(b) and (c), reads thus:</p>
<p style="padding-left: 30px; text-align: justify; "><b><i>52. Certain acts not to be infringement of copyright</i></b><i>. - (1) The following acts shall not constitute an infringement of copyright, namely:</i></p>
<p style="padding-left: 30px; text-align: justify; "><i>(a) to (ad) - *****</i></p>
<p style="padding-left: 30px; text-align: justify; "><i>(b) the transient or incidental storage of a work or performance purely in the technical process of electronic transmission or communication to the public;</i></p>
<p style="padding-left: 30px; text-align: justify; "><i> </i></p>
<p style="padding-left: 30px; text-align: justify; "><i>(c) transient or incidental storage of a work or performance for the purpose of providing electronic links, access or integration, where such links, access or integration has not been expressly prohibited by the right holder, unless the person responsible is aware or has reasonable grounds for believing that such storage is of an infringing copy:</i></p>
<p style="padding-left: 30px; text-align: justify; "><i> </i></p>
<p style="padding-left: 30px; text-align: justify; "><i>Provided that if the person responsible for the storage of the copy has received a written complaint from the owner of copyright in the work, complaining that such transient or incidental storage is an infringement, such person responsible for the storage shall refrain from facilitating such access for a period of twenty-one days or till he receives an order from the competent court refraining from facilitating access and in case no such order is received before the expiry of such period of twenty-one days, he may continue to provide the facility of such access;</i></p>
<p style="text-align: justify; ">From a plain reading, it is clear that two important exceptions are carved out: one, in respect of the technical process of electronic transmission and the other, in respect of providing electronic links, access or integration. The material distinction between these exceptions is the presence of a take-down <i>proviso </i>in respect of the latter kind of activity, ie. when providing electronic links, access or integration. This window of opportunity is not provided to the copyright owner when the third party is an ISP involved in the pure technical process of electronic transmission of data.</p>
<p style="text-align: justify; ">In <i>R.K. Productions</i>, the court was not informed of the introduction of these provisions <i>vide</i> the Copyright (Amendment) Act, 2012, despite the hearing happening on a date subsequent to the amendment coming into force. This probably influenced the outcome as well, since the court held that ISPs were liable to block access to infringing content, once the specific webpage was brought to the notice of the concerned ISP. Newly introduced Section 52(1)(b) however makes it abundantly clear that ISPs cannot, in any manner, be held liable when they are acting as mere conduit pipes for the transmission of information. This legal position is also materially different from jurisdictions such as the United Kingdom where, the ISPs though not liable for copyright infringement, are statutorily mandated to lend all possible assistance such as take-down or blocking of access upon notice of infringement being furnished to them. This dichotomy between liability for infringement on the one hand and a general duty to assist in the prevention of infringement on the other is explained clearly by the Chancery Division in <i>Twentieth Century Fox Film Corporation v. British Telecommunications Plc.</i><a href="#fn1" name="fr1">[1] </a></p>
<p style="text-align: justify; ">In <i>Newzbin2</i>, the Chancery Division took note of the safe harbour provisions created by the E-Commerce Directive,<a href="#fn2" name="fr2">[2] </a>particularly Articles 12 to 14 that dealt with acting as a “mere conduit”, caching and hosting respectively. The interesting feature with the “mere conduit” exception, which in all other respects is akin to the exception contained in Section 52(1)(b) of the Copyright Act, 1957, is the additional presence of Article 12(3). This provision clarifies that the “mere conduit” exception shall not stand in the way of a court or administrative authority requiring the service provider to terminate or prevent an infringement. Article 18 of this Directive also casts an obligation upon Member States to ensure that court actions available under national law permit the rapid adoption of measures, including interim measures, designed to terminate any alleged infringement and to prevent any further impairment of the interests involved. Similarly, the court looked into the Information Society Directive,<a href="#fn3" name="fr3">[3] </a></p>
<p style="text-align: justify; ">Article 8(3) of which provides that “Member States shall ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right.” This Directive was transposed into the domestic law in UK by the Copyright and Related Rights Regulations 2003, SI 2003/2498, resulting in the insertion of Section 97A in the Copyright, Designs and Patents Act 1988. This provision empowers the court to grant an injunction against a service provider who has actual knowledge of another person using their service to infringe copyright, such as where the service provider is given sufficient notice of the infringement. Finally, the Chancery Division also took note of the Enforcement Directive,<a href="#fn4" name="fr4">[4] </a></p>
<p style="text-align: justify; ">Article 11 of which provided that Member States shall ensure that copyright owners are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe an intellectual property right. This entire legislative scheme compelled the court in <i>Newzbin2</i> to conclude that an order of injunction could be granted against ISPs who are “mere conduits”, restraining them from providing access to websites that indulged in mass copyright infringement. The court reasoned that the language used in Section 97A did not require knowledge of any particular infringement but only a more general kind of knowledge about certain persons using the ISPs’ services to infringe copyright. Thus, it is seen that in the United Kingdom, though a “mere conduit” activity is not infringement at all, the concerned ISP can be directed by the court to block access to a website that hosts infringing content on the basis of the above legislative scheme. The enquiry should therefore be directed towards whether India has a similar scheme for copyright enforcement.</p>
<h3 style="text-align: justify; ">The Information Technology Act – An Inapplicable Scheme for Website Blocking</h3>
<p style="text-align: justify; ">The Information Technology Act, 2000<a href="#fn5" name="fr5">[5]</a>read with certain recently framed guidelines provides for a duty that could be thrust upon even “mere conduit” ISPs to disable access to copyrighted works. This is due to the presence of Section 79(2)(c) of this Act, which makes it clear that an intermediary shall be exempt from liability only where the intermediary observes due diligence as well as complies with the other guidelines framed by the Central Government in this behalf. Moreover, Section 79(3) provides that the intermediary shall not be entitled to the benefit of the exemption in Section 79(1) in a situation where the intermediary, upon receiving actual knowledge that any information, data, or communication link residing in or connected to a computer resource controlled by the intermediary is being used to commit an unlawful act, fails to expeditiously remove or disable access to that material on that resource without vitiating the evidence in any manner. In pursuance of Section 79(2)(c), the Central Government has also framed the Information Technology (Intermediaries Guidelines) Rules, 2011, which came into effect on 11.04.2011. Rule 4 of these Rules, when read along with Rule 2(d), casts obligation on an intermediary on whose computer system, copyright infringing content has been <i>stored, hosted or published</i>, to <i>disable</i> such information within thirty six hours from when it is brought to actual knowledge of the existence of such content by any affected person.</p>
<p style="text-align: justify; ">One way of understanding and interpreting in harmonious fashion, the provisions of the IT Act and the Rules therein and the recent amendments to the Copyright Act, is to contend that the issue of infringement of copyright by “mere conduit” ISPs is governed by Section 52(1)(b), which completely absolves them of any liability, while that of enforcement of copyright through the medium of such ISPs is governed by the IT Act. This bifurcation suffers from the difficulty that Section 79 of the IT Act is not an enforcement provision. It is a provision meant to exempt intermediaries from certain kinds of liability, in the same way as Section 52 of the Copyright Act. This provision, read with Section 81, makes it clear that the IT Act does not speak to liability for copyright infringement. From this, it has to necessarily follow that all issues pertaining to liability for such infringement have to be decided by the provisions of the Copyright Act. Therefore, the scheme in the IT Act read with the Intermediaries Guidelines Rules cannot confer additional liability for copyright infringement on ISPs where the Copyright Act exempts them from liability. More to the point, the intermediary cannot be liable for copyright infringement in the event of non-compliance with Section 79(3) or Rule 4 of the Intermediaries Guidelines Rules read with Section 79(1)(c) of the IT Act. Rule 4 of the Intermediaries Guidelines Rules, 2011, to the extent that it renders intermediaries outside the protective ambit of Section 79(1) upon failure to disable access to copyrighted content, is of no relevance as “mere conduits” have already been exempted from liability under Section 52(1)(b). Moreover, since these provisions in the IT Act do not deal with enforcement measures such as injunction orders from the court to disable access to infringing content in particular or infringing websites in general, it would be wrong to contend that the scheme in India is similar to the one in the United Kingdom where the issue of infringement has been divorced from that of enforcement.</p>
<p style="text-align: justify; ">To conclude, Section 52(1)(b) is a blanket “mere conduit” exemption from liability for copyright infringement that stands uninfluenced by the presence of Section 79 of the IT Act or the Intermediaries Guidelines Rules. In the absence of a legislative scheme for enforcement in India akin to Section 97A of the UK Copyright, Designs and Patents Act 1988, Indian Courts cannot grant an injunction directing such “mere conduit” ISPs to block access to websites in general or infringing content in particular and any such action is not even maintainable in law post the insertion of Section 52(1)(b). The decision to the contrary in the <i>R.K.Productions </i>case is incorrect.</p>
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<p>[<a href="#fr1" name="fn1">1</a>]. [2011] EWHC 1981 (Ch.). Hereinafter referred to as <i>Newzbin2.</i></p>
<p style="text-align: justify; ">[<a href="#fr2" name="fn2">2</a>]. European Parliament and Council Directive 2000/31/EC on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (8 June 2000). This Directive was transposed into the domestic law in UK by the Electronic Commerce (EC Directive) Regulations 2002, SI 2002/2013.</p>
<p style="text-align: justify; ">[<a href="#fr3" name="fn3">3</a>]. European Parliament and Council Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society (22 May 2001).</p>
<p style="text-align: justify; ">[<a href="#fr4" name="fn4">4</a>]. European Parliament and Council Directive 2004/48/EC on the enforcement of intellectual property rights (29 April 2004). This Directive was transposed into the UK domestic law primarily by the Intellectual Property (Enforcement, etc.) Regulations 2006, SI 2006/1028.</p>
<p style="text-align: justify; ">[<a href="#fr5" name="fn5">5</a>]. Hereinafter referred to as the IT Act.</p>
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For more details visit <a href='https://cis-india.org/a2k/blogs/john-doe-orders-isp-blocking-websites-copyright-3'>https://cis-india.org/a2k/blogs/john-doe-orders-isp-blocking-websites-copyright-3</a>
</p>
No publisherananthFeaturedHomepageCopyrightAccess to Knowledge2014-02-14T05:13:36ZBlog EntryCan Judges Order ISPs to Block Websites for Copyright Infringement? (Part 2)
https://cis-india.org/a2k/blogs/john-doe-orders-isp-blocking-websites-copyright-2
<b>In a three-part study, Ananth Padmanabhan examines the "John Doe" orders that courts have passed against ISPs, which entertainment companies have used to block dozens, if not hundreds, of websites. In this, the second part, he looks at the law laid down by the U.S. Supreme Court and the Delhi High Court on secondary and contributory copyright infringement, and finds that those wouldn't allow Indian courts to grant "John Doe" orders against ISPs.</b>
<p style="text-align: justify; ">In the second part of his study, Ananth Padmanabhan proceeds to examine applying a general theory of secondary or contributory copyright infringement against ISPs. He traces the basis for holding a third party liable as a contributory by closely examining the decisions of the U.S. Supreme Court in Sony Corp. v Universal City Studios<a href="#fn1" name="fr1">[1] </a>and MGM Studios, Inc. v Grokster, Ltd.<a href="#fn2" name="fr2">[2] </a>and concludes that this basis does not hold good in the case of a mere conduit intermediary such as an ISP.</p>
<p>[<a href="#fr1" name="fn1">1</a>]. 464 U.S. 417 (1984). Hereinafter referred to as <i>Betamax</i>.</p>
<p>[<a href="#fr2" name="fn2">2</a>]. 545 U.S. 913 (2005). Hereinafter referred to as <i>Grokster.</i></p>
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<h2>Primary and Secondary Infringement</h2>
<p style="text-align: justify; ">Liability for copyright infringement can either be primary or secondary in character. In the case of ISPs, liability as primary infringers does not arise at all, and it is in their capacity as conduit pipes facilitating the transmission of information that they could be held secondarily liable. Even in such cases, the contention of copyright owners is that once the ISP is notified of infringing content, it has the primary responsibility of preventing access to such content. This contention is essentially rooted in a theory of secondary infringement based on knowledge and awareness, and the means to prevent further infringement.</p>
<p style="text-align: justify; ">The controversy around a suitable model of secondary infringement is reflected in two judicial pronouncements – separated by a gap of more than two decades – delivered by the U.S. Supreme Court. In <i>Sony Corp. v Universal City Studios</i>,[<a href="#fr3" name="fn3">3</a>] the US Supreme Court held that the manufacturers of home video recording devices known in the market as Betamax would not be liable to copyright owners for secondary infringement since the technology was capable of substantially non-infringing and legitimate purposes. The U.S. Supreme Court even observed that these time-shifting devices would actually enhance television viewership and hence find favour with majority of the copyright holders too. The majority did concede that in an appropriate situation, liability for secondary infringement of copyright could well arise. In the words of the Court, “<i>vicarious liability is imposed in virtually all areas of the law, and the concept of contributory infringement is merely a species of the broader problem of identifying the circumstances in which it is just to hold one individual accountable for the actions of another</i>”. However, if vicarious liability had to be imposed on the manufactures of the time-shifting devices, it had to rest on the fact that they sold equipment with constructive knowledge of the fact that their customers <i>may</i> use that equipment to make unauthorized copies of copyrighted material. In the view of the Court, there was no precedent in the law of copyright for the imposition of vicarious liability merely on the showing of such fact.</p>
<p style="text-align: justify; ">Notes of dissent were struck by Justice Blackmun, who wrote an opinion on behalf of himself and three other judges. The learned Judge noted that there was no private use exemption in favour of making of copies of a copyrighted work and hence, unauthorised time-shifting would amount to copyright infringement. He also concluded that there was no fair use in such activity that would exempt it from the purview of infringement. The dissent held the manufacturer liable as a contributory infringer and reasoned that the test for contributory infringement would only be whether the contributory infringer had <i>reason to know or believe </i>that infringement would take place and <i>not whether he actually knew of the same</i>. Off-the-air recording was not only a foreseeable use for the Betamax, but also its intended use, for which Sony would be liable for copyright infringement.</p>
<p style="text-align: justify; ">This dissent has considerably influenced the seemingly contrarian position taken by the majority in the subsequent decision, <i>MGM Studios, Inc. v Grokster, Ltd.</i><a href="#fn4" name="fr4">[4]</a> This case called into question the liability of websites that facilitated peer-to-peer (P2P) file-sharing. Re-formulating the test for copyright infringement, the US Supreme Court held that ‘<i>one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties</i>’. In re-drawing the boundaries of contributory infringement, the Court observed that contributory infringement is committed by any person who intentionally induces or encourages direct infringement, and vicarious infringement is committed by those who profit from direct infringement while declining to exercise their right to limit or stop it. When an article of commerce was good for nothing else but infringement, there was no legitimate public interest in its unlicensed availability and there would be no injustice in presuming or imputing intent to infringe in such cases. This doctrine would at the same time absolve the equivocal conduct of selling an item with substantial lawful as well as unlawful uses and would limit the liability to instances of more acute fault than the mere understanding that some of the products shall be misused, thus ensuring that innovation and commerce are not unreasonably hindered.</p>
<p style="text-align: justify; ">The Court distinguished the case at hand from <i>Betamax</i>, and noted that there was evidence here of active steps taken by the respondents to encourage direct copyright infringement, such as advertising an infringing use or instructing how to engage in an infringing use. This evidence revealed an affirmative intent that the product be used to infringe, and an <i>active </i>encouragement of infringement. Without reversing the decision in <i>Betamax</i>, but holding that it was misinterpreted by the lower court, the Court observed that <i>Betamax</i> was not an authority for the proposition that whenever a product was capable of substantial lawful use, the producer could never be held liable as a contributory for the use of such product for infringing activity by third parties.<i> </i>In the view of the Court, <i>Betamax </i>did not displace other theories of secondary liability.<i> </i>This other theory of secondary liability applicable to the case at hand was held to be the inducement rule, as per which any person who distributed a device with the object of promoting its use to infringe copyright, as evidenced by clear expression or other affirmative steps taken to foster infringement, would be liable for the resulting acts of infringement by third parties. However, the Court clarified that <i>mere knowledge of infringing potential or of actual infringing uses would not be enough</i> under this rule to subject a distributor to liability. Similarly, ordinary acts incident to product distribution, such as offering customers technical support or product updates, support liability etc. would not by themselves attract the operation of this rule. The inducement rule, instead, premised liability on <i>purposeful, culpable expression and conduct</i>, and thus did nothing to compromise <i>legitimate</i> commerce or discourage innovation having a <i>lawful</i> promise.</p>
<p style="text-align: justify; ">These seemingly divergent views on secondary infringement expressed by the U.S. Supreme Court are of significant relevance for India, due to the peculiar language used in the Indian Copyright Act, 1957.<a href="#fn4" name="fr4">[4]</a></p>
<p style="text-align: justify; ">Section 51 of the Act, which defines infringement, bifurcates the two types of infringement – ie. primary and secondary infringement – without indicating so in as many words. While Section 51(a)(i) speaks to primary infringers, 51(a)(ii) and 51(b) renders certain conduct to be secondary infringement. Even here, there is an important distinction between 51(a)(ii) and 51(b). The former exempts the alleged infringer from liability if he could establish that <i>he was not aware and had no reasonable ground for believing that </i>the communication to the public, facilitated through the use of his “place”, would amount to copyright infringement. The latter on the other hand permits no such exception. Thus, any person, who makes for sale or hire, or by way of trade displays or offers for sale or hire, or distributes for the purpose of trade, or publicly exhibits by way of trade, or imports into India, any infringing copies of a work, shall be liable for infringement, without any specific <i>mens rea</i> required to attract such liability. It is in the context of the former provision, ie. 51(a)(ii) that the liability of certain file-sharing websites for copyright infringement has arisen.<a href="#fn5" name="fr5">[5]</a></p>
<h3 style="text-align: justify; ">Mere Conduit ISPs – Secondary Infringement Absent</h3>
<p style="text-align: justify; ">In <i>MySpace</i>, the Delhi High Court examined the liability for secondary infringement on the part of a website that provides a platform for file-sharing. While holding the website liable, the Single Judge considered material certain facts such as the revenue model of the defendant, which depended largely on advertisements displayed on the webpages, and automatically generated advertisements that would come up for a few seconds before the infringing video clips started playing. Shockingly, the Court even considered relevant the fact that the defendant did provide for safeguards such as hash block filters, take down stay down functionality, and rights management tools operational through fingerprinting technology, to prevent or curb infringing activities being carried on in their website. This, in the view of the Court, made it evident that the defendant had a <i>reasonable apprehension or belief </i>that the acts which were being carried on in the website <i>could</i> infringe someone else’s copyright including that of the plaintiff. The logic employed by the Court to attribute liability for secondary infringement on file-sharing websites is befuddling and reveals complete disregard for the degree of regulatory authority available on the internet even where the space, i.e., the website, is supposedly “under the control” of a person. However, a critical examination of this decision is not relevant in understanding the liability of mere conduit ISPs. This is for the reason that none of the factual considerations relied on by the Single Judge to justify imposition of liability on a file-sharing website under Section 51(a)(ii) arise when the defendant is an ISP that only provides the path for content-neutral transmission of data.</p>
<p style="text-align: justify; ">This was completely ignored by the Madras High Court in <i>R.K.Productions v. B.S.N.L.</i>,<a href="#fn6" name="fr6">[6] </a>where the producers of the Tamil film “3”, which enjoyed considerable pre-release buzz due to its song “Kolaveri Di”, sought an omnibus order of injunction against all websites that host torrents or links facilitating access to, or download of, this film. Though this was worded as a John Doe plaint by branding the infringers as unknown administrators of different torrent sites and so on, the real idea was to look to the resources and wherewithal of the known defendants, ie. the ISPs, to block access to the content hosted by the unknown defendants.</p>
<p style="text-align: justify; ">This prompted the ISPs to file applications under Or. VII, Rule 11 of the Civil Procedure Code, seeking rejection of the plaint on the ground that the suit against them was barred by law. The Single Judge of the Madras High Court dismissed these applications for rejection of the plaint, after accepting the contention that the ISPs are necessary parties to the suit as the act of piracy occurs through the channel or network provided by them. The High Court heavily, and incorrectly, relied on MySpace without appreciating the distinction between a mere conduit ISP and a file-sharing website such as MySpace or YouTube, as regards their respective roles and responsibilities, the differing degrees of regulatory control over content enjoyed by them, and most importantly, the recognition and formalisation of these distinctions in the Copyright Act, 1957, vide the Copyright (Amendment) Act, 2012.</p>
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<p>[<a href="#fr3" name="fn3">3</a>]. 464 U.S. 417 (1984). Hereinafter referred to as Betamax.</p>
<p>[<a href="#fr4" name="fn4">4</a>]. 545 U.S. 913 (2005). Hereinafter referred to as Grokster.</p>
<p>[<a href="#fr5" name="fn5">5</a>]. Hereinafter the Act.</p>
<p style="text-align: justify; ">[<a href="#fr6" name="fn6">6</a>]. <i>Super Cassette Industries Ltd. v MySpace Inc.</i>, MIPR 2011 (2) 303 (hereinafter referred to as <i>MySpace</i>). This decision of the Delhi High Court has been rightly criticised. <i>See </i><a href="https://cis-india.org/a2k/blogs/super-cassettes-v-my-space">http://cis-india.org/a2k/blog/super-cassettes-v-my-space</a> (last accessed on 24.03.2013).</p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/john-doe-orders-isp-blocking-websites-copyright-2'>https://cis-india.org/a2k/blogs/john-doe-orders-isp-blocking-websites-copyright-2</a>
</p>
No publisherananthAccess to KnowledgeCopyrightPiracyFeaturedHomepage2014-03-06T16:48:18ZBlog EntryThe Game of IPR: Insights from the 6th Global Intellectual Property Convention in Hyderabad
https://cis-india.org/a2k/blogs/the-game-of-ipr-insights-from-the-6th-global-intellectual-property-convention-in-hyderabad
<b>IP practitioners and IP creators were among the 1700 participants to gather at the Hyderabad International Convention Centre earlier this month. Here, CIS had the opportunity of listening in on perspectives around the “Optimization of economic value of innovation & IPR in the global market” while attending numerous talks and sessions that were held over the course of the convention’s three days.</b>
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<p><img src="https://cis-india.org/a2k/blogs/NarendraSabharwal.JPG/image_large" alt="Narendra Sabharwal" class="image-inline" title="Narendra Sabharwal" /></p>
<p class="discreet">One of the event's speakers, Mr. Narendra Sabharwal, IPR-Chair of FICCI, speaks of the immense value of IPR, while serving as protection as well as collateral for investors. (Photo credit: GIPC 2014)</p>
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<p style="text-align: justify;">This year’s Global Intellectual Property Convention (GIPC) was held in Hyderabad January 16-18, 2014 by ITAG Business Solutions Ltd. in association with the Institute of International Trade (iitrade). As the 6th of its kind, the event was held in hopeful contribution “towards society with the active support and cooperation of the IP fraternity,” says ITAG Founder and Director, Dr. D. R. Agarwal, while offering a “good opportunity for learning and business networking through one to one interaction in a pre-arranged manner under a conducive environment.”</p>
<p style="text-align: justify;">The theme at bay had been “<em>Optimizing the economic value of innovation & IPR in global market</em>.” In respect of this central focus, common themes across panel discussions and workshops included IP management, monetisation, application drafting, and litigation, with particular emphasis on India’s ‘Pharma’ industry. Over 100 speakers and panelists shared their personal knowledge from experience in the industry, and largely consisted of representatives from law firms, IP consultancies, pharmaceutical companies, and business organisations; all of which from India, Europe and the USA. As an attendee representing the Centre for Internet & Society (CIS), a research institute that works to address issues related to intellectual property (IP) reform, I had the privilege of listening to such perspectives on intellectual property from an alternative outlook.</p>
<p style="text-align: justify;">On the other hand, if exploiting too much by “abusing one’s monopoly, you are [setting] certain conditions, which are neither germane nor connected to the patent, and more than what is statutory permissible.” Kumaran stresses the necessity for the intellectual property right (IPR) holder to comply to the rights given by statutory law.</p>
<blockquote style="text-align: justify;" class="pullquote">The name of the game is the quality of drafting. It is the first and last chance." <span class="discreet">Vaidya D.P., </span><br />
<div align="right"><span class="discreet"></span></div>
<div align="right"><span class="discreet">Lakshmi Kumaran & Sridharan</span></div>
</blockquote>
<p style="text-align: justify;">Mr. Narendra Sabharwal, Panellist and IPR-Chair for the Federation of Indian Chambers of Commerce (FICCI), sought to demonstrate the immense value of innovation and IPR in technology, arts and culture globally, in explaining that a large portion of the EU’s GDP (39%), and employment (26%) are derived from IP-intensive industries (See study by European Patent Office <a class="external-link" href="http://www.novagraaf.com/en/news?newspath=/NewsItems/en/ip-contributes-just-under-40-percent-eus-gdp">here</a>). Also argued was that enterprises and institutions can increase value through licensing of products and services, while also serving as protection, and which can then become “excellent collateral for investors,” he says. Among other points made, Sabharwal mentioned the need for more incubators in India. Currently, India acquires 200 new incubators each year compared to China’s 8000 new incubators annually. Opening more incubators will encourage innovation, he argues, leading to more marketable products and solutions.</p>
<p><span class="discreet"> </span></p>
<p style="text-align: justify;">Mr. William H. Manning, Partner of Robins, Kaplan, Miller & Ciresi L.L.P (USA), took on the role of the story teller while sharing particularly interesting cases of previous clients. Manning had explained the necessity to ask one question over and over throughout the entire IPR application process; that question being: “What difference does the invention make?”</p>
<p style="text-align: justify;">In doing so, Manning was even able to take what would have been an ‘incremental’ patent—which is just distinct enough from prior art to get by—and turn it into a ‘foundational’ patent—generally adopted by the industry for 10-20 years before moving to a different technology. The better of these two types, however, is the ‘pioneering’ patent, an inventive leap in itself. This client success story definitely affirmed Speaker and Director of Lakshmi Kumaran & Sridharan, Vaidya D. P., when he said that “the name of the game is the quality of drafting. It is the first and last chance.” Manning had also claimed that 99.9% of patent in India are said to be incremental patents, with none being pioneering—at least not from the patent applications he’s seen in his 34 years of experience, anyway.</p>
<p style="text-align: justify;">Also a rule of this game is the “Take now—pay later” rule, according to Manning, in which enterprises may “ignore the problem for now and move ahead with the product. If somebody sues you for patent litigation…. Take now—pay later.” Here, he makes reference to the judgements enterprises may make when misusing or infringing upon an IPR, while assessing the worth of doing so with the risks that may lie ahead. Often, an enterprise may find that it is more worthwhile to misuse or infringe and reap the benefits in the “now” while knowing there may be a chance they will have to “pay later.”</p>
<p style="text-align: justify;">Throughout the convention, what I expected to be the elephant in the auditorium was surprisingly addressed quite often. Best said by Panellist, Mr. Mohan Dewan, “IPR only becomes an asset when it is misused or infringed upon.” Principal to R K Dewan & Co., Dewan compares IP rights with car insurance, which can only be cashed in when the car is stolen.</p>
<table class="invisible">
<tbody>
<tr>
<th>
<div align="center"><img src="https://cis-india.org/a2k/blogs/pacman.png/image_preview" title="Pacman" height="329" width="274" alt="Pacman" class="image-inline" /></div>
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<p style="text-align: justify;" class="discreet">Applying for an IPR is a game in itself, that requires much knowledge of how it is played. Grab those power-ups or get eaten.</p>
<br /></th>
<td>
<p style="text-align: justify;">He then posed the question “how can we increase the economic value of an asset?”—presumingly so that one can capitalize when opportunity comes knocking—and responded to it in recommending the following measures: 1) ensuring one’s IPR is as strong as possible by drafting it according to national standards, 2) optimal protection—it is easier to register more than one at once! 3) diligence in auditing and licensing, and 4) staying alert and questioning what people are doing around you.</p>
<p style="text-align: justify;">These are only a few excerpts of the event’s many talks and panel discussions, yet these insights alone help to reveal the nature of the system where intellectual property rights reign. This is surely a system to be familiar with if it is within one’s interest to receive IPR for protection, yet I find it difficult to stop at the word “protection.” When you must learn how to play the game to ensure that you stay in it, I would say that IPR can extend well beyond protection, to be better off referred to as <em>strategy</em>.</p>
<p style="text-align: justify;">A strategy that enables you to reach a higher level and protects you from your opponents’ wrath. The higher the level, the more power-ups in reach and the higher you go. All the while undermining their chances of climbing up to where you are, and knocking them to even lower levels when possible. Lucky for you the majority of players are still stuck at level 1, but the nasty ones may be right behind you.</p>
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For more details visit <a href='https://cis-india.org/a2k/blogs/the-game-of-ipr-insights-from-the-6th-global-intellectual-property-convention-in-hyderabad'>https://cis-india.org/a2k/blogs/the-game-of-ipr-insights-from-the-6th-global-intellectual-property-convention-in-hyderabad</a>
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No publishersamanthaPatentsIntellectual Property RightsCopyrightAccess to Knowledge2014-01-31T09:56:10ZBlog EntryOpen Letter to the Vatican: Request for Holy See to Comment on IPR
https://cis-india.org/a2k/blogs/open-letter-to-the-vatican-request-for-holy-see-to-comment-on-ipr
<b>Due to the Holy See’s demonstrated pro-access position to medicines and published materials for persons with disabilities, the Centre for Internet and Society (CIS) requested for His Excellency, Archbishop Silvano M. Tomasi, to also consider copyrights, patents or IPR more generally, as the Holy See’s Permanent Observer at WIPO. We strongly encourage other organizations and civil society groups to modify this letter, as needed, and to contact the Holy See Mission to the United Nations (and WIPO) in Geneva in order to help us prompt His Excellency to contribute to the international dialogue on IPR.</b>
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<p>You may view the original letter sent by CIS <a href="https://cis-india.org/a2k/blogs/cis-original-open-letter-to-the-vatican-request-for-holy-see-to-comment-on-ipr" class="internal-link">here</a>.</p>
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<p>His Excellency, Archbishop Silvano M. Tomasi, Apostolic Nuncio<br />Holy See Mission to the United Nations in Geneva<br />P.O. Box 28<br />1292 Chambésy<br />Geneva, Switzerland<br />mission.holy-see@ties.itu.int<br />+41 22 758 98 20</p>
<p><strong>Friday, January 24, 2014<br /><br /></strong></p>
<p align="justify">Your Excellency Archbishop Silvano M. Tomasi,</p>
<p align="justify"><strong>Subject: Call for the Holy See’s comment on Intellectual Property Rights</strong></p>
<p><strong> </strong></p>
<p align="justify">On behalf of the Centre for Internet and Society (CIS), Bangalore, India, I, Samantha Cassar, write to Your Excellency’s opinion on copyrights, patents and intellectual property rights.</p>
<p align="justify">We are a not-for-profit, non-governmental research organization that works on addressing policy issues related to access to knowledge and intellectual property law reform (http://cis-india.org/a2k), and accessibility for persons with disabilities (http://cis-india.org/accessibility) among other areas related to internet and information and communication technologies.</p>
<p align="justify">CIS is an accredited organization with the World Intellectual Property Organisation (WIPO) and a regular participant at the meetings of the Standing Committee on Copyrights and Related Rights (SCCR), the Standing Committee on the Law of Patents (SCP), as well as the Committee on Development and Intellectual Property.</p>
<p align="justify">At the outset, we commend Your Excellency for signing the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled. As one of the contributors to this treaty, we appreciate the concern of the Holy See for those who are marginalised within our information society by their disabilities.</p>
<p align="justify">As Pranesh Prakash, Policy Director from CIS noted at Marrakesh during the adoption of this treaty, “When copyright doesn't serve public welfare, states must intervene, and the law must change to promote human rights, the freedom of expression and to receive and impart information, and to protect authors and consumers.” We are happy to see this being done through a treaty as such.</p>
<p align="justify">Also said by Your Excellency, within the Holy See’s statement at the 9th Ministerial Conference of the World Trade Organization (WTO), “Among the most damaging concessions developing countries make in regional and bilateral agreements are those enhancing the monopolies on life-saving medicines, which reduce access and affordability and those that provide excessive legal rights to foreign investors, limiting the policy space for nations to promote sustainable and inclusive development.”</p>
<p align="justify">Given the Holy See’s demonstrated standpoint on the accessing of medicines and published works, we at the Centre for Internet and Society would like to request Your Excellency to also consider <strong>copyrights, patents or more generally, intellectual property rights (IPR)</strong>, as Permanent Observer of the Holy See to the United Nations and Other International Organizations in Geneva.</p>
<p align="justify">On behalf of CIS, I am honoured to be writing to Your Excellency and for this request to be considered. Due to the ability of copyright and other forms of IPR to obstruct the access of one’s own human rights and even the sustainable development of one’s country, we feel this area must be crucially considered within an international dialogue—not only from a place of political strategy but also from principles of mercy and compassion.</p>
<p align="justify">With meetings approaching for both <strong>WIPO’s Standing Committee on the Law of Patents</strong> (January 27-31, 2014) and <strong>WIPO’s Committee on Development and Intellectual Property</strong> (May 19-23, 2014), we are very excited at the possibility of the Holy See enriching this discussion, and hope for such a contribution to take place when the international community is listening—at these meetings, or in any other form.<br /><br /></p>
<p>With Every Best Wish,<br />Sincerely Yours,</p>
<p><br />Samantha Cassar<br /><br />Programme Associate<br />The Centre for Internet & Society</p>
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For more details visit <a href='https://cis-india.org/a2k/blogs/open-letter-to-the-vatican-request-for-holy-see-to-comment-on-ipr'>https://cis-india.org/a2k/blogs/open-letter-to-the-vatican-request-for-holy-see-to-comment-on-ipr</a>
</p>
No publishersamanthaAccess to KnowledgeCopyrightPublic AccountabilityIntellectual Property RightsOpen Content2014-01-31T07:14:07ZBlog Entry