Centre for Internet and Society

Calling Out the BSA on Its BS

pranesh — 2011-09-14T18:16:51Z

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

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

How IDC thinks tax works

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

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

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

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

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

How tax actually works

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

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

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

Increasing tax: Make MNC software companies pay full taxes

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

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

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

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

Final idiocies, and conclusion

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

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

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

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

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

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

Photocopying the past

sunil — 2011-09-25T20:06:50Z

There is no single correct position when it comes to intellectual property or IP. In fact, there are at least five correct positions that you could possibly adopt based on who you are — a pro-creator position, a pro-entrepreneur position, a pro-government position, a pro-consumer position and a public interest position.

Therefore, before you progress any further, dear reader, you have to first decide which of the above you are. If you are an average Indian, then you are almost certainly a consumer or a member of the general public. Next, it would only be fair for me to tell you when I am coming from: I work for a policy research organisation that focuses on protecting consumer and public interest in the digital era. Before I proceed any further, also note that not all creators prefer profits to public adulation and therefore creators’ interests are not necessarily always opposed to consumer and public interest.

At this point, popular imagination is captivated by meta-regulation, issues of corruption and transparency. Few seem interested in the configuration details of property regimes that we are all implicated in: tangible property, capital and, in our increasingly dematerialised world, intangible property such as IP or spectrum. Unfortunately the complications of spectrum, banking and IP make our eyes glaze over and there is almost zero attention being paid to the copyright act amendment to be discussed in Parliament this week.

For the government, achieving a compromise is the primary objective, and then, perhaps a distant second, raising taxes. This is not a static compromise, since each generation of new technologies precipitates a new round of negotiations between the stakeholders. So while it is easy to be Anna Hazare, it is difficult to be Kapil Sibal. An optimal compromise position as in the world of capital and tangible property protects the production, circulation and consumption of IP. A sub-optimal position results in practices that are in conflict with policy — anti-competitive behaviour or infringement.

Unfortunately when it comes to evidence-based policy-making, there is little funding for public interest IP research in India and the pockets of the lobbyists of rights-holders are deep. The funded research that they tout claims that government loses significant taxes because of piracy or non-maximalist IP policies. Yet rights-holders, especially multinationals in the software business, are experts at tax avoidance through techniques with names like the “Double Irish” and the “Dutch Sandwich”.

Like any compromise, the latest amendment is a mixed bag for consumers and the general public. With regard to “digital rights management,” — or what consumers’ advocates refer to as “digital restrictions management” — the government has yielded to the TRIPS-plus agenda even though it is not a signatory to the WIPO Internet treaties. And with regard to the exception for the disabled, the Indian exception is both disability- and works-neutral making it much more robust when compared to the treaty for the visually impaired currently being discussed at the WIPO.

However, one particular compromise — the volte-face on Section 2 (m) on parallel imports of books — is particularly distressing for book-lovers and students. As part of the latest amendment, this new section was introduced in 2009. The standing committee report gave the section a thumbs-up, but strangely it has gone missing in the latest version of the bill circulated to the MPs in preparation for the Rajya Sabha debate this Friday.

Section 2 (m) is a provision that would have saved us from the uncertainty created by what some consider flawed jurisprudence around parallel importation of copyrighted works. As the standing committee report on the copyright amendment puts it, “nobody can deny the fact that the interests of students will be best protected if they have access to the latest editions of the books.” To date, I have never met an IIT or IIM graduate untainted by photocopied books. I would claim that the lack of quality education in our country is still at the level of an epidemic. The indigenous publication industry has benefited from our progressive copyright regime.

Wouldn’t it be appropriate to afford them maximum flexibility in a future rife with technological shifts? Are all the books that you wish to read available in the libraries and book shops you have access to? Have you ever been forced to photocopy a book because of time constraints? Would you like to see greater choice via increased free-market competition, and reduced state-sanctioned monopolies and enforcement? Does your definition of human rights include the “right to education” and the the “right to entertainment”? Shouldn’t the disabled in India benefit from the $500 million spent each year making books accessible in the US? And finally, shouldn’t a nation providing leadership to the development agenda at WIPO, walk the talk at home? If your answer to any of these questions is yes, you should demand that people are placed before the profits of foreign publishers.

This article by Sunil Abraham, Executive Director, Centre for Internet and Society was published in the Indian Express on 2 September 2011 in the Indian Express. Please read the original article here.

For more details visit https://cis-india.org/a2k/blogs/photocopying-the-past

Of Jesters, Clowns and Pranksters: YouTube and the Condition of Collaborative Authorship

nishant — 2012-12-14T10:24:05Z

The idea of a single author creating cinematic objects in a well-controlled scheme of support system and production/distribution infrastructure has been fundamentally challenged by the emergence of digital video sharing sites like YouTube, writes Nishant Shah in this peer reviewed essay published in the Journal of Moving Images, Number 8, December 2009.

The idea of the single author creating cinematic objects in a well-controlled scheme of support system and production/distribution infrastructure has been fundamentally challenged by the emergence of digital video sharing sites like YouTube. The recent state of controversies around YouTube, has foregrounded the question of authorship in collaborative conditions. Questions of who owns the particular videos and what is the role that the large communities of authorship play have not been resolved as the debaters have concentrated only on single videos and singular notions of authorship, dismissing the (this paper proposes) collaborators as jesters, clowns and pranksters, without recognizing their contribution to the videos.

Introduction

I shall begin by misquoting and possibly violating copyright regimes by invoking Dostoyevsky, to say that all dissimilar technologies are the same in their own way, but all similar technologies are uniquely different. Every technological innovation, but particularly innovations affecting authorship and the role of the author, brings with it a new set of anxieties and concerns. David Stewart, in his engrossing book on the history of technology and communication, for example, talks about how in the early years of postal service there were debates around who was the author of the mail that was being delivered. Through a particularly fascinating case that looked at a Lord in London holding the post office responsible for some objectionable mail delivered to his daughter, Stewart traces the origins of techno-neutrality and regulation to look upon technology as merely a bearer of knowledge – in this case, the mail – and the original author, this primordial figure that sits and writes or shoots or sings, as the only person upon whom the responsibility and hence also the credit can be placed.

Mark Joffe, in his movie The Man Who Sued God, introduces us to the case of Steve Myers, an ex-lawyer in Australia, who sues God because his boat is struck by lightning and his insurance company refuses to pay, claiming it to be an act of God. By claiming to be God’s representatives on Earth, the Christian churches and the Jewish synagogues are held to be the liable party, putting them in the difficult position of either having to pay out large sums of money, or prove that God does not exist. But more than anything else, it is the attribution of responsibility to one particular, identifiable entity that lies at the centre of the movie. Even in the pre-Internet world, one of the biggest sources of anxieties has been determining authorship and putting into place a knowledge apparatus that reinforces the need for such a condition. The question of authorship, while it surfaces in a number of contexts – copyright infringements, intellectual property right regimes, plagiarism, crediting and referencing industries, etc – is perhaps most interestingly manifest on video sharing social networking sites like YouTube and Myspace.

Rather than addressing what constitutes digital cinema or the future of celluloid, I would instead like to locate the emergence of the idea of authorship, through a historical examination of an ‘old media’. I will be looking at the early history of the book and the print revolution to argue that the condition of authorship that one presumes for the book, and subsequently, through a different trajectory, for cinema, is not something that was inherent to it; and in fact the early history of the book is filled with conflicts around the question of how you could attribute the book as an artefact to one individual author. By examining the conditions that enabled the establishment of the book as a stable object that can be linked to the author, I hope to return us to a different way of thinking about Youtube videos and the debates on authorship that surround it.

YouTube and the question of authorship

The world of YouTube stakeholders can roughly be divided into two camps: People who swear by it and people who swear at it. The camp has arisen mainly because of differences of opinions on who owns a YouTube video and the content therein. The critics of YouTube – largely recording companies and movie studios and distributors – argue that platforms like YouTube are killing their businesses, emptying their coffers, and are a direct threat to the sacred cow of all cultural productions – the livelihood and the integrity of the creative artist. They make claims that a site like YouTube infringes the copyright regimes because videos get published by somebody who has ripped it from another source, and often does no crediting. Also, that the sales of the music or the movies or television serials go down because of such activities.

One of the most recent infamous example that can be cited is the case of the Let’s Go Crazy Dancing video case, were the world literally went crazy. In early February 2007, Stephanie Lenz’s 13-month-old son started dancing. Pushing a walker across her kitchen floor, Holden Lenz started moving to the distinctive beat of a song by Prince, “Let’s Go Crazy.” [1] Lenz wanted her mother to see the film so she did what any citizen of the 21st century would do: She uploaded the file to YouTube and sent her relatives and friends the link. They watched the video scores of times. It was a perfect YouTube moment: a community of laughs around a homemade video, readily shared with anyone who wanted to watch.

Sometime over the next four months, however, someone from Universal Music Group also watched Holden dance. Universal manages the copyrights of Prince. It fired off a letter to YouTube demanding that it remove the unauthorized “performance” of Prince’s music. YouTube, to avoid liability itself, complied. YouTube sent Lenz a notice that it was removing her video. She wondered, “Why?” What had she done wrong? Her questions reached the Electronic Frontier Foundation and then started the battle, where on Lenz’s behalf, the EFF lawyers sent a ‘counter-notice’ to YouTube, that no rights of Universal were violated by Holden’s dancing video. Lenz as the author of the video was concentrating on her son’s dancing and that the presence of Prince’s song was negligible and definitely fair use. Yet Universal’s lawyers insist to this day that sharing this home movie is wilful copyright infringement under the laws of the United States. On their view of the law, she is liable to a fine of up to $150,000 for sharing 29 seconds of Holden dancing. They specifically state that Lenz is not the ‘original’ artist who made the music and thus she is appropriating authorship and violating the rights of the artist – Prince, to be identified as the creator of the song. The notice also informed her that they were unhappy with the ‘clowning’ around of Prince’s music which might offend his fan-base.

The questions which come to the fore are very obvious and not new to the history of legal debates on cinema: What is the content of the video? Who is the author of the video? Who watches the video? What are the intentions of the video? The supporters of the ‘Free as in Beer’ access movements and also of YouTube clearly point out the farcical condition of this battle. As Lawrence Lessig very eloquently points out in his essay on the ‘Defence of Piracy’.

How is it that sensible people, people no doubt educated at some of the best universities and law schools in the country, would come to think it a sane use of corporate resources to threaten the mother of a dancing 13-month-old? What is it that allows these lawyers and executives to take a case like this seriously, to believe there’s some important social or corporate reason to deploy the federal scheme of regulation called copyright to stop the spread of these images and music? “Let’s Go Crazy” indeed![2]

In another instance, which is a competition on YouTube between two videos to reach the coveted “first video to be seen 1 million times” status, brings again these question of the author and the pranksters. Avril Lavigne fans, on the release of her recent Single ‘Girlfriend’, started campaigning to make that video the first to be viewed 1 million times on YouTube. They put it in direct competition with the then most viewed video – ‘History of Dance’ – and started activities that violated the Terms of Service for YouTube. They embedded the videos in many sites and started websites which played the videos automatically. They even created a website which auto reloaded the video every fifteen minutes and encouraged fans to keep the website opened, abusing the power of broad band, while they are browsing, surfing, or even sleeping. The efforts paid off and Avril Lavigne’s ‘Girlfriend’, in July 2008, became the first video to be watched 1 million times in the history of YouTube. One would have thought that such publicity is what a distributor’s wet dreams are made of. However, just after the video reached the 1 million mark and entered the heights of popularity, YouTube received a notice from Times Warner, to remove the video because it was a copyright violation. They also demanded that all the other compilations and samplings which included the song be removed from YouTube. The supporters of the move, condemned the Lavigne fans as ‘pranksters’ or ‘jesters’ who were in for the cheap publicity, because they were not really creators of the video or the authors. In a startling Op-Ed titled ‘How Avril Lavigne Killed YouTube’ in the New York Times, a spokesperson for Times Warner suggested.

This is not respectable fan behaviour. A fan is somebody who loves and worships the author and not somebody who pretends to be the author. The avrilelavignebandaid group just turned out to be a group of pirates who passed off Lavigne’s video as their own and went on to promote it, forgetting the fact that they were using a democratic platform like YouTube for activities which can only be called theft!

Predictably, the debate on the question of authorship takes place in a rather somber tone, whether it is the zealous claims of monopoly of production and authorship that the established industries claim for themselves, or the passionate defenses of the YouTubeians. What remains constant through the entire process is the fact that the idea of a singular, identifiable author remains stable and unchallenged. I would like to take a slightly different track here, and try and see how we can think the question of the “production of the author” by revisiting the history of the book and of early print culture, and look at the manner in which the idea of the author emerges.

There is often an unstated assumption about the book as authored by a single person and authorship is spoken of in a value-neutral and ahistorical manner. It would be useful to situate the condition of authorship within a historical moment, where authorship is not seen to be an apriori condition but a constructed one, and one whose history is located in specific technological changes. The technology of print and paper brought about a set of questions around the question of authorship, and in the same way, the domain of Internet video sharing and collaborative authorship raises a set of questions and concerns.

The construction of author/ity

In many ways, the debate on authorship and knowledge is similar to the older debate in philosophy between body and self. Critics of self, such as Foucault, demonstrate that the notion of the self has often stemmed from very particular experiences in the Christian West, which were then posited as universal experiences. However, doing away with the notion of the self does not do away with the question of the body. In fact, Foucault goes on to explore the technologies of the self and how it informs our understanding of the body. In a similar vein, while the proponents of the Web 2.0 revolution (sometimes unknown to themselves, echoing debates that happened in print about a 100 years ago) announce either the death of the author or the availability of open licensing, fail to recognize that the question of authorship (and hence authority) are rooted both in particular practices as well as in technological forms. Hence the debates take familiar shapes: author versus pirate, digital versus celluloid, collaborative versus single author, etc.

It is especially when posing the question of authorship in absolute terms that the cultural producers/consumers on YouTube get reduced to pranksters, jesters or clowns. The debate also excludes the temporal framework of the debate and forget that the Internet is still a work in progress. Even though an Internet year is akin to seven pre-digital years, and time is now experienced in accelerated modes, it is necessary to realize that the domain of collaborative online sharing and production of videos is a relatively new one.

It may be more useful to think of the post-celluloid world as an extremely ambiguous and fluid period, undoubtedly marked by immense possibilities, but we have not reached any settled phase yet. So if we are to make comparisons, then it is more useful to compare the contemporary period with another moment in history, and the emergence of a cultural form other than cinema, which was marked by an equal fluidity. It is here that I go to the early history of print culture or ‘print in the making’[3] and the conflicts over the question of authorship, to demonstrate that the condition of authorship question is an important one, but it is not a question that is unique to YouTube or the Internet. And an examination of the conditions under which authorship came to be established may help us get over our anxieties about authorship, and better understand it with certain lightness – through pranks, jests and clowning around.

What’s in a name? – The author and the book

For us to understand the idea of print in the making, we need to understand some of the practices that preceded the idea of print. They also enable us to understand the specific nature of the disputes around the question of authorship, and more importantly rethink disputes over authorship as productive disputes. Lawrence Liang in his ‘A brief history of the Internet in 13th and 14th Century’ takes up the example of Chaucer, the father of English poetry. He demonstrates, through different readings, “how the structure and the form of the Canterbury Tales reflects, interestingly, the question of approaches to the idea of authorship as well as the conditions of the production of the Canterbury Tales itself.” Liang looks at the manuscript cultures and the ways in which authorship and rights were understood.

Borrowing from Mark Rose, Liang shows how, in the Middle Ages, the owner of a manuscript was understood to possess the right to grant permission to copy it, and this was a right that could be exploited, as it was, for example, by those monasteries that regularly charged a fee for permission to copy one of their books. This was somewhat similar to copyright royalty with the crucial difference that the book-owner’s property was not a right in the text as such but in the manuscript as a physical object made of ink and parchment. The value provided by the monastery and the reason for their charging for their copy fee did not emerge just from the existence of the copy alone, but also from the fact that each monastery also had their unique elements in the form of the annotations, the commentary, corrections, which only the particular monastery’s copy might contain. The very act of copying and possession made you the author of that text and also the owner of the book.[4] The author was not only the reclusive solitary figure that coins the first word but the various scribes, writers, annotators and litterateurs who offered changes, as well as helped in distribution and copying.[5]

So, while the popular account of preprint cultures is of slavish copying by scribes, the story turns out to be slightly more complicated. Acting as annotators, compilers, and correctors, medieval book owners and scribes actively shaped the texts they read. For example, they might choose to leave out some of the Canterbury Tales, or contribute one of their own. They might correct Chaucer’s versification every now and then. They might produce whole new drafts of Chaucer by combining one or more of his published versions with others. And these were all legitimate, acceptable and engaged forms of authorship. While this activity of average or amateur readers differs in scale and quality from Chaucer’s work, it opens us to new questions of the relationship between author, text, and reader in the Middle Ages, and also what it may mean to understand contemporary practices of knowledge and cultural creation.

Scribes and readers responded to Chaucer, Langland, and others, not by slavishly copying, canonizing, or passively receiving their texts, but by reworking them as creative readers. In doing so, they continue and contribute to the great layers of intertextual conversation that made the work of these now canonical authors relevant, interesting, and, fundamentally, possible. Similar debates surround the attribution of authorship to William Shakespeare for his work. Literary historians have periodically made claims that Shakespeare’s plays were written by the then court poet Ben Jonson, that Shakespeare’s plays were written by Christopher Marlowe, who is considered to be his arch enemy, that Shakespeare’s plays were written by another man named Shakespeare, and not the Shakespeare we think we know. At the basis of these arguments was the idea that the plays were designed not to be written but be performed and that in the lively rendering of the play, between different actors and producers, the original text changed. Interestingly, the Shakespearean technique of ‘asides’ and ‘taking the audience into confidence’ was actually a way of inviting the audience to not only receive the story but to read it differently, and edit it with their response to it.

This invitation was accepted by late Elizabethans who took great pleasure in seeing the same play multiple times to see how it has changed in the performance. Moreover, as multiple copies of the same manuscript started appearing in the living public, along with the actors and the producers, the readers also took great pleasure in creating copies of the takes that drastically cut, expand, edit and otherwise Shakespeare’s plays.[6]

This activity goes beyond the mechanics of audience reception and looks at the plays as a collaborative effort which gets glossed over in the making of the authoritative folios which looked upon all such interventions as anomalies to the text. Before the fixity of text, there was a possibility to think of the text not as a finished product but a work in progress that elicits new responses, meanings and forms through its engagement with the audience. Moreover, the audience, in their rights of consumption, also seemed to possess the right to edit, change and circulate the text. They were the original jesters, pranksters and clowns, who, in their playful response to the text, constructed it to respond to their contexts and traditions. This sounds a lot like the debates we are experiencing on YouTube videos where the readers respond in kind to the poetics of reading and composing within which the YouTube videos operate.

Conclusion

Thus rather than speaking about authorship as something that is intrinsic to either a particular mode of authorship or intrinsic to any technological form, it might be more useful instead to consider the variety of knowledge apparatuses which come into play to establish its authority. In the case for the history of the book, it was clear that the establishment of authorship depended on the arrangements, classifications and kinds of assemblage that make it possible, maintain it as well as critique it. The conventions, for instance, by which the title and author of a work are identified play very specific functions in preparing for knowledge, as do the several kinds of documentation, attribution, citation and copyright.

The preconditions for authorship cannot easily be made into the object that we identify as author. It is a matter of making evident (making known) the structures of authorship which emerge in ways that provide definitive proof of the imperfectability and ambiguity of the authorial position. To speak of the productive nature of conflicts over authorship is then to recognize that any author – either exalted or dismissed - is constructed in a condition of potential collaboration and revision. The question thus centres on how we use the notion of authorship, how we bring it to light and mobilize it today to understand cultural forms differently. The way the authorship debates take place, there is almost a theological devotion to an exalted idea of author, without a consideration of the apparatus that was established to construct that condition.

The point is not to do away with the question of the author or construct another catch-all retainer that accepts all forms of engagement as authorship, but to recognize it not as something that is intrinsic or a given but something that is always transient, and to locate it, in the case of digital cinema, within specific practices and technologies. To return to the question of YouTube videos and the future of celluloid image; we are now faced with new questions about authorship and the very form that the digital cinema embodies: If the image itself is no longer made to bear the burden of meaning and intention, can we locate new forms of authorship – sometimes in incidental intertextuality, sometimes in creating conditions (as is in the case of DVDs or digital video sharing sites) narratives, meanings, interpretations and paraphernalia that simultaneously re-emphasize the sacredness of the image while deconstructing the apparatus that establishes a fixity of authorship over that image? Can we look at not only novel forms of interaction and consumption of the celluloid image but at a playful engagement with the image to create a galaxy of responses – sometimes as reciprocal videos, often through comments, embedding mechanisms, using the video not as an object unto itself but as a form of complex referencing and citation to a larger community of artists and authors?

The future of celluloid, especially if we are locating it in the realm of the Digital Moving Objects of Web 2.0 technologies, is going to have debates which were relevant also to the making of the book. However, this is not to say that the challenges faced and the problematic that emerge are redundant. Indeed, the celluloid frame and its overpowering capacity to incorporate technology, content, response and remixes, to produce the spectacle of watching, posit certain challenges to the Web 2.0 celebrations while simultaneously expanding its own scope of production. YouTube debates around infantile abuse of video/cinema technologies to make dancing babies and furry animals popular need to be read as symptomatic of a much larger question of authorship, authority and the conditions of cultural production rather than signalling the death of celluloid. An escape from the authority question also allows for an escape from the celluloid-digital binary and posits a more fruitful engagement in looking at how celluloid technologies (and the constellation of factors therewith) inform our understanding and analysis of the DMIs that are slowly gaining popularity.

This research was originally published in the Journal of Moving Images.

See the research paper in Academia.edu.

References

[1].Holden Lenz’s YouTube debut, that probably made him the most popular baby on the Internet is still available for viewing at <http://www.youtube.com/watch?v=N1KfJHFWlhQ> retrieved 12:14 a.m. 22nd January 2010.

[2].The essay is available for open access at <http://online.wsj.com/article/SB122367645363324303.html>

[3].I am grateful to Lawrence Liang for this methodological framework where he looks at the emergence of Wikipedia and the pre-print cultures, to look at the similarities and differences between the two. “A Brief History of the Internet in the 13th and 14th Century”. Forthcoming 2010.

[4].See Alberto Manguel’s A History of Reading. 1990. New York: Penguin Books.

[5].Daniel Wolf, in Reading History in Early Modern England. 2005. Cambridge, UK: Cambridge University Press, explains in great detail how the reader as well as the author were imagined, constructed and recognized in the early days of print.

[6].See Molly Abel Travis’s comprehensive account of the debates in Construction of Readers in the Twentieth Century. 1998. Illinois, Chicago: Southern Illinois University Press.

For more details visit https://cis-india.org/a2k/blogs/jesters-clowns-pranksters

Analysis of the Copyright (Amendment) Bill 2012

pranesh — 2013-11-12T14:13:04Z

There are some welcome provisions in the Copyright (Amendment) Bill 2012, and some worrisome provisions. Pranesh Prakash examines five positive changes, four negative ones, and notes the several missed opportunities. The larger concern, though, is that many important issues have not been addressed by these amendments, and how copyright policy is made without evidence and often out of touch with contemporary realities of the digital era.

The Copyright (Amendment) Bill 2012 has been passed by both Houses of Parliament, and will become law as soon as the President gives her assent and it is published in the Gazette of India. While we celebrate the passage of some progressive amendments to the Copyright Act, 1957 — including an excellent exception for persons with disabilities — we must keep in mind that there are some regressive amendments as well. In this blog post, I will try to highlight those provisions of the amendment that have not received much public attention (unlike the issue of lyricists’ and composers’ ‘right to royalty’).

Welcome Changes

Provisions for Persons with Disabilities

India now has amongst the most progressive exception for persons with disabilities, alongside countries like Chile. Under the amendments, sections 51(1)(zb) and 31B carve out exceptions and limitations for persons with disabilities. Earlier s.52(1)(zb) dealt only with formats that were “special designed only for the use of persons suffering from visual, aural, or other disabilities”. Thanks to a campaign mounted by disability rights groups and public interest groups such as CIS, it now covers “any accessible format”. Section 52(1)(zb) allows any person to facilitate access by persons with disabilities to copyrighted works without any payment of compensation to the copyright holder, and any organization working the benefit of persons with disabilities to do so as long as it is done on a non-profit basis and with reasonable steps being taken to prevent entry of reproductions of the copyrighted work into the mainstream. Even for-profit businesses are allowed to do so if they obtain a compulsory licence on a work-by-work basis, and pay the royalties fixed by the Copyright Board. The onerousness of this provision puts its utility into question, and this won’t disappear unless the expression “work” in s.31B is read to include a class of works.

Given that the Delhi High Court has — wrongly and per incuriam, since it did not refer to s.14(a)(ii) as it was amended in 1994 — held parallel importation to be barred by the Copyright Act, it was important for Parliament to clarify that the Copyright Act in fact follows international exhaustion. Without this, even if any person can facilitate access for persons with disabilities to copyrighted works, those works are restricted to those that are circulated in India. Given that not many books are converted into accessible formats in India (not to mention the costs of doing so), and given the much larger budgets for book conversion in the developed world, this is truly restrictive.

Extension of Fair Dealing to All Works

The law earlier dealt with fair dealing rights with regard to “literary, dramatic, musical or artistic works”. Now it covers all works (except software), in effect covering sound recordings and video as well. This will help make personal copies of songs and films, to make copies for research, to use film clips in classrooms, etc.

Creative Commons, Open Licensing Get a Boost

The little-known s.21 of the Copyright Act, which deals with the right of authors to relinquish copyright, has been amended. While earlier one could only relinquish parts of one’s copyright by submitting a form to the Registrar of Copyrights, now a simple public notice suffices. Additionally, s.30 of the Act, which required licences to be in writing and signed, now only requires it to be in writing. This puts Creative Commons, the GNU Public Licence, and other open licensing models, on a much surer footing in India.

Physical Libraries Should Celebrate, Perhaps Virtual Libraries Too

Everywhere that the word “hire” occurs (except s.51, curiously), the word “commercial rental” has been substituted. This has been done, seemingly, to bring India in conformance with the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT). The welcome side-effect of this is that the legality of lending by non-profit public libraries has been clarified. The amendment states:

"2(1)(fa) “commercial rental” does not include the rental, lease or lending of a lawfully acquired copy of a computer programme, sound recording, visual recording or cinematograph film for non-profit purposes by a non-profit library or non-profit educational institution."

Even after this, the overwhelming majority of the ‘video lending libraries’ that you see in Indian cities and towns continue to remain illegal.

Another welcome provision is the amended s.52(1)(n), which now allows “non-commercial public libraries” to store an electronic copy of a work if it already has a physical copy of the work. However, given that this provision says that the storage shall be “for preservation”, it seems limited. However, libraries might be able to use this — in conjunction with the fact that under s.14 of the Copyright Act lending rights of authors is limited to “commercial rental” and s.51(b) only covers lending of “infringing copies” — to argue that they can legally scan and lend electronic copies of works in the same manner that they lend physical copies. Whether this argument would succeed is unclear. Thus, India has not boldly gone where the European Commission is treading with talks of a European Digital Library Project, or where scholars in the US are headed with the Digital Public Library of America. But we might have gone there quietly. Thus, this amendment might help foster an Indian Internet Archive, or help spread the idea of the Open Library in India.

On a final note, different phrases are used to refer to libraries in the amendment. In s.2(1)(fa), it talks about "non-profit library"; in s.52(1)(n) and (o), it refers to "non-commercial public library"; and in s.52(1)(zb), it talks of "library or archives", but s.52(1)(zb) also requires that the works be made available on a "non-profit basis". The differentiation, if any, that is sought to be drawn between these is unclear.

Limited Protection to Some Internet Intermediaries

There are two new provisions, s.52(1)(b) and 52(1)(c), which provide some degree of protection to 'transient or incidental' storage of a work or performance. Section 52(1)(b) allows for "the transient or incidental storage of a work or performance purely in the technical process of electronic transmission or communication to the public", hence applying primarily to Internet Service Providers (ISPs), VPN providers, etc. Section 52(1)(c) allows for "transient or incidental storage of a work or performance for the purpose of providing electronic links, access or integration, where such links, access or integration has not been expressly prohibited by the right holder, unless the person responsible is aware or has reasonable grounds for believing that such storage is of an infringing copy". This seems to make it applicable primarily to search engines, with other kinds of online services being covered or not covered depending on one’s interpretation of the word 'incidental'.

Compulsory Licensing Now Applies to Foreign Works Also

Sections 31 ("compulsory licence in works withheld from public") and 31A ("compulsory licence in unpublished Indian works") used to apply to Indian works. Now they apply to all works, whether Indian or not (and now s.31A is about "compulsory licence in unpublished or published works", mainly orphan works). This is a welcome amendment, making foreign works capable of being licensed compulsorily in case it is published elsewhere but withheld in India. Given how onerous our compulsory licensing sections are, especially sections 32 and 32A (which deal with translations, and with literary, scientific or artistic works), it is not a surprise that they have not been used even once. However, given the modifications to s.31 and s.31A, we might just see those starting to be used by publishers, and not just radio broadcasters.

Worrisome Changes

Term of Copyright for Photographs Nearly Doubled

The term of copyright for photographs has now gone from sixty years from publication to sixty years from the death of the photographer. This would mean that copyright in a photograph clicked today (2012) by a 20 year old who dies at the 80 will only expire on January 1, 2133. This applies not only to artistic photographs, to all photographs because copyright is an opt-out system, not an opt-in system. Quite obviously, most photoshopping is illegal under copyright law.

This has two problems. First, there was no case made out for why this term needed to be increased. No socio-economic report was commissioned on the effects of such a term increase. This clause was not even examined by the Parliamentary Standing Committee. While the WCT requires a ‘life + 50′ years term for photographs, we are not signatories to the WCT, and hence have no obligation to enforce this. We are signatories to the Berne Convention and the TRIPS Agreement, which require a copyright term of 25 years for photographs. Instead, we have gone even above the WCT requirement and provide a life + 60 years term.

The second problem is that it is easier to say when a photograph was published than to say who the photographer was and when that photographer died. Even when you are the subject of a photograph, the copyright in the photograph belongs to the photographer. Unless a photograph was made under commission or the photographer assigned copyright to you, you do not own the copyright in the photographs. (Thanks to Bipin Aspatwar, for pointing out a mistake in an earlier version, with "employment" and "commission" being treated differently.) This will most definitely harm projects like Wikipedia, and other projects that aim at archiving and making historical photographs available publicly, since it is difficult to say whether the copyright in a photograph still persists.

Cover Versions Made More Difficult: Kolaveri Di Singers Remain Criminals

The present amendments have brought about the following changes, which make it more difficult to produce cover versions:

Time period after which a cover version can be made has increased from 2 years to 5 years.
Requirement of same medium as the original. So if the original is on a cassette, the cover cannot be released on a CD.
Payment has to be made in advance, and for a minimum of 50000 copies. This can be lowered by Copyright Board having regard to unpopular dialects.
While earlier it was prohibited to mislead the public (i.e., pretend the cover was the original, or endorsed by the original artists), now cover versions are not allowed to "contain the name or depict in any way any performer of an earlier sound recording of the same work or any cinematograph film in which such sound recording was incorporated".
All cover versions must state that they are cover versions.
No alterations are allowed from the original song, and alteration is qualified as ‘alteration in the literary or musical work’. So no imaginative covers in which the lyrics are changed or in which the music is reworked are allowed without the copyright owners’ permission. Only note-for-note and word-for-word covers are allowed.
Alterations were allowed if they were "reasonably necessary for the adaptation of the work" now they are only allowed if it is "technically necessary for the purpose of making of the sound recording".

This ignores present-day realities. Kolaveri Di was covered numerous times without permission, and each one of those illegal acts helped spread its popularity. The singers and producers of those unlicensed versions could be jailed under the current India Copyright Act, which allows even non-commercial copyright infringers to be put behind bars. Film producers and music companies want both the audience reach that comes from less stringent copyright laws (and things like cover versions), as well as the ability to prosecute that same behaviour at will. It is indeed ironic that T-Series, the company that broke HMV’s stranglehold over the Indian recording market thanks to cover versions, is itself one of the main movers behind ever-more stringent copyright laws.

Digital Locks Now Provided Legal Protection Without Accountability

As I have covered the issue of Technological Protection Measures (TPM) and Rights Management Information (RMI), which are ‘digital locks’ also known as Digital Rights Management (DRM), in great detail earlier, I won’t repeat the arguments at length. Very briefly:

It is unclear that anyone has been demanding the grant of legal protection to DRMs in India, and We have no obligation under any international treaties to do so. It is not clear how DRM will help authors and artists, but it is clear how it will harm users.
While the TPM and RMI provisions are much more balanced than the equivalent provisions in laws like the US’s Digital Millennium Copyright Act (DMC), that isn’t saying much. Importantly, while users are given certain rights to break the digital locks, they are helpless if they aren’t also provided the technological means of doing so. Simply put: music and movie companies have rights to place digital locks, and under some limited circumstances users have the right to break them. But if the locks are difficult to break, the users have no choice but to live with the lock, despite having a legal right.

Removal of Parallel Importation

In past blog posts I have covered why allowing parallel imports makes sense in India. And as explained above, the Delhi High Court acted per incuriam when holding that the Copyright Act does not allow parallel importation. The Copyright Act only prohibits import of infringing copies of a work, and a copy of a book that has been legally sold in a foreign country is not an “infringing copy”. The government was set to introduce a provision making it clear that parallel importation was allowed. The Parliamentary Standing Committee heard objections to this proposal from a foreign publishers’ association, but decided to recommend the retention of the clause. Still, due to pressure from a few publishing companies whose business relies on monopolies over importation of works into India, the government has decided to delete the provision. However, thankfully, the HRD Minister, Kapil Sibal, has assured both houses of Parliament that he will move a further amendment if an NCAER report he has commissioned (which will be out by August or September) recommends the introduction of parallel imports.

Expansion of Moral Rights Without Safeguards

Changes have been made to author’s moral rights (and performer’s moral rights have been introduced) but these have been made without adequate safeguards. The changes might allow the legal heir of an author, artist, etc., to object to ‘distortion, mutilation, modification, or other act’ of her ancestors work even when the ancestor might not have. By this amendment, this right continues in perpetuity, even after the original creator dies and even after the work enters into the public domain. It seems Indian policymakers had not heard of Stephen Joyce, the grandson of James Joyce, who has “brought numerous lawsuits or threats of legal action against scholars, biographers and artists attempting to quote from Joyce’s literary work or personal correspondence”. Quoting from his Wikipedia page:

In 2004, Stephen threatened legal action against the Irish government when the Rejoyce Dublin 2004 festival proposed public reading of excerpts of Ulysses on Bloomsday. In 1988 Stephen Joyce burnt a collection of letters written by Lucia Joyce, his aunt. In 1989 he forced Brenda Maddox to delete a postscript concerning Lucia from her biography Nora: The Real Life of Molly Bloom. After 1995 Stephen announced no permissions would be granted to quote from his grandfather’s work. Libraries holding letters by Joyce were unable to show them without permission. Versions of his work online were disallowed. Stephen claimed to be protecting his grandfather’s and families reputation, but would sometimes grant permission to use material in exchange for fees that were often "extortionate".

Because in countries like the UK and Canada the works of James Joyce are now in the public domain, Stephen Joyce can no longer restrict apply such conditions. However now, in India, despite James Joyce’s works being in the public domain, Stephen Joyce’s indefensible demands may well carry legal weight.

Backdoor Censorship

As noted above, the provision that safeguard Internet intermediaries (like search engines) is very limited. However, that provision has an extensive removal provision:

Provided that if the person responsible for the storage of the copy has received a written complaint from the owner of copyright in the work, complaining that such transient or incidental storage is an infringement, such person responsible for the storage shall refrain from facilitating such access for a period of twenty-one days or till he receives an order from the competent court refraining from facilitating access and in case no such order is received before the expiry of such period of twenty-one days, he may continue to provide the facility of such access;

There are two things to be noted here. First, that without proof (or negative consequences for false complaints) the service provider is mandated to prevent access to the copy for 21 day. Second, after the elapsing of 21 days, the service provider may 'put back' the content, but is not mandated to do so. This would allow people to file multiple frivolous complaints against any kind of material, even falsely (since there is no penalty for false compalaints), and keep some material permanently censored.

Missed Opportunities

Fair Dealing Guidelines, Criminal Provisions, Government Works, and Other Missed Opportunities

The following important changes should have been made by the government, but haven’t. While on some issues the Standing Committee has gone beyond the proposed amendments, it has not touched upon any of the following, which we believe are very important changes that are required to be made.

Criminal provisions: Our law still criminalises individual, non-commercial copyright infringement. This has now been extended to the proposal for circumvention of Technological Protection Measures and removal of Rights Management Information also.
Fair dealing guidelines: We would benefit greatly if, apart from the specific exceptions provided for in the Act, more general guidelines were also provided as to what do not constitute infringement. This would not take away from the existing exceptions, but would act as a more general framework for those cases which are not covered by the specific exceptions.
Government works: Taxpayers are still not free to use works that were paid for by them. This goes against the direction that India has elected to march towards with the Right to Information Act. A simple amendment of s.52(1)(q) would suffice. The amended subsection could simply allow for “the reproduction, communication to the public, or publication of any government work” as being non-infringing uses.
Copyright terms: The duration of all copyrights are above the minimum required by our international obligations, thus decreasing the public domain which is crucial for all scientific and cultural progress.
Educational exceptions: The exceptions for education still do not fully embrace distance and digital education.
Communication to the public: No clear definition is given of what constitute a ‘public’, and no distinction is drawn between commercial and non-commercial ‘public’ communication.
Internet intermediaries: More protections are required to be granted to Internet intermediaries to ensure that non-market based peer-production projects such as Wikipedia, and other forms of social media and grassroots innovation are not stifled. Importantly, after the terrible judgment passed by Justice Manmohan Singh of the Delhi High Court in the Super Cassettes v. Myspace case, any website hosting user-generated content is vulnerable to payment of hefty damages even if it removes content speedily on the basis of complaints.

Amendments Not Examined

For the sake of brevity, I have not examined the major changes that have been made with regard to copyright societies, lyricists and composers, and statutory licensing for broadcasters, all of which have received considerable attention by copyright experts elsewhere, nor have I examined many minor amendments.

A Note on the Parliamentary Process

Much of the discussions around the Copyright Act have been around the rights of composers and lyricists vis-à-vis producers. As this has been covered elsewhere, I won’t comment much on it, other than to say that it is quite unfortunate that the trees are lost for the forest. It is indeed a good thing that lyricists and composers are being provided additional protection against producers who are usually in a more advantageous bargaining position. This fact came out well in both houses of Parliament during the debate on the Copyright Bill.

However, the mechanism of providing this protection — by preventing assignment of “the right to receive royalties”, though the “right to receive royalties” is never mentioned as a separate right anywhere else in the Copyright Act — was not critically examined by any of the MPs who spoke. What about the unintended consequences of such an amendment? Might this not lead to new contracts where instead of lump-sums, lyricists and music composers might instead be asked to bear the risk of not earning anything at all unless the film is profitable? What about a situation where a producer asks a lyricist to first assign all rights (including royalty rights) to her heirs and then enters into a contract with those heirs? The law, unfortunately at times, revolves around words used by the legislature and not just the intent of the legislature. While one cannot predict which way the amendment will go, one would have expected better discussions around this in Parliament.

Much of the discussion (in both the Rajya Sabha and the Lok Sabha) was rhetoric about the wonders of famous Indian songwriters and music composers and the abject penury in which some not-so-famous ones live, and there was very little discussion about the actual merits of the content of the Bill in terms of how this problem will be overcome. A few MPs did deal with issues of substance. Some asked the HRD Minister tough questions about the Statement of Objects and Reasons noting that amendments have been brought about to comply with the WCT and WPPT which were “adopted … by consensus”, even though this is false as India is not a signatory to the WCT and WPPT. MP P. Rajeeve further raised the issue of parallel imports and that of there being no public demand for including TPM in the Act, but that being a reaction to the US’s flawed Special 301 reports. Many, however, spoke about issues such as the non-award of the Bharat Ratna to Bhupen Hazarika, about the need to tackle plagiarism, and how the real wealth of a country is not material wealth but intellectual wealth.

This preponderance of rhetoric over content is not new when it comes to copyright policy in India. In 1991, when an amendment was presented to increase term of copyright in all works by ten years (from expiring 50 years from the author’s death to 60 years post-mortem), the vast majority of the Parliamentarians who stood up to speak on the issue waxed eloquent about the greatness of Rabindranath Tagore (whose works were about to lapse into the public domain), and how we must protect his works. Little did they reflect that extending copyright — for all works, whether by Tagore or not — will not help ‘protect’ the great Bengali artist, but would only make his (and all) works costlier for 10 additional years. Good-quality and cheaper editions of Tagore’s works are more easily available post-2001 (when his copyright finally lapsed) than before, since companies like Rupa could produce cheap editions without seeking a licence from Visva Bharati. And last I checked Tagore’s works have not been sullied by them having passed into the public domain in 2001.

Further, one could find outright mistakes in the assertions of Parliamentarians. In both Houses, DMK MPs raised objections with regard to parallel importation being allowed in the Bill — only in the version of the Bill they were debating, parallel importation was not being allowed. One MP stated that “statutory licensing provisions like these are not found anywhere else in the world”. This is incorrect, given that there are extensive statutory licensing provision in countries like the United States, covering a variety of situations, from transmission of sound recordings over Internet radio to secondary transmission of the over-the-air programming.

Unfortunately, though that MP did not raise this issue, there is a larger problem that underlies copyright policymaking in India, and that is the fact that there is no impartial evidence gathered and no proper studies that are done before making of policies. We have no equivalent of the Hargreaves Report or the Gowers Report, or the studies by the Productivity Council in Australia or the New Zealand government study of parallel importation.

There was no economic analysis conducted of the effect of the increase in copyright term for photographs. We have evidence from elsewhere that copyright terms are already too long, and all increases in term are what economists refer to as deadweight losses. There is no justification whatsoever for increasing term of copyright for photographs, since India is not even a signatory to the WCT (which requires this term increase). In fact, we have lost precious negotiation space internationally since in bilateral trade agreements we have been asked to bring our laws in compliance with the WCT, and we have asked for other conditions in return. By unilaterally bringing ourselves in compliance with WCT, we have lost important bargaining power.

Users and Smaller Creators Left Out of Discussions

Thankfully, the Parliamentary Standing Committee went into these minutiae in greater detail. Though, as I have noted elsewhere, the Parliamentary Standing Committee did not invite any non-industry groups for deposition before it, other than the disability rights groups which had campaigned really hard. So while changes that would affect libraries were included, not a single librarian was called by the Standing Committee. Despite comments having been submitted to the Standing Committee on behalf of 22 civil society organizations, none of those organizations were asked to depose. Importantly, non-industry users of copyrighted materials — consumers, historians, teachers, students, documentary film-makers, RTI activists, independent publishers, and people like you and I — are not seen as legitimate interested parties in the copyright debate. This is amply clear from the the fact that only one MP each in the two houses of Parliament raised the issue of users’ rights at all.

Concluding Thoughts

What stands out most from this process of amendment of the copyright law, which has been going on since 2006, is how out-of-touch the law is with current cultural practices. Most instances of photoshopping are illegal. Goodbye Lolcats. Cover versions (for which payments have to be made) have to wait for five years. Goodbye Kolaveri Di. Do you own the jokes you e-mail to others, and have you taken licences for quoting older e-mails in your replies? Goodbye e-mail. The strict laws of copyright, with a limited set of exceptions, just do not fit the digital era where everything digital transaction results in a bytes being copied. We need to take a much more thoughtful approach to rationalizing copyright: introduction of general fair dealing guidelines, reduction of copyright term, decriminalization of non-commercial infringement, and other such measures. If we don’t take such measures soon, we will all have to be prepared to be treated as criminals for all our lives. Breaking copyright law shouldn’t be as easy as breathing, yet thanks to outdated laws, it is.

This was reposted in infojustice.org on May 25, 2012

For more details visit https://cis-india.org/a2k/blogs/analysis-copyright-amendment-bill-2012

CIS's Statement at SCCR 24 on the Treaty for the Visually Impaired

pranesh — 2012-07-22T12:01:28Z

This was the statement read out by Pranesh Prakash at the 24th meeting of the WIPO Standing Committee for Copyright and Related Rights in Geneva, on Friday, July 20, 2012.

Thank you, Mr. Chairman.

I would like to associate CIS with the statements made by the WBU, eIFL, IFLA, KEI, ISOC, and CLA.

We NGOs been making statements at SCCR on this the topic of a treaty for the reading-disabled since 2009 now.

In this room there are a number of organizations that work with and for persons with disabilities which come here to Geneva, SCCR after SCCR. They do not come here to watch the enactment of an elaborate ritual, but to seek solutions for the very real knowledge drought that is being faced by the reading-disabled everywhere, and particularly in developing countries.

The way work on this treaty — or rather this binding-or-non-binding international instrument — has been stalled by some member states is a matter of shame. In India our Parliament recently passed an amendment to our copyright law that grants persons with disabilities, and those who are working for them, a strong yet simply-worded right to have equal access to copyrighted works as sighted persons.

An instrument that lays down detailed guidelines on rules and procedures to be followed by authorized entities will not work. An instrument that subjects the enjoyment of fundamental freedoms by persons with visual impairments to market forces and bureaucratic practices will not work.

Importantly, an instrument that ignores realities of the world: that the vast majority of persons with visual impairment live in developing countries just will not work.

I implore the delegations here to keep up the constructive spirit I have seen most of them display in the past two days, and ensure that the 2012 General Assembly convenes a Diplomatic Conference on this topic.

For more details visit https://cis-india.org/a2k/blogs/cis-statement-sccr24-treaty-visually-impaired

CIS's Statement at SCCR 24 on Exceptions & Limitations for Libraries and Archives

pranesh — 2012-07-25T10:54:38Z

This was the statement delivered by Pranesh Prakash on Wednesday, July 25, 2012, at the 24th session of the WIPO Standing Committee on Copyrights and Related Rights on the issue of exceptions and limitations for libraries and archives.

Thank you, Mr. Chair.

We would like to associate ourselves with the statements made by International Federation of Library Associations, Electronic Information for Libraries, Knowledge Ecology International, Conseil International des Archives, Library Copyright Alliance, Computer and Communications Industry Association, and the Canadian Library Association.

The Centre for Internet and Society would like to commend this house for adopting SCCR/23/8 as a working document on the issue of exceptions and limitations on libraries and archives. This issue is of paramount interest the world over, and particularly in developing countries. I would like to limit my oral intervention to three quick points, and will send a longer statement in via e-mail.

First, we feel that this committee should pay special attention to ensuring that digital works and online libraries and archives such as the Internet Archive, also receive the same protection as brick-and-mortar libraries.

Second, we are concerned that we have been seeing some delegations advancing a very narrow interpretation of the three-step test. Such a narrow interpretation is not supported by leading academics, nor by practices of member states. A narrow interpretation of the three-step test must be squarely rejected. In particular, I would like to associate CIS with the strong statements by IFLA and KEI to maintain flexibilities within exceptions and limitations, instead of overly prescriptive provisions encumbered by weighty procedures and specifications.

We have comments about parallel trade as well, drawing from our experience and research in India, and will send those in writing.

Libraries and archive enhance the value of the copyrighted works that they preserve and provide to the general public. They do not erode it. Exceptions and limitations that help them actually help copyright holders. The sooner copyright holders try not to muzzle libraries, especially when it comes to out-of-commerce works, electronic copies of works, and in developing countries, the better it will be for them, their commercial interests, as well as the global public interest.

Thank you.

For more details visit https://cis-india.org/a2k/blogs/cis-statement-sccr24-libraries-archives

Super Cassettes v. MySpace

ujwala — 2012-10-31T10:27:36Z

The Delhi High Court’s judgment in Super Cassettes v. MySpace last July is worrying for a number of reasons. The court failed to appreciate the working of intermediaries online and disregard all pragmatic considerations involved. The consequences for free expression and particularly for file sharing by users of services online are especially unfavourable.

The judgment[*]is extremely worrying since it holds MySpace liable for copyright infringement, despite it having shown that it did not know, and could not have known, about each instance of infringement; that it removed each instance of alleged infringement upon mere complaint; that it asked Super Cassettes to submit their songs to their song identification database and Super Cassettes didn't.

This, in essence, means, that all 'social media services' in which there is even a potential for copyright infringement (such as YouTube, Facebook, Twitter, etc.) are now faced with a choice of either braving lawsuits for activities of their users that they have no control over — they can at best respond to takedown requests after the infringing material has already been put up — or to wind down their operations in India.

The Facts

Aside from social networking, MySpace facilitates the sharing of content between its users. This case concerns content (whose copyright vested in T-Series) was uploaded by users to MySpace’s website. It appears that tensions between MySpace and T-Series arose in 2007, when T-Series entered into talks with MySpace to grant it licenses in its copyrighted content, while MySpace asked instead that T-Series register with its rights management programme. Neither the license nor the registration came about, and the infringing material continued to be available on the MySpace website.

Specifically, T-Series alleged that cases for primary infringement under section 51(a)(i) of the Copyright Act as well as secondary infringement under section 51 (a) (ii) could be made out. Alleging that MySpace had infringed its copyrights and so affected its earnings in royalties, T-Series approached the Delhi High Court and filed a suit seeking injunctive relief and damages. In proceedings for interim relief while the suit was pending, the court granted an injunction, but, in an appeal by MySpace, added the qualification that the content would have to be taken down only on receipt of a specific catalogue of infringing works available on MySpace, rather than a general list of works in which T-Series held a copyright.

The Defence

While other arguments such as one around the jurisdiction of the court were also raised, the central issues are listed below:

Non-Specificity of Prayer
T-Series’ claim in the suit is for a blanket injunction on copyrighted content on the MySpace website. This imposes a clearly untenable, even impossible, burden for intermediaries to comply with.
Knowledge
MySpace argued that no liability could accrue to it on two counts. The first was that it had no actual or direct knowledge or role in the selection of the content, while the second was that no control was exercised, or was exercisable over the uploading of the content. Additionally, there was no possible means by which it could have identified the offending content and segregated it from lawful content, or monitored all of the content that it serves as a platform for.
Intermediary status and Safe Harbour Protection
In relation to its status as an intermediary, MySpace raised several arguments. First, it argued that it had immunity under section 79 of the IT Act and under the US Digital Millennium Copyright Act (US DMCA). Another argument restated what is arguably the most basic tenet of intermediary liability that merely providing the platform by which infringement could occur cannot amount to infringement. In other words, the mere act of facilitating expression over internet does not amount to infringement. It then made reference to its terms of use and its institution of safeguards (in the form of a hash filter, a rights management tool and a system of take-down–stay-down), which it argued clearly reflect an intention to discourage or else address cases of infringement as they arise. MySpace also emphasized that a US DMCA compliant procedure was in place, although T-Series countered that the notice and take down system would not mitigate the infringement.
Relationship between MySpace and its Users
Taking from previous arguments about a lack of control and its status as an intermediary, MySpace argued that it was simply a licensee of users who uploaded content. The license is limited, in that MySpace is only allowed to alter user-generated content so as to make it viewable.

Outcomes

Infringement by Facilitation
The court concluded that infringement in terms of section 51 (a) (ii) had occurred in this case, since web space is a “place” in the terms required by the section and there were monetary gains in the form of ad revenue. The argument as to a lack of knowledge of infringement was also rejected on the ground that MySpace’s provision for safeguards against infringement clearly established a reason to believe that infringement will occur. Also referenced as evidence of knowledge, or at least a reason to believe infringement would occur, is the fact that MySpace modifies the format of the content before making it available on its website. It also tested for infringement by authorization in terms of section 14 read with section 51 (a) (i), but concluded that this did not arise here.
Reading away section 79?
The court accepted the argument made by T-Series to the effect that sections 79 and 81 of the IT Act must be read together. Since section 79 would be overridden by section 81’s non-obstante, the effect would be that rights holders’ interests under the Copyright Act will erode intermediaries’ immunity under section 79.
Due Diligence
The court rejected the argument that the provision of due diligence or curative measures post-infringement would be sufficient. Specifically, the contention that the quantum of content being uploaded precludes close scrutiny, given the amount of labour that would be involved, was rejected. Content should not immediately be made available but must be subject to enquiries as to its title or to authentication of its proprietor before it is made available. In fact, it holds that, “there is no reason to axiomatically make each and every work available to the public solely because user has supplied them unless the defendants are so sure that it is not infringement.” (Paragraph 88).

There is also an attempt to distinguish the Indian framework from the DMCA. While that law calls for post-infringement measures, it is argued that in India, on reading section 51 with section 55, the focus is on preventing infringement at the threshold. In response to the case that it would be impossible to do so, the court held that since the process here requires MySpace to modify the format of content uploaded to it to make it viewable, it will have a reasonable opportunity to test for infringement.

Analysis

Accounting for the Medium of Communication

The court’s analysis of the issues begins with a predictable emphasis on how the law of copyright would operate in the context of what is termed “internet computing”, peppered with trite statements about “the virtual world of internet” creating “complexit[ies]” for copyright law. The court appears to have entered into this discussion to establish that the notion of place in section 51 (a) (ii) should extend to “web space” but the statements made here only serve to contrast starkly against its subsequent failure to account for the peculiarities of form and function of intermediaries online. Had this line of argument been taken to its logical conclusion, after the character of the medium had been appreciated, the court’s final conclusion, that MySpace is liable for copyright infringement, would have been an impossible one to arrive at.

And What of Free Speech?

As it had argued before the court, intermediaries such as MySpace have no means by which to determine whether content is illegal (whether by reason of amounting to a violation of copyright, or otherwise) until content is uploaded. In other words, there is no existing mechanism by which this determination can be made at the threshold, before posting.

The court does not engage with the larger consequences for such a scheme of penalizing intermediaries. Censoring patent illegalities at the threshold, even if that were possible is one thing. The precedent that the court creates here is quite another. Given the general difficulty in conclusively establishing whether there is an infringement at all due to the complexities in applying the exceptions contained under section 52, it should not be for ordinary private or commercial interests such as intermediaries to sit in judgment over whether content is or is not published at all. In order to minimize its own liability, the likelihood of legitimate content being censored by the intermediary prior to posting is high.

The consequences for civil liberties, and free speech and expression online in particular, appear to have been completely ignored in favour of rights holders’ commercial interests.

Consequences for Intermediary Liability and Safe Harbour Protection

Even if every instance in question did amount to an infringement of copyright and a mechanism did exist allowing for removal of content, the effect of this judgment is to create a strict liability regime for intermediaries.

In other words, the court’s ruling will have the effect that courts’ determination of intermediaries’ liability will become detached from whether or not any fault can be attributed to them. MySpace did make this argument, even going as far as to suggest that doing so would impose strict liability on intermediaries. This would lead to an unprecedented and entirely unjustifiable result. In spite the fact that a given intermediary did apply all available means to prevent the publication of potentially infringing content, it would remain potentially liable for any illegality in the content, even though the illegality could not have been detected or addressed.

What is perhaps even more worrying is that MySpace’s attempt at proactively and in good faith preventing copyright infringement through its terms of use and in addressing them through its post-infringement measures was explicitly cited as evidence of knowledge of and control over the uploading of copyrighted material, at the threshold rather than ex post. This creates perverse incentives for the intermediary to ignore infringement, to the detriment of rights holders, rather than act proactively to minimize its incidence.

A final observation is that the court’s use, while pronouncing on relief, of the fact that MySpace makes a “copy” of the uploaded content by converting it into a format that could subsequently be hosted on the site and made accessible to show evidence of infringement and impose liability upon MySpace in itself is a glaring instance of the disingenuous reasoning the court employs throughout the case. There is another problem with the amended section 79, which waives immunity where the intermediary “modifies” material. That term is vague and overreaches, as it does here: altering formats to make content compatible with a given platform is not comparable to choices as to the content of speech or expression, but the reading is tenable under section 79 as it stands.

The result of all of this is to dislodge the section 79 immunity that accrues to intermediaries and replace that with a presumption that they are liable, rather than not, for any illegality in the content that they passively host.

Effect of the Copyright (Amendment) Act, 2012

Since the judgment in the MySpace case, the Copyright Act has been amended to include some provisions that would bear on online service providers and on intermediaries’ liability for hosting infringing content, in particular. Section 52 (1) (b) of the amended Act provides that “transient or incidental storage of a work or performance purely in the technical process of electronic transmission or communication to the public” would not infringe copyright. The other material provision is section 52 (1) (c) which provides that “transient or incidental storage of a work or performance for the purpose of providing electronic links, access or integration, where such links, access or integration has not been expressly prohibited by the right holder, unless the person responsible is aware or has reasonable grounds for believing that such storage is of an infringing copy” will not constitute an infringement of copyright. The latter provision appears to institute a rather rudimentary, and very arguably incomplete, system of notice and takedown by way of a proviso. This requires intermediaries to takedown content on written complaint from copyright owners for a period of 21 days or until a competent rules on the matter whichever is sooner, and restore access to the content once that time period lapses, if there is no court order to sustain it beyond that period.

This post does not account for the effect that these provisions could have had on the case, but it is already clear, from the sloppy drafting of section 52 (1) (c) and its proviso that they are not entirely salutary even at the outset. At any rate, there appears to be nothing that *determinatively* affects intermediaries’ secondary liability, i.e., their liability for users’ infringing acts.

Disclosure: CIS is now a party to these proceedings at the Delhi High Court. This is a purely academic critique, and should not be seen to have any prejudice to the arguments we will make there.

[*]. Super Cassettes Industries Ltd. v. MySpace Inc. and Another, on 29 July, 2011, Indian Kanoon - Search engine for Indian Law. See http://bit.ly/quj6JW, last accessed on October 31, 2012.

For more details visit https://cis-india.org/a2k/blogs/super-cassettes-v-my-space

Comments on the Science, Technology and Innovation Policy (Draft)

snehashish — 2012-12-01T15:36:38Z

The Department of Science and Technology invited public comments on the Science, Technology and Innovation Policy (Draft). Accordingly, the Centre for Internet and Society has made the following comments on the draft policy document.

Department of Science and Technology,
Ministry of Science and Technology,
Government of India

Subject: Comments on the Science, Technology and Innovation Policy (Draft)

Dear Sir/Madam,

We at the Centre for Internet and Society commend the drafting of the Science, Technology and Innovation Policy 2013 (Draft). It is a well rounded policy which will pave the way for further informed policy decisions on innovation and research and development in the country.

Few of the notable and welcome policy statements are:

The Policy aims at ‘inclusive innovation’ and takes into consideration the “need to ensure access, availability and affordability of solutions to as large a population as possible”. It also aims at building a conducive environment for research and development by modifying the IPR policy to include marching rights with respect to social goods funded by public. This in line with the aim of the policy to provide access new technologies. The use of government funding in commercially viable research would not only assure better access to medicine and other technological innovations but also ensure knowledge transfer.

The policy decision to "foster data sharing and access" is most welcome and will act as a catalyst for further research and development through open and collaborative research and development.

Policy also lays emphasis on open source discoveries for "public and social good" and it is indeed a pleasure to note that the Policy wishes to build knowledge commons by collaborative generation of IPR. This will definitely go a long way in encouraging further innovation in the country.

It is also appreciated that the policy will aim at "increasing accessibility, availability and affordability of innovations" and will establish a fund for innovation in this direction.

The Policy also states that the "people" and "decision makers" should be made aware of the implications of emerging technologies, including their ethical, social and economic dimensions. Implementation of such policy is a necessity and will enable the government to make informed policy decisions in the future.

Suggestion:

It is submitted that the policy document should take into account that in order ensure ‘inclusive innovation’ and accessibility, the policy should specifically include mandates to encourage and foster innovation in technology related to accessibility tools for persons with disabilities.www.dst.gov.in/sti-policy.pdf

For more details visit https://cis-india.org/a2k/blogs/comments-on-science-technology-and-innovation-policy-draft

Comments on the Broadcast Treaty and Exceptions and Limitations for Libraries and Archives

smita — 2012-12-04T23:11:34Z

This November at WIPO the Standing Committee on Copyright and Related Rights was witness to a tough negotiation on the proposed Treaty providing access to copyrighted materials to visually impaired persons. In between these discussions, the SCCR also found time to have two short plenary sessions on the proposed broadcast treaty as well as working documents on exceptions for libraries and archives.

Although we were unable to make a statement at the SCCR due to logistical constraints, CIS had the following comments prepared on both these issues:

Treaty for the Protection of Broadcasting Organizations:

The Centre for Internet and Society would like to reiterate the statement on principles provided in the 22nd SCCR by many civil society non-governmental organizations, cable casters and technology companies opposing a rights-based Broadcast Treaty. While we are encouraged by the inclusion of more suitable alternatives in many of the areas that civil society organizations had expressed concern, it is important that these alternatives be considered carefully. Some of the alternatives in the working document are not in keeping with the mandate of this Committee and we need to ensure that any new treaty provides a balanced protection to broadcast organizations.

We wish to enumerate a few key areas that need to be emphasized once again in this regard –

To begin with, the definition of ‘broadcast’ itself should not be too broad. The treaty needs a clear and precise definition that limits the protection to signals and does not extend to retransmissions or transmissions over computer networks.

Similarly, it is essential that the protection granted to a broadcasting organization should be limited to broadcast signals. The current working document extends this protection to public accessibility/performance of the broadcast signal and such restrictions might not be feasible in developing and least developed countries. One alternative even extends the protection available to fixations of the broadcasts and this is entirely unacceptable in a signals based treaty. The obligations with regard to technological protection measures, if any, should also be limited to protect only those broadcasts that are lawful.

Limitations and exceptions to the protections granted by this treaty are also of great importance, especially so in light of the Development Agenda. These exceptions and limitations should be made mandatory and be expanded to include issues of national interest and for free-to-air broadcast signals (such as the laws governing broadcast of cricket games in India).

Lastly, as pointed out many times already, we are of the opinion that a fixed term of protection, whether 20 or 50 years, is inconsistent with the idea of a signals based approach to the treaty.

Proposed Legal Instruments on Exceptions and Limitations for Libraries and Archives and Educational, Teaching and Research Institutions and Persons with Other Disabilities:

The Centre for Internet and Society would like to thank the Secretariat and the entire Committee for the hard work being put in this week at the SCCR.

International instruments that govern exceptions and limitations for libraries and archives as well as educational, teaching and research instruments and persons with other disabilities is key to ensure a balanced global copyright system that protects both right holders and users. Such instruments will not only allow the preservation of copyrighted works, but also provide greater access to these materials, especially in developing countries.

The working documents before us cover a number of issues and we would like to address a few of them today.

First, the three-step test. This has been a contentious issue with regard to all three instruments that are being discussed here this week. We would like to reiterate that a narrow interpretation of the three-step test should not be adopted, it is important that any and all flexibilities that can be made available to libraries and archives.

Second, libraries, archives, educational, research and teaching institutions should definitely be allowed to import and export copyrighted works and parallel trade in these works should be allowed. The language used in the current working document (SCCR/24/8) needs to be improved upon (Article 14, under 4.1 on page 12). This provision should indicate that as long as the copy of the work is lawfully produced, an educational institution, library, research organization or student is free to acquire, sell, import, export or otherwise dispose of that copy.

Thirdly, we wish to emphasize once again, the importance of protecting works that are in a digital format, as well as online libraries and archives. Additionally, the transmission of these works in a digital form as well as any internet service providers engaged in facilitating access to materials under this treaty should also be granted protection.

Thank you.

For more details visit https://cis-india.org/a2k/blogs/comments-on-broadcast-treaty-and-exceptions-and-limitations-for-libraries-and-archives

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

Assocham event sparks row over conflict of interest by CCI

praskrishna — 2015-09-19T16:34:07Z

CCI Chairman Ashok Chawla is the key speaker of the conference, organised by industry chamber Assocham with Ericsson being the event partner.

The article by Dilasha Seth and Deepak Patel was published in Business Standard on August 6, 2015.

An upcoming conference on intellectual property has triggered a controversy, as a section of the civil society has urged the Competition Commission of India (CCI) not to participate in the event, sponsored by Swedish multinational Ericsson, alleging it would be a conflict of interest since the watchdog is investigating cases against the telecom company on the very same issues that will be discussed in the function.

CCI Chairman Ashok Chawla is the key speaker of the conference, organised by industry chamber Assocham with Ericsson being the event partner. The conference scheduled for Friday also has three CCI members as participants, according to the event brochure.

In a letter, signed by six civil society organisations, argued that the participation of CCI in any form in a conference organised with the financial support of Ericsson would question the integrity and independence of CCI.

On the issue, Chawla said, "I am not aware of the point raised. (I) will see and take a position."

"The participation of CCI at this conference raises serious concerns of conflict of interest. Further, CCI's sharing of platforms with private actors would compromise the credibility and independence of CCI," said the letter sent to Chawla and also marked to Prime Minister Narendra Modi, the Chief Justice of India and several other ministries.

Ericsson is currently facing three CCI investigations on matters related to Standard Essential Patents and licensing of technologies on fair and equitable terms.

"Ericsson is not only an event partner but also giving a speech at the inaugural session," says the content of the letter. "We understand that the focus of the event is on two issues viz. Standard Essential Patents (SEPs) and the competition aspects of licensing agreements," the group has argued.

A CCI member on the condition of anonymity said, "As per the competition Act, 2002, it is our responsibility to raise awareness regarding competition issues. At such forums, the discussions which happen are of conceptual level only. No specific cases are ever discussed." "We have not got the letter as yet. We will take a decision as soon as we receive it," he added.

Unless there is an interaction, how can there be awareness about these issues faced by the country, asked Assocham.

D S Rawat, the chamber secretary general, said, "This is not the first time that Assocham is organising a function on the very same subject. It has in the past organised six-seven such functions, where CCI had participated."

CCI will give its view points and others including Ericsson will also give their view points, which will not have an impact on the watchdog's decisions on specific cases, he said.

"There will always be these disgruntled people who instead of contributing positively to the society, take negative stance," he added.

When contacted, an Ericsson spokesperson declined to comment on the issue.

Alternative Law Forum (Bengaluru), Centre for Internet and Society (Bengaluru), IT for Change (Bengaluru), Knowledge Commons Collective (New Delhi), National Working Group on Patent Laws (New Delhi) and Software Freedom Law Centre (New Delhi) are the six non-governmental organisations who have collectively raised the issue.

The letter argued that all the judicial or quasi judicial bodies are expected to avoid not only actual conflict of interest but also the perceived conflict of interest.

"As you know, the conflict of interest arises when there is an actual or perceived threat of the primary interest of the organisation (CCI) being influenced by the interest of another organisation/s (Ericsson)," it said.

It also pointed out that the issue of SEPs and licensing practices was an important public interest issue and the restrictive conditions and barriers to access SEPs would affect the technological and industrial development of India. Further, it would affect the consumers by creating economic barriers to access the benefits of communication technology equipment such as mobile phones.

For more details visit https://cis-india.org/a2k/news/business-standard-august-6-2015-dilasha-seth-and-deepak-patel-assocham-event-sparks-row-over-conflict-of-interest-by-cci

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

Open Letter to PM Modi on Intellectual Property Rights issues on His Visit to the United States of America in September, 2015

Pranesh Prakash and Nehaa Chaudhari — 2015-09-25T06:43:12Z

This is an open letter by CIS to the Prime Minister, Shri Narendra Modi in light of his impending visit to the USA. This letter asks the Prime Minister to urge the USA to ratify the Marrakesh Treaty; and asks that India not be a party to TPP negotiations, in light of recent reports on a study encouraging India to join the TPP.

Shri Narendra Damodardas Modi
Hon’ble Prime Minister of India
152, South Block, Raisina Hill
New Delhi-110011

22 September, 2015

Dear Sir,

We write on behalf of the Centre for Internet and Society, India [1], a Bangalore and New Delhi based not-for-profit organization engaging in research on among others, accessibility for persons with disabilities, intellectual property rights, openness and access to knowledge. Over the past fifteen months, we have welcomed and support certain initiatives of our government as being in line with some of our research interests, specifically, the "Make in India" and "Digital India" initiatives, and your vision of a digitally empowered India, as we have noted in an earlier open letter to you. [2]

This letter is in light of your visit to the United States of America (“USA”) this month, to articulate a two-fold request: first, that during the course of your visit you request the government of the USA to ratify the Marrakesh Treaty for visually impaired persons (“Marrakesh Treaty”); [3] and second, that the Indian government not enter into any negotiations around the Trans-Pacific Partnership trade agreement (“the TPP”).

On the Marrakesh Treaty

According to figures by the World Blind Union, approximately 90% of all published material is not accessible to blind or print disabled people. [4] The severity of the ‘book famine’ experienced by the world’s estimated 300 million blind or otherwise print or visually disabled people (of which an estimated 63 million are in India) was highlighted by India in its Closing Statement at the Diplomatic Conference convened to conclude the Marrakesh Treaty. [5] India has historically been a strong advocate of the spirit of the Marrakesh Treaty, becoming the first country to ratify it in June, 2014. [6] Amendments in 2012 to India’s copyright law predated the signature to the Marrakesh Treaty. These amendments created disability and works neutral exceptions to our copyright law, well beyond the mandate of the Marrakesh Treaty.

The true realization of the promise of the Marrakesh Treaty however will remain a distant dream until the treaty comes into effect (three months) after 20 Member States have ratified it or acceded to it. [7] According to information available from the World Intellectual Property Organization [8], this number is currently only 9, and the USA is not one of the countries to have done so. The USA is home [9] to some of the largest publishers of both academic and other/leisure material including Penguin Random House, Harper Collins, John Wiley & Sons, the RELX Group, McGraw-Hill Education, Scholastic and Cengage Learning to name a few. It accounts for a large volume of the world’s book and other print material export. The active participation of the USA through the ratification of the Marrakesh treaty is critical if the treaty is to be truly effective.

During your visit, we urge you request the government of the United States of America to ratify the Marrakesh Treaty at the earliest. This will bring us one important step closer to eradicating the book famine.

On the TPP

We are concerned after reports [10] of a recent study authored by C Fred Bergsten that encourages India to join the TPP. On this front, we are in complete agreement with the reported statement of the Hon’ble Ambassador Shri Arun K. Singh, where he disagrees with some of the findings and analysis of this recent report. [11]

The TPP has come into severe criticism [12] over the years [13] from a vast multitude [14] of sources [15] (including a group of 30 law professors in 2012) [16] across the various countries that are a party to the negotiations. Among others and most relevant to us as an organization is the criticism around the secrecy of negotiations [17] as well as the content of the chapter on intellectual property in the TPP. It is our belief that eventually, India stands to lose as a result of the TPP [18] with its possible adverse impact on our economy. [19]

The rigid intellectual property protections (including criminal penalties for unintentional copying) [20] sought to be enforced through the TPP would benefit only US pharmaceutical and entertainment industries. [21] These provisions (among others) mandate the inclusion of TRIPS plus provisions in national laws, envisage possible extensions in term of protection on patents, restrict copyright exceptions and limitations, extend copyright protection terms and impose a higher liability on intermediaries; [22]all of which would be disastrous for an emerging economy such as India’s, which is a heavy user of intellectual property and not a heavy producer of the same.

Historically, India has been a supporter of a transparent, multilateral decision making process, a commitment to which was also reiterated recently by the Hon’ble Minister of State for Commerce and Industry, Smt. Nirmala Sitharaman. [23]India has also raised many of its concerns (on the secrecy of the negotiations as well as substantive provisions themselves) around the TPP and its close cousin, the Anti-Counterfeiting Trade Agreement (“ACTA”) in 2011 [24] and 2012 [25] at the World Trade Organization (“WTO”) TRIPS Council and on the ACTA in 2010, also at the WTO Trips Council. [26]

In light of the above, we strongly urge the Indian government to not engage in negotiations on the TPP. At a minimum, we would request that any engagement in TPP negotiations be preceded by national consultations on the same, soliciting input from various stakeholders with diverging interests, including academia, civil society, industry associations, large Indian corporations, small and medium enterprises and multi- national corporations, rights holders associations and other interest groups.

We thank you for the opportunity to present these views to you. We do hope that you will consider these suggestions favourably, in the interests of India’s economic and social development. We welcome any opportunity to assist you with any queries you may have with regard to these submissions.

Thank you.

Yours truly

(For the Centre for Internet and Society, India)

Pranesh Prakash, Policy Director
Nehaa Chaudhari, Programme Officer

Copies to:

Smt. Smriti Zubin Irani, Minister for Human Resource Development, Government of India.
Prof. (Dr.) Ram Shankar Katheria, Minister of State for Human Resource Development (Higher Education), Government of India.
Smt. Nirmala Sitharaman, Minister of State for Commerce and Industry, Government of India.
Shri Vinay Sheel Oberoi, Secretary (Department of Higher Education), Ministry of Human Resources Development, Government of India, Government of India.
Shri Amitabh Kant, Secretary (Department of Industrial Policy and Promotion), Ministry of Commerce and Industry, Government of India.

(Edit - 25 September, 2015) - The following people have reached out to us in support of this letter and have expressed a desire to have their signatures placed on record as support. We wish to acknowledge the same.

Prof. Dinesh Abrol - Convenor, National Working Group on Patent Laws and WTO
Dr. B. Ekbal - President, Democratic Alliance for Knowledge Freedom, Kerala
T.C. James - President, NIPO
Dr. Suman Sahai - Chairperson, Gene Campaign
Dr. Biswajit Dhar - Professor, Centre for Economic Studies and Planning, School of Social Sciences, Jawaharlal Nehru University

[1]See generally http://cis-india.org/ (last accessed 22 September, 2015).

[2]Rohini Lakshane, Open Letter to Prime Minister Modi, available at http://cis-india.org/a2k/blogs/open-letter-to-prime-minister-modi (last accessed 22 September, 2015); Centre for Internet and Society/Rohini Lakshane, Digital India & Make in India : Form a patent pool of critical mobile technologies – CIS India, available at http://www.medianama.com/2015/03/223-digital-india-make-in-india-form-a-patent-pool-of-critical-mobile-technologies-cis-india/ (last accessed 22 September, 2015).

[3]The Marrakesh Treaty to Facilitate Access to Published Works by Visually Impaired Persons and Persons with Print Disabilities adopted on June 27, 2013. Treaty text and other official documentation available at http://www.wipo.int/treaties/en/ip/marrakesh/ (last accessed 22 September, 2015).

[4]World Blind Union, Marrakesh Treaty – Right to Read Campaign, available at http://www.worldblindunion.org/English/our-work/our-priorities/Pages/right-2-read-campaign.aspx (last accessed 22 September, 2015).

[5]Pranesh Prakash, India’s Closing Statement at Marrakesh on the Treaty for the Blind, available at http://cis-india.org/a2k/blogs/india-closing-statement-marrakesh-treaty-for-the-blind (last accessed 22 September, 2015).

[6]Nehaa Chaudhari, India’s Ratification of the Marrakesh Treaty Celebrated; Accessible Books Consortium Launched, available at http://cis-india.org/accessibility/blog/indias-ratification-of-marrakesh-treaty-celebrated (last accessed 22 September, 2015).

[7]Article 18 of the Marrakesh Treaty.

[8]World Intellectual Property Organization, WIPO Administered Treaties: Contracting Parties > Marrakesh VIP Treaty (Treaty not yet in force), available at http://www.wipo.int/treaties/en/ShowResults.jsp?lang=en&treaty_id=843 (last accessed 22 September, 2015).

[9]Publishers Weekly, The World’s 57 Largest Book Publishers, 2015, available at http://www.publishersweekly.com/pw/by-topic/international/international-book-news/article/67224-the-world-s-57-largest-book-publishers-2015.html (last accessed 22 September, 2015).

[10]S Rajagopalan, US Report Pushes India to Join the Trans-Pacific Partnership, available at http://www.dailypioneer.com/world/us-report-pushes-india-to-join-trans-pacific-partnership.html (last accessed 22 September, 2015); Indo-Asian News Service on NDTV, India Can Boost Exports by $500 Billion with Trade Liberalization: Study, available at http://www.ndtv.com/india-news/india-can-boost-exports-by-500-billion-with-trade-liberalization-study-1218887 (last accessed 22 September, 2015); Raghavendra M., India can boost exports by $500 billion with trade liberalization: study, available at http://www.americanbazaaronline.com/2015/09/18/india-can-boost-exports-by-500-billion-with-trade-liberalization-study/ (last accessed 22 September, 2015); Press Trust of India in the Business Standard, India can boost exports by USD 500 bn by joining the TPP: report, available at http://www.business-standard.com/article/pti-stories/india-can-boost-exports-by-usd-500-bn-by-joining-tpp-report-115091701149_1.html (last accessed 22 September, 2015); Seema Sirohi, India must expand its trade before it gets left behind in the race, available at http://blogs.economictimes.indiatimes.com/letterfromwashington/india-must-expand-its-trade-before-it-gets-left-behind-in-the-race/ (last accessed 22 September, 2015).

[11]S Rajagopalan, US Report Pushes India to Join the Trans-Pacific Partnership, available at http://www.dailypioneer.com/world/us-report-pushes-india-to-join-trans-pacific-partnership.html (last accessed 22 September, 2015)

[12]Natasha Lennard, Noam Chomsky: Trans-Pacific Partnership is a “neoliberal assault”, available at http://www.salon.com/2014/01/13/chomsky_tpp_is_a_neoliberal_assault/ (last accessed 22 September, 2015); Zach Carter and Ryan Grim, Noam Chomsky: Obama Trade Deal a ‘Neoliberal Assault’ to ‘Further Corporate Domination’, available at http://www.huffingtonpost.com/2014/01/13/noam-chomsky-obama-trans-pacific-partnership_n_4577495.html?ir=India&adsSiteOverride=in (last accessed 22 September, 2015); Sean Flynn;, Margot E Kaminski, Brook K Baker and Jimmy H Koo., "Public Interest Analysis of the US TPP Proposal for an IP Chapter" (2011). PIJIP Research Paper Series. Paper 21. http://digitalcommons.wcl.american.edu/research/21 (last accessed 22 September, 2015).

[13]BBC News, TPP: What is it and why does it matter?, available at http://www.bbc.com/news/business-21782080 (last accessed 22 September, 2015);

[14]For a compilation on writing on the TPP see James Love, Trans-Pacific Partnership (TPP also known as the TPPA), available at http://keionline.org/tpp (last accessed 22 September, 2015); see also American University Program on Information Justice and Intellectual Property, Trans-Pacific Partnership, available at http://infojustice.org/tpp (last accessed 22 September, 2015).

[15]Zach Carter, Alan Grayson on Trans-Pacific Partnership: Obama Secrecy Hides ‘Assault on Democratic Government’, available at http://www.huffingtonpost.com/2013/06/18/alan-grayson-trans-pacific-partnership_n_3456167.html?ir=India&adsSiteOverride=in (last accessed 22 September, 2015); James Love, KEI analysis of Wikileaks leak of TPP IPR text, from August 30, 2013, available at http://keionline.org/node/1825 (last accessed 22 September, 2015); Ian Verrender, The TPP has the potential for real harm, available at http://www.abc.net.au/news/2015-03-16/verrender-the-tpp-has-the-potential-for-real-harm/6321538 (last accessed 22 September, 2015).

[16]Sean Flynn, Law Professors Call for Trans-Pacific Partnership (TPP) Transparency, available at http://infojustice.org/archives/21137 (last accessed 22 September, 2015).

[17]Sachie Mizohata, "The Trans-Pacific Partnership and Its Critics: An introduction and a petition," The Asia-Pacific Journal, Vol. 11, Issue 36, No. 3, available at http://japanfocus.org/-Sachie-MIZOHATA/3996/article.html (last accessed 22 September, 2015).

[18]Vijay Rajamohan, Trans-Pacific Partnership – Should India Join this Mega Trade Deal?, available at http://swarajyamag.com/world/trans-pacific-partnership-should-india-join-this-mega-trade-deal/ (last accessed 22 September, 2015).

[19]Sylvia Mishra, How will the Trans-Pacific Partnership affect India?, available at http://www.observerindia.com/cms/sites/orfonline/modules/analysis/AnalysisDetail.html?cmaid=85684&mmacmaid=85685 (last accessed 22 September, 2015).

[20]Gabrielle Chan, Trans-Pacific Partnership: a guide to the most contentious issues, available at http://www.theguardian.com/world/2013/dec/10/trans-pacific-partnership-a-guide-to-the-most-contentious-issues (last accessed 22 September, 2015).

[21]James Love, New leak of TPP consolidated text on intellectual property provides details of pandering to drug companies and publishers, available at http://www.keionline.org/node/2108 (last accessed 22 September, 2015); Vijay Rajamohan, Trans-Pacific Partnership – Should India Join this Mega Trade Deal?, available at http://swarajyamag.com/world/trans-pacific-partnership-should-india-join-this-mega-trade-deal/ (last accessed 22 September, 2015) referencing Paul Krugman.

[22]William New, Leaked TPP Draft Reveals Extreme Rights Holder Position Of US, Japan, Outraged Observers Say, available at http://www.ip-watch.org/2014/10/17/leaked-tpp-draft-reveals-extreme-rights-holder-position-of-us-japan-outraged-observers-say/ (last accessed 22 September, 2015).

[23]Lalit K Jha, India not being left out of global trade pacts: Minister, available at http://www.thestatesman.com/news/business/india-not-being-left-out-of-global-trade-pacts-minister/91679.html (last accessed 22 September, 2015).

[24]Thirukumaran Balasubramaniam, WTO TRIPS Council: India raises concerns on ACTA and TPPA on discussion of “Trends in the Enforcement of IPRs”, available at https://donttradeourlivesaway.wordpress.com/2011/10/29/wto-trips-council-india-raises-concerns-on-acta-and-tppa-on-discussion-of-trends-in-the-enforcement-of-iprs/ (last accessed 22 September, 2015).

[25]Thirukumaran Balasubramaniam, 28 Feb 2012: Intervention delivered by India at WTO TRIPS Council on IP Enforcement Trends noting concerns with ACTA and TPPA, available at http://keionline.org/node/1376 (last accessed 22 September, 2015).

[26]Kanaga Raja, ACTA comes in for criticism at the TRIPS council, available at http://www.twn.my/title2/wto.info/2010/twninfo100606.htm (last accessed 22 September, 2015).

For more details visit https://cis-india.org/a2k/blogs/open-letter-on-intellectual-property-rights-issues-during-your-visit-to-the-united-states-of-america-in-september-2015

Methodology: Statements of Working (Form 27) of Indian Mobile Device Patents

rohini — 2017-09-10T15:19:51Z

In India, if a patent is not locally worked within three years of its issuance, any person may request a compulsory license, and if the patent is not adequately worked within two years of the grant of such a compulsory license, it may be revoked. In order to provide the public with information about patent working, India requires every patentee to file an annual statement on “Form 27” describing the working of each of its issued Indian patents. We conducted the first comprehensive and systematic study of all Forms 27 filed with respect to mobile devices. We tried to empirically establish the extent to which patentees and licensees comply with the statutory requirement to declare information about the working of their patents. Research assistance was provided by interns Anna Liz Thomas and Nayana Dasgupta.

The research paper on patent landscape, Patents and Mobile Devices in India: An Empirical Survey, [PDF] was published in the Vanderbilt Journal of Transnational Law (2017).

The research paper on "Patent Working Requirements and Complex Products: An Empirical Assessment of India's Form 27 Practice and Compliance" has been published here (July 2017).

The dataset of all the Form 27 studied for this paper has been published here.

Research Questions

How many annual Form 27 submissions have been made to the Indian Patent Office for 4,419 granted patents identified in the landscape of mobile device patents in India?
How many patents have no corresponding Form 27 filed yet?
How many Form 27 submissions from those found are defective?
Is there an identifiable pattern in the defects and discrepancies?
Is there any discernible trend in filing of Form 27 over time and with respect to patent owners?

The objective of this paper is to quantitatively determine the extent to which patentees and licensees comply with the statutory requirement to declare information about the working of their patents according to Section 146(2) of the Patents Act, 1970 read with Rule 131 of the Patent Rules, 2003.

Section 146(2): Without prejudice to the provisions of sub-section (1), every patentee and every licensee (whether exclusive or otherwise) shall furnish in such manner and form and at such intervals (not being less than six months) as may be prescribed statements as to the extent to which the patented invention has been worked on a commercial scale in India.

Rule 131: Form and manner in which statements required under section 146(2) to be furnished

The statements shall be furnished by every patentee and every licensee under sub-section (2) of section 146 in Form 27 which shall be duly verified by the patentee or the licensee or his authorised agent.
The statements referred to in sub-rule (1) shall be furnished in respect of every calendar year within three months of the end of each year.
The Controller may publish the information received by him under sub-section (1) or sub-section (2) of section 146.

Object

The research object is Form 27 submissions made annually to the Indian Patent Office for the 4,419 granted patents.

4,052 of these patents were identified in the landscape (“the patent landscape”) developed by the Centre for Internet and Society as a part of ongoing research on patents pertaining to sub-USD-100 mobile devices sold in India. The dataset of the patent landscape can be accessed here. Another 367 patents pertaining to mobile technology identified during the landscaping exercise but excluded from it, were added to the initial set of 4,052 patents.

A blank copy of Form 27 is available here. The pro forma is defined as per Schedule II of Patent Rules, 2003.

Research Methods

[Corresponding research questions

How many annual Form 27 submissions have been made to the Indian Patent Office for 4,419 granted patents identified in the landscape of mobile device patents in India?
How many patents have no corresponding Form 27 filed yet?
How many Form 27 submissions from those found are defective?]

Outsourcing the searching of the submitted copies of Form 27 to a contractor

Owing to the repetitive nature of the process for collecting the forms, as well the large scale of the project, the task of searching was outsourced to a contractor. Price quotations were invited from five data entry operators and two firms of patent attorneys. On the basis of the quotation, deliverable time, scope and nature of the results delivered, and quality assurance, the contract was awarded to one firm. The firm offered the best price for a commensurate deliverable time and assured quality of results.

Form 27 retrieval online

Form 27 were searched from IPAIRS (Indian Patent Information Retrieval System) and InPASS (Indian Patent Advanced Search System) public databases of the Indian Patent Office.

InPASS has two features: Application Status and E-Register. We checked both features, in case forms not found through one could be located through the other. We indeed found that, sometimes, the forms not available on E-register could be found through the Application Status table, and vice versa.

Case 1: Accessing form 27 using Application Status tab on INPASS

A search portal is located at ipindiaservices.gov.in/publicsearch.

Enter the patent number in the “Patent Number” search field without the kind codes (IN) and click on “Search”. E.g., for patent number IN263932B, enter ‘263932’ in the “Patent Number” field.
Once the queried patent is displayed, select the “Application Status” tab to access the list of documents that were filed for the requested patent.

In the Application Status tab, scroll down to the bottom to view “Application Status table”. Click on the “View Documents” button to access the list of the documents filed for the queried patent. A pop-up window opens with the results.

In the window, a list of hyperlinks to various documents is displayed. Sometimes Form 27/ working statement is explicitly named so. At other times, it may have a different title. Once you click on the form 27 link, a PDF file opens in a new tab. There may be more than one Form 27 in the list of documents as Form 27 is an annual submission.

Case 2: No record of Form 27 found (Application status tab)

If the form is not present on InPASS, that is, if it has not been uploaded to the website, or if it has not been submitted to the Indian Patent Office (IPO), then it will not be displayed in the list of documents described in Case 1, step 5. Such instances have been logged as “No record found”.

Case 3: Accessing form 27 using E-Register tab on INPASS

At http://ipindiaservices.gov.in/publicsearch, a patent search portal is displayed. Enter the patent number by following the same steps as described in Case 1 until the queried patent is displayed. Select the “E-register” tab to access the e-register data corresponding to the queried patent.

In the “E-register” tab, scroll to the bottom to view the “Information u/s 146” table. The “Information u/s 146” table includes a list of Form 27 filed for the queried patent. As visible in the screenshot below, on clicking the “261762_2015” hyperlink, Form 27 for the queried patent opens. There could be multiple form 27s corresponding to different years.

Case 4: No record of Form 27 found (E-register)

If the form is not present in the E-register, that is, if it has not been uploaded to the website or if it has not been submitted to the IPO, then the E-Register tab displays “Eregister Not Available”.

Case 5: Searching on IPAIRS

Both InPASS and IPAIRS fetch forms from the same URL. However, we observed that one search engine sometimes displays the forms when the other doesn’t. The IPAIRS search engine was used when Form 27 was not found on InPASS.

IPAIRS patent search homepage: http://ipindiaonline.gov.in/patentsearch/search/index.aspx On the home page, in the Application Status tab, enter the full patent application number and CAPTCHA.
A window containing information pertaining to the patent application opens. At the bottom of the window, there is a “View Documents” button.

On clicking on “View Documents”, a new window with list of hyperlinked documents opens as described in Case 1, Step 5.

The URL for the new window displayed via “View Documents” on IPAIRS is the same as the URL displayed via “View Documents” in the “Application Status” tab on InPASS. For example, for patent number 263932, the URL for this window is the same on IPAIRS and InPASS: http://ipindiaonline.gov.in/patentsearch/GrantedSearch/viewdoc.aspx?id=Bx6eZ7YQLgsl3yH1LqKHjg==&loc=wDBSZCsAt7zoiVrqcFJsRw==

Form 27 retrieval via Right To Information (RTI) requests

CIS filed two requests under the RTI Act, 2005 with the Office of the Controller General of Patents, Designs, and Trade Marks in Mumbai.

CIS' RTI application to the Indian Patent Office in Mumbai, March 2016 [PDF]. The IPO's reply, April 2016 [PDF].

(View text: https://cis-india.org/a2k/blogs/rti-request-to-indian-patents-office-for-form-27-statement-of-working-of-patents-march-2016)

CIS' RTI application to the IPO in Mumbai, June 2015 [PDF]. The IPO's reply, June 2015 [PDF].

(View text: https://cis-india.org/a2k/blogs/rti-request-to-indian-patents-office-for-form-27-statement-of-working-of-patents-2015)

InPASS and IPAIRS yielded Form 27 for 1,999 patents out of 4,419. For Form 27 pertaining to 61 of the remaining patents, CIS made a request in March 2016 under the Right to Information Act (2005) to the office of the Indian Patent Office located in Mumbai.

How the 61 patents were chosen
37 of the 50 companies in the patent landscape owned granted patents. We took one patent from each of the 37 companies. [See Annexure 4 (PDF)of Methodology: Patent landscaping in the Indian mobile device market] The remaining were patents litigated in India, as well as patents transferred from one of the companies in the landscape to another.

IPO’s reply to the March 2016 RTI application
The IPO replied in April 2016 that it could provide CIS with forms for eleven of the requested patents. As for the rest of the forms, the IPO stated, “As thousand [sic] of Form-27 are filed in this office, it is very difficult to segregate Form-27 for the patent numbers enlisted in your RTI application as it needs diversion of huge official/ staff manpower and it will affect day to day [sic] work of this office.”

Repeating the Form 27 search online

A few days after CIS received the reply from the IPO, Form 27 pertaining to patents in the landscape started appearing on InPASS and IPAIRS E-register portal. CIS’ contractor repeated the search for forms for all 4,419 patents as some forms filed in 2016 and 2015 were found. Forms for additional 1,003 patents were found, taking the number of patents with at least one corresponding form to 3,002.

Of the 1,417 patents for which forms were not found, 481 are either expired or there is no log corresponding to them in the E-Register.

Schema for the results

Information from the Form 27 was logged into a spreadsheet with the following heads:
Serial Number -- Assignee -- Patent Number -- Status -- Application Date -- Grant Date -- Title -- Application Number -- Form 27 presence -- Multiple Forms -- Number of years -- Year -- If Worked -- Working/ Non-working Status -- Working/ Non-working Information -- Licensing Status -- Licensing Information -- Comments.

Detailed legend and process of logging the results

Assignee: Name of the company that owns the patent. Annexure 4 [PDF] lists 50 companies studied for the patent landscape. 37 of those companies owned patents in India. Thus, the assignee could be one of 37 companies among the 50 in Annexure 4. Where two assignees are mentioned, the patent was transferred from the second assignee to the first on account of sale of the patent, company merger, etc. For example, "Huawei|NEC" indicates that a patent that belonged to NEC was transferred to Huawei.

Form 27 presence: Whether or not Form 27 was found. Entries in this column are either “Yes” or “No”. If case Form 27 was not found, the subsequent columns are unpopulated.

Multiple Forms: If more than one Form 27 was found, the number of years for which it was found. In some cases, more than one form was found for the same patent for the same year. We have considered these instances as a single form for the same year and noted the defect in the “Comments” column.

Year: The year for which the form was filed. This information was found in #2 of the pro forma of Form 27. In the case of patents with Form 27 filed for more than one year, the entries for different years have been logged into consecutive rows.

If Worked: This information was found in 3(i) of the pro forma. Depending on whether the text of Form 27 states that the patent was “worked” or “not worked”, results have been logged as either “Yes” or “No”. In instances where it is not explicitly stated whether the patent has been worked or not, or where 3(i) is blank, the results are logged as “Not disclosed” with a description of the defect in the “Comments” column.

Working/ Non-working status: Corresponds to 3(i)a in the case of patents stated as “worked” and to 3(i)b in the case of those stated as “not worked”. The results have been marked as:

Description is generic (future use)
Description is generic (present use)
Description is specific
No description

Description is generic (future use): No specific information been provided as required by 3(i)a or 3(i)b. The description indicates that in the future the patentee might “work” or license the patent or do both. E.g: “May be worked in the future depending on the market demand and when technology is mature.”

“We are still assessing the commercial and technological aspects of working of this patent in India and negotiating marketing and distribution of patented product with related parties.”

“Technical developments [sic] are still continuing” or “Negotiations and technical developments [sic] are still continuing”.

Description is generic (present use): No specific information been provided as required by 3(i)a or 3(i)b. The description indicates that the patentee may be “working” the patent. E.g:, “DUE TO THE NATURE OF THE INVENTION, IT IS NOT POSSIBLE TO DETERMINE ACCURATELY WHETHER THE PATENTED INVENTION HAS BEEN WORKED IN INDIA OR NOT. Improvements in the invention are continuing to be made. The Patentee is actively looking for licensees and customers to commercialise the invention in the Indian environment.”

“... This patent is among a large number of patents in the patentee’s complex portfolio which may cover the products services and embedded technologies provided by the patentee or its licensee(s) in India. This patent might worked [sic] in India in some of the patentee(s) existing or future products, services and embedded technologies. Given the extremely Iarge number of patents that may apply to any given product or service of the patentee, it is very difficult to Identify and accurately update which of those patents would apply to the numerous products, services and embedded technologies.”

Description is specific: Specific information has been provided as required in 3(i)a or 3(i)b.

E.g, “Quantum of the patented product-303520 and value of the patented product in INR-2790524299”.

No description: 3(i)a and 3(i)b are blank.

Working/non-working information: Contains the full text of the descriptions mentioned in “Working/non-working status” column. These have been reproduced verbatim from Form 27 filings.

Licensing status: States whether or not the patent has been licensed as per 3(ii) of the pro forma for Form 27. Results are logged as “Yes” (licensed), “No” (no-licensed), “Cross-licensed” and “Not disclosed”.

“Not disclosed” indicates that the response to 3(ii) is either blank or there is an explicit statement that licensing information would not be disclosed on Form 27. E.g: “As all the licenses are confidential in nature, the details pertaining to the same are not being disclosed herein and may be provided to the Patent Office as and when the same is specifically directed by the Patent Office under sealed cover so that such details are not laid open in public domain.”

Licensing information: Contains the full text of the response reproduced verbatim from 3(ii). (Blank fields when there is no text in 3(ii))

For patents marked as licensed, this column contains the names and addresses of licensees and/ or sub-licensees.

For patents marked as not-licensed, this column is either blank or contains statements such as, “Information Not readily available; efforts will be made to collect and submit further information, if asked for.”, “None”, “No licensees”.

For patents marked as “cross-licensed”, the patentee states that it has a cross-licensing agreement with its licensees. E.g: “There is a cross license agreement between <company name> and at least one licensee, giving mutual rights to produce despite monopoly afforded by patents that are hold by any of the companies. There is no information available on whether the technology of said patent is included products sold by such licensee. As all the licenses are confidential in nature, the details pertaining to the same shall be provided under specific directions from the Patent Office.”

Comments: Contains information about defects and notable observations from the Form 27 submissions.

Validation of results

Validation of the results was done via deduplication first and then random sampling of 10% of the results.

Analysis of results

[Corresponding research questions:
4. Is there an identifiable pattern in the defects and discrepancies?
5. Is there any discernible trend in filing of Form 27 over time and with respect to patent owners?]

The results logged into the spreadsheet were analysed to find a pattern in the defects in the submissions. Visualisations will be created, if necessary.

Prior Art

Extraordinary writ petition in the matter of a public interest litigation, filed in the High Court of Delhi, Shamnad Basheer vs Union of India and others, C.M. No. 5590 of 2015 http://spicyip.com/wp-content/uploads/2015/05/FORM-27-WP-1R-copy.pdf

The petitioner(s) “sought to investigate the commercial working of certain patented inventions in India, particularly in relation to three key areas”. One of these areas include telecommunications technology. Para 53 to 58 of the writ elucidate on the petitioners’ observations and findings on “High technology patents and trolls”, while para 59 and 60 refer to the linkage between patents and products. Annexure P-8 of this petition contains copies of Form 27 filed by Ericsson in India. Annexure P-11 contains a “summary of findings of Form 27 investigations conducted by the petitioner”. Annexure P-4 (II. Telecommunications Sector) contains a list of 58 patents pertaining to the telecommunications domain in India. 21 of these are coincide with the patent landscape mentioned in “Research Object”.
Basheer had published a report in 2011 based on the findings of his RTI investigation of Form 27 pertaining to pharmaceutical patents in India. The report titled “RTI Applications and “Working” of Foreign Drugs in India?” is available at: http://www.spicyip.com/docs/Workingpatents.doc The report sheds light on lack of filing, incomplete filing and violation of patent working norms by pharmaceutical companies. He states having encountered difficulties during the RTI process: The RTI process was a very arduous one, with the patent office refusing information or claiming missing files in some cases. We had to resort to the appellate procedure in almost all cases. And in one case concerning the drugs Tarceva and Sutent, both the CPIO (Delhi office) and the appellate authority refused to provide information. We had to then take the matter up directly with Controller General PH Kurian who immediately ordered that the information be provided. Upon his instructions, the information was provided within 24 hours. However, we received this information only on the 4^th of April 2011, more than 6 months since we began the RTI process! (Source: Drug Firms and Patent "Working": Extent of Compliance with Form 27 http://spicyip.com/2011/04/drug-firms-and-patent-working-extent-of.html

Limitations

If Form 27 is not found on InPASS or INPAIRS, it is not possible to determine if the form has not been submitted to the IPO or it has been submitted but the IPO has not uploaded it. There is no publicly available database or log where such information is available.
Technical issues with the IPAIRS website hampered the speed of searching for and downloading Form 27. At the time of trial run in May 2015, the website was not available for nearly a week. Technical issues also lead to conflicting search results on IPAIRS and INPASS at times. For example, the form may be available via one search engine but not via another, even though they are fetched the files from the same database. Runtime errors occur due to browser caching.

Edited, September 10, 2017: To add -- URLs of the research paper on Form 27 published in July 2017, and of the dataset containing raw data, which was published and licensed CC-BY-SA 4.0.

For more details visit https://cis-india.org/a2k/blogs/methodology-statements-of-working-form-27-of-indian-mobile-device-patents

Workshop on Innovation, Economic Development and IP in India and China

Anubha Sinha and Rohini Lakshané — 2016-10-09T04:41:38Z

Anubha Sinha and Rohini Lakshané presented at the SMU-JINDAL-RENMIN Workshop on “Innovation, Economic Development, and IP in India and China,” co-organised by the Singapore Management University, O.P. Jindal Global University, and Renmin University of China, in Delhi during September 27-28, 2016. Amitabh Kant, Chief Executive Officer, NITI Aayog, delivered the inaugural address at the workshop.

Workshop Brochure: Download (PDF)

Anubha Sinha - "Investigating Limits to Innovation and Peer Production in India's Mobile Apps Economy"

Slides: Download (PDF)

Rohini Lakshané - "Exploring Open Hardware in Mass Produced Mobile Phones"

Slides: Download (PDF)

For more details visit https://cis-india.org/a2k/news/workshop-on-innovation-economic-development-and-ip-in-india-and-china