Centre for Internet and Society

Mapping Institutions of Intellectual Property: Part B — India's National Program on Intellectual Property Management

nehaa — 2014-06-26T15:27:18Z

As a second part in the series on Mapping Institutions of Intellectual Property this blog post deals with the documents introduced at the Stakeholders’ Consultation for India’s National Program on Intellectual Property.

Many thanks to CIS interns Jessamine Matthew, Tanvi Mani and Upasana Chauhan for their support on this.

On the 21st of February, 2014, the Planning Commission and the Ministry of Human Resource Development (“MHRD”), Government of India organized a Stakeholders Consultation at New Delhi (“the Consultation”) to discuss India’s National Program on Intellectual Property Management. (Click here: http://cis-india.org/a2k/blog/mapping-institutions-of-intellectual-property-part-a to read our post about this, the first in this series on mapping institutions of intellectual property). I attended this Consultation on behalf of CIS. Discussions were informed by three documents introduced at this meeting, the important parts of which have been summarized below:

Report of the Evaluation Committee on Continuation of the Scheme of Intellectual Property Education, Research and Public Outreach (IPERPO) (“the Scheme”) in the XII Five Year Plan Period 2012-2017 (PDF, 21378 Kb)

Introduction

The Evaluation Committee involved in the preparation of this report comprised of Prof. Sudhir K. Jain, Shri T.C. James and Shri J.R. Agarwal. The rationale behind such scrutiny was to yield recommendations with regard to whether the Scheme should be continued or not. And if the answer was found to be in affirmative, to analyze the scope for improvement, phasing of expenditure and setting of targets for each component of the Scheme.

Essentially the report seeks to analyze the overall impact of the Scheme in the discipline of IP rights with respect to education and awareness. It examines the trajectory of progress of the MHRD-IP Chairs and assesses ways to monitor them more efficiently. In addition to that it also analyzes the procedure adopted to release grants to the Chairs and to recognized universities and explores the possibility of widening the scope of the Scheme.

Genesis of the Scheme

The Scheme was formulated to encourage study of IP rights and research, and create awareness about copyright and IP matters. It also aimed to develop specialized courses, train enforcement personnel, organize seminars and workshops on IPR matters, develop inputs, awareness on WTO matters and evolve strategies of regional cooperation.

Under the Scheme, the purposes for which expenditure is to be incurred by the Ministry are clearly chalked out. The details of the same are given in the Report of the Committee. It also lays down the eligibility of Institutions/ Organizations that are to be selected under the Scheme.

MHRD-IPR Chairs

Around 20 MHRD-IPR Chairs have been set up across various universities, IITs and National Law Universities for growth and development of IPR education, research and training. The staff –pattern followed for MHRD-IPR chair is one Chair Professor, two Research associates, one Steno-cum- Documentation assistant and one group-D employee. Such appointments are supposed to be made in accordance with the rules and guidelines of the UGC. Apart from the recurring expenditure towards salaries of the above-mentioned staff, the Chairs have also been given a non-recurring provision for library, equipments and ancillary items. However, such grants are to be given upon fulfilment of certain conditions imposed under the Scheme.

The working of MHRD-IPR Chairs is overlooked by two committees-namely, the ‘Coordinating Committee’ and ‘Review Committee’. The Coordinating Committee is responsible for discussing proposed activities and resolving pending disputes while the Review Committee review their progress periodically.

Observations on Performance of IPR Chairs

Inability to find a suitable Professor level person to occupy the IPR Chair.
Absence of qualification- criteria for the IPR Chair in the Scheme.
Less focus on research component, development of human resource and teaching.
Few IPR-Chairs have appointed full staff which is complementary to their working.
Flow of fund to IPR-Chairs is interrupted dur to lack of proper documentation.
Uncertainty about the continuation of IPR Chairs which has a detrimental effect on their performance.
Active participation in seminars and workshops organized by universities, institutes and colleges on IPR awareness.

Plan Allocation and Expenditure

There exists variations with respect to allocation and actual expenditure of funds due to various reasons.

New Initiatives to be taken during XII Plan

New IPR-Chairs should be established to encourage research in the field of IPR and create a pool of trained human resources.
IPR Centres/ Cells should be set up and they should be linked to the IPR-Chairs.
Internal Monitoring and Information Systems should exist for effective implementation of the Scheme.
National Seminars/ Conference should be held annually.
World Intellectually Property Day should be celebrated annually with various themes as decided by WIPO.
Awareness about copyright and IPR should be spread through print and electronic media.
Copyright Office should be strengthened and modernized to bring it at par with offices in the USA, UK.

Specific Recommendations

The Committee recommended that the post of IPR-Chairs needs to be incentivized and given full functional autonomy. Moreover, the support provided by Government to the Chairs should be long-term.
The appointment of academic and administrative staff needs to be revised periodically.
Only publicly funded universities and institutes of higher learning should be beneficiaries to this Scheme.
The proposed activities and achievements of the IPR Chairs should be made public.
IPR Chairs should provide assistance to the Central Government by way of research and providing solutions to policy problems and issues.
Some flexibility should be allowed with respect to documentation for uninterrupted flow of accounts.
Provision for replacement/ purchase of equipments.
It should be made mandatory for IPR-Chairs to appoint full staff and conduct lon term training programmes in advanced areas of IPR at the national level.
The work of the IPR Chairs needs to be chalked out explicitly by the Scheme.
Having a scheme for converting the well-functioning Chairs into Specialized IPR Centres with the participation of MHRD.
Raising awareness on IPR issues and problems by holding workshops and seminars. Moreover, universities and colleges should ensure adequate participation in such seminars/ workshops.
School-curriculum should include Chapters on IPR.
Modernization of the Copyright Office should be considered to be a priority to ensure easy access and to make copyright registration easier.

Note on the establishment of an Inter-University Centre for Intellectual Property Rights

Background

The Inter-University Centre for Intellectual Property Rights (“the Centre”) will be established under UGC/ Ministry of HRD, Government of India. Broadly, the mission of this independent autonomous Policy Research Centre is to provide research and policy inputs in the arena of IPR. The targeted audience for these inputs will be the State and Central Governments. In addition to that, it also seeks to serve as a connecting bridge for dialogue between developing countries on IPR. To actualize the mission, it will work on inter-disciplinary research and disseminate information on various socio-legal and other aspects of IPR. It will also promote, integrate and develop models and mechanisms associated with IPR.

Functions

In order to make IPR resources more accessible, the Centre will establish a repository of such resources by entering into collaboration with other organizations and institutions. It will also provide assistance to stakeholders by ways of and not limited to organization of seminars, awareness programmes. As a means to encourage inter-disciplinary research which is quintessential for this Centre, it would offer visiting fellowships and forge links with national and international research institutions. As a nodal centre with respect to interfacing government on IP matters, it will also have the added responsibility of reviewing performance of MHRD-IP chairs.

Broad Deliverables and Outcomes of the Centre

The Deliverables of this Centre world would include Policy Research Inputs, Research Publications, Research Monographs, Treaty Analysis, Sensitization Programmes and National and International Conferences. On the other hand, the outcomes would include Research on thrust areas, Knowledge Management in IPRs, IPR Online Resources and discussions.

Linkages

The Centre seeks to link MHRD-IP Chairs, Industry Associations, Civil Society Advocacy Groups and Public Institutes with IPR research capacity.

Organizational Structure and Funding

The organizational structure of the Centre would include the Governing Council, Governing Board and the Research Advisory Council. Each Council/ Board will comprise of Chairman, Ex-Officio Members and Nominated Members. The individuals who are responsible for the nomination of members to these structures are the President, Chairman of the GB and Chairman of the Centre respectively. It has laid down the specification of such composition in its note on establishment.

For the purpose of funding, the Centre would depend on UGC for its building infrastructure, salary and non-salary components. In addition to that it will also aim to create its own corpus by means of consultancy and other grant-in-aids. Towards capital expenditure, the required allocation would be Rs. 65 crores. While the revenue expenditure is estimated at Rs. 25 crores annually. A detailed break-down of the expenditure also been laid down by the Centre in its note.

Discussion Paper for the Establishment of a National Institute for Intellectual Property Rights

Introduction

The National Institute for Intellectual Property Rights (“the Institute’) will be established as an autonomous policy research institute under the Department of Higher Education, Ministry of Human Resource Development, Government of India. It envisages a specialization in policy research and development cooperation in the field of IP rights. Further, it aims to provide multi-stakeholder collaborations in the fields of IPRs. It will provide policy inputs to the government of India for formulating legislations and international agreements. The Institute will serve as a common platform for dialogue among developing countries on IPR issues. Moreover, it will act as a ‘Hub and ‘spoke’ model to connect and coordinate with the MHRD IPR Chairs/ other institutions working in the field of IPRs.

Vision: To be an institute of excellence in policy research and advocacy of IPR.

Mission: To provide effective research and policy inputs in the field of IPR.

Objectives

The Institute would serve as a think-tank to provide policy inputs on IPR at a regional, national and international level. It would work on interdisciplinary research involving multi-stakeholders and focus on IPR trade related issues and their impact on socio-economic aspects at regional, national and international levels. Further, it would disseminate information regarding the social, legal, ethical and economic aspects of IPR. It would endeavour to promote, integrate and develop ‘Academia-Industry’ knowledge structures. Models and mechanisms associated with IPR. Further, it would coordinate the activities of ‘MHRD-IPR’ chairs on behalf of the Ministry of HRD. Lastly, it would engage in capacity building and provide inputs on IPR policy makers including the judiciary.

Functions

In order to realize the objectives elucidated, the Institute would perform the following functions. It would undertake inter-disciplinary research and provide necessary inputs to the State and Central governments to formulate the required policy in IPR. It would further establish a repository of IPR resources in collaboration with various academic institutions, organizations, chairs and stakeholders engaged in IPRs. It would also offer visiting fellowships to encourage multi-disciplinary research. It would organize and participate in seminars, conferences and awareness programs. It would also undertake consultancy and conduct training in IPR to assist various stakeholders. Additionally, it would forge links with national and international IP research institutions/ organizations and act as a nodal institute to interface various Ministries/Departments of the Government on IP related matters. In furtherance of its adjudicative functions it would also undertake a review on the performance of MHRD-IPR chairs on behalf of the Ministry of Human Resource Development. Lastly, it would offer a Ph.D program in IPR in association with reputed Universities/ Institutions in India and abroad.

The Institute will mainly focus on: (I) Research, (ii) Policy and Advocacy, (iii) International Collaboration and (iv) Developmental Agenda

The Broad Deliverables and outcomes of the Institute include:

Deliverables : (i) Policy Research Inputs (ii) Research Publications (iii) Research Monographs (iv) Treaty Analysis (v) Sensitization Programs (vi) National and International Conclaves/Conferences/Roundtables

Outcomes: (i) Research on thrust areas: Preparation of occasional briefs/ annual briefs and discussion papers/ books/journals. (ii) Knowledge and Management of IPRs: Documenting and mapping the competencies on various segments of IP (iii) IPR Online resources: Online documents relating to IPR policy inputs (iv) National/ International Conferences/ Public Debate and Distinguished Lectures: To provide a common platform for deliberation on contemporary IPR practices, issues and critical analysis.

Linkages and Network

The Institute will establish linkages and network with:

MHRD-IPR Chairs
Industry Associations (National and International)
Civil Society Advocacy Groups
Public Institutes with IPR research capacity

Organizational Structure

The organizational structure of the Institute would include the following sub committees:

Steering Committee: Ex-Officio Members: The Secretary, DHE,MHRD would be the president of the Committee. The members would include the Secretary of The DIPP,MOC, The Secretaries of the Ministry of Environment and Forests and The Department of Science and Technology, The Joint Secretaries of the (BP&CR),MHRD and the DIPP. MOC, GOI, The Director of (BP&CR),MHRD, The Vice Chancellor, Delhi University (Host Institution) and the Director of the NIIPR. The Members nominated by the President are the Two Members from the governing board, the two vice- chancellors of Universities having MHRD Chairs, the two directors of IITs/IIMs having MHRD IP Chairs and the two experts from the regulatory/ research councils.
Governing Board: The Chairman of the governing board shall be appointed by the president of the Steering Committee as per the procedure given in Rule 33.
Ex-Officio Members: These members include the Joint Secretary (BP&CR),MHRD, Joint Secretary (DIPP),GOI, The Director (BP&CR),MHRD and The Director, NIIPR who will be the member Secretary.The members nominated by the Chairman of the GB includes the Two Faculty Members of the Institute, The Two MHRD IPR Chair professors and Three National and International Experts in the field of IPR.
The Research Advisory Council: The Director of the Institute is the Chairman of the Research Advisory Council. The Ex-Officio Members include the Deans and Two Professors of the Institute. The members nominated by the Chairman include two IP experts and one representative each from The Ministry of Culture, Arts, Agriculture, Information technology, Environment and Forests, Science and Technology and External Affairs, Two representatives from Civil Society Advocacy Groups and the Administrative Officer of the Institute would be a Non Member Secretary.

Funding

The Institute will be established by UGC funding for its building, infrastructure salary and non-salary components. The institute will also strive to create its own corpus by way of consultancy and other grant-in aids from relevant National/ International Organizations to compliment the UGC funding. Required allocation is estimated at Rs 65 crore towards capital expenditure relating to acquisition of land, building (Academic Block, Conference Halls, Guest House, Administrative Block, Faculty Quarters, Equipment, IT infrastructure etc) The revenue expenditure is estimated at Rs. 25 crore annually, towards meeting the operating activities of the proposed Institute.

The report also contains particulars with respect to staff requirements. It also contains estimates with respect to Non-recurring Capital Expenditure and Recurring Expenditure per annum.

Lastly, attached along with the report is the Memorandum of Association for the National Institute for Intellectual Property Rights.

The memorandum contains the objectives, functions, members of the Steering Committee and the Rules of the Institute.

The Rules include the functions and powers of the Governing Board. The Board is to carry out the objectives of the Institute. It will be subject to the limitations of the Department of Higher Education, MHRD (the Department will also have the power to inspect the Institute at any time). The Governing Board will have the power to:

Manage the affairs of the Institute, consider annual and supplementary budgets,
Create and abolish emoluments structures of various posts,
Appoint staff to these posts,
Enter into agreements with the Central or State Governments or public or private organisations or individuals for grants, donations etc,
Appoint Committees or Sub-Committees,
Delegate any administrative or financial powers to the Director,
Prepare budget estimate and sanction expenditure,
Prepare for the recruitment of offices, faculty and establishment of the Insitute, terms and conditions of scholarships, fellowships, etc.

It also contains details regarding meetings and the powers and functions of the chairman.There are guidelines for the appointment of the Director and Staff Employees.

For more details visit https://cis-india.org/a2k/blogs/mapping-institutions-of-intellectual-property-part-b

National IPR Policy Series : The Development of the National IPR Policy

nehaa — 2015-01-22T00:48:33Z

This is the first blog post in a series of posts on India's National IPR Policy. In this post, CIS intern, Varnika Chawla traces the evolution of the National IPR Policy.

Significant changes have been implemented in the Intellectual Property regime of India since India's accession to TRIPS in 1995. This post details the timeline of the development of Intellectual Property law in India, highlighting the discourse around the formulation of a National IPR Policy. The author has also looked at the formulation of IP Strategies in different nations across the world, summarized in the infographic, observing that the trend for the same is very recent and has only emerged over the last decade.

"Intellectual Property Right is a private right recognized within the territory of a country and assigned to an individual or individuals for a specified period of time in return for making public, the results of their creativity and innovation." India has a well-established and comprehensive legislative, judicial and administrative framework for intellectual property. The decade of 2010-2020 was declared as the Decade of Innovation, with an objective of expanding the space for dialogue for inclusive growth. With the emergence of globalization, the Indian society has become more knowledge-intensive giving rise to rapid development in the field of information technology and consequently intellectual property, thereby increasing the role of the legislature as well as the judiciary to protect and promote intellectual property rights.

India gained membership of the World Trade Organization in 1995. This membership initiated a new round of revisions resulting in the upheaval of the Indian intellectual property system. All IP legislations were hereby required to comply with the provisions of the TRIPS Agreement by 2000, with the exception of the Patents Act, which had an extended time limit to be compliant till 2005.

The Indian system of intellectual property rights is designed in a manner to ensure the protection of intellectual property while maintaining a balance between rights and obligations. There are several legislations which deal with the protection of intellectual property in India. These include thePatents Act, 1970, the Trade Marks Act, 1999, theGeographical Indications of Goods (Registration and Protection) Act, 1999, the Semiconductor Integrated Circuits Layout Design Act, 2000, the Competition Act, 2002 as well as theBiological Diversity Act, 2002. India is also thefirst country to ratify theMarrakesh Treaty, 2013 for access to copyright works for visually impaired persons. India also recently acceded to the Madrid Protocol in 2013.

National IP Strategy and the Role of WIPO

A National IP strategy has been defined by WIPO as "a vehicle for creating better functional linkages between the national economic objectives, development priorities and resources, and the IP system of the country concerned."[1] It is therefore a set of policy measures undertaken by governments in order to facilitate the proper use of IP as a strategic tool, for economic, social, cultural and technological development.[2] WIPO also gave the framework of the planning process each country should implement, in its efforts to adopt an IP strategy. As per this, the process is divided into four main stages:

Government initiative
Establishment of a National IP Strategy Formulation Committee
Presentation of draft strategy before stakeholders
Government approval of National IP Strategy,[3]

WIPO can assist in the formulation of a National IP Strategy by advising the governments as well as providing technical expertise during the planning process and providing support and assistance as and when required.[4]

India's National IPR Strategy

Realizing the significance of having a strong and well-balanced IP system in the emerging economy of India, several initiatives have been undertaken by the Department of Industrial Policy & Promotion at the policy level to create an environment conducive for the development of intellectual property and technology. Accordingly, a draft for the National IPR Strategy, outlining a set of measures and guidelines to encourage and facilitate the effective creation, protection, management and commercialization of IP for accelerating economic, social, cultural and technological development and for enhancing enterprise competitiveness prepared by the Sectoral Innovation Council on IPR was released by DIPP on September 26, 2012, inviting views from various stakeholders. It was felt that the National IP Strategy needs to be developed in a manner such that it is integrated with the overall national plan for development in order for better cooperation with IP components of specific and targeted national strategies in areas such as trade and investment, education, food and agriculture, science and technology etc.

Subsequently, a revised draft for the National IPR Strategy in India was released on July 21, 2014, detailing a vision statement, objectives and means to achieve the same.

The DIPP constituted an IPR Think Tank , as notified on November 13, 2014, in order to draft the National Intellectual Property Rights Policy and to advise DIPP on IPR-related issues. Finally, a First Draft of the National IPR Policy was submitted by the IPR Think Tank on December 19, 2014 , inviting comments and suggestions from all stakeholders on or before January 30, 2015.

National IP Strategies: Around the World

WIPO Member States adopted 45 recommendations at the 2007 General Assembly, made by the Provisional Committee on Proposals Related to a WIPO Development Agenda. This also included Member States setting up "appropriate national strategies in the field of intellectual property." These recommendations were identified for immediate and effective implementation, resulting in countries beginning to adopt the same, with the objective of promoting and enforcing IP rights. The info-graphic below highlights the formulation of IP Strategies in Member States around the world.

China announced its "National Intellectual Property Strategic Principles" in June, 2008. Japan established its "Intellectual Property Strategy Headquarters" in 2003, and its Intellectual Property Strategic Program in 2004, while USA legislated the " Prioritizing Resources and Organization for Intellectual Property Act" in 2008. Furthermore, the Presidential Advisory Council on Education, Science and Technology in Korea announced the " Strategy for Intellectual Property System Constructing Plan" on June 27, 2006, consisting of three aspects: Creation and Application, Law and Regulation, and Infrastructure. The European Union has adopted a " Strategy for the Enforcement of Intellectual Property Rights in Third Countries", aimed at evaluating the recent major changes that have taken place in the international IP arena, preparing to meet the challenges in an effective manner. Finland adopted " The Government's Resolution on the Strategy Concerning Intellectual Property Rights " on March 26, 2009. Therefore, it is observed that the trend of National IP Strategies has only started recently, in the last decade.

Therefore we see the emerging need of an all-encompassing IP Policy arising in nations around the world, aimed at promoting a holistic environment conducive to the development of Intellectual Property.

[1] WIPO's Contribution to the Elaboration and Implementation of Strategies and National Plans for the Development of IP and Innovation , WTO Strategic Planning Workshop, Geneva, Switzerland, June 13, 2014.

[2] Id .

[3] Id .

[4] Id.

For more details visit https://cis-india.org/a2k/blogs/the-development-of-the-national-ipr-policy

RTI Responses - MHRD IP Chairs: Details of Funding & Expenditure

nehaa — 2015-02-02T13:28:30Z

In an earlier blog post titled "MHRD IPR Chairs — Underutilization of Funds and Lack of Information Regarding Expenditures", we discussed the lack of information regarding the expenditure by various MHRD Chairs in the country. We sent out RTI requests to find out more. This blog post discusses the responses that we have received so far. (Many thanks to CIS intern Varnika Chawla for her assistance)

See the earlier post on MHRD IPR Chairs — Underutilization of Funds and Lack of Information Regarding Expenditures

A wide variation in the allocation of funds among different Universities was observed. Further, it was noted that no information was available on any platform, regarding the actual utilization of these funds, and therefore, CIS had filed a Right to Information request for the same with the concerned authorities.

A four-pronged Right to Information query (dated 17.11.2014) was filed by CIS with various Universities, seeking the following:

A report on the implementation of the IPERPO Scheme and the MHRD IPR Chair funded under the Scheme at different Universities across India, for the year 2013-14;
Documents on the release of grants to the MHRD IPR Chairs under the IPERPO Scheme at different Universities, for the year 2013-14;
Documents relating to the receipt of utilization certificates and audited expenditures statements and matters related to all financial sanctions with regard to funds granted to the MHRD IPR Chair established under the IPERPO Scheme for the year 2013-14;
Documents regarding all matters related to finance and budget related to the MHRD IPR Chair under the IPERPO Scheme for 2013-14 established across different Universities.

Accordingly, CIS received the following information from Universities:

Name of University	Implementation of IPERPO Scheme	Release of Grants	Utilization Certificates & Exp. Stmts.	Finance & Budget Matters
WBNUJS, Kolkata	Information not yet available	-	-	-
DU, Delhi School of Economics, Tezpur University	Information not yet available	-	-	-
Jawaharlal Nehru University	Information not yet available	-	-	-
IIM, Ahmedabad	No MHRD IPR Chair	-	-	-
IIM, Bangalore	Established a Chair	Rs. 23,50,000	Rs. 23,50,000	Submitted
IIT Delhi	No MHRD IPR Chair	No money has been received	-	-
NLU, Jodhpur	Established a Chair	Rs. 36,00,000	Rs. 18,86,566	Submitted
University of Madras	No MHRD IPR Chair	No money has been received	-	-
Nalsar University of Law, Hyderabad	Established a Chair	Rs. 40,00,000	Rs. 37, 88,349	Submitted
NLSIU, Bangalore	Established a Chair	Rs. 45,00,000	Rs. 45,31,927	-
CUSAT, Kerala	Information not yet available	-	-	-
IIT, Bombay	No IPR Chair for 2013-14	Rs. 35,00,000	Rs. 15,66,179	Submitted

The RTI Requests were returned by NUJS Kolkata as well as IIT, Kanpur, in a response dated 28.11.2014.

IIM Ahmedabad in its response (dated 9.12.2014), informed of the fact that no MHRD IPR Chair has been established under the IPERPO Scheme at the institution.

Details of the activities undertaken by the MHRD IPR Chair, as well as their finance and budget allocation were received from IIM, Bangalore (dated 16.12.2014). It was disclosed that the focus of the IPR Chair is on research on the economic and management dimensions of IPR with special reference to the corporate, SME and agricultural sectors. Since 2011-12, the Chair has focused on creative content management and protection with reference to cinema, electronic media and classical performing arts. Several activities were undertaken by the Chair, including finalization of a Research Monograph; inclusion of IPR Economics into the Core Course in Microeconomics for the Post Graduate Programme in Software Enterprise Management; a National Workshop on “Macro Policy Environment, IPR’s and Competition Policy” was organized; and 2 Research Assistants were appointed under the Chair. Against a request for Rs. 26,10,000, a grant of Rs. 23,50,000 was received, utilized for the payment of the Chair’s salary (Rs. 19,20,000), RA honorarium (Rs. 5,40,000) and Round Table Expenses.

IIT, Delhi, in its response (dated 16.12.2014) informed that no MHRD IPR Chair has been established under the IPERPO Scheme at the University. Further, no grant money has been received by the University under the Scheme.

NLU, Jodhpur submitted a detailed reply (dated 16.12.2014). A number of IPR research and learning initiatives have been undertaken under the MHRD IPR Chair established under the IPERPO Scheme, including IPR Awareness Programmes, formulation and conduction of various undergraduate and postgraduate IPR Courses, research and suggestions on IPR Law Reforms and IPR Policies etc. NLU Jodhpur conducted a training session for researchers and teachers of IPR, a workshop for students on IP Litigation, a conference on “The Impact of IPR on Access to Medicine”, Training, Sensitization and Outreach Programmes as well as lectures and paper presentations. Funding received from the grant was utilized towards payment of the coordinator’s salary (Rs. 5,78,800) RA honorarium (Rs. 6,00,000), Ph.D. fellows’ honorarium (Rs. 3,38,000), travel grants (Rs. 2,00,000) and miscellaneous expenditure. A total of Rs. 17,00,000 was spent on sensitization and outreach programmes, workshops, conferences as well as the IP Depository.

The University of Madras in its response (dated 29.12.2014) submitted that no MHRD IPR Chair has been established under the IPERPO Scheme and no grants were sanctioned to the University.

The requisite documents detailing expenditure incurred (Rs. 37,88,349) as well as the financial budget were made available by NALSAR University of Law (dated 22.12.2014). Expenditure was incurred towards the payment of the Chair Professor’s salary (Rs. 17,50,093), payments to the staff (Rs.7,11,544), the IPR Journal (Rs. 40,000), Travel (Rs.6,45,864), books (Rs. 2,67,740) and other miscellaneous expenditure. A link to an online report, was also made available. However, this is a dead link.

The website established for MHRD IPR Chairs itself is not functioning.

No information has been made available by Jawaharlal Nehru University, Delhi University, Delhi School of Economics and Tezpur University as well as CUSAT, Kerala as of now. Further, IIT, Kharagpur in its reply (dated 17.12.2014), sought exemption from providing the required information under Section 8(1)(d) of the RTI Act, 2005.

IIT Bombay, in its reply (dated 15.01.2015) submitted that having established a MHRD IPR Chair under the IPERPO Scheme, activities such as research, training, academic courses (Introductory Foundation Course at U.G., P.G. Level, Elective Course at P.G. Level), conducting workshops, conferences and outreach programmes and maintaining an IP Depository have been undertaken. Details about budgetary allocation were also made available. From a grant of Rs. 35,00,000, a total amount of Rs. 15,66,179 has been utilized. However, there was no IPR Chair for the year 2013-14. Out of a cumulative grant of Rs. 1,95,00,000 received till March 31, 2014, the institution has spent a total of Rs. 1,62,60,265 on IPR Activities, workshops, honorariums, salaries, conferences etc. from 2007.

Lastly, as per the information received from NLSIU, Bangalore (dated 14.01.2015), an MHRD IPR Chair has been established at the University. Several activities have been organized at NLSIU, including a Workshop on IPR in S.J.R. College of Law, the release of an IP Newsletter publication “March of the IP Law”, a conference on the Advantages of Madrid Protocol, a conference on Patents, Innovation and Trade Secrets for MSMEs in IT/ITES Sectors in Karnataka, research activities such as the Fact-Screening-and-Transforming-Processor Project, the release of a website http://iprlawindia.org which is currently under construction, conducting awareness and outreach programmes etc. The MHRD IPR Chair at NLSIU was awarded a grant of Rs.45,00,000 which was largely spent on the payment of the Chair’s salary (Rs. 24,17,378), RA honorarium (Rs. 5,88,415), workshops and conferences (Rs.1,27,805), creation of a depository of IP books (Rs. 1,00,105), publication of newsletters (Rs.1,00,000) and staff payments.

It is therefore observed that firstly, there was a variation in replies to the RTI queries filed under the same format, with some Universities providing information, some blatantly refusing to do so (IIT Kharagpur), and some delaying the process for what appear to be minor procedural irregularities.

Four Universities have still not sent the requisite information, whereas no MHRD IPR Chair has been established in four of them. Only four replied with some information.

Moreover, for the year 2013-14, MHRD allocated a grant of Rs. 1,79,50,000 among 5 Universities, disproportionately (ranging from Rs.23 lakhs-Rs. 45 lakhs per University). Out of this grant, the Universities have incurred a total expenditure of Rs. 1,41,23,021, largely for the payment of salaries of the IPR Chair (Rs. 66,66,271), honorariums for Research Assistants (24,50,183), and conducting workshops, conferences and travel for the same.

The various responses received to the RTI queries filed reveal a great variation in not just the allocation of funds by the Ministry, but also on the utilization of these funds (if at all), as well as in the range of activities conducted by the Chairs.

We're still tracking this. Watch this space for more, including copies of our RTIs and the responses as well as details from other Universities who are yet to get back to us.

For more details visit https://cis-india.org/a2k/blogs/rti-responses-mhrd-ip-chairs-details-of-funding-and-expenditure

National IPR Policy Series : RTI Requests to DIPP seeking Details on the IPR Think Tank and the National IPR Policy

nehaa — 2015-04-12T12:48:00Z

In an earlier blog post titled " National IPR Policy Series : The Development of the National IPR Policy", we discussed the formation of an IPR Think Tank to draft the first National IPR Policy. Since many details about the constitution and working of this Think Tank were unavailable, we decided to send out RTI requests to find out more.

According to the press release by the Department of Industrial Policy and Promotion (DIPP) which can be found here, an IPR Think Tank was constituted in order to draft the National Intellectual Property Policy. The Think Tank, chaired by retired Justice Prabha Sridevan, submitted a confidential first draft of the National IPR policy to the DIPP on 19th December, 2014. This document was made publicly available by the DIPP and all stakeholders were requested to provide comments and suggestions to the first draft of the National IPR Policy.

Though the IPR Think Tank has expediently released their first draft of the National IPR policy, there is a lack of information available on the constitution of this IPR Think Tank. There is no data on how the members of this Think Tank were shortlisted and selected or how the Chairperson and Convener of the Think Tank were elected. Further, the suggestions and comments received by the IPR Think Tank before and after publishing the first draft of the policy have not been made publicly available.

In an attempt to obtain more data on the process of the constitution of the Think Tank and it’s working, CIS filed three RTI requests to the Department of Industrial Policy and Promotion date February 2, 2015. A copy of the RTI requests is included below:

RTI Request 1: Information on Constitution of IPR Think Tank

Dear Sir/Ma’am,

Subject: Request for Information under Right to Information Act 2005.

Information Sought:

Please provide the following information:

Please indicate in detail the process followed by the Department of Industrial Policy and Promotion for the constitution for an IPR Think Tank to draft the National Intellectual Property Rights Policy under Public Notice No. 10/22/2013-IPR-III dated November 13, 2014.
If there was a meeting held to decide on the same, please include all necessary documents including the minutes of the meeting, records, documents, memos, emails, opinions, advices, press releases, circulars, orders, etc. in which the constitution of the aforementioned IPR Think Tank was decided.
If there were multiple meetings held for the same, please provide all necessary documents including the minutes of all such meetings, records, documents, memos, emails, opinions, advices, press releases, circulars, orders etc. for all such meetings held.
If a directive or directives were received by Department of Industrial Policy and Promotion from any other government body to constitute such a think tank, please provide a copy of such a directive received by the Department of Industrial Policy and Promotion from any Government authority, to constitute such a Think Tank.
Please indicate in detail the process of shortlisting the members of the IPR Think Tank by the Department of Industrial Policy and Promotion or any other body that was responsible for the same.

In case the information is held by or related to another public authority, the application or such part of it as may be appropriate may be transferred to that other public authority under intimation to the undersigned as per Section 6(3) of RTI Act.

Proof of payment of application fee:

An Indian Postal Order for the amount of Rs.10 dated 2/2/2015 favouring the Public Information Officer, Department of Industrial Policy and Promotion is enclosed as proof of payment of application fee.

I hereby declare that I am a citizen of India. I request you to ensure that the information is furnished before the expiry of the 30 day period after you have received the application.

Details of Applicant:

Ms. Nehaa Chaudhari
Centre for Internet and Society
G-15, Hauz Khas
New Delhi – 110016

Date: 2/2/2015

RTI Request 2: Working of IPR Think Tank while drafting National IPR policy

To,
Ms. Chandni Raina
Central Public Information Officer
Department of Industrial Policy and Promotion (IPR I, II, III, IV, V and VI Sections)
Room No.260
Udyog Bhawan, New Delhi

Dear Sir/Ma’am,

Subject: Request for Information under Right to Information Act 2005.

Information Sought:

Please provide the following information:

Please indicate in detail the process followed by the IPR Think Tank constituted by the Department of Industrial Policy and Promotion via Public Notice No. 10/22/2013-IPR-III dated November 13, 2014 while framing the first draft of the National IPR Policy dated December 19, 2014.
If there was a meeting held to decide on the same, please include all necessary documents including the minutes of the meeting, records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, suggestions etc. related to the drafting of such National IPR Policy by the IPR Think Tank chaired by Justice Prabha Sridevan.
If there were multiple meetings held for the same, please provide all necessary documents including the minutes of all such meetings, records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders suggestions etc. for all such meetings held.
Please provide all the suggestions and comments received by the IPR Think Tank from stakeholders after the Department of Industrial Policy and Promotion issued Public Notice No. 10/22/2013-IPR-III dated November 13, 2014 asking for suggestions and comments on or before November 30, 2014.

Proof of payment of application fee:

I hereby declare that I am a citizen of India. I request you to ensure that the information is furnished before the expiry of the 30 day period after you have received the application.

Details of Applicant:

Ms. Nehaa Chaudhari
Centre for Internet and Society
G-15, Hauz Khas
New Delhi – 110016

Date: 2/2/2015

RTI Request 3: Request for suggestions and feedback received by DIPP on the first draft of the National IPR Policy

To,
Ms. Chandni Raina
Central Public Information Officer
Department of Industrial Policy and Promotion (IPR I, II, III, IV, V and VI Sections)
Room No.260
Udyog Bhawan, New Delhi

Dear Sir/Ma’am,

Subject: Request for Information under Right to Information Act 2005.

Please provide the following information:

Please indicate all the suggestions and comments received by the IPR Think Tank by different stakeholders on or before January 30, 2015 on its first draft of the National Intellectual Property Policy submitted by the IPR Think Tank on December 19, 2014.

Proof of payment of application fee:

I hereby declare that I am a citizen of India. I request you to ensure that the information is furnished before the expiry of the 30 day period after you have received the application.

Details of Applicant:

Ms. Nehaa Chaudhari
Centre for Internet and Society
G-15, Hauz Khas
New Delhi – 110016

Date: 2/2/2015

(Many thanks to CIS intern Protyush Choudhury for his assistance with this.)

For more details visit https://cis-india.org/a2k/blogs/rti-requests-dipp-details-on-constitution-and-working-of-ipr-think-tank

Intellectual Property Rights — Open Access for Researchers

nehaa — 2015-03-24T01:22:20Z

In the year 2013, Nehaa Chaudhari had worked on a module on Intellectual Property Rights for United Nations Educational, Scientific and Cultural Organization (UNESCO)'s Open Access Curriculum (Curriculum for Researchers) as part of a project for the Commonwealth Educational Media Centre for Asia. UNESCO published the module this year. Nehaa Chaudhari and Varun Baliga were among the Module preparation team. Nehaa Chaudhari was the writer for Units 1, 2 and 3: Understanding Intellectual Property Rights, Copyright and Alternative to a Strict Copyright Regime.

This publication is available in Open Access under the Attribution - ShareAlike 3.0 IGO (CC-BY-SA 3.0 IGO) license (http://creativecommons.org/licenses/by-sa/3.0/igo/). By using the content of this publication, the users accept to be bound by the terms of use of the UNESCO Open Access Repository (http://www.unesco.org/open-access/terms-use-ccbysa-en).

Module Introduction

Intellectual Property Rights (IPR) are set of rights associated with creations of the human mind. An output of the human mind may be attributed with intellectual property rights. These are like any other property, and the law allows the owner to use the same to economically profit from the intellectual work. Broadly IPR covers laws related to copyrights, patents and trademarks. While laws for these are different in different countries, they follow the international legal instruments. The establishment of the Wold Intellectual Property Organization (WIPO) has established the significance of IPR for the economic growth of nations in the knowledge economy.

This module has three units, and while the Unit 1 covers the basics of IPR, Unit 2 expands in detail the components of copyright and explains the origins and conventions associated with it. Unit 3 discusses the emergence of liberal licensing of copyrighted work to share human creation in the commons. In the last unit, we discuss the Creative Commons approach to licensing of creative works within the structures of the copyright regime that permits the authors to exercise their rights to share in the way they intend to. Creative Commons provides six different types of licenses, of which the Creative Commons Attribution license is the most widely used in research journals part of the Open Access framework.

At the end of this module, you are expected to be able to:

Understand intellectual property rights and related issues
Explain copyright, authors’ rights, licensing and retention of rights; and
Use the Creative Commons licensing system

Acknowledgements

Nehaa would like to thank Varun Baliga and Anirudh Sridhar for their research and writing support in Unit 1, and Samantha Cassar for Unit 2.

Click to download the PDF containing the Modules. Also read UNESCO’s Open Access (OA) Curriculum is now online

For more details visit https://cis-india.org/a2k/blogs/unesco-nehaa-chaudhari-march-19-2015-communication-and-information-resources-news-and-in-focus-articles-unesco-open-access-curriculum-is-now-online

DIPP RESPONSE TO CIS RTI - IMPROPER PAYMENT - FEBRUARY, 2015

nehaa — 2015-04-14T17:35:58Z

For more details visit https://cis-india.org/a2k/blogs/dipp-response-to-cis-rti-improper-payment-february-2015

DIPP RESPONSE TO CIS (FIRST) RTI - FEBRUARY, 2015

nehaa — 2015-04-14T17:42:43Z

For more details visit https://cis-india.org/a2k/blogs/dipp-response-to-cis-first-rti-february-2015

DIPP RESPONSE TO CIS (SECOND) RTI REQUEST - FEBRUARY, 2015

nehaa — 2015-04-14T17:58:50Z

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

DIPP RESPONSE TO CIS (THIRD) RTI REQUEST - FEBRUARY, 2015

nehaa — 2015-04-14T18:16:52Z

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

National IPR Policy Series: RTI Requests by CIS to DIPP + DIPP Responses

nehaa — 2015-04-26T08:47:00Z

In earlier blog posts, we have discussed the development of India’s National IPR Policy (“the Policy”); comments by the Centre for Internet and Society (“CIS”) to the IPR Think Tank before the release of the first draft of the Policy and CIS’ comments to the IPR Think Tank in response to the first draft of the Policy. Continuing our National IPR Policy Series, this article documents our requests to the Department of Industrial Policy and Promotion (“DIPP” / “the Department”) under the Right to Information (“RTI”) Act, 2005 and the responses of the Department.

View the PDF here.

Details of RTI Requests Filed by CIS

In February, 2015, CIS had filed three RTI requests with the DIPP. The first request was four-pronged, seeking information related to first, the process followed by the Department in the creation of the IPR Think Tank; second, details and documents of a meeting held to constitute the Think Tank; third, details and documents of all/multiple meetings held to constitute the Think Tank; fourth, details of a directive/directives received from any other Government Ministry/authority directing the constitution of the Think Tank and fifth, the process of shortlisting the members of the Think Tank by the DIPP.

In our second RTI request, first, we requested details of the process followed by the Think Tank in the formulation of the Policy; second, we requested all documents relating to a meeting held for the formulation of the Policy; third, we requested all documents held for multiple meetings for the creation of the Policy and fourth, we requisitioned all suggestions and comments received by the Think Tank from stakeholders before the release of the Policy, that is, those suggestions/comments received in November, 2014.

In our third RTI request, also filed on also filed in February, 2015, we had asked the DIPP to indicate all suggestions and comments received by the IPR Think Tank from different stakeholders in response to the first draft of the National IPR Policy (to have been submitted on or before January 30, 2015 as per DIPP’s Public Notice).

Responses by DIPP to CIS' RTI Requests

The DIPP replied to our three RTI requests in multiple stages. At first, in a letter dated 12 February, 2015, we were directed to resubmit our application , seemingly because we hadn’t addressed the Postal Money Order to the correct authority, and were directed to do the same. Funnily enough, we received three other responses – one for each of our RTI requests (the first of these is not dated; the second one is dated 19 February, 2015 and then revised to 26 February, 2015; and the third is also dated 26 February, 2015).

The First Response: On the Constitution of the Think Tank

In the first of their responses to these requests, the Department has grouped our queries into five questions and provided a point-wise response to these questions, as under:

Please indicate in detail the process followed by the Department of Industrial Policy and Promotion for the constitution for an IPR Think Tank to draft the National Intellectual Property Rights Policy under Public Notice No. 10 (22)/2013 –IPR-III dated November 13, 2014 (sic).

In its response the Department notes that it convened an interactive meeting on IPR issues which was chaired by the Minister for Commerce and Industry (Independent Charge), i.e., Ms. Nirmala Sitharaman. As per the Department’s response, this meeting was held on 22 September, 2014 (“the Meeting”) and was aimed at discussing issues related to IPRs, including finalization of the Terms of Reference for IPR Think-Tank proposed to be established (sic.) The Department also notes that representatives from various Ministries/Departments, Member of various Expert Committees constituted by the Department, besides IP experts and other Legal Practitioners (sic) were invited to the meeting. The Department then states that the composition of the Think Tank was decided on the basis of the discussions held in the department after the said interactive Meeting (sic).

If there was a meeting held to decide on the same, please include all necessary documents including the minutes of the meeting, records, documents, memos, e-mails, opinion, advices, press releases, circulars, orders etc in which the constitution of the aforesaid mentioned IPR Think Tank was decided (sic).

The Department has attached the Minutes of the Meeting held on 22 September, 2014 (“the Minutes”) and states that there were no documents or papers that were circulated at this meeting and that the participants were asked to present their views on various IP issues at this meeting.

Excerpts from the Minutes

The Secretary of the Department (Shri Amitabh Kant) refers to a (then) recent announcement made by the Minister of State for Commerce and Industry (“the Minister”) on the formulation of the National IPR Policy and the establishment of an IPR Think Tank and states that the meeting had been convened to discuss on various IPR issues with IP experts and legal practitioners so that it would provide essential inputs to the policy needs of the department (sic). The Minutes report that Mr. Kant further stated that the objective of the department was to have a world class IP system and that this included a comprehensive National IPR Policy and which takes care of various issues like IP creation, protection, administration and capacity building (sic). He is also reported to have said that such a stakeholder interaction was important for the government to seek inputs.

The Minister is reported to have said that the purpose of the meeting was to constitute an IP Think Tank that would regularly provide inputs to all IP policy needs of this department as well as advice government in disparate legal aspects (sic). The Minutes also report her to have said that the department would finalize an IP policy within ninety days of the Meeting, based on the inputs of the participants.

According to the Minutes, various issues emerged from the discussion. Inter alia, these include first, that the proposal to constitute the Think Tank was a welcome measure, along the lines of similar initiatives taken by Australia, South Kora, the United Kingdom and the United States of America; second, that in order to remove misconceptions held by foreign stakeholders about IP enforcement in India, there was a need to highlight judgments of Indian courts that were favorable to foreign stakeholders and MNCs; third, that the national policies on telecom, manufacturing and IP ought to be integrated; fourth, that the focus of the Policy should be increase in creation of IP including commercialization of IP and strengthening human capital and IP management and fifth, that empirical studies should be conducted to examine the feasibility of Utility Models protection, that there was a need to revise the law on Geographical Indications and that the Policy should include protection for traditional knowledge and guidelines for publicly funded research.

The Minister is then said to have identified six major areas during the discussion, including IP institution, legislation, implementation, public awareness, international aspects and barriers in IP growth as areas to be covered under the Policy.

Who attended the Meeting?

Attached with the Minutes was also a list of participants who attended the Meeting. Out of the thirty six attendees, I have not been able to locate a single individual or organization representing civil society. Participants include representatives from various government departments and ministries, including inter alia, the DIPP, the Department of Commerce, the Ministry of External Affairs, the Ministry of Information and Broadcasting, the Copyright Division from the Department of Higher Education of the Ministry of Human Resources Development, the Office of the Controller General of Patents, Designs and Trademarks and the Ministry of Culture. The Meeting was also attended by representatives of corporations and industry associations, including FICCI, CII and Cadila Pharmaceuticals; in addition to representatives from law firms including Luthra and Luthra, K&S Partners and Inventure IP and academics including, inter alia, faculty from the Asian School of Business, Trivandrum, Indian Law Institute, Delhi, Tezpur University, Assam, National Law University, Delhi, NALSAR University of Law, Hyderabad, the Indian Institute of Technology, Madras and the National Law School of India University, Bangalore.

If there were multiple meetings held for the same please provide all necessary documents including the minutes of all such meetings, records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders etc. for all such meetings held (sic).

The Department answered, “No”; which I’m taking to mean that there weren’t other meetings held for the formulation of the Think Tank or the Policy. This is interesting, because the Minutes (referred to earlier) speak of another inter-ministerial meeting including IP experts and legal practitioners slated to be held around the 10^th of October, 2014, to discuss the framework of the Policy.

If a directive or directives were received by the Department of Industrial Policy and Promotion from any other government body to constitute such a think tank, please provide a copy of such a directive received by the DIPP from any Government authority, to constitute such a Think Tank (sic).

The Department answered, “No”; which I’m taking to mean that there was no communication received by the Department to constitute this Think Tank.

Please indicate in detail the process of shortlisting the members of the IPR Think Tank by the Department of Industrial Policy and Promotion or any other body that was responsible for the same (sic).

The Department replied that the answer to this was the same as that to the first question.

The Second Response: The Drafting of the Policy

The second of the Department's responses to our requests came in the form of separate responses to each of our four questions, as under:

Please indicate in detail the process followed by the IPR Think Tank constituted by the Department of Industrial Policy and Promotion via Public Notice No. 10 (22)/2013-IPR-III dated November 13, 2014 while framing the first draft of the National IPR Policy dated Dec. 19, 2014 (sic).

The Department stated that the IPR Think Tank conducted its meetings independently without any interference from the Department. The Department then stated that the Think Tank had received comments from stakeholders via a dedicated email id and conducted the interactive meeting with stakeholders while framing the draft on the National IPR Policy.

If there was a meeting held to decide on the same, please include all necessary documents including the minutes of the meeting, records, documents, memos, e-mails, opinion, advices, press releases, circulars, orders, suggestions etc. related to drafting of such National IPR Policy Think Tank chaired by Justice Prabha Sridevan (sic).

The Department replied that since the IPR Think Tank had decided its process by themselves (sic), the Department do not have the minutes of the meeting etc. conducted by the IPR Think Tank (sic). It attached with its reply a copy of the press releases announcing the composition of the Think Tank and asking stakeholders to submit comments to the first draft of the Policy.

If there were multiple meetings held for the same, please provide all necessary documents including the minutes of all such meetings, records, documents, memos, e-mails, opinions, advices, press releases, circulars, order suggestions etc. for all such meetings held (sic).

The Department replied that the response to this was the same as that to the earlier question above.

Please provide all the suggestions and comments received by the IPR Think Tank from stakeholders after the DIPP issued Public Notice No. 10/22/2013-IPR-III dated 13.11.2014 asking for suggestions and comments on or before November 30, 2014 (sic).

The Department replied that the comments and suggestions were received by the Think Tank directly and that therefore, the Department was not in a position to provide the same.

The Third Response: Stakeholder Comments

In its third and final response to our requests, the DIPP replied to our query as under:

Please indicate all the suggestions and comments received by the IPR Think Tank by different stakeholders on or before January 30, 2015 on its first draft of the National Intellectual Property Policy submitted by the IPR Think Tank on December 19, 2014.

The Department said that the suggestions and comments on the draft on National IPR Policy have been received by the IPR Think Tank directly. As such this Department is not in a position to provide the same (sic.).

Observation on the DIPP's Responses

Prima facie, the responses by the Department are rather curious, leading to a range of oddities and unanswered questions.

Who Will Watch the IPR Think Tank

In its response to our first RTI request, the Department quite clearly stated that it decided the composition of the IPR Think Tank based on discussions in a meeting that it convened, which was also chaired by the Minister of State for Commerce and Industry, the parent ministry of the DIPP. In the same response, the Department also stated that it had not received any directive from any other ministry/government department directing the constitution of the IPR Think Tank, leading to the conclusion that this decision was taken by the DIPP/the Ministry of Commerce and Industry itself. Subsequently however, the Department justified its refusal to furnish us with documents leading to the development of the first draft of the National IPR Policy (contained in our second RTI request) by stating that the IPR Think Tank conducted its business without any interference from the Department, and that the Department did not have access to any of the submissions made to the IPR Think Tank or any of the internal minutes of the meetings etc. that were a part of the process of drafting the IPR Policy.

Various press releases by the DIPP have stated that it has constituted the IPR Think Tank, and that the purpose of the IPR Think Tank would be to advise the Department on IPR issues. Visibly, the Department intends for the IPR Think Tank to play an active role in shaping India’s IP law and policy, including suggesting amendments to laws wherever necessary. It is concerning therefore that on the question of accountability of the IPR Think Tank, the DIPP remains silent. It may be argued perhaps, that the IPR Think Tank constitutes a ‘public authority’ under Section 2(h)(d) of the Right to Information Act, 2005 (“RTI Act”). In that case, the IPR Think Tank would have to fulfill, inter alia, all of the obligations under Section 4 of the RTI Act as well as designate a Public Information Officer. Alternatively, given that the IPR Think Tank has been constituted by the DIPP and performs functions for the DIPP, the Public Information Officer of the DIPP would have to furnish all relevant information under the RTI Act (including the information that we sought in our requests, which was not provided to us).

Who are the Stakeholders

Even a preliminary look at the list of participants at the Meeting (based on which the Department constituted the IPR Think Tank) reveals that not all stakeholders have been adequately represented. I haven’t been able to spot any representation from civil society and other organizations that might be interested in a more balanced intellectual property framework that is not rights-heavy. The following chart (based on a total sample size of 36 participants, as stated in the list of participants provided to us by the DIPP) will help put things in perspective.

What Could've Been Done?

Setting aside arguments on its necessity, let us for the moment assume that this drafting of the National IPR Policy is an exercise that needed to have been undertaken. We must now examine what might possibly be the best way to go about this.

In 2014, the World Intellectual Property Organization (“WIPO”) (based on whose approach the Policy seems to have been based- at least in part), produced a detailed Methodology for the Development of National Intellectual Property Strategies, outlining a detailed eight step process before a National IP Policy was implemented in a Member State. While this approach is one to be followed by the WIPO and might not be entirely suited to India’s drafting exercise, specific sections on the national consultation process as well as the drafting and implementation of national intellectual property strategies might prove to be a decent starting point.

(More on this in an upcoming article).d

Where Do We Go From Here?

The DIPP’s responses have left me with more questions, probably the subject of more RTI requests. Is the IPR Think Tank a public authority for the purposes of the Right to Information Act, 2005? To whom should questions of informational accountability of the IPR Think Tank be addressed, if there is no information available on the IPR Think Tank, and the DIPP claims to have no access to it? Do we need to re-examine the draft National IPR Policy given that there has been inadequate representation of all stakeholders? What were the suggestions made by different stakeholders, and (how) have these been reflected in the first draft of the Policy? Was there an evaluation exercise conducted before the first draft of the Policy was released in order to better inform the formulation of the Policy?

We will be looking at these and other questions as they arise, and sending some of these to the DIPP in the form of RTI requests. (Watch the blog for more).

For more details visit https://cis-india.org/a2k/blogs/national-ipr-policy-series-rti-requests-by-cis-to-dipp-dipp-responses

Statement on the Proposed Treaty for the Protection of Broadcasting Organizations at WIPO SCCR 28

nehaa — 2014-07-14T05:40:27Z

Nehaa Chaudhari, attending the 28th Session of the World Intellectual Property Organization (“WIPO”) Standing Committee on Copyright and Related Rights (“SCCR”) at Geneva from 30 June, 2014 to 04 July, 2014, made this statement on the Proposed Treaty for the Protection of Broadcasting Organizations on behalf of CIS on Day 3, 02 July, 2014.

Thank you, Mister Chair.

Mister Chair, there are two things that I would like to talk about, on behalf of CIS- first, on justifications for this Treaty; second on the scope and the rights sought to be granted under this Treaty, which I will speak of together, if I may.

On justifying the need for this Treaty, Mr. Chair, we would reiterate what we have said in past sessions of this Committee – there has been no conclusive demonstration on the need for this Treaty and on why existing mechanisms in international legal instruments, including, among others TRIPS and the Rome Convention are not sufficient to address the concerns of the broadcasters. We have heard that these are insufficient, but no justifications as to why- something that KEI also pointed out in their statement before us. Further, Mr. Chair, we’re concerned by the fact that the latest study on the unauthorised use of signals presented to this Committee is the one from 2010 at the 20^th Session of this Committee. We strongly support the proposal made by India, TWN, CCIA and TACD to update this study and include an impact assessment of ALL the stakeholders, something that the earlier study does not address; in order to more comprehensively assess not just the need, but also the impact of this proposed treaty, and address some of the questions and concerns raised by TACD and TWN in their statement earlier.

Without prejudice to this submission on the need for this treaty, Mr. Chair, we would also like to comment on the scope of, and the rights under this Treaty.

Mr. Chair, we would continue to submit that this proposed treaty should be based on a signals based approach and not a rights based approach. We have heard submissions by broadcasters at this and at previous sessions of this Committee, where the basis of seeking additional protection for broadcaster is to protect the underlying investment. Mr. Chair, investments made in infrastructure for broadcasting in the traditional sense are very different from those required for an IP based transmission, even if the same broadcaster is engaging in both. Therefore, Mr. Chair, given that the rationale for seeking this additional layer of rights over and above existing copyright is the protection of investment for broadcasting in the traditional sense is the , IP based transmissions should not be covered in any way under this Treaty.

Further, Mr. Chair, fixation and post fixation rights envisaged under Article 9 of Working Document SCCR 27/2/ Rev. and indicated in the Informal Document circulated today, are inconsistent with a signals based approach. We are strongly opposed to all of the rights indicated in the Third Row of this Informal Discussion Document. This Document, we believe, is moving the discussion towards a rights based approached and not a signals based approach, which we find deeply concerning. We also believe, Mr. Chair, that it is not logical to prescribe a term of protection (beyond the life of a signal), least of all 20 or 50 year term (as under Article 11 of this Working Document) for a signal that lasts milliseconds.

Thank you, Mr. Chair.

Video

Videos of the WIPO's proceedings from June 30, 2014 to July 04, 2014 are available online. To view CIS' Statement, select 'Standing Committee on Copyright and Related Rights: Twenty-Eighth Session- June 30 to July 4, 2014 (Geneva, Switzerland)' from the drop-down list of videos. CIS' Statement is in the video titled SCCR/28- Wed2 - English - Morning session. The length of the video is 44:51. The statement is available in this video from 24 minutes, 00 seconds- when the Chair recognizes CIS.

For more details visit https://cis-india.org/a2k/blogs/cis-statement-on-proposed-treaty-for-protection-of-broadcasting-organizations

Statement on the Limitations and Exceptions for Libraries and Archives at WIPO SCCR 28

nehaa — 2014-07-21T17:56:24Z

Nehaa Chaudhari, attending the 28th Session of the World Intellectual Property Organization (“WIPO”) Standing Committee on Copyright and Related Rights (“SCCR”) at Geneva from 30 June, 2014 to 04 July, 2014, made this statement on the Limitations and Exceptions for Libraries and Archives on behalf of CIS on Day 4, 03 July, 2014.

Thank you very much, Mr. Chair.

We thank the delegation of the United States for putting forward their Objectives and Principles for Exceptions and Limitations for Libraries and Archives, presented to this Committee in Document SCCR/ 26/8. I would like to comment on two of the topics that we have discussed today- one; the adoption of national exceptions and two; limitations and exceptions in a digital environment.

First, Mr. Chair, on the adoption of national exceptions: We appreciate the recognition of the ‘public service’ role of libraries and the importance of limitations and exceptions for them to perform their role of facilitating access to and the dissemination of knowledge and information, the goals of the copyright system. However, Mr. Chair, we do believe that the true and complete realization of these objectives would not be possible without an international legal instrument that lays out minimum international standards for countries to adopt and implement, that fosters a system for cross border exchange and creates an enabling environment to facilitate the implementation and adoption of limitations and exceptions at the national level.

Second, Mr. Chair, on limitations and exceptions in a digital environment; we appreciate the objective set out in the proposal made by the United States and welcome the statements by the delegations of Kenya, Chile and South Africa, that international regulation will grant a solution to the problems facing libraries and archives in the digital environment. Mr. Chair, the digital environment presents huge opportunities for countries such as India and perhaps others in the Global South for the preservation and dissemination of knowledge and in turn benefit education and research; with libraries and archives playing a crucial role. The digital environment, Mr. Chair, also presents a fair share of challenges. These include as IFLA, CLA, EIFL, IAB, the Karisma Foundation and others have also stated- multiplicity and complexity of licenses to be negotiated with various rights holders, the mandated use of particular platforms by publishers, difficulties in obtaining copyright clearances and limitations on remote access to name a few. Additional challenges are placed by technological measures of protection, (something that we also spoke about in our submission at the previous session of this Committee; where technological measures of protection often placed on master copies of files obtained by libraries and archives prevent basic preservation activities such as file format migration and limit the ways in which end users can utilize the work in question, rendering redundant, fair use or fair dealing provisions.

Therefore, Mr. Chair, we are of the opinion that an international legal instrument addressing the challenges faced by libraries and archives in the digital environment is necessary and the way forward for members of this Committee- and existing mechanisms in national laws of those nations that do have them are insufficient.

Video

Videos of the WIPO's proceedings from June 30, 2014 to July 04, 2014 are available online. To view CIS' Statement, select 'Standing Committee on Copyright and Related Rights: Twenty-Eighth Session- June 30 to July 4, 2014 (Geneva, Switzerland)' from the drop-down list of videos. CIS' Statement is in the video titled SCCR/28- Thurs3 - English - Afternoon session. The length of the video is 02:13:52. The statement is available in this video from 01:38:46

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

Opening Comments by India on Limitations and Exceptions for Libraries and Archives at WIPO SCCR 28

nehaa — 2014-07-21T17:55:28Z

This was the statement made by the Indian delegation at the 28th session of the World Intellectual Property Organization Standing Committee on Copyright and Related Rights on July 2, 2014.

Hon'ble Chair

In the quest for Knowledge society-for the developing countries- the issue of haves and have -not’s is now sliced with an additional divide of knows and Know -not’s. Libraries and Archives are the engines of creativity and promote intergeneration equity. They indeed are the modern day temples, mosques and churches- The notion of strong copyright boundaries has found its resonance to encircle spaces hitherto providing the socio economic infrastructure for developing nations. It is in this context that we need to look for appropriate international instrument to consolidate the access by way of limitations and exceptions to libraries, archives, educational institutions and other disabled people.

The overemphasis of stricter and stronger copyright as the engine of creativity is now questioned by latest studies. Ekhard Höffner a German historian has in his comprehensive research argues the fact that in the 19th century Germany outpaced UK, as the copyright laws were not strong as it was in UK. This fact goes contrary to the established view that Copyright is directly correlated to the expansion of creative works and publication. In fact Germany could do the catch up with the other powers in Europe.

I am mentioning this to emphasize for the developing world to do the catch up it is necessary to have limitations and exceptions for Libraries/archives/educational institutions. At this junction it is necessary to recognize the importance of such consensus without presuming whether what sort of International Instrument it should be.

India supports the effort of harmonizing the exceptions and limitations from an international dimension for intergenerational equity and as a tool to develope socio-economic- human resource infrastructure.

For more details visit https://cis-india.org/a2k/blogs/opening-statement-of-india-on-limitations-and-exceptions-for-libraries-and-archives

Mapping Institutions of Intellectual Property: Part C — Comparing Intellectual Property Institutions

nehaa — 2014-07-22T04:24:23Z

Earlier this year, a proposal to establish a National Institute of Intellectual Property Rights (“NIIPR”) was presented at a Stakeholders Consultation held in New Delhi organized by the Planning Commission and the Ministry of Human Resource Development (“MHRD”), Government of India. As a third part in the series on Mapping Institutions of Intellectual Property, this article undertakes a comparison of the functions of this proposed Institute with similarly placed Institutions of Intellectual Property around the world.

View Parts A and B here and here

Preliminary

Intellectual Property Institutes/Institutes of Intellectual Property (“Institutes”) world over usually perform two kinds of functions- first, they may serve as the Intellectual Property Office (the nodal agency for matters relating to intellectual property) in their respective countries and second, they may provide policy inputs to their respective governments. From discussions at a Stakeholders Consultation in New Delhi earlier this year (which I have written about here and here), it emerged that the Indian government (specifically, the Department of Industrial Policy and Promotion, India’s nodal agency for IPR related matters except copyright, and the MHRD, India’s nodal agency for copyright related matters ) lacked an institutional framework for policy feedback to the government, which in turn would supplement international negotiations. In order to address this lacuna, the Planning Commission and the MHRD presented a proposal (“the Proposal”) to set up the NIIPR, which would, inter alia, perform the function of advising the Indian government on matters of intellectual property law and policy and inform international negotiations pursuant to the same. This article examines Institutes other jurisdictions on the basis of their functions, and attempts to ascertain what functions an ‘ideal’ Institute might perform.

Methodology and Preliminary Findings

A list of two hundred and fifty seven territories was prepared and attempts were made to trace Institutes in each of these territories. Out of these, those Institutes that had websites, and whose websites had content available in English (or for which an official or credible translation was available) were earmarked. Once the Institutes had been thus identified, their distinctive features and past achievements were studied on the basis of disclosures available on the websites of the Institutes.

It emerged that twenty three (23) countries had Institutes that performed functions similar to those envisaged for the proposed NIIPR. These countries include Albania, Australia, Belarus, Belgium, Belize, Bosnia and Herzegovina, Brazil, Chile, France, Gabon, Greece, Iceland, Japan, Kazakhstan, Kenya, Malaysia, New Zealand, Pakistan, Portugal, Romania, Switzerland, Taiwan and Vietnam. However, this number cannot be said to be exhaustive as for 10 Countries, the translated page could not be availed. Further, in a few countries including Belgium, Belize, Iceland, New Zealand, Trinidad and Tobago, Sri Lanka and United States, the Intellectual Property Office performed the additional function of providing policy inputs to the government, in addition to administering and granting Intellectual Property Rights.

A diagrammatic representation of these preliminary findings and the methodology is available in Figures 1 and 2 (below).


Figure 1


Figure 2

Observations on Functions


Figure 3

Institutes across the world are varied in their functioning, structure and organization. Some observations (that could aid the establishment of the NIIPR) on the functioning of some of these Institutes are as under:

The Institute for Intellectual Property Rights of Bosnia and Herzegovina performs a dual role of the Patent Office as well as that of a research institute. In addition to assisting the government when it enters into agreements, it also performs documentation tasks and implements regulations related to intellectual property. It is also entrusted with the task of maintaining a record of industrial property applied for and granted.
The National Institute of Industrial Property, France contributes to the development and implementation of public policies in the field of anti-counterfeiting.
The Centre for Industrial property of Gabon presents and defends the interests of the Gabonese government at the international level.
The Hellenic Industrial Property Organisation registers inventions in Greece by granting patents and utility model certificates. It also registers industrial designs and community designs and models. Moreover, it also acts as a receiving office for the European Patent and the PCT certificate among others.
The National Institute of Intellectual Property, Kazakhstan performs the functions of the National Patent Office, including examination of applications for patents, useful models, trademarks, appellation of origin of goods and industrial designs.
The Intellectual Property Organization, Pakistan seeks to serve as the nodal organisation for the integrated management of intellectual property and seeks to coordinate the enforcement of intellectual property as well.
The Swiss Federal Institute of Intellectual Property performs the task of examining national filing applications and grants and administers intellectual property rights. It has also developed a patent database (ESPACEMENT) which has ensured access to over eighty (80) million patent documents.
The Japanese Institute of Intellectual Property provides inputs on existing laws to the Government of Japan. These inputs have influenced the revision of Japanese laws relating to patents, trademarks, utility models and the prevention of unfair competition.

Takeaways for the NIIPR

This attempt at an overview of Intellectual Property Institutes around the world has revealed broad similarities in their functioning. These similarities are also seen with the proposed functions of the NIIPR, as outlined in the Proposal of the MHRD and the Planning Commission. It would therefore lead one to believe that the establishment of this institution is potentially headed in the right direction. However, even while the functions of these existing Institutions might guide the establishment of the NIIPR, it would do well to tailor itself to meet India’s specific requirements. With pre-existing ministries, departments and offices in place to deal with the enforcement of intellectual property rights, India needs a body that informs the government on issues of intellectual property law and policy reform, in preparation for international negotiations, which is a lacuna that the NIIPR ought to address. In addition to this core function, the NIIPR may be the institution that oversees the role and functioning of the MHRD Chairs, and also be developed as a research institution aiding the government in developing an intellectual property framework addressing the needs of all stakeholders. Further, the NIIPR may also consider undertaking activities such as the establishment of databases containing patent documents and other publications in Indic languages to ensure access to a larger group of people. The NIIPR could also play an influential role in shaping regional discussions on intellectual property at the international level and encourage and facilitate South-South dialogue.

With nine thousand nine hundred and eighty (9980) lakh Indian rupees being allocated for the National Programme on Intellectual Property Management under the current Five Year Plan (2012-2017), which includes the establishment of the NIIPR, one awaits further developments that might well change the face of India’s intellectual property framework in the long run, with a sense restrained excitement.

For more details visit https://cis-india.org/a2k/blogs/mapping-institutions-of-intellectual-property-part-c

28th Session of the WIPO SCCR: Report on the Proposed Treaty for the Protection of Broadcasting Organizations

nehaa — 2014-08-07T10:44:05Z

The 28th Session of the World Intellectual Property Organization (“WIPO”) Standing Committee on Copyright and Related Rights (“the Committee” / "SCCR") took place in Geneva from June 30, 2014 to July 04, 2014. In this article, Nehaa Chaudhari, who attended this meeting on behalf of CIS, discusses the developments that took place with reference to the proposed Treaty for the Protection of Broadcasting Organizations (“Broadcast Treaty”).

At its 28^th Session, the WIPO SCCR devoted two and a half days to a discussion on the Broadcast Treaty. For the majority of this period informal discussions (“Informals”) were held between member states and there was no plenary. While Non- Government Organizations ( “NGOs”) and those member states who were not participating in the Informals were able to listen to the discussions taking place, we were requested to not report about them in any form whatsoever. Consequently, this article does not mention, cite or discuss the conversations in the Informals in any manner whatsoever, and is confined to deliberations at the plenary sessions.

Preliminary

Proceedings on Day 1 (June 30, 2014) began with a speech by the Director General of WIPO, Francis Gurry. Commending the “exceptional progress” made by the Committee over the past few years, Mr. Gurry cited the Marrakesh and Beijing Treaties as success stories. In talking about the Broadcast Treaty, Mr. Gurry said that the then ongoing FIFA World Cup, 2014 was “the perfect example” for member states on the economic and social importance of broadcasting. He went on to add that the Broadcast Treaty was the last component of the international legal framework which had not been “updated for the digital environment”. Identifying the challenge as developing a shared understanding of what and how to protect, Mr. Gurry was of the opinion that the Committee would make progress on the development of an instrument that was narrow in scope to combat cross border digital piracy.

In his statement following that of the Director General, the Chairperson, Edgar Martin Moscoso Villacorta (“the Chair”) explained that he had held consultations with the regional coordinators and three other nations from each group on June 27, 2014 to figure out how best to proceed at the upcoming 28^th Session of the Committee; before opening the floor to Regional Coordinators for their Opening Statements.

Group Opening Statements by Regional Coordinators : Reflections of a North-South Divide

Opening statements by Regional Coordinators on behalf of their groups reflected sentiments similar to those witnessed at the 26^th and 27 ^th Sessions of this Committee[1]. While there was broad consensus on having a well-balanced work plan that addressed the different issues of broadcasting, limitations and exceptions for libraries and archives as well as limitations and exceptions for education, teaching, research and persons with disabilities, statements also reflected the disagreements between various groups on the maturity (or the lack thereof) of the various items on the agenda, largely along the fault-lines of the classic Global North v. the Global South. For instance, statements by the European Union (“the EU”) and Group B, the group of developed countries emphasised the convening of a diplomatic conference for the Broadcast Treaty, but on the other hand, statements by the groups of developing countries highlighted the importance of limitations and exceptions.

The Regional Coordinator (presently, Paraguay) for the Group of Latin American and Caribbean Countries (“GRULAC”) placed emphasis on a “well balanced work plan which envisages the different issues” but also stated that for their group, “the issue of limitations and exceptions for libraries and archives and educational and research institutions (is) of the utmost importance.”

The representative of Bangladesh, in his capacity as the Regional Coordinator of the Asia-Pacific Group said that their group considered all issues to be equally important, notwithstanding the fact that they might enjoy different levels of discussion at the SCCR; and on the issue of protection of broadcasting organizations said that the group was “willing to work constructively” and hoped to continue “meaningful technical discussions in finalization of the scope of the protection of broadcasting organizations and to advance further to a balanced international instrument of rights and responsibility for the broadcasting organizations.”

The statement of the Central European and Baltic States (“CEBS”) Group, presently represented by the Czech Republic categorically stated that the CEBS Group was “striving for the successful conclusion of the work regarding the protection of broadcasting organizations with the aim to recommend to the General Assemblies to convene the Diplomatic Conference to take place, as soon as possible, preferably in 2015.” (sic)

Japan, speaking on behalf of Group B, in their statement recognised the “tradition…to allocate more time to discussion on more mature subject matters”, referring to the Broadcast Treaty and, like the CEBS Group, also touched upon the issue of convening a Diplomatic Conference as soon as possible.

The European Union (“the EU”) has perhaps been one of the most vocal proponents of the Broadcast Treaty at past sessions of the Committee, and carried forward this tradition into the 28^th session as well, labelling negotiations on the Broadcast Treaty “a high priority” for Member States. The EU also echoed the statements made by the CEBS Group as well as Group B on the need to call for a diplomatic conference “as soon as possible.” In order to achieve this, said the EU, there was a need to build a “broad consensus” on the problems that needed to be addressed as well as on the extent of protection envisaged.

Technical Assistance from Broadcasters

The United States of America placed an emphasis on a treaty that would address challenges posed by new technologies, indicated in their request to the Secretariat to inform the member states about different sizes and types of broadcasters using new technologies by conducting a survey, recognising that a lot had changed over the course of the past 12 years, when a report on this issue was last prepared; a proposal which was supported by the delegation of India as well.

Following these comments by the United States of America (but in an unrelated move), the Chair suggested technical assistance be sought from broadcasters. Surprisingly, he identified three NGOs (in this case associations of broadcasters), namely Asian Broadcasters Union, International Association of Broadcasters and National Association of Broadcasters, who could provide technical assistance if required.

This stance was supported strongly by the delegations of Egypt and the Russian Federation. While it also found support from the Japanese delegation, it also pointed out that a mere presentation might bring about some confusion, and instead thought that it might be a better idea to update the studies commissioned by WIPO in 2002.

Resistance to this proposition was offered by the delegation of Venezuela who questioned the “expertize of these experts to speak to the Member States about such a complicated issue” and “the selection criteria” among others. Exclaiming in surprise at the manner on which this proposal had been accepted, the delegate sough further clarifications on the issue, demanding to know “who these very important people are who are going to come in and help us solve a problem in which we have not been able to solve in 10 years.” (sic.) The concern on the absence of transparency was also echoed by the delegate of Uruguay, who expressed his great “astonishment” at “three technical experts” at the session, saying that it was “most inappropriate” to be informed about the presence of technical experts after regional coordinators had earlier expressed their refusal to have such an exercise. In response, the Chair said that this was a decision that he had taken in response to a request for technical consultations made at the earlier session of the Committee. He went on to add that the Committee could do without the technical assistance if perceived to be unnecessary and the process not transparent.

Scope of Protection: Article 6

The Scope of Protection under the Broadcast Treaty is laid out under Article 6 of WorkingDocument 27/2/Rev. (“Working Document”). This document lays out the text which forms the basis of the negotiations at the SCCR.

Confining the Broadcast Treaty to a signal based approach versus broadening the scope of the treaty to a more technologically neutral rights based approach was the chief point of conflict between the developed and the developing nations, reflect in their statements discussed below.

Opening the proceedings, the United States of America (“the US”/ “USA”) placed complete support on the statement of Group B; but also added that the way forward “to finding consensus” was to “focus on a narrow treaty based on the core need of broadcasters for protection from signal piracy.” The US proceeded to outline its proposal of “a single right to authorise the simultaneous or near simultaneous transmission of signal to the public over any medium.” Highlighting the key advantages to this proposal the US said that its proposal was “modern”, recognizing the importance of “new technologies that are used for engaging in signal piracy and avoids a number of negatives as to which concerns have been expressed in the discussions”. However, the US was also quick to clarify that the “right would be limited to protection for the signal and not to the content contained in fixations of the broadcast” and would also “avoid interference with the rights of the right holders in the content that was broadcast” as well as “avoid any impact on consumers who were engaged in private activities such as home copying”.

India reiterated its serious concerns regarding webcasting, simulcasting and retransmission over computer networks. Japan, on the other hand, while most other nations chose to reserve their comments for discussions in the Informals alone.

On the third day of this meeting, the Chair presented the progress that had been made over the course of the discussions taking place in the Informals. He said that webcasting had been removed from the scope of application. The concern, said the Chair, was that webcasting was also carried out by other actors- not just broadcasting organizations, and that having different rules for different actors carrying out the same activity would not be “a good message” (sic.)

Rights of Broadcasters: Article 9

The Rights of Broadcasters under the Broadcast Treaty are laid out under Article 9 of the Working Document. The US said that it “remained convinced” that a narrow scope of rights would make it possible for the SCCR to recommend convening a diplomatic conference. The Russian Federation on the other spoke of the need to take into account the “appearance of new technologies which provide new possibilities, particularly the use, and the unauthorized use of the signal.”

As in the case of the Scope of Application, in the case of Rights of Broadcasters as well, the Chair updated the plenary on the discussions in the Informals. The discussions were informed by two informal documents listing out the rights as well as the scope. While discussing the rights, said the Chair, it was decided to merge simultaneous and near simultaneous retransmission since they were closely related. The rights sought to be granted to the broadcasters include those of fixation, reproduction of fixations, distribution of fixations and performance of the broadcast among others.

In response to the Chair’s invitation for suggestions, the delegate of Sri Lanka suggested that one of the sentences be rephrased as follows: “Transmission or retransmission of the broadcast signal to the public over any medium whether simultaneous, near simultaneous or deferred including on demand transmission on a broadcast signal.” She also added fixation rights should be granted only to that extent of a file being copied for the purpose of transmission, before it has been transmitted. A few other delegations either echoed similar sentiments, or chose to remain silent until the Informals.

Comments by NGOs

On the third (and the final for the Broadcast Treaty), day of discussions, the Chair opened the floor to interventions, observations and comments by NGOs.

AIR, representing broadcasting organizations spoke of the “great need” to update the Rome Convention because of the prevalence of piracy, especially transmissions over the internet. The National Association of Broadcasters cited instances of television piracy as examples of the harm to broadcasters and need for such a treaty. The Japanese Commercial Broadcasters Association expressed its support for post fixation rights and said that they were important to broadcasters, “especially the right of making available a fixed broadcast is crucial in order to fight online piracy which we said a number of times before…” (sic.). Also recognising the need to be flexible, the Japanese Commercial Broadcasters expressed their support to the proposal made by the Japanese delegation in making some rights optional.

A different set of concerns was articulated by other NGOs, who were not associations of broadcasters. Trans Atlantic Consumer Dialogue ( “TACD”) spoke of the possible “collateral damange to public access and culture” and the addition of “new layers of complications barriers and costs added” to access to information and knowledge by consumers. Further, highlighting the irony of the SCCR with the strong push towards a binding Broadcast Treaty “with a wide scope”, the Trans Atlantic Consumer Dialogue said that this was in “stark contrast on the part of some other Member States to discussing new global norms” to facilitating the role played by libraries and archives. Additionally, TACD also said that there was the danger of “opening up an endless and incomprehensive Pandora box of overlapping rights on content between non creators of broadcasts and the real creators” (sic.), and also expressed grave concern over the negative impact of post fixation rights on the use of news, culture and information by consumers ad users. “In consideration of a new international norm for broadcasters, we must not forget the common food for the free flow of information for citizens,” said TACD. It also said that the focus of the work should not be to satisfy the interests of one special group while ignoring the possible negative unintentional consequences on “normal users”, and asked for a social impact assessment of the Broadcast Treaty.

Knowledge Ecology International (“KEI”) in their statement stated that the broadcasters had failed to meet their burden of proving the need for “exclusive rights to fight piracy.” In order for the Committee to make progress, KEI suggested that the focus be on a “narrow treaty based on a single right corresponding to the key need of broadcasting organizations for protection from signal piracy.” KEI also questioned and opposed the extension of broadcasters’ rights to cable television and other services which were not only subscription based, but were also protected under theft of service laws. Further confining the scope of the Broadcast Treaty, KEI suggested that the treaty only deal with over the air broadcasts which were free to the public.

A powerful statement by CCIA referred to fixed signals as “fiction” and said that the existing model in the Brussels Satellite Convention was adequate to protect piracy of signals. Echoing the sentiments of various other organisations as well (including CIS as discussed below), CCIA stated that while broadcasters had stated that the present approach was not adequate to protect their interests, no reasons had been offered fir the same. In agreement with other nations as well as TACD before it, CCIA also sought information from WIPO on the “real world impact of the obligations” it intended to create.

Also joining the call for impact assessment was the Third World Network (“TWN”). TWN also spoke of restricting the scope of the Broadcast Treaty to the mandate accorded to the SCCR in line with the 2007 General Assembly decision, the need to base discussing on WIPO’s Development Agenda, and the “negative implications on the free flow of information over the Internet and the negative impact on the public domain and access to knowledge.”

The Centre for Internet and Society (“CIS”), in agreement with CCIA pointed out that the broadcasters had not discharged their burden of justifying the need for the Broadcast Treaty and why “international instruments including, among others, the TRIPS and the Rome Convention” were insufficient to address the concerns of broadcasters. Joining other organizations including CCIA, TACD and TWN in a call for a further study, CIS requested an impact assessment of the Broadcast Treaty on all stakeholders. Further, CIS pointed out that if the rationale for seeking this protection was the protection of the underlying investment, IP based transmissions should be out of the scope of this treaty, since the investments involved in IP based transmissions and those in broadcasting in a traditional sense were very different. CIS also strongly opposed the inclusion of fixation and post fixation rights since they were inconsistent with a signals based approach and pointed out the irony in protecting a signal for twenty years, when the signal itself lasted milliseconds.

IFTA, the Independent Film and Television Alliance placed emphasis on the separation of the content and well as the broadcast signal as well maintaining a balance by also safeguarding public interest.

Chair’s Conclusions

After five days of deliberations, the 28^th Session of the SCCR, just like the 27^th Session, ended with no conclusions being adopted by the Committee, as a result of which the Chair’s Conclusions were prepared by the Chair, Martin Moscoso.

Clarifying that this item would be maintained on the agenda for the 29^th Session of the SCCR and that there had been no agreement on recommendations to the WIPO General Assembly, the Chair’s Conclusions state that the Committee conducted discussions on issues relating to “categories of platforms and activities to be included under the object and scope of protection to be granted to broadcasting organizations in the traditional sense, and initiated discussions on definitions.” The Chair’s Conclusions also clarify that “the Secretariat was requested by some Members to provide an update of the 2010 study on “Current Market and Technology Trends in the Broadcasting Sector” (Document SCCR 19/12), focusing on the use of digital technology by cablecasting and broadcasting organizations in the traditional sense whether public or commercial, including in developing countries, with the aim of presenting the results of the study and providing opportunities for technical discussion at the 29th session of the SCCR.”

[1] See http://cis-india.org/a2k/blog/wipo-sccr-consolidated-26-session-consolidated-notes-part-1 (last accessed 17 July, 2014), http://cis-india.org/a2k/blog/wipo-sccr-26-session-consolidated-notes-part-2 (last accessed 17 July, 2014) and http://cis-india.org/a2k/blog/wipo-sccr-26-session-consolidated-notes-part-3 (last accessed 17 July, 2014) for CIS’ report on the 26^th Session of the Committee.

See http://cis-india.org/a2k/blog/wipo-sccr-27-discussions-transcripts (last accessed 17 July, 2014) for transcripts of the discussions at the 27 ^th Session of the Committee.

See http://cis-india.org/a2k/blog/cis-statement-limitations-and-exceptions-education-training-research-institutions-persons-with-other-disabilities (last accessed 17 July, 2014) and http://cis-india.org/a2k/blog/cis-statement-treaty-for-limitations-and-exceptions-for-libraries-and-archives (last accessed 17 July, 2014) for CIS’ Statements at the 26^th Session of the Committee.

See http://cis-india.org/a2k/blog/cis-statement-27-sccr-on-wipo-proposed-treaty-for-protection-of-broadcasting-organizations (last accessed 17 July, 2014), http://cis-india.org/a2k/blog/cis-statement-orphan-works-retracted-withdrawn-works-and-works-out-of-commerce-at-27-sccr-on-limitations-and-exceptions-for-libraries-and-archives (last accessed 17 July, 2014) and http://cis-india.org/a2k/blog/cis-statement-on-technological-measures-of-protection-27-sccr-on-limitations-exceptions-for-libraries-and-archives (last accessed 17 July, 2014) for CIS’ Statements at the 27^th Session of the Committee.

For more details visit https://cis-india.org/a2k/blogs/wipo-sccr-28-proposed-treaty-for-protection-of-broadcasting-organizations