The Centre for Internet and Society
https://cis-india.org
These are the search results for the query, showing results 61 to 75.
Statement of CIS, India, on the WIPO Broadcast Treaty at the 22nd SCCR
https://cis-india.org/a2k/blogs/sccr-22-broadcast-cis-statement
<b>The twenty-second session of the Standing Committee on Copyright and Related Rights is being held in Geneva from June 15 to June 24, 2011. Nirmita Narasimhan and Pranesh Prakash are attending the conference. CIS delivered its statement, on the Broadcast Treaty, and made it available in print form as well.</b>
<p>The Centre for Internet and Society would like to associate itself with the comprehensive statement made by the Electronic Frontier Foundation (EFF). We are one of the signatories of the joint statement, which EFF referred to, of the many civil society non-governmental organizations, cable casters and technology companies opposing an intellectual property rights based Broadcasting Treaty.</p>
<p>We believe that the protection that may be afforded to broadcasters under existing international treaties, including <a class="external-link" href="http://www.worldtradelaw.net/uragreements/tripsagreement.pdf">Article 14 of the TRIPS Agreement</a>, are sufficient to safeguard the interests of broadcasters, and that the Broadcast Treaty, which has been under discussion for more than a decade without any progress is, as the WIPO Chair observed in the conclusion to the informal summary prepared after the 16th SCCR (SCCR/17/1/inf), an expenditure of "time, energy and resources to no avail". Without prejudice to that position, we would like to make a few points on the content of the treaty as well.</p>
<p>There has been talk of ensuring a technology-neutral approach. While a technology-neutral approach is useful since technology keeps changing, we believe that that necessarily means the differences between different technologies should be recognized. The capital costs and investments of traditional broadcasters, which are—as has been highlighted in the many statements here today—the basis on which broadcasters' rights are demanded, are not in the least comparable with the capital costs and investments of webcasting.</p>
<p>These differences have not come out adequately in the various regional seminars that WIPO helped organize, since those were mostly with traditional broadcasters and did not cover webcasters.</p>
<p>"Communication to the public", while that is a technologically neutral formulation, is an element of copyright, and is not the same of broadcast rights, which is a related right.</p>
<p>Any departure from a signal-based approach would require the assent of the WIPO General Assembly, which has in 2007 specifically requested for signal-based approach for the treaty.</p>
<p>Specifically, we believe that Paragraph 16 of the WIPO Development Agenda, which relates to preservation of a vibrant public domain, will be endangered by a right being given to webcasters which is separate from the underlying content of the transmission.</p>
<p>In this regard, we strongly support the delegations of South Africa and India, in their strong pronunciation of public interests while looking at such a treaty. We further support the delegation of Canada, for strongly emphasizing the need to allow countries the flexibility to opt-out of the provisions of the treaty for certain forms of broadcasting.</p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/sccr-22-broadcast-cis-statement'>https://cis-india.org/a2k/blogs/sccr-22-broadcast-cis-statement</a>
</p>
No publisherpraskrishnaAccess to KnowledgeCopyrightIntellectual Property RightsBroadcastingTechnological Protection Measures2011-08-04T04:41:12ZBlog EntryLecture by Eben Moglen and Mishi Choudhary
https://cis-india.org/a2k/blogs/lecture-by-eben-moglen-mishi-choudhary
<b>The Software Freedom Law Center, National Law School, and the Centre for Internet and Society organised a lecture by Mishi Choudhary and Eben Moglen for students of NLS on Saturday, December 13, 2008.</b>
<p>Saturday, December 13, 2008 had Mishi Choudhary and Eben Moglen of the New York-based Software Freedom Law Center speaking to the students of the National Law School of India University in Nagarbhavi, Bangalore, in a talk organized by CIS.<br /><br />Mishi Choudhary, who will head the Software Freedom Law Center in New Delhi, spoke on "Globalising Public Interest Law: The SFLC Model". She told the students about the importance of non-profit legal work as well as its viability as a career choice. She also laid out the background to the work that SFLC does, and traced a brief history of software patent cases <br /><br />Eben Moglen chose to speak on "Who Killed Intellectual Property and Why We Did It?". He started off by talking of the interconnections between law and societal change: how law can't keep pace with the changes we see around us, and how law actually sometimes changes in the reverse direction, while trying to maintain the status quo. <br /><br />This is not a new phenomenon, he noted, and that when law is responsive to anybody, it listens to the 'people of the past' more carefully than the 'people of the future'. This, he says, is compounded by the fact that the primary mode of change in the law is not legislation (since there is nothing legislators hate more than legislating), and that the better lawyers usually represent only those who can afford to pay them, hence resulting in systemic injustice. He emphasised that the clients of the SFLC, on the other hand, are people who create software worth billions of dollars, but who do not own it.<br /><br />On that point of creation for the purpose of sharing and not owning, a student raised the question of why proprietary rights shouldn't exist in creations of the intellect. In response Mr. Moglen pointed out that while his personal opinions might be different, the Software Freedom Law Center does not seek to bring into dispute the concept of property rights in software, nor the fundamentals of patent law: it is merely concerned with the scope of patent law, and seeks a literal enforcement of patent law as it exists in most jurisdictions.<br /><br />Another question that cropped up was on the economics of software creation and the anti-competitive nature of free software. To this, Mr. Moglen provided a brief summary of the tragedy of the anticommons by using land to be acquired for public works in the centre of a city as an example. In software, this problem is only exacerbated, he pointed out. Most physical creations over which patents are granted have something like 8 or 10 steps. Software code is different because it contains thousands of instructions. Even big companies face the anticommons problem; but they manage to evade it by cross-licensing agreements which results in efficient transactions for them since it involves no exchange of money whatsoever. Small companies are in a worse situation, since they don't have those kinds of patent portfolios to be able to enter into cross-licensing agreements, no matter how innovative they are. Thus, in effect, the system is rigged against them. This provides a partial answer to the antitrust question, he noted. Competition law is actual in favour of free software. The right to practise a trade or profession, and the right to speech get implicated in any case where a FLOSS-based company is hauled up before a court being accused of conspiring with other to take cost to zero.<br /><br />Mr. Moglen further explained that when it comes to software, the problem of patenting is very different. A 20-year monopoly is more reasonable from the viewpoint of physical creations. Patent law, however doesn't tailor the rights that are granted by a patent. The problem starts right from the process of granting a patent. The job of a patent office being to apply the tests of non-obviousness, novelty and utility, most patent offices can do a reasonable job in most fields of technological endeavour, since there is a large body of innovation with which the proposed patent can be compared. Software, however, is a recent field with a large number of applications coming in all at once. While the patents that are sought might include claims on ideas and applications that existed in software in 1956, those aren't easy for the patent offices to dig up, since the field of software patents and software itself have not existed for the same length of time.</p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/lecture-by-eben-moglen-mishi-choudhary'>https://cis-india.org/a2k/blogs/lecture-by-eben-moglen-mishi-choudhary</a>
</p>
No publisherpraneshIntellectual Property RightsSoftware PatentsAccess to Knowledge2011-08-23T02:55:59ZBlog EntryCivil Society Letter Against TRIPS-Plus IP Enforcement
https://cis-india.org/a2k/blogs/civil-society-letter-against-trips-plus-ip-enforcement
<b>This open letter was sent to the president of Confederation of Indian Industry (CII) and high-level government officials on the eve of the Third International Conference on Counterfeiting & Piracy organized by CII. This conference aims to strengthen the enforcement of intellectual property rights and thus creating an imbalance in the protection that intellectual property offers to both those who own it as well as those who don't.
</b>
<h2>An Open Letter to the President of Confederation of Indian Industry (CII) on the Third International Conference on Counterfeiting & Piracy</h2>
<p><br />To<br />Mr. Venu Srinivasan <br />The President <br />Confederation of Indian Industry (CII) <br />The Mantosh Sondhi Centre, 23, <br />Institutional Area, Lodi Road <br />New Delhi - 110 003 <br /><br />Dear Mr. Srinivasan,<br /><br />We understand that Confederation of Indian Industry (CII) is hosting the Third International Conference on Counterfeiting and Piracy from 19-20th August 2009 in partnership with the Embassy of the United States and the Quality Brand Protection Committee (QBPC), China. As stated in the invitation letter the primary objectives of the conference are: 1) to initiate coordinated action for cross border enforcement; 2) to highlight the importance of protection of intellectual property rights (IPRs); 3) to combat the growing threat of piracy and counterfeiting; 4) to facilitate a global meeting of customs officials across the globe; 5) to recommend the creation and setting up of a governmental “National Brand Protection” group; 6) to serve as a forum to discuss legal guidelines related to the prosecution of IPR infringement and to eliminate ‘loopholes’ within the existing laws; and 7) to strengthen cooperation between enforcement agencies and chalk out strategies for enforcement agencies a industry action both at national & international level. We also understand that this international conference is part of CII Intellectual Property Division’s special initiative on enforcement of IPRs. As part of this special initiative CII aims at “engaging government to create conducive legislative measures, policy levels reform and impressing [upon them] to adopt stringent enforcement initiatives and exemplary punitive and monetary measures to further safeguard and secure the interest of industry”. CII also wants to “create a global partnership to synergise efforts of international community and to support and participate in India's efforts in combating counterfeiting both at domestic and international levels”. We, the undersigned, representing various civil society organizations in India, write this letter to express our strong reservation on the conference as well as on CII’s special initiative on IP enforcement. Without raising any question on CII’s right to organize events we would like to convey the following concerns with regard to the conference and CII’s initiative on IP enforcement.</p>
<p>Many of the above mentioned objectives of the conference and the special initiative are directed towards the enhancement of intellectual property (IP) standards like coordinated action on border measures, common guidelines for prosecution of IP infringement, exemplary punitive and monetary measures, etc. In other words, enhancement of IP standards means using more public money to protect private rights; very often protecting the monopoly over intangible property rights of multi-national corporations (MNCs).</p>
<p>As you may be aware, MNCs and their developed country hosts are currently engaged in the implementation of <a class="external-link" href="http://www.iqsensato.org/wp-content/uploads/Sell_IP_Enforcement_State_of_Play-OPs_1_June_2008.pdf">a multi-pronged strategy to enhance IP enforcement standards</a>.[1] This is similar to the MNC’s initiatives in the mid 80s to enhance international IP protection, which resulted in the Agreement on Trade-Related aspects of Intellectual Property Rights (TRIPS). Unlike the 80s, now MNCs and developed countries use multiple forums to pursue the objective of enhancement of IP enforcement standards. Some developed countries have unilaterally enhanced their IP enforcement strategy to force other countries, especially developing countries, to accept the same through various multilateral organizations, namely the World Customs Organization (WCO), World Health Organization (WHO), Universal Postal Union (UPU), Interpol, WIPO and WTO. Developed countries are also using Free Trade Agreements (FTAs), Bilateral Agreements on IP Enforcements as well as financing lobbyist studies, conferences and policy recommendations to impose higher IP enforcement standards. These efforts for the enhancement of IP enforcement standards are a matter of grave concern for the people of developing countries and their governments. By partnering with the US Embassy and <a class="external-link" href="http://www.qbpc.org.cn/About_QBPC/Introduction/2008-08/01_116.html.">Quality Brand Protection Committee of China</a> (QBPC)[2] in the organization of this conference, CII is allowing itself to play in the hands of MNCs and some developed countries, whose interests do not match with that of India industries and that of the Indian people.</p>
<p>As you are aware, the Government of India is taking a very strong position in resisting enhancement of IP enforcement standards in all the multilateral forums. India along with like-minded developing countries successfully pushed back TRIPS-plus[3] IP enforcement agenda at WCO and WHO. India is also trying its level best to convince other developing countries the need to stick to TRIPS-compliant standards rather than adopting TRIPS-plus enforcement standards. In the wake of the controversial generic drug seizures by EU customs authorities, <a class="external-link" href="http://www.livemint.com/2009/02/04232721/India-Brazil-raise-EU-drug-se.html">India has also raised the issue of TRIPS-plus IP enforcement standards</a> contained in the EU IP Enforcement Directive at least two times at the TRIPS Council.[4] The <a class="external-link" href="http://www.keionline.org/blogs/2009/07/08/india-ecosoc-seizures/#more-2404">Indian political leadership has unequivocally raised its concern</a> over the enhancement of IP enforcement standards at other forums also.[5] In adopting this stance, the Government of India has cited <a class="external-link" href="http://www.centad.org/focus_77.asp">public interest as well as the operating freedom of Indian industry</a> as its justifications.[6] By partnering at this vital stage with an MNC lobby group and a heeding to developed country governments, CII is not acting in furtherance of the legitimate public interests of Indian domestic industry and the Indian people.</p>
<p>It is a well-evidenced fact that TRIPS-plus enforcement standards adversely impact not only legitimate trade between nations (as shown by the EU seizures) but also the <a class="external-link" href="http://www2.ohchr.org/english/bodies/hrcouncil/docs/11session/A.HRC.11.12_en.pdf">day-to-day life of millions of people</a> especially in India and other developing countries.[7] Unfounded IP enforcement measures would adversely impact access to life saving medicines and educational materials. Thus the IP enforcement measures also have the potential to deny right to development to people in the global South. Hence an organization like CII should not view IP as only a business tool but should look at the larger scheme of things especially in the social and economic realities of India. In fact, by promoting enhancement of IP enforcement standards CII is advocating a policy, which would violate the right to health, the right to knowledge, as also the right to development.</p>
<p>We would also like to point out that Indian pharmaceutical industry is one of the victims of TRIPS-plus IP enforcement standards. In 2008 alone, <a class="external-link" href="http://www.thehindubusinessline.com/2009/06/08/stories/2009060851700300.htm">17 consignments</a>[8] were seized in transit at Europe using the <a class="external-link" href="http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2003:196:0007:0014:EN:PDF">EU Directive on IP Enforcement</a>, which allows seizure of goods in transit.[9] These consignments were being exported from developing countries (such as India and Brazil) to other developing countries, and the contents of the consignments are perfectly legal in both the exporting as well as the importing nations. These highly questionable seizures resulted in the crisis of health programmes as it resulted in delays in and prohibitive costs of access to life-saving medicines in developing countries of Africa and Latin America. CII can barely claim to be representative of the interests of Indian industry if it ignores such episodes and partners with self-promoting MNCs and developed countries’ governments to advocate for the enhancement of IP enforcement standards.</p>
<p> </p>
<p>In the light of above-mentioned issues, we request you to consider the following:</p>
<ul><li>Rejecting the TRIPS-plus enforcement agenda in toto. We demand CII, Federation of Indian Chambers of Commerce and Industry (FICCI), Associated Chambers of Commerce and Industry(ASSOCHAM) and other Indian business associations to reject any and all attempts of bringing in a TRIPS-plus enforcement agenda in India, in the interests of Indian industry and the Indian people.</li><li>Completely disengaging from any collaborative efforts with foreign institutions to further TRIPS-plus standards of IP protection in India and also abstaining from any engagements on the anti-counterfeiting efforts with foreign agencies. CII should attempt to engage with domestic institutions and build national consensus before engaging with foreign institutions with the claim of representatives of Indian industry.</li><li>Taking necessary proactive steps to safeguard the interests of access to medicine and access to knowledge along with interest of the Indian domestic industry.</li><li>Participating in a more creative discussion on IP and development rather than simply accepting the simplistic and largely discredited view that stronger IP regime leads to more innovation and is a necessary condition for socio-economic development. </li></ul>
<p><br />CC:<br />Shri Anjan Das <br />Senior Director & Head <br />Technology, Innovation, IPR & Life Sciences <br />Confederation of Indian Industry (CII) <br />Plot No. 249-F, Sector-18; Udyog Vihar, Phase-IV, <br />Gurgaon-122015, Haryana <br /><br />Shri. P. Chidambaram<br />Minister<br />Ministry of Home Affairs<br />Government of India<br />North Block, Central Secretariat<br />New Delhi 110001 <br /><br />Shri G. K. Pillai<br />Secretary Justice<br />Department of Justice<br />Ministry of Home Affairs<br />Government of India<br />North Block, Central Secretariat<br />New Delhi 110001 <br /><br />Shri Naresh Dayal,<br />Secretary, Dept. of Health and Family Welfare<br />Ministry of Health and Family Welfare<br />Government of India<br />149-A, Nirman Bhawan, New Delhi – 110 011 <br /><br />Shri Ajay Shankar<br />Secretary<br />Department Of Industrial Policy & Promotion<br />Ministry of Commerce and Industry<br />Room 153, Udyog Bhavan,<br />New Delhi – 110 011 <br /><br /></p>
<h3>Signatories to this letter</h3>
<ul><li>Centre for Trade and Development (Centad), New Delhi</li><li>Centre for Internet and Society, Bangalore</li><li>National Working Group on Patent Laws, New Delhi</li><li>Lawyers Collective (HIV/AIDS Unit)</li><li>All India Drug Action Network (AIDAN)</li><li>International Treatment Preparedness Coalition (ITPC), India</li><li>Consumers Association of India, Chennai</li><li>IndoJuris Law Offices, Chennai</li><li>All Indian People’s Science Network, New Delhi</li><li>Delhi Science Forum</li><li>Alternative Law Forum, Bangalore</li><li>Knowledge Commons</li><li>Moving Republic</li><li>IT for Change</li><li>Centre for Health and Social Justice(CHSJ), New Delhi</li><li>Navdanya, New Delhi</li><li>Support for Advocacy and Training to Health Initiatives (SATHI)</li><li>Centre for Enquiry Into Health and Allied Themes (CEHAT)</li><li>Initiative for Health Equity & Society</li><li>International Peoples Health Council (South Asia)</li><li>Drug Action Forum – Dharwad, Karnataka</li><li>Dr. Mira Shiva, New Delhi</li><li>Tina Kuriakose, PhD Scholar, Jawaharlal Nehru University, New Delhi</li><li>Dr Gopal Dabade, Dharwad</li><li>Dinesh Abrol, Scientist NISTADS, CSIR, New Delhi</li><li>Madhavi Rahirkar, Lawyer/Consultant, Pune</li><li>Gautam John, Bangalore</li><li>Achal Prabhala, Bangalore</li></ul>
<p><br />Endnotes</p>
<p>[1] See Susan K Sell, The Global IP Upward Ratchet, Anti-counterfeiting and Piracy Enforcement Efforts: The State of Play.<br />[2] QBPC barely qualifies as a representative of Chinese interest, as it comprises more than 180 multinational member companies.<br />[3] ‘TRIPS-plus’ refers to any protection of IPRs that surpasses the standards and requirements spelt out in WTO-TRIPS provisions.<br />[4] See Jonathan Lyn, India Brazil raise EU drug Seizures issue at WTO, available at http://www.livemint.com/2009/02/04232721/India-Brazil-raise-EU-drug-se.html<br />[5] Indian Minister of State for External Affairs Broaches Seizures of Generics at ECOSOC, available at http://www.keionline.org/blogs/2009/07/08/india-ecosoc-seizures/#more-2404<br />[6] Indian Commerce Secretary’s Speech to the African Community Ambassadors. available at http://www.centad.org/focus_77.asp.<br />[7] For two very recent examples, see Intellectual Property Enforcement: International Perspectives, Xuan Li & Carlos Correa (eds.) (2009); Anand Grover, Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, A/HRC/11/12 (2009).<br />[8] Jyoti Datta, 16 out of 17 drug consignment seizures in the Dutch were from India available at http://www.thehindubusinessline.com/2009/06/08/stories/2009060851700300.htm<br />[9] The EC Regulation No 1383/2003 allows for seizure of goods in transit.</p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/civil-society-letter-against-trips-plus-ip-enforcement'>https://cis-india.org/a2k/blogs/civil-society-letter-against-trips-plus-ip-enforcement</a>
</p>
No publisherpraneshAccess to MedicineConsumer RightsIntellectual Property RightsAccess to Knowledge2011-09-22T12:48:51ZBlog EntryWorld IT Forum 2009
https://cis-india.org/a2k/blogs/witfor-2009
<b>At the World IT Forum, Pranesh Prakash made a brief presentation on intellectual property rights, how ill-suited they are to be considered "property" rights, and how they have been foisted upon the developing world.</b>
<div class="moz-text-html">
<div class="moz-text-html">
<p>At the
recently-concluded World IT Forum, 2009, the Commission on Social, Ethical, and Legal Issues organized three sessions. One
on 'Digital Intellectual Property Rights and Digitisation of Divides',
a second on 'Employment of ICTs Toward Effective Realization of
Millenium Development Goals' and a third on 'E-Governance and
Biometrics: Evaluating Opportunities and Threats'. The individual
sessions had K.M. Gopakumar of Third World Network ("Digital Technology
and Access to Knowledge: Policy Space for the Third World), Naveen
Thayyil ("Digital IPRs: Implications for Divides in New and Emerging
Biotechnologies"), Anita Gurumurthy of IT for Change,("Reimagining the
Digital Opportunity" ), Chat Garcia Ramilo of APC Women's Networking
Support Programme ("Gender Dimensions of ICT Development"), Ajit
Narayanan of AUT ("What Does Your Passport Say About You?"), Sohel
Iqbal of Korea University ("Obligation and SWOT of E-Governance in
Developing Countries") and Dinh Ngoc Vuong of the Institute of
Lexicography and Encyclopedia of Vietnam ("Legal Aspects and Role of
E-Governance in Vietnamese Reforms") speaking. As part of the first
session, I spoke on how IPR as a property regime leads to
mischaracterisation, and how IPR is a foreign system for developing
countries. </p>
<p>Amongst the many reasons that IPR should not be regarded in the same
light as property (even though that conceptual framework is <a class="external-link" href="http://volokh.com/2003_09_07_volokh_archive.html#106337694122641243">supported
by the likes of Eugene Volokh</a>) are to be found in David Levine's
rejoinder to Volokh that <a class="external-link" href="http://levine.sscnet.ucla.edu/general/intellectual/coffee.htm">IPR
are analogous to property</a>, along with the <a class="external-link" href="http://lsolum.blogspot.com/2003_09_01_lsolum_archive.html#106338119420336709">two</a>
<a class="external-link" href="http://lsolum.blogspot.com/2003_09_01_lsolum_archive.html#106349932466050651">rejoinders</a>
by Larry Solum. Volokh's main point is that not only control of use
and excludability, but incentives to create are also part of property
law, for both tangible property and intangible "property". This is
questioned not only by David Levine and Larry Solum, but by Mark
Lemley, Wendy Gordon, and a host of other scholars. Three simple
points to note: (1) IP deals with internalisation of positive
externalities, which is not something we normally associate with
property law -- thus, IP actually <a class="external-link" href="http://volokh.com/posts/1173221206.shtml">does not give me
control over my 'property', but over yours</a>;
(2) IP deals with a truly non-exhaustable, non-rivalrous good -- ideas
-- which, as shown in the articles linked above, are not suited to
being governed by property regimes; (3) IP goes much beyond what
property law does with tangible property, since it not only governs the
sale of IP and exclusion of others from my IP, but also governs the
subsequent usage of IP.</p>
<p>Another relevant consideration is the way that IP law has been
spread through the globe through means like colonisation and modern-day
unbalanced trade treaties.&nbsp; India got its first copyright law
in 1914 and <a class="external-link" href="http://www.wipo.int/treaties/en/Remarks.jsp?cnty_id=969C">signed
the Berne Convention in 1928</a>,
much before its independence. The TRIPS Agreement of 1995 mandated
things like product patents for pharma products for all countries, even
though an industrialised Western country like Spain only started
recognizing them in 1992, and even though Italy, which was then the
fifth largest manufacturer of pharmaceutical products, was forced to
introduce product patents by a petition of foreign pharma companies in
1978. The benefits of product patents for pharma products have not been
empirically proved, but the <a class="external-link" href="http://news.bbc.co.uk/2/hi/science/nature/7632318.stm">harms
caused by patents to production of newer medicines</a>
have been well documented. Given these, it is imperative that
developing countries push back against IP expansionism that is knocking
on their doors through instruments like Free Trade Agreements.</p>
</div>
</div>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/witfor-2009'>https://cis-india.org/a2k/blogs/witfor-2009</a>
</p>
No publisherpraneshIntellectual Property RightsAccess to Knowledge2011-08-04T04:44:33ZBlog EntryDon't Shoot the Messenger: Speech on Intermediary Liability at 22nd SCCR of WIPO
https://cis-india.org/a2k/blogs/intermediary-liability-wipo-speech
<b>This is a speech made by Pranesh Prakash at an side-event co-organized by the World Intellectual Property Organization and the Internet Society on intermediary liability, to coincide with the release of Prof. Lillian Edwards's WIPO-commissioned report on 'Role and Responsibility of the Internet Intermediaries in the Field of Copyright'.</b>
<p>Good afternoon. I've been asked to provide a user's perspective to the question of intermediary liability. "In what cases should an Internet intermediary—a messenger—be held liable for the doings of a third party?" is the broad question. I believe that in answering that question we can be guided by two simple principles: As long as intermediaries don't exercise direct editorial control, they should not be held liable; and as long as they don't instigate or encourage the illegal activity, they should not be held liable. In all other cases, attacking Internet intermediaries generally a sign of 'shooting the messenger'.
General intermediary liability and intermediary liability for copyright infringement share a common philosophical foundation, and so I will talk about general intermediary liability first.</p>
<p>While going about holding intermediaries liable, we must remember that what is at stake here is the fact that intermediaries are a necessary component of ensuring freedom of speech and self-expression on the World Wide Web. In this regard, we must keep in mind the joint declaration issued by <a href="http://www.cidh.oas.org/relatoria/showarticle.asp?artID=848&lID=1">four freedom of expression rapporteurs under the aegis of the Organization of American States on June 1, 2011</a>:</p>
<blockquote>
<p>Intermediary Liability</p>
<p>a. No one who simply provides technical Internet services such as providing access, or searching for, or transmission or caching of information, should be liable for content generated by others, which is disseminated using those services, as long as they do not specifically intervene in that content or refuse to obey a court order to remove that content, where they have the capacity to do so (‘mere conduit principle’).</p>
<p>b. Consideration should be given to insulating fully other intermediaries, including those mentioned in the preamble, from liability for content generated by others under the same conditions as in paragraph 2(a). At a minimum, intermediaries should not be required to monitor user-generated content and should not be subject to extra-judicial content takedown rules which fail to provide sufficient protection for freedom of expression (which is the case with many of the ‘notice and takedown’ rules currently being applied).</p>
</blockquote>
<p>It is useful to keep in mind what the kind of liability we affix on offline intermediaries: Would we hold a library responsible for unlawful material that a user has placed on its shelves without its encouragement?</p>
<p>Ensuring a balanced system of intermediary liability is also very important in preserving the forms of innovations we have seen online. Ensuring that intermediaries aren't always held liable for what third parties do is an essential component of encouraging new models of participation, such as Wikipedia. While Wikipedia has community-set standards with regard to copyright, obscenity, and other such issues, holding the Wikimedia Foundation (which has only around 30-40 people) itself responsible for what millions of users write on Wikipedia will hamper such new models of peer-production. This point, unfortunately, has not prevented the Wikimedia Foundation being sued a great number of times in India, a large percentage of which take the form of SLAPP ('strategic lawsuit against public participation') cases, since if the real intention had been to remove the offending content, editing Wikipedia is an easy enough way of achieving that.</p>
<p>While searching for these balanced solutions, we need to look beyond Europe, and look at how countries like Chile, Brazil, India and others are looking at these issues. Unfortunately, this being Geneva, most of the people I see represented in this room are from the developed world as are the examples we are discussing (France and Spain).</p>
<p>In India, for instance, the Internet Service Providers Association made it clear in 2006 (when there was an outcry over censorship of blogging platforms) that they do not want to be responsible for deciding whether something about which they have received a complaint is unlawful or not.</p>
<p>With respect to copyright and the Internet, while the Internet allows for copyright infringement to be conducted more easily, it also allows for copyright infringement to be spotted more easily. Earlier, if someone copied, it would be difficult to find out. Now that is not so. So, that balance is already ingrained, and while many in the industry focus on the fact of easier infringement and thus ask for increased legal protection, such increase in legal protection is not required since the same technological factors that enable increased infringement also enable increased ability to know about that infringement.</p>
<p>On the Internet, intermediaries sometimes engage in primary infringement due to the very nature of digital technology. In the digital sphere, everything is a copy. Thus, whenever you're working on a computer, copies of the copyrighted that show up on your screen are automatically copied to your computer's RAM. Whenever you download anything from the Internet, copies of it are created en route to your computer. (That is the main reason that exceptions in the copyright laws of most countries that allow you to re-sell a book you own don't apply to electronic books.) In such a case, intermediaries must be specially protected. </p>
<p>Additionally, online activities that we take for granted, for instance search technologies, violate the copyright law of most countries. For online search technology to be reasonably fast (instead of taking hours for each search), the searching has to be done on a copies (cache) of actual websites instead of the actual websites. For image searching, it would be unreasonable to expect search companies to take licences for all the images they allow you to search through. Yet, not doing so might violate the copyright laws of many countries. No one, or so one would think, would argue that search engines should be made illegal, but in some countries copyright law is being used to attack intermediaries.</p>
<p>As noted above, intermediaries are a necessary part of online free speech. Current methods of regulating copyright infringement by users via intermediaries online may well fall afoul of internationally accepted standards of human rights. Frank La Rue, the UN Special Rapporteur on Freedom of Opinion and Expression in <a href="http://www2.ohchr.org/english/bodies/hrcouncil/docs/17session/A.HRC.17.27_en.pdf">his recent report to the UN Human Rights Council</a> stated:</p>
<blockquote>
<p>While blocking and filtering measures deny access to certain content on the Internet, States have also taken measures to cut off access to the Internet entirely. </p>
<p>The Special Rapporteur is deeply concerned by discussions regarding a centralized “on/off” control over Internet traffic. In addition, he is alarmed by proposals to disconnect users from Internet access if they violate intellectual property rights. This also includes legislation based on the concept of “graduated response”, which imposes a series of penalties on copyright infringers that could lead to suspension of Internet service, such as the so-called “three-strikes law” in France and the Digital Economy Act 2010 of the United Kingdom.</p>
<p>Beyond the national level, the Anti-Counterfeiting Trade Agreement (ACTA) has been proposed as a multilateral agreement to establish international standards on intellectual property rights enforcement. While the provisions to disconnect individuals from Internet access for violating the treaty have been removed from the final text of December 2010, the Special Rapporteur remains watchful about the treaty’s eventual implications for intermediary liability and the right to freedom of expression.</p>
</blockquote>
<p>With respect to graduated response, there is very little that one can add to Prof. Edwards's presentation. I would like to add one further suggestion that Prof. Ed Felten originally put forward as a 'modest proposal': Corporations which make or facilitate three wrongful accusations should face the same penalty as the users who are accused thrice.
The recent US strategy of seizing websites even before trial has been sufficiently criticised, so I shall not spend my time on it.</p>
<p>I still have not seen any good evidence as to why for other kinds of primary or secondary liability incurred by online intermediaries the procedure for offline copyright infringement should not apply, since they are usually crafted taking into account principles of natural justice.</p>
<p>The only 'international' and slightly troublesome issue that a resolution is needed to is that of problems relating to different jurisdiction’s laws applying on a single global network. However, this question is much larger one that of copyright and a copyright-specific solution cannot be found. Thus WIPO is not the right forum for the redress of that problem.</p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/intermediary-liability-wipo-speech'>https://cis-india.org/a2k/blogs/intermediary-liability-wipo-speech</a>
</p>
No publisherpraneshIntermediary LiabilityIntellectual Property RightsCopyrightAccess to Knowledge2012-06-01T15:01:08ZBlog EntryWe’ve All Got Some Baggage
https://cis-india.org/a2k/blogs/some-baggage
<b>America’s newest trade agreement is not going to kill only iPods. The article appeared in the Tehelka Magazine Vol 7, Issue 45, Dated November 13, 2010
</b>
<p><b>EARLIER LAST</b> week, a group of renowned academics in the United States wrote a letter to President Obama criticising his administration for the secrecy with which a new trade agreement, the Anti-Counterfeiting Trade Agreement (ACTA), was being negotiated. They argued that the agreement that has immense public interest implications, including freedom of speech and expression, privacy, access to medicines and access to technology, has been conducted only with the interests of large corporations in mind. The first official release of the draft text of this treaty took place only in April 2010, and since then there has not been a single public meeting to invite comments on the text. So what is the deal on ACTA, also known in some circles as the ‘iPod killer’ agreement, and why should we in India be concerned about it? To get a sense of the importance of ACTA, it would be useful to understand briefly the history of negotiations on multilateral agreements on intellectual property.</p>
<p>The establishment of the World Trade Organisation (WTO) and the successful conclusion of the negotiations of the TRIPS agreement set a minimum standard for intellectual property laws across the world. In the absence of an international standard, countries have far more flexibility in creating national laws that may be more suited to the development or technological needs of their society, and this is especially for developing countries hoping to create indigenous technological capabilities.</p>
<p>The best example of this perhaps is the rise of the generic pharmaceutical industry in India. Till the Patent Amendment in 2005, India did not recognise the grant of a product patent for drugs, and only allowed a process patent. This enabled pharmaceutical companies in India to import expensive drugs, reverse engineer them and create cheaper alternatives. And it is through this that India became a country that not only produced affordable medicines, but also exported them to many other countries, particularly in Africa.</p>
<p>After India became a member of the WTO and a signatory to the TRIPS agreement, it was obliged to change its patent laws to recognise product patents on drugs. It is clear then that the establishment of a multilateral venue for the creation of common norms can often act against the interests of developing countries that have much less of a bargaining power. This was particularly true in the early days of the WTO.</p>
<p>However, as countries like India, China and Brazil grew in strength and others also started getting a better sense of how developing countries could play the multilateral game, the very mode that was supposed to guarantee the protection of the interests of the global north became the basis through which other countries started articulating their own concerns. In 2004 for instance, the World Intellectual Property Organisation (WIPO) adopted a proposal for the establishment of a Development Agenda. This declaration proposed by Brazil and Argentina and supported by many countries of the southern hemisphere sought to bring development concerns into the agenda of the WIPO, thereby limiting the absolute rights of owners of intellectual property and argued for a more equitable global IP regime.</p>
<p>Two weeks after WIPO’s September 2007 adoption of the Development Agenda, the US, European and Japanese officials announced that they would seek to negotiate a new agreement in order to “set a new, higher benchmark for enforcement that countries can join on a voluntary basis”. Thus began the negotiations around the Anti-Counterfeiting and Trade Agreement.</p>
<p>ACTA is a new and separate international agreement dedicated to the enforcement of intellectual property. While some alleged that it was an effort to address existing limitations in the TRIPS agreement, it actually creates a wide range of policing powers. The two biggest concerns about ACTA include the creation of a new global IP enforcement regime by granting powers to customs officials to act as watchdogs for IP infringement. This essentially means that customs officials have the right to inspect any electronic device, including computers, hard drives and music devices, for copyright infringing materials. A scary proposition for anyone who travels. While apparently there are discussions over whether personal use items will be exempt, the fact that the agreement is being negotiated in such secrecy means that we don’t really know what the implications actually are. The second area of concern is the fact that ACTA dramatically intervenes in the creation of Internet policy — notably in regard to the liability of ISPS, search engines and other third parties to charges of ‘contributory’ infringement.</p>
<div class="pullquote">A pirated DVD is very different from a spurious drug, which is very different from a fake Gucci bag, and yet ACTA treats them all alike</div>
<p><b>THE PRIMARY</b> supporters of ACTA include the US, the European Union, Japan, Germany, Switzerland, Australia, South Korea, Canada, New Zealand, Jordan, Morocco, Singapore and the UAE. Notably absent are many of the industrialised middleincome countries that have been the principal targets of the US and European enforcement concern in the past decade: Brazil, India, Russia, South Africa and China.</p>
<p>ACTA introduces a confusing language that deliberately attempts to bring things together that are not related. A pirated DVD is very different from a spurious drug, which is very different from a fake Gucci bag, and yet ACTA brings them all under the ambit of counterfeit goods. The negotiations of ACTA highlight the fact that the US and some countries in Europe have realised that multilateral venues like the WTO and WIPO are no longer the happy hunting grounds of hegemonic aspirations, and that it makes more sense now to have an agreement that is initiated by powerful countries who then use a bilateral mode of coercion to have countries sign on and then make it a multilateral agreement.</p>
<p>The classic mode of coercion, followed for instance by the US, has been the annual United States Trade Representative (USTR) reports that rank countries on the basis of their IP enforcement. Based on their assessment, they place countries on different watch lists, and these are backed by trade sanctions against a country. India and China have consistently made it to the priority watch list for the past 10 years, and using a carrotand- stick approach, the USTR makes recommendations for changes in national laws. It seems the failure to create norms at multilateral forums necessitated the creation of forums like ACTA, which when combined with the USTR, are used to exert pressure that can convert countries resistant to a dominant IP system into accepting higher norms on a voluntary basis.</p>
<p>Read the original <a class="external-link" href="http://www.tehelka.com/story_main47.asp?filename=Ne131110We_ve_All.asp">here</a>.</p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/some-baggage'>https://cis-india.org/a2k/blogs/some-baggage</a>
</p>
No publisherlawrenceIntellectual Property RightsAccess to Knowledge2014-05-29T07:22:29ZBlog EntryStatement of CIS on the Work of the Committee in the 21st SCCR
https://cis-india.org/a2k/blogs/sccr-cis-statement
<b>The twenty-first session of the Standing Committee on Copyright and Related Rights was held in Geneva from 8 to 12 November 2010. Nirmita Narasimhan attended the conference and represented the Centre for Internet and Society.</b>
<p>The Centre for Internet and Society is pleased to note the collective intent on the part of member states to find a solution to the lack of accessible reading materials for persons with print disabilities around the world, as evidenced by the number of proposals which have been put forward since the past SCCR. It is clear that member states have been applying their minds to this problem and have presented us with several possible options, which they believe would adequately address this issue. We would however like to take this opportunity to remind them, that disability groups, from both developed and developing countries, who have been grappling with this issue for decades, have been unitedly stressing the urgent need for a legally binding international instrument as the only effective solution to achieve results at a global level.</p>
<p>I would like to very quickly put forward a few thoughts for the consideration of this committee:</p>
<ul>
<li>We believe, that there should be an international treaty harmonising exceptions and limitations for access to reading materials for persons with print disabilities, and that achieving this should be the first priority for work in this committee</li>
<li>Limitations and exceptions are important for promoting access to knowledge, encouraging creativity and furthering the overall development of humankind and hence, should be the subject matter of serious discussions at WIPO; WIPO should play an important role in the development of international copyright law to facilitate greater access to knowledge and information, especially in the context of digital technologies</li>
</ul>
<ul>
<li>Limitations and exceptions on all issues which further the development Agenda of WIPO, including exceptions for the print disabled, education, libraries and other issues, must be discussed amongst member states without delay in the forthcoming meetings of this committee</li>
<li>We feel that there may be some merit in reserving separate sessions for discussing each issue, since this would facilitate more focused and comprehensive deliberations in an expeditious manner</li>
</ul>
<p>Hence, we would like to urge member states to begin work on all these issues, ordering them on the basis of their maturity, with a view to achieving concrete outcomes, which should be informed by the collective wisdom of stakeholders affected by these instruments as to what are the ground realities prevailing in their countries.</p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/sccr-cis-statement'>https://cis-india.org/a2k/blogs/sccr-cis-statement</a>
</p>
No publishernirmitaIntellectual Property RightsAccess to Knowledge2014-05-29T06:57:29ZBlog EntryProblems Remain with Standing Committee's Report on Copyright Amendments
https://cis-india.org/a2k/blogs/sc-report-on-amendments
<b>The Rajya Sabha Standing Committee on Human Resource Development (under which ministry copyright falls) recently tabled their report on the Copyright (Amendment) Bill, 2010 before Parliament. There is much to be applauded in the report, including the progressive stand that the Committee has taken on the issue of providing access by persons with disabilities. This post, however, will concern itself with highlighting some of the problems with that report, along with some very important considerations that got missed out of the entire amendment debate.</b>
<h2 id="internal-source-marker_0.7517305351026772">Fair Dealings and Intermediary Liability</h2>
<p>The
amendments make a number of changes to s.52(1) of the Act, including to
the fair dealing provisions under s.52(1)(a), and introduction of two
new sub-sections (s.52(1)(b) and (c)) with s.52(1)(c) introducing a
modicum of protection for intermediaries involved in "transient and
incidental storage for the purpose of providing electronic links, access
or integration" (but only if the copyright holder has not expressed any
objections, and if the intermediary believes it to be non-infringing).
The provision allows the intermediary to ask the person complaining
against it to provide a court order within 14 days, since the
intermediary is in no position to determine the judicial question of
whether the copyright holder holds copyright and if the third party has
violated that copyright. However this provision was opposed tooth and
nail by the copyright holders' associations that dominated the
representations, while intermediaries and consumers remained woefully
under-represented before the Standing Committee.</p>
<p>Predictably,
the Standing Committee dealt a blow against intermediaries and
consumers by asking the government to review the "viability of the
duration of 14 days... by way of balancing the views of the stakeholders
as well as the legal requirement in the matter". They recommended a
relatively minor change of changing the phrase "transient and
incidental" to "transient or incidental". By doing this, they failed to
address the concerns raised by Yahoo India, Google India, and also
failed to acknowledge the submissions made by 22 civil society
organizations (available here:
http://cis-india.org/advocacy/ipr/upload/copyright-bill-submission).</p>
<p> </p>
<h2>Technological Protection Measures and Rights Management Information Provision</h2>
<p>The
amendments aim to bring about two new criminal provisions, and seek to
make circumvention of technological protection measures (digital locks)
and alteration of rights management information (which are embedded into
digital files and signals) illegal.</p>
<p>The Standing Committee heard a number of organizations on technological protection measures, which <a href="https://cis-india.org/a2k/blogs/tpm-copyright-amendment">we had argued</a>
are harmful as they a) cannot distinguish between fair dealing and
infringement, and b) are harmful even if a legal right to circumvent for
fair dealings is provided because the technological means to circumvent
doesn't necessarily exist. (Imagine a law that says that breaking a
lock using lock-breaking implements isn't a crime if it is done to enter
into your own house. Such a law doesn't help you if you can't get your
hands on the lock-breaking implements in the first place.) The Indian
Broadcasting Federation, the Business Software Alliance, and the Motion
Picture Association (which represents six studios, all American), the
Indian Music Industry, and the Indian Performing Right Society Limited
all felt that this provision did not go far enough. The Motion Picture
Association, for instance, wants not just controls over that which
copyright covers</p>
<p>Yahoo
India and Google India on the other hand thought that provision went
too far. Google made it clear that they thought having criminal
repercussions for circumvention was clearly disproportionate. Thus, a
clearer split is established between old media companies; the old media
companies clutching on to straws that they feel will save them from
adapting their business practices to the digital environment, and online
companies that understand the digital environment better having a
markedly different idea.</p>
<p>Currently
section 65B (read with the definition of "Rights Management
Information" in section 2(xa)) of the proposed amendments ensures that
Rights Management Information cannot be used to spy on users. The Indian
Reprographic Rights Organization however believes that this is wrong:
it believes that copyright owners should have the ability to track users
without their consent. Yahoo India, on the other hand, believes that
this is a harmful provision, and state that "the imposition of criminal
and monetary liability could adversely affect consumers", and cites the
instance of difficulties that would be faced by "entities engaged in
creating copies of any copyright material into a format specially
designed for persons suffering from disability" because of the language
of the provision that requires knowledge instead of intention. The
committee responds to this by summing up with a tautology, stating:</p>
<blockquote>
<p>The
Committee is of the view that the parties responsible for distribution
or broadcasting or communication to the public through authorized
licence from the author or rights holder and who do not remove any
rights management information deliberately for making unauthorized
copies need not worry about this provision as long as their act is as
per the framework of this provision.</p>
</blockquote>
<h2><br /></h2>
<h2>Implications of Standing Committee's Report Unclear</h2>
<p>Many of the comments made by the Standing Committee are unclear. On compulsory licensing, the committee states:</p>
<blockquote>The
Committee also takes note of the proposed amendments in section 31 A
relating to compulsory licence in unpublished Indian works. The
provision of compulsory licence for orphaned works available under this
section is proposed to be extended to published works as well. Like in
the case of section 31, extension of applicability to all foreign works
(including film, DVDs, etc.) could be violative of Berne Convention and
TRIPS Agreement and seem to fall short of the minimum obligations
imposed by such instruments. The Committee is of the view that future
implication of proposed amendment in Section 31A vis-à-vis India's
commitment to international agreement needs to be free from any
ambiguity so as to prevent any negative fallout.<br /></blockquote>
<p>However,
the usage of the phrase "could be violative" leaves it unclear whether
the Standing Committee believes the proposed amendments to be violative
of the TRIPS Agreement or not. All that the Standing Committee says is
that the provision needs to be unambiguous, and that TRIPS compliance
must be ensured. That word of caution does not directly rebut the
government's contention that the proposed amendment is TRIPS-compliant.</p>
<p>Similarly,
the Committee's views on increase of copyright term for cinematograph
films is unclear. While commenting on the clause that introduces the
term increase (as part of the proposal to include the principal director
as an author of the film along with the producer), the Committee
states:</p>
<blockquote>It,
therefore, recommends that the proposal to include principal director
as author of the film along with producer may be dropped altogether.<br /></blockquote>
<p>While
this presumably means that the proposal to increase term is also being
rejected, that is not made clear by the Committee's comments.</p>
<h2><br /></h2>
<h2>Increased Copyright Duration, Expansive Moral Rights and Other Negative Changes</h2>
<p>In
the submission of CIS and twenty-one other civil society organizations
to the Standing Committee, we highlighted all of the below concerns.
However, our submission was not tabled before the Standing Committee
for reasons unknown to us.</p>
<ul><li><strong>WCT
and WPPT compliance</strong>: India has not signed either of these two treaties,
which impose TRIPS-plus copyright protection, but without any
corresponding increase in fair dealing / fair use rights. Given that
the Standing Committee has recommended against some aspects of WCT
compliance (such as the move to change "hire" to "commercial rental")
and that without such changes India cannot be a signatory to the WCT, it
is unclear why other forms of WCT compliance (such as TPMs) should be
implemented.</li><li><strong>Increase
in duration of copyright</strong>: The duration of copyright of photographs and
video recordings is sought to be increased. The term of copyright for photographs is being increased from sixty years from creation to sixty years from death of the photographer. This will
significantly reduce the public domain, which India has been arguing for
internationally, especially through its push for the Development Agenda at the World Intellectual Property Organization.<br /></li><li><strong>Moral
rights</strong>: Changes have been made to author’s moral rights (and
performer’s moral rights have been introduced) but these have been made
without requisite safeguards.</li><li><strong>Version
recordings</strong>: The amendments make cover version much more difficult to
produce, and while the Standing Committee has addressed the concerns of
some in the music industry, it hasn't addressed the concerns of artists
and consumers.</li></ul>
<h2><br /></h2>
<h2>Criminal Provisions, Government Works, and Other Missed Opportunities</h2>
<p>The
following important changes should have been made by the government,
but haven't. While on some issues the Standing Committee has gone
beyond the proposed amendments, it hasn't touched upon any of the
following, which we believe are very important changes that are required
to be made.</p>
<ul><li><strong>Criminal
provisions</strong>: Our law still criminalises individual, non-commercial
copyright infringement. This has now been extended to the proposal for
circumvention of Technological Protection Measures and removal of Rights
Management Information also.</li><li><strong>Government
works:</strong> Taxpayers are still not free to use works that were paid for by
them. This goes against the direction that India has elected to march
towards with the Right to Information Act. A simple amendment of
s.52(1)(q) would suffice. The amended subsection would except "the
reproduction, communication to the public, or publication of any
government work" as being non-infringing uses.</li><li><strong>Copyright
terms</strong>: The duration of all copyrights are above the minimum required by
our international obligations, thus decreasing the public domain which
is crucial for all scientific and cultural progress.</li><li><strong>Educational exceptions</strong>: The exceptions for education still do not fully embrace distance and digital education.</li><li><strong>Communication
to the public</strong>: No clear definition is given of what constitute a
‘public’, and no distinction is drawn between commercial and
non-commercial ‘public’ communication.</li><li><strong>Internet
intermediaries</strong>: More protections are required to be granted to Internet
intermediaries to ensure that non-market based peer-production projects
such as Wikipedia, and other forms of social media and grassroots
innovation are not stifled.</li><li><strong>Fair
dealing and fair use</strong>: We would benefit greatly if, apart from the
specific exceptions provided for in the Act, more general guidelines
were also provided as to what do not constitute infringement. This would
not take away from the existing exceptions.</li></ul>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/sc-report-on-amendments'>https://cis-india.org/a2k/blogs/sc-report-on-amendments</a>
</p>
No publisherpraneshAccess to KnowledgeCopyrightIntellectual Property RightsIntermediary LiabilityTechnological Protection Measures2011-09-06T07:50:12ZBlog EntrySeminar on Software Patent and the Commons
https://cis-india.org/a2k/blogs/softtware-patents-and-the-commons
<b>A pre-grant opposition has been filed against a software patent application filed in the patent office by Certicom, a wholly owned subsidiary of Research in Motion (RIM), manufacturers of Blackberry. The opposition was filed on August 31, 2010 by the Software Freedom Law Centre which has recently expanded its operations to India. This exciting development was announced by Mishi Choudhary from SFLC on the lines of the seminar on “Software Patents and the Commons” organised on 1 September 2010 in Delhi jointly by SFLC, the Centre for Internet and Society, the Society for Knowledge Commons and Red Hat. Filing more such oppositions to software patents in India was in the pipeline and this is just the beginning of a movement to take on monopolisation of knowledge and ideas through patenting software, the organisers said.</b>
<p>Software patent opposition is still in its nascent stage in India while several oppositions have been filed against software patents in the US and the EU. The harmful effects of software patents are little known to the Indian public, especially from the context of its danger to development in small and medium size enterprises, as pointed out by Pranesh Prakash from the Centre for Internet and Society who spoke about why software patents are bad for innovation and development in society and also in the software industry, in particular.</p>
<p>In the same context, Venkatesh Hariharan from Red Hat as also Mr. T.C. James, Director of the National Intellectual Property Organisation spoke about the growing importance of free and open source software in education, governmental agencies and as a key agent in information technology policy making in India. “Out of 500 super computers in the world, 446 are running on Linux”, he said, talking about how open source software makes computing highly accessible and affordable while allowing for improvements to be made to the software by any user and releasing it back to benefit the whole community. Dr. Anshu Bhardwaj involved in the Open Source Drug Discovery project undertaken by CSIR, spoke at length about the project as a live demonstration of the power of open source software in impacting drug access and development and health care reform across communities at highly economical rates.</p>
<p>Prof. Eben Moglen, Executive Director of Software Freedom Law Centre in New York who was the keynote speaker at the conference spoke about the growth of the free software and open source movement based on the principle of equating knowledge with commons – that is, a good to be commonly shared by all members of the public – resulting in access to and sharing of knowledge and distribution of information in society for greater innovation, creation of new ideas, communication and development. Dr. Abhijit Sen, member of the Planning Commission was the other keynote speaker who stressed on the role of the government and the policy making bodies to ensure that knowledge and education is accessible and shared without restrictions in such a way that it is not misused by the members of the society.</p>
<p>Other notable speakers in the event included Prabir Purkayastha from the Society for Knowledge Commons, Pradyut Bora, Chief Convenor of BJP's information and technology cell, Jaijit Bhattacharjee from Hewlett Packard and Sudhir Krishnaswamy, Professor, National University of Juridical Sciences. The event also witnessed the participants discuss the various strategies to be used from the perspective of legal analysis as well as policy reform, for opposing software patents filed or granted in India. Indian patent law clearly declares computer programmes per se or software patents to be unpatentable. Prabir Purkayastha pointed out that the most important and major scientific discoveries in history have not been patented and that this has, in no way prevented new ideas from being created and has in fact fostered such innovation. In spite of such a clear legal restriction on grant of software patents, around 1000 software patents have been filed in the patent offices in India in the last year. This trend is extremely disturbing since it poses a serious threat to access to knowledge and distribution of information in society in addition to stifling innovation and development in the software industry.</p>
<p>The seminar was attended by people from diverse backgrounds including the IT industry, civil society organisations, and groups working in pharma patent advocacy, media persons and government officials.</p>
<h3>Videos</h3>
<p>
<object data="http://www.youtube.com/v/KDcbHb_WjQw&" height="250" type="application/x-shockwave-flash" width="250">
<param name="data" value="http://www.youtube.com/v/KDcbHb_WjQw&">
<param name="src" value="http://www.youtube.com/v/KDcbHb_WjQw&">
</object>
<object data="http://www.youtube.com/v/jOfpqpjYt70&" height="250" type="application/x-shockwave-flash" width="250">
<param name="data" value="http://www.youtube.com/v/jOfpqpjYt70&">
<param name="src" value="http://www.youtube.com/v/jOfpqpjYt70&">
</object>
<object data="http://www.youtube.com/v/KXwkSOC-p3A&" height="250" type="application/x-shockwave-flash" width="250">
<param name="data" value="http://www.youtube.com/v/KXwkSOC-p3A&">
<param name="src" value="http://www.youtube.com/v/KXwkSOC-p3A&">
</object>
<object data="http://www.youtube.com/v/tLcAi2D7HFY&" height="250" type="application/x-shockwave-flash" width="250">
<param name="data" value="http://www.youtube.com/v/tLcAi2D7HFY&">
<param name="src" value="http://www.youtube.com/v/tLcAi2D7HFY&">
</object>
</p>
<p>
<object data="http://www.youtube.com/v/GYk5TlSwwg0&" height="250" type="application/x-shockwave-flash" width="250">
<param name="data" value="http://www.youtube.com/v/GYk5TlSwwg0&">
<param name="src" value="http://www.youtube.com/v/GYk5TlSwwg0&">
</object>
<object data="http://www.youtube.com/v/776BOGXiJwc&" height="250" type="application/x-shockwave-flash" width="250">
<param name="data" value="http://www.youtube.com/v/776BOGXiJwc&">
<param name="src" value="http://www.youtube.com/v/776BOGXiJwc&">
</object>
<object data="http://www.youtube.com/v/ruiOa9olYgQ&" height="250" type="application/x-shockwave-flash" width="250">
<param name="data" value="http://www.youtube.com/v/ruiOa9olYgQ&">
<param name="src" value="http://www.youtube.com/v/ruiOa9olYgQ&">
</object>
<object data="http://www.youtube.com/v/xWv16xqhztw&" height="250" type="application/x-shockwave-flash" width="250">
<param name="data" value="http://www.youtube.com/v/xWv16xqhztw&">
<param name="src" value="http://www.youtube.com/v/xWv16xqhztw&">
</object>
</p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/softtware-patents-and-the-commons'>https://cis-india.org/a2k/blogs/softtware-patents-and-the-commons</a>
</p>
No publisherpraskrishnaIntellectual Property RightsSoftware PatentsAccess to Knowledge2011-10-23T14:22:15ZBlog EntryNew Release of IPR Chapter of India-EU Free Trade Agreement
https://cis-india.org/a2k/blogs/july-2010-ipr-india-eu-fta
<b>A draft of the IPR chapter of the EU-India FTA, made publicly available now for the first time, provides insight into India's response in July 2010 to several EU proposals on intellectual property protection and enforcement.</b>
<p>A draft of the IPR chapter of the EU-India FTA, made <a href="https://cis-india.org/a2k/upload/india-eu-fta-ipr-july-2010/at_download/file" class="external-link">publicly available for the first time</a> (PDF, 296Kb), provides insight into India's response in July 2010 to several EU proposals on intellectual property protection and enforcement.
The consolidated draft which was prepared to serve as the basis of talks that took place from July 12-14, 2010, in New Delhi, reveals parties' negotiating stances in response to preliminary positions put forth earlier (see <a class="external-link" href="http://www.bilaterals.org/spip.php?article17290">IPR Chapter May draft</a>).</p>
<p>In particular, this draft reflects India's rejection of many EU proposals that would require India to:</p>
<ul><li>exceed its obligations under the WTO's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), e.g by providing data exclusivity for pharmaceutical products; <br /></li><li>impose radical enforcement provisions, such as liability of intermediary service providers, border measures for goods in transit, and raised norms for damages and injunctions; or <br /></li><li>require legislative change, e.g., on data protection, and to accommodate the full EU demands on geographical indicators. <br /></li></ul>
<p>
A chart compiled by CIS comparing proposed language by India and the EU in several provisions with TRIPS can be found <a href="https://cis-india.org/a2k/india-eu-fta-chart.pdf" class="internal-link" title="New Release of IPR Chapter">here</a> (PDF, 402 Kb).</p>
<p>Sources close to the negotiations have also confirmed that during the July talks India reiterated its refusal to go beyond TRIPS, and its refusal to discuss issues that require changes to Indian law. India appears to have also reiterated that it could not finalise FTA copyright provisions before passage of the Copyright Amendment Bill in the Indian Parliament.</p>
<p>
It is hard to assess the current state of the negotiations on IP or to measure the outcomes of subsequently held talks without access to recent drafts, a public record of deliberations, or the schedule of full and intersessional rounds taking place. However, from press and other statements attributed to the European Commission and Indian officials after the December 2010 EU-India Summit in Brussels, it appears that:</p>
<ul><li>
both parties plan to conclude the FTA, the biggest ever for the EU, by Spring 2011; <br /></li><li>the EU has not relaxed its pursuit of at least some "TRIPS plus" provisions such as data protection for pharmaceuticals <br /></li><li>a mutually agreed solution to India's WTO case against the EU over the seizure of generic medicines may be round the corner. Its impact on the FTA is open to speculation. <br /></li></ul>
<p>Because the India-EU FTA is likely to set a new precedent for future trade agreements between developed and developing countries, and with enormous stakes for patients across the globe, India and the EU need to get it right and ensure no provision runs counter to the interests of millions of citizens.</p>
<p>For further information about the text, contact Malini Aisola <malini.aisola@gmail.com> or Pranesh Prakash <pranesh@cis-india.org></p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/july-2010-ipr-india-eu-fta'>https://cis-india.org/a2k/blogs/july-2010-ipr-india-eu-fta</a>
</p>
No publisherpraneshAccess to MedicineIntellectual Property RightsIntermediary LiabilityAccess to Knowledge2011-09-22T12:34:05ZBlog EntryWhy Parallel Importation of Books Should Be Allowed
https://cis-india.org/a2k/blogs/parallel-importation-of-books
<b>There has been much controversy lately with some publishers trying to stop the government from amending s.2(m) of the Indian Copyright Act, clarifying that a parallel import will not be seen as an "infringing copy". This blog post argues that the government should, keeping in mind the larger picture, still go ahead and legalise parallel imports.</b>
<p>[Updated Wednesday, February 2, 2011, to respond to <a class="external-link" href="http://dearddsez.blogspot.com/2011/01/thomas-abrahams-rebuttal-to-why.html">Thomas Abraham's extensive and thoughtful rebuttal</a> of the earlier version this post.]</p>
<p>First off, here is the controversial clause, with the proposed amendment (the insertion of a "proviso", in legalese) being emphasised in bold font-face:</p>
<h2>The amendment<br /></h2>
<blockquote>
<p>2(m) "infringing copy" means,—</p>
<p> (i) in relation to a literary, dramatic, musical or artistic work, a reproduction thereof otherwise than in the form of a cinematographic film;</p>
<p> (ii) in relation to a cinematographic film, a copy of the film made on any medium by any means;</p>
<p> (iii) in relation to a sound recording, any other recording embodying the same sound recording, made by any means;</p>
<p> (iv) in relation to a programme or performance in which such a broadcast reproduction right or a performer's right subsists under the provisions of this Act, the sound recording or a cinematographic film of such programme or performance, if such reproduction, copy or sound recording is made or imported in contravention of the provisions of this Act;</p>
<p><strong>Provided that a copy of a work published in any country outside India with the permission of the author of the work and imported from that country shall not be deemed to be an infringing copy.</strong></p>
</blockquote>
<p>Some claim that this amendment to s.2(m) ("provided that... copy") has the potential to
destroy the publishing industry. The most lucid explanation of this was in a recent op-ed by Thomas Abraham
in the Hindustan Times, very ominously titled <a class="external-link" href="http://www.hindustantimes.com/StoryPage/Print/652735.aspx">The Death of Books</a>. However it seems to us that the publishing
industry—especially foreign publishers with distributorships in India—don't want to open
themselves up to competition in the distribution market, and are opposing this most commendable move.</p>
<h2>What is parallel importation?<br /></h2>
<p>Before getting into explanations of why allowing for parallel importation is good, and how the arguments otherwise fall short, we should examine what parallel importation is. </p>
<blockquote>
<p>"Parallel import, insofar as copyright is concerned, involves an “original” copyright product (i.e. produced by or with the permission of the copyright owner in the manufacturing country) placed on the market of one country, which is subsequently imported into a second country without the permission of the copyright owner in the second country. For instance, the copyright owner of a book produced in India places the book on the market in India. A trader buys 100 copies of the book from India and imports them to China without the permission of the copyright owner of the book in China. This act of the trader bringing the books into China is called parallel import, the legality of which depends on the copyright law of the importing country (namely China in this example)." (Consumers International, <em>Copyright and Access to Knowledge: Policy Recommendations on Flexibilities in Copyright Laws</em> 23 (2006).)</p>
</blockquote>
<p>Some fear-mongers try to equate parallel importation with
'anarchy' in markets, and some confusedly claim that this amendment would allow <em>infringing</em> copies of books
would be permitted. That is simply not true. For parallel importation to be said to happen, the sale must itself be legal. If it is an an illegally sold copy (a pirated copy of a book, for instance) that is imported, then it will count as a black market import—not as a parallel import. Allowing for parallel imports will only dismantle
monopoly rights over importation, and the amendment makes
that amply clear.</p>
<h2>Harms on existing books of not allowing parallel importation</h2>
<p>Libraries/second-hand bookshops/consumers have no way of knowing if a book was originally imported legally or not, since there is no easy way of telling a parallel-ly imported copy apart from a exclusively imported copy. If one of them, even unknowingly buys/sells a foreign edition about which they am not sure and it turns out it was not legally imported (and there are literally thousands of such books, and I personally own at least a couple dozen foreign editions bought from various second-hand bookshops) then they are committing copyright infringement.</p>
<p>This precisely was argued by the library associations and others in <em>amici</em> briefs to the US Supreme Court in the <em>Costco v. Omega</em> case. For instance, the <a title="http://www.abanet.org/publiced/preview/briefs/pdfs/09-10/08-1423_PetitionerAmCu3LibraryAssns.pdf" href="http://www.abanet.org/publiced/preview/briefs/pdfs/09-10/08-1423_PetitionerAmCu3LibraryAssns.pdf" rel="nofollow">brief
for the the American Library Association, the Association of College
and Research Libaries, and the Association of Research Libraries in
Support of Petitioner</a> argues that:</p>
<blockquote>By restricting the application of [the first sale doctrine] to copies manufactured in the United States, the Ninth Circuit’s decision threatens the ability of libraries to continue to lend materials in their collections. Over 200 million books in U.S. libraries have foreign publishers. Moreover, many books published by U.S. publishers were actually manufactured by printers in other countries. Although some books indicate on their copyright page where they were printed, many do not. Libraries, therefore, have no way of knowing whether these books comply with the Ninth Circuit’s rule. Without the certainty of the protection of the first sale doctrine, librarians will have to confront the difficult policy decision of whether to continue to circulate these materials in their collections in the face of potential copyright infringement liability. For future acquisitions, libraries would be able to adjust to the Ninth Circuit’s narrowing of [the first sale doctrine] only by bearing the significant cost of obtaining a “lending license” whenever they acquired a copy that was not clearly manufactured in the United States. <br /></blockquote>
<p>and, the <a title="http://www.abanet.org/publiced/preview/briefs/pdfs/09-10/08-1423_PetitionerAmCu6NonProfitOrgs.pdf" href="http://www.abanet.org/publiced/preview/briefs/pdfs/09-10/08-1423_PetitionerAmCu6NonProfitOrgs.pdf" rel="nofollow">brief
for the Public Knowledge, American Association of Law Libraries,
American Free Trade Association, the Electronic Frontier Foundation,
Medical Library Association, and the Special Libraries Association in
Support of Petitioner</a> states:</p>
<blockquote>The uncertainty created by the Ninth Circuit’s holding [against parallel importation] will harm used bookstores, libraries, yard sales, out-of-print book markets, movie and video game rental markets, and innumerable other secondary markets. Owners of copyright works or goods containing copyrighted elements manufactured abroad will be unable to dispose of these products without authorization at the risk of liability under copyright law’s extensive damages provisions. Furthermore, the chilling effects of the Ninth Circuit’s holding will extend beyond works manufactured abroad. Owners of copies of works will be unable to determine whether they are protected by [the first sale doctrine], as they will not always know where their goods were manufactured. Copyright holders will have little incentive to make clear the location of manufacturing of their copyrighted works,3 as greater uncertainty means a greater ability to sell the right to distribute the goods within the United States. Secondary market sellers who cannot afford to purchase this right will be unable to do business unless they are prepared to engage in lengthy and expensive litigation with an uncertain result. A wide variety of important secondary markets in copyrighted works and goods with copyrighted elements will suffer without the protection of the first sale doctrine.<br /></blockquote>
<h2>Benefits of parallel importation</h2>
<h3>Dismantling distribution monopoly rights<br /></h3>
<p>The benefits that will accrue from allowing for parallel importations
are huge. Currently a large percentage of educational books in India
are imported, but with different companies having monopoly rights in
importation of different books. If this was opened up to competition,
the prices of books would drop, since one would not need to get an
authorization to import books—the licence raj that currently exists
would be dismantled—and Indian students will benefit. This is
especially important for students and for libraries because even when
low-priced editions are available, they are often of older editions.</p>
<p>Allowing people to import goods without permissions (with appropriate duties) is taken for granted in all other areas, so why not copyrighted works? After all, it is not the act of publication that gets affected, but the right of exclusive distribution. And if that goes away after first sale internationally, that's not a bad thing at all.</p>
<p>Generally, there are two main benefits of allowing for parallel importation: faster introduction of the latest international releases into the domestic country, and lowered prices by decreasing the costs imposed by a monopoly right over distribution.</p>
<p>All the foreign books that an online bookseller like Flipkart delivers in India are procured from international sources. Without parallel importation, Flipkart will have to ask for permission from the book publishers for each foreign book each time it makes a sale. This would cripple Flipkart's business model.</p>
<p> </p>
<h3>Helping book publishers</h3>
<p>Book publishers will be benefited by parallel importation, just as they are benefited by the existence of libraries and second-hand book stores. Libraries and second-hand book stores help with market segmentation, providing access to people who can't afford expensive books at much lower rates, often free. However, the existence of second-hand book stores in almost every city in India—I have personally bought second-hand books everywhere from Jhansi (Leo Tolstoy's <em>War and Peace</em>) to Delhi's Darya Ganj market (Edmund Wilson's <em>Letters on Literature and Politics</em>)—does not prevent me from buying books first hand. Indeed, Wilson's <em>Letters</em> is out of print, and cannot be bought in a store like Crosswords or Gangaram's.</p>
<p>Why do I emphasise second-hand books and libraries? They are artefacts of something variously known as the "first sale doctrine" or the "doctrine of exhaustion" in copyright law: After the first sale of a book, subsequent sales, rentals, etc., cannot be controlled by the copyright owner. Parallel importation is simply a matter of applying this doctrine to the first sale of the book internationally rather than its first sale in India. </p>
<p>Thus we see that the existence of second-hand books, libraries, and parallel imports, are all dependent on the same rule of copyright law: the first sale doctrine. This doctrine is enshrined in s.14(b)(iv) of the Indian Copyright Act, and has been interpreted by the Delhi High Court to mean first sale in India. The present amendment changes that to mean first sale internationally.</p>
<p>The introduction of the modern "public library" in the mid-19th century
led to a surge in literacy, readership, and book sales, and not a
decline. Similarly, there is no reason to suppose that allowing parallel importations will lead to a decline in book sales.</p>
<h3>Helping libraries and the print-disabled<br /></h3>
<p>Even currently, many people buy books directly from abroad and have them shipped to India. This is especially necessary for libraries whose patrons—scholars and students—very often need access to the latest books. Currently, libraries often buy books from abroad from Amazon, Flipkart, Alibris, etc. Such acts, within a strict reading of the law, are not legal, since they fall afoul of s.51(b)(iv), since the import is not for the "private and domestic use" of the libraries. This is also of especial concern for organizations working with print-disabled individuals, since the number of books legally available domestically in formats accessible by the print-disabled is very small, and often need to be imported.</p>
<h3>Helping all consumers<br /></h3>
<p>An excellent report was prepared in <a class="external-link" href="http://www.consumersinternational.org/news-and-media/publications/copyright-and-access-to-knowledge">2006 by Consumers International</a>, in which they studied the costs of textbooks in eleven countries, including India, by average purchasing power of each country's citizens, instead of absolute cost. Based on that study, and a detailed investigation of international treaties on copyright and the flexibilities allowed in them, Consumers International recommended that India should amend our law to make it clear that parallel importation of copyrighted works is legal (on page 51 of the report).</p>
<h2>Rebutting objections</h2>
<p>I will address a few specific objections raised by Mr. Abraham, Nandita Saikia, and others.</p>
<h3>1. Authors' won't lose out on royalties<br /></h3>
<p>Authors do not lose out on royalties because of parallel importation, just as they do not lose out on royalties because of libraries, nor because of second-hand book stores.
For parallel importation to take place, the books have to be purchased
legally, and that first sale itself ensures that authors are paid royalties. </p>
<p>Of
course, publishing contracts often have a clause that remaindered books will
not garner royalties. But in that case, the problem is not parallel importation,
but the overstocking and subsequent <a class="external-link" href="https://secure.wikimedia.org/wikipedia/en/wiki/Remaindered_book">remaindering of books</a>. The authors wouldn't be paid (or would be paid very little) for remaindered books even if the books weren't imported into India. Parallel importation
does not in any way change that.</p>
<p><strong>Indian authors</strong></p>
<p>There is a worry that an Indian author would be hit if remaindered copies of his/her books started entering the Indian market. That would mean that foreign publishers had overstocked that Indian author's book, i.e., that the expectation from the book was much higher than the actual demand. If this happens infrequently, then the author hasn't much to worry about (since remainders aren't a big problem). If it happens frequently, then firstly the publisher should re-adjust to the market and realize that demand is low. Secondly, the author needs to worry more about quality of the book (and whether it caters to foreign audiences) than the possible effects that the availability of cheaper copies of that book would have.</p>
<h3>2. Remaindered books are in publishers' control<br /></h3>
<p>India has amongst the cheapest book prices in the world. Then why would book publishers be wary of even cheaper books overrunning the Indian market? The reason, Mr. Abraham tells us, is <a class="external-link" href="https://secure.wikimedia.org/wikipedia/en/wiki/Remaindered_book">remaindered books</a>. He believes that remaindered books have the potential to destroy the Indian book
market. Remaindering of books has been happening for decades. If remaindered books haven't already
destroyed all book markets worldwide, then it is unlikely that they will
do so suddenly just because parallel importation of books is permitted
in India.</p>
<p>Remainders happen because of a miscalculation by the publisher: expecting more demand than was actually present. What happens with that excess stock is controlled by the publishers. They can choose to pulp them, burn them, or even push them into other channels of commerce that Mr. Abraham points out exist in the mature, frontline markets where remaindering happens:</p>
<blockquote>
<p>And the reason why they have not destroyed book markets worldwide is because the mature markets exist with multiple strands (chains and high street stores, independents, direct sellers, online sellers, and supermarkets)—so a direct seller will sell the same book a high street store is selling at a much reduced price without it affecting the business of each strand. Each strand is discrete and price sensitivity does not matter the same way. </p>
</blockquote>
<p>Since those multiple strands of commerce exist, each of which would enable the seller to get a better profit (being in a developed country) than in India, there is no reason to fear overrunning of the market with remainders.</p>
<h3>3. Dumping of books should be tackled separately<br /></h3>
<p>An extension of the remaindered books concern is that of India becoming a land where all books will be dumped. This hasn't happened in case of countries like New Zealand,
Mexico, Chile, Egypt, Cameroon, Pakistan, Argentina, Israel, Vietnam, South Korea,
Japan, and a host of other countries, all of which allow for parallel importation of books. In a 1998 judgment, the United States Supreme Court, <a class="external-link" href="https://secure.wikimedia.org/wikipedia/en/wiki/Quality_King_v._L%27anza">some parallel imports of copyrighted goods were legal</a>.
That ruling did not cause the downfall of the US book market, despite
cheaper books being available outside the US. Australia has allowed for
parallel importation of books in one form or another since 1991 (when
the law was changed to allow for all parallel of all books that weren't
introduced in the Australian market within 30 days of it being released
elsewhere in the world). New Zealand did a study after removing the ban
on parallel importation, and declared that cheaper books were available
on a more timely basis than previously. None of these countries have
been overrun by grey market books.</p>
<p><strong>Customs laws are better suited</strong></p>
<p>Even assuming that this fear is well-founded, copyright law is not the best way to deal with the problem. Dumping of books should be regulated by customs laws (anti-dumping and countervailing duties). Using copyright law to regulate apprehended book dumping practices (which might not even happen) is like using a trawler hoping to catch only shrimp: it is naive to think that there won't be unintended <a class="external-link" href="https://secure.wikimedia.org/wikipedia/en/wiki/Bycatch">bycatch</a>, and the consequences can be disastrous for the knowledge environment in case of books.</p>
<p>Customs laws are more flexible because they are imposed by the executive, and unlike copyright law, can be more easily changed as per requirements. So even if copyright law allows for parallel importation of copyrighted works, a special case can be made out by publishers in case of trade publishing, for instance, and that can be targetted specifically by imposing duties. However, the inverse cannot happen, since we are not aware of any mechanism whereby libraries, consumers and others can get to 'override' the provision in the Copyright Act.</p>
<p>Additionally, these duties can be made to operate only if the book is already being sold in India; these duties can be made to operate only on new books. A ban on parallel importation, on the other hand will apply equally to books that are out of print, to books that the original copyright owner has not even granted an exclusive Indian distributorship and are not even being sold in India. It goes right to the heart of freedom of speech, which the Supreme Court has held includes the right to receive information.</p>
<h3>4. Non-printing of low-priced editions for India because of "unsecure"
market won't happen<br /></h3>
<p>Parallel importation, which is what the amendment to s.2(m) allows for,
affects only importation. It does not in any way affect publication in
India or exports. Exporting low-priced Indian editions to countries which allow for parallel importation of books, is currently of doubtful legality. [Update: Earlier an incorrect claim was made in this post that such export was legal. The legal status is not that clear. While there is a Delhi High Court case that makes exports of low-priced editions illegal in the context of sale to the United States, it specifically states that the decision <a href="https://cis-india.org/a2k/blogs/indian-law-and-parallel-exports" class="external-link">does not depend on whether India allows for parallel importation or not</a>.] The
amendment does not change that position, for reasons explained at greater length <a href="https://cis-india.org/a2k/blogs/indian-law-and-parallel-exports" class="external-link">in a separate post</a>. The incentives to print
low-priced editions hence does not decrease. If anything it will increase
because currently books that are not available as low-priced editions
cannot be imported without exclusive licensing, and with a change in this position, the incentive to compete in the form of low-priced editions will increase.</p>
<p>Indeed, even before that 2009 Delhi High Court judgment prohibiting exports to the United States, many low-priced editions were being printed in India. And even before the 2005 Bombay High Court judgment prohibiting parallel imports, many low-priced editions were being printed in India. This won't change, regardless of the law, because India is an increasingly profitable and expanding market, and low-priced editions are a necessity in this market due to lower average income.</p>
<h3>5. Rhetoric flourish and the law: Open and closed markets<br /></h3>
<p>Mr. Abraham asks how many authors one can name from open markets like Malaysia, Singapore, and Hong Kong, as a sign of the 'history of creativity' in each of these countries and territories. It might be just as well to ask how many authors he can name from closed markets like Bhutan, Kazakhstan, Cambodia, Papua New Guinea, Indonesia, Jordan, and Ukraine. One's ability to name authors from a country has less to do with the open/closed nature of its market and more to do with one's general knowledge.</p>
<p>Additionally, the 'mature' markets which he wishes India to emulate—United States, the United Kingdom, and Australia—are more ambiguous on parallel importation than he would have us believe. In the United States, the legality of a segment of parallel importation of copyrighted goods reached the United States Supreme Court in <em><a class="external-link" href="https://secure.wikimedia.org/wikipedia/en/wiki/Quality_King_v._L%27anza">Quality King v. L'anza</a></em> in 1998, in which the court held in favour of the importer. </p>
<p>The question reached the US Supreme Court again last year in <a class="external-link" href="http://www.scotusblog.com/case-files/cases/costco-v-omega/"><em>Costco v. Omega</em></a>, but the court split on it 4-4, and <a class="external-link" href="http://copyright.columbia.edu/copyright/2010/12/16/costco-omega-libraries-and-copyright/">did not deliver a binding precedent on parallel importation</a>. Thus, for all intents and purposes, under copyright law, the United States is an open market. </p>
<p>In the United Kingdom, as per European Union law, <a class="external-link" href="http://a2knetwork.org/reports2010/uk">parallel importation is permitted from anywhere within the EU</a>. And in Australia, parallel importation of parallel goods is largely allowed, with <a class="external-link" href="http://a2knetwork.org/reports2010/australia">some conditions to encourage faster publishing in Australia of foreign books.</a></p>
<p>Most importantly, none of the markets held up as role models are developing countries. India is. This makes all the difference, as the Consumers International report underscores.</p>
<h2>Standing Committee consultations</h2>
<h3>Lack of wide consultation<br /></h3>
<p>On one point we are in complete agreement with Mr. Abraham, which is his point regarding lack of adequate consultation. While there was a good amount of consultation during the drafting stage, when a wide-ranging public consultation was held in 2006, this was not repeated in 2010 by the Standing Committee. Further, the Standing Committee only gave fifteen days for responses to its call for comments.</p>
<h3>Publishers were represented<br /></h3>
<p>While Mr. Abraham states that only the Authors Guild was represented before the Standing Committee, by going through the report prepared by it, we see that the Federation of Indian Publishers and the Association of Publishers in India were also called to testify before the Standing Committee. </p>
<h3>Libraries, students, consumers were not represented</h3>
<p>However, while the authors supported it, and the publishers opposed it, no one got to hear the voice of the readers, the students, the libraries, the book buyers. For instance, not a single consumer rights organization or library association was called before the Standing Committee. Internationally, organizations like Consumers International, the International Federation of Library Associations, and EIFL (an international library organization) are invited to meetings of the World Intellectual Property Organization and their views are taken with seriousness as they are a very important part of the copyright environment.</p>
<h3>Department's and Standing Committee's reasoning</h3>
<p>We reproduce below four paragraphs from the Standing Committee's report, which elucidate many of the reasons for going in for this particular amendment.</p>
<blockquote>7.10<br />All the reservations/objections raised by the various stakeholders [including the Federation of Indian Publishers and the Association of Publishers in India, whose objections are quoted in an earlier paragraph of the report -ed.] were taken up by the Committee with the Department with the intent of having full understanding of the background necessitating the proposed amendment and its exact impact on the various stakeholders. As clarified by the Department, the main purpose of this amendment was to allow for imports of copyright materials (e.g. books) from other countries. It was in accordance with Article 6 of the TRIPS Agreement relating to exhaustion of rights whereunder developing countries could facilitate access to copyright works at affordable cost. Exhaustion of rights (popularly called as parallel import) was a legal mechanism used to regulate prices of IPR protected materials. This was viable only if the price of the same works in the Indian market was very high when compared to the price in other countries from where it was imported to India. <br /><br />7.11<br />Committee's attention was drawn to the fact that majority of educational books used in India were imported from other countries particularly from US and EU. There was an increasing tendency by publishers to give territorial licence to publish the books at very high rates. The low price editions were invariably the old editions than the latest ones. This provision would compel the Indian publishers to price the works reasonably so that it would not be viable for a distributor to import same works to India from other countries. This would also save India foreign exchange on the payment of royalties (licence fee) by the Indian publishers to foreigners. <br /><br />7.12<br />Committee was also given to understand by the representatives of the publishing industry that Scheme of the Copyright Law was entirely different from the Trade Marks Act, 1999 and the Patent Act, 1970. The application of the standards and principles of these two laws through the proposed amendment of section 2(m) would completely dismantle the business model currently employed, rendering several industries unviable. On a specific query in this regard the Department informed that the concept of international exhaustion provided in section 107 A of the Patent Act, 1971 and in section 30 (3) of the Trademarks Act, 1999 and in section 2 (m) of the copyright law were similar. This provision was in tune with the national policy on exhaustion of rights.<br /><br />7.13 <br />After analysing the viewpoints of all the stakeholders along with the clarifications given thereupon by the Department, the Committee is of the view that proposed inclusion of the proviso in the definition of the term 'infringing copy' seems to be a step in the right direction, specially in the prevailing situation at the ground level. <strong>The present practice of publishers publishing books under a territorial license, resulting in sale of books at very high rates cannot be considered a healthy practice.</strong> [Emphasis added.] The Committee also notes that availability of low priced books under the present regime is invariably confined to old editions. It has been clearly specified that only those works published outside India with the permission of the author and imported into India will not be considered an infringed copy. Nobody can deny the fact that the interests of students will be best protected if they have access to latest editions of the books. <strong>Thus, apprehensions about the flooding of the primary market with low priced editions, may be mis-founded as such a situation would be tackled by that country's law.</strong> [emphasis added.] The Committee would, however, like to put a note of caution to Government to ensure that the purpose for which the amendment is proposed, i.e., to protect the interest of the students is not lost sight of.<br /></blockquote>
<h2>Conclusion</h2>
<p>It is clear that allowing for parallel imports is not likely to hurt publishers, but will result in an expansion of the reading market. It is mainly foreign publishers' monopoly rights over distribution which will be harmed by this amendment, while Indian
publishers, Indian authors, and Indian readers, especially students, will stand to gain. Furthermore, in the long run, even foreign publishers will stand to gain due to market expansion. Any legitimate worries that publishers may have are better dealt with under other laws (such as the Customs Act) and not the Copyright Act.</p>
<p> </p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/parallel-importation-of-books'>https://cis-india.org/a2k/blogs/parallel-importation-of-books</a>
</p>
No publisherpraneshIntellectual Property RightsCopyrightAccess to Knowledge2019-02-01T17:41:26ZBlog EntryIndian Law and "Parallel Exports"
https://cis-india.org/a2k/blogs/indian-law-and-parallel-exports
<b>Recently, a lawyer for the publishing industry made the claim that allowing for parallel importation would legally allow for the exports of low-priced edition. Here we present a legal rebuttal of that claim.</b>
<p>Recently, on publisher/editor/writer Divya Dubey's blog, Saikrishna Rajagopal, a highly respected copyright lawyer and founding partner of Saikrishna & Associates, <a class="external-link" href="http://dearddsez.blogspot.com/2011/01/thomas-abrahams-rebuttal-to-why.html">claimed that</a> we had misconstrued the law with regard to export of books from India, and that allowing for parallel importation would harm that.</p>
<p>Mr Rajagopal writes:</p>
<blockquote>
<p>The fundamental legal infirmity that I find in Mr. Prakash’s argument are twofold:<br />1. That current Indian Law allows export of low priced editions;<br />2. That the proposed proviso would not include within its scope 'exports'.</p>
<p>1. As regards the argument that current Indian Law allows export of low priced editions, the two John Wiley cases of the Delhi High Court of May 2010, make it abundantly clear that current Indian Copyright Law precludes export of low priced editions. Pertinently, an appeal was preferred in one of the Wiley cases and was dismissed. These judgments are therefore final now and therefore authoritatively, interpret Indian Copyright Law as it stands today.</p>
</blockquote>
<p>I was wrong regarding the question of export of low-priced editions. There are are two Delhi High Court judgments which came out in May 2010 on export of books, holding that export of Low-Priced Editions meant for India to countries outside is unlawful (<em>John Wiley & Sons Inc. & Ors v. Prabhat Chander Kumar Jain & Ors</em> and <em>John Wiley & Sons Inc. & Ors v. International Book Store & Anr</em>). However, in the first judgment Justice Manmohan Singh clearly held that it would be unlawful to export without permission of the rights owner regardless of whether we followed the doctrine of national exhaustion (disallowed parallel importation) or the doctrine of international exhaustion (allowed parallel importation), and the "the question of exhaustion of rights of owner in copyright does not arise at all".[1] Thus Mr. Rajagopals's fears are, thankfully, unfounded.</p>
<p>Mr. Rajagopal continues:</p>
<blockquote>2. As regards Pranesh’s argument that the proposed amendment does not cover ‘exports’, this argument is completely specious. In order to determine at what stage a copyright owner loses its right to control further sale and distribution of a copyrighted product, the statute itself needs to be looked into to determine what standard of exhaustion of rights has been contemplated. If the proposed proviso becomes law, it would be a clear indicator to a Court that Indian Copyright Law follows international exhaustion, namely, that once a product is legitimately sold anywhere in the world market, the copyright owner loses/exhausts the right to control further distribution and sale, including export and import. It is because the copyright owner exhausts rights globally that the proposed amendment is allowing for genuine copies of books sold in the international market, to be legally imported into India. This being the case, there is almost unanimity amongst IP Lawyers that export of low priced editions would also be considered legal, in view of the proposed amendment. This is not just our Indian view, but also the view of other international IP experts who have had an opportunity to look at the implications of this proviso.<br /></blockquote>
<p>The copyright owner, under a proper appreciation of the Indian law,
never has the right to control "further sale and distribution" (as per s.14(a)(ii) of the Copyright Act), contrary to Mr. Rajagopal's assertion. Once a
copy is in circulation (e.g., is sold), the copyright owner no longer has the exclusive
right to put that copy into circulation, nor to control its further sale /
distribution in any manner. This is the limitation on the owner's right that allows libraries exist. This is how second-hand book shops exist. If this limitation of the copyright owner's right did not exist, libraries and second-hand book shops would need to take permissions from the owner for each copy of each book that they lend or sell.</p>
<p>Imports and exports are two distinct things. India's following of the principle of "international exhaustion" means that the right to first sale is exhausted <em>in India</em>, when the work is legally published anywhere <em>internationally</em> (i.e., regardless of where that copyrighted work is legally published). The principle of international exhaustion doesn't not exhaust the right of first sale <em>internationally</em>—the word "international" is used to indicate where the <em>publication</em> has to take place for exhaustion to occur, and not where the <em>exhaustion</em> takes place. After all, Indian law on a matter cannot determine whether a book can or cannot be sold anywhere else in the world (which is precisely what it would do if it is to hold that rights are exhausted internationally by virtue of a book being printed in India).</p>
<p>Having done research on this point for the past week, I have not been able to come up with any legal articles or cases to directly oppose Mr. Rajagopal's claim that the legality of book exports from a country can depend on whether it follows national or international exhaustion. It is such a novel claim that no one has made it so far, and so no one has thought to oppose it. I know of no other IP lawyers in India or internationally who agree with
Mr. Rajagopal's claim that allowing for parallel importation in India will have
an impact on the exports of low-priced editions from India.</p>
<blockquote>
<p>Most pertinently, when the Wiley judgments which related to export of low priced editions, were being pronounced in Court, the Hon’ble Judge casually remarked that the law laid down in cases may soon become redundant if the proposed legislation comes into force.</p>
</blockquote>
<p>As noted above, the judge specifically stated in the written judgment itself that as per the court's reasoning, the question of whether the export of low-priced editions is legal is not related to the question of exhaustion of rights of the owner: "<em>. . . as the express provision for international
exhaustion is absent in our Indian law, it would be appropriate to
confine the applicability of the same to regional exhaustion. Be that as
it may, in the present case,</em> <em>the circumstances do not even otherwise
warrant this discussion </em>. . . <em>the question of exhaustion of
rights of owner in the copyright does not arise at all</em>". </p>
<p>To get a little bit more technical, Justice Singh rules that there is a difference between first sale (exhaustion) vis-a-vis the owner and first sale vis-a-vis the licensee. He states that only rights of the licensee have been exhausted, and that the rights of the owner being exhausted do not even arise. But he is quite clear that this difference would apply regardless of whether we follow international exhaustion or national exhaustion.</p>
<strong>Update (2011-02-15): </strong>For the tabularly inclined, here's a summary of what it means for a country to follow "national exhaustion" or "international exhaustion":
<div align="center"> </div>
<table class="plain">
<tbody>
<tr>
<td align="center"><br /></td>
<td align="center">What "Exhaustion" Means<br /></td>
<td align="center"><br /></td>
</tr>
<tr>
<th align="center">Where copyrighted work is first circulated<br /></th>
<th align="center">Where right of circulation is exhausted <br /></th>
<th align="center">What this is termed<br /></th>
</tr>
</tbody>
<tbody>
<tr>
<td align="center">In any country<br /></td>
<td align="center">In all countries<br /></td>
<td align="center">[- Not possible.<br /><br />- Law in one country<br />can't dictate law in another.<br /><br />- Exhaustion of right of circulation<br />
"in all countries" can only be <br />
declared so through an <br />
international treaty<br />
(e.g., the way TRIPS makes a book<br />copyrighted in all countries if <br />it is copyrighted in any country)<br /><br />- Art. 6 of TRIPS doesn't allow for this interpretation.]<br /></td>
</tr>
<tr>
<td align="center"><strong> In any country<br /></strong></td>
<td align="center"><strong>Domestic territory<br />
</strong></td>
<td align="center"><strong>International exhaustion<br />
</strong></td>
</tr>
<tr>
<td align="center"> Domestic territory<br /></td>
<td align="center">In all countries<br /></td>
<td align="center">[- Not possible.<br />
<br />- Law in one country <br />can't affect law in another.<br /><br />- Exhaustion of right of circulation<br />
"in all countries" can only be <br />declared so through an <br />international treaty<br />(e.g., the way TRIPS makes a book<br />
copyrighted in all countries if <br />it is copyrighted in any country)<br /><br />- Art. 6 of TRIPS doesn't allow for this interpretation.]<br /></td>
</tr>
<tr>
<td align="center"><strong> Domestic territory<br />
</strong></td>
<td align="center"><strong>Domestic territory<br />
</strong></td>
<td align="center"><strong>National exhaustion<br />
</strong></td>
</tr>
</tbody>
</table>
<p> </p>
<p>Thus it is seen that the "national" or "international" exhaustion only determines the question of where the book has to be first circulated for exhaustion to happen. It can never change <em>where</em> the right of first circulation is exhausted (which in either case can only happen at a territorial level). </p>
<p>The implication of the right of circulation being exhausted world-wide is that no country can by law prevent parallel importation. The TRIPS Agreement, via Article 6, decided to give each country the right to choose to allow or disallow parallel importation. This was despite a great effort by developing countries to get international exhaustion codified as the worldwide norm.</p>
<p>To make this even more clear, I propose the following thought experiment.<br /><br /><strong>X</strong> - national of <strong>New Zealand</strong>, which follows international exhaustion.<br /><strong>Country 1</strong> - a country that follows national exhaustion / doesn't allow parallel imports<br /><strong>Country 2</strong> - a country that follows national exhaustion / doesn't allow parallel imports<br /><strong>Country 3</strong> - a country that follows international exhaustion / allows for parallel imports<br /><br /></p>
<ul><li>Example 1: If <strong>X</strong> buys a book from <strong>Country 1</strong> and sells that book in <strong>Country 2</strong>, he is in violation of <strong>Country 2</strong>'s laws, regardless of the laws in <strong>New Zealand</strong> and <strong>Country 1</strong>.</li><li>Example 2: If <strong>X</strong> buys a book from <strong>Country 1</strong> and sells that book in <strong>Country 3</strong>, he is <em>not</em> in violation of the law (either in <strong>New Zealand</strong> or in <strong>Country 3</strong>).</li><li>Example 3: If <strong>X</strong> buys a book in <strong>New Zealand</strong> and sells that book in <strong>Country 2</strong>, he is in violation of <strong>Country 2</strong>'s laws, regardless of the laws in <strong>New Zealand</strong>.</li><li>Example 4: If <strong>X</strong> buys a book in <strong>New Zealand</strong> and sells that book in <strong>Country 3</strong>, he is <em>not</em> in violation of the law (either in <strong>New Zealand</strong> or in <strong>Country 3</strong>).</li></ul>
<p><br />If one takes "international exhaustion" to mean that the right is exhausted in <em>every country</em>, then <strong>Example 3</strong>
would be wrong. But that would be absurd, since we know from experience
that it is correct: Buying a book in New Zealand and selling it in the
United Kingdom (which follows national/regional exhaustion) is unlawful. So obviously "international exhaustion" doesn't mean that.</p>
<p>Similarly, if one takes "national exhaustion" to mean that after sale a book cannot be exported, that
would imply that <strong>Example 2</strong> is faulty. But we know from
experience that this is not so: Buying a book in the United Kingdom and selling it in New Zealand is lawful. So obviously "national exhaustion" doesn't mean that.</p>
<p>Thus, it is only the act of import that is ever affected by the question of national vs. international exhaustion, and never exports.</p>
<h3>Notes</h3>
<p> [1]: Justice Manmohan Singh writes: "As per my opinion, as the express provision for international
exhaustion is absent in our Indian law, it would be appropriate to
confine the applicability of the same to regional exhaustion. Be that as
it may, in the present case, the circumstances do not even otherwise
warrant this discussion as the rights if at all are exhausted are to the
extent to which they are available with the licensees as the books are
purchased from the exclusive licensees who have limited rights and not
from the owner. In these circumstances, the question of exhaustion of
rights of owner in the copyright does not arise at all." (Para 104).</p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/indian-law-and-parallel-exports'>https://cis-india.org/a2k/blogs/indian-law-and-parallel-exports</a>
</p>
No publisherpraneshConsumer RightsCopyrightAccess to Knowledge2011-08-04T04:47:07ZBlog EntryThomas Abraham's Rebuttal on Parallel Importation
https://cis-india.org/a2k/blogs/parallel-importation-rebuttal
<b>We engaged in an e-mail conversation with Thomas Abraham, the managing director of Hachette India, on the issue of parallel importation of books into India. We thought it would be in the public interest to publish a substantive part of that conversation. In this post he points at great length how our arguments are faulty. While we still believe that he doesn't succeed, we hope this will clarify matters a bit.</b>
<h2>Nature of disagreement</h2>
<p>There is essentially fundamental disagreement on principle and definition-and I guess there will always be if you knock actual knowledge and see things as abstract philosophical (and legal) points. Why I think detailed knowledge is necessary is precisely illustrated at the logic (or lack thereof actually) employed by the Ministry. And then there is to me the fundamental problem of disregarding the author's wishes (for no greater good).</p>
<h2>Second hand books and libraries</h2>
<p>The comparison is not the same. Both (second-hand and libraries) have had a first sale where the copyright holder has got his/her basic right-the designated royalty. (I have explained earlier how export royalties and remainder royalties are much lower and results in losses to the author.) So here we come back to the basic philosophy-who has greater right on deciding on creative works? The creator or the government? A just answer would be the creator provided commercial dissemination fulfilled society's needs-which in India's case would be availability and right pricing keeping in mind socio-economic needs. Both are happening through local publishing and pricing of imports. But parallel imports would take away that right an author has of deriving a rightful income as per existing norms in all mature markets (including India so far). We are heading towards being a mature market and this has come about only because we are in the self-perpetuating framework of publishing, writing, and cultural development.</p>
<p>So the argument is that second hand books and libraries foster reading without depriving the author of rightful royalty or ruining the market.</p>
<p>Parallel importation does both. There is every reason to know that this will happen-that's exactly the substantiation we are offering. And the advocates of parallel importation have none to offer-pricing (where is it high, and by how much should it come down?), what is not freely available and at special prices? So for what reason do we want the existing law-also made by lawmakers-to change the stated remit of exhaustion from national to international.</p>
<p>No book publisher objects to libraries or even second hand books. But they are objecting to parallel importation. So leave it to them to decide. It is a tad patronizing to tell us what will help us, without having a shred of actual knowledge.</p>
<h2>Helping libraries and disabled</h2>
<p>This is completely false. No library needs to import from Amazon. And if it is a public library then they are wasting taxpayer money. Almost any book in the world they will still get at a special price through Indian publishers or distributors. There are societies for the disabled to whom publishers give rights at almost no cost. The UK has a law that a copy must be made available at near cost for disabled. By all means have such a law here. Why try and use parallel importation as an excuse for this?</p>
<h2>Flexibility in the law</h2>
<p>To your point: "Even if prices don't fall, it is good to have the flexibility for libraries to import four copies of a book that students need and isn't being made available in India. That flexibility is crucial, for availability, and just on principle, and not just for the sake of prices". By all means pass the law that gives the libraries the right to import 5 copies of any book they want. Publishers won't gripe at that. Libraries would still get it cheaper here than Amazon but that's the libraries' call.</p>
<h2>Law should promote fairness and equity, not perpetuate a particular business model</h2>
<p>No disagreement here. But the contention is that it will result in exactly the opposite. Sure, so let the lawmakers demonstrate they have done due diligence and outline evidence for their assumptions and how it will promote fairness and equity. What is unfair right now and what is not equitable? And how this law will address that. Why do other markets have it, and why should we not? On no count is there any detailing-just three false assumptions-availability, pricing and current editions.</p>
<p>Equally one can't have the law being made the proverbial ass because the lawmakers won't do their homework.</p>
<h2>Export and remainder royalties are lower</h2>
<p>I explained export vs domestic royalties in my first rebuttal. Not just remainders. Remainders are near zero royalties. Export surplus even pre-remainders are low royalty-against the author's wishes. And parallel importation will result in further loss of royalties from loss of sales of the hitherto legitimate edition.</p>
<h2>Why anti-dumping laws will not be practical</h2>
<p>Firstly there will be 40,000-plus titles to track, and the damage would have been done by the time you invoke the law. And assuming we want to invoke anti-dumping law, what parameters will be fixed? what discount are you going to fix? What quantity? I'll explain why this will never work. There are no real averages to draw lines and say this much and no more for either discount or price or quantity. To understand why we need to understand cost to price structures. Indian publishing (both publishing and imports) is low margin. Our books are priced to market; that means from cost our mark up is 2.5 times for imports and about 3-4 on average for local publishing-to enable the prices you see. Abroad it is 8-10 times from cost. To enable low pricing in India, we already have overseas terms that exceed 70% discounts, going into 'net pricing' for the ones that we pick to push big. Once the market is opened up, you will have two things-(a) targeted remainders as against the minor trickle now and (b) surplus clearance or even targeted sale to undercut the existing lawful edition. And I repeat the point that these remainders and 'targeted exports' can still end up undercutting the local edition. Not significantly enough to cause a change in pricing pattern (no benefit to consumer), but enough to undermine existing industry structures.</p>
<p>And yes, parallel importation (the current trickle) does see enforcement the logical way (by which I mean that the intensity of the problem merits the level of redressal). So far (believe me, each of us keeps tabs) we have 'unaware imports' and 'deliberate imports'. It is an irritant but is gradually reducing as the market matures. And the unaware ones are easily remedied by a simple letter asking for infringing stock to be withdrawn. In fact 8 out of 10 cases this simple letter works. For the deliberate ones, as I said earlier, it's just one or two where the impact is not worth the cost. Our margins do not allow us to hire expensive lawyers. But the moment it touches key brands or high revenue, legal action is taken.</p>
<h2>Market expansion</h2>
<p>Again the inherent assumption that this is some 'fat cat' lobbying protest. For once the lawmakers need to apply themselves-why is everybody from Penguin & Hachette (biggest) to Zubaan and Yatra (amongst smallest) all opposing it? Similarly from Crossword (large chain) to 'The Bookshop' in Jor Bagh (small independent), nobody wants this. Why? Surely that must speak for something? The only ones it will benefit are the remainder stalls you see (of which there must be about 25-30 all over the country). But over time every bookshop will be forced to keep this kind of stocking eroding current shelf space (they will have no choice). This is not market expansion.</p>
<h2>Pricing drop</h2>
<p>The other thing being ignored is that it's not just short term spoiler pricing. When one thinks in purely theoretical terms and says "open up, prices will drop", one is also not factoring in that the composition of what is stocked will changed. It's no longer <em>status quo</em> at reduced prices. That's the key to a mature market, that what the market needs is available-from bestsellers to literary works to philosophical works-balancing commercial and cultural needs and at prices the market can afford. So sure we can sit back and say we don't care if the history and philosophy shelves are eroded, if local publishing shrinks, let market forces prevail and let there be just foreign mass market novels and old editions (which will flow in by the thousand). But I'd like to hear the government say that.</p>
<h2>Not just about copyrighted books but about all copyrighted materials</h2>
<p>Yes, and we're not commenting about the others (other materials, i.e.) because we do not know enough. But we cannot have one size fits all if there are legitimate grounds to think about otherwise. Why is there a redressal of authors' needs in the music and film industry and a total disregard of books? Why were there panels created to discuss and thresh the whole thing through for films, and no detailed consultation at all for the books industry?</p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/parallel-importation-rebuttal'>https://cis-india.org/a2k/blogs/parallel-importation-rebuttal</a>
</p>
No publisherpraneshConsumer RightsCopyrightAccess to Knowledge2011-08-04T04:47:12ZBlog EntryPirates, Plagiarisers, Publishers
https://cis-india.org/a2k/blogs/plagiarism-in-indian-academia
<b>This article attempts to rescue not by denying the charges of plagiarism, but by charting an alternative trajectory of plagiarism so that each successive instance does not amplify our sense of embarrassment and crisis in the academy. The article by Prashant Iyengar was published in the Economic & Political Weekly, February 26, 2011, Vol XLVI No 9.</b>
<p>"Copying one book is plagiarism; copying several is research." Unknown <a href="#1">1</a></p>
<p>Someone must have slandered Indian academia, for, without having done anything new or different, allegations of plagiarism have suddenly been tumbling out of India’s ‘top’ universities in these past few years.</p>
<p>In October 2002, a group of physicists from Stanford University, including three Nobel laureates, addressed a letter to the (then) President Abdul Kalam complaining of plagiarism by the Vice Chancellor of Kumaon University.<a href="#2">2</a> In January 2006, a professor from IIM Bangalore was dismissed for plagiarism.<a href="#3">3</a> In February 2008, a professor from the Sri Venkateswara University in Tirupathi was accused of having plagiarized up to 70 papers between 2004 and 2007.<a href="#4">4</a> In October 2010, IIT Kharagpur was forced to set up a committee to investigate allegations of plagiarism by one of its professors and three doctoral candidates.<a href="#5">5</a></p>
<p>And so on. It seems Benjamin Franklin’s adage about originality being “the art of concealing your sources” thrives today in Indian academia. Something is rotten in the State of academic research. Evidently, we even know exactly what it is: Some years ago, the Association of Indian Universities invited students to a research contest. The pamphlet advertising the contest contained a remarkably prolix account of the causes of the general decline in academic research:</p>
<p>Of late, <b>research has become a subservient component in the university</b> functioning. It is <b>not considered a lucrative career option</b>. Apart from this, <b>resource constraints, lack of commitment, lack of proper encouragement</b>, etc., are the impediments that are affecting the quality of research in our institutions of higher education. Another important factor for the deterioration of the quality of research is the <b>absence of adequate training and other capacity building</b> endeavour in our system, which has <b>restricted students’ creativity only to rote memory</b>. <a href="#6">6</a> (emphasis mine)</p>
<p>Similarly, we are periodically reminded, as in this instance, by the chief of the Defence Research and Development Organisation that “India lacks quality academic organisations and research and development institutions that breed inventions in technology. This is the major reason behind India's failure in breaking new ground in inventions and innovations.”<a href="#7">7</a> Other news reports bemoan the fact that “Indian patent filings lag behind global average" with the total “number of filings by residents being just three per million people in its population, compared with the world average of 250”<a href="#8">8</a></p>
<p>Accounts such as these, which abound in the press and journals, typically trace a “decline” hypothesis according to which the quality of academic research in India, once rigorous and upright, has fallen precipitously in recent times. Poor quality of academic research is then portrayed as a function of the impoverishment of the academy itself. Concealed within this auto-critique is an envy of putatively ideal systems in other countries which exhibit values that are an inversion of those identified as ours: i.e. they privilege research, are well-resourced, file the statistically approved average number of patents, allow students’ creativity free rein, and do not restrict their creativity only to rote memory. Lurking underneath these criticisms is also the anxiety that the arrival of the internet has, far from invigorating indigenous research in India, facilitated plagiarism on a wider scale than previously imaginable. What do we make of all this self-slander?</p>
<p>In this essay I will attempt to rescue Indian academic research, not by denying the charges of plagiarism, but by charting an alternative trajectory of plagiarism so that each successive instance does not amplify our sense of embarrassment and crisis in the academy.</p>
<p>I begin by drawing on my own prior study on student research in law universities in India<a href="#9">9</a> to provide a rough account of how law students approach research. However inappropriate, I use some of my observations in the course of that study as a microcosmic model for how research is conducted by students across the country today.</p>
<p>Next, I will attempt to show how the charge of plagiarism only acquires its pungency after the installation of a particularly western ‘Romantic’ conception of creativity that is hinged on the ‘genius’ figure. My point here is not one of cultural difference – we may or may not have conflicting traditions of (literary) creativity in India - but of heterogeneity of possible standpoints from which creativity can be judged, which have been deprecated or forgotten since this modern conception took root. While this idea is itself not ‘original’, having been made by numerous authors on whose work I draw upon here<a href="#10">10</a> , I am interested here in how it can inform our reaction to quotidian reports of plagiarism in the contemporary. Specifically, I think our understanding of 'originality-as-genius’ is a relatively recent historical product, and is definitely not the 'natural' or universal parameter by which literature and arts have been judged. I would assert that contemporary practices on the Internet restore us to (or renew the salience of) some of these pre-modern practices of authorship where originality in its Cartesian sense may not necessarily be determinative of value.</p>
<p>I would however hasten to add that this does not lead us inexorably to the conclusion that our traditional understanding of plagiarism has to abandoned. In the case of academic writing, 'Romantic' standards of originality have been rigorously upheld and policed by the spectral might of the University. Here, the ritual demonstration of cartesian orginality is not only a condition of success, but a minimum qualification for survival and advancement in this domain. With the stakes being so high, the temptation to pass off others' works as one's own is great, in contrast to the risks of being caught. This does not mean that everyone resorts to it, only that there are structural factors in the academy that make practices of plagiarism more 'rational' than, perhaps, in other domains<a href="#11">11</a> .</p>
<p>To begin, then with my conclusions, I think that dulling the keenness of ‘cartesian originality’ in the University could be an important component in the serious task of educational reform. Equally, I aim, in this article to rehabilitate the term plagiarism so as to diminish the sense of embarrassment that seems to come naturally to us when we speak of Indian research.</p>
<h3>Student ‘research’ in Law Schools in India</h3>
<p>The content and observations in this section draw from a study that I had conducted in 2006 on student research in national law universities in India. During the study I had interviewed 40 students and eleven faculty members across three National Law Universities. <a href="#12">12</a> I will focus here on the themes from those surveys that directly address the issue of research and plagiarism.</p>
<p>By way of background, in a typical national law university following a semester model, a student must submit up to 5 research papers (of lengths varying from 20 to 50 pages) a semester – or ten papers a year. In the duration of her five year legal education, a student from a national law university in India would have submitted anywhere between 48 (NALSAR) to 70 (NLIU Jodhpur) research papers of varying lengths. Given an average class-size of 80, and 5 batches in every university, a guesstimate indicates an average output of about 4000 papers of varying quality from every national law university annually. The table below contains a rough back-of-envelope enumeration of the research output of five national law universities in India, drawn from respective university prospectuses and websites.</p>
<table class="plain">
<tbody>
<tr>
<td><br /></td>
<td><b>NALSAR</b></td>
<td><b>NLSIU</b></td>
<td><b>NLIU</b></td>
<td><b>NLU</b></td>
<td><b>GNLU</b></td>
</tr>
<tr>
<td>Intake</td>
<td><b>80</b></td>
<td><b>80</b></td>
<td><b>80</b></td>
<td><b>80</b></td>
<td><b>160</b></td>
</tr>
<tr>
<td>Max Strength</td>
<td><b>400</b></td>
<td><b>400</b></td>
<td><b>400</b></td>
<td><b>400</b></td>
<td><b>800</b></td>
</tr>
<tr>
<td>Academic Unit</td>
<td><b>Semester</b></td>
<td><b>Trisemester</b></td>
<td><b>Trisemester</b></td>
<td><b>Semester</b></td>
<td><b>Semester</b></td>
</tr>
<tr>
<td>Law Courses</td>
<td><b>40</b></td>
<td><b>51</b></td>
<td><b>48</b></td>
<td><b>54</b></td>
<td><b>51</b></td>
</tr>
<tr>
<td>Non-Law Courses</td>
<td><b>10</b></td>
<td><b>10</b></td>
<td><b>26</b></td>
<td><b>8</b></td>
<td><b>9</b></td>
</tr>
<tr>
<td>Number of research papers<br />per student through the <br />duration of the 5 year course</td>
<td><b>18</b></td>
<td><b>50-60</b></td>
<td><b>65-74</b></td>
<td><b>55-62</b></td>
<td><b>55-60</b></td>
</tr>
<tr>
<td>Max number of research <br />papers per semester / trisemester</td>
<td><b>1900</b></td>
<td><b>1400</b></td>
<td><b>2000</b></td>
<td><b>2200</b></td>
<td><b>4000</b></td>
</tr>
<tr>
<td>Number of student<br />research papers per year<br />(approx)</td>
<td><b>3800</b></td>
<td><b>4200</b></td>
<td><b>6000</b></td>
<td><b>4400</b></td>
<td><b>8000</b></td>
</tr>
</tbody>
</table>
<p>By any estimate, this volume of research is staggering and should ordinarily be a cause for pride. However law universities are also beset with the same anxieties of poor research ‘quality’ and plagiarism that characterize the broader academy. While my previous study contains a fuller discussion on the causes of poor legal research at these universities, I would like, here, to only reproduce some of my survey conclusions from that study that would feed the discussion for the later sections of this paper.</p>
<ul>
<li>From my surveys it appeared that both students and faculty shared a sense that the research burden on students in these universities was excessive and too onerous to facilitate high quality research.</li>
<li>Students respond to the high research load by budgeting their efforts – working more intensely on some research assignments while neglecting others. This accorded with the responses from faculty members who reported an extremely low number of high quality research papers turned in. Responses from faculty indicate that a high percentage of papers received fall under a median category between ‘high quality’ and ‘abjectly low quality’ – i.e. there are a large number of papers which, while offering a cogent account of the topic do not add any insight of their own.</li>
<li>Both students and faculty reported generally, the existence of a high degree of plagiarism (defined as the inclusion of extrinsic material without attributing sources) sourced both from amongst their peers as well as from extrinsic sources. Although most students (78%) claimed never to have directly copied from other students’ papers, many (67%) admitted to having shared their papers with other students either for ‘reference’, or more commonly, for adaptation/reuse in their assignments. The responses to whether they had any reservations against the practice were diverse with more students in favour of the practice of plagiarism (47%) than against (30%). Without admitting to participating it in themselves, 60% of respondents characterised the prevalence of ‘copy/paste’ plagiarism in research on their campus as ‘Rampant’ or ‘High’. Many reasons were forthcoming for the prevalence of this practice among which the more frequently stated included: ‘High work pressure’, ‘lack of time’ ‘lack of incentive to do high quality research’, ‘lack of emphasis by evaluators on high quality academic work’, ‘pointlessness of repeating identical research from scratch’. Other less common reasons offered were ‘emphasis on sheer volume to the neglect of quality of analysis’ and ‘disingenuousness of topics’ and ‘Laziness’.</li>
<li>Over half the students surveyed had never published their research in journals. This despite the fact that 75% of respondents reported that at least 1 of their research papers was either publishable immediately or with modifications. More than half the respondents reported upwards of three papers that they themselves regarded as ‘publishable’.</li>
<li>One of the common reasons that the faculty identified for the incidence of plagiarism was that students had begun to stereotype teachers who were unlikely to check or be able to check for plagiarism and would submit entirely plagiarised papers to them. Other reasons included the difficulty of checking the huge number of papers they received individually for plagiarism and also the fact that students had an unreasonably high workload coupled with the lack of enough incentive to do thorough research. <br /><br />“Intuition” and “checking the number of sources” was still the common mode of detecting plagiarism although some faculty made creative use of the internet – particularly Google.</li>
</ul>
<ul>
<li>Faculty was asked if a paper that appeared plagiarized to a high degree, but also indicated that the student had put in an intelligent compilation of materials, would be acceptable by them. The response to this was largely affirmative with some faculty members saying that most papers would correspond to that category and this standard was imperative for a majority of students to pass! Most faculty required that the source material at least be acknowledged.</li>
<li>With regard to their research sources, there was a clear bias in favour of online sources almost to the exclusion of other sources. One respondent even rated online sources as being “more important than libraries”, and even claimed that she always began her legal research on the internet.</li>
</ul>
<p>It is evident then from the foregoing account that the law universities are poor representatives of ‘original’ scholarship. The career of students through the law school seems to be marked by a blithe collaboration with faculty in which a Nelson’s eye is turned to their less-obvious plagiarisms. Although it is possible to adopt a high moralistic tone and condemn these practices, in the remainder of this paper I would like to marshal resources that would lend some dignity to them. In the section that follows, I will argue firstly, that there are rival conceptions of originality which privilege the recombination of existing information, rather than being fixated on ivory-towered ex nihilo originality.<br />Under this conception, even the pastiche works by lazy law students emerge as eminently ‘original’. Secondly, I argue that slavish imitation is never always only that, and have long been recognized as an integral aspect of the creative process itself.</p>
<h3>‘Originality’ is only a special effect of reception</h3>
<p>In his fascinating book Original Copy, Robert Macfarlane draws on George Steiner’s vocabulary to contrast two different narratives of literary creation – The first, creatio, espouses “a hallowed vision of creation as generation” which “connotes some brief, noumenal moment of afflatus or inspiration’ during which the author composes her work.</p>
<blockquote class="webkit-indent-blockquote">
<div>..the creative urge is dramatized as pulsing deep within the fastness of the individual self, and the solitary writer is seen to conjure ideas into the influence proofed chamber of his or her imagination. <a href="#13">13</a></div>
</blockquote>
<p>By contrast, the second conception of literary creativity, inventio, which is commonly found both in literary postmodernism and Augustan aesthetics, conceives of “creation as rearrangement” and “refuse[s] to believe in the possibility of creation out of nothing, or in the uninfluenced literary work”.<a href="#14">14</a> Instead this view “privileges the act of making out of extant material”. According to these “recombinative theories”, the creating mind is conceived</p>
<blockquote class="webkit-indent-blockquote">
<div>“as a lumber-room in which are stored innumerable verbal odds and ends. The supposedly ‘original’ writer in fact works with ‘inherited lexical, grammatical, and semantic counters, combining and recombining them into expressive executive sequences’. <a href="#15">15</a></div>
</blockquote>
<p>As an instance of this latter view, Macfarlane cites the example of Derrida who coined the term itérabilité to describe “the semantic drift which inevitably occurs between consecutive uses of the same text”. Derived from a combination of the Latin verb iterare (meaning ‘to repeat’) and the Sanskrit word itara (meaning ‘other’), the word “valuably emphasizes ‘the logic which links repetition to alterity’. For Derrida, the repetition of a text inescapably involves its alteration: you can never step twice in the same poem, paragraph, or word.”</p>
<p>I find this latter conception, especially Derrida’s concept of itérabilité to be a valuable tool with which to think through the practices of the law students I interviewed. While being derived from a plurality of (frequently unacknowledged sources), their papers were never mere ‘slavish’ repetitions, but always contained an element of alterity.</p>
<p>Paradoxically, the networked information age that we inhabit both facilitates and preempts the flourishing of ‘recombinative creativity’. On the one hand, the abundance of informational resources that the internet puts at a researcher’s disposal, as well as the ease of word-processing makes it easy to rapidly refashion materials into a pastiche of one’s own. On the other hand, the illusion of novelty that such work may produce is capable of being dispelled equally swiftly, and more efficiently than ever before through the use of special applications designed to detect plagiarism. If, as MacFarlane suggests, originality is not “an indwelling quality of writerly production, but instead a function of readerly perception, or more precisely readerly ignorance (the failure to discern a writer’s sources)”, then the emergence of the internet has nearly made this form of originality impossible, by making this reader ignorance extremely evanescent (lasting only until the reader’s next Google search). The ability of students to pass off plagiarised material as their own will hinge increasingly on their ability to alter it unrecognizably, at which point the output is no longer a mere slavish imitation, but something new altogether – ‘quality research’.</p>
<div>
<p>In an essay on pre-print culture<a href="#16">16</a> , Lawrence Liang demonstrates that the notion that prior to print technology, the task of writing was reduced to that of slavish copying by scribes is false. As Liang notes, the real story is slightly more complicated.</p>
</div>
<blockquote class="webkit-indent-blockquote">
<div>
<div>Acting as annotators, compilers, and correctors, medieval bookowners and scribes actively shaped the texts they read. For instance, they might choose to leave out some of the Canterbury Tales, or contribute one of their own. They might correct Chaucer’s versification every now and then. They might produce whole new drafts of Chaucer by combining one or more of his published versions with others.<a href="#17">17</a></div>
</div>
</blockquote>
<div>
<p>With the arrival of print technology, however, a fundamental transformation occurs in the way the activities of writing and reading. Liang quotes an extended passage from Rebecca Lynn’s study of reading and writing practices in medieval England<a href="#18">18</a> that captures this change:</p>
</div>
<blockquote class="webkit-indent-blockquote">
<div>
<div>
<div>the benefits readers derived from the press, in terms of better access to authorized texts, were countered by a profound loss of opportunity for inventive forms of reception. They were free to take with the texts they recopied. Manuscript culture encouraged readers to edit or adapt freely any text they wrote out, or to re-shape the texts they read with annotations that would take the same form as the scribe's initial work on the manuscript. <i>The assumption that texts are mutable and available for adaptation by anyone is the basis, not only for this quotidian functioning of the average reader, but also for the composition of the great canonical works of the period</i>.<a href="#19">19</a></div>
</div>
</div>
</blockquote>
<div>
<p>Is it possible, in the light of this insight about the creative element of copying in pre-print days, to revise our pathological accounts of contemporary plagiarism? <a href="#20">20</a> Can we view plagiarism not as an offence against the ‘author’ity of knowledge, but in a sense as a reversion to a more primordial tradition in which the availability of a text presumes and is premised upon its availability for adaptation. As described previously, responses from interviews with faculty indicates a grudging tolerance of plagiarism in student research.</p>
<p>This tolerance, stemming from an acknowledgement that even acts of compilation are not wholly without a creative element, seems to restore us to such an understanding of ‘creative’ reading akin to what has been described above.</p>
<h3>Conclusion</h3>
<p>Few years ago, a famous author of textbooks on Intellectual Property law in India was discovered to have plagiarised close to two hundred pages of his new book on the Right to Information. The pages had been lifted verbatim from the manuscript sent by a famous law professor to the same publisher. When the matter came to light, the first author pleaded ignorance. After an ugly out-of-court tussle between the professor and the publisher (who happen to be one of India’s more powerful legal-publishing houses), a compromise was reached wherein the professor’s book would be published with a note inserted stating that 200 of his pages had been included in the other ‘author’s’ book.</p>
<p>I conclude this essay with this piece of copyright ‘gossip’ in order to highlight a couple of ironies that it animates. The first is, of course, the delicious irony that a famous author, of IP books no less, would stoop to such lows. (Could academic writing in any discipline be above suspicion now that academic writing in IP, that guardian discipline of genius ‘originality’, has proven susceptible to plagiarism?) The second irony is that this person’s reputation as the ‘author’ of a book, and of a genre of books survives despite the fact that he may not have penned even a single word of his book – which prompts us to ponder what function the author truly serves here. Lastly, I find the fact curious that both books continue to be displayed – and sold - in various legal bookstores, frequently side-by- side. The ‘fact’ of the plagiarism seems not to have significantly impacted sales of either author’s tome.</p>
<p>Tempting as it may be, one must resist treating this example as either exceptional or paradigmatic. Publishers in India in many cases do lead authors by their nose, and this is particularly so in the case of text-book publishing. However, this does not mean that original – in the Cartesian sense - academic writing does not continue to be produced in India. I feel this instance points us to the limits of the argument I have made in the preceding section. As well as it may be to celebrate ‘recombinative’ accounts of creativity in students, wholesale plagiarism with impunity by big name authors backed by large publishing houses cannot be easy to endure. In our acceptance of a combinatorial ‘inventio’ theory of creativity, it would be unwise too hastily to jettison the more austere creatio theory. As Macfarlane points out, popular attitudes to originality and plagiarism have moved between the two narratives of originality in a dialectical fashion so that they can best be thought of as “enmeshed .., or existing in a kind of helical wrap: each requiring the other for its support, counter-definition, and continued existence. Neither ever obliterates the other.”<a href="#21">21</a></p>
<p>However they may have been produced, we regard our ‘works’ not merely as our property but also relationally through ethics of propriety. In other words, what we write is our “own” not in the way that our shoe is our own, but in the sense that our friends are our own. Plagiarism in this context most closely approaches its original Latin roots – plaga: to convert a freeman into a slave22. – as the unjust enslavement or capture of our work by someone else.<br />What role has the internet played in this crisis of plagiarism? Despite the inherent promiscuity of the medium, I think that the arrival of the internet has not actually changed our practices in relation to plagiarism. So the fact that I may blithely pirate movies and music on the internet does not mean, automatically, that I adopt 'piracy' as my research methodology for academic writing. Our choices remain as they were – to acknowledge or not, with the latter being increasingly more risky in an age when exposure is only a google search away.</p>
<p>Finally, how does all of this relate to the question I posed at the start viz: what do we make of this self-slander? I think it will not do to simply declare ourselves innocent of the charge of plagiarism. (As Josef K’s prison chaplain says, that is what the guilty usually do.) But equally we must be careful, to continue with a Kafkaesque metaphor, not to see the gallows being constructed in the distance and hang ourselves on the presumption they are being erected solely for us. Kafka alone, of course, does not supply good grist for policy decisions. A possible way forward would be to import the cinematic notion of plagiarism into academic writing: Not all that is unacknowledged is unoriginal (as my <br />example from student research at law universities shows), but this does not extend to a license to appropriate all as one's own (the example of the famous IP author who plagiarised 200 pages from a professor). The former is a function of the dominant, awkward alien aesthetic imposed by the University, which requires academic writing to be dully impersonal and abstract. Finding it too taxing, most students resort to a clumsy pastiche rather than, for instance, shifting to a more narrative style which they may be more comfortable with. The internet allows their pastiche to be more colorful than before.</p>
<p>The latter is plainly an ethical failing by someone who believes they can get away with impunity. The internet does not impact them in any way except that their 'crime' once discovered circulates endlessly on the internet (As this IP author discovered to his dismay).</p>
<p>In deciding what is to be done, however, I would advise our policy makers to make haste, only slowly.</p>
</div>
<h2>Notes</h2>
<div>
<p class="discreet"><a name="1">Lindey, A., 1952. <i>Plagiarism and originality</i>, Harper., New York, P.2</a></p>
<p class="discreet"><a name="2">Chu, S. et al., 2002. Letter from the group of Professors of Physics of Stanford University to the President of India. Available at: </a><a class="external-link" href="http://www.stanford.edu/dept/physics/publications/PDFfiles/india.pdf">http://www.stanford.edu/dept/physics/publications/PDFfiles/india.pdf</a> [Accessed December 22, 2010].</p>
<p class="discreet"><a name="3">Seethalakshmi, S., 2006. IIM-B prof held violating copyright. The Times of India. Available at: </a><a class="external-link" href="http://articles.timesofindia.indiatimes.com/2006-01-05/bangalore/27803993_1_iim-b-p-g-apte-copyright-violation">http://timesofindia.indiatimes.com/city/bangalore/IIM-B-prof-held-violatingcopyright/ articleshow/1359149.cms?curpg=2</a> [Accessed December 21, 2010].</p>
<p class="discreet"><a name="4">Tewari, M., 2008. Indian professor guilty of plagiarism. DNA India. Available at: </a><a class="external-link" href="http://www.dnaindia.com/india/report_indian-professor-guilty-of-plagiarism_1152417">http://www.dnaindia.com/india/report_indian-professor-guilty-of-plagiarism_1152417</a> [Accessed December 21, 2010].</p>
<p class="discreet"><a name="5">Singh, K., 2010. IIT-K sets up panel to probe plagiarism charges. Indian Express. Available at: </a><a class="external-link" href="http://www.expressindia.com/latest-news/iitk-sets-up-panel-to-probe-plagiarism-charges/695196/">http://www.expressindia.com/latest-news/iitk-sets-up-panel-to-probe-plagiarism-charges/695196/</a> [Accessed December 21, 2010].</p>
<p class="discreet"><a name="6">"Anveshan: Student Research Convention." Association of Indian Universities. Apr 2008. Research Division. 30 Apr 2008 <http://www.aiuweb.org/Research/research.asp>.</a></p>
<p class="discreet"><a name="7">Josy Joseph , ‘India lacks R&D base, laments DRDO chief ‘, (2000), [Internet], Available from: <</a><a class="external-link" href="http://www.rediff.com/news/2000/aug/11josy1.htm">http://www.rediff.com/news/2000/aug/11josy1.htm</a>> [Accessed 21 April 2008]</p>
<p class="discreet"><a name="8">‘Indian patent filings lag behind global average’, [Internet], Available from: <</a><a class="external-link" href="http://www.eetimes.com/electronics-news/4075557/Indian-patent-filings-lag-behind-global-average">http://www.eetimes.com/news/latest/showArticle.jhtml?articleID=204702703</a>> [Accessed 21 April 2008]</p>
<p class="discreet"><a name="9">Iyengar, P., 2008. Open Information Policy for Student Research in Law Universities. SSRN eLibrary. <br />Available at:</a><a class="external-link" href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1555689"> http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1555689</a> [Accessed December 24, 2010].</p>
<p class="discreet"><a name="10">See for instance, Rose, M., 1993. <i>Authors and Owners: The Invention of Copyright</i>, Cambridge, Mass: <br />Harvard University Press. Woodmansee, M., 1984. The Genius and the Copyright: Economic and Legal<br />Conditions of the Emergence of the 'Author'. <i>Eighteenth-Century Studies</i>, 17(4), 425-448.</a></p>
<p class="discreet"><a name="11">For instance, the charge of plagiarism in the domain of cinema seems to have a significantly diluted charge. Bollywood has been accused frequently of aping Hollywood, although this does not stand in the way of it immense popularity and renown. Ramesh Sippy's Sholay is regarded as having been influenced by John Sturges' The Magnificent Seven, itself being similarly 'influenced' by Akira Kurosawa's The Seven Samurai. On the modern definition of originality which requires us all to be 'perfectly uninfluenced', this qualifies as plagiarism. This definition however did not stand in the way of Sholay becoming an iconic film for Indian cinema.</a></p>
<p class="discreet"><a name="12">Respectively The National Academy of Legal Studies and Research (NALSAR), the National Law School of India University (NLSIU) and the National University of Juridical Sciences (NUJS).Although this sample is not sufficiently representative to make statistically kosher extrapolations – indeed, I make no such claim - I think the responses I received affirmed certain interesting observable trends about student research, that would seem commonsensical to anyone who teaches in India. To that extent, I think this data yields some interesting starting points for the theme of the current paper.</a></p>
<p class="discreet"><a name="13">Macfarlane, R., 2007. Original Copy: Plagiarism and Originality in Nineteenth-Century Literature, Oxford: Oxford University Press. p.2</a></p>
<p class="discreet"><a name="14">Ibid, p.4</a></p>
<p class="discreet"><a name="15">Ibid</a></p>
<p class="discreet"><a name="16">Liang, L., 2009. A Brief History of the Internet from the 15th to the 18th Century. In N. Rajan, ed. <i>The Digitized Imagination</i>. Routledge India, pp. 15-36.</a></p>
<p class="discreet"><a name="17">Ibid</a></p>
<p class="discreet"><a name="18">Schoff, R.L., 2004. Freedom from the Press: Reading and Writing in Late Medieval England. Harvard University. Available at: </a><a class="external-link" href="http://sunzi.lib.hku.hk/ER/detail/hkul/3516592">http://sunzi.lib.hku.hk/ER/detail/hkul/3516592</a>. cited in Liang, L., 2009. A Brief History of the Internet from the 15th to the 18th Century. In N. Rajan, ed. The Digitized Imagination. Routledge India, pp. 15-36.</p>
<p class="discreet"><a name="19">Ibid</a></p>
<p class="discreet"><a name="20">For instance the ‘epidemic of plagiarism’ language typified in this BBC article Precey, Matt. “Study shows 'plagiarism epidemic'.” BBC 17 Jan 2008. 13 May 2008 <</a><a class="external-link" href="http://news.bbc.co.uk/2/hi/uk_news/england/cambridgeshire/7194850.stm">http://news.bbc.co.uk/1/hi/england/cambridgeshire/7194850.stm</a>>.</p>
<p class="discreet"><a name="21">Supra n. 12, at p. 17</a></p>
<p class="discreet"><a name="22">See Voltaire, 1824. <i>A philosophical dictionary: from the French</i>, J. and H. L. Hunt. (Accessed from Google Books)</a></p>
</div>
<h2><span class="Apple-style-span">Also see these:</span></h2>
<div>
<div>
<ul>
<li><a class="external-link" href="http://epw.in/epw/uploads/articles/15759.pdf">Economic and Political WEEKLY</a></li>
<li><a class="external-link" href="http://originalfakes.wordpress.com/2011/03/03/epw-article-on-plagiarism/">Originalfakes</a></li>
<li><a class="external-link" href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1775582">Social Science Research Network</a></li>
</ul>
</div>
</div>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/plagiarism-in-indian-academia'>https://cis-india.org/a2k/blogs/plagiarism-in-indian-academia</a>
</p>
No publisherprashantIntellectual Property RightsCopyrightAccess to Knowledge2014-05-29T05:55:27ZBlog EntryComments to the Ministry on WIPO Broadcast Treaty (March 2011)
https://cis-india.org/a2k/blogs/wipo-broadcast-treaty-comments-march-2011
<b>As a follow up to a stakeholder meeting called by the MHRD on the WIPO Broadcast Treaty, CIS provided written comments on the April 2007 Non-Paper of the WIPO Broadcast Treaty, emphasising the need for a signal-based approach to be taken on the Broadcast Treaty, and making it clear that India should continue to oppose the creation of new rights for webcasters.</b>
<p>On February 22, 2011, the Ministry of Human Resource Development held a meeting to decide on the Indian position on the WIPO Broadcast Treaty. The Ministry asked the participants at the meeting to send in written submissions on four matters. We sent in submissions on those four issues, as well as a few others.</p>
<h2>Comments on the non-paper for the WIPO Broadcast Treaty by the Centre for Internet and Society</h2>
<p>On February 23, 2011, the Ministry of HRD had asked for comments on four matters:</p>
<ol>
<li>
<p>Article 3 of the Non-paper which was circulated earlier</p>
</li>
<li>
<p>Term of protection for signal</p>
</li>
<li>
<p>Nature of limitations and exceptions</p>
</li>
<li>
<p>Protection of signal and retransmission</p>
</li>
</ol>
<p>We have made submissions on those and a few other matters as well. Unless noted otherwise, all comments made in this note pertain to the final non-paper (April 2007) and not the draft non-paper (March 2007).</p>
<h2>Article 3</h2>
<p>Article 3 of the draft non-paper that was circulated (March 2007) for comments from country delegates stated:</p>
<blockquote>
<p>3. Scope of Application</p>
<p>The provisions of this Treaty shall not provide any protection in respect of</p>
<blockquote>
<p>(i) mere retransmissions;</p>
<p>(ii) any transmissions where the time of the transmission and the place of its reception may be individually chosen by members of the public (on-demand transmissions); or</p>
<p>(iii) any transmissions over computer networks (transmissions using the Internet</p>
<p>Protocol, “webcasting”, or “netcasting”).</p>
</blockquote>
</blockquote>
<p>A number of people present at the recent MHRD-organized meeting noted that “mere retransmissions” is a confusing term. In the revised non-paper (April 2007), it has been clarified that protection is not granted to third parties for merely retransmitting another’s signal (Art. 3(4)(i)).</p>
<blockquote>
<p>3. Specific Scope and Object of Protection</p>
<blockquote>
<p>(4) The provisions of this Treaty shall not provide any protection</p>
<blockquote>
<p>(i) to retransmitting third parties in respect of their mere retransmissions by any means of broadcasts by broadcasting organizations;</p>
<p>(ii) to any person for transmissions where the time of the transmission and the place of its reception may be individually chosen by members of the public (on-demand transmissions); or</p>
<p>(iii) to any person for transmissions over computer networks</p>
</blockquote>
</blockquote>
</blockquote>
<p>In addition, Art. 3(4)(iii) is currently ambiguous since it is not clear whether “retransmissions” are subsumed under the word transmission. By allowing for separate rights for retransmission over computer networks, the Treaty allows for the creation of two classes: traditional broadcasters who will have rights over retransmissions over computer networks, and all other persons who will have no rights over transmissions. Thus, if “retransmission” is not subsumed under the word “transmission”, it would be advisable to alter that clause to read “<i>to any person for transmissions or retransmissions over computer networks</i>”.</p>
<p>Lastly, Art. 3(4) should additional prevent protection for persons broadcasting materials for which they have not acquired copyright, or for broadcasting materials in the public domain.</p>
<h2>Term of Protection of Signals</h2>
<p>No term of protection should be provided. As was noted by the US government in its response to the draft non-paper, it is questionable “whether a 20-year term of protection is consistent with a signal-based approach”. The Brazilian delegation also states: “Article 13 should be deleted. A twenty-year term of protection is unnecessary. The agreed “signal-based” approach to the Treaty implies that the objected of protection is the signal, and therefore duration of protection must be linked with the ephemeral life of the signal itself.” Thus, a term is only needed if we stray away from a signal-based approach. As we do not wish to do so, there should be no term of protection.</p>
<h2>Limitations and Exceptions</h2>
<p>The limitations and exceptions (L&E) currently provided for allow for mirroring of copyright L&E limited by a Berne-like three-step test.</p>
<p>However, reasons for providing protection over broadcasting are not the same as those for copyright. For instance, a country may wish to make exceptions to signal protection for cases such as broadcast of a national sport, as India has done with the Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharati) Act.</p>
<p>This might well afoul of the three-step test proposed in Article 10(2). Furthermore, a country may wish to limit the application of broadcasters rights for national broadcasters (whose programming is paid for by taxpayers, and thus should be available to them), but may not be able to do so under the provisions of Article 10(2). Thus, Article 10(2) should be deleted, and Article 10(1) should be expanded to include issues of national interest and for free-to-air broadcast signals.</p>
<h2>Protection of Signal and Retransmission</h2>
<p>It should be a sine qua non condition of India’s that that this be a purely signal-based treaty with no fixation or post-fixation rights. Thus, it should restrict itself to protection of signals, and simultaneous retransmission.</p>
<p>As a result, no separate right to prevent unauthorized “decryption” should be granted, since signal-theft is already a crime. For instance, this provision would also cover decrypting an unauthorized retransmission without authorization from the retransmitter. This provides the unauthorized retransmitter rights, even though s/he has no right to retransmit. This leads to an absurd situation.</p>
<p>As stated by the Brazilian government:</p>
<blockquote>
<p>“[Article 10 of the draft non-paper and Article 9 of the non-paper] is inconsistent with a “signal-based approach”. It creates unwarranted obstacles to technological development, to access to legitimate uses, flexibilities and exceptions and to access to the public domain. It does not focus on securing effective protection against an illicit act, but rather creates new exclusive rights so that they cover areas unrelated with the objective of the treaty, such as control by holder of industrial production of goods, the development and use of encryption technologies, and private uses. The prohibition of mere decryption of encrypted signals, without there having been unauthorized broadcasting activity, is abusive.”</p>
</blockquote>
<h2>Other comments</h2>
<h3>Article 7</h3>
<p>Article 7 of the non-paper provides broadcasters rights post-fixation (“Broadcasting organizations shall enjoy the exclusive right of authorizing … the deferred transmission by any means to the public of their fixed broadcasts. ”). This is contrary to a signal-based approach. A signal-based approach would necessarily mean that it is only signal theft (which happens only via unauthorized simultaneous retransmission) that should be protected. Deferred transmission should implicate the rights of the owner of copyright, but not of the broadcasting organization.</p>
<h3>Article 4</h3>
<p>As suggested by the Brazilian government, Article 4(1) which proposes a non-prejudice clause should be amended to add the words “and access to the public domain” at its end. This is consistent with the WIPO Development Agenda.</p>
<h3>Article 5</h3>
<p>India should re-iterate its suggestion to add the following to the definition of “broadcast” under Art. 5(a): “‘broadcast’ shall not be understood as including transmission of such a set of signals over computer networks. ”</p>
<p>Further, the phrase “general public ” should be retained in Art.5 (as was present in the draft non-paper), and should not be made into “public”. The danger is that a limited public (say family members) could possibly be covered by the term “public”, while they will be excluded from “general public”, which in any case is the target audience of all broadcast.</p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/wipo-broadcast-treaty-comments-march-2011'>https://cis-india.org/a2k/blogs/wipo-broadcast-treaty-comments-march-2011</a>
</p>
No publisherpraneshAccess to KnowledgeIntellectual Property RightsBroadcastingSubmissionsTechnological Protection Measures2012-12-14T10:29:20ZBlog Entry