Centre for Internet and Society

Global Civil Society Coalition launches website to promote Access to Knowledge

sinha — 2022-10-12T12:05:03Z

CIS is a part of a global civil society coalition that is working to promote access to, and use of, knowledge - the Access to Knowledge or A2K coalition.

Earlier this week, the coalition launched a website articulating its mission and recommendations to reform copyright systems for the benefit of education, research, and cultural heritage.

Copyright systems pose serious obstacles to quality teaching and learning, researchers’ ability to receive and impart information and to share in scientific advancement and its benefits, and preservation and access of cultural and scientific heritage. The website presents evidence and legal solutions, with a focus on the digital and online dimension to the issues. Three global maps also show the (limited) extent to which copyright limitations and exceptions across the world support online education, text and data mining, and preservation, highlighting the need for global legal eform.

The members of the A2K coalition represent a diverse set of voices such as educators, researchers, students, libraries, archives, museums, other knowledge users and creative communities around the globe. In Asia-pacific, we have ourselves and Open Access India as members presently. We invite organizations who share a similar vision of a fair and balanced copyright system to join the coalition.

For more details visit https://cis-india.org/a2k/blogs/global-civil-society-coalition-launches-website-to-promote-access-to-knowledge

Should India adopt Plan S to realise Open Access to Public-funded Scientific Research?

sinha — 2019-06-05T13:19:28Z

Timely and affordable access to scientific research remains a problem in this digital day and age. Around three decades ago, the radical response that emerged was making public-funded scientific research “open access”, i.e. publishing it on the Web without any legal, technical or financial barriers to access and use such research. Several Indian public research institutions also adopted open access mandates and built self-archiving digital tools, however, the efforts haven’t yielded much. Most countries including India, continue to struggle with implementing open access. The latest international initiative (created in Europe) to remedy this problem is Plan S. Plan S is has been positioned as a strategy to implement immediate open access to scientific publications from 2021 – which India is considering adopting. This article unpacks the disorderly growth of open access in India, and discusses the gap between the Plan's vision and current Indian scenario in some respects.

Note: This blog entry was first published on May 29, 2019, and later updated on June 5, 2019 to accommodate the revisions to Plan S (released on May 31, 2019 after their public feedback exercise).

Introduction

In 2017, scientific researchers in India produced 1.4 lakh pieces of peer-reviewed literature, of which approximately 27,000 were open access publications (SCImago 2018). This means that only 27,000 pieces were available to the public to freely read and share, despite the fact that Indian tax-payers had funded half of the annual expenditure on R&D that year. The remaining items were largely stuck behind expensive paywalls and subscription systems, doing a huge disservice to the scientific ecosystem as well as the public interest.

Open Access is a movement to make both scientific research and data accessible to everyone in society, and a key tenet of Open Science. It emerged in response to rising costs and barriers to timely access and sharing of research, as well as a crisis of epistemic injustice in science. With the advent of the Internet and World Wide Web, it was expected that costs of publishing and disseminating scholarly research would decrease leading to a more equitable research environment. The principal idea was “to make copies of all the papers they published in scholarly journals freely available on the internet.”(Harnad S 1995). Two principal ways of implementing OA that initially emerged were: publishing on online institutional repositories (of the research institute/ funder) and/or paying the journal to make the paper OA online (i.e. author pays upfront instead of public paying subscription charges to read that research).

Since Harnad’s first call, numerous international conventions, mandates, calls have been issued in support of OA. The latest international response to the problem is Plan S. With its origins in Europe, Plan S was initially positioned as a clarion call to provoke a global flip to OA, and then transformed to achieving the goal of "scientific publications that result from research funded by public grants must be published in compliant Open Access journals or platforms" from 2021. Plan S invites research funding organisations to become members of cOAlition S, who in turn are expected to abide by the ten principles articulated under the Plan. Crucially, it holds funders responsible for enforcing OA policies and sanction non-compliance.

The Principal Scientific Advisor (PSA) to the Government of India announced in February 2019 that India will join Plan S. That could make India the second country in the global south to adopt Plan S (Zambia (via National Science and Technology Council of Zambia) was the first one). Although it must be noted that the announcement was made with respect to an earlier version of the current plan. It remains to be confirmed if India will still abide by its commitment. Even so, at first glance the key tenets underlying the plan remain the same to a large extent. Regardless it is a huge step for India, and perhaps bears the promise of pulling together the various strands of a diffused OA movement in India. Presently, cOAlition S is dominated by European entities. Majority of the entities provide marginal funding support to Indian scientific research, with the exception of two members - the UK based biomedical charity Wellcome Trust and the Bill and Melinda Gates Foundation. Wellcome Trust has been a longstanding global advocate of OA, and also played a crucial role in shaping a key institutional OA mandate in India. Apart from the European Commission and European Research Council, China’s largest funding agency has also made strong statements to support Plan S.

Plan S’ principles prescribe that research should be only published in those journals and on platforms which enable authors to publish articles under a Creative Commons Attribution license (CC- BY; alternatively, CC Attribution Share-alike or CC Public Domain licenses); authors should retain copyright in their articles; have a “solid system” in place for peer-review as per the standards in the relevant research discipline; provide subsidies/ waivers in Article Processing Charges (APCs); and do not operate under the hybrid model. More importantly, the Plan prioritises publishing in journals over institutional repositories (IRs) – and requires funding organisations to pay APCs. Further, all kinds of self-archiving platforms (including IRs) should also meet certain registration requirements.

Key aspects of Indian scientific research

Funding of research

Currently, scientific research is significantly funded by both government and private sector in India. During 2017-18, the national investment on R&D activities in scientific research was estimated to be approximately one lakh crores, with majority (45%) being met by central government, and approximately 38% from private sector industries (and 7% from state and 5% from public sector organisations). The highest R&D expenditure is incurred by Defence Research and Development Organisation at INR 13,000 crores, followed by Department of Space at 5000 crores, Department of Atomic Energy at under 4000 crores. Indian Council for Agricultural Research (ICAR), Council of Scientific and Agricultural Research (CSIR), Department of Science and Technology (DST) find themselves in the same bracket of 2000-4000 crores roughly, whereas Department of Biotechnology (DBT) and Indian Council for Medical Research (ICMR) trail with under 1000 crores (Department of Science 2018). Of these institutions, only ICAR, CSIR, DST and DBT have OA mandates.

Indian institutional OA initiatives

The earliest OA efforts in India led to the creation of IRs to support self-archiving in scientific research institutions (Arunachalam 2004). Recommendations presented at the 93^rd Indian Science Congress in 2006 said that an optimal national OA policy should mandate research papers produced either by partial or full government funding to be deposited into IRs immediately upon publication; encouraged such grant holders to retain copyright; and suggested that the government should commit to cover costs for publication in OA journals (i.e. cover APCs). These recommendations found support in a 2007 report by the erstwhile National Knowledge Commission, a high-level advisory body to the Prime Minister of India. The Commission envisaged a national academic OA portal for sharing research articles, and highlighted the need for the government to allocate funds for digitisation of books and periodicals in the public domain (material outside the scope of copyright protection). Additionally, it recognised the digital divide as an impediment to access to scientific knowledge. More importantly, it required the government and research institutions to bear the cost of publishing in OA journals, instead of passing the financial burden to authors/ scientists.

Soon key public-funded institutions such as the Council of Scientific and Agricultural Research (CSIR), Department of Science and Technology and Department of Biotechnology (DST-DBT), Indian Council of Agricultural Research, Institute of Mathematical Sciences adopted OA mandates. However, the thrust of all policies happened to be on IR deposits and not financial support for APCs. The concept of IRs took root to a considerable extent, although many IRs later ran into issues for various reasons and stopped functioning (Das 2014). A few initiatives such as the CSIR-URDIP (which developed a centralised IR to make OA journals discoverable across institutions funded by CSIR and DST-DBT) remain under-populated despite being stably maintained. This is either due to absence of or uneven implementation of OA mandates – for example, only some institutional beneficiaries (approximately 20) have implemented the DST-DBT mandate, and a meagre 3000 papers have been made open thus far in various IRs. Problems cited for under-populating of repositories include disinterest by administrators in implementing the mandates (DST Centre for Policy Research 2018).

Plan S' vision and current Indian scenario

Mandatory copyright retention by authors

If India signs up for Plan S, IRs under Indian OA mandates will be required to publish articles under Creative Commons Attribution License (CC BY; alternatively CC BY SA or CC0, and CC BY ND in exceptional cases), wherein the copyright shall be retained by the author without any restrictions. Unfortunately, “copyright retention by authors” hardly finds support in Indian OA mandates as a fundamental principle. None of the institutions with OA mandates (mentioned previously) provide a clear stance on copyright retention, thereby implicitly leaving it to individual authors to negotiate their own arrangements with publishers. For example, the DST-DBT OA policy states that “It is not the intent of this policy to violate copyright or other agreements entered into by the researcher, institution or funding agency...” Individual arrangements largely take the shape of mandatory copyright transfers in favour of the publishers (with an embargo condition on author’s freedom to re-publish). Mandatory copyright transfers harm the agency of authors to publish/ share their works in other places of their choice. This is the primary reason for legacy works to remain locked up with the publishers until the copyright term expires; and in many cases even after the work has become a part of the public domain, publishers are loathe to release such works.

This happens despite two things: firstly, in most cases in India, authors’/ researchers’ institutional employment contracts require that all IP vests with the institutions; secondly, as per the applicable law - Indian Copyright Act, 1957, copyright in such works in ordinary circumstances vests with the employer. Thus, if public institutions so desired, they should be able to retain the copyright in the work produced under their aegis (and transfer it to the authors).

Removal of embargoes

Both OA and closed access journals routinely impose embargoes averaging a year for peer-reviewed outputs to be made open. Presently, most Indian OA mandates accommodate an embargo of six months to one year, and accept both post-prints and pre-prints (the two terms roughly refer to the version of author’s manuscripts before and after peer-review) for publication in IRs. Such conditions again run contrary to the Plan’s requirement of making the final peer-reviewed published version of articles (post-print version) to be made open immediately upon publication– i.e. without an embargo period.

Addressing the menace of predatory publishing

Separately, another thorn in the side of OA’s reputation has been the rise of predatory journals. Predatory journals are outfits that dress themselves as a genuine OA journal, often charging unsuspecting authors high APCs, but conduct abysmal peer-reviews and provide poor editorial services and exhibit such conduct amounting to fraud. Such outfits have irreparably damaged many researchers’ reputations and careers, especially for vulnerable authors in the global south, with their unchecked manuscripts getting published without requisite quality checks (Sinha 2016). While this is an issue that requires special immediate measures; Plan S can potentially check the growth of such journals since it requires all publication venues to be completely transparent about their editorial policies and editorial board members, and also prohibits them from using APCs as bait to guarantee publication.

Publishing in 'prestigious venues' cannot be a criterion for evaluating scientific merit

The growth of OA has further been hindered due to a misguided tendency amongst authors to publish only in select prestigious journals, many of which are closed access. Such select journals have cultivated a brand of reputability and prestige over decades, they demonstrate as much by their high JIF (Journal Impact Factor) credentials. Traditionally, JIF has been the measure of a journal’s prestige – a proxy for the impact and influence of a journal’s publications. Despite having been discredited as wholly inaccurate (Kiermer 2016), many funding agencies continue to consider a publication’s worth in terms of the JIF of the journal it was published in, in hiring, promotional and other career advancement decisions. So long as we continue to judge the worth of research by the venue of its publication (assuming a uniform high quality of peer review and other checks) and not by its actual contribution to science, OA publishing is bound to be a less favourable option, because most OA journals are new and have not raked up a high impact factor score. Yet Indian funding agencies continue to use and promote JIF metrics, for a lack of awareness or wanton dis-interestedness in improving the system. Another reason for an immediate need to break the religiosity surrounding JIF is that many journals (both OA and closed access) in the global south enjoy good reputations but do not carry a high JIF as they are newer and their citation metric pales in comparison to their more dominant western counterparts. This disparity is starker for fields wholly situated in the global south. In this respect, the Plan clearly requires funders to only evaluate a publication on the basis of its intrinsic merit, and not factor in publication channels, impact factors or the publisher.

Recent steps by Indian government and agencies

Indian agencies’ approach to addressing these issues has been chequered, and does more harm than good. In 2017, the Universities Grants Commission (UGC) released a pre-determined list of journals that researchers should publish in, and linked researchers’ career advancement to publishing in the select listed journals (Pushkar 2016). This approved list contains approximately 39,000 journals that are indexed in Web of Science, SCOPUS and Indian Citation Index (Universities Grant Commission 2018). UGC’s step was seen as an attack on academic freedom with serious doubts about its competence to create a credible exclusionary list of journals in multiple disciplines – and it has indeed been shown that the procedure of making the list is flawed (Patwardhan et al. 2018). Separately, the Ministry of Human Resources and Development notified to National Institutes of Technology (NITs) that papers published in journals levying APCs will not earn career advancement credits (Mukunth 2017). MHRD’s notification dismisses all paid journals irrespective of their quality. This has the effect of placing genuine high-quality OA journals on the same pedestal as predatory journals, and ultimately dents the growth of OA business models looking for modest support via APCs that are helpful in covering operational costs (software platform and an editorial team), and do not come close to unreasonable APCs levied by the biggest commercial players in the field. The reality is that most OA journals charge authors to publish (Bastian 2018).

These steps led to much consternation amongst the Indian research community. Another government central committee has proposed to award cash bonuses for publications (with a higher bonus for publishing in international journals over national journals). This has been criticised by Indian scientists on two grounds: firstly, that the scheme may lead to a spike in predatory or sub-standard journals; secondly, it devalues national journals, and reinforces the prestige factor to favour international journals (Vaidyanathan 2019). A 2011 study has shown that cash incentives appear to encourage submission of research that has low regard for quality (Franzoni et. al 2011). In fact in 2010, UGC introduced APIs (Academic Performance Indicators), which was essentially a system of reward points against number of publications for researchers and faculty members ostensibly to improve scientific publishing. However, this ended up triggering a race to publish poor quality research in fake journals (Pushkar 2016), and the UGC recently changed the scheme to in order to do damage-control.

Government will have to foot APC bill

Crucially, the Plan requires funding organisations to commit to funding APCs, in addition to research grants. The PSA in his announcement on Twitter (relating to Plan S) has said that, “We will negotiate for APCs normalised to India.” The Plan also emphasises on waivers and discounts for low and middle income countries. Studies show that Indian authors spend anywhere between INR 500 to 3 lakhs per article on APCs, and during 2010-14 the estimated payment to open access journals (the immediate OA kind) was INR 16 crores per year, on an average costing INR 76,000 per paper (Madhan et al. 2016). It has been estimated that Plan S will cost India INR 616.46 crores per year (Mukunth 2019). The estimate is more than half of the annual investment in public institutions such as DBT and ICMR.

Imperfect competition in the scholarly publishing market

Does the academic publishing market have any justifications for exorbitant APCs? A European University Association study highlighted the oligopolistic structure in this market sector, which functions with an absolute lack in pricing transparency (through strict confidentiality agreements with institutions), large profiteering through public funds and asymmetry in negotiating power (European Universities Association 2018). In 2015, five companies controlled more than half of the market for academic publishing: RELX (formerly Reed Elsevier, UK), Taylor and Francis (UK), Wiley-Blackwell (UK), Springer Nature (Germany), SAGE (US). Majority of the most important closed-access journals continue to be owned by these publishers (Larivière et. al 2015). It does not help that many of the top OA journals are also owned by the same publishers (who are responsible for charging the highest APCs). It will be interesting to see which journals will change their model to comply with Plan S requirements.

Conclusion

Nonetheless, after many years of piecemeal OA reforms within Indian institutions, the PSA’s announcement indicates a renewed interest in OA. Elimination of copyright transfer agreements and embargoes will give authors surely more control over their works – steps that should have been implemented and strictly enforced by Indian institutions long ago.

However, it makes little sense for developing countries to spend an enormous amount on APCs demanded by a foreign publishing oligopoly. Latin America continues to be opposed to Plan S as a matter of its principled position against APCs. If India signs up for Plan S, it is could be the case that we will find ourselves in a situation where our public institutions will be paying for subscriptions as well as APCs for a long time to come. One of the plan's principles does say that "... When Open Access publication fees are applied, they must be commensurate with the publication services delivered and the structure of such fees must be transparent to inform the market and funders potential standardisation and capping of payments of fees." Since the coalition is currently overwhelmingly Eurocentric, it remains to be seen how a fair and reasonable analysis will be worked out across geographies. In this sense, Plan S is not exactly a breakthrough plan for the global south as it does not sufficiently undercut the market power of the oligopoly.

There is plenty that can be done in the interim to realise the vision of OA, as we continue to ponder and debate the feasibility of Plan S in the global scheme of scientific publishing as well as India. For starters, it would be ideal to conduct a nationwide consultation with the research community in India. Strengthening the infrastructure underlying institutional repositories – in terms of developing more powerful search tools for IRs, linking IRs, making deposited articles more discoverable over the Web are steps that do not require relatively large funds (vis-à-vis APCs), yet stand to contribute to improving visibility of our research. The government must also look out for authors’ interests by actively negotiating stricter terms with publishers, so that authors aren’t coerced into signing away their copyright (or by fait accompli). Transparency of commercial agreements should become a non-negotiable principle in institutions’/ libraries’ dealings with publishers, which is also reiterated as a key principle of the Plan. Such steps may not result in an immediate shift to OA, if implemented strictly and uniformly can perhaps be more radical and fruitful than anything that the Indian research community has seen in decades.

References

Arunachalam, Subbiah (2004): “India’s March Towards Open Access,” SciDevNet, https://www.scidev.net/global/publishing/opinion/indias-march-towards-open-access.html

Bastian Hilda (2018): “A Reality Check on Author Access to Open Access Publishing” https://blogs.plos.org/absolutely-maybe/2018/04/02/a-reality-check-on-author-access-to-open-access-publishing/

Das, Anup Kumar (2014): “Open Access to Scientific Knowledge: Policy Perspectives and National Initiatives,” CSIR –NISTADS (ed): India - Science and Technology, Vol 3, pp. 292-299

Department of Science and Technology (2018): “Annual Report 2017-2018” https://drive.google.com/file/d/1IPKUdbSx0Da2Zi_ufzC4u-T3jCFzPred/view

DST Centre for Policy Research (2018): “Panel Discussion on Equitable Access to Knowledge, https://www.youtube.com/watch?v=iH_kjoFRjAQ

European Universities Association (2018): “The lack of transparency and competition in the academic publishing market in Europe and beyond” https://eua.eu/component/attachments/attachments.html?task=attachment&id=1691

Harnad, Stevan (1995): “Universal FTP Archives for Esoteric Science and Scholarship: A Subversive Proposal”, Scholarly Journal at the Crossroads, Washington DC: Association of Research Libraries

Kiermer, Veronique (2016): “Measuring Up: Impact Factors Do Not Reflect Article Citation Rates,” PLOS Blogs, https://blogs.plos.org/plos/2016/07/impact-factors-do-not-reflect-citation-rates/

Franzoni, Chiara & Scellato, Giuseppe &Stephan, Paula (2011): “Changing Incentives to Publish,” Science, http://www.utstat.utoronto.ca/reid/sta2201s/2012/Science-2011-Franzoni-702-3.pdf

Larivière, Vincent & Haustein, Stefanie & Mongeon, Philippe (2015): “The Oligopoly of Academic Publishers in the Digital Era,” PLoS One. 10 (6), p. 1-15.DOI: https://doi.org/10.1371/journal.pone.0127502

Madhan, Muthu & Kimidi, Siva Shankar & Gunasekaran, Subbiah & Arunachalam, Subbiah (2016): “Should Indian researchers pay to get their work published?,” Current Science http://dst.sciencecentral.in/17/1/Current_Science_Sept2016.pdf

Manupriya (2017): “Helping institutions embrace open access,” IndiaBioscience, https://indiabioscience.org/news/2017/helping-institutions-embrace-open-access

Mukunth, Vasudevan (2017):“Scientists in the Lurch After Imprecise MHRD Notice About 'Paid Journals'”, The Wire, https://thewire.in/education/mhrd-open-access-nit-predatory-journals-career-advancement-impact-factor

Mukunth Vasudevan (2019): “Six Concerns Over India Joining the Plan S Coalition for Science Journals”, The Wire, https://thewire.in/the-sciences/six-concerns-over-india-joining-the-plan-s-coalition-for-science-journals

Patwardhan, Bhushan & Nagarkar, Shubhada & Gadre, Shridhar & Lakhotia, Subhash & Mohan Katoch, Vishwa & Moher, David. (2018): “A Critical Analysis of the ‘UGC-Approved List of Journals’”. Current science. pp 114.

Poynder, Richard (2019): “Plan S: What strategy now for the Global South?” https://richardpoynder.co.uk/Plan_S.pdf

Pushkar (2016): “The UGC Deserves Applause for Trying to Do Something About Research Fraud,” The Wire, https://thewire.in/education/the-ugc-deserves-applause-for-rrying-to-do-something-about-research-fraud

SCImago (2018): “SJR – SCImago Journal and Country Rank” viewed on 2 April 2019 (https://www.scimagojr.com/countrysearch.php?country=in )

Sinha, Anubha (2016): “Why Open Access Has To Look Up For Academic Publishing To Look Up”, The Centre for Internet and Society, https://cis-india.org/openness/the-wire-anubha-sinha-october-12-2016-why-open-access-has-to-look-up-for-academic-publishing-to-look-up

Universities Grants Commission (2018): “Annual Report 2017-2018” https://www.ugc.ac.in/pdfnews/5595965_UGC-ANNUAL-REPORT-English-2017-18.pdf

Vaidyanathan, Gayatri (2019): “Indian payment-for-papers proposal rattles scientists,” Nature India, https://www.natureasia.com/en/nindia/article/10.1038/nindia.2019.18?WT.mc_id=TWT_NatureInd#.XGlrKLpUnPU.twitter

For more details visit https://cis-india.org/a2k/blogs/should-india-adopt-plan-s-to-realise-open-access-to-public-funded-scientific-research

Indian Patent Office updates Guidelines for Examination of Computer Related Inventions, yet again

sinha — 2017-07-05T07:42:44Z

By discarding a test brought into force last year, the updated Guidelines take no concrete position to help clarify the ambiguity around patentability of software inventions in India.

The Office of the Controller General of Patents, Designs and Trademarks (CGPDTM) issued new Guidelines on Examination of Computer Related Inventions (CRIs) on 30^th June, making it easier to obtain a software patent in India (as compared to standards set in the 2016 Guidelines).

New Changes

The most important change is removal of a test notified in 2016 which made CRIs patent eligible provided there was a novel hardware component in the patent application. Accordingly, references in the guidelines which aided interpretation of the 2016 test have been deleted. Additionally, the new guidelines exclude the layout of integrated circuits as patentable subject matter in CRIs.

The CGPDTM has refrained from prescribing a new test to determine patentability of CRIs.

In the absence of specific guidance, it is likely that examiners will heavily rely on section 3(k) of the Patents Act, 1970, the Manual of Patent Practice and Procedure, and the views expressed by the Joint Parliamentary Committee in respect of "per se":

"In the new proposed clause (k) the words ''per se" have been inserted. This change has been proposed because sometimes the computer programme may include certain other things, ancillary thereto or developed thereon. The intention here is not to reject them for grant of patent if they are inventions. However, the computer programmes as such are not intended to be granted patent. This amendment has been proposed to clarify the purpose."

Policymaking re Guidelines on Examination of CRIs

After years of deliberation, the Indian Patent Office first proposed a test in 2015 which was met with disapproval as it lowered the bar for patentability of CRIs. After a stakeholder consultation, the IPO revised the test in 2016, raising the bar of patent eligibility of CRIs, which was favorable to the growth of small and medium enterprises in the Indian IT industry. The present 2017 guidelines are a result of streamlining stakeholder consultations conducted in response to the 2016 guidelines as per a circular by the IPO.

In the following table, I list the substantive changes made in the new guidelines (in comparison to the 2016 Guidelines) and make some preliminary remarks:

Type of Change

Change

Remarks

Inserted in 2.1, Legal Provisions relating to CRIs and Deleted in 4.1, Novelty

Section 2 (1)(l) defines “new invention” in The Indian Patents Act, 1970 as follows: "New invention" means any invention or technology which has not been anticipated by publication in any document or used in the country or elsewhere in the world before the date of filing of patent application with complete specification, i.e. the subject matter has not fallen in public domain or that it does not form part of the state of the art

Added in 2.2, List of explicit exclusions from patentability under section 3 for CRIs

Section 3(o) topography of integrated circuits

Contemplates layout of integrated circuits as subject matter relating to CRIs

Parts deleted in 4.3, Industrial Applicability

Industry herein is to be understood broadly having any useful and practical activity while excluding intellectual or aesthetic activity. Claims relating to “Method of playing games” and “computer programming languages” are not considered to be industrially applicable. A method for effecting introductions with a view to making friends is not industrially applicable even though it could be carried out by a commercial enterprise. The determination of industrial applicability in case of CRIs is very crucial since applications relating to CRIs may contain only abstract theories, lacking in industrial application.

Only an explanation of industrial applicability in the general context of patent law remains.

Deleted in 4.4, Sufficiency of Disclosure (strikethrough indicates deleted part)

4.4.1 Fully and particularly (What): 1. If the patent application relates to apparatus/system/device i.e hardware based inventions, each and every feature of the invention shall be described with suitable illustrative drawings. If these system/device/apparatus claims are worded in such a way that they merely and only comprise of a memory which stores instructions to execute the previously claimed method and a processor to execute these instructions, then this set of claims claiming a system/device /apparatus may be deemed as conventional and may not fulfil the eligibility criteria of patentability. If, however, the invention relates to ‘method’, the necessary sequence of steps should clearly be described so as to distinguish the invention from the prior art with the help of the flowcharts and other information required to perform the invention together with their modes/means of implementation. […]

Loosened the disclosure requirement

Deleted in 4.4, Sufficiency of Disclosure (strikethrough indicates deleted part)

4.4.4 Form and substance: […] Even when the issue is related to hardware/software relation, ~~(e.g., when the claims recite ‘processor is programmed to… or ‘apparatus comprising a processor and configured / programmed to…..)~~ the expression of the functionality as a ‘method’, is judged on its substance. It is well established that, in patentability cases, the focus should be on the underlying substance of the invention, not the particular form in which it is claimed. The Patents Act clearly excludes computer programmes per se and the exclusion should not be allowed to be avoided merely by camouflaging the substance of the claim by wording ~~(e.g. different subroutines are performed in different physical locations such as processors will not suffice).~~

Removed illustrations

Replaced in 4.4, Sufficiency of Disclosure (strikethrough indicates deleted part)

4.4.5 Means Plus Function:

Further, if the specification supports ~~implementation~~ of the invention solely by the computer program then in that case means plus function claims shall be rejected as these means are nothing but computer programme per se.

Where no structural features of those means are disclosed in the specification and specification supports ~~implementation~~ of the invention solely by the software then in that case means in the “means plus function” claims are nothing but software.

Replaced both struck out words by performing the invention

Added in 4.5, Determination of excluded subject matter relating to CRIs

[…] Hence, along with determining the merit of invention as envisaged under Sections 2(1) (j), (ja) and (ac), the examiner should also determine whether or not they are patentable inventions under Section 3 of the Act.

Parts deleted in 4.5.1. Claims directed as “Mathematical Method”:

[…] Some examples which will attract exclusion: acts of mental skill. e.g. A method of calculation, formulation of equations, finding square roots, cube roots and all other methods directly involving mathematical methods like solving advanced equations of mathematics. merely manipulates abstract idea or solves a purely mathematical problem without specifying a practical application.

Added in in 4.5.1. Claims directed as “Mathematical Method” (emphasis supplied)

4.5.1. Claims directed as “Mathematical Method”: Mathematical methods are a particular example of the principle that purely abstract or intellectual methods are not patentable. Mathematical methods like method of calculation, formulation of equations, finding square roots, cube roots and all other similar acts of mental skill are therefore, not patentable. Similarly mere manipulations of abstract idea or solving purely mathematical problem/equations without specifying a practical application also attract the exclusion under this category. However, mere presence of a mathematical formula in a claim, to clearly specify the scope of protection being sought in an invention, may not necessarily render it to be a “mathematical method” claim. Also, such exclusions may not apply to inventions that include mathematical formulae and resulting in systems for encoding, reducing noise in communications/ electrical/electronic systems or encrypting/ decrypting electronic communications.

Illustrations added to show that CRIs that include mathematical formulae and result in systems for encoding, reducing noise in communications/ electrical/electronic systems or encrypting/ decrypting electronic communications, will not be ineligible merely by virtue of presence of mathematical formulae. They will not necessarily construe a claim on mathematical method.

Part deleted in 4.5.4, Claims directed as “Computer Programme per se”

The computer programme per se is excluded from patentability under section 3(k) apart from mathematical or business method and algorithm

Inserted in 4.5, Determination of excluded subject matter relating to CRIs (emphasis supplied)

4.5.8. Topography of integrated circuits The above criterion is to be judged as per the procedures as laid out in chapter 08.03.05.14 of the Manual

Contemplates layout of integrated circuits as subject matter relating to CRIs

Parts deleted in 5, Tests/Indicators to determine Patentability of CRIs

5. Tests/Indicators to determine Patentability of CRIs: Examiners may rely on the following three stage test in examining CRI applications: (1) Properly construe the claim and identify the actual contribution; (2) If the contribution lies only in mathematical method, business method or algorithm, deny the claim; (3) If the contribution lies in the field of computer programme, check whether it is claimed in conjunction with a novel hardware and proceed to other steps to determine patentability with respect to the invention. The computer programme in itself is never patentable. If the contribution lies solely in the computer programme, deny the claim. If the contribution lies in both the computer programme as well as hardware, proceed to other steps of patentability.

Implication is that this test is no longer in force for examination of patentability of CRIs

Deleted 6, Illustrative examples of Claims which are not patentable

Refer to 2016 Guidelines

Note: This post has been updated to reflect the change in point 4.4.5, which was previously missed by the author.

For more details visit https://cis-india.org/a2k/blogs/indian-patent-office-issues-updated-guidelines-for-computer-related-inventions-yet-again

Course Packs for Education Ruled Legal in India

sinha — 2017-07-14T04:05:00Z

On 9 May 2017, a five year court battle between publishers and universities finally came to an end when the Supreme Court of India dismissed an appeal by the Indian Reprographic Rights Organization (IRRO) challenging an earlier judgment of Delhi High Court that ruled course packs in India legal for educational purposes.

The article was published by EIFL on July 12, 2017.

In a case that gained wide international attention, issues such as the cost of textbooks in India were raised, students agitated for fair access to educational materials, and the jurisprudence on copyright in India has taken a leap forward. In this guest blog, Anubha Sinha, Programme Officer on Openness and Access to Knowledge at the Centre for Internet and Society India, discusses the judgment in the case known as the ‘Delhi University photocopy’ case, and what it means for access to educational materials in India.

The facts of the case

In 2012, three academic publishers, Oxford University Press (OUP), Cambridge University Press (CUP) and Taylor & Francis, sued the University of Delhi (DU) and Rameshwari Photocopy Service (based at the university) for copyright infringement for photocopying parts of their textbooks and distributing them in course packs - collections of assigned reading materials – exclusively to students for a fee.

The publishers sought to compel Delhi University to enter into a licensing agreement with the Indian Reprographic Rights Organization (IRRO), that manages certain rights on behalf publishers and other rightsholders in India.

The course packs in question comprised excerpts from textbooks on course syllabi at Delhi School of Economics (part of the University of Delhi). The court analyzed the content of four packs that included works such as Transforming India: Social and Political Dynamics of Democracy (OUP), New Cambridge History of India (CUP) and Political Philosophy (Routledge/Taylor & Francis).

The court found that on average 8.8% of the textbooks, that each cost on average 39 USD (2,500 INR), were used in the course packs. Students and faculty were charged a nominal fee of one US cent (40 paise) per page to buy the course pack.

The court’s judgment – no infringement, no licence required

In an interim order in 2012, the court issued a temporary injunction restraining the sale of course packs by Rameshwari. However, the order was overturned when in subsequent judgments (in September 2016 and an appeal judgment in December 2016) the court ruled in favour of the University.

On whether the making of the course packs was a copyright infringement, the court found no infringement because the activities fell under the education exception in Indian copyright law (specifically section 52(1)(i)).

Section 52(1)(i) of the Indian Copyright Act (1957) allows any work to be reproduced by a teacher or pupil for the purposes of instruction. In a liberal interpretation of the provision, the court held that the reproduction of a work is not limited to reproduction by an individual teacher or pupil, it also extends to the action of multiple teachers and students. Further, the court held that the phrase ‘course of instruction’ embraces any instruction for the duration of an entire course or teaching programme, it is not limited only to teaching in the classroom.

On whether the university must obtain a licence to photocopy from IRRO, the court held that no licence is required because the activities are covered by Section 52(1)(i).

The court also found there to be no commercial exploitation of copyright in the works.

During the case, the publishers tried to impute a profit motive on the part of the defendants. They argued that by selling chapters of the books, the defendants were in direct competition with publishers thereby creating an adverse effect on the publishers’ market.

The court rejected the argument holding that students are hardly potential customers for multiple books used in the course packs. For example, post-graduate students might have 35-40 reading assignments per subject.

Without the course packs, students would simply look elsewhere for the material, including the university library. In fact, the court noted that increased access to education has the potential to expand the customer base for such books in the future.

Primacy of purpose

Importantly, the court said fairness of use is to be judged only by its intended purpose i.e. education, and not from any qualitative or quantitative uses (such as which parts of the text are used or the number of copies made).

The court’s judgment on appeal, that references case law from Canada, the USA the UK and New Zealand, emphasizes that the determination of ‘fairness’ of a use rests solely on the “touchstone of the purpose of the use and/or other limitations expressly built in each of these clauses”. Thus there is no requirement to introduce other tests or factors when applying Section 52(1)(i) and so a general fair use principle is to be read into all such provisions in the law.

The case concludes

The High Court remained undecided on two points of fact: whether the works included in the course packs were necessary for educational instruction, and whether the photocopying of entire books is allowed under Indian law. It decided to refer these issues for determination to a trial court.

However, the trial court hearing never proceeded because in March 2017 the publishers decided to withdraw from the case, in a move that surprised observers. A joint statement issued by OUP, CUP and Taylor & Francis acknowledged the important role that course packs play in education, and looked forward to working “even more closely with academic institutions, teachers and students to understand and address their needs”.

In a further twist in April 2017, the Indian Reprographic Rights Organization (IRRO) filed an appeal to the Supreme Court challenging the High Court’s judgment.

On 9 May 2017, the Supreme Court summarily dismissed IRRO’s appeal.

Impact of the Delhi University case

The ruling in the Delhi University case is a huge triumph for access to educational materials in India over the interests of private copyright holders.

The case shone a light on the socio-economic context of university level education in India, in particular the cost of textbooks. Students became advocates for access to knowledge, and the law on access to educational materials in India has been advanced.

Book prices in India are an issue

A study submitted to the court showed that consumers in the global South often have to commit significantly higher proportions of their income to buy books because absolute book prices are far higher than in the global North. For example, if consumers in the US had to pay the same proportion of their income to purchase the Oxford English Dictionary, it would cost a ludicrous 941.20 USD!

Not even university libraries can afford these prices. While libraries do purchase multiple copies of textbooks, they cannot cater for the entire student population that can ran into hundreds of students enrolled on an individual course.

In addition, the latest editions are not always available to purchase in India. So the absence of course packs would seriously compromise access to education.

“While foreign publishers claim that almost all educational titles have lower priced Indian editions, our empirical research shows this to be false. The vast majority of legal and social science titles that we surveyed had no equivalent Indian editions, and had to be purchased at prices equivalent to or higher than in the West. The lower priced Indian editions were often older and outdated.” - Shamnad Basheer, writing in SpicyIP, one of India’s leading blogs/repositories on intellectual property (IP) and innovation law/policy.

Students, faculty and authors mobilized

The case resonated strongly with the student and academic communities. Two new groups were formed, the Association of Students for Equitable Access to Knowledge (ASEAK) and the Society for Promotion of Equitable Access to Knowledge (SPEAK). Both groups were admitted as interveners in the case in support of the defendants.

Student engagement has continued, increasing awareness among the next generation for fair access to knowledge.

In addition, over three hundred academics from all over the world, including 33 authors whose works were listed in court documents as being included in the course packs, wrote to the three publishers asking them to withdraw the lawsuit. The letter was submitted to the court in pleadings by the defendant.

Copyright jurisprudence advanced

The case has advanced copyright jurisprudence in India.

The making of course packs for educational purposes is allowed by law.

The court’s reasoning in the judgments was based on the socio-economic context of India, the realities of the education system, and the progress afforded by modern technology. These are welcome developments that will enable the law to adapt to new situations and current needs of Indian society.

Timeline

August 2012: Oxford University Press (OUP), Cambridge University Press (CUP) and Taylor & Francis issue legal proceedings against Delhi University and Rameshwari Photocopy Service

October 2012: Interim injunction issued against Rameshwari Photocopy Service restraining sale of course packs.

March 2013: 33 authors of works cited in court documents write to publishers asking them to withdraw the case.

September 2016: judgment issued by Justice Rajiv Sahai Endlaw, Delhi High Court; injunction on Rameshwari Photocopy Service lifted.

October 2016: Publishers file appeal against Justice Endlaw’s decision.

December 2016: Appeal rejected by Delhi High Court Division Bench Justices Pradeep Nandrajog and Yogesh Khanna.

January 2017: Oxford students and academics urge OUP not to appeal to the Supreme Court.

March 2017: Publishers announce their withdrawal from the case.

April 2017: Indian Reprographic Rights Organization (IRRO) (that intervened in the lower case) files appeal to the Supreme Court.

May 2017: IRRO appeal dismissed by the Supreme Court.

For more details visit https://cis-india.org/a2k/blogs/eifl-anubha-sinha-july-12-2017-course-packs-for-education-ruled-legal-in-india

Fueling the Affordable Smartphone Revolution in India

sinha — 2016-03-16T15:23:43Z

Smartphones have emerged as the exemplar of mankind's quest for shrinking technologies. They embody the realization of a simple premise – that computing devices would do more and cost less. This realization has been responsible for modern society's profound transformations in communication, governance, and knowledge distribution.

The essay was published as part of the The Good Life in Asia's Digital 21st Century essay collection.

The launch of the iPhone in 2007 is often credited with ushering in an era of smartphones. Ever since, the world's best tech R&D has focused on increasing the capabilities of these devices. And as a result, less than a decade later, we have sub-hundred dollar smartphones. The low-cost smartphone has found an enthusiastic and insatiable market in developing countries, especially Asia. India is no exception to the Asian narrative – Micromax, Spice, and Lava (low cost smartphone manufacturers) are household names in the Indian smartphone market, which accounted for 65% of internet traffic in 2014 (Meeker, 2015).

The Indian Prime Minister, carrying the twin aspirations of catalyzing the growth of indigenous manufacturing and bridging the digital divide, launched the “Digital India” and “Make in India” campaigns last year. During his US visit, Google, Apple, Microsoft, Facebook extended their support to the campaigns' vision (Guynn, 2011). The campaigns outline the government's elaborate initiatives to, inter alia, bridge the digital divide and build indigenous manufacturing capacity. While all these developments bode well for the indigenous smartphone, there remain some serious concerns affecting the growth of the industry – for instance, patent infringement litigations and the absence of clear legal and regulatory solutions.

From the state of the industry and its implications, it can be concluded that: first, growing access to smartphones has been influenced by their phenomenal affordability; second, smartphones are an excellent example of technology for development (UNDP, 2001) and a facilitator of access to knowledge; and third, domestic smartphone production has occurred in an imprecise legal and regulatory environment.

This essay attempts to build an appreciation for the role that smartphones are playing in development, specifically, by fostering Access to Knowledge. Conversations around development by public-interest groups and emerging industries often espouse Access to Knowledge to address concerns in international development, communications, technology, education, and intellectual property policy. Whereas the principle can be regarded as in-theworks, two theories inform us about the role of mobile phones in fostering Access to Knowledge. Lea Sheaver's theory classifies mobile as an Access-toKnowledge good. Lea enumerates the five key components of a robust Access to Knowledge framework, viz., education for information literacy, access to the global knowledge commons, access to knowledge goods, an enabling legal framework, and effective innovation systems (Sheaver, 2007). According to her, affordability of the good is the ultimate indicator of its efficacy as an access to knowledge good. Furthermore, inventions in microchip technology, electronics manufacturing, and software need to be supported by enabling legal and policy frameworks coupled with effective innovation systems.

Yochai Benkler's framework classifies mobile-devices as both informationembedded goods and information-embedded tools (Benkler, 2006). He says, “Information-embedded goods are those goods which are ‘better, more plentiful or cheaper because of some technological advance embedded in them or associated with their production,’ such as medicines, movies, and improved crop seed. Information-embedded tools, in turn, are those technologies necessary for research, innovation, and communication of knowledge” (Benkler, 2006). A smartphone qualifies as both because it can be used to obtain knowledge, and it depends on discoveries in microchip technology, electronics manufacturing, and software to function.

To date, there has been no formal, theoretical or evidentiary investigation on the emergence of smartphones as an Access-to-Knowledge good. In the following sections, I will attempt to explain the smartphone’s dependence on an enabling legal framework and effective innovation systems (Lea's components). It must be borne in mind that globally, discussions affecting access to knowledge have aimed at creating balanced and inclusive systems related to intellectual property (Kapczynski & Krikorian, 2010). Therefore, the essay will focus on: first, the relationship between constituent mobile technologies and intellectual property as a function of production/deployment of smartphones in India; and second, the relationship between innovation and access.

Creating an Enabling Legal Framework to Foster Access to Knowledge

The adage “the only lesson you can learn from history is that it repeats itself” is worth bearing in our narrative. The emergence of the smartphones industry in Asia has commonalities with the flourishing Asian piracy trade – which remains an essential access solution for low-income societies constantly barraged by expensive western media goods. The prohibitive cost of acquiring brand-name devices (e.g. Apple, HTC, Samsung, Sony) drove local production to imitate and innovate cheaper substitutes (WIPO, 2010). This occurred within the lenient and flexible intellectual property regimes prevalent in Asian countries, which continue to be constantly criticized for their failure to enact stricter intellectual property law. The hubs of smartphone production – China, Taiwan, and India – have flexible intellectual property protection law and lax enforcement measures (Centre for Internet and Society, 2012).

Concerns of intellectual property center around patent and copyright legislation, which have yet to be fully developed to address intellectual property in high-tech industries (since trademark issues remain unchanged, they will not be discussed in the essay.) As a result, constituent smartphone technologies have been shaped and governed by a blend of formal and informal rules and legal and illegal practices. This is why they are often referred to as “gray market” technologies. A smartphone in terms of constituent intellectual property can be broadly divided into hardware and software technologies. This piece will first deal with hardware, followed by software technologies.

Hardware Technologies and Their Relationship with IP Law

Presently, most Indian manufacturers import hardware from China and Taiwan, and assemble the phones in India. A few key Indian domestic players are Maxx Mobile, Intex, Spice, and Lava, whose dominance have not gone unnoticed by foreign manufacturers. A couple of these domestic manufacturers are now embroiled in patent litigation threats or infringement suits. And as litigation piles up in Indian courts, the judiciary is slowly waking up to mobile patent litigation, but is yet to rule comprehensively. To make matters worse, the jurisdiction of the Indian antitrust regulator remains unclear, and to a certain extent overlaps with the judiciary, adding to the ambiguity. For instance, when an appellate court ruled in favor of the Swedish tech-giant Ericsson, it ordered Micromax to pay a flat 1.25 – 2% of its devices' selling price to Ericsson (Lakshane, 2015). The ruling was devoid of a more rational and reasoned approach developed by courts of other jurisdictions in similar matters, which prescribed that the infringers pay damages based on the price of the patented components only, and not the retail price of the phones. This decision risks causing a significant increase in the price of phones and potentially threatens local innovation.

The Indian government's Make in India and Digital India campaigns aim to fulfill the vision of a digitally empowered India, and the 2015 Indian Union budget also targets boosting the electronics manufacturing industry. Despite these broad initiatives, there needs to be a more focused policy in place to ensure domestic companies do not get weighed down by patent related concerns. The root cause of litigation is the vesting of a majority of critical mobile patents (Standard Essential Patents, or SEPs) by a handful tech-giants. For instance, Qualcomm owns 5700 patents around CDMA technology (qualcomm.com). In another instance, the DVD format constitutes 311 SEPs for DVD players and 272 SEPs for DVD recorders (CIS, 2012). Such a dense concentration of patents around SEPs creates a patent thicket and thereby compels Smartphone manufacturers to acquire multiple licenses, and to pay high transaction costs and huge royalties to the owner. To reduce conflict and protect domestic players from being arm-twisted into paying high royalties, the government can potentially identify critical technologies and initiate the formation of a patent pool of such technologies. The concept of a patent pool mandates that the patent holders issue licenses on fair, reasonable, and nondiscriminatory basis to interested parties. However, a nuanced and cautious approach to setting up such pools is necessary (Shapiro, 2001).

There are interesting lessons in China's steps to encourage local innovation of Smartphone hardware as well, specifically in the form of standardized technologies. The Chinese government has actively supported the development of indigenous standards to shield domestic manufacturers from royalty exposure. In fact, the China Blue High-definition Disc (CBHD) standard was built as an alternative to the Blu-ray disc and was duly adopted by the Chinese government, which reportedly caused the royalty rates for the Blu-ray format to dip. Much later, Warner Bros, Paramount, and other motion picture producers adopted the CBHD standard as well for distribution in China.

Software Technologies and Their Relationship with IP Law

Unlike hardware technology, where India is struggling to build manufacturing capacity, the success of the Indian software industry has already been realized. The software-as-a-service (SaAS) industry is led by Infosys, TCS, and Wipro in software exports. The prevailing trend in the industry since the 1980s was to assign ownership of their products to offshore clients. However, in the past decade, there has been a conscious shift by the Indian software development workforce to build products for Smartphone platforms. This is in response to the shift in local populations to accessing content and services online. Reports indicate that India has the second largest population of mobile applications developers (approx. 3 million) in the world, second only to the US (Livemint, 2015). The Indian government has recognized the potential of mobile application-based ventures and created funds to encourage app development in India (IAMAI, 2015).

Intellectual property protection around software is fairly ambiguous. A piece of code is potentially capable of gaining both patent and copyright protection. In the area of mobile application development, preliminary research findings indicate that coding occurs with an agnostic attitude towards intellectual property laws (Cassar, 2014). One of the reasons is ambiguity on a multitude of issues around the protection of software because Indian legislation on patent and copyright is frustratingly insufficient. There is a growing discontentment about long-term patent protection over software code, which could be detrimental to innovation – particularly, to the start-up segment of software industry. In more technologically advanced economies, software patenting has emerged as a scourge – last year, the US Supreme Court in Alice Corporation Pty Ltd v. CLS Bank International Et Al narrowed the eligibility of software inventions to gain patent protection. The activist discourse has shifted in favor of eliminating software patenting because of the incremental and obsolescent nature of a software invention, inter alia (Lapowsky, 2015). However, in a recent disappointing move, the Indian patent office widened the scope of patent-eligible subject matter for software-related inventions – a move that was decried by free software activists and industry alike. This widening of scope can only benefit tech-giants in building bigger patent portfolios, which is unnecessary and unhealthy for innovation by small and mid-tier entities (Sinha, 2015).

Effective Innovation Systems

Innovation ensures fresh creation of knowledge. A society cannot premise itself on the mere importation of knowledge; it must also strive to use the knowledge to meet its own local needs and environment. Innovation depends on a variety of factors – there is no singular path or factor to build an innovative and enterprising society. The patent system is often incorrectly credited with “promoting” innovation. The discourse around innovation was extremely patent-centric until studies disproved the assumptive correlation between high patenting activity and innovation. Continuing in the same vein, Lea states, “From the A2K perspective, however, relying on patents – which represent the right to exclude others from access to the innovation – is particularly problematic. Patents likely represent the segment of innovation of least value for expanding access to knowledge: improvements in the knowledge stock whose application is limited by exclusive property rights” (Shaver, 2007).

In this framework, it is also important to shed light on the growing movement of openness. Openness as a movement has been captured by various fields - Big data, software, education, media, etc. Free and Open Source Software has emerged as a key agent in information technology policy-making in India, with the Indian government adopting an open standards policy and an open software policy for its own purposes.

In the context of smartphone technologies, preliminary findings also support the shift towards openness (Huang, 2014). Industry participants have observed that openness will lead to greater benefits in private production of hardware technologies. Similarly, mobile applications developers have also voiced support of open source software (Cassar, 2014).

Conclusion

The discussion above identified a limited set of legal and regulatory concerns affecting the state of production/deployment of smartphones in India. These issues and findings are backed by preliminary research, and purport to sustain the emergence of the smartphone as an enabler of access to knowledge. The proposed solutions direct industry and the government alike to take immediate steps to fix problems impeding pervasive access to this knowledge good.

The experience of the smartphone industry with an imprecise legal and regulatory environment, akin to piracy, has thus far been a success story of affordability, quality substitution, and innovation. However, this narrative is now threatened by messy litigation, jurisdictional uncertainties between the anti-trust regulator and judicial system, SEP licensing issues, rise of software patents, inter alia. Despite these issues, the industry continues to grow. The future of access to knowledge is therefore bright, provided that stakeholders make efforts to meet the needs of this emerging industry and the public, including development and consumer interests.

References / Links / Resources

Benkler, Y. (2006). The Wealth Of Networks: How Social Production Transforms Markets And Freedom. Retrieved from http://www.benkler.org/wealth_of_networks/index.php?title=Chapter_9%2C_section_3.
Cassar, S. (2014). Interviews with App Developers: Open Source, Community, and Contradictions – Part III. Retrieved from: http://cis-india.org/a2k/blogs/interviews-with-app-developers-open-sourcecommunity-and-contradictions-iii
Cassar, S. (2014) Ambiguity in the App Store: Understanding India’s emerging IT sector in light of IP. Retrieved from http://cis-india.org/a2k/blogs/ambiguity-in-the-app-store
Centre for Internet and Society, Pervasive Technologies: Access to Knowledge in the Marketplace(2012, September). Retrieved from http://cis-india.org/a2k/pervasive-technologies-research-proposal.pdf/view
Guynn, J. (2015, September 28). Facebook, Silicon Valley like Indian Prime Minister Narendra Modi. Retrieved from http://www.usatoday.com/story/tech/2015/09/27/narendra-modi-india-facebook-markzuckerberg-google-sundar-pichai-silicon-valley/72936544/
Huang, M. (2014). [Open] Innovation and Expertise > Patent Protection & Trolls in a Broken Patent Regime (Interviews with Semiconductor Industry - Part 3). Retrieved from: http://cis-india.org/a2k/blogs/ interviews-with-semi-conductor-industry-part-3
IAMAI (2015). An inquiry into India's app economy.
Kapczynski, A., Krikorian, G., (2010). Access to Knowledge in the Age of Intellectual Property. Retrieved from: https://mitpress.mit.edu/sites/default/files/titles/free_download/9781890951962_Access_to_ Knowledge_in_the_Age_of_Intellectual_Property.pdf
Lakshane, R. (2015, September). FAQ: CIS Proposal for Compulsory Licensing of Critical Mobile Technologies. Retrieved from: http://cis-india.org/a2k/blogs/faq-cis-proposal-for-compulsory-licensing-ofcritical-mobile-technologies
Lakshane, R. (2015, February). Open Letter to Prime Minister Modi. Retrieved from: http://cis-india.org/ a2k/blogs/open-letter-to-prime-minister-modi
Lapowsky, I. (2015, February). If You Want to Fix Software Patents, Eliminate Software Patents. Retrieved from https://www.eff.org/mention/follow-wired-twitter-facebook-rss-eff-if-you-want-fix-software-patentseliminate-software
Meeker, M. (2015). 2015 Internet Trends. Retrieved from http://www.kpcb.com/partner/mary-meeker
PTI (2015). Google aims to make India a hub for app development. Livemint. Retrieved from: http:// www.livemint.com/Industry/rwWUfp30YezONe0WnM1TIO/Google-aims-to-make-India-a-hub-for-appdevelopment.html
Qualcomm Enters Into CDMA Modem Card License Agreement with Seiko Instruments Incorporated. (n.d.). Retrieved November 13, 2015, from https://www.qualcomm.com/news/releases/2000/06/20/ qualcomm-enters-cdma-modem-card-license-agreement-seiko-instruments
Shapiro, C. (2001). Navigating the Patent Thicket: Cross Licenses, Patent Pools, and Standard Setting. Innovation Policy and the Economy, 1, 119-150. Retrieved from: http://www.nber.org/chapters/c10778.pdf
Shaver, L. (2007). Defining and Measuring Access to Knowledge: Towards an A2K Index. Faculty Scholarship Series. Paper 22. retrieved from: http://digitalcommons.law.yale.edu/fss_papers/22
Sinha, A. (2015). Comments on the Guidelines for Examination of Computer Related Inventions (CRIs). Retrieved from http://cis-india.org/a2k/blogs/comments-on-the-guidelines-for-examination-of-computerrelated-inventions-cris
United Nations Development Programme, Human Development Report 2001: Making New Technologies Work for Human Development (2001). Retrieved from http://hdr.undp.org/reports/global/2001/en/
World Intellectual Property Organisation. (2010, Dec 1-2). Media Piracy in Emerging Economies: Price, Market Structure and Consumer Behavior. Retrieved from the WIPO website: http://www.wipo.int/edocs/ mdocs/enforcement/en/wipo_ace_6/wipo_ace_6_5.pdf

For more details visit https://cis-india.org/a2k/blogs/digital-asia-hub-the-good-life-in-asias-21-st-century-anubha-sinha-fueling-the-affordable-smartphone-revolution-in-india

Comments on the Guidelines for Examination of Computer Related Inventions (CRIs)

sinha — 2015-10-27T14:46:24Z

Recently, the Indian Patents Office released the Guidelines for Examination of Computer Related Inventions (“2015 Guidelines/ Guidelines”) in an attempt to clarify examination of software related patents in India. This post is a pure analysis of the 2015 Guidelines. The new Guidelines, essentially, narrow the exclusions of secttion 3(k), thereby enlarging the scope of software related applications eligible for a patent grant. More alarmingly, there is low emphasis on the application of the subject matter test, increased ambiguity on the nature of subject matter and an exclusionary list of examples appended to the document. In the following post, CIS highlights these concerns and presents solutions, and also proposes a definition of "computer programme per se". Read on to understand how the new guidelines will potentially lead to an increase in software patenting activity by expanding the scope of patentable subject matter – in negation of the legislative intent of section 3(k) of the Indian Patents Act, 1970.

(Prepared with comments from Pranesh Prakash)

The 2015 Guidelines were stuck in the pipeline for a long time. The first draft was released in 2013 and a round of public consultation later, it paved the way for the current guidelines. The guidelines exist to supplement the practices and procedures followed by the Patent Office (as prescribed in the Indian 'Manual of Patent Office Practice and Procedure')[1], with the specific objective of ensuring consistent and uniform examination of CRI applications.

To begin with, the Guidelines have been significantly trimmed down from their draft version. CIS had commented on the Draft Guidelines in 2013 and broadly observed/recommended the following:

That the explanation to section 3(k) (Para 2.4) include the subject matter test.
That the Guidelines clarify that section 3(k) intending to exclude “computer programs per se” means excluding computer programs by themselves.
Supplying clarifications to the meaning of Inventive Step

Para 5.3 stated: (ja) "inventive step" means a feature of an invention that involves technical advance as compared to the existing knowledge or having economic significance or both and that makes the invention not obvious to a person skilled in the art;

Ambiguity around the terms “technical advance” and “person skilled in the art” persists.

The Guidelines place CRIs in the same pool as other inventions, to the extent of suggesting that CRIs be evaluated on same standards of novelty, non-obviousness and industrial applicability as other inventions. This is problematic, because CRIs are inventions with features such as obsolence and being largely incremental innovations.
That the guidelines prescribing dictionary meanings for undefined terms (in Indian statutes) – was a dangerous prescription to make because the words “firmware”, “software”, “hardware” and “algorithm” have different meanings in different contexts.
That the guidelines had a misguided sense of ordering the paragraphs. The subject matter test (which should be undertaken first) was mentioned after the narrower test for computer programs per se. To ensure correct examination re CRIs the application of the subject matter test should precede all other patent criterion evaluations.[2]

All the above observations/recommendations still hold true – unfortunately, none of them have been incorporated into the 2015 Guidelines. The few unwanted changes that eventually made their way have nullified the progress the 2013 draft made in terms of providing clarity to section 3(k) and narrowing down the scope of software patents. For instance-

Instead of supplying clarity to terms such as “technical effect”, “technical advancement”, the 2015 Guidelines removethe definition of these terms. However, section 6 lists six questions that must be addressed by the examiner to determine the technical advancement of the invention.
Similarly, the explanation to section 3(k) has been deleted in the 2015 text.
The explanation to “inventive step” made reference to the Enercon case (thereby Windsurfing International Inc. and Pozzoli case), for the determination of inventive step. The explanation has also been discarded in the 2015 Guidelines.
Other changes include providing better definition of Algorithms, making thescope of mathematical model and business method claims under section 3(k) more expansive.

Narrowing down excluded subject matter relating to CRIs

Under the crucial section “Determination of excluded subject matter relating to CRIs” (section 5.4 in the draft Guidelines; section 4.5 in 2015 Guidelines), the 2013 draft deemed inventions consisting of computer programmes combined with general purpose computers as non-patentable. However, a computer programme couple with novel hardware was deemed possibly patentable subject matter. That version stated “5.4.6....In cases where the novelty resides in the device, machine or apparatus and if such devices are claimed in combination with the novel or known computer programmes to make their functionality definitive, the claims to these devices may be considered patentable, if the invention has passed the triple test of novelty, inventive step and industrial applicability. ” In the 2015 Guidelines, however, section 4.5 does not shed substantive light on the matter of patentability of software combined with novel hardware. Instead a new section titled “Determinants” has been introduced:

5. Determinants

5.1 For being considered patentable, the subject matter should involve either

- a novel hardware, or

-a novel hardware with a novel computer programme, or

-a novel computer programme with a known hardware which goes beyond the normal interaction with such hardware and affects a change in the functionality and/or performance of the existing hardware.

A computer program, when running on or loaded into a computer, going beyond the “normal” physical interactions between the software and the hardware on which it is run, and is capable of bringing further technical effect may not be considered as exclusion under these provisions.

And,

6. Indicators to determine technical advancement

6.1 While examining CRI applications, the examiner shall confirm that the claims have the requisite technical advancement. The following questions should be addressed by the examiner while determining the technical advancement of the inventions concerning CRIs:

(i) whether the claimed technical feature has a technical contribution on a process which is carried on outside the computer;

(ii) whether the claimed technical feature operates at the level of the architecture of the computer;

(iii) whether the technical contribution is by way of change in the hardware or the functionality of hardware.

(iv) whether the claimed technical contribution results in the computer being

made to operate in a new way;

(v) in case of a computer programme linked with hardware, whether the programme makes the computer a better computer in the sense of running more efficiently and effectively as a computer;

(vi) whether the change in the hardware or the functionality of hardware amounts to technical advancement.

If answer to ANY of the above questions is in affirmative, the invention may not be considered as exclusion under section 3 (k) of the Patents Act, 1970.

It is evident from section 5 that the Patent Office intends to expand the scope of patentable subject matter, and narrow down applicability of section 3(k). The clause “a novel computer programme with a known hardware which goes beyond the normal interaction with such hardware and affects a change in the functionality and/or performance of the existing hardware.” contributes to the expansion. There is no definition as to what will constitute“...normal interaction with such hardware...” Neither do the Guidelines set a standard for assessment of “normal interaction.” Should “normal interaction” be determined from the definition/perspective supplied by the vendor, or from the known universe of interactions possible from that device?

Further, as a stakeholder (Anand and Anand) in their comments on the 2013 draft pointed out, increasing the threshold to a novel hardware (and not just a general purpose computing machine) would go against the legislative intent as the requirement of a novel hardware was not mentioned anywhere in the Act.

These gaps may pave the path for a rather broad scope of patentable software inventions.

Secondary application of the subject matter test

“...Therefore, if a computer programme is not claimed by “in itself” rather, it has been claimed in such manner so as to establish industrial applicability of the invention and fulfills all other criterion of patentability, the patent should not be denied. In such a scenario, the claims in question shall have to be considered taking in to account whole of the claims. ”

The way 3(k) functions is that it's a subject matter test for what an invention is (with non-inventions excluded, since an application that has not been found to be in order may not be granted a patent
under s.43, and to be 'in order', the application has to be "for an invention" (s.6, s.10, etc.)). The tests for novelty, inventive step, and industrial applicability have to in any case be applied, regardless of the subject matter test. So what the above-quoted sentence does is removes the subject matter test, as it uses "in itself" to mean to the exclusion of patentability tests other than subject matter.

Proposed definition of “computer programme per se”

Further, CIS suggests a definition to "computer programme per se":

"Computer programme per se in the relevant clause means (a) any computer programme in the abstract, (b) any computer programme expressed in source code form, including source code recorded on an information storage medium, or (c) any computer programme that can be executed or executes on a general purpose computer, including computer programme object code designed for execution on a general purpose computer that is recorded on an information storage medium."

Furthermore, since the inclusion of computer programmes in a broader application should not render the application ineligible subject matter, CIS previously proposed an addition to the test:

"We propose a new part to the above test to make the clause clearer. The Manual should specify that “the computer programme portions of any claimed invention should be treated as if it were covered by prior art and patentability should thus be determined with respect to the other features of the invention”. This way, we can ensure that an invention which merely uses or implements a computer programme is not granted patent on the basis of the inventiveness of the computer programme per se."

Issues with illustrative examples

CIS observes that most of the examples provided in the document are things that should *not* be awarded patents as per section 3(k).

8.2 describes a computer programme per se, and awarding a patent to this would (additionally has no novelty, no inventive step)
8.4 describes a computer programme per se. General Purpose Computer. (additionally has no novelty, no inventive step)
8.5 describes a computer programme per se. The "repeaters", etc., are software. General Purpose Computer. (additionally has no novelty, no inventive step)
8.6 describes a computer programme per se. (additionally has no novelty, no inventive step)
8.8 describes a computer programme per se. It can be implemented on any general purpose computer. (additionally has no novelty, no inventive step)
8.1 is a simple algorithm, and forms the basis of parallel processing in a computer, of which a wireless device is a subset. (additionally has no novelty, no inventive step)
8.1, 8.3, 8.7 have no novelty, no inventive step, despite not being computer programmes per se.

This issue was also raised by stakeholders in their comments to the IPO on the 2013 draft.

Conclusion

The 2015 Guidelines have narrowed the exclusions in section 3(k) – which does not bode well for innovation, especially innovation by startup enterprises. The new guidelines will permit a larger scope of applications to be granted, which will lead to bigger players in the market amassing huger patent portfolios. There is also an urgent need for clarification on “ novel hardware”.

On a broader level, CIS has repeatedly argued for discarding patent protection for software inventions, because of the unique nature of such inventions and the repercussions software patenting has on subsequent innovative activity. The 2015 Guidelines disappoint on rolling back and clarifying software patenting in India.

[1]Chapter 08.03.05.10 of the Manual, containing provisions pertaining to section 3(k) of the Patents Act, 1970 shall stand deleted with coming into force of these Guidelines for examination of CRIs.

[2]The flow chart in the 2013 draft guidelines show a step by step process of examining CRIs. However, the subject matter determination is done towards the end. There is debate on whether there should be a set order for examining patents. However, in the case of CRIs there must be an exception as the statute explicitly prohibits certain types of patents (business method, algorithm etc). As argued earlier, in order to reduce transaction costs, the subject matter test must be made at the very beginning. There should at least be a preliminary determination as to Section 3(k) to reject patent applications for those inventions that can easily be classified under this provision.

For more details visit https://cis-india.org/a2k/blogs/comments-on-the-guidelines-for-examination-of-computer-related-inventions-cris

Where is the Regional Comprehensive Economic Partnership Headed?

sinha — 2016-09-17T14:15:05Z

The Regional Comprehensive Economic Partnership (RCEP) – the Asian answer to the Trans-Pacific Partnership (TPP) is still being furiously scripted.

The blog post was originally published in Spicy IP on September 7, 2016. It can be read here.

The US-led TPP and China-led RCEP were always touted as rivals racing to set global trade standards before the conclusion of the other. Well, TPP gunned ahead and is currently in the ratification phase, where as RCEP is yet to be concluded and talks may very well enter 2017. The latest round of RCEP talks ended last month and paints a worrisome picture for the global south, given that it will bring 3.5 billion people and 12% of world trade into its fold.

Free Trade Agreements (FTAs) do not enable zero-sum free trade. In fact, each country leaves with disproportionate gains and losses in their kitty, after the conclusion of the agreement. And the worst casualties are environment, public health, labour rights, SMEs and local markets. Since there is plenty of give and take occurring in a context of fluid foreign policy relations, it becomes imperative to locate the ‘barter’. Last month, Balaji wrote an excellent comparative analysis(I & II) of the RCEP IPR text, and this post complements that. I present a regional overview of negotiations and the impact on course of the agreement, as gathered from press coverage of the meetings and the leaks; and to provide a more wholesome picture of the barters, I discuss other relevant chapters at the end of this post. Further, as the negotiations are conducted in secrecy, different organisations and individuals have ‘leaked’ draft texts. KEI and bilaterals.org are two such organizations that regularly collate and release latest RCEP texts. I rely on RCEP’s IP Chapter(October 15, 2015 version) and Terms of Reference by the Working Group on Electronic Commerce(August 2015 version). Analysing the Telecommunications Services chapter is outside the scope of the post, and I link it here for the interest of our readers.

Impact on E-commerce

What is currently available are the terms for reference establishing the Working Group’s mandate on drafting a chapter on e-commerce. The document acknowledges the need for inclusion of a provision for special and differential treatment, and additional flexibilities to the least developed ASEAN countries. It draws a list of relevant elements for possible inclusion in the RCEP. I reproduce the list here (emphasis supplied is mine):

I. General Provisions

Cooperation
Electronic Supply of Services

II. Trade Faciliation

Paperless Trading
Electronic Signature and Digital Certification

III. Creating a Conducive Environment for Electronic Commerce

Online Consumer Protection
Online Personal Data Protection
Unsolicited Commercial E-mail
Domestic Regulatory Frameworks
Custom Duties
Non-Discriminatory Treatment of Digital Products

IV. Promoting Cross Border Electronic Commerce

Prohibition on Requirements Concerning the Location of Computing Facilities
Prohibition on Requirements Concerning Disclosure of Source Code
Cross- Border Transfer of Information by Electronic Means

While there is no clarity on customs duties, there is a mention of non-discriminatory treatment of digital products. While India has no law on non-discriminatory treatment of digital products, this may conflict with the Indian government’s policy on adoption of open source software for government use.

More alarmingly, the first prohibition restrains governments from mandating data localisation. The Trans-Pacific Partnership (TPP) and Trade in Services Agreement (TISA) also bar governments from making rules on data localisation, i.e. requiring physical situation of servers and storage in their countries’ territories. This is a worrisome provision because it may effectuate surreptitious surveillance. The prohibition on disclosure of source code is also troublesome and is aimed to stop examination and review of code in computing devices. This would effectively ban security researchers from finding security vulnerabilities in devices, and the if the provision is drafted like its counterpart in the TPP, there will also be prohibitions on checks by regulating authorities.

Re ‘Cross- Border Transfer of Information by Electronic Means’, the provision will be most likely drafted to favour big data and advertising companies’ operations enabling unrestricted transfer of personal data(like the TPP). If that is the case, then it will be in conflict with Rule 7 of the Information Technology (Reasonable security practices and sensitive personal data or information) Rules 2011, which permits cross-border flow of personal information only in situations where the recipient of the information complies with Indian data protection standards as a bare minimum.

Impact on farmer's seeds

RCEP is bound to hit farmers the worst: not only are countries reducing tariffs for increased import of agricultural products, there also exists an obligation to join the International Union for Protection of New Varieties of Plants (UPOV system), which would mandate members to introduce a new IPR: the breeders’ right over new plant varieties. Japan and Korea want RCEP members to join UPOV 1991, and Japan has proposed criminal penalties for the infringement of breeders’ rights.

While India has applied to become a member to the UPOV Convention, in 2001 it passed the Protection of Plant Varieties and Farmers’ Rights Act, and thereby built a sui generis system of protection (ambitiously trying to balance breeders’ rights and farmers’ rights). It will be naive to expect a similar attempt in balanced lawmaking by other countries. Furthermore, “…India’s current legislation is less stringent than UPOV 1991. It allows farmers to continue with their seed practices, except they cannot sell packaged seeds of protected varieties. The space for both small farmers and public breeders to freely work with seeds will be lost of RCEP goes the way of what Korea and Japan are proposing.” Using FTAs to reduce farmers’ freedom has been well documented, and you may read more on that here.

The text also desires all RCEP members to codify traditional knowledge and make it available to various patent offices. This push is widely regarded as problematic, as it is feared that documenting and digitization of existing knowledge may propel companies to use that information for commercial gains, to the detriment of the indigenous people and farming communities. On the other hand, it would be feasible to share such data in a confidential manner with patent offices, as India has done under the TKDL.

Massive reduction in tariffs

Tariffs emerged as an enormous sticking point in the August round, and there was pressure on India to eliminate tariffs completely. India proposed a differential tariff reduction plan, but countries kept pushing for a single-tier plan – particularly Japan. Finally, in what is seen as a big loss, India offered tariff cuts as high as 80% goods trade for all RCEP partners, except China. With China, India said that it was only comfortable with a 65% tariff cut initially, given the skewed trade deficit between China and India. It is worth noting that for India, RCEP will become the first FTA to forge trade partnerships with China, Australia,and New Zealand.

As a result of the heavy concession in tariffs, the Kerala Agriculture Minister has moved a cabinet note, and written a letter to the Centre expressing serious concerns on lowering of tariffs for agricultural products. He also requested to include Kerala in the RCEP pre-negotiation talks.

Staving off ISDS

Provisions on investor-to-state dispute settlement (ISDS) are being pushed by Japan and South Korea. Countries are not convinced about agreeing to this, especially India. In fact, India is in the process of rolling back on bilateral investment treaties, and has already moved for BIT termination with 57 countries. We’ve already seen ISDS being (mis)used by private entities against governments – there have been enough challenges to countries’ IPR laws and policies as well.

Mobilised Movements against the RCEP

Individuals and organizations are advocating for scrapping the RCEP, given the impact that it is expected to have on people’s rights and freedoms. A ‘People’s Strategy Meeting’ last month conducted large-scale sessions to inform civil society organizations, NGOs, trade unions, farmers groups and other peoples’ movements in the Asia-pacific region. Many have also been persistently calling out for a meeting with negotiators of their respective countries and for a public hearing on the RCEP. The Asia Pacific Research Network has released a policy brief on the RCEP, and you may read that here.

The road ahead

Looking at the larger picture, it is evident now that neo-FTAs’ focus on trade has descended into attacks on sovereign states’ economic and social policies.

With respect to the RCEP IPR text, India is trying to eliminate TRIPS plus provisions from the text. And after heavy concessions on the tariff front, it will be bargaining for liberalisation in services in the next rounds. India’s aim is to clinch a deal allowing for free-er movement of its workers and professionals. Further, the negotiations are going to proceed quickly now. Members are becoming desperate to lock down the text, and therefore, this year we will see more rounds than the usual scheduled ones. The urgency is driven largely by Japan and Korea – both of which wish to ratify the TPP soon and would like the RCEP to work in tandem.

In another worrisome development, Phillipines, Thailand and Indonesia have met with US trade officials on what they need to do to join the TPP, once it is implemented. These countries are considering making serious changes to their labour, environmental, IP, and other standards. Yesterday, US Prez. Obama arrived in Vietnam for the Asean summit, trying hard to sell the TPP. Japan and Korea are already TPP members, and if ASEAN countries come under TPP’s fold as well, we may see an upping of standards at the RCEP.

India will have to deploy serious negotiating chops at the upcoming rounds if it is remotely hopeful of steering the RCEP standards away from the TPP.

Author’s note: Added the sentence “On the other hand, it would be feasible to share such data in a confidential manner with patent offices, as India has done under the TKDL.”

For more details visit https://cis-india.org/a2k/blogs/spicy-ip-september-7-2016-anubha-sinha-where-is-the-regional-comprehensive-economic-partnership-headed

Why Open Access Has To Look Up For Academic Publishing To Look Up

sinha — 2016-10-12T16:22:10Z

In an important development, the US Federal Trade Commission has filed a complaint against the India-based OMICS group for harassing authors to publish in its journals.

The article was published in the Wire on October 12, 2016.

“…if you are a member of the knowledge elite, then there is free access, but for the rest of the world, not so much … Publisher restrictions do not achieve the objective of enlightenment, but rather the reality of ‘elite-nment.” Lawrence Lessig

In 2011, speaking impassionately to an audience at CERN – one of the world’s largest institutions for nuclear physics research, headquartered in Geneva – Lessig, a professor of law at Harvard Law School and a political activist, highlighted the crisis of access to scientific scholarship. Indeed, over the last six decades, public access to scholarly works has diminished. Works that can be freely searched and read represent only a sliver of the entire wealth of human knowledge.

With the emergence of academic journals in the seventeenth century, the practice of exchanging manuscripts for review and comments became popular, leading to the establishment of the peer-review system. In fact, until the eighteenth century, there existed a strong belief in the intellectual commons and traditions of sharing knowledge between scholars. These traditions dated back to scholarship flourishing in ancient Greece. Open access was the default, and not the exception to the norm.

However, by the nineteenth century, there occurred a game-changing shift in the approach to knowledge production. It was theorised that the commons approach was inefficient and that knowledge needed to be exclusively owned to spur further production. This was in line with the incentive theory of copyright law, which was an added justification to the commoditisation of knowledge. In such circumstances, all scholarly works increasingly came to be fortified within the expensive walls of academic journals. Journals left no stone unturned to capitalise on scholars vying to get published in prestigious titles (Nature, Lancet, Cell, etc.).

The business model rarely rewarded authors or peer reviewers. On the contrary, some journals required authors to pay a considerable fee to publish their work. Subscription charges to such research, a large part of which was funded by the government (i.e. taxpayers), hit the roof and could be afforded only by elite institutions. And with the advent of the digital age, the fortresses moved online.

However, before the internet arrived, there had been efforts to counter the entrenchment of scholarly works. They were mostly in the nature of social movements, located broadly within the philosophical umbrella of openness. The nineties marked a significant increase in the modes of access, through devices connected to the internet. Previously a fringe movement, openness was now entering the realms of publishing, software, standards development, education and data. It manifested in Linux, Wikipedia, open web standards, open educational resources, open government data, Creative Commons and, particularly, open access publishing. Just last month, a UN report called for open access to research to improve public health.

Open access publishing was a breakaway from the traditional scholarly publishing model. It offered a different model of online research publication informed by the principles of transparency, free access and unrestricted access. Three key definitions exist, and the Budapest Open Access Initiative (2002) provides a good overview of it:

There are many degrees and kinds of wider and easier access to this literature. By ‘open access’ to this literature, we mean its free availability on the public internet, permitting any users to read, download, copy, distribute, print, search, or link to the full texts of these articles, crawl them for indexing, pass them as data to software, or use them for any other lawful purpose, without financial, legal, or technical barriers other than those inseparable from gaining access to the internet itself. The only constraint on reproduction and distribution, and the only role for copyright in this domain, should be to give authors control over the integrity of their work and the right to be properly acknowledged and cited.

Further, open access is compatible with copyright, peer review, revenue (even profit), print, preservation, prestige, quality, career-advancement, indexing, and other features and supportive services associated with conventional scholarly literature (as Peter Suber wrote in 2004). The model broadly offers two routes: gold and green. Gold open access involves publication in an open access journal. The journal provides for peer-review, retention of copyright by the author and in most cases requires author-side fees. Green open access involves publishing a work in an online repository, with/without peer-review. The models have several variations, and adoption often depends on their suitability for a particular discipline. Many institutions now have an Open Access Mandate policy.

Latest challenges to open access publishing

For a 15-year-old movement (formally), open access publishing is making a serious dent in the market for scholarly publications. It has emerged as a formidable competitor to the traditional model. How else do you explain the unfortunate acquisition of SSRN – one of the largest online open access repositories – by the largest publisher of academic journals, Elsevier, earlier this year? Where, within a few days of Elsevier gaining control, users began to notice problematic takedowns of articles on SSRN.

The acquisition was a severe blow to open access publishing. To be fair, there remain certain issues intrinsic to open access publishing models that need urgent resolution. For instance, while some open access journals provide high quality services at levels comparable to that of paywalled journals, a large majority has been unable to reach reasonable standards of publication.

Further, as it has emerged lately, many are yet to crack the business model while a few are driven by malicious attempts to con authors. Most commercial open access publishers have resorted to a system of levying from the authors an article-processing charge (APC). These publishers include large players such as the Public Library of Science journals and BioMed Central. APCs are justified as necessary costs for publication. Thus, sometimes they are reasonably applied only to peer-reviewed submissions. However, sometimes they are blatantly misused by publishers who quote exorbitant APCs. As a result, APCs have become a serious concern for the academic community, with the reentry of an undesirable price barrier which has shifted the burden from the reader to the author.

In one noteworthy development, the US Federal Trade Commission (FTC) has filed a complaint against the OMICS group for deceiving authors and misrepresenting its editorial quality. The OMICS group has its roots in Hyderabad and runs a multitude of open access journals. It carried a notorious reputation for soliciting articles profusely, and then holding the articles hostage unless the authors paid hefty fees for their publication. It apparently charged the fees for conducting peer-review, which as this harrowing account of an author reveals, was an utter sham. It also seems that the group targeted unsuspecting scholars from developing countries, where there was a higher concentration of early-career researchers eager to get their works published.

Holding articles hostage and releasing unchecked versions must have already caused irreparable damage to several researchers’ reputations. In this day of web-caching and -indexing facilities, one wonders if the researchers will ever be able to obliterate linkages to their unchecked manuscripts. Further, in the long run, this phenomenon will ruin or suppress promising careers – especially from developing countries. As a result, the present lack of diversity in top-rung academia may not be eliminated for a long time.

Such harmful, predatory practices have not escaped the FTC’s notice, and it has stated that it will pursue cases of similar nature to protect authors and consumers. This is the first time in the world when a governmental authority has taken cognisance of predatory practices in OA publishing. This will hopefully lead to an appropriate cleansing effect of the players in this field, and enhance the credibility of open access journals.

Thus, self-regulation and standard-setting remains an area for improvisation in the open access publishing community. At the cusp of the movement, proposed structures were mired in legal and economic arguments. It is yet to overcome the challenge of economic sustainability and mature into a stable as well as replicable business model. The movement will be celebrating the Open Access Week for the ninth year later this month. It has gifted scholars immeasurably and lent itself to the progress of science and arts. Here’s hoping the community will iron out the remaining challenges to further strengthen the movement soon.

For more details visit https://cis-india.org/openness/the-wire-anubha-sinha-october-12-2016-why-open-access-has-to-look-up-for-academic-publishing-to-look-up

33rd SCCR: Opening Statement by India on behalf of the Asia and the Pacific Group

sinha — 2016-11-14T11:04:27Z

Dr. Sumit Seth(Economic Affairs) of the Permanent Mission of India in Geneva delivered the Opening Statement on behalf of the Asia and the Pacific Group at 33rd Session of the of the Standing Committee on Copyright and Related Rights on 14th November 2016.

Mr. Chair,
India has the honor to deliver the Opening Statement on behalf of the Asia and the Pacific Group in this 33rd Session of the Standing Committee on Copyright and Related Rights.
Asia & the Pacific Group would like to express its confidence in your experience and your leadership skills. We are confident that your hard work and diligence will yield desired results and help this committee reach a mutual understanding on all outstanding issues. Our group would also like to thank the WIPO Secretariat for the preparation of this meeting.

Mr. Chair,
The SCCR is an important committee of WIPO dealing with three issues of critical importance to member states, namely protection of broadcasting organizations; limitations and exceptions for libraries and archives; and limitations and exceptions for educational and research institutions and for persons with other disabilities.
These three issues are of great importance to our group. Going by the discussions in this committee since its 27th session, it would not be wrong to say that we are facing difficulty in finding agreement on how to continue our work on each of the three important agenda items. We believe, in order to further our work, we have to refer to the 2012 General Assembly guidance to the SCCR on the work plan on the three issues.

Mr. Chair,
Our group believes that these issues have not received the equal level of commitment and understanding proportionate to their importance based on the differential socio-economic development of the Member States.
In this spirit of multilateralism, Asia and the Pacific Group reaffirms its commitment to engage constructively in negotiating a mutually acceptable outcome on all three issues before the committee. Our group would like to put on record its support for the proposed program of work.

Mr. Chair,
Determining whether and how intellectual property rights should apply with respect to broadcasting is a developmental issue that requires careful balancing. Members of the group would like to see the finalization of a balanced treaty on the protection of broadcasting organizations, based on the mandate of the 2007 WIPO General Assembly to provide protection on the signal based approach for cablecasting and broadcasting organizations in the traditional sense.

Mr. Chair,
For our Group, exceptions and limitations are of critical importance. Application of copyright system should be balanced, it should take into account commercial interests in copyright and right holders, and equally important, it should also take into account other competing interests in copyright, including the public interest in scientific, cultural, social progress and promoting competition.
Exceptions and limitations have an important role to play in the attainment of the right to education and the access to knowledge, actualization of which in many developing countries is hampered due to lack of access to relevant educational and research material.
However, there is no denying the fact that some divergence on how exceptions and limitations should be approached exists among member states.
It is unfortunate that absence of adequate will to discuss and develop the two exceptions and limitations before this committee has resulted in a stalemate on the work of this committee.
We hope that all member states shall engage constructively in this session on these two issues based on previous discussions and new inputs so that we are able to develop a mature text to discuss and work on

Mr. Chair,
Asia and the Pacific Group has taken note of the proposal submitted by the GRULAC in the 31st session to discuss the current digital environment and copyright interface. Members of my group will make interventions in their national capacity under this agenda item and will proactively participate in the discussion on this contemporary topic.

Mr. Chair,
This is the same committee which has given us the Beijing and the Marrakesh Treaties. My group is optimistic that with the noble intentions and the right will we can pave the path for the development of appropriate international instruments on all three issues.
We look forward to productive results and tangible progress in this session
I thank you once again Mr. Chair for the opportunity.

For more details visit https://cis-india.org/a2k/blogs/33rd-sccr-opening-statement-by-india-on-behalf-of-the-asia-and-the-pacific-group

33rd SCCR: CIS Statement on the GRULAC Proposal for Analysis of Copyright in the Digital Environment

sinha — 2016-11-18T15:28:21Z

Anubha Sinha, attending the 33rd Session of the World Intellectual Property Organization (“WIPO”) Standing Committee on Copyright and Related Rights (“SCCR”) at Geneva from 14 November, 2016 to 19 November, 2016, made this statement on the GRULAC Proposal for Analysis of Copyright in the Digital Environment on behalf of CIS on Day 5, 18 November, 2016.

Thank you, Mr. Chair.

The Centre for Internet and Society is a non-profit organisation in India that undertakes research on internet and digital technologies from an academic and policy perspective.

In an environment of monopolies controlling the distribution of software and digital services, which connect users and developers, such a comprehensive study assumes significant importance.

Such a study/or a parallel study after the scoping exercise must encompass the methods in which such digital corporations are enforcing their own IP rules on creators worldwide, and if there are fair systems in place to address violations, and restoration of works unfairly taken down from their platforms. It must be noted that there is a serious lack of transparency as far as the conduct of such corporations go, and often actions are taken without appropriate justification/explanation. Back in India, I have met several creators who have suffered as a result of such unilateral actions. In this, regard it will be useful to know how creators in developing countries are impacted by rules enforced by platforms largely situated in developed countries, which can help us build a framework for the benefit of all, equally.

I welcome the proposal.

Thank you, Mr. Chairman.

Access the proposal here.

For more details visit https://cis-india.org/a2k/33rd-sccr-cis-statement-on-the-grulac-proposal-for-analysis-of-copyright-in-the-digital-environment

Intellectual Property in Mobile Application Development in India

sinha — 2015-08-31T14:33:06Z

A steady rise in smart phone penetration in India has led to a corresponding growth of the mobile application development industry. Mobile application development like all technological implementations is subject to intellectual property issues. However, very little is understood about the effect of existing patent and copyright law on this niche industry. I aim to develop an understanding of the mobile applications industry, and how it is governed by current Indian patent and copyright regime. I will also use this research to inform the optimal ways in which policymakers may ensure the continual emergence of the mobile applications industry. This blog post lays down a document delineating the research methodology and research questions within the Intellectual Property in Mobile Application Development in India chapter under the Pervasive Technologies Project. The document is a work in progress.

Introduction to the “Intellectual Property in Mobile Application Development” chapter

Software companies in India were traditionally operating on the software as a service (SAAS model). Service contracts signed within this industry ensured that all IPR developed during a project was owned by the client. With the advent of the smart-phone, many software developers left SAAS enterprises in pursuit of developing their own mobile application products (“mobile apps”). Several developers began to aggressively acquire or create patent portfolios around their products.¹ However, it has been observed that mobile apps continue to be increasingly produced in imitation of other products or services or by more discrete means of copying source code or content without the right to do so.

The overall objective of this chapter is to develop a holistic picture of the mobile apps development ecosystem in India in order to portray the decisions developers are making within their practice as a function of how India's intellectual property regime operates within this ecosystem. I will also examine whether existing regimes of intellectual property interact inhibit or accelerate the growth of the mobile applications development ecosystem in India, especially in conjunction with market and cultural forces arising as a result.

Research Questions and Methodology

1. What are the decisions developers are making within their practice in terms of location of their enterprise and clients, scale of audience, funding, business models and mobile apps marketplace (app stores) ?

1.1. Who is the primary actor in the mobile applications development cycle in India?

Method: Analysis of the quantitative research conducted by Samantha Cassar across 267 mobile applications developers.²

Create a new survey instrument and supplement with relevant external expert interviews obtained from Samantha Cassar's qualitative research.

The interviews shall be conducted with respondents based out of Mumbai, Pune and Hyderabad
The exercise targets 10 developers in each city

The analysis of the interviews and results of Samantha's web survey shall be verified by an expert well-versed with the analysis of qualitative and quantitative data

1.2 Is the mobile apps marketplace organically developing into a Bazaar model, or a Cathedral model?

Method: Literature review

1.3. What are the contractual terms between the enterprise and the employee? What is the typical nature of agreements in the mobile apps development industry between enterprise-employee and enterprise- client?

Method: Analysis of the quantitative research conducted by Samantha Cassar and supplement with relevent external expert interviews obtained from her qualitative research.

What is the nature of innovation emerging from the mobile app industry? What is the awareness of the mobile applications developer and its enterprise of rules concerning code, content and design? How does re-use and sharing of code, content and design occur in the mobile application developer ecosystem ? What is the perceived impact of the Indian IPR regime on the aforementioned aspects? Finally, do the emerging trends in re-use and sharing of code run afoul of Indian IP law?

Method: Analysis of Indian Patent and Copyright regime to assess the legality of prevailing practices in the ecosystem.

Analysis of the quantitative research conducted by Samantha Cassar and supplement it with relevant external expert interviews obtained from Samantha's qualitative research.

3. The apps marketplace is extremely important since they are the gatekeepers enabling access to apps. What is the nature of the apps marketplace? What are the limitations associated with it ? How do the existing regulatory models intersect with this relatively new marketplace? What is the enforcement carried out by these app stores in terms of IP?

Method: Literature review and analysis of the new survey instrument.

   4. How does Indian Copyright law and patent law apply to the mobile applications development ecosystem, in respect of the various business models operating in the industry?

       Method: Literature review

4.1. The patent regime is grounded on a laboratory model of innovation. What does the niche mobile applications development industry (working on a micro-creativity model of innovation) require differently from the patent regime to foster growth?

Method: Literature review

4.2. Similarly, copyright law has a distinct design for digital objects. Examine the design and its suitability to regulate a mobile application.

Method: Literature review to trace the development of copyright law. Copyright was designed to regulate a physical book publishing industry. By extending its application to myriad objects, the design has gone through significant changes. Also, conduct expert interviews in the field to understand the practice and gather qualitative data.

1 See Lava aims for 100 mobile apps, available at http://spicyip.com/2013/01/guest-post-lava-aims-for-100-mobile-app.html

2 Out of 267 respondents, 93 responded in full and 164 responded partially

3See Question 1.2 of this document

For more details visit https://cis-india.org/a2k/blogs/intellectual-property-in-mobile-application-development-in-india-1

Standing Committee's recommendations are at odds with Access to Knowledge

sinha — 2021-07-28T09:31:53Z

The Indian Parliamentary Committee's report weighs on several aspects of the Indian IPR system and issues of protection and enforcement. This blog post summarily notes the observations and recommendations of the Committee on the Copyright Act, 1957 which stand to impact access to knowledge. The primary issue dealt with was the claim that copyright exceptions were affecting the publishing industry and authors. The recommendations include narrowing of copyright exceptions, barring digital storage and copying, promotion of libraries, and adopting the Berne Convention as the benchmark on limitations and exceptions.

Last week, the Rajya Sabha Parliamentary Standing Committee on Commerce (Committee) tabled its review of the IPR regime in India. The Committee had initiated work in October, 2020, and during the process consulted with law firms, industry associations, and government departments.

The Committee agreed with the contention of the stakeholders that limitations and exceptions contained in section 52(1) of the Copyright Act, 1957 were having a detrimental impact on the publishing industry and authors. In addition, the Department of Promotion of Industry and Internal Trade (DPIIT) also presented its “corrective measures” to narrow down section 52(1)(i) of the Copyright Act – the copyright exception that had been the bone of contention in the DU photocopying case. They included 1) permitting only the making of print copies of literary works which are available in libraries at government-owned educational institutions, to “avoid any commercial gains from the work of publishers”; 2) quantitatively restricting the reproduction (in cases of books) to ten percent of the total number of pages of the book; and alarmingly also 3) barring the storage of material in the form of scanned or digital formats.

The Committee further expressed its concerns about the conflict between copyright holders and educational institutions caused by section 52(1) of the Act. Section 52(1) is the provision that contains limitations and exceptions. The Committee suggested that the protection of books and works be balanced against public accessibility of works at an affordable rate. In its recommendation, it directed the DPIIT to amend section 52(1) to ‘facilitate’ a fair and equitable ecosystem of literary culture. The measures suggested are:

Permitting the copying of works only in government-owned educational institutions and storing it in libraries for easy access to students;
Imposing limitations on unrestricted copying of books and literary works and storage of copied works in digital formats;
Promotion of establishing of community libraries and upgrading existing libraries in the country for easy access to works of foreign publishers which are exorbitantly priced and difficult to access;
National Mission on Library, a venture of Central Government to strengthen the library system, should be implemented at the earliest;
DPIIT to undertake a study of the Berne Convention to inform the copyright regime, and the Berne Convention should be referred to in matters of limitations and exceptions in the country.

Separately, the report also makes certain recommendations in respect of registration of copyright societies and treating internet/ digital streaming platforms as broadcasters for purposes of section 31D license.

The recommendations to narrow copyright exceptions and limit digital uses of works are very concerning. It appears that the recommendations shift the financial burden of ensuring access to educational material on public libraries, yet at the same time, restrict the permissible uses of works in libraries.

Since 2020, both government and Parliament have conducted separate consultations on the IPR regime without hearing all stakeholders. In the case of the consultation exercise initiated by DPIIT, details still have not been made public. In the Parliament’s case, it is concerning that key stakeholders and beneficiaries on education and research such as institutions, libraries, teachers, researchers etc. have not been consulted. Neither the substantive part nor the minutes discuss any research or evidence on the issues. As noted by Prof. Scaria, this is hardly a balanced exercise and the report is nowhere close to the level of rigor and depth expected from a Parliamentary Standing Committee.

For more details visit https://cis-india.org/a2k/blogs/standing-committees-recommendations-are-at-odds-with-access-to-knowledge

34th SCCR: CIS Statement on the Proposal for Analysis of Copyright Related to the Digital Environment

sinha — 2017-05-15T10:42:28Z

Anubha Sinha, attending the 34th Session of the World Intellectual Property Organization (“WIPO”) Standing Committee on Copyright and Related Rights (“SCCR”) at Geneva from 1 May, 2017 to 5 May, 2017, made this statement during the discussion on the Proposal for Analysis of Copyright Related to the Digital Environment.

Thank you Mr. Chair.

On behalf of CIS, it is my submission that the study can additionally focus on all the key actors along the entire supply and value chain involved in content dissemination in the digital environment, complementing the study of the legal environments. This would shed considerable light on national legal frameworks and also provide us evidence of transparency, or the lack thereof in the businesses involved and the extent of low proportions of copyright and related rights payment to the creators and their unfair treatment.

Thank you.

For more details visit https://cis-india.org/a2k/blogs/34th-sccr-cis-statement-on-the-proposal-for-analysis-of-copyright-related-to-the-digital-environment

34th SCCR: A Summary Report

sinha — 2017-05-30T13:55:22Z

The 34th session of the Standing Committee on Copyright and Related Rights (SCCR) was held from 1st- 5th May 2017 at Geneva, Switzerland. Anubha Sinha attended the session and provides an update on the status of discussions and noteworthy emerging/unsolved debates in the Committee.

Agenda items at this SCCR included 1) Reaching consensus on text of Broadcasting Treaty 2) Discussion on limitations and exceptions for libraries and archives, and educational and research institutions and persons with other disabilities 3) Discussion on artist's resale right 4) Discussion on proposal for analysis of copyright related to the digital environment. The Asia-Pacific group was represented by the Indonesian delegation - a break from Indian leadership. In comparison to previous SCCRs, the Indian delegation was less vocal, especially reflected in negotiations around the Broadcasting treaty.

Broadcasting Treaty

The delegations and secretariat (headed by newly appointed Chair, Darren Tang) began discussions in the earnest, keen on presenting a consensus to the UN General Assembly. Two days were spent in hammering out a feeble consensus on Consolidated text on Definitions, Object of Protection, Rights to be Granted and Other Issues. This was done entirely in the informals.[1] There was a high degree of divergence between positions, so much that the draft text ended up with additional language even on issues that had achieved a certain degree of stability. The most intractable issue emerged to be the definition (and inclusion) of deferred transmission.

Observers were not offered an opportunity to present statements, which was alarmingly unfortunate. Delegations are expected to mull over the fresh additions/modifications back home, and will again attempt to streamline the text at the next SCCR (November, 2017).

Limitations and Exceptions on Libraries and Archives

The Committee has been trying to come up with a legally binding instrument on this agenda. No draft text exists, only an informal chart on limitations and exceptions (prepared by the Chair) was used as a framework for discussions.

While African, Asia-Pacific, GRULAC, China and were keen on constructively moving towards a legally binding treaty, other groups/countries were less so.

The Central Europe and Baltic group (CEBS group) expressed that the agenda was best left for member states to legislate at the domestic level; they were willing to go only as far as "exchanging best practices" at this forum and adopting alternative approaches. Anything but a legally binding instrument, basically. EU, similarly positioned, suggested that the Committee should rather explore how existing limitations and exceptions under international treaties could function efficiently.

Argentina pointed out that issues such as cross-border works could not be addressed by the states themselves. Further, Russia said that existing treaties (Berne Convention, Rome Convention, WIPO Internet treaties) did not allow the introduction of the desired limitations and exceptions; and that it would be useful to merge limitations and exceptions on libraries and archives, and research and educational institutions.

Finally, Chile and Nigeria suggested that the Chair's informal chart could perhaps be adopted by the Committee as a working document, which was not met with much enthusiasm. Most states appreciated Dr. Crews' study and indicated that an update on the work would be useful for the Committee.

Limitations and Exceptions on Educational and Research Institutions and for Persons with other Disabilities

Professor Blake Reid and Professor Caroline Ncube and team made a presentation on their scoping study on limitations and exceptions for persons with disabilities (Link here). On the issue of limitations and exceptions for educational and research institutions the delegations looked forward to Prof. Daniel Seng's final study (in a future session). Rest of the discussion was split in a similar fashion as the previous session on libraries and archives.

Notably, the Indian delegation supported the discussions on limitations and exceptions with a view to produce an international instrument.

Artists Resale Right

The discussion around this agenda is in a preliminary stage and Dr. Graddy (Economist, Brandeis International Business School) presented an overview of the same basis a consultation with experts and stakeholders. Artists resale rights provide an artist with the right to receive a royalty based on the resale of an original work of art. Theoretically, resale rights may hurt market competition as they could potentially prompt buyers and sellers to transact in other countries which do not provision for resale royalties, to avoid bearing the cost. Further, buyers may potentially pay less as they may have to pay up when they sell next - as a result the resale right could hurt younger artists more than the older ones. However, a 2008 study of the UK market after the introduction of this resale right revealed no such adverse effects. Dr. Graddy attributed this to the fact that resale royalties were limited to 2% of the sales price or a ceiling of (~500 eur), and in comparison to the auctioneer's commission (15-20%) were not a major cost in the entire transaction.

This proposal was moved by Senegal and Congo (in a previous session), and has been strongly supported by African nations. Most observers were in support as well. Further, resale rights already exist in the European Union and certain other states. USA was vocal about not endorsing a normative instrument on this topic.

Discussion on Proposal for Analysis of Copyright related to the Digital Environment

This proposal, tabled by GRULAC (at a previous session) stressed on the importance of transparency in remuneration for performers in the digital environment. Several delegations commented on the wide breadth of the proposal and suggested it be narrowed down. USA made a distinction between copyright policy, and marketplace issues such as remuneration of artists and performers and bargaining power - making it clear that the SCCR should touch upon the former only. A presentation of a study-in-progress followed. The study will examine the national copyright laws relating to digital technology including limitations and exceptions (passed in the last decade or so), and how they govern intermediaries. The final study will be presented in the next session.

CIS' Participation

I made statements on agenda item limitations and exceptions for libraries and archives, and GRULAC proposal for analysis of copyright related to the digital environment.

In addition, I participated in a panel discussion on Fixing Copyright for Education alongside Chichi Umesi, First Secretary, Mission Of Nigeria to the United Nations in Geneva; Sean Flynn, PIJIP; Teresa Nobre, Communia; and Delia Browne, Creative Commons Australia / Director, National Copyright Unit (Schools and TAFEs) Australia. The panel covered obstacles to educational uses of works in Europe and the need for opening up related user rights, the ongoing Australian copyright reform debate and the recent interpretation by Indian courts of the reproduction exception for educational purposes in the DU photocopying case (Link to panel discussion material here).

Observer Statements:

A summary by the Chair is available here.

[1] Informals are a different kind of negotiation-setting than the plenary and happen privately between delegates and the chair. Observers are provided with an audio feed of the discussion but cannot report anything that is said.

For more details visit https://cis-india.org/a2k/blogs/34th-sccr-a-summary-report

34th SCCR: Observer Statements on Limitations and Exceptions for Libraries and Archives

sinha — 2017-05-30T05:55:43Z

Observers made the following statements on the agenda of limitations and exceptions for libraries and archives on 3rd May 2017.

International Federation of Library Associations and Institutions (IFLA):
Thank you, Mr. Chair. We congratulate you as leaders of body and looks forward to working with you to achieve the goals of the in the interests of the national copyright system. We thank the Secretariat for their hard work and IFLA is proud to have attended sessions of the SCCR for many years and gratified that Member States understand and support the role of libraries, archives and museums in promoting knowledge and the understanding of diverse cultures.

As the U.S. states and its principles document SCCR/26/8, exceptions and limitations facilitate the public service role of libraries and are executives maintaining the balance between the rights of authors and larger public interest, particularly education, research, and access to information that is essential in today's society. But that balance has eroded over time as rights holders have promoted fell ashes notion that copyright is primarily or only about protection of rights not the public good. In a world where information is increasingly borderless, as borderless as broadcast signals, the idea that issues related to access to information are local as one delegate astonishingly stated earlier this week is really incomprehensible and misguided. This is not to say, however, that local or national action is not needed as one element in the equation of access to information. In this limited sense, we agree that the exchange of national experiences in this body over the past several years has been helpful as have been the studies commissioned by WIPO from Professor Kenneth Crews which demonstrated the wide variation in exceptions and limitations existing in SCCR's Member States, including their absence in numerous countries. We applaud WIPO for commissioning these studies and urge that the Secretariat build on the studies produced by professor cruise to develop a regularly updated searchable database of exceptions and limitations for libraries, archives and museums to be accessible across borders so that legislators and citizens who do not attend these sessions can easily learn from other's experience on an ongoing basis. We further recommend that SCCR capitalize on the past sharing of Member States' national experiences and the suggested approaches in the Chair's chart of SCCR/33 by creating a draft law on exceptions and limitations for libraries, archives and museums in collaboration with all stakeholders so that there will be practical outcomes for recent discussions in this body. Such a draft law would draw on the committee's past discussions on the subject but not be binding or prejudice in any way the outcome of the committee's own work. IFLA stands ready to work with its colleagues in the archival and museum communities as well as with rights holders delegates to SCCR and the Secretariat to achieve this objective. As for our recommendations or reactions to the Chair's final chart from SCCR/33, IFLA supports this and we urge the Chair's chart be upped as a working document and certainly to the qua as an outcome of SCCR35. Finally in response to the proposal by the Delegation of Argentina, SCCR/33/4, we hope that the committee will request the Secretariat to prepare a study on issues related to limitations and exceptions for libraries, archives and museums and a cross-border context including digital uses. We are grateful to the Member States that have placed and maintained limitations and exceptions for libraries and archives on the SCCR agenda and look forward to continuing these discussions. These outcomes will affect access to information and knowledge for people throughout the world. Thank you, Mr. Chair.

Society of American Archivists:
Thank you, Mr. Chair, I will try to be brief. The Society of American Archivists, North America's largest professional archival organisation looks forward to working with you and your Vice Chairs. Our members manage billions of primary source works from across the global. SAA believes in the importance of WIPO's work because copyright is central to the mission of archivists. Archivists collect and preserve all types of creative works for one reason only, use. Most archived works, however, have never been in commerce, but people globally need them to maintain their culture, identity, protect Human Rights and support innovation through new creative works. If such works cannot be made available digitally, however, and across borders, they might as well not exist. Archivists and librarians are conscientious about copyright, but sometimes strict adherence to the law conflicts with our collections and our mission. For example, a 1970's collection of over 120 interviews of legendary jazz musicians are available for on site study in the archives of the U.S. research library, but, their general usefulness has been hobbled by unbalanced copyright law because the original copyright assignment mentioned neither derivative works nor the yet to be invented Internet. As a result, risk averse librarians and lawyers were unwilling to allow zing tall accessibility of the interviews. Although jazz cannot thrive without taking risks, an archivist's obligation to the future requires that we minimize risk. That's why we need reasonable exceptions to deal with the streams ambiguity inherent in our collections. Copyright is already perceived to be under attack. Can WIPO afford to torn away allies such as archivists? We have a very positive public approval rating from the very people that you need to reach. To keep archivists on board the development of exceptions for archives must remain on SCCR's agenda. To this end the committee's work should continue based on the previous Chair's chart and that chart should become a working document for the committee. Thank you.

Centre for Internet and Society:
Thank you, Mr. Chair. CIS works on issues of access to knowledge and other digital rights in India. I would like to share with you my experience which highlights the difficulty of building digital archives in India. Mr. Chair, earlier last year the government of India embarked upon the important project of digitizing the cultural audiovisual material stored in government and private collections to store material for preservation purposes, and set up a virtual network of these repositories to offer online access. My organization has been assisting them in this crucial public service mission. These works are oral traditions, dance, music, theatrical practices, cultural practices – all of which lie largely inaccessible and languishing in several small and large collections in India. Since, the Indian copyright Act does not contain an exception for the purposes of preservation by an archive; the entire project has suffered high costs in terms of money and time. Money, because the project had to get expensive legal assistance to set up processes to obtain rights clearance from all the performers who were a part of the works and copyright holders- some of which are orphan works, thereby compounding the problem. Further, partnering organizations also expressed legitimate fears of supplying their works, in case of a potential copyright and related rights violation that could implicate them with civil/criminal liability.

In such a scenario, for the benefit of other states to update their standards corresponding to this international legal instrument as well, it would indeed be useful to adopt the proposals mentioned in the document SCCR/26/3 that address these issues, and others. Thank you.

International Council of Archives:
Thank you very much, Mr. Chair. And the ICA congratulates you on your election and that of your Vice Chairs and we look forward to working with you. Archival institutions exist throughout the world. Governments, organisations and individuals create records to provide evidence of their actions to document their rights and obligations and to preserve their heritage. Archives acquire and preserve these documents and make them available for all to use as the raw materials for cultural, academic, social and scientific research. The nature of archival material presents a particular problem. Archives hold billions of copyright works that were not created or intended for commercial purposes. Because they were never published, the rights holders for such works cannot be located. For these reasons, collective licensing is not a workable solution. The archival mission to make their holdings available for research is ham strung by a web of inconsistent copyright laws that have failed to keep up with social and technological development. In this body systemic discussion of the eleven topics, archivists provided a rich array of real life examples that clearly demonstrate the need for exceptions, for mutual recognition by Member States of exceptions and limitations to copyright that would permit archives everywhere to serve an international audience. The results of that excellent work was summarized in the Chair's informal chart on limitations, exceptions for libraries and archives. Every creator benefits from the work of his or her predecessors. Knowledge of that earlier work comes largely from libraries and archives. Many of the rights holders represented in this room could not have created their works without us. Why would creators not wholeheartedly support exceptions for archives and libraries that would only benefit their work. Regrettably, we continue to hear assertions from some groups that national solutions are suffer. It should be abundantly clear by now that national solutions are far from sufficient. We need solutions that apply in a global network environment. And in that regard, Mr. Chair, the Chair's informal chart on limitations and exceptions for libraries and archives prepared at the end of SCCR33 refined and clarified the topics to be addressed and provides a practical approach to continue to move this initiative forward. We would support our IFLA colleagues called to have it adopted as a working document of the committee, and we would also support IFLA's call for a study of cross-border issues. Thank you, Mr. Chairperson.

German Library Association:
I congratulate you on your election as a Chair and I speak on behalf of German Library Association representing 10,000 libraries in Germany. Libraries and archives face a problem. There is a high level of the international copyright protection, on the other hand, there is no such uniformity in limitations. Limitations like the ones fixed in the already mentioned Chair's informal chart, for example, for preservation, lending, document delivery, are the basis of library services. But limitations and exceptions are like a patchwork of different national legislations. For every library service crossing borders that means to act legally library staff has to know about the limitations and exceptions not only in their own country, country of origin but also in the country of destination of that service. Respective to the German library index and university libraries in 2016 around 60% of the acquisitions were electronic in technical universities the portion of electronic acquisitions is even much higher. These numbers in international comparison are even low. We can assert that research libraries are digital more than they are paper based. In the electronic world, the problem is resources usually are only available after agreement on license stipulations formulated by the rights holders mostly. That means contracts are concluded. Contracts eventually can override the limitations and exceptions. This committee might agree on in one form or the other. The objective of facilitating cross-border library teaching and research services could be achieved by introducing an international mandatory instrument on limitations and exceptions. Another track to facilitate cross-border use could be the introduction of principles of harmonizations combined with a rule of mutual recognitions like proposed in the document of the Delegation of Argentina. Thank you, Mr. Chairman.

International Federation of Journalists:
The International Federation of Journalists congratulates, again, the Chair and Vice Chairs on their election and the members of the Secretariat for their diligent work. We represent about 600,000 journalists in 140 countries worldwide north and south. The International Federation of Journalists, of course, understands ts essential role of libraries and archives specifically we fully support them having the freedom to have copies for preservation. The International Federation of Journalists has repeatedly called for libraries and archives to have proper direct funding to do this themselves and not to be forced to subcontract digital archiving to commercial operations. The honorable representative of Brazil referred earlier this morning to the potential to extend the outreach of libraries and archives in unprecedents ways.. Of course, this, the making of works available on the Internet, for example, and on its successes is an important supplement to the vital role of libraries and archives in the education and training of many including journalists. But when it comes to libraries and are executives making copies of works available off the premises, that is is it not, a publishing operation? The International Federation of Journalists believes that the solution to this issue is collective licensing and necessarily capacity building to insure that efficient Democratically controlled collective licensing is available in all Member States and can deal with cross-border issues as the collective licenses that already exist already do. Many of those 600,000 journalists particularly those who focus on international reporting are poorly paid. Where there is such collective licensing it makes important contribution to their economic survival as independent professionals with their own essential contribution to make to the recording and preservation of our culture from within our cultures and not relying on foreign reporting. Thank you.

Knowledge Ecology International:
Thank you, Mr. Chairman and congratulations for your election. And for your Co-Chairs'. One thing I just wanted to mention as related to libraries is in addition to the excellent studies that have been done by Kenneth Crews and other people that have looked at library exceptions, I thought it might be interesting to have the chief economist or other people involved, but certainly the chief economist to look at the economics of the library industry. I think that we look at libraries as part of the research and development infrastructure for a country, not only as places people go to read novels, but an essential part of the competitiveness and ability for a country to have a strong high tech sector but also play an important role in the development. And it would be interesting to know what the assessment is because we hear it from other industries all of the time. They talk about the number of jobs in the film industry or the number of jobs. It would be interesting to know how many people are employed in different countries in the library sector, but also what contributions the library sector makes to the economic development of the country, and what challenges they face on pricing. The last point I wanted to make is that clearly there is a set of issues that it's really hard to reach on census on, and there is other areas where it's easier, I would think, to reach consensus on. This discussion of the archiving and the preservation of documents is a pretty good case. Certainly the making available of what's put into, what's archived and preserved in terms of documents, it's more challenging to reach consensus on that than it is to insure that people have adequate exceptions to merely do archiving and preservations. And I think that it would be unfortunate if in looking at their wide range of issues that are facing libraries, recognizing that there is a very inadequate set of exceptions in many countries according to the studies that have already been done, that people don't move forward in areas where consensus could be reached such as preservation and archiving because there are other areas that are more controversial. Thank you.

Electronic Information for Libraries:
Thank you, Chairman. I'm speaking on behalf of the Electronic Information for Libraries and I would like to thank you for giving me the floor and congratulate you upon your election to Chair this committee. I would also like to congratulate your Vice Chairs. We would like to thank the African Group, GRULAC, Asia-Pacific Group and the other delegates for having spoken of the interrelationship between the Sustainable Development Goals and the establishment of access to libraries and archives because emphasis is placed on access to information. Ladies and gentlemen, the Internet is global, but legislation on copyright stops at borders and that is why we are here today. Digital technology has changed the world, which people have access to information. Today the way we study and learn in fact means that people do not have full access. We believe that copyright is important, and that limitations and exceptions are crucial for a modern information infrastructure as well as for open access and other licensin wills. We are very pleased that other countries have modified proposals on copyright.. We are pleased that some countries have expanded their exceptions or introduced new ones. However, some countries who are updating their law are not enough to resolve a broader problem, the demand for cross-border access to information for research and culture. And the need to insure that nobody is left behind in access to knowledge means that there is say need for this aspect to be taken into account. There are specific issues which were compiled in a document and submitted to this committee and I would like to invite you to read it. There are printed copies available, but it can also be found on line. It begins with the Internet is global. We also support IFLA's and ICAS interventions and we hope that progress will be made swiftly in the SCCR in this issue. We thank you very much for your attention.

International Council of museums (ICOM):
Thank you, Mr. Chair, for this opportunity to address this important agenda item.. The international Council of museums represents important 36,000 museum professionals world wide. We are here, Mr. Chair, to give our voice to museum professionals for this important agenda item. After consultation with the international museum community and in keeping with the results of the WIPO study on exceptions and limitations on copyright for museums ICOM joined forces with our library and archive colleagues to pursue exceptions to copyright for the benefit of libraries, archives and museums as enumerated in the Chair's informal chart that provide for exceptions for all three. This pursuit is not intended to disrupt markets, but instead is targeted to instances where museums and indeed libraries and archives are unable to carry out their often shared mission. ICOM was very pleased that the Canadian delegation called for a museum study in 2013 while at the 26th session of the Standing Committee on copyright and related rights. The study on exceptions first draft was distributed and presented at the 30th session of the SCCR in 2015. The study distributed business WIPO provides a broad basis of understanding of the status of exceptions for museums within WIPO Member States and provides for the basis for ICOM's continued advocacy of exceptions for museums. The purpose of our intervention today is to signal that ICOM is committed to the belief that a harmonized approach towards libraries, archives and museums is both possible and necessary to achieve the overall objective of obtaining operational exceptions for materials and cultural heritage collections at the international level. [..] there are many instances where museums, libraries and archives cross mandates given the nature of distinctive collections. Libraries hold collections that include artifacts more traditionally aligned with museum collections or have accessioned collections that include unpublished materials often found in archives. Museums hold archival collections, have libraries within museums, and include study collections as part of their overall collections. Museums like archives nay oftentimes include a vast array of artifacts in their collections and include materials that have often been published and unpublished. At the same time, libraries, archives and museums face the same obstacles created by copyright law in trying to fulfill their respective missions being education, public interest, access to collections and communication of scholarship. This is particularly true when museums are examined not simply as stewards of art collections but as stewards of historic scientific and natural collections as well. The similarities are in fact magnified when we examine the collections we face with our 20th century collections. Museums, libraries and archives face similar challenges in preserving, exhibiting and providing access and communicating about art collections. Thank you, Mr. Chair for the opportunity to address this important issue.

European Bureau of library, information and documentation associations:
Mr. Chair, we congratulate you and the Vice Chairs on your elections to office, and thank you for inviting the European Bureau of library information and documentation associations which is the voice of libraries in Europe to take the floor. The consolidated libraries and archives studies in the SCCR30 and the museum study both from 2015 reveal that the national frontier-based approach to copyright with regard to libraries, archives and museums now in disarray, too disparate and stuck in the pre-Internet era. In the E.U. this has been the justification of proposal of mandatory cross-border exceptions to copyright. Yet in face of the ever expanding world wide web. National copyright laws are in need of constant modernization to allow institutions to function optimally in an international cross-border online environment. Now that the detailed discussion of the topic has been summarized by the previous Chair's SCCR/33 document. We offer practical suggestions for moving forward. First, we suggest that this committee establishes the principles to inclusion in the note for overarching international copyright framework for copyright exceptions and limitations affecting libraries, archives and museums. The proposals made by the US delegation in 26/8 offer useful guidance that can shape the content of the committee's work. A comprehensive and effective solution for libraries should set standard for and protect national copyright exceptions that impact on the functions of these institutions, including preservation of materials and content, copying for document delivery in any format including cross-borders. Lending of works including remotely. Protecting limitations and exceptions for override by contract terms and by holding partially inaccessible can due to legal protections of TPMs. Making orphan works available on line to the public, text and data mining of legally accessed coven tent. Acquiring work including by importation and protecting libraries, archives and museums and staff accounting for them in good faith for criminal or civil liability for unintended copyright infringement. There are various ways in which the committee can support work. And could be usefully adopted by this committee. Secondly, in line with the EU's call for guidance to Member States, we would welcome efforts from the Secretariat to further inform our discussions. In line with the Poe proposal from Argentina which correctly addresses the need for minimum set of exceptions and limitations nationally and the solution for cross-border issues this what the E.U. itself is seeking to do domestically. We would welcome a study on cross-border issue as a basis for further discussion. In order to provide further guidance to Member States, this committee could request the Secretariat to convene an expert group first and foremost of library archive and museum copyright experts as well as copyright academics, lawyers and relevant stakeholders to support the commissioning and tasking of an agreed expert to develop modern WIPO draft law for libraries, archives and museums. Finally this committee might wish to request that the Secretariat provides a useful tool to assist its work by creating online publicly accessible database of copyright exceptions and limitations. Additionally since the pace of change in copyright law affecting the library, archive and museum sector is to fast moving the committee might request an annual report from the Secretariat of changes to nationals and practices in copyright and related rights. Thank you for your attention.

Innovarte Corporacion:
Thank you very much, Chairman. We would like to congratulate you upon your election. We would like to thank the excellent work on studies on libraries and archives. The proposal to work with the aim of a treaty on exceptions and limitations to copyright to protect the balance and legitimacy of the system for copyright and related rights with regard to libraries and people with disabilities is something we have been discussing in this committee since 2004 starting from a proposal which came from Chile. As discussions of the Marrakesh Treaty has shown that provisions on copyright to protect categories of people who are threatened or under mined by a lack of exceptions is not only possible but good and it shows a means to protect libraries, archives and possibly also museums. In this regard, we would like to request the members of the committee in good faith to consolidate all of the work done based on the text which has already been considered, the informal summary of the Chair of the committee as we have seen it's based on textual proposals either for treaty or another form of instrument which was proposed by various delegations including Brazil, India, the United States and many others. We propose that the committee would adopt this text without any prejudice to what form the work might take in the future. We believe on another point that the proposal from Argentina is particularly useful since it seeks to come up with a solution to the obstacle, namely, the lack of harmonization of rules on libraries and archives at international level. We believe it is a compliment to what has already been worked on by the committee with regard to principles and topics which are necessary for exceptions other than a national level. It should be subject to greater analysis by this committee, thank you very much.

Electronic Frontier Foundation:
Thank you Mr. Chair. The EFF work supports the work of libraries and archives which have become more relevant in the digital age and which are more challenging now. The updating of exceptions and limitations are an important way to insure that libraries and archives are equipped to meet these two challenges of fulfilling missions in the digital age. In an ideal world EFF sees norm setting as the only way to ensure that WIPO members provide a basic level of modernized limitations and exceptions for libraries, however, we recognize that members do not have the appetite for norm setting in this area at this point in time for various reasons. In that light, we do support the proposal IFLA has made for a draft law and searchable database on library limitations and exceptions. This strikes us as a workable compromise that does not commit members to hard norm setting but which would be a useful interim step towards the harmonization of limitations and exceptions for libraries worldwide. Finally and on a different topic, I would like to express EFF's hope that in the next SCCR session time will also be made available for NGOs to make statements about the broadcast treaty. Thank you very much.

Note: Source of the statement texts are WIPO's realtime transcription service.

For more details visit https://cis-india.org/a2k/blogs/34th-sccr-observer-statements-on-limitations-and-exceptions-for-libraries-and-archives