Centre for Internet and Society

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

nehaa — 2014-07-14T05:40:27Z

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

Thank you, Mister Chair.

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

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

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

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

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

Thank you, Mr. Chair.

Video

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

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

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

nehaa — 2014-07-21T17:56:24Z

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

Thank you very much, Mr. Chair.

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

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

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

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

Video

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

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

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

nehaa — 2014-07-21T17:55:28Z

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

Hon'ble Chair

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

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

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

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

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

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

nehaa — 2014-07-22T04:24:23Z

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

View Parts A and B here and here

Preliminary

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

Methodology and Preliminary Findings

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

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

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


Figure 1


Figure 2

Observations on Functions


Figure 3

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

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

Takeaways for the NIIPR

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

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

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

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

nehaa — 2014-08-07T10:44:05Z

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

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

Preliminary

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

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

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

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

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

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

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

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

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

Technical Assistance from Broadcasters

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

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

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

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

Scope of Protection: Article 6

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

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

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

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

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

Rights of Broadcasters: Article 9

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

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

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

Comments by NGOs

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

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

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

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

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

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

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

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

Chair’s Conclusions

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

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

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

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

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

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

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

Preventive Detention for Copyright Violation: Karnataka Amends the 'Goondas' Act

nehaa — 2014-08-13T12:46:51Z

Last week, the Government of Karnataka amended the Karnataka Prevention of Dangerous Activities of Bootleggers, Drug-Offenders, Gamblers, Goondas, Immoral Traffic Offenders and Slum Gamblers Act, 1985 (“the Karnataka Goondas Act”). The Karnataka Goondas Act would now also apply to offences under the Indian Copyright Act, 1957 and the Information Technology Act, 2000. This article presents an overview on the various provisions of this law and discusses the potential impact of the amendment.

The blog post by Nehaa Chaudhari was first published on SpicyIP on August 13, 2014.

Goondas and Goondas Acts

Now used in ‘Indian English’ to mean a ‘hired thug or bully’, goonda/gunda seems to have Hindi/Urdu origins. Incidentally, thug itself has Hindi origins, with its meaning encompassing a range of criminals from robbers to murderers to gangs of criminals, or anti-social elements.

In 1923, the Goondas Act (India’s first) was enacted in Bengal. As per the Act, a goonda residing within, habitually frequenting or visiting Culcutta either by herself/himself or as part of a gang, committing/has committed/assisting in the commission of/is about to commit a non-bailable offence against person or property, or the offence of criminal intimidation or causing breach of peace was liable for action under this legislation. Similar laws were soon enacted across the country, including the Central Provinces and Berar Goondas Act, 1946 of Madhya Pradesh, (later struck down as unconstitutional in State of Madhya Pradesh v. Baldeo Prasad), the Uttar Pradesh Control of Goondas Act, 1970 (see: an illustrative decision); the Rajasthan Control of Goondas Act, 1975 (see: an illustrative decision); The Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Goondas, Immoral Traffic Offenders and Slum-Grabbers and Video Pirates Act, 1982 (legislation prior to the 2004 amendment available here), and the Karnataka Prevention of Dangerous Activities of Bootleggers, Drug-Offenders, Gamblers, Goondas, Immoral Traffic Offenders and Slum-Grabbers Act, 1985, which was amended a few weeks ago.

While these legislations are broadly similar in their object – that of curtailing the criminal activities of ‘goondas’ with provisions for removal as well as preventive detention, there is a variation in scope of the legislation. Karnataka and Tamil Nadu having extended the application of their respective Goondas Acts to a larger number of activities, including video piracy – which is the focus of this post.

The Karnataka Goondas Act: What Remains and What has Changed

Scope and Definition
Enacted in 1985 to curb activities of “anti-social” elements, which have frequently disturbed the “even tempo of life” especially in “urban areas”, the Karnataka Goondas Act extended to ‘bootleggers, drug offenders, gamblers, goondas, immoral traffic offenders and slum grabbers’. Amongst others, the 2014 amendment, which comes into effect “at once”, extends the scope of this legislation to “video or audio pirates” and “digital offenders”.

As per the new amendment, Section 2(iv) of the Act first refers to a “digital offender” as ‘when he is engaged, or is making preparations for engaging, in any of his activities as a digital offender, which affect adversely or are likely to affect adversely the maintenance of public order. An Explanation to Section 2 under Clause (f) specifies that a “digital offender” is any person who knowingly or deliberately violates for commercial purposes any copyright law in relation to any book, music, film, software, artistic or scientific work and also includes any person who illegally enters through the identity of another user and illegally uses any computer or digital network for pecuniary gain for himself or for any other person or commits any of the offences specified under section 67, 68, 69, 70, 71, 72, 73, 74 and 75 of the Information Technology Act, 2000.

These mentioned sections (67-75 of the IT Act), refer to a variety of measures which penalize refusal to decrypt information, publication of obscene information, access or attempts to access a ‘protected’ computer or network, misrepresentation, and breach of confidentiality and privacy, as well as prescription of penalties for some offences. (See more here)

The requirement that the action be committed for a “commercial purpose” has been eliminated in those instances where the offence is a violation of any of the listed sections of the Information Technology Act, 2000.

A “video or audio pirate” as defined under amended Section 2(xiii) is when he is engaged or is making preparations for engaging in any of his activities as a video or audio pirate habitually for commercial gain, which affect adversely, or are likely to affect adversely the maintenance of public order. The Explanation to Section 2 under amended Clause (o) states that a “video or audio pirate” means a person who commits or attempts to commit or abets the commission of offences of infringement of copyright habitually for commercial gain, in relation to a cinematograph film or a record embodying any part of the soundtrack associated with the film, punishable under the Copyright Act, 1957.

The Explanation to amended Section 2 lays down the conditions in which public order shall be deemed to have been affected adversely or shall be deemed likely to be affected adversely, viz. that if any of the activities of any of the persons referred to in this clause directly or indirectly, is causing or is calculated to cause any harm, danger or alarm, or a feeling of insecurity, among the general public or any section thereof or grave or widespread danger to life or public health.

Preventive Detention Orders
The amendment now means the State Government accordingly has the power to detain audio and video pirates and digital offenders, to prevent them from acting in a manner “prejudicial” to public order. In the first instance, such an order may not be for more than three months, it may be extended to a period of twelve months (Section 13), three months at a time, passed for the commission or the suspicion of commission of various offences, including copyright infringement, which under the Copyright Act, 1957 can only be determined by a court of law and is subject to subsequent appeals.

The 2014 amendment also modifies Section 17, by virtue of which no order of detention can be made under the National Security Act, 1980 against any of the persons named under the Karnataka Goondas Act, including audio or video pirates or digital offenders.

Section 8 requires grounds of detention to be disclosed to the detainees within five days of their detention, but not when it might not be in the public interest to do so.

Anomalies
This recent amendment to the Karnataka Goondas Act has resulted in anomalies. There are probably more; but two come to mind straight away.

First- preventive detention under the Karnataka Goondas Act means that the person arrested need not be produced before a magistrate immediately- there is a significantly long review process and detention may continue for a period of one year. This is for offences under the Information Technology Act, 2000, under which persons arrested have to be produced before a magistrate. This is also for offences under the Copyright Act, 1957, under which a person may be arrested only when found guilty of an offence by the court, whereas the Karnataka Goondas Act allows arrest on mere suspicion. Further, persons detained under this legislation cannot secure bail.

Second- the amendments to the Karnataka Goondas Act negate the exceptions laid out under the Copyright Act, 1957. While a reading of the Karnataka Goondas Act suggests that copyright infringement for commercial purposes falls under the purview of the legislation (and therefore non -commercial uses are excluded), however, under its provisions, persons may be detained (preventively) on mere suspicion as well. Therefore, even if a person were to be performing an activity permitted under the Copyright Act, 1957 (for instance, converting a coyrighted work into a machine readable format for the benefit of persons with disabilities), this person could be preventively detained on the suspicion of engaging in this activity for commercial purposes.

Constitutional Validity

Legislative Competence
The legislative competence of the Karnataka Government in amending the Karnataka Goondas Act to apply to audio and video pirates as well as to digital offenders is moot. Prima facie, these amendments seem to be unconstitutional.

Article 246 read with List I (Union List) of the Seventh Schedule of the Constitution of India specifies those subjects on which the Centre has the authority to make laws. Offences related to and committed by “video or audio pirates” or “digital offenders” as explained under the Karnataka Goondas Act are subjects on which the Centre has the authority to make laws, by virtue of the provisions relating to posts and telegraphs; telephones, wireless, broadcasting and other like forms of communication (Entry 31 of List I) and patents, inventions and designs; copyright; trade-marks and merchandise marks and merchandise marks (Entry 49 of List I).

Article 246 read with List II (State List) of the Seventh Schedule of the Constitution of India specifies those subjects on which the States have the authority to make laws. Seemingly, the Government of Karnataka may have chosen to make laws relating to “video or audio pirates” and “digital offenders” Entry I of List II, i.e., public order. It is my submission, however, that these offences would not fall under an understanding of “public order” and this amendment would still remain unconstitutional.

Freedom of Speech
Gautam Bhatia’s article in the Outlook (with a slightly modified version on his blog) make out the case against the recent amendments to the Karnataka Goondas Act violating Article 19(1)(a) of the Constitution of India. Bhatia argues that preventive detention under this legislation would be “prior restraint”, where government action prevents expression before it can take place, which is unconstitutional in most cases. He also argues that in order for free speech to be restricted on the grounds of “public order” under Article 19(2) of the Constitution of India, the State is required to meet a high threshold, which the Karnataka Goondas Act does not meet.

Closing Comments

The idea of introducing provisions to deal with online piracy and other ‘digital offences’ under the Goondas Act is not a new one. Mridula Chari writes that Tamil Nadu introduced such amendments to its Goondas Act in 2004 and Maharashtra in 2009, with Andhra Pradesh toying with the idea in 2010. She also writes that the Bengali and Punjabi music industries are making demands of their respective governments to introduce their own versions of the Goondas Acts and insert similar provisions. The Economic Times report on these recent amendments to the Karnataka Goondas Act also seems to suggest that these changes have been introduced for the protection of business interests. In contrast, in a detailed report, the Bangalore Mirror provides various illustrations of seemingly innocuous actions which may attract a draconian legislation, ranging from forwarding a song to a friend on WhatsApp to posting comments on social media sites.

The prospect of the protection of business interests with draconian legislations which are prima facie unconstitutional, aside from being ridiculous is deeply concerning. Widening the scope of these legislations to areas on which they have no constitutional authority to legislate, and introducing provisions with grave ramifications on fundamental rights, states in their continued and extended use of the Goondas Act are engaging in callous ill thought out actions with a deep disregard for their implications.

Nehaa is a Nalsar Law graduate. She works on intellectual property/openness law and policy at the Centre for Internet and Society, New Delhi. [Note: Due to the examination of definitions in the Act, this post is considerably longer than our standard post. Though the whole post is recommended, readers in a hurry could skip directly to headings titled "Anomalies", "Constitutional Validity" and "Closing comments" for the juicy bits.]

For more details visit https://cis-india.org/a2k/blogs/spicy-ip-nehaa-chaudhari-august-13-2014-preventive-detention-for-copyright-violation

Karnataka Goondas Act - A note on Legislative Competence

nehaa — 2014-09-06T04:47:33Z

A couple of weeks ago, we had an insightful guest post by Nehaa Chaudhari on amendments to Karnataka's Goondas Act, a draconian legislation which seeks to allow preventive detention for some types of copyright violations. Today, we have a follow up post on that, that argues that the recent amendments are unconstitutional.

This was published in Spicy IP on August 28, 2014. This post is authored by Nehaa Chaudhari and Amulya Purushothama. Nehaa works on intellectual property/openness law and policy and the Centre for Internet and Society, while Amulya is a fifth year law student at Nalsar University of Law, Hyderabad.

The recent amendments to the Karnataka Prevention of Dangerous Activities of Bootleggers, Drug-Offenders, Gamblers, Goondas, Immoral Traffic Offenders and Slum Gamblers Act, 1985 (“the Karnataka Goondas Act”/ “the Act”/ “the Goondas Act”) bring within the ambit of the Act offences under the Indian Copyright Act, 1957 and the Information Technology Act, 2000. Digital offenders and audio and video pirates, can now be punished and can be preventively detained under the new Act seemingly in order to protect public order. [See previous post examining this here]

Without prejudice to other concerns with this legislation including inter alia the use of preventive detention itself, provisions dealing with ‘expulsion from areas’ and the wide range of ‘offences’ that the Act seeks to cover, this article argues that those recent amendments that make audio and video piracy offences under the Act are unconstitutional, for want of legislative competence.

Union and State Lists

Article 246 of the Constitution empowers the Parliament and State Legislatures to legislate. Categories on which the Parliament may legislate have been laid out in List I (Union List) of the Seventh Schedule; on which the State Legislatures may formulate laws have been laid out in List II (State List) of the Seventh Schedule and on which either may legislate have been enumerated in List III (Concurrent List) of the Seventh Schedule. The power of the Parliament to formulate laws on matters in the Union List is exclusive and notwithstanding the powers of the Parliament itself and of the State Legislature with reference to the Concurrent List and of the State Legislature with reference to the State List. This exclusive power of the Parliament was also upheld in the now famous Hoechst Pharma Case.

Public Order is set out as a subject matter upon which the State Legislature can enact laws under Entry 1 of the State List. Entry 49 of the Union List enumerates Patents, Inventions and Designs; Copyright; Trademarks and Merchandise Works as matters upon which the Parliament can exclusively legislate.

Pith and Substance and Incidental Encroachment

The competence of any legislature to formulate laws is adjudged on the basis of what is known as the pith and substance doctrine. In this instance it means checking whether the substance or the essence of the Goondas Act has to deal with maintaining of public order. If this were to be the case, the incidental trenching upon matters beyond its competence as Kartar Singh put it (in this instance provisions dealing with audio and video piracy) is not all together forbidden.

However, this argument doesn’t stand. As required by the Hoechst Pharma Case, the infringement/encroachment has to be necessarily incidental to effective legislation by the state with respect to matters under List II. The newly introduced offences dealing with audio and video pirates are not necessarily incidental to pursuing the intention behind the Goondas Act as a whole (proceeding with the assumption that this intention is justified), which is to maintain public order and to provide for preventive detention of persons (bootleggers, drug offenders, gamblers, goondas, immoral traffic offenders) who are recognized by the Act as antisocial elements, particularly since there is no logical link between these particular offences and the maintenance of public order.

It would be worthwhile here to understand what exactly is meant by public order in the State List. The phrase was properly defined in the case of Indrajit Barua where the Delhi High Court held that for an illegal activity to qualify as threatening the public order, it must affect the community or the public at large. It was held that there was a difference between law and order and public order and that this difference was rooted in the degree and extent of … impact upon society. The Bombay High Court in the Nathwani case held that public order is the absence of public disorder involving breaches of local significance in contradistinction to national upheavals , such as revolution civil war… . The Supreme Court in Ramlila Maidan incident even held that if public order is disturbed it must lead to public disorder… whereas every breach of peace might not always lead to public disorder.

It is therefore, patently clear that offences under the Copyright Act, 1957 do not affect public order as understood in the legal sense simply because these offences while unlawful would not cause public disorder as has been envisioned by the court. Ergo, it follows that the true character of these amendments to the law, is not to preserve public order.

Even if it could somehow be proven that the offences added to the Act were a matter of public order, as held by the cases of Prof. Yashpal and Kerala State Electricity Board, when an entry is in general terms in List II (Entry 1- Public Order) and in more specific terms in List I (Entry 49 Patents, Copyright et al.), the entry in List I takes effect regardless of the entry in List II.

Furthermore, in this instance, the infringement on a matter under the Union List is not merely incidental, as the purpose sought by the Goondas Act, and the methods it adopts (preventive detention), stand in direct contradiction to the purpose of the Copyright Act, 1957. Copyright laws were enacted to incentivize innovation and to protect the intellectual property rights of individuals. In furtherance of this, offences under the Copyright Act, 1957 are punishable with imprisonment up to 3 years, the police have the power to seize infringing copies, the courts have the power to order the destruction of these copies. And there also exist fair-dealing provisions that need to be accounted for. A provision that allows preventive detention for copyright infringement is therefore not only disproportionate, but also incongruous in this context, leading to absurdities defeating the purpose of the legislation. Furthermore, this amendment amounts to an addition to the Copyright Act, 1957 in an indirect manner. Therefore in the guise of an incidental provision, the state legislature has altered the nature of the Act, and therefore engaged in a colourable exercise of power.

Therefore, subject to other reservations that one has with this legislation, due to a lack of legislative competence, at the very least, the amendments dealing with audio and video piracy should be repealed, applying the doctrine of severability expounded in Abdul Quader , R.M.D Chamarbaugwala and KihotoHollohan.

For more details visit https://cis-india.org/a2k/blogs/spicy-ip-nehaa-chaudhari-august-28-2014-karnataka-goondas-act-a-note-on-legislative-competence

Pervasive Technologies Project Presentations at the 4th Global Congress, 2015

nehaa — 2016-01-21T16:33:41Z

These are the presentations made by the members of the PT Project team at the 4th Global Congress on Intellectual Property and the Public Interest, 2015 at National Law University, New Delhi.

Nehaa Chaudhari: The Curious Case of the CCI: Competition Law and SEP Regulation in India
Amba Uttara Kak and Maggie Huang: Rethinking Music Copyright Management in the Age of Digital Distribution: Business Models, Licensing Practices and Copyright Institutions in India
Rohini Lakshané: Patent Landscaping in the sub-$100 Mobile Device Market in India
Anubha Sinha: IP in Mobile Applications Development in India

For more details visit https://cis-india.org/a2k/blogs/pervasive-technologies-project-presentations-at-the-4th-global-congress-2015

Report of the 30th Session of the WIPO SCCR by the Centre for Internet & Society

nehaa — 2016-04-04T14:39:05Z

This report was edited by Nehaa Chaudhari, Programme Officer; compiled with assistance from Nisha S.K., Administrator, and, Aarushi Bansal, Amulya P., and Saahil Dama, interns.

I. Broadcast Treaty Negotiations

Day 1: June 29, 2015

Opening Statements from Regional Coordinators

Japan, speaking for Group B, said that the Group continued to attach importance to the negotiation of the Broadcast Treaty. It emphasized the importance of the information session by technical experts to strengthen the understanding of technical issues. A better understanding of the legal aspects and language of the Treaty text would prove advantageous during Treaty negotiation.

It acknowledged that the presentation by Professor Kenneth Crews indicated that the Member States required an informative reference to adopt the limitations and exceptions. It recommended that the reference be made more user-friendly and accessible. Additionally, it proposed for an exchange of national experiences and a background check on the collection of outcomes.

Germany spoke next, on behalf of the Central European and Baltic States (CEBS). It supported a "forward-looking approach that would take into account the technical progress achieved in broadcasting systems so far". It argued for the inclusion of new media platforms used by broadcasting organizations into the Treaty.

It appreciated Kenneth Crews' study on limitations and exceptions for libraries and archives.
Germany believed that progress on these issues would be facilitated if the committee agreed on common objectives. It wanted to exchange best practices on both - limitations and exceptions for libraries and archives, and limitations and exceptions for educational and research institutions and for persons with disabilities.

Nigeria, on behalf of the African group, wanted equal time to be given to both the issues on the agenda - the Broadcast Treaty and limitations and exceptions. The African Group supported a balanced Treaty on protection of broadcasting organizations as per the mandate of the 2007 General Assembly. It welcomed Kenneth Crews' study on copyright trends. It also suggested a discussion on copyright exceptions for museums.

Argentina, speaking on behalf of GRULAC (Group of Latin American and Caribbean Countries), asked for equal time be given to all the issues on the agenda. This view was also supported by Mexico.

On behalf of the Asia Pacific group, Pakistan supported a balanced Treaty which followed the signal-based approach, for protecting broadcasting organizations as per the mandate of the 2007 General Assembly.

Belarus, representing the Central Eastern and Caucasian Countries, wanted a Diplomatic Conference for the conclusion of the Treaty soon.

The European Union (EU) stated that in building consensus on the Broadcast Treaty, the broad aim should be to make a meaningful Treaty that would be relevant to technological realities and needs of broadcasting organizations in the 21^st century.

Information Session on Broadcasting

Preceded by opening statements by regional groups and countries, the main event on Day 1 was an information session on broadcasting. The panel consisted of George Twumasi, Deputy Chairman and CEO of ABN Holdings Ltd.; Daniel Knapp, Director, Advertising Research; Shida Bolai, CEO of Caribbean Communications Network Ltd.; Anelise Rebello de Sa, Legal Manager of International Business and Contracts Compliance, TV Globo; Avnindra Mohan, President, Zee Network; and Tejveer Bhatia, Singh and Singh Associates, New Delhi.

Daniel Knapp started the information session by providing an outlook on broadcasting from a technical and revenue perspective. He highlighted that traditional broadcasting was different in different countries. In Greece, for example, there was little or no cable other than at the national level, while in the Middle East and Africa, a large proportion of access came from free satellite prescribers.

Knapp stated that despite digitization paid TV homes were growing at a 6% annual rate which was expected to slow down to 3.4% by 2018. While the growth was being led by India and China, pay TV homes in the US were declining as people were moving to over-the-top services. He added that users of connected devices such as smart-phones, broadband players and smart TVs were predicted to surge to more than 8 billion by 2017. This would result in the decline of TV-usage as audiences would move to online open source resources such as Facebook, YouTube, AOL and premium services such as Amazon and Netflix.

Kanpp voiced concerns about development in technology leading to piracy. He warned that traditional threats such as smart cards on set-top boxes and new methods of piracy such as online file-sharing needed to be checked.

John Simpson of the British Broadcasting Corporation ("BBC") outlined how broadcasting had changed through the years due to advancement of technology. He stated that the world was moving from analog TVs to digital services. Digital technologies had enabled broadcasters to offer more channels and programs, providing users with more choice and control. The definitional boundaries between broadcasting and digital video libraries were becoming increasingly blurred.

He argued that broadcasting was an important tool for social cohesion, economic development and ensuring public access to information. He believed that new content delivery mechanisms, such as computer networks or smart-phones, could bridge the knowledge-gap in developing countries. In Africa, for instance, the recent transition from analog television to digital television has the potential to improve both the quantity and the quality of content on television.

However, Simpson noted that the Treaty-text had no mention of the quality and accuracy of the information being broadcasted. It failed to discuss the need for televisions and videos to produce programs which did not just represent the beliefs of the government, but had a genuine observational truth to them. Simpson stressed upon maintaining quality and developing new ways in which things are broadcasted to people.

Shida Bolai of Caribbean Communications Network Limited spoke about challenges broadcasters faced during transition to digital technologies and migration of viewers and advertisers from traditional to new platforms. She noted that while most of the Caribbean was still grappling with standards and infrastructure to go digital, Bahamas and Surinam had already made the change. Legal protection offered to broadcasters in the Caribbean was inadequate and piracy in the form of CDs or fraudulent satellite use and internet were issues yet to be tackled.

Piracy was the result of the costly distribution of content on the internet leading to the broadcasters obtaining expensive licenses. Hence cable-operators pirated signals and free broadcasters had to look for new content. This showed that broadcasters were given inadequate protection. Bolai also indicated that it was difficult to invest in high-cost sports programmes due to financial losses arising out of piracy. She highlighted the need for the indigenous community to find primary channels of production and distribution.

George Twumasi from ABN Holdings LTD said that the central challenge for broadcasting in Africa was the creation of commercially viable content by Africans for Africans. If such content increased, the broadcast industry would grow to become a $75 billion industry over the next 15 years. With respect to piracy, he stated that Africans did not like foreign content and that it was not a pressing concern for them. He argued that the best way to stop piracy was through invasive technologies.

Twumasi wanted to create a lobby group to facilitate the growth of broadcasting. Given Africa's history, he emphasized on its need to define its role as a broadcaster and to entertain the world through its powerful mythology and culture.

Yaw Owusu from University of Ghana stated that copyright could be protected to the extent of monetizing what existed in the marketplace. He explained that the business strategy would operate by broadcasters driving the digital content and revenue system. Intellectual property and ownership would be protected through encryption software. Since English content had also been pirated in Africa, expert enhancement of existing content was required.

Anelise Rebello de Sa from International Business and Contracts Compliance, TV Globo said that the most important challenge to Latin American broadcasters were not other broadcasters, but Google, Facebook, Twitter and piracy. Audiences for the Brazilian advertising market had grown from 10 million in 2000 to 33 billion in 2014. Traditional TV had 72% of the advertisement market. Piracy was a problem since Brazilian signals would be picked up and used by broadcasters in other countries.

She also said that online piracy and set-top boxes were major causes for concerns. She explained the functioning of piracy using the example of Globo in Japan. Pirated content on Globo could not be removed since it did not originate in Japan. Hence the protection was inadequate.

Fingerprint technology would be useful against piracy since it automatically removes instead of comparing videos with one another. She concluded by stating that television also needed an updated legal framework and dependant businesses and investments to continue.

Avnindra Mohan from Zee Telefilms stated that by end of 2016, all of India would be on digital TV. The TV industry was set to increase its revenue from 7.8 billion USD to 12.1 billion USD in the future. However, piracy through DTH box cloning, IPTV, cable TV, inter-country smuggling and over the internet was a major concern. With regards to web-initiated transmissions, he argued that as long as the signal was hacked by someone, broadcasters should have the right to prevent that piracy or illegal transmission from happening.

Day 2: June 30, 2015

Day 2 began with the Chair calling for statements from Member States and regional groups on general principles and key objectives of the proposed Broadcast Treaty.

Regional Group Statements on General Principles

Japan, on behalf of Group B, reiterated that after the session it hoped to move forward with the discussion in line with the 2007 General Assembly mandate and to convene the diplomatic conference at the earliest opportunity.

Speaking on behalf of the Asia Pacific Group, Pakistan stated that it supported the development of an international treaty based on the mandate of the 22 ^nd SCCR which was reiterated in 2012. It sought an agreement based on traditional broadcasting and cable casting; a balanced text that prioritized the interests of all the stakeholders. Pakistan said that the original mandate without new layers of protection would achieve this balance.

Nigeria, representing the African Group, stated that it wanted a pragmatic and effective outcome in conformity with the 2007 mandate, and looked forward to moving towards a Diplomatic Conference soon. Noting the efforts made at the 29^th SCCR, it welcomed the discussion on broadcasting protection. Nigeria concluded by reaffirming its commitment for constructive development in order to protect broadcasting rights within the directives of the 2007 General Assembly mandate.

Romania supported a Treaty that would provide adequate protection in line with modern technological developments. It sought a broad consensus on the signal-based approach. It also stated that it hoped to recommend the convening of a Diplomatic Conference to the General Assembly.

The EU considered the Broadcast Treaty to be a high priority. It wanted a treaty that would be meaningful in view of the technological realities and the needs of broadcasting organizations in the 21^st century. It argued that both - traditional broadcasting and broadcasting over the internet- - required international protection against piracy.

Iran supported the statements made by Pakistan and the Asia Pacific group. It wanted the Treaty to follow the signal-based approach decided in the 2007 General Assembly. Iran only wanted protection for traditional broadcasters. It argued that expanding protection to transmissions over the internet raised concerns of rising transaction costs and reducing access to broadcast in developing countries. It sought an assessment of the impact of the Treaty on the public domain, access to knowledge, freedom of expression, users, performers and authors.

South Korea believed that after the introduction of the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organization ("Rome Convention"), the protection of broadcasting organizations had not been updated to reflect advances in technology. Therefore, it wanted the Treaty to respond to changes in technology.

National Statements on General Principles

Japan wanted the SCCR to end with a recommendation for convening a Diplomatic Conference to adopt the Treaty. It hoped to discuss objectives of protection and rights to be granted. It wanted to move to textual work in the near future and have more elaborate discussions to expand the scope of common understanding.

The US wanted to continue discussions to obtain a general consensus on a meaningful and targeted text. In its opinion, a right that protected broadcasters against signal piracy on any platform without an extra layer of protection could attract such a consensus.

Russia wanted to adopt a new document on the protection of broadcasting organizations. It wished to confine the Treaty to traditional broadcasting, but also lay a basis for content for future protection. It suggested that new forms of broadcasting should be identified and new directions for future protection should be introduced. Russia conveyed its support to all collective decisions to be taken while discussing the text of the future Treaty, as well as a speedy adoption of a common approach.

Belarus, on behalf of the Central Asia and Eastern Europe group, hoped that the new Treaty would reflect specificities of different regions and possibilities of adaptation to changes in broadcasting.

Indonesia supported the statements delivered by Pakistan. It wanted the Treaty to be based on the 2007 General Assembly mandate and use a signal-based approach with broadcasting and cablecasting defined traditionally. It opposed the introduction of any new layers of protection and wanted to strike a balance between rights and responsibilities of broadcasting organizations.

India supported a Treaty with the 2007 General Assembly mandate and also sought the prevention of unauthorized live transmission over computer networks. It opposed expanding the mandate to include elements of webcasting, simulcasting and retransmission over computer networks or other platforms, as these were not a part of broadcasting as defined in a traditional sense. India wanted the Treaty to provide exceptions to private use, use by experts in connection with reporting of current events, use solely for the purpose of education and research and the fixation of a broadcast by means of its own facilities.

Objectives of Treaty, Scope of Protection and Object of Protections

The EU argued that there was a need to ensure that the Treaty was up to date and in line with technological advancements. It wanted protection to extend to broadcasters who used new technologies and urged for the inclusion of a broad retransmission right that would involve simultaneous retransmission and deferred retransmissions. It believed that the objective of the Treaty was to stop piracy whether it was in the form of simultaneous transmissions or organized by websites. It also expressed eagerness to go to text-based work as opposed to working on clarifications.

Speaking next, the US supported a Treaty that would respond to advancements in digital technology and address piracy concerns by eliminating loopholes that pirates could exploit. It said that piracy was a significant concern but not necessarily the suitable object for the Treaty in question. It was not a major part of broadcasters' protection, which could be resolved by enforcing only signal protection.

Romania, speaking next on behalf of the CBES group, stated that it believed in a Treaty that would protect broadcasters against piracy regardless of the platform. It wanted to protect cablecasting and simulcasting in addition to traditional broadcasting. It re-iterated the stand taken by US in saying that a broad retransmission right would be the way forward.

Japan believed that there was a need for separating traditional broadcasting from internet originated initial transmission. Since newer broadcasting organizations dealt with internet broadcasting, it wanted Member States to discuss methods of dealing with such a transmission.

Argentina supported a Treaty that would include broadcasters and cablecasters but would exclude internet originated transmissions except in the context of near simultaneous transmissions.

The EU noted that India, Iran, CEBS, South Africa, Argentina and Kenya seemed to agree that live signals transmitted over any platforms would be the object of protection of the Broadcast Treaty. It stated that it would support a Treaty that protected cablecasting in addition to traditional broadcasting.

Italy endorsed the stance of the EU. It explained that the broadcasting rights to fixation, reproduction of fixations and retransmissions of such fixations and protection of signals sent over the internet could find a background in Article 14 of the TRIPS. It further argued that even the idea of exclusive rights to broadcasters could find precedence in Article 14 of TRIPS and in the Rome Convention.

China argued that the Treaty should account for technological developments. While it fully supported a Treaty that only covered traditional broadcasting including cablecasting, it wanted to include simulcasting, on demand casting and near simulcasting within the Treaty.

India, in response to the EU and Italy, sought to emphasize the difference between a right to authorize and a right to prohibit broadcasting. It stated that the Broadcast Treaty should not provide for a positive right to authorize. It argued that internet companies often broadcast events based on a contract with the content creators, and such a right should not conflict with rights that may be given to broadcasters by virtue of the Treaty. India emphasized the need to stick to the signal-based approach as it balanced the interests of broadcasters and content creators. It pointed out that in cases where broadcasters doubled up as content creators, copyright law would be enough to prevent piracy.

Brazil, along with the US and South Africa, wanted to take into account the concerns of content owners in other platforms.

The US stated that the common ground would be the protection of live signals. If the signal is transmitted by any means, it should be protected. Since many broadcasters used the internet to transmit signals, it would be important to ensure that the signals thus transmitted were protected from piracy as well. It wanted a technologically neutral definition of broadcasting and argued that this would still be limited to a signal-based approach because there were no rights over the content per se.

India clarified its stance and stated that while it did believe that unauthorized retransmissions over the internet should be prohibited by the Treaty, providing broadcasters with a sole right to transmission over the internet would be beyond the signal-based approach. Internet transmissions could rarely be said to be signal theft in the traditional sense.

Iran, responding to the EU, stated that it supported a Treaty that covered traditional broadcasting, cablecasting and even live retransmissions on the internet. It expressed concerns with the Treaty granting exclusive rights to broadcasters, and stated that it would support a Treaty against signal theft as long as the signals belonged to traditional broadcasters.

Chile argued that only broadcasts open to the public should be protected by the Treaty and broadcasts requiring decryption without a cable should be excluded.

The EU restated that it supported a Treaty with technologically neutral terminology. It expressed concerns with the Treaty benefitting all kinds of broadcasters since technological developments had enabled everyone to become a broadcaster. Italy supported this caveat and stated that a workable definition of a "broadcast organization" would be an organization that transmits a broadcast signal. A "broadcast signal" would be a signal that includes only broadcasts or cablecasts; and broadcasting does not include the transmission over computer networks. It believed that such a definition would differentiate between broadcasts, cablecasts and webcasts.

Japan stated that broadcasting organizations would have to be defined as broadcasters in the traditional sense since the idea of a broadcasting organizations had not changed despite technological advancement. It wanted to start with the definition of broadcasting as it was laid out in the WIPO Performances and Phonograms Treaty ("WPPT") and the Beijing Treaty on Audio-Visual Performances, 2012 ("Beijing Treaty").

Nigeria stated that broadcasting should be clearly defined before broadcasting organizations since the two were inevitably linked.

Russia believed that the discussion was becoming overly complicated. It argued that a simple method of understanding broadcasting would suffice to define broadcasting and broadcasting organizations. The means used by broadcasters were of little concern to Russia.

The US stated that along with being forward-looking, the definitions also needed to be consistent with treaties passed by the WIPO in the past, including the WPPT and Beijing Treaty. Broadcasting organizations should be defined as entities that would assemble and schedule programmes carried by the signal keeping in mind the distinction between a signal and a program.

As per the EU, the definitions in Document SCCR 27/2 needed to be discussed as they covered important elements of broadcasting such as broadcasting by wireless means including satellite for public reception. The EU also stated that while the definition of broadcasting organizations should not include transmissions over computer networks, transmissions over computer networks could be included as a part of the object of protection.

At the end of the evening, Ann Lear, of the WIPO, intervened to stress that definitions must be adopted keeping keep in mind that many broadcasters today viewed the internet as the main platform for distribution of their broadcast in the near future and were using streaming and downloading over the internet.

Day 3: July 1, 2015

Day 3 of the negotiations began with the Chair noting the general consensus emerging in the matter of protecting live signals over any platform, and, allowing broadcasters to prohibit unauthorized access regardless of the platform from which the signal was transmitted. The Chair opened the floor for debate on whether there was a need for defining 'broadcasting organizations' or whether defining 'broadcasting' as an activity would suffice, and on whether the definitions must reflect those existing in other international treaties.

Defining 'broadcasting organizations'

The EU spoke first, stating that the definition laid out in Alternative B to Article 5 in Document SCCR 27/2 was similar to what it wanted. It believed that defining broadcasting and cablecasting was crucial to defining the beneficiaries of the Treaty. But this did not mean that it was unimportant to outline who the beneficiaries of the Treaty were.

Australia argued that the Rome Convention operated well without having defined broadcasting organizations and the same would hold true for the Broadcast Treaty as well. It further argued that the definition of broadcasting should be based on the definitions that already existed in the Beijing Treaty and the WPPT.

Serbia stated that the definition of a broadcasting organization had to conform by the definition of broadcasting. Additionally, it felt the need to define the responsibility of broadcasting organizations for collecting information and editorial functions.

Russia argued that defining broadcasting organizations would be a misstep since different countries would have different definitions of broadcasters in their national legislations. Russia relied on the fact that the Rome Convention was operating well without having defined broadcasting organizations.

Brazil stated that while it wanted clarity on who would be the beneficiaries of the Treaty it was still debating whether broadcasting organizations had to be defined in the Treaty. It supported a technologically neutral definition of broadcasting as it would encompass different countries with different regulatory regimes.

Kenya stressed that it needed clarity on what broadcasting entailed as their national laws dealt with broadcasting in a particular manner. It required a clear definition to move things forward.

South Africa, agreeing with Kenya, spoke of its domestic legislation which defined broadcasting in several ways, and included both wired and wireless technology. It suggested accommodating different definitions of countries like Brazil and China which regulated broadcasting differently. It added that following a text-based definition would be difficult as discussions involving fundamental questions of broadcasting were constantly being raised.

Canada felt the need to examine national treatment with respect to defining or not defining broadcasting organizations. It said that a basic definition of the activity with a chance to accommodate differences in national legislations would be the best way to move forward.

The US proposed that text-based work would be more constructive in gaining clarity on these questions.

The EU commented that the definition of 'signal' could be based on the Beijing Treaty that makes a reference to public reception of sounds or images or images and sounds or representation thereof. Alternative A for Article 5 in Document SCCR 27/2 most closely reflected the definitions that already exist in other existing treaties as well. It stated that it would be sufficient to define broadcasting, cablecasting, broadcasting organizations and signal.

Romania endorsed the statement made by the EU. It stressed on the importance of defining the beneficiaries of the Treaty.

The EU intervened again to state that it was necessary to define broadcasting organizations, but that it could start with defining broadcasting based on existing treaties.

Romania intervened on behalf of the CEBS group to state that it was important to move to a text-based discussion to continue making progress. It emphasized on the need for updating the international legal framework to accord adequate protection to broadcasting organizations.

Russia supported the same proposal and stated that it was important to consolidate a text to eventually recommend convening a Diplomatic Conference.

Serbia aligned itself with the Romanian position. It further stated that it was important to identify the beneficiaries and non-beneficiaries under the Treaty.

Iran intervened to urge the commencement of text-based negotiations on the draft Treaty as there was no consensus on important concepts such as objectives, scope or objects of protection of the Treaty. It supported the proposal made by Romania on behalf of CEBS. Iran also stated that deciding on convening the Diplomatic Conference in the next biennium before resolving divergent views and arriving at a consensus would be premature.

The US argued that text-based work would be the way forward. Though consensus was beginning to appear, a number of countries had not committed to anything. Hence the draft should leave options so that there is still room for negotiations. It further said that if an acceptable text was found over the next two meetings, then a Diplomatic Conference in the next biennium could have a successful outcome.

The EU stated that while there was progress on understanding different positions, a consensus was yet to emerge. Further discussions were needed on important issues such as the term of protection and technological protection measures. It aligned itself with the proposal of the CEBS group and hoped that the work would lead to a Diplomatic Conference in the next biennium.

India, South Africa, Japan, Nigeria, Senegal and Kenya also supported the CEBS proposal to move to text-based work.

Chair's Conclusions

At the end of the session on broadcasting, the Chair noted that there had been an exchange of views on the objectives of the Treaty, the scope of protection and the object of protection. While no consensus had been reached, there was greater clarity on different positions. The Chair stated that text-based work seemed to be the way forward and agreed to prepare the draft document. Further, with the exception of one delegation, there was a consensus on the protection being granted to broadcasting organizations to prohibit unauthorized use of broadcast signals in the course of a transmission over any technological platform. The Chair lastly said that the proposed timeframe for this would be to work towards the biennium when the proposed Diplomatic Conference could take place.

II. Report on Negotiations on International Instrument for Exceptions and Limitations for Libraries and Archives

Day 1: June 29, 2015

Opening Statements by Regional Coordinators

Japan spoke on behalf of Group B and stated that the presentation by Prof. Kenneth Crews (hereafter, Crews) had provided for a way forward by showing that Member States needed an informative session on this topic. This informative session should be in an accessible and user friendly environment where exchange of national experiences could take place. It believed that the SCCR should give further consideration to the objectives and principles proposed by the US in this regard.

Nigeria, on behalf of the Africa Group, wanted to establish legal instruments on this issue and on limitations on educational and research institutions for persons with disabilities. It wanted equal time to be given to all the instruments being discussed.

Representing the GRULAC, Argentina stated that the issue of limitations and exceptions for libraries and archives was of particular importance to it. Argentina hoped that it would be dealt with in a balanced way. It attached importance to the work that had been done until then and to the report prepared by Crews. It supported an open and frank discussion on the issue and was interested in the proposal made by Brazil, Ecuador, Uruguay, the African Group and India. Mexico endorsed this statement as well.

On behalf of the Asia Pacific Group, Pakistan expressed disappointment since all the issues had not received equal commitment from all Member States, particularly the issue of exceptions and limitations for libraries and archives. It stated that while there were different priorities due to different economic realities in the various Member States, inclusiveness as an ideal meant that these priorities would be accommodated.

Pakistan believed that the issue of limitations and exceptions for libraries and archives was of critical importance for individual and collective development of societies. Libraries and archives play an important role in the right to education, which remains a challenge in many developing countries due to lack of access to relevant educational and research material. While sharing national experiences and best practices was informative and useful, it was important to understand that the lack of development with regard to exceptions and limitations resulted in no decision at the 2014 General Assembly. Therefore it wanted to move to text-based work on the same.

The EU stated that the discussion could not be furthered without clarity on direction and objectives. It sought a surer understanding of what the outcome of the discussion could be to avoid wasting time and resources. It noted that the 2014 General Assembly had not provided the SCCR with a new mandate on libraries and archives. Even on exceptions and limitations for educational and research institutions and persons with disabilities, the acceptable way forward would be to encourage best practices in the broad and flexible boundaries of the current international copyright framework and not within the realm of further legally binding instruments.

Day 3: July 1, 2015

Regional Statements on General Principles

Work on exceptions and limitations for libraries and archives resumed in the afternoon session of the third day of the meeting.

Brazil, on behalf of GRULAC, believed that Crews' report documented the important role played by libraries and archives and emphasized the need for library lending services. It supported an open and frank discussion without prejudging its outcome. It was interested in the proposal made by itself, Ecuador, Uruguay, the African Group and India on the same. It also underscored the importance of ratification with respect to any Treaty relating to limitations and exceptions.

On behalf of the Asia Pacific Group, Pakistan stated that limitations and exceptions were essential requisites for all norm setting exercises. People in all countries would benefit from exceptions and limitations for libraries and archives since it would allow for materials to be accessible by all of humankind instead of being restricted to individual countries. Pakistan believed that any agreement on this would require harmonization of domestic laws and policies. It considered sharing national experiences of Member States to be beneficial in this regard. In a report to the 28^th session of the Human Rights Council, the Special Rapporteur for Cultural Rights also supported the harmonization of exceptions and limitations in copyright for libraries in education.

Representing the African Group, Nigeria underscored the fundamental role of libraries and archives in facilitating access to knowledge for human and societal development. The principle of exceptions and limitations meeting specific objectives is an essential part of international instruments. As evidence, Nigeria pointed out legal precedents that contained specific limitations protecting educational institutions and facilitating access to learning. It sought a text-based discussion on the text prepared by the African Group, Brazil, Ecuador, India and Uruguay and the Chair's informal document streamlining various proposals.

Romania stated on behalf of the CEBS group that it welcomed the updated version of the study on copyright exceptions prepared by Crews. Romania recognized the important role that exceptions and limitations would play in facilitating library services and serving the social objectives of copyright law. It stated that the three-step test provided for by existing treaties offered a framework that was wide enough for states to establish their own exceptions and limitations but conceded that it may need more guidance on best practices. It considered an approach based on exchange of best practices to be superior to a normative approach.

Japan, on behalf of Group B, relied on Crews' study to show that many countries had already introduced exceptions and limitations for libraries and archives in their domestic legal systems. It wanted further work at the SCCR to be based on the recommendations of the Chair at the previous SCCR and the presentation by Kenneth Crews. It sought for a substantive discussion at an objective and principle level as proposed by the US.

China intervened and pointed out that there already existed a Chinese legislation regarding exceptions and limitations for libraries and museums and orphan works.

The EU stated that the study conducted by Kenneth Crews was illustrative of the fact that exceptions and limitations in domestic legal systems and other instruments were adequate. It considered this to be the basis for understanding effective ways to implement exceptions and limitations in different legal systems. It believed that an approach based on exchange of best practices and mutual learning would stimulate substantive discussions. It further stated that in the absence of a mandate by the 2014 General Assembly, there was a need for further clarity on the expected outcome of these discussions.

Brazil spoke next in its national capacity and aligned itself with the statements produced by GRULAC, the Asian Group and the African Group. It considered the discussion on exceptions and limitations to copyright law to be a subject of utmost importance. It pointed out that for libraries, the activities that could be linked to copyright exceptions were preservation of copies, making orphan works, public library lending and so on.

Mexico aligned itself with GRULAC. It reiterated that its government attached importance to exceptions and limitations for libraries and archives that were aimed at facilitating copying, preservation, archiving and the dissemination of works, and, encouraging the spread of knowledge for the common good.

India intervened and pointed out that access to knowledge was lacking in many jurisdictions despite increasing trends of digitization of information. In this context, libraries and archives act as balancing forces for increased access and it was important to strengthen this balance between ownership and access. Citing Crews' study, India argued that the diverse approaches in national laws, including that of absence of limitations and exceptions in many jurisdictions, necessitated work on an international instrument for limitations and exceptions. It stated that the work of the African Group, Brazil, Ecuador and Uruguay to get more countries aligned to a document on the eleven issues for an equitable balance relating to limitations and exceptions needed to be built upon for consensus among members. The best way forward would be to draft a legal instrument, as exchange of practices did not bring the necessary urgency to the subject.

Iran aligned itself with statements made by the Asia Pacific Group and the African Group. It stated that the rights to science, library and culture were basic human rights. It believed that limitations and exceptions played a key role in creating a balance of interests in the international copyright system and empowered creativity by increasing educational opportunities and promoting access to cultural works and inclusion. It further argued that since the existing international copyright system did not address technological developments, it needed rectification. It cited the UNHRC Special Rapporteur's recommendation to the WIPO to set a core list of minimum required exceptions and limitations. Iran strongly supported work towards a legally binding international instrument for limitations and exceptions for libraries and archives, and research and educational institutions. It sought to start text-based negotiations in this regard and suggested that the proposal by the African Group, India, Brazil and Ecuador would be a good base for preparing a consolidated text.

Indonesia agreed with the statement made by the Asia Pacific Group and sought to move on to text based negotiations. It highlighted the importance of developing a legal framework to enable libraries and archives to reproduce content without the authorization of copyright holders for the purpose of education, research and inter-library loans.

The Russian Federation pointed out that it had already partially solved the problem in its domestic legislation. It sought to strike a balance between the interests of the author and that of the society.

Ecuador endorsed the statement made by GRULAC. It had a Bill in its domestic legislature to address this issue. It wanted to proceed to text-based negotiations.

South Africa aligned itself with GRULAC, the African Group and the Asia Pacific Group and emphasized the critical role of libraries archives and educational institutions in the dissemination and preservation of their cultural heritage. It also called for progress on text based work and to send a clear message to the General Assembly and the international community that the issue was important.

The US believed in the development of non-binding principles and objectives relating to national copyright exceptions and limitations for libraries, archives, and educational institutions. It noted that statements of such principles and objectives introduced by them in earlier sessions of the SCCR had been received positively. The US further stated that it supported work through symposia or seminars to examine different approaches to national implementation of these principles. It also went on to state that libraries and archives, being central to knowledge systems, provided valuable insights to people. She referred to a document formulated by the United States which discussed the importance of enabling libraries to function properly, along with the goals the US attempted to achieve. The approach would be for the Member States to tailor the exceptions to suit their needs within the constraints of international obligations to make libraries and archives available to the world.

Pakistan agreed with the statements made by the Asia Pacific Group, the African Group and GRULAC. It was concerned with the lack of uniformity and occasional absence of exceptions and limitations for libraries, archives and educational and research institutions in some countries, which restricted a large number of people from accessing information. Pakistan argued that reformation and harmonization of the current system was essential, and that mere incorporation into domestic laws was insufficient. There was a need to engage in text-based negotiations and work towards an appropriate international legal instrument.

Cameroon also aligned itself with the position of the African Group, GRULAC and the Asia Pacific Group. It emphasized the crucial role played by libraries and the importance of providing adequate exceptions and limitations for them. Cameroon said that it was also reviewing its own national legislation on the issue.

Armenia pointed out that it was drafting a new domestic law on the issue of limitations and exceptions for libraries and archives. It also emphasized the importance of minimum international standards for countries to adopt. Armenia wanted countries to implement these limitations in their national legislations and supported a legally binding instrument for limitations and exceptions.

Sudan supported the proposal put forward by the African Group, the Asian Group, Brazil Ecuador, Uruguay and India. Citing Crews' study, it stated that with advent of the digital age, all the memory and knowledge in the world could be easily converted into accessible formats and made available on databases for researchers and educational institutions. Therefore it was necessary for the SCCR to enable students and researchers to have access to this knowledge. The EU Directives passed in 2001 and 2012, and the work undertaken by the US and UNESCO were positive steps in this regard. It wanted to work towards an appropriate international instrument such as the Marrakesh Treaty.

Aligning with the African Group, Nigeria argued that since information sharing transcended national boundaries in the digital age, national solutions would be ineffective. There was a need to balance the interests of the creators and the larger public interest. It welcomed the report by Crews and the document prepared by the Chair to stimulate discussion along with the text-based proposal of the African Group, Brazil, Ecuador, India and Uruguay.

Japan supported Group B's statements and said that libraries and archives played a pivotal role in collecting and preserving materials and providing them to the public. It cited Crews' study to argue that international differences in conditions for application of limitations and exceptions would cause problems with the increasing digitizing of materials. Principles evolved from these discussions should serve as guidelines for establishing the legal framework for libraries and archives in each Member State. Japan considered the objectives and principles document released by the US to be a good basis for discussion.

Malawi wanted discussions to be guided by Crews' report.

Uruguay supported the statements made by GRULAC, the African Group and the Asia Pacific Group. It wanted to sponsor Document SCCR 29/4 submitted by Brazil, Ecuador, India and the African Group. It believed that libraries and archives were important for culture, leisure activities and welfare of the needy sections of society. Since archivists and librarians had approached the SCCR in every session to ask for an international solution, Uruguay urged the SCCR to continue with the discussion without prejudging the result.

Malaysia considered Crews' study to be useful for deliberation. It supported limitations and exceptions that contributed to the attainment of education for all. It wanted to appoint a facilitator or a friend of the Chair to further discussion and create concrete solutions.

Algeria valued the study submitted by Crews and recognized that copyright exceptions and limitations for libraries and archives would enable the spread of cultural and scientific awareness. Algeria aligned itself with the statement made by the African group.

Congo believed that libraries and archival services had inherent rights to share knowledge and education. This would enrich cultural diversity and break the digital divide between the Global North and South. It argued that Crews' study demonstrated that domestic solutions would not solve this problem and an international instrument was necessary.

Zambia supported the statement made by the African Group. It remarked that libraries and archives played an essential role in disseminating information and provided a pool of historical knowledge which served as a base for our future. It believed that any solution should balance the interests of rights holders and that of the public.

Nepal aligned itself with the Asia Pacific Group. It stated that libraries and archives played an important role in education as they were often the only sources of materials for students and academics in countries like Nepal. An international legal instrument on exceptions and limitations would balance different interests. Nepal supported appointing a facilitator or a friend of the Chair to develop a working text on limitations and exceptions.

Australia supported the proposal given by the United States as a sound basis for developing principles and objectives of the suggested clusters. It wanted simple and immediate solutions within the existing legal framework to close the gap between ideals and the reality.

The US, agreeing with Australia, showed interest in developing principles and objectives in terms of how different countries arrived at the principles and objectives. It also agreed to filling gaps between these and find consensus on the approach.

Day 4: July 2, 2015

Approach Forward

The Chair asked the Secretariat to provide an overview of the situation on this topic. The Secretariat stated that there were two studies on the issue - the first compiled by Kenneth Crews which had updated previous studies conducted in 2008 and 2014 and another study on limitations and exceptions for museums, SCCR/30/2.

There was also a working document adopted in 2014, SCCR/26/2, that compiled the reference to eleven topics and identified them as priority topics on this issue. Two proposals had also been adopted - one which refers to objectives and principles presented by USA (SCCR/26/8) and another by the African Group, Brazil, Ecuador, India and Uruguay (SCCR/29/4). The SCCR pointed out that a chart/non-paper had been submitted by the Chair in December 2014 and that delegations were to consider this non-paper in this session.

The Chair clarified that the purpose of preparing the chart/non-paper was not to push the discussion in a particular way or to side with an issue. It was to help guide discussion in an organized fashion while remaining respectful of all views. The Chair opened the floor for comments on the same.

Speaking first, Australia was willing to work on the Chair's proposal. It believed that this should be done in a three-step process. Firstly, principles and objects as proposed by the US had to be clarified; secondly, reasons had to be identified for why those principles and objectives were not already in effect; and finally, solutions for implementing the principles and objectives had to be discussed. It believed that simple and immediate solutions should be preferred to complex solutions which would take longer to come into effect.

Brazil stated that it was ready to contribute to discussions on the non-paper drafted by the Chair as a framework for the discussion. It argued that following the framework proposed by the Chair would not exclude discussion on principles and objectives. It suggested that the discussion on principles and objectives be subsumed within the framework proposed by the Chair.

Japan questioned whether the list of issues compiled or the way discussions were structured would have had an impact on the direction taken by the SCCR.

The Chair answered that the list was not fixed and that the flexible structure of the framework allowed for discussion on other related issues also. The Chair also asked if there was consensus on moving forward on the structure outlined by him or if there were suggestions on improvements.

The US agreed with the Australian delegate on the importance of developing principles and objectives. The Chair pointed out that this discussion could be included as part of the approach within the chart/non-paper prepared by him.

The EU questioned the difference between the chart and Document SCCR 26/3. It also asked how the discussion on each issue was envisaged and whether it would be limited to a principled discussion.

The Chair responded to the first question by stating that while Document SCCR 26/3 was the source, it would be better to use the chart as a tool than to refer to a document even though it had been approved by the SCCR. To the second question, the Chair stated that while he could not predict the way in which the discussion would unfold, he foresaw a discussion which would first test whether the topic had consensus with regard to its inclusion in the topic and then try to set a principle that would be agreed upon. If solutions existed, an exchange of views based on the Australian approach of contrasting the principle with the findings in the Crews' study would take place, followed by methods of resolving the issue through exchange of best practices or an international instrument.

Day 4: July 2, 2015

Day 4 commenced from the previous day's discussion on the approach forward on libraries and archives.

Brazil spoke on behalf of GRULAC and supported the approach recommended by the Chair in the non-paper submitted to the SCCR. It believed that this allowed for flexibilities. It invited comments for improvements.

This was repeated by Pakistan on behalf of the Asia Pacific Group and Nigeria on behalf of the African Group, Iran, Malaysia, Senegal, Mexico, Tanzania, Guatemala and Zimbabwe.

On behalf of the Asia Pacific group, Pakistan appreciated the proposal on the non-paper by the Chair.

Japan, speaking for Group B, required further clarifications on the approach proposed by the non-paper and reiterated its support to a discussion based on principles and objectives as proposed by the US. The Chair expressed his willingness to offer clarifications on questions from any of the delegations.

Nigeria supported the proposal on behalf of the Africa Group.

Iran supported Pakistan and the interventions made by Brazil and Nigeria. It saw these discussions as beneficial for developing a legally binding instrument. Since discussion on substantive issues was being delayed because of procedural matters, Iran asked Member States who believed that their positions would be hindered by the non-paper to express their concerns and suggest changes in the non-paper.

Uruguay speaking on behalf of their group stated that it supported the Chair's proposal and regretted that the discussion on substantive issues was being delayed due to procedural issues which, it believed, were settled in the 27^th SCCR.

The EU welcomed the proposal but raised concerns about clarity on the expected outcome of the approach suggested by the Chair.

South Africa supported the non-paper as a basis to proceed on the discussion.

Brazil, speaking for GRULAC, believed that it had a mandate on an international legal instrument in whatever form and asked whether all Member States agreed with the approach suggested by the Chair.

The EU stated that it did not find a mandate as described by Brazil in the general assembly 2014 records. It believed that the issue of the mandate would be controversial and would lead to unproductive and repetitive discussions. It asked the Chair to clarify the situation with respect to the mandate.

The Chair stated that before changing the topic to the mandate, he wanted to get more views on the proposal.

Venezuela supported the structure laid out by the Chair. Venezuela expressed dissatisfaction at the fact that even though it was supportive towards the Broadcast Treaty negotiations, which was not a priority for them, the same courtesy was not extended to them when it came to issues that were important to developing countries such as limitations and exceptions for libraries and archives. It was unhappy at substantive discussions on the latter being delayed due to procedural quarrels. It argued that if this was an indication of the way forward, it would first want to discuss exceptions and limitations at the next SCCR so that developing countries did not have to waste their time. Venezuela pointed out that even developed countries needed solutions on the issue of limitations and exceptions. It agreed with Brazil's interpretation with regard to the mandate.

Nigeria supported the statements made by the African Group, the Asia Pacific Group and GRULAC. It stated that procedural issues should not cloud discussions over substantive issues and that the approach put forward by the Chair allowed for sufficient flexibility.

Switzerland supported the Chair's proposal.

Australia believed that discussing procedures and concerns from Member States was important to ensure clarity on the way forward.

Canada supported the statements made by Switzerland and Australia.

The US supported the Chair's proposal. While it wanted a discussion on principles and objectives, it believed that the approach suggested by the Chair would help Member States. The US did not presuppose an outcome.

The Chair welcomed this statement and assured that the principles and objectives document submitted by the US would also be used as a tool to provide clarity on issues.

Ecuador supported the chart prepared by the Chair and agreed to using that chart as a starting point to guide discussions which would include principles and objectives as proposed by the US

Tanzania, on behalf of the African Group, supported the tool prepared as a means to reach a common understanding from the point of view of the different statuses of the countries.

Japan, in its national capacity, supported the statements made by Switzerland, Canada, Australia and the US.

Guatemala also showed great interest in the working of this tool for the purpose of the discussion.

Singapore realigned itself with the Asia Pacific Group's position and supported the Chair's proposal which it felt would be helpful in guiding the substantive discussions.

Zimbabwe appreciated the proposal made by Nigeria and showed its support for a constructive engagement without prejudice.

The Chair suggested that statements by NGOs should be taken only at the stage of discussing substantive issues. The Chair also welcomed questions seeking clarifications on the intention behind the preparation of the chart. The Chair agreed to write an introduction to the chart stating that the intention was not to prejudge any outcome. He encouraged Member States to discuss the substantive issue of preservation if all concerns were adequately addressed by an introductory text.

China expressed support for the Chair's proposal.

The EU sought clarifications on whether the Chair would write an introductory text and whether he would want discussions to proceed simultaneously. After receiving affirmations on both questions, the EU asked for bilateral discussions with the Chair.

After the coffee break the Chair announced that he had written an introductory text to the chart which would be circulated and sought to start discussion on the substantive issue of preservation and invited comments on the same from experts.

Preservation

Non-Governmental Organizations

Speaking first, the International Federation of Libraries and Archives (IFLA) stated that preservation was one of the most critical, frequently exercised and widely approved activities of libraries and archives and that preservation standards varied according to the medium - whether paper, film or digital. It pointed out that preservation was required only to preserve and not to create additional copies. Libraries and archives needed to collaborate across borders to preserve cultural heritage which may exist in libraries of different countries. Hence it was important to take international action.

The International Federation of Reproduction Rights Organisations (IFRRO) stated that preservation included reproduction, digitization and other forms of electronic reproduction, for the sole purpose of preserving and archiving information. It noted that many Member States did not include exceptions for this in their domestic laws. IFRRO wanted such exceptions to conform to the Berne three-step test and not be used for commercial purposes. It argued that while works that were commercially available did not need preservation, works that were no longer commercially available required an exception so as to be preserved appropriately. It believed that libraries had an important role to play in preserving and providing access to knowledge and cultural heritage and appropriate licensing agreements needed to ensure that they can perform this role adequately.

The International Council on Archives (ICA) said that without archives, countries such as South Africa would lose their past and cultural roots. The Council argued that while preservation could be thought of as a purely national issue with the only possible solution being to encourage countries to introduce preservation standards in domestic legislations, this would ignore important international dimensions involved in the question. Materials such as diplomatic reports and reports of ambassadors sent to other countries were essential to the history of a country. Such cases required stable, harmonious legislations. Also, since preservation of modern materials involved the use of technology that was not available in all countries, preservation standards would ensure that electronic materials could be frequently migrated and copied could be stored anywhere in the world.

The Federation of International Journalists (FIJ) strongly supported its work being archived as long as parallel publication was avoided. FIJ stated that exceptions should be accompanied by fair remuneration to authors and performers since the world would be deprived of cultural works if authors in poorer countries could not make a living. Authors were in an equally vulnerable state to libraries in less wealthy countries due to contracts with publishing houses. Given the imbalance in power, the WIPO needed to address this with an international instrument.

The International Authors Forum (IAF) agreed with the technical comments made by IFFRO and FIJ and supported preservation and digitization. It pointed out that while authors around the world were vulnerable due to having low incomes, it still wanted their works to be preserved.

According to (SDM), while the publishing industry depended on copyright protection to innovate, some limitations and exceptions needed to be carefully crafted. It wanted these limitations and exceptions to comply with the Berne three-step test, taking into account the increased risk of misappropriation and misuse in the digital environment. It wanted to ensure that uses under this exception were limited to preservation and replacement and did not allow the creation of additional copies.

Civil Society Coalition (CSC) called for harmonized, broad and compulsory exceptions to the right of reproduction to allow libraries to fulfill their traditional functions and to provide access to knowledge and culture on non-commercial terms. It pointed out that the world wide web of the 1990s was not preserved and would be lost without immediate preservation thereby creating a memory hole for the 21^st century.

Knowledge Ecology International (KEI) supported preservation and wanted copyright and trade negotiators to sort out context-specific access related issues. It believed that preservation should be a minimum standard and that domestic laws must be harmonized in this regard. It also pointed out that preservation included exceptions to Technological Protection Measures, exceptions to related rights, etc. Citing Wikileaks as an example, KEI stated since knowledge about one country could reside in another, there was a need for an international treaty that harmonized minimum standards on preservation.

Union internationale des éditeurs (UIE) stated that though International Publishers Association (IPA) considered topics related to libraries and archives as unrelated to the agenda, their preservation was important nonetheless. It articulated the publishers' wish to have their publications as part of the nation's heritage. It envisioned for the libraries authorized to preserve these to be technically, financially and legally enabled to do so. UIE emphasized on the need for differentiating between copyrighted, unpublished and commercially available works and achieving a consensus between stakeholders. It mentioned the following reasons for collaboration between right holders and libraries - firstly, publish may publish works in different formats, or hold information in different databases; secondly, updated data can be preserved only with collaboration; and thirdly, agreement on the mode of providing digital files to preserve libraries was also essential.

The IPA wanted a substantive debate on preservation. It wanted distinctions drawn between unpublished works, commercially available works and works in the public domain as there were different interests and different levels of consensus amongst stakeholders for these categories. The IPA also pointed out that digital preservation of digital work required co-ordination between libraries and right-holders in understanding which copies had to be preserved, the format it had to be preserved in, and how the digital files should be provided to libraries.

The (SCR) stated that there was a need for a preservation exception in copyright law since fires and other natural disasters had often led to knowledge and cultural materials being lost. SCR considered digitization to be a reliable answer. It believed that preservation could not be done simply through licensing when exceptions for archivists were unavailable. It believed that an international treaty would also prove useful where collaborative cross-border digital preservation initiatives were taking shape.

The Transatlantic Consumer Dialogue (TACD) considered preservation of a common past as a public good. It stated that current international copyrights law made it nearly impossible for librarians and archivists to engage in cross-border operations because uncertainty and possible litigation costs prevented them from engaging in preservation. It went on to state that even consumers in developed countries wanted these exceptions and limitations so that libraries could engage in cross-border preservation initiatives.

The Society of American Archivists (SAA) cited Crews' study to state that national measures and exchange of national best practices were both inadequate and instead an international instrument on limitations and exceptions for libraries and archives was necessary. It said that archivists could not preserve knowledge and serve global users without consistent and predictable laws. It also stated that 45% of WIPO's Member States provided for no exceptions on preservation and those who did were so varied in their approaches that librarians and archivists needed an international instrument to do their job. Further, according to SAA, three steps were involved in preservation - copying, updating the copies, and making the copies available when the original copy becomes damaged, obsolete, or is lost. As preservationists, it said, it needed the right to reproduce copies, migrate them either digitally or otherwise, and make them available.

The International Society for Development of Intellectual Property (the Society) pointed out that protection of IP strengthened creativity and innovation and contributed to building of a strong knowledge economy provided that it was balanced with public interest. To be successful, it said, any solution sought by the SCCR should balance different interests. It was of the opinion that this could be done either through limitations and exceptions or exchange of best practices. The Society pointed out that practical solutions were easily achievable and more likely to produce results than long term international measures.

The Canadian Library Association (CLA) explained that preservation included reproduction in digital and physical forms for the purpose of preserving and archiving a copyrighted work. It did not believe this could be adequately done with simple licensing contracts. It also pointed out that format shifting was important to ensure works remained preserved where the original mediums became obsolete or too fragile. It ended with emphasizing the importance of cross-border initiatives toward preservation.

The German Library Association stated that digital long-term preservation necessitated technical instruments. It opined that storing archives on CDs was not enough as the CDs might become unusable after a decade. It argued that multiple copies in newer formats were required to adequately preserve works. It further stated that publishers often refused to license works for this purpose and this necessitated an international instrument that harmonized laws across countries.

The European Bureau of Library Information and Documentation Associations (EBLIDA) considered libraries' role in preserving a nation's history to be a public good. It pointed out that licenses expired according to terms of subscription. It also said that libraries could not obtain back-up files for preservation and could only access them from the producer's website which provided no guarantee of preservation. Further, it stated that even in the EU, several Member States had not put in place clear comprehensive policies to ensure preservation; and, that an international solution which provided for a minimum standard for preservation regardless of the format of publication was necessary.

Member States

Brazil spoke first and underlined the importance of preservation. It proposed using technology-neutral and format-neutral terms in an exception for preservations.

Nigeria, on behalf of the African Group, pointed out that there was an overwhelming consensus amongst NGOs on the need to have an international instrument for preservation. It felt that contracts and licensing agreements could not do the job. Crews' study was credible evidence to show the need for an international instrument.

The US pointed out that the objective of their document on principles and objectives was to enable libraries and archives to do their job. Limitations and exceptions would enable libraries and archives to preserve copyrighted works in a variety of media and formats, including migration of content from obsolete formats. Though the US appreciated Crews' study, it wished to understand why different Member States had decided differently on this issue, what works required preservation, and how preservation was affected by TPMs.

Algeria stated that exceptions in its domestic laws allowed libraries to preserve one copy of a copyrighted work. It believed that an international instrument was required to harmonize these exceptions throughout the world.

UK said that its copyright law was amended in June 2014, to enable libraries and archives to make copies of copyrighted work in any format to preserve cultural heritage. It considered the current international framework and the three-step test adequate to provide for this exception.

Chile stated that its domestic law authorized libraries and archives to reproduce works that were no longer commercially available. A maximum of twelve copies could be made for non-profit uses.

Mexico also mentioned that exceptions and limitations for libraries and archives were present in its national laws. The exceptions allowed creation of copies for preservation, especially when the original had been taken out of the catalogue, had disappeared or was in a fragile state.

Ecuador said that some of the issues it wanted to consider and discuss were the subject, the number of reproductions, the format of reproductions and the circumstances in which these reproductions could be made.

India stated its Public Internet Access Programme and Information for All depended on preservation. It considered preservation important for economic development and believed it to be the foundation for intergenerational equity. Therefore, the exceptions should be wide and public interest should be the overriding factor.

Belgium stated that as in their domestic legislation, a limit on the number of copies allowed should be put in place if the purpose is preservation. Also, all exceptions should conform to the Berne three-step test. Belgium's national law did not consider works that were exhausted or out of commerce.

The Chair stated that he had prepared the introductory paragraph to the chart which mentioned that it was merely a tool to guide discussion and not a negotiating paper or a basis for the drafting exercise. The introduction encouraged evidence-based discussion without prejudging outcomes. He opened the floor for clarifications and discussions on the same.

EU thanked the Chair and stated that it wanted an agreement on what the expected outcome was before engaging in discussion. It expressed reluctance on engaging in any normative work. It stressed that there was no consensus on an international instrument. It preferred an exchange of best practices. The EU said that while a discussion on objectives and principles as proposed by the US was important, a more important exercise would be to exchange best practices and understand the rationale behind these best practices. It called for a reworking of the study by Kenneth Crews which made data more easily accessible and regrouped discussions of national studies by topic. It suggested that the WIPO Lex search database and search engine could provide for national studies even on library exceptions.

The Secretariat stated that work on the last issue was in progress and suggested that it be discussed in detail in the next session. The Secretariat also stated that it intended to organize regional seminars to provide technical assistance in this area for those who did not have exceptions yet or wanted to upgrade their laws.

Pakistan argued that the discussion was meant to include the possibility of all outcomes and not confined to any conditionality in light of the statement by EU. The Chair confirmed the same.

Nigeria, on behalf of the African Group, stated that while it was not prejudging an outcome from the discussions, it hoped that the exchange of best practices would seen as means to enhance the discussion and not as en end in itself.

Representing the Asia Pacific Group, Pakistan stated that it also did not want to prejudge outcomes but wanted to ensure that all the factual experiences were used and analyzed in a result-oriented manner. South Africa and Nigeria aligned themselves with Pakistan's position.

EU clarified that its acceptance of the chart as a tool did not mean that any outcome was acceptable or possible.

Iran aligned itself with Pakistan and South Africa.

The session on libraries and archives ended with no agreement on an international instrument.

Day 1: July 3, 2015

Agenda item 8 - Limitations and Exceptions for teaching, research, educational institutions and persons with other disabilities

Nigeria spoke first and said that the Committee should advance work on exceptions and limitations for educational and research institutions and persons with other disabilities. It reiterated that it wanted to discuss all three issues in the future sessions of SCCR.

The Central European and Baltic states group expressed interest in sharing experiences and practices regarding copyright limitations and exceptions for educational and research institutions and for persons with other disabilities.

On behalf of the GRULAC countries, Brazil welcomed the discussion on limitations and exceptions for educational and research institutions and for persons with other disabilities. It stated that there was no study on persons with other disabilities
and their relationship with limitations and exceptions and their right to culture.

The EU welcomed discussions on how copyright could support educational and research institutions and people with other disabilities in the analogue world. It stated that these exceptions could be adopted since the existing international copyright framework had adequate legal space and flexibility. It suggested that the Committee work on adopting exceptions and limitations such that national and international frameworks concur.

China, discussing its legal provisions regarding topics on the agenda, welcomed equal education and fair regulations.

Georgia, speaking on the importance of balancing the interests of copyright holders and the society, suggested that a strong and sustainable copyright system could be established through limitation and exceptions.

The US spoke about the need for exceptions and limitations for educational purposes to be consistent with international obligations. It considered collaborations with copyright industries to be essential to its education system. Firstly, it emphasized encouraging members to adopt exceptions and limitations which allowed using copyrighted works for educational purposes while ensuring a balance between rights of authors and public interest. Secondly, it encouraged the promotion of access to educational content through innovative licensing models. Thirdly, it wanted to adopt limitations and exceptions through technological learning. Finally, it included general ideals like monetary grants for non-profit education, ensuring access of copyrighted works. Owing to technological advancements and changes in the educational environment, the US welcomed the plans of WIPO to update the study on other disabilities for discussions in the Committee.

Mexico believed that education and scientific research could be encouraged by facilitating access to protected works. It also discussed executive strategies to allow the promotion of enterprises and the development of education to encourage technological innovation.

Trinidad and Tobago supported Brazil's views. It opined that the issues of limitations and exceptions for libraries and archives, and educational and research institutes are in tandem with each other.

Supporting this view, Russia stated that these issues did not have to be divided, and a single common approach could be used to resolve this conflict. It opined that it was a way of respecting the interests of authors and copyright holders, and also providing access for promoting development of science, culture and providing opportunities to citizens.

Algeria stated that the Berne Convention had established the stages for the exceptions and limitations for research and education. It argued that the exceptions and limitations should not only fulfill the needs of developing countries but other stakeholders as well. Algeria supported exceptions for research and teaching institutes.

South Africa supported a study on the challenges faced by education and research institutions and people with other disabilities, especially in the digital environment.

Sudan supported the statements of the African Group, Asia Pacific Group and GRULAC. It spoke on the need to make balanced efforts on all the issues on the Agenda to reach a consensus. In its opinion, the Marrakesh Treaty indicated that the study on exceptions and limitations and people with disabilities was required. It supported updating the study using previous studies of the International Bureau. In conclusion, it stated that libraries and archives should benefit from limitations and exceptions and should be accessible to all.

Pakistan supported the statements issued by the Asia Pacific Group, the African Group and GRULAC. It wanted time to be allocated for all three issues in future SCCR sessions. It also supported the study proposal of the African Group.

Ecuador also supported the statement of GRULAC and wished to dedicate more time to these issues in the session. It believed that all these elements, on better understanding, could help the proceedings of the committee.

Nigeria supported the intervention made by the Africa Group and the statements of Pakistan and Brazil. It considered exceptions and limitations for educational and teaching institutions, and persons with other disabilities to be important for advancement of knowledge. It highlighted the need for adjusting the international copyright system to facilitate access and usage of digital content by all.

Guatemala aligned itself with Brazil's statement. It attached importance to limitations and exceptions since it considered access to be a human right. It wanted a legal instrument covering limitations and exceptions in the digital area which considering the three-step test.

The Secretariat recalled that at SCCR 26, it had been asked to identify whether resources could be found to update the existing studies on exceptions and limitations for educational and research institutions. There were five regional studies conducted about five years ago on this topic. It reported to the Committee that it would identify the resources and start work the same year. It also sought funds in the work plan to work on it in the next bi-annum, assuming it was approved by the Member States. The Secretariat clarified that it had also been asked to look if there were resources to conduct a scoping study on the intersection of persons with other disabilities and the copyright system to understand the areas which needed to be addressed. There was an event on hearing impairment and captioning and how that intersected with this topic. There had also been a discussion on conducting additional studies and whether there would be resources for the same.

Sudan, speaking on persons with disabilities, pointed out that the same organizations which had previously tackled the subject should conduct the study since these organizations had more experience on limitations and exceptions. Sudan suggested holding seminars for direct interaction with them.

Nigeria, on behalf of the African Group, sought clarifications on whether this pertained strictly to the topics that the Secretariat had outlined - marking and scoping for persons with impaired hearing. It also wanted to know whether the captioning was for exceptions and limitations for educational and research institutions.

South Africa supported the intervention made by Nigeria.

Brazil sought further information from the Secretariat on whether it would be more efficient to have a compilation and a consolidation of the studies in one global study on the situation of exceptions and limitations under agenda item 8 than having a series of regional studies.

Japan, with regard to artists' resale rights, said that the related provision existed in the Berne Convention. However, the flexibility provided by the Berne Convention meant that the protection of resale right was left to the declaration of national laws. Japan wanted the Committee to stick with the agenda and did not support the proposal of including artists' resale rights as a new agenda item of the committee.

The US fully supported enriching the agenda, and encouraged all delegates to engage in discussions to develop it.

Chair's Summary

The Chair's draft summary was given to the regional coordinators for their inputs.. Members were free to present and reflect upon the document. But since it was the Chair's summary, he refused to enter into approval procedure for this. He suggested a set of recommendations for the Committee to discuss. The Chair advised the committee to discuss their recommendations and not the summary.

Iran raised an issue on the legal status of the summary. It pointed out that the summary had not been discussed, negotiated and approved by the Committee which went against WIPO practice.

The EU reserved the right to make comments on points of substance. These related to paragraphs that mentioned what the Committee decided, or those that mentioned individual positions taken by groups of states. It agreed with everything that was said by Japan on behalf of Group B. It also favoured the general point raised by Iran in relation to the paper carrying a disclaimer on the fact that it did not commit to the Committee in any way.

Romania, on behalf of the CEBS, expressed support for the remarks made by the Group B coordinator.

Nigeria commented on the Chair's summary as a tool for providing balance on all the concerns raised by the different regional groups. It added that even the African Group's concerns had not been reflected in the summary. However, it reiterated its confidence in the summary for the purpose of moving forward.

The Chair stated that there were fifty pages which did not appear in summary shape but did on the record shape. However a record containing different views and specific positions had been made. The Chair's view was reflected here and because it was not approved or subjected to approval by the Committee, it did not take decision on that. The Chair sought to avoid starting an exercise on common drafting of each paragraph. It invited Members to consider the approach adopted by Nigeria and some delegates from the CEBS countries without taking that as a decision of the Committee. The Chair urged members to move to the next stage of recommendations. It invited oppositions from those against this view.

The Chair distributed a separate paper to all the delegates, and a discussion was commenced to arrive at a common view for the three items on the agenda. The Chair highlighted that regarding the third topic, which was related to exceptions and limitations for educational and research institutions and persons with other disabilities, there was a mandate to deliver the Committee's recommendation to the 2015 General Assembly.

Nigeria, on behalf of the African Group, asked the Chair to have a disclaimer in the summary and set the desired precedent. It was concerned that it could lead to the Committee being extended.

Pakistan said that the Asia-Pacific Group supported text-based negotiation on agreed topics and discussions on those requiring clarification. Pakistan considered it premature to talk about the exact timing of a Diplomatic Conference which could be decided in due course after evaluating progress.

Nigeria recommended that the 2015 WIPO General Assembly direct the Committee to expedite its work towards an international legal instrument in whatever form on the topic of limitations and exceptions for libraries and archives. For agenda item 8, it recommended repetition of the same language.

Brazil, on behalf of the GRULAC group, supported the statement made by Nigeria. It supported working towards an international legal instrument in whatever form as an objective for the future work on proposed recommendation on limitations and exceptions for libraries and archives.

Pakistan, on behalf of a majority of the Asia-Pacific Group, showed support to the proposal made by Nigeria.

Iran supported the statement made by Pakistan on behalf of Asia. It pointed out that the text-based negotiations on the Treaty had not been conducted. There was also no common understanding on key issues and Articles. Iran recommended that the Committee continue its work on text-based negotiations, finding solutions for key issues and achieving consensus on key provisions in the draft Treaty. Depending on the progress of the text-based negotiations, the Committee could decide on the date for convening a Diplomatic Conference. It supported the statement made by Nigeria and Brazil, and seconded by Pakistan regarding items 7 and 8.

India supported the views expressed by Nigeria, Brazil, Pakistan and Iran on both agenda items dealing with limitations and exceptions. It suggested that the mandate of the General Assembly should reflect in the language, which was presently not the case. It sought to know the basis on which it had been decided that the Diplomatic Conference would be held in 2017 since there was no consensus of opinions yet. It suggested that the reference be left open, depending upon the two future SCCR meetings.

The Chair clarified that a recommendation without consensus could not be accepted. On observing that no Delegate requested the floor, he welcomed concluding remarks and called for closing the session.

The EU expressed disappointment on the failure to formulate a roadmap on the Treaty in 2017 and reaching a conclusion on the exception items.

Nigeria, in line with the comment made by South Africa, recommended that more effort could be made towards finalizing a language that achieves consensus.

The Chair, showing interest in the suggestion of Nigeria, expressed the desire to see whether the other delegates were keen on receiving suggestions and welcomed different views regarding this.

South Africa requested the floor and supported the statement made by Nigeria. It felt that the Committee had something on the paper and if the regional coordinators met, a consensus could be achieved.

The Chair proceeded to listening to closing remarks. The meeting closed with closing remarks by delegates.

For more details visit https://cis-india.org/a2k/blogs/report-of-the-30th-session-of-the-wipo-sccr-by-the-centre-for-internet-society

Pervasive Technologies: Working Document Series - Research Questions and a Literature Review on the Actor-Network Theory

nehaa — 2015-09-05T04:56:03Z

This document is divided into two parts - the first part lays out a series of research questions, potentially seeking to apply actor-network theory as a research methodology. The second part seeks to map literature around the Actor-Network Theory ("ANT") as a research methodology.

Part 1: Research Questions

The aim of this exercise is to delineate the contours of the paper, and provide some insight into the demarcation of the various sections.

The overall context to this paper will be determined by a globalized form of intellectual property ownership, and the various instances in which this narrative finds a place (either overtly or covertly) in the regulation of standard essential patents in India. In our paper, the globalized form of IP ownership is probably most clearly indicated in the standard setting process, where participants are International Standard Setting Organizations determining, in a manner of speaking - the rules of the game - that is - licensing on Fair Reasonable and Non Discriminatory Basis. The other important player to our understanding of global ownership would be multilateral organizations such as Ericsson, involved in many of the disputes before the Delhi High Court and the Competition Commission of India ("CCI"). Perhaps international actors/actants would also be international legal principles as well as international regulators such as the FTC or the ECC themselves. This phase of the paper will also trace India's specific location in global competition. In doing so, not only will the market positions of some of the players be examined, but also some comparisons will be made to illustrate how the relationship of international jurisdictions (mainly the USA and the EU) with international multinational corporations that are a party to litigation differs from that of India. This phase of the chapter will most likely apply the doctrinal method of research, study academic texts as sources as well as study some decisions by international regulators and courts to understand the tools and sites available for regulation as well as the nature of the regulatory process itself.

The second phase of this chapter will seek to map the overall context to specific cases - that is, pending legal processes in India. This includes both, ongoing litigation on patent infringement at the Delhi High Court as well as ongoing disputes before the CCI as well. The characters in this litigation also trace back to the broader context; some of them more directly than others. The multinational corporations are directly involved in both contexts, whereas the domestic regulators may seek to draw inferences or apply commonly understood international legal principles, thus invoking more international actants.

This phase of the chapter will study three key litigations in India - Ericsson and Micromax, Ericsson and Intex, and a third that is yet to be defined. Legal traditions and institutions in India will be used to understand what legal possibilities are available for using competition regulation to regulate SEPs. This includes specifically the levers in competition law such as abuse of dominance as well as the nature of the competition regulator and the role that it identifies for itself. One might also consider the relative 'youth' of the competition regulator as a factor in laying down legal principles, the constraints it imposes on itself as well as a tension between the market regulator and the courts. Perhaps this might also be an actant, in the context of the actor network theory. This phase of the chapter will most likely apply the doctrinal method of research, study academic texts as sources as well as study legal instruments and judicial decisions as sources.

The third phase of this chapter will now ask the question of standard essential patent (SEP) regulation, located within this broader matrix of intellectual property ownership and fluidity of actants. The specific question to be asked will be what is the competition regulation challenge for SEPs in India? This phase will attempt to distill the uniqueness of India in the narrative of global IP ownership around SEP litigation. It will be observed that the nature of the players in international litigation as well as in India is rather different. This phase will also attempt to make a case for IP regulation within India's existing culture of engaging with the public interest in intellectual property regulation.

It is in this phase that one must also examine the usefulness of the actor-network theory as a research methodology to study SEP regulation in India. It must be noted that while SEP regulation so used is used to refer to competition regulation specifically, and not to other levers, such as mechanisms within intellectual property law itself. The focus of this exercise will be competition regulation, with an engagement with other areas of the law and the judicial process only in as much as it informs our understanding of competition regulation of SEPs or impedes it. If one were to apply the actor network theory to this phase of the exercise, one would view courts, parties involved in the litigation, the CCI, international legal principles, international market regulators, international SSOs, competition law as well as issues raised in the litigation as 'actants', both human and non human, who are to be treated on par with each other, with a study of the networks that these actants create, or are a part of.

Part 2: Literature Review on the Actor-Network Theory

The aim of this exercise is to first, understand the ANT as a research methodology; second, to study its components and third, to ascertain its suitability as a research method for exploring the challenge of regulating SEP litigation through completion law mechanisms in India.

What is the Actor-Network Theory?

David Banks, in a 2011 blog post, contextualized in trying to trace a relationship between our offline and online behavior presents an overview of the ANT.[1] Banks describes ANT as an ongoing project that seeks to radically transform how social scientists talk about society's relationship to technology and other non human actors ; and identifies Bruno Latour, John Law and Michael Callon as the major authors in this space. (It is observed that there might have been additions or deletions to this core list of thinkers - not to self for further reading).

In his paper[2] reflecting on the ANT, Bruno Latour refers to himself as a 'fellow traveler' of the various network 'revolutions', and says that in the network, he has found a powerful way of rephrasing basic issues of social theory, epistemology and philosophy. Latour says that in its simplest and deepest sense, the notion of the network is of use whenever action has to be redistributed.[3] In a different paper, Latour argues that the purpose of the ANT is not to provide explanations for the behaviour and reasons of actors, but only to map procedures which enable actors to relate to each other and each others' world building capacity. My discomfort with this reading is trying to locate what these procedures would be in an SEP regulation environment.

Identifying the components of the ANT

Latour presents an actant - or an actor - as something that acts, or to which some sort of activity is assigned by others. [4] There is no special motivation of humans or human actors. "An actant," says Latour, "can literally be anything provided it is granted to be the source of the action."[5] The conception of an actant, Latour further articulates, should be not as fixed entities, but as fluid, circulating objects, whose stability and continuity depends on other actions. [6]

So what is on its agenda? The attribution of human, unhuman, nonhuman, inhuman, characteristics; the distribution of properties among these entities; the connections established between them; the circulation entailed by these attributions, distributions and connections; the transformation of those attributions, distributions and connections, of the many elements that circulates and of the few ways through which they are sent.[7]

Banks[8] identifies actants to be of two types - human and non human, further explaining that 'actors' is typically used to refer to humans. These actants have equal amounts of agency within the actor-network. Banks proceeds to demonstrate this applicability of equal agency with an illustration of getting wi-fi connectivity in Albany. In his narrative [9] (and as he notes later himself), Banks uses the same language (read as according agency to the inanimate) to describe both, the human and non human actants. Says Banks, that the actants are merely nodes that facilitate a larger functioning. It is submitted that the 'larger functioning' being referred to is probably something that would be determined on a case to case basis - depending on what was being studied.

In a 1999 paper On Recalling ANT[10], Latour articulates a problem with the usage of the word 'network' as a result of its usage having changed over time - from using it to refer to a series of transformations incapable of being captured by prevalent social theory at the time, to an unmediated access to every piece of information (to my understanding within the context of the World Wide Web). Latour explains that his new understanding is exactly the opposite of what they meant and that it ought not to be used to mean the transformations they were initially articulating.

Another of Latour's papers is helpful in arriving at an understanding of the 'network', where he argues that it would be fallacious to consider it in a technical sense, as one would a sewage, a train or a telephone network.[11] Unlike a technical network, Latour argues, an actor-network may have no compulsory paths, no nodes and might be quite local in nature. Latour further argues that thinking in terms of a network helps us overcome the tyranny of distance, citing a range of examples including standing one metre away from somebody in a telephone booth and yet being more closely connected to his mother, thousands of miles away, among others[12]. In each of his illustrations, however, Latour articulates closeness or distance in terms of geography or presence in a physical sense, which might not be entirely applicable to the research question we're seeking to study. What might be more useful perhaps, is the articulation of the network where he argues that instead of tracing an individual to the collective or the agency, one could only at the number of connections an element has and gauge the importance of the element in light of these connections . The greater the number of connections, the more important an element and vice versa. [13]

ANT Criticism and Applicability of the ANT to our research question?

Before delving into specifics of the ANT that lend themselves to a critique, I submit a broader reservation with the application of the ANT to studying legal and regulatory processes. From my reading and understanding of the ANT so far, a cornerstone appears to be the exclusion normative ideologies, with a focus on studying processes and networks as is, without formulating a value-judgment on their larger place in the society being studied. In so far as defending this claim, Latour and other supporters of this theory have relied on scientific examples (for instance, the reference to the Colombia Shuttle - NASA and its complex organizational structure)[14] or illustrations from the social sciences or social phenomena. I'm still attempting to locate a paper that utilizes the ANT to study law or regulation. Prima facie, the challenge being posed is to study inherently normative structures and processes with clear power structures.

Banks[15] describes the efficacy of the ANT in describing the processes by which inventions and technological systems come into being, or fail to do so. Perhaps in studying the legal regulation of SEP litigation in India, the efficacy of the ANT would like in describing the processes by which legal regulation and legal systems in India (specifically to regulate SEPs) come into being, or fail to do so. By extension, for our research question, non human actants as identified by Banks[16] would probably be legal institutions and the parties to the litigation themselves. What is unclear at the moment is whether policy and legal instruments or levers themselves would be actors.

Banks, in his article also articulates criticisms[17] to the ANT propounded by Sandra Harding, David Bloor and Sal Restivo, on the grounds of being blind towards other social factors such as race or patriarchy. If one were to extend this to the research question at hand, an argument could be made that the ANT seeks to equate dissimilarly situated institutions. Corollaries to race and patriarchy might be found in the market power of parties (an Ericsson v. a Micromax), or even within regulatory set up itself, where, based on the facts so far, an argument could be made out that different regulators are situated differently, where the Delhi High Court could pass an order restraining another regulator - the Competition Commission of India, from passing its own order.

A reference to the 'agency' critique of the ANT is made by Latour himself, in his 1999 paper. Latour goes on to acknowledges the critiques of the ANT, but says that most have (mistakenly) centered either around the actor or around the network; and that the idea was to never occupy a position in the agency/structure debate.[18] Later in the paper, Latour further clarifies that actants are not to be perceived as playing the role of agency, and network is not to be seen as playing the role of the structure. Instead, says he, they represent two sides of the same phenomenon. Latour further explains that the ANT merely tried to learn from the actors (what was sought to be learnt was difficult to grasp), without attempting to be an explanation of societal pressures (and the reasons for such pressures) on actors. The difficulty in reading this paper for me was that it was rather dense in many respects, with various concepts - including, for instance, the idea of the 'social', which he refers to constantly, not being clearly articulated. Further, what is uncertain to me is how this question of agency will play out if applied to a legal or regulatory context. If, for instance, a legal principle was to be a non human actant, how would this have an agency independent of the human actor (the judge) that would be the one applying the legal principle in the first place? Can we truly exclude the question of agency from the ANT if the very exclusion of agency means a recognition of the existence of agency in the first place? How does one exclude the question of agency in seemingly unequally situated actors with an inherent power dynamic? Is the ANT, then even a useful research methodology? In his 1999 paper, Latour argues that the aim of the ANT is to study actors without the imposition of an a priori definition of their world building capacities.[19] The question now arises for me, is how to divest regulators of their 'world building capacities'.

Explaining the rationale[20] for the ANT (in social science research), Latour articulates a dissatisfaction that social scientists have with both, micro (local sites) and macro levels (more abstract ideas like culture, patriarchy etc.) of research. This dissatisfaction, he argues, results in a back and forth between these sites ad infinitum. The ANT, argues Latour, is a way of tracing these dissatisfactions, not for the purposes of finding a solution, but to follow them elsewhere and explore the very conditions that make these two disappointments possible. Latour further clarifies that one must not understand 'network' in ANT to mean a larger society that would help make sense of local interactions or as an anonymous field of forces. Instead, he says, it refers to summing up various interactions through various devices, inscriptions, forms and formulae into a very local, very practical, very tiny locus. My key takeaway from this articulation was that ANT could be used to study various interactions between various key stakeholders, with a very specific research question. Given that the locus could also be tiny, perhaps if the research question was narrowed further, the key stakeholders, or the 'network' and the 'actants' would reduce as well.

Latour has also argued that the ANT makes no assumptions about how an actor should behave and assumes infinite pliability and absolute freedom of actors. [21] In itself AT is not a theory of action no more than cartography is a theory on the shape of coasts lines and deep sea ridges; it just qualify what the observer should suppose in order for the coast lines to be recorded in their fine fractal patterns. Any shape is possible provided it is obsessively coded as longitude and latitude. Similarly any association is possible provided it is obsessively coded as heterogeneous associations through translations.

there is no difficulty in seeing that AT is not about traced networks by about a network-tracing activity. As I said above there is not a net and an actor laying down the net, but there is an actor whose definition of the world outlines, traces, delineate, limn, describe, shadow forth, inscroll, file, list, record, mark, or tag a trajectory that is called a network. No net exists independently of the very act of tracing it, and no tracing is done by an actor exterior to the net. A network is not a thing but the recorded movement of a thing. The questions AT addresses have now changed. It is not longer whether a net is representation or a thing, a part of society or a part of discourse or a part of nature, but what moves and how this movement is recorded. [22]

A useful articulation of the application of ANT emerges out of Jonathan Murdoch's 1997 paper.[23]He submits that the human gaze is being increasingly considered as an unreliable source of knowledge, being in a constant state of flux. Citing the example of the environment/biosphere to demonstrate the futility of the separations we make between nature and society, Murdoch argues that any solution to the environmental crisis will involve a profound re-thinking of how we link these two domains.[24]Extending this argument to our research question, one might ponder for instance that any solution to the SEP litigation and regulation conundrum will involve a profound re-thinking of how we link the courts and the CCI. What is unclear is what method we will use to arrive at this re-thinking, or what the re-thought out version would look like.

Murdoch does, however, articulate concerns with the 'non dualistic' framework (which the ANT positions itself as) and argues, relying on others before him, that such an adoption could have far reaching consequences; that the very basis of the development of social science is such a binary division. Murdoch argues that the nature-society divide has enabled social scientists to break the hegemony of the natural scientists. Murdoch further submits his reading of Latour, where he states that the power of laboratories arises as a result of their ability to tie together actors that are beyond the lab into networks that are then used to disseminate scientific facts.[25] Murdoch's paper largely focuses on blurring the distance between 'natural' and 'social' actors, and identifies the difficulties in attempting to compare the two. Murdoch questions if natural actors whose identity emerge from nature itself are malleable as social actors, who are by definition, a product of society. What is unclear, however, is how malleable are two dissimilarly situated social actors; and whether 'social actors' is broad enough to encompass all institutions born out of or with a human/societal interaction component. Specifically, for our paper, would courts and the CCI both qualify as social actors? Would legal principles? Would the decision making process by the courts itself? Latour's very example for proposing the ANT was that of pasteurization in France. Murdoch also questions whether it's possible to in fact treat various actants as each other. In order to address another critique of ANT, that where we exclude notions of power, Mudoch says Law's articulation - of focusing on 'victims' instead of 'heroes' might prove to be useful. This has not been discussed in detail, leaving the reader to make their own inferences.

In other words, can ANT, with its seamless webs, forever crisscrossing the human-nonhuman divide, provide a secure platform for critique, for the expression of a profound dissatisfaction with the activities of powerful social actors and the attribution of responsibility to those actors? Can it, in other words, ever do anything more than describe, in a prosaic fashion, the dangerous imbroglios that enmesh us?
Does this emphasis on description necessarily represent "an insuperable obstacle to effective and convincing social criticism

[1] David Banks, A Brief Summary of Actor Network Theory, available at http://thesocietypages.org/cyborgology/2011/12/02/a-brief-summary-of-actor-network-theory/ (last accessed 29 August, 2015).

[2] Bruno Latour - Networks, Societies, Spheres : Reflections of an Actor - Network Theorist, International Journal of Communication 5 (2011), 796- 810, available at http://ijoc.org/index.php/ijoc/article/viewArticle/1094 (last accessed 31 August, 2015).

[3] Id at 797.

[4] Bruno Latour - complications paper - at internal page 7.

[5] Id.

[6] Id at internal page 8.

[7] Id at internal page 7.

[8] Id.

[9] Id.

[10] Bruno Latour, On Recalling ANT, available at http://www.bruno-latour.fr/sites/default/files/P-77-RECALLING-ANT-GBpdf.pdf (last accessed 28 August, 2015).

[11] Bruno Latour, On actor-network theory. A few clarifications plus more than a few complications, available at http://www.bruno-latour.fr/sites/default/files/P-67%20ACTOR-NETWORK.pdf (last accessed 30 August, 2015) at internal page 2.

[12] Id at internal page 4

[13] Id at internal page 6.i

[14] Latour, the networks, societies, spheres paper

[15] Id.

[16] Id.

[17] Id.

[18] Latour, recalling the ANT paper.

[19] Recalling ANT paper, page 20

[20] Bruno Latour, On Recalling ANT, available at http://www.bruno-latour.fr/sites/default/files/P-77-RECALLING-ANT-GBpdf.pdf (last accessed 28 August, 2015).

[21] Latour, the complications paper, page 9.

[22] Id at 14.

[23] Jonathan Murdoch, Inhuman/nonhuman/: actor-network theory and the prospects for a nondualistic and symmetrical perspective on nature and society, Environment and Planning D: Society and Space, 1997, Volume 15, 731-576

[24] Murdoch at page 732.

[25] Murdoch at page 737.

For more details visit https://cis-india.org/a2k/blogs/pervasive-technologies-working-document-series-research-questions-and-a-literature-review-on-actor-network-theory

Will Aadhaar Act Address India’s Dire Need For a Privacy Law?

nehaa — 2016-04-05T16:01:06Z

The article was published by Quint on March 31, 2016.

The passage of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (will hereby be referred to as “the Act”) has led to flak for the government from privacy advocates, academia and civil society, to name a few.

To my mind, the opposition deserves its fair share of criticism (lacking so far), for its absolute failure to engage with and act as a check on the government in the passage of the Act, and the events leading up to it.

The government’s introduction of the Act as a ‘money bill’ under Article 110 of the Constitution of India (“this/the Article”) is a mockery of the constitutional process. It renders redundant, the role of the Rajya Sabha as a check on the functioning of the Lower House.

Article 110 limits a ‘money bill’ only to six specific instances: covering tax, the government’s financial obligations and, receipts and payments to and from the Consolidated Fund of India, and, connected matters.

The Act lies well outside the confines of the Article; the government’s action may attract the attention of the courts.

Political One-Upmanship


Finance Minister Arun Jaitley (left) listens to Reserve Bank of India (RBI) Governor Raghuram Rajan. (Photo: Reuters)

In the past, the Supreme Court (“the Court”) has stepped into the domain of the Parliament or the Executive when there was a complete and utter disregard for India’s constitutional scheme. In recent constitutional history, this is perhaps most noticeable in the anti-defection cases, (beginning with Kihoto Hollohan in 1992); and, in the SR Bommai case in 1994, on the imposition of the President’s rule in states.

In hindsight, although India has benefited from the Court’s action in the Bommai and Hollohan cases, it is unlikely that the passage of the Aadhaar Act as a ‘money bill’, reprehensible as it is, meets the threshold required for the Court’s intervention in Parliamentary procedure.

Besides, the manner of its passage, the Act warrants

Censure for its process
Its (in)compatibility with fundamental rights
The failure to incorporate the suggestions of the Yashwant Sinha-led Standing Committee to UPA’s NIDAI Bill
The possibility of surveillance that it presents
The lack of measures to protect personal information
Its inadequate privacy safeguards
The questions around the realisation of its stated purpose.

Instead, a part of the Aadhaar debate has involved political one-upmanship between the Congress and the BJP, pitting the former’s NIDAI Bill against the latter’s Aadhaar Act.

While an academic comparison between the two is welcome, its use as a tool for political supremacy would be laughable, were it not deeply problematic, given the many serious concerns highlighted above.

Better Than UPA Bill?


The Act may have more privacy safeguards than the earlier UPA Bill. (Photo: iStockphoto)

And while the Act may have more privacy safeguards than the earlier UPA Bill, critics have argued that they not up to the international standard, and instead, that they are plagued by opacity.

Additionally, despite claims that the Act is a significant improvement over the UPA Bill, it fails to address concerns, including around the centralised storage of information, that were raised by civil society members and others.

Perhaps most problematically, however, the Act takes away an individual’s control of her own information. Subsidies, government benefits and services are linked to the mandatory possession of an Aadhar number (Section 7 of the Act), effectively negating the ‘freedom’ of voluntary enrollment (Section 3 of the Act). This directly contradicts the recommendations of the Justice AP Shah Committee, before whom the Unique Identification Authority of India had earlier stated that enrollment in Aadhaar was voluntary.

To make matters worse, the individual does not have the authority to correct, modify or alter her information; this lies, instead, with the UIDAI alone (Section 31 of the Act). And the sharing of such personal information does not require a court order in all cases.


Kanhaiya Kumar speaking in JNU on 3 March 2016. (Photo: PTI)

It may be authorised by Executive authorities under the vague, ill-understood concept of ‘national security’, (Section 33(2) of the Act) which the Act does not define. We would do well to learn the dangers of leaving ‘national security’ open to interpretation, in the aftermath of the recent events at JNU.

These recent events around Aadhaar have only underscored the dire urgency for comprehensive privacy legislation in India and, the need to overhaul our data protection laws to meet our constitutional commitments along with international standards.

Meanwhile, constitutional challenges to the Aadhaar scheme are currently pending in the Supreme Court. The Court’s verdict may well decide the future of the Aadhaar Act, with the stage already set for a constitutional challenge to the legislation. The BJP’s victory in this case may be short-lived.

For more details visit https://cis-india.org/internet-governance/blog/the-quint-march-31-2016-nehaa-chaudhari-will-aadhaar-act-address-indias-dire-need-for-a-privacy-law

4th Global Congress on IP and the Public Interest: Statement of Conclusion for the IP and Development track

nehaa — 2015-12-25T02:22:52Z

The 4th Global Congress on Intellectual Property and the Public Interest was held from December 15 to 17, 2015 in New Delhi. This post provides a summary of the event.

This was also published on the Global Congress blog.

Wrap up note 1: Feedback on broad discussion in the IP and Dev track – set of collected key points:

This year, the discussions included attention to broad perspectives on clarifying the meaning and reality of open collaborative innovation, as well as significant focus on the sub-themes of economic development (innovation and software patents, clean technologies, climate change and green patenting, issues of branding and plain packaging); sustainable development (agriculture and geographic indicators [GI]); policy, law and regulation (role of governments, patenting, compulsory licensing [CL], global institutions [particularly WTO, WIPO and WHO] and national institutions [particularly patent offices]). Trade dominated the discussions across the IP and Dev track, including the TPP and other issues, reflecting the strong global trade agenda.

Missing areas in the track papers, workshops and panel discussions included the limited discussion on traditional knowledge (TK); the work of indigenous groups and how they are navigating the IP landscape; biodiversity; biotech and food security; innovation in the nanotechnology sphere; and inclusive development. Accessibility to innovations for low-income households, and accessibility to innovations at the country level needs greater attention. These topics can be brought out more strongly, more directly.

The value of building research networks to create explicit knowledge and coherence in research-based evidence for advocacy and policy-making was made visible in the workshop session presented by Open AIR, with the Open AIR network as the exemplar. The challenge is to translate the kinds of research and evidence presented at the GC into content and value for policy-making and trade negotiations.

Wrap up note 2: Value of the deliberations and future research:

This is a new track in the GC, introduced in 2015. It is an important track for this and future Global Congresses because it brings together the many strands of research, advocacy and other work that are related to topics in innovation, IP and development, but which are not specifically about openness, user rights or A2M. This is a very broad range of fields of study, from agriculture to nanotechnology. It was proposed that the track be renamed “Innovation and Development” to more explicitly describe its focus.

From this GC, it has become clearer what future topics may be considered for papers and other inputs into the IP and Dev track. Such topics include counter-narratives to mainstream IP perspectives; bringing IP for development in multiple sectors to the fore – in education; in automotive manufacturing; in technology evolution; in agricultural production and food security; in the broad policy, law and regulatory environment pertinent to these and other sectoral perspectives. For example, in the paper on green patenting, reference was made to Tesla and Toyota releasing patents, but the session did not get to discuss that. The papers presented at the 4th GC suggest many areas of focus for future research and future GCs – perhaps the best way to think about this exploration is through greater attention to innovation in a range of social and economic sectors; to consider the particular challenges of innovation, IP and development in LDCs; to study innovation ecosystems and where IP fits in these ecosystem. Cross-track sessions are also considered to be very important because of the knowledge sharing that takes place across sectors, for example the discussions on patent wars in the access to medicines (A2M) track provided food for thought with respect to emerging issues in the software sector.

Wrap up note 3: Ideas and implications of GC sessions for future directions for research, collaborations and next GC:

For the next GC, mobilization is required across various geographic regions and a significant discussion is required on preparation and design of the sub-themes, based on the notes above. The requirement for more evidence-based research was noted. It was recommended that the future name of the track should be Innovation and Development. The core group, comprised of track leaders and sessions chairs, should continue the leadership of the track from GC to GC, bringing additional interested persons on board, in particular with respect to the design of sub-themes well in advance of the 5th GC, to guide prospective submissions.

Ends.

For more details visit https://cis-india.org/a2k/blogs/4th-global-congress-on-ip-and-the-public-interest-statement-of-conclusion-for-the-ip-and-development-track

National IPR Policy Series : Who is a 'public authority' under the RTI Act?

nehaa — 2015-05-21T17:03:30Z

In this blog post, CIS intern Devrupa Rakshit examines case law with respect to the understanding of a 'public authority' under the Right to Information ("RTI") Act, 2005.

In earlier blog posts, India’s National IPR Policy has been discussed at length. In February 2015, three RTI applications were made by the Centre for Internet and Society to the Department of Industrial Policy and Promotion (hereinafter, the “DIPP”). The response of the DIPP to these requests could be described as vague, at best. A detailed blog post by Nehaa Chaudhari discusses the questions, the responses and the other nuances of this endeavour at length.

Having failed repeatedly in our attempts to retrieve information pertaining to the IPR Think Tank that was, essentially, in charge of formulating the National IPR Policy, we put forth an RTI request to the IPR Think Tank earlier this month. The response is awaited, at the moment. In the meantime, we have undertaken the task of finding out whether the IPR Think Tank can indeed be classified as a “public authority” under the Right to Information Act, (hereinafter, the “RTI Act”, or simply the “Act”) because if it can, then it must have a Public Information Officer as per Section 5 of the Act.

The RTI Act defines “public authorities” in Section 2(h) –

A “public authority” means any authority or body or institution of self- government established or constituted –

(a) by or under the Constitution;

(b) by any other law made by Parliament;

(c) by any other law made by State Legislature;

(d) by notification issued or order made by the appropriate Government, and includes any –

(i) body owned, controlled or substantially financed;

(ii) non-Government organization substantially financed, directly or indirectly by funds provided by the appropriate Government.

A. Who is a "Public Authority"?

In 2011, the Punjab-Haryana High Court[1] while deciding on 24 civil writ petitions against the Central/State Information Commissioners had held that if any person, or body, satisfies the following conditions then it would "squarely fall within the ambit and scope of definition of 'public authorities'" and would be "legally required to impart the indicated information as envisaged under the RTI Act" -

(i) the institution cannot come into existence and function unless registered and regulated by the provisions of a legislation; or

(ii) the State Government has some degree of control over it through the medium of Acts/Rules; or

(iii) it is substantially financed by means of funds provided directly, or indirectly, by the appropriate Government; or

(iv) the mandate and command of the provisions of the RTI Act along with its Preamble, aims, objects and regime extends to their public dealing; or

(v) the larger public interest and totality of the other facts and circumstances emanating from the records suggest that such information may be disclosed.

The Court was further inclined to believe that arguments to the contrary would "nullify the aims and objects of the RTI Act, perpetuating and inculcating the injustice to the larger public interest in general."

The Central Information Commission (hereinafter, the "CIC") has also held[2] that pension trusts are "public authorities" under the RTI Act.

The CIC also held[3] that the LIC Housing Finance Limited (hereinafter, the "LICHFL") and LIC Mutual Fund Asset Management Co. Ltd. would qualify as "public authorities" under the RTI Act. It was held that LIC is a body established, constituted, owned and controlled by Central Government. Further, LIC is a public authority having been constituted by an Act of Parliament. And, since the Chairman and Managing Director for both LIC and LICHFL is the same, and since LIC has 40.497% of the shares of LICHFL, LICHFL would be regarded as a "public authority" for the purposes of the RTI Act.

In a verdict that has remained prominent for over half-a-decade now, the CIC had alluded to the judgment of the Madras High Court in Tamil Nadu Newsprint & Papers Ltd v. State Information Commission. In this case, the court had observed that since the mere requirement of the RTI Act for an institution to be deemed a "public authority" is that the Government must substantially finance it, and exercise control over its affairs, it is not necessary that the Government must be the majority shareholder in that institution. The Court had further gone ahead to make an observation that whether or not the government exercises such control is immaterial. Having relied heavily upon this judgment by the Madras High Court, the CIC had further stated that the practice of funding and general control over the affairs and functions of the LIC Mutual Fund by the Central Government is nothing but a manner of indirect funding, and hence LIC Mutual Fund would qualify as a "public authority" under the RTI Act.

In the same case, it was held that the GIC Housing Finance Limited is also a "public authority" for the purposes of the RTI Act since "the shareholding of six Public Authorities in GIC Housing Finance is 47.68% and coupled with the control they exercise over the GIC Housing Finance, it is sufficient to bring them within the ambit of the definition of 'Public Authority' as defined in Section 2(h) of the Right to Information Act, 2005."

Further, the Indian Olympic Association (hereinafter, the "IOA") was held[4] to be a "public authority" under the RTI Act on account of substantial funding by the Government not only for the discharge of functions of the IOA, but also for the construction of its building. In fact, the level of funding by the Government, here, is such that without it, the IOA is unlikely to be able to discharge its functions under the Olympic Charter itself.

In another judgment[5], where it was contended that the body, in question, was a non-governmental organisation, and was not funded by the Government, the CIC held that the impugned body would be a "public authority" as it had been substantially financed by the funds provided by the Government.

In a judgment[6] by the Madras High Court, even an aided private school was held to fall under the ambit of the RTI Act as its entire teaching staff received 100% of their salary from the aid received from the government. The same line of reasoning was resonated in a judgment by the Allahabad High Court in the following year.[7] Yet another private recognised school was held[8] by the CIC to be a "public authority" under the RTI Act because it was substantially funded by the appropriate Government, and was under its control.

The Delhi High Court held[9] the Krishak Bharti Co-operative Ltd. (hereinafter, the "KRIBHCO") - a society registered under the Multi-State Co- operative Societies Act, 2002 (hereinafter, the "MSCS Act" - to be a "public authority" for the purpose of the RTI Act because certain devices laid down in the MSCS Act itself makes KRIBHCO amenable to the control of the Government. On the same grounds, the National Cooperative Consumer Federation of India Ltd. (and the National Agricultural Cooperative Federation of India Ltd. (hereinafter, the "NAFED") - two other societies registered under the MSCS Act - are "public authorities".

Furthermore, the NAFED is also "a nodal agency of the Government of India for the purchase of agricultural and non- agricultural commodities under Market Intervention Scheme and the losses incurred in the implementation of the schemes by NAFED are shared by the Government of India and the State Government concerned in the ratio of 50:50."

Continuing its trend of according a liberal approach to "public authorities" under the RTI Act, the Madras High Court stated in the New Tirupur Area Development case[10] that while Section 2(h)(d)(i) qualifies a "body owned" or a "body controlled", nowhere does it state that the body must be wholly owned, or wholly controlled, by the State. And, as the court observed, even the term "substantially financed" has not been defined though it has been qualified by the terms " directly or indirectly". Section 2(h)(d)(ii) further ropes in non-governmental organisations (NGOs) that are substantially financed. This reflects the intent and purpose of the legislators. In any case, the object of the Act to is to provide the citizens with a right to information from public authorities, and hence, as the Division Bench of the court had previously opined in the Tamil Nadu Road Development Corporation Ltd.'s case[11], the impugned section must receive a liberal interpretation.

Further ahead in this judgment[12], the court made an observation saying that if the State Government, instead of undertaking a work that is essentially its own duty, substantially funds an agency to do it, then such work can hardly be deemed as a private activity. It evolves "very much (into) a public activity over which public interest can generate."

In the same case[13], it was also observed that under the Act, the quantum of the finance required for a body to qualify as "substantially financed" is not spelt out. On this point, the High Court also relied on a precedent [14] (the Tamil Nadu Road Development case decided by Justice A.K. Ganguly) where the court had refused to accept the argument of the petitioner, which stated that the financial support by the government was meagre at best.

B. Which bodies are exempted from the Ambit of "Public Authorities"?

The Kerala High Court, in a 2011 judgment[15], exempted the offices and officers of public religious institutions and endowments to which the Madras Hindu Religious and Charitable Endowments Act, 1951 applies from the definition of "public authorities" under the RTI Act.

In a subsequent case[16], the CIC said that despite the fact that 46% of the equity capital of the National Commodity and Derivatives Exchange Ltd. was held by the PSUs (which are, of course, public authorities), the National Commodity and Derivatives Exchange Ltd. cannot, in itself, be regarded as a "public authority" as there is no direct or indirect funding by an appropriate Government.

Three Karnataka High Court judgments in 2009 [(a) dealing with the Basava Samithi[17] - an organisation that promotes the Basava Philosophy of Life and is registered under the Karnataka Societies Registration Act, 1961; (b) dealing with a co-operative housing society[18] in Malleswaram, Bangalore; (c) dealing with a Bank [19]] held three different bodies as not the creation of any law made by the Legislature, or not as bodies owned or controlled or substantially financed by the Government, and hence, exempt from the ambit of a "public authority" under the RTI Act. These judgments were, however, criticised in the Punjab and Haryana High Court[20] wherein it said that in the three 2009-judgments, the Karnataka High Court had overlooked the basic aims and objectives of larger public interest enshrined in the Preamble of the RTI Act.

C. Conclusion

The easiest way to establish that the IPR Think Tank would qualify as a "public authority" under the RTI Act would be to show that it is a body owned, controlled or substantially funded directly or indirectly by the Government, or that it is created either by any other law made by the Parliament or State Legislature, or under the Constitution itself.

Moreover, it appears from The Hindu Urban Cooperative Bank Limited v. The State Information Commission[21] that when discharging public functions, even though a private entity does not become a State per se, considering the public interest involved, it must be deemed to be a "public authority" in a bid to avoid diluting the aims and objectives of the RTI Act. Now, since the drafting of the National IPR Policy can, in all likelihood, be described as the exercise of a public function, the IPR Think Tank should then qualify as a "public authority" under the Act.

In addition, the underlying principle used in Indubala Agarwal v. National Commodity and Derivatives Exchange Ltd. [22] was that while the public bodies engaging in commercial or business activities - often, even profitable - that are created by any government in exercise of its sovereign functions would qualify as "public authorities" as per Section 2(h) of the Act, the set of commercial bodies further created by these public bodies as part of their business ventures would not qualify as "public authorities" as per Section 2(h). The simple reason behind this discrimination of sorts is that the latter set of bodies lacks any direct, or indirect, involvement of an appropriate government. However, it is unlikely that this rationale could be used to keep the IPR Think Tank outside the domain of "public authorities" under the Act since it would hardly qualify as a commercial body. Furthermore, it was not created by the DIPP merely in a bid to expand its business interests, but to formulate a National IPR Policy that is quite a far cry from being classified as a commercial activity.

On a different but related note, in the well-known case of Ajay Hasia v. Khalid Mujib Sehravardi [23], the test laid down for a "public body" was whether a said person, or body, is an instrumentality or agency of the State, and not as to how it was brought into existence, i.e., the idea is to find out why it was created, and not how. No doubt, the context of the judgment was Article 226 of the Constitution of India, and not the RTI Act. Nonetheless, considering that there is no apparent reason to distinguish between public bodies under Article 226 and under the RTI Act, what if this test were to be applied to the issue at hand? Since the IPR Think Tank has been created for the purpose of drawing up the National IPR Policy which obviously affects the public, it may not be entirely wrong to state, then, that it would fall within the ambit of "public authorities" the RTI Act .

[1] The Hindu Urban Cooperative Bank Limited and Ors . v. The State Information Commission and Ors. [2011] (Pun & Har HC)
available at - <http://indiankanoon.org/doc/155741837/>

[2] Mr. SK Choudhary v. Delhi Transco Limited [2010] (CIC) available at - < http://www.rti.india.gov.in/cic_decisions/SG-26022010-12.pdf>

[3] Shri Nisar Ahmed Shaikh and Ors. v. LIC Housing Finance Limited and Ors. [2009] (CIC) available at - < http://www.rti.india.gov.in/cic_decisions/FB-28102009-01.pdf>

[4] Veeresh Malik v. Indian Olympic Association [2006] (CIC) available at - http://www.rti.india.gov.in/cic_decisions/Decision_28112006_3.pdf >

[5] Mrs Navneet Kaur v. Electronics and Computer Software Export Promotion Council [2006] (CIC) available at - < http://cic.gov.in/CIC-Orders/CIC_Order_Dtd_22032006.pdf>

[6] Diamond Jubilee Higher Secondary School v. Union of India [2007] (Mad HC) available at - <http://indiankanoon.org/doc/563155/ >

[7] Dhara Singh Girls High School v. State of Uttar Pradesh [2008] AIR (All HC) available at - < http://indiankanoon.org/doc/1378411/>

[8] Mr. Tilak Raj Tanwar v. The PIO, Deputy Director of Education [2012] (CIC) available at - < http://rti.india.gov.in/cic_decisions/CIC_AD_A_2011_001699_M_73865.pdf >

[9] Krishak Bharti Cooperative Ltd. v. Ramesh Chander Bawa [2010] (Del HC) available at - < http://indiankanoon.org/doc/159896809/>

[10] New Tirupur Area Development v. State of Tamil Nadu [2010] (Mad HC) available at - < http://judis.nic.in/judis_chennai/qrydisp.aspx?filename=25472>

[11] Tamil Nadu Road Development Company Limited v. Tamil Nadu Information Commission [2008] 6 MLJ 737 (Mad HC) available at - < http://indiankanoon.org/doc/454066/>

[12] ibid .

[13] See n 12.

[14] See n 13.

[15] AC Bhanunni Valluvanattukara v. The Commissioner, Malabar Devaswom Board [2011] (Ker HC) available at - < http://judis.nic.in/judis_kerala/qrydisp.aspx?filename=239775>

[16] Indubala Agarwal v. National Commodity and Derivatives Exchange Ltd. [2010] (CIC) available at - <Part 1: http://www.rti.india.gov.in/cic_decisions/LS-01012010-08.pdf> and <Part 2 - http://www.rti.india.gov.in/cic_decisions/LS-08022010-06.pdf>.

[17] SS Angadi v. State Chief Information Commissioner [2009] 5 RCR (Civil) 312 (Kar HC) available at - < http://indiankanoon.org/doc/1198428/>

[18] Dattaprasad Co-operative Housing Society Ltd. v. Karnataka State Chief Information Commissioner [2009] 5 RCR (Civil) 833 (Kar HC) available at - < http://www.the-laws.com/Encyclopedia/Browse/Case?CaseId=018002943000 >

[19] Bidar District Central Co-operative Bank Ltd. v. Karnataka Information Commission, Bangalore [2009] 5 RCR (Civil) 394 (Kar HC) available at - < http://www.the-laws.com/Encyclopedia/Browse/Case?CaseId=018002573000 >

[20] See n 1.

[21] See n 1.

[22] See n 16.

[23] Ajay Hasia v. Khalid Mujib Sehravardi [1981] 2 SCR 79 (SC) available at - < http://indiankanoon.org/doc/1186368/>

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Statement by the Centre for Internet and Society on the Broadcast Treaty at SCCR 30

nehaa — 2015-07-02T01:20:38Z

The 30th Session of the World Intellectual Property Organization's ("WIPO") Standing Committee on Copyright and Related Rights ("SCCR") is underway in Geneva from 29 June, 2015 to 03 July, 2015. While CIS was unable to attend this meeting, we have the following statement to make on negotiations on the Proposed Treaty for Broadcasting Organizations.

This statement was prepared on behalf of CIS by Nehaa Chaudhari. Many thanks to Pranesh Prakash and Amulya Purushothama for their inputs.

Mister Chair,

Our intervention will speak to the presentations made by broadcasting organizations on Day 1 and Member and Group Statements on Days 1 and 2.

First, Mr. Chair, generally on technical panels- If this is the manner in which this Committee will be appraised of new developments, without prejudice to our reservations about this ad-hoc manner itself, we strongly suggest that other interest groups and stakeholders be provided a similar opportunity to present their side of the story, in front of this Committee, for one entire day. Industry representatives, including those from telecommunications, information technology, consumers electronics, and performers- and not just various public interest NGOs have been expressing reservations and concerns about this Treaty from at least as far back as 2006, if not earlier. We appreciate Group B’s ask in their introductory statement to “continue to hear the voices of the real world” – We only ask that you award all stakeholders an equivalent, if not equal opportunity to be heard in the manner that you have the broadcasters; without privileging the interests of the broadcasters above the others. There must be a recognition of the rights of other stakeholders including content owners- not just in the Treaty as noted by India yesterday, but also in the discussions leading up to it.

Second, Mr. Chair, on Technical Background Paper document SCCR 7/8 – which you had flagged off as relevant for this session in your summary of SCCR 29 – but, of course, I stand to be corrected if I have understood incorrectly. Mr. Chair, this document is more than a decade old – it seems to have seen no updates since 2002, and even in that form, it is wanting. The document excludes from its scope the rationale for the treaty as well as the scope for protection, which we find problematic, especially given as these have been among the most contentious topics in this Committee. Additionally in only dealing primarily with the Rome Convention with but a passing reference to other international instruments, if at all, it presents an incomplete overview of the legal framework already available to broadcasters. I also have other comments to this document, which I will send in writing. We’d strongly urge that an updated version of this document be presented to this Committee so that we can have a more accurate discussion, just like the one on market and technology trends has been updated as SCCR 30/5.

Third, Mr. Chair, on the presentations and statements themselves. A reason oft cited in this Committee, Mr. Chair, has been the need to protect the underlying investment and the purported loss of revenue. From their presentations on Day 1 Mr. Chair, it seems to us that the broadcasters are doing perfectly alright without a Broadcast Treaty. Mr. Knapp for IHS in fact said that “Despite digitization, TV homes, paid TV homes are growing globally”, stating also, that there was a very high average revenue per user in North America and a “double digit growth in the pay TV sector” in other regions, which meant a “fairly healthy industry despite all the digital disruption side”. We have also heard from TV Globo who told us of the progress made in advertising and pay TV and smartphone penetration in Brazil, and from Zee Telefilms from India who spoke of a booming broadcasting industry.

Mr. Chair, Nothing we have heard so far addresses three important questions – why is there a need for a separate right? Why are protections under the Rome Convention inadequate? While piracy might well be an issue, why can’t it be covered under existing copyright law – all of which comes down to why we’re discussing the creation of a para copyright regime for broadcasting organizations.

From the Caribbean Broadcasting Union, we heard about emerging technologies and the challenges due to piracy. There was also a mention of significant investment – but if that is to be the basis for this treaty, we would ask that detailed reports of these investments and losses also be placed before this Committee. Also, none of this addresses the lacunae in the Rome Convention or existing international copyright law.

Mr. Chair, we have repeatedly heard from Group B and the European Union on the ‘significant economic value of broadcasting’, but, this economic value has had international law recognition for a while now. While the CEBS group, Japan and Russia speak highly of technological advancements to justify the need for the Broadcast Treaty, there has still been no discussion on the inadequacy of existing international law to address these technological advancements. There needs to be something more that justifies this attempt to give broadcasters an additional layer of rights. It might be useful to conduct a comprehensive study on signal theft and piracy and the legal frameworks in every member state to deal with signal theft and piracy, and an updated study on the international legal framework as well. This Committee has precedent on such an exercise in Prof. Kenneth Crews’ study on limitations and exceptions for libraries and archives that has been tabled at this SCCR.

Mr. Chair, this para copyright we’re trying to create, especially without all stakeholders being heard equally, would in effect severely limit any competition that broadcasting organizations would face from the Internet and other emerging technologies; which is undesirable for any market, besides access to free knowledge and information, as well put by the delegation of Iran.

Thank you.

For more details visit https://cis-india.org/a2k/blogs/statement-by-the-centre-for-internet-and-society-india-on-the-broadcast-treaty-at-sccr-30

MHRD IPR Chair Series: Information Received from IIT, Kharagpur

nehaa — 2016-05-15T06:19:57Z

This post provides a factual description about the operation of Ministry of Human Resource Development IPR Chair’s Intellectual Property Education, Research and Public Outreach (IPERPO) scheme in the Indian Institute of Technology, Kharagpur.

The author has analysed all the data received through which, the author seeks to trace the presence of unjustified underutilisation of funds by the aforementioned university as provided by the MHRD during the period of 2013-2014.

To collect the information for the given study, an RTI application was filed to IIT, Kharagpur on 25/11/2014 by the Centre for Internet and Society. The reply to the same was received on 17/12/2014. Following this, a second application was filed on the 10/03/2015 by the Centre for Internet and Society. The reply to RTI application was received on 17/04/2015.

These are the documents received by CIS from IIT, Kharagpur:

For the reply to the first RTI application click here
For the reply to the second RTI application click here
For the documents detailing the proposal for the setting up of IPR chair in IIT, Kharagpur, click here
For the documents detailing the minutes of the meeting regarding the setting up of the IPR chair in IIT, Kharagpur, click here

Hereinafter, in order to receive any information about IIT, Kharagpur’s RTI reply, kindly refer to the above mentioned links. Following are the queries mentioned in the RTI application along with their replies.

Reports on the implementation of the IPERPO scheme of the Ministry of Human Resource Development and the implementation of the MHRD IPR Chair funded under the scheme at IIT, Kharagpur
Reply: IIT, Kharagpur has submitted the documents required under this track.
Documents detailing the release of grants to the MHRD IPR Chairs under the IPERPO Scheme
Reply: Documents pertaining to the year 2006 and 2013 have been submitted by the University.
Documents relating to receipts of utilisation certificates and audited expenditure statements and matters related to all financial sanctions with regard to funds granted to the MHRD IPR Chair established under the IPERPO scheme at IIT, Kharagpur.
Reply: The University replied that it has not received any confirmation from the MHRD regarding the mentioned documents.

Comparative Analysis between University Response and the guidelines of MHRD Scheme Document
The Scheme document of MHRD is comprehensive document which consists of guidelines regarding Intellectual Property Education, Research and Public Outreach. It talks about a list of objectives, purposes, conditions and eligibility criteria for a University to ensure in order to implement IPERPO in a truest sense. This document provides the procedural as well as qualifying conditions for an Institute to ensure or fulfil before applying for the MHRD grant. Some of these conditions include maintenance of utilization certificates, audit reports, expenditure statements and event information which would be open to access on demand by MDHR or Comptroller and Auditor General of India.

A. Objectives
In order to fulfil the objectives mentioned in the scheme document, IIT, Kharagpur undertook following activities:
a. Conducting multiple workshops over the years to further the training of teachers as well as at a student level
b. Hosting numerous conclaves on the subject of IPR and their relation to business
c. Providing short term course on training of teachers in the field of IPR
d. Held various symposiums, seminars and conferences for the furtherance of IPR
e. Hosted various interactive platforms regarding IPR
f. Undertook research collaborations in IPR
B. Eligibility
IIT, Kharagpur is recognized by the University Grants Commission. Therefore, it fulfils the eligibility criteria mentioned in the scheme document.

Financial Analysis
The University has not provided documents regarding any financial analysis.

For more details visit https://cis-india.org/a2k/blogs/mhrd-ipr-chair-series-information-received-from-iit-kharagpur