Centre for Internet and Society

January 2011 Bulletin

praskrishna — 2012-07-30T11:25:44Z

Greetings from the Centre for Internet and Society! It gives us immense pleasure to present regular updates on the progress of our research on the mainstream Internet media. In this issue of we bring our latest project updates, news and media coverage:

Researchers@Work

RAW is a multidisciplinary research initiative. CIS believes that in order to understand the contemporary concerns in the field of Internet and society, it is necessary to produce local and contextual accounts of the interaction between the Internet and socio-cultural and geo-political structures. To build original research knowledge base, the RAW programme has been collaborating with different organisations and individuals to focus on its three year thematic of Histories of the Internets in India. Monographs finalised from these projects have been published on the CIS website for public review:

Digital Natives

CIS has interest in developing Digital Identities as a core research area and looks at practices, policies and scholarships in the field to explore relationships between Internet, technology and identity.

Column on Digital Natives

A fortnightly column on ‘Digital Natives’ authored by Nishant Shah is featured in the Sunday Eye, the national edition of Indian Express, Delhi, from 19 September 2010 onwards. The following article was published in the Indian Express recently:

Is That a Friend on Your Wall? [published in the Indian Express on 9 January 2010]

Workshop

The third and final workshop in the Digital Natives with a Cause? research project will take place in Santiago, Chile, from the 8 to 10 February. Open Call and FAQs for the workshop are online:

Blog Entry by Maesey Angelina

Maesy Angelina is a MA candidate on International Development, specializing in Children and Youth Studies at the International Institute of Social Studies, Erasmus University of Rotterdam. She is working on her research on the activism of digital natives under the Hivos-CIS Digital Natives Knowledge Programme. She spent a month at CIS, working on her dissertation, exploring the Blank Noise Project under the Digital Natives with a Cause framework. She writes a series of blog entries. The latest is:

The Digital Tipping Point

Announcement

Rising Voices Seeks Micro-Grant Proposals for Citizen Media Outreach

Accessibility

Estimates of the percentage of the world's population that is disabled vary considerably. But what is certain is that if we count functional disability, then a large proportion of the world's population is disabled in one way or another. At CIS we work to ensure that the digital technologies, which empower disabled people and provide them with independence, are allowed to do so in practice and by the law. To this end, we support web accessibility guidelines, and change in copyright laws that currently disempower the persons with disabilities.

New Blog Entry

Accessibility in Telecommunications

Intellectual Property

Copyright, patents and trademarks are the most important components on the Internet. CIS believes that access to knowledge and culture is essential as it promotes creativity and innovation and bridges the gaps between the developed and developing world positively. Hence, the campaigns for an international treaty on copyright exceptions for print-impaired, advocating against PUPFIP Bill, calls for the WIPO Broadcast Treaty to be restricted to broadcast, questioning the demonization of 'pirates', and supporting endeavours that explore and question the current copyright regime. Our latest endeavour has resulted into these:

New Blog Entry

New Release of IPR Chapter of India-EU Free Trade Agreement

Internet Governance

Although there may not be one centralised authority that rules the Internet, the Internet does not just run by its own volition: for it to operate in a stable and reliable manner, there needs to be in place infrastructure, a functional domain name system, ways to curtail cybercrime across borders, etc. The Tunis Agenda of the second World Summit on the Information Society (WSIS), paragraph 34 defined Internet governance as “the development and application by governments, the private sector and civil society, in their respective roles, of shared principles, norms, rules, decision-making procedures, and programmes that shape the evolution and use of the Internet.” Within the larger field of Internet governance, the Internet Governance Forum (IGF), a multi-stakeholder policy dialogue forum that was instituted by the WSIS processes and that is their only formal outcome, has fast emerged as one of the key institutions. As the definition quoted above indicates, a unique feature of the field of Internet governance is that, unlike many other governance spheres, it does not only involve governments. Historically, not only governments but also the technical community and private players have played a crucial role in the development of the Internet. In the context of the IGF, that role is not only explicitly acknowledged but also institutionalised as the IGF formally brings together governments, private players and civil society actors from all areas of and organisations involved in Internet governance. Moreover, now that the open and egalitarian potential of the Internet is increasingly under attack, this unique nature of the IGF, in addition to its WSIS roots, has made it a prime venue to remind stakeholders in all areas of Internet governance of the commitment they have made earlier to building a “people-centred, inclusive and development-oriented Information Society” (WSIS Geneva Principles, Para 1). CIS involvement in the field of Internet governance has the following shape:

New Blog Entry

Jurisdictional Issues in Cyberspace

Privacy

CIS has undertaken many new and exciting projects. One of these, "Privacy in Asia", is funded by Privacy International (PI), UK and is being completed in collaboration with Society and Action Group. "Privacy in Asia" is a two-year project that commenced on 24 March 2010 and will complete within two years from the commencement date, unless otherwise agreed to by the parties. The project was set up with the objective of raising awareness, sparking civil action and promoting democratic dialogue around privacy challenges and violations in India. In furtherance of these goals it aims to draft and promote an over-arching privacy legislation in India by drawing upon legal and academic resources and consultations with the public.

Apart from "Privacy in Asia" CIS is also participating in the " Privacy and Identity" project, which is funded by the Ford Foundation and managed by the Centre for Study of Culture and Society. The project is a research inquiry into the history of Privacy in India and how it shapes the contemporary debates around technology mediated identity projects like Aadhaar. The "Privacy and Identity" project started in August 2010.

New Blog Entries

Staff Update

Prashant Iyengar is a lawyer and legal scholar who has worked extensively on intellectual property issues particularly focusing on copyright reform and open access. He is a past recipient of an Open Society Institute fellowship for research into Open Information Policy, and has been affiliated with the Alternative Law Forum – a collective of lawyers in Bangalore engaged in human rights practice.

Prashant joined the Centre for Internet and Society as a lead researcher in the Privacy India project recently.

Telecom

The growth in telecommunications in India has been impressive. While the potential for growth and returns exist, a range of issues need to be addressed for this potential to be realized. One aspect is more extensive rural coverage and the second aspect is a countrywide access to broadband which is low at about eight million subscriptions. Both require effective and efficient use of networks and resources, including spectrum. It is imperative to resolve these issues in the common interest of users and service providers. CIS campaigns to facilitate this.

Column

Shyam Ponappa is a Distinguished Fellow at CIS. He writes regularly on Telecom issues in the Business Standard and these articles are mirrored on the CIS website as well.

The policy langurs [published on 6 January 2011]

News & Media Coverage

Civic hackers seek to find their feet in India (Livemint, 24 January 2011) and (IndiaInfoline, January 2011)
A Tweet and a poke from the CEO (Livemint, 24 January 2011)
Clicktivism & a brave new world order (Mail Today, 2 January 2011)
Would it be a unique identity crisis? (Bangalore Mirror, 2 January 2011)
Nel suk dei nativi digitali. Perché gli studenti 2.0 hanno bisogno di una bussola per orientarsi (Il Sore24 ORE, 2 January 2011)
A Refreshing Start! (Verveonline, Volume 19, Issue 1, January, 2011)
Getting Connected (Livemint, January 2011)
Knowledge Warriors (Il Sore24 ORE, January 2011)
Nishant Shah Quoted in Livemint 2011 Tweet-out (Livemint, January 2011)
Digital Natives with a Cause? - Workshop in Chile seeks participants (Bahama islands info, 30 December 2010)
Mothers discuss kids, music, fashions, on Net (The Hindu, 26 December 2010)

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For more details visit https://cis-india.org/about/newsletters/january-2011-bulletin

Exhaustion PDF

praskrishna — 2011-10-03T05:16:58Z

file

For more details visit https://cis-india.org/a2k/publications/exhaustion.pdf

Indian Copyright Act, 1957 (as amended by Copyright (Amendment) Bill, 2010)

admin — 2011-08-24T06:58:10Z

For more details visit https://cis-india.org/a2k/publications/amended-copyright-act.html

At WIPO, Study On Copyright Exceptions Stimulates Broad Discussion With Author

praskrishna — 2014-12-27T14:33:46Z

During the recent meeting of the World Intellectual Property Organization copyright committee, a study was presented on exceptions and limitations to copyright for libraries and archives at the national level. The presentation spurred a full day of discussion about how to ensure libraries can continue to provide an indispensable service, and a substantive exchange with the author.

The article by Catherine Saez was published in Intellectual Property Watch on December 18, 2014

The 29th session of the Standing Committee on Copyright and Related Rights (SCCR) took place from 8-12 December.

On 10 December, Kenneth Crews, former director of the copyright advisory office at Columbia University and now in the private sector, presented an update [pdf] of his 2008 WIPO-commissioned study on Copyright Limitations and Exceptions for Libraries and Archives (IPW, WIPO, 12 December 2014).

The study provided safe ground for broad discussions on the sensitive issue of exceptions and limitations, and the role of WIPO in the issue, with a large number of countries taking the floor to offer comments on the study and its findings, providing specific details on their own legislation and/or asking questions.

Harmonisation

Mexico, for example, asked whether there was a general movement leading to a harmonisation exercise in international copyright law.

Crews answered there was no movement toward an era of harmonisation, but harmonisation could be an answer in the field of limitations and exceptions if it left sufficient policy space to countries.

On the one hand, he said, “there is virtue in harmonisation, in allowing for the predictability of the law … as your business activities move from one country to another.” It makes the law easier to understand, and easier to address some of the issues of cross-border exchange..,” he said.

But the major disadvantage of harmonisation would be the loss of opportunity for countries to “experiment, test new ideas in lawmaking, and to move in some new directions,” he added.

Maybe the answer lies in the middle, said Crews: harmonise the law to a certain extent, “and then leave some of the details to individual countries.”

The European Union delegate remarked that even in an integrated legal system such as the EU, very few exceptions to copyright are mandatory for EU members. Member states “remain free to implement most of the exceptions in the EU legislation in their national systems,” he said.

Implementation Issues

Tunisia stressed the issue of the implementation of copyright exceptions and limitations in developing countries, particularly for libraries. Libraries often are “fearful of the complications,” referring to the exceptions and limitations legislation, and simply do not use it, preferring “what is possible and available,” he said

Crews said it is important to find “the right formula” for drafting a statute that is detailed enough that users are law-abiding citizens, “and at the same time not be so complicated in the structure of the law that it is difficult or impractical for most – even trained professionals – to follow.”

Cross-Border Exchange, TPMs

Brazil said the study sheds light on certain areas where further cooperation would be welcome. The Brazilian delegate said this cooperation could take into account the dynamic evolution of digital technologies and the “growing cross-border cooperation among libraries and archives.”

The delegate said some factors pose concrete problems for cross-border cooperation, such as the fact that some 33 WIPO members do not provide exceptions for libraries, and a higher number of countries do not provide exceptions and limitations that “could be deemed adequate” to address the new challenges created by the digital environment, and limitations and exceptions provided by national legislation vary deeply from country to country.

Now that the research has started with the 2008 report has been updated, we can see that from the universe of the WIPO membership 33 countries still do not provide limitations and exceptions for libraries and archives in their national legislation. A even greater number of WIPO members do not seem to provide limitations and exceptions that could be deemed adequate in order to address the new challenges libraries and archives increasingly face with the emergence of the digital environment

He also said the study states that technological protection measures (TPM) can have a negative impact on countries’ ability to “legitimately implement exceptions and limitations,” which is a “growing concern as countries seek to better regulate and avoid abuses in the use of TPMs.”

Crews said the issue of cross-border activity and the difficulty in cooperation between countries induced by the difference in laws is perhaps one of the most important that WIPO could address. Part of the solution to that problem might be a trusted third party facilitating the transfer of copyrighted works, he said. A sharing of resources should be allowed while protecting the interest of right-holders, he said, “so that they can participate in this and encourage this activity as well.”

Many developing countries keep insisting that the major issue for libraries and archives is the digital era. The digital revolution “has barely begun,” Crews said. “The transformation of technology and the way we communicate and the way we share information is only beginning, so it is important not to prescribe exact details, but … to take some steps to open up the issue,” he said.

Chile also underlined the fact that the study showed a low number of countries providing exceptions for interlibrary loans.

According to Crews, using licences for cross-border activities is limited to the countries which the licence covers. The risks of having licences as a solution to cross-border exchange is that “it leaves the terms to private negotiations,” and many countries might not have laws on licensing.

Licensing Agreements

Sweden said the country has a dual system: “traditional limitations” in the law or preservation and replacement, for example, and a licensing agreement system. The two systems run side-by-side smoothly, he said.

Crews said that the licensing agreement system is not adaptable to all countries. “There are many reasons why it has not been adopted” in some countries, he said, adding, “I would express some concern about requiring it as an international matter.”

The European Union said exceptions and limitations and licences often coexist well. Those licences are often collectively negotiated, said the EU delegate, and sometimes cover broader uses than the exceptions themselves.

Crews said conceptually in the law-making process, countries need to reckon with the relationship not only of the rights of owners and the public rights of use or the copyright exceptions, but also the role of licences, and should they be allowed to override an exception that is in the law.

“That is a tough question,” he said. “It not only goes to the balance of rights,” he added, but lawmakers should decide to what extent an agreement can impede the statute they have worked hard to develop.

Countries Provide Clarifications, New Legislations

Some countries provided clarifications or additions to the study. For example, Saudi Arabia, which was mentioned in the study as one of the countries with no exceptions and limitations, said the 1984 copyright law provides an exception in paragraph 3.

Ecuador said it is working on a substantial reform of its current intellectual property legislation, including exceptions and limitations for people with disabilities, teaching and educational institutions, and libraries and archives.

China said it is undergoing the third revision of its copyright law, and Thailand said in November it passed an amendment to its copyright law, on TPMs, and this amendment includes an exemption for the circumvention of TPM for libraries and archives, educational institutes, and public broadcasting organisations.

Crews said many countries, including the United States and those in the European Union, have exceptions for TPMs, with two basic procedures: an exception that allows the user to “do the act of circumventing the measures to access the content,” and a legal system that calls on the rights holder to provide the means to users to access the content.

The United States said the US Congress is currently reviewing elements of its domestic copyright law, including library-related exceptions and limitations.

In November, the Czech Republic introduced a new amendment to its copyright system, the delegate said, “and the amendment brought a new exception for libraries and archives and for other cultural and educational institutions and for public broadcasters,” enabling them to use orphan works existing in their collection, under specific terms and for certain specific uses.

NGO Questions and Comments

The representative of the Electronic Information for Libraries (eIFL) asked Crews how WIPO, as a United Nations agency with a commitment to enhance developing countries’ participation in the global innovation economy, could support countries to be at the forefront of digital developments. The representative also asked how libraries can accommodate their increasing need to send and receive information across border, within the realm of copyright law.

Many countries have either no exceptions, or have exceptions but very limited applications, which do not cover digital technology, Crews said, adding that WIPO is in a position to shape the next model.

The International Publishers Association said that legislation is one thing but to know whether they are implemented and how they work is another. The representative advised looking at what kind of practice, and also practical initiatives between stakeholders can solve issues at stake.

In many cases, the representative said, issues are solved by alternative means, citing collective licensing, but also solutions bringing together stakeholders, he said, which provide space and flexibility for adaptation and further change. On cross-border document delivery, he said, “It is not true that documents are not crossing continents or crossing borders.” He explained that there are many alternative ways of receiving content across borders.

Crews said he is supportive of alternatives outside of the law, however, they might not be optimal solutions, he said. In particular, it often takes no less time to develop those alternatives than writing law, he said. He added that those alternatives, such as licences, are available only with respect to certain types of works, whereas statues apply to all types of works.

“The private extra-legal systems are not going to solve all of the issues,” said Crews.

The International Federation of Library Associations and Institutions said the United Kingdom reform of its copyright law includes for the first time provisions that prevent contracts and licences from overriding the exceptions and limitations enjoyed by libraries and archives for non-commercial uses.

The Center for Internet and Society (India) asked about the interoperability of limitations and exceptions to allow for easier trans-boundary movement of works. Crews said the trans-border concept seldom appears in library exceptions. Trans-border sometimes is governed by copyright law and sometimes by some other part of national law, such as import and export, he said. Some degree of harmonisation can help with interoperability, he said.

In general terms, and following an intervention by the TransAtlantic Consumer Dialogue mentioning public involvement in the discussions, Crews said, “We are all copyright owners and we are all users of other people’s copyrights to some extent.”

The public does not realise that they are all owners and users of copyrighted works on a daily basis, he said, and they need to become participants in the process.

[Update:]

Knowledge Ecology International asked if the periodical revision of the Berne Convention’s standards for copyright exceptions, which ended in 1971, should be resumed. The KEI representative also asked whether the copyright three-step test contained in the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) applies to specific limitations and exceptions to remedies for infringement, in part III of TRIPS (Enforcement of Intellectual Property Rights).

Crews answered that the three-step test does not apply to the remedies, or other matters. The test is on “its own terms applicable to the limitations and exceptions,” he said.

On the revision on the Berne Convention, Crews said “the answer is yes” but it is a “bigger subject than we are convened here today to discuss.”

KEI also mentioned a Spanish tax which “apparently” is taken on snippets from news organisations and asked if this tax does not violate the two mandatory exceptions in the Berne Convention, which are news of the day, and quotations.

Crews said the issue might be about the interrelationship of copyright with other areas of the law. The Spanish tax mentioned might be relative to a tax law, he said.

For more details visit https://cis-india.org/a2k/news/ip-watch-catherine-saez-december-18-2014-wipo-study-on-copyright-exceptions-stimulates-broad-discussion-with-author

WIPO Delegates Hear Concerns of NGOs on Exceptions for Libraries

praskrishna — 2014-12-27T14:40:05Z

As World Intellectual Property Organization member states launched into discussions on exceptions and limitations to copyright for the benefit of libraries and archives this week, non-governmental organisations were given the opportunity to present their views on the issue. They delivered vibrant, sometimes contradictory, statements on the opportunity for a treaty to preserve exceptions in the international copyright system.

The 26th session of the WIPO Committee on Copyright and Related Rights (SCCR) is taking place from 16-20 December. After two days devoted to the protection of broadcasting organisations, the focus of the next two days has been on a potential international instrument providing exceptions and limitations for libraries and archives.

In their general statements, countries remained faithful to their known positions. Developing countries generally underlined the necessity of achieving a balanced international copyright system and their wish to establish a legally binding instrument, and developed countries were of the view that the existing international copyright system already provides exceptions which could be used by libraries and archives.

The African Group said the countries in the group: find it difficult to set up and understand the existing limitations and exceptions; believe an international legally binding instrument would enable them to understand better how they can provide exceptions and limitations for libraries and archives; and consider that it would provide a mechanism for cross-border exchange for such entities.

The European Union clearly stated that its member countries were not willing to consider a legally binding instrument, and said that exceptions and limitations for libraries and archives did not require the same kind of action that was taken in favour of visually impaired people, referring to the recently adopted Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled.

Developed countries, in particular those in the European Union, did not always stand in favour of a treaty providing exceptions and limitations to copyright for visually impaired people. In the discussion on libraries and archives, developed countries are in favour of sharing national experiences rather than establishing binding new norms.

The United States said it was not in support of norm-setting through treaty provisions. The delegate also said exceptions and limitations should be consistent with other member state obligations, including the so-called three step test.

The notion of three-step test haunted the discussions leading to the Marrakesh Treaty. It stems originally from Article 9(2) of the Berne Convention for the Protection of Literary and Artistic Works (IPW, WIPO, 14 June 2013) and provides conditions for reproduction.

A large number of non-governmental organisations took the floor on 18 December, with stark differences in the approach of the issue of exceptions and limitations to copyright for libraries and archives.

Industry, Creators: International Instrument Superfluous

The industry, such as the International Federation of Film Producers, the Motion Picture Association (MPA), The International Association of Editors (IPA), the International Video Federation (IVF), the Ibero-Latin-American Federation of Performers (FILAIE), and the International Association of Scientific, Technical and Medical Publishers (STM), said that the existing international copyright framework already provides exceptions and limitations, and national legislations can be develop to address issues met by libraries and archives.

FILAIE said that it was in support of the Marrakesh Treaty but that a balance between society and the rights holders should be maintained. The IPA said there is no need for change in the international law, and suggested active legislative assistance to WIPO member states by the secretariat.

IVF concurred and said effective technical assistance in implementing the existing international copyright framework should be a focus of the SCCR.

The International Federation of Reproduction Rights Organisation (IFRRO), in its statement, also said the current international conventions adequately provide for the establishment of relevant library exceptions in national legislation, such as reproduction for preservation proposals. The sharing of experiences ” both in the wording of library and archive exceptions and practical solutions seems to IFRRO to be the most appropriate way to enhance the performance of library and archive services,” the representative said.

“Exceptions and limitations are already part of the toolkit of existing treaties,” the representative for the International Federation of Actors and the International Federations of Musicians said. The international normative framework is providing “a coherent and flexible structure with just recognition of the contribution of creators to the information society and knowledge society, and the establishment of exceptions and other mechanisms providing access for the public to creative content,” he said.

The International Authors Forum concurred with the idea that existing provisions contain sufficient flexibility and asked that WIPO member states “will take advantage of the opportunity provided by the WIPO texts for adequate remuneration for the authors in accordance with the three-step test.”

Libraries, Archive Underline Inadequacies, Support Treaty

Libraries and archivists have a different view of the issue and reported on problems as they experience them on the ground.

The German Library Association cited a new study published by the European Commission (Study on the application of Directive 2001/29/EC on copyright and related rights in the information society [pdf]), and said it “paints a dire picture of the adequacy of the Directive for exceptions for libraries in the European Union in the digital environment.”

In particular, the representative said, it “identifies a lack of cross-border application of exceptions for libraries and a patchwork of national laws as preventing libraries from fulfilling their functions,” in particular presenting cross-border issues, he said.

“There is a high level of international copyright protection,” he said, but “there is no such uniformity of limitations.” To act legally, he said, “library staff has to know about the limitations and exception, not only in their own country, the country of origin, but also in the country of destination of its service.”

The Canadian Library Association said it came to WIPO “to ensure a basic copyright framework is made available to libraries everywhere, and not just in Canada to deliver essential information services, and so that other communities can benefit from the same societal and economic impacts as we have in Canada.”

Even in Canada, the representative said, libraries’ activities are under threat, “as increased restrictions such as technology group protection measures and licensing terms and conditions degrade the environment in which we work, leaving libraries changing our role to simple market access intermediaries for publishers.”

For Electronic Information for Libraries, an international framework establishing basic standards is necessary to avoid increasing inequalities in public knowledge. “We recognise the theory that the international copyright framework provides legal space to ensure meaningful limitations and exceptions,” the representative said, “But when the reality is different, and the gap between countries is widening, intervention is required to ensure the integration of key public interest concepts into the international framework.”

The International Federation of Library Associations and Institutions also underlined the disparity in national exceptions and limitations making it impossible for libraries to “competently fulfil our role as intermediaries between rights holders and users.”

CIS Submission to the Expert Committee: Comment on the Broadening of Definitions in the Proposed Broadcast Treaty Compared to Other International Conventions

Amulya Purushothama and Nehaa Chaudhari — 2015-09-03T02:08:34Z

This is a submission made by Nehaa Chaudhari on behalf of the Centre for Internet and Society to the Expert Committee on the Broadcast Treaty constituted by the Ministry of Information and Broadcasting, Government of India. This submission compares the definitions of various terms in the Proposed Treaty for the Protection of Broadcasting Organizations that is being deliberated at WIPO's SCCR at the moment, and definitions for these terms that are already present in existing international instruments.

Special thanks to CIS intern, Amulya Purushothama for her research and writing on this subject. While Amulya was acknowledged as the co author in the actual submission itself, the blurb didn't say so and this has now been changed. Download the file of CIS submission here.

Introduction

This note analyses the differences in definitional clauses across six documents, the proposed Treaty on the Protection of Broadcasting Organisations [1] ("Broadcast Treaty"), the Proposal on the Draft Treaty on the Protection of Broadcasting Organization- The Proposal by the Delegation of South Africa[2] ("Proposal by South Africa"), The WIPO Copyright Treaty, 1996, the WIPO Performances and Phonograms Treaty,1996 ("WPPT"), the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, 1961 ("The Rome Convention"), and the Beijing Treaty on Audiovisual Performances, 2012 ("The Beijing Treaty")

The definitions for signal, broadcasting, broadcasting organization, retransmission, fixation, communication to the public and rights management information will be studied in detail as the definitions for these concepts has varied somewhat through the years. The rest of the definitions can be found in a detailed table that follows.

The argument here is simply that by subtly broadening the definition of certain terms, the broadcast treaty grants a higher level of protection to broadcasting organization, and that these protections could possibly extend to covering the content underlying the signals.

1. Signal

The proposed Broadcast Treaty defines a signal as an "electronically generated carrier consisting of sounds or images or sounds and images or representations thereof whether encrypted or not"[3], the alternative to this provision defines a signal as an "electronically generated carrier capable of transmitting a broadcast cablecast"[4]. The proposal by South Africa, on the other hand, defines a signal as "an electric current or electromagnetic field used to convey data". Clearly the definition in the Broadcast Treaty could be extended to cover the content underlying the signal and is not as technologically neutral as the alternative definitions.

2. Broadcasting

The proposed Broadcast Treaty defines broadcast as the "transmission of a signal by a broadcasting organization for reception by the public"[5], an alternative to this excludes signals sent over computer networks from the definition of a broadcast, [6] another alternative defines broadcasting as "the transmission by wireless means for the reception by the public of sounds or of images or of images and sounds or of the representations thereof". This definition includes satellite transmission, wireless transmission of encrypted signals where the means for decrypting are provided to the public by the broadcasting organization or with its consent. Transmission over computer networks is excluded from this definition as well.[7] This mirrors definitions of broadcasting set out in the WPPT[8], the Rome Convention[9] and the Beijing Treaty[10]. The proposal by South Africa defines "broadcasting" as the process whereby "the output signal of a broadcasting organization is taken from the point of origin, being the point where such signal is made available in its final content format and is conveyed to any broadcast target area by means of electronic communications" and "broadcast" is construed accordingly. Clearly the proposed definition under the Broadcast Treaty is less technologically neutral as compared to the proposal by South Africa. The proposed definition under the Broadcast Treaty also does not limit the protection granted by the treaty to the signal and unlike the proposal by South Africa does not ensure that definition excludes the underlying content being transmitted by the signal.

3. Broadcasting Organisations

The proposed Broadcast Treaty defines a broadcasting organization as "the legal entity that takes the initiative for packaging assembling and scheduling program content for which it has, where necessary, been authorized by rights holders and takes the legal and editorial responsibility for the communication to the public of everything which is included in its broadcast signal." Or alternatively[11], considers broadcasting organisations and cablecasting organisations as one and the same and defines them as "the legal entity that takes the initiative and has the responsibility for the transmission to the public of sounds or of images or of images and sounds or of the representation thereof and the assembly and scheduling of the content of the transmission." The proposal by South Africa defines a broadcasting organization as the "legal entity that has the responsibility for packaging, assembly and/or scheduling of program content for which it has legitimate license. Or rights of use for the transmission to the public, sections of the public or subscribers in the form of an unencrypted or encrypted output signal containing sounds, visual images or other visible signals whether with or without accompanying sounds". Clearly, in stark contrast to the proposed Broadcast Treaty, the proposal by South Africa ensures that cablecasting organisations aren't included within the definition of broadcasting organisations, this definition is also by far the most technologically neutral and ensures adequate protection for broadcasting organisations on all broadcasting platforms.

4. Retransmission

The proposed Broadcast Treaty defines "retransmission" as "the transmission by any means by any person other than the original broadcasting organization for reception by the public whether simultaneous or delayed";[12] or alternatively defines rebroadcast as "the simultaneous transmission for the reception by the public of a broadcast or a cablecast by any other person than the original broadcasting organization"; even simultaneous transmission of a rebroadcast is understood to be a rebroadcast under this definition. [13]

Under a further alternative[14] retransmission is defined as "the simultaneous transmission for the reception by the public by any means of a transmission … by any other person than the original broadcasting or cablecasting organization" this definition of retransmission also includes simultaneous transmission of a retransmission.

To contrast to this, the Rome convention defines rebroadcasting as the simultaneous broadcasting by one broadcasting organization of the broadcast of another broadcasting organization.[15] Clearly a higher level of protection is granted to broadcasting organisations under the proposed Broadcast Treaty, one that was so far not guaranteed to them by international conventions.

5. Fixation

The proposed Broadcast Treaty defines fixation as "the embodiment of sounds or images or sounds and images or representations thereof from which they can be perceived , reproduced or communicated through a device" [16] [17],the WPPT defines fixation as "the embodiment of sounds, or of the representations thereof, from which they can be perceived, reproduced or communicated through a device";[18] and the Beijing Treaty defines audiovisual fixation as "the embodiment of moving images, whether or not accompanied by sounds or by the representations thereof, from which they can be perceived reproduced or communicated through a device".[19] In this capacity, the definitions proposed in the Broadcast Treaty seem to be in line with the earlier international treaties.

6. Communication to the Public

The proposed Broadcast Treaty defines communication to the public as "any transmission or retransmission to the public of a broadcast signal or a fixation thereof by any medium or platform".[20]or alternatively as "making the transmissions … audible or visible or audible and visible in places accessible to the public.[21] Whereas the WPPT defined communication to the public as "the transmission to the public by any medium, otherwise than by broadcasting, of sounds of a performance or the sounds or the representations of sounds fixed in a phonogram… including making the sounds or representations of sounds fixed in a phonogram audible to the public."[22] The Beijing Treaty defined communication to the public as "the transmission to the public by any medium otherwise than by broadcasting, of an unfixed performance or of a performance fixed in an audio visual fixation… "communication to the public" includes making a performance fixed in an audiovisual fixation audible or visible or audible and visible to the public." [23] Clearly the definition has been broadened under the proposed treaty, which makes it plausible for the protection granted to broadcasters to cover the content underlying the signal as well.

7. Rights Management Information

The proposed Broadcast Treaty defines rights management information as "information that identifies the broadcasting organization, the broadcast, the owner of any right in the broadcast, or information about the terms and conditions of use of the broadcast and any numbers or codes that represent such information when any of these items of information is attached to or associated with the broadcast or the pre broadcast signal or its use in accordance with Article 6."[24] The WIPO Copyright Treaty, 1996, defines it as "information which identifies the work, the author of the work, the owner of any right in the work, or information about the terms and conditions of use of the work, and any numbers or codes that represent such information, when any of these items of information is attached to a copy of a work or appears in connection with the communication of a work to the public."[25]

The WPPT extends the same definition to performances and performers as it defines rights management information as "information which identifies the performer, the performance of the performer, the producer of the phonogram, the phonogram, the owner of any right in the performance or phonogram, or information about the terms and conditions of use of the performance or phonogram, and any numbers or codes that represent such information, when any of these items of information is attached to a copy of a fixed performance or a phonogram or appears in connection with the communication or making available of a fixed performance or a phonogram to the public."[26] And the Beijing Treaty defines rights management information as "information which identifies the performer, the performance of the performer or the owner of any right in the performance or information about the terms and conditions of use of the performance, and any numbers or codes that represent such information, when any of these items of information is attached to a performance fixed in an audiovisual fixation."[27]

Clearly the current treaty extends the protection offered to rights management information to pre-broadcasting signals in addition to broadcast signals, this represents a higher level of protection granted to broadcasters under the proposed Broadcast Treaty.

Detailed Table on Definitions in International Treaties

Definition	Broadcast Treaty 27/2 rev	Broadcast Treaty Proposal by South Africa WIPO/CR/Consult/GE/11/2/2	WIPO Copyright Treaty, 1996	WIPO Performances and Phonograms Treaty,1996	Rome Convention, 1961	Beijing Treaty on Audiovisual Performances, 2012
Signal	Article 5, Alternative A, 5(a): "signal" is an electronically generated carrier consisting of sounds or images or sounds and images or representations thereof, whether encrypted or not; Alternative to (a), "signal" means an electronically generated carrier capable of transmitting a broadcast or cablecast	"signal" is an electric current or electromagnetic field used to convey data;
Broadcast	Article 5, Alternative A : Article 5 (b): "broadcast" means the transmission of a signal by or on behalf of a broadcasting organization for reception by the public; Alternative to (b): "broadcast" means the transmission of a set of electronically generated signals by wireless and carrying a specific program for reception by the general public, broadcast shall not be understood as including transmission of such a set of signals over computer networks. Alternative B for Article 5, Article 5 (a) "broadcasting" means the transmission by wireless means for the reception by the public of sounds or of images or of images and sounds or of the representations thereof; such transmission by satellite is also "broadcasting". Wireless transmission of encrypted signals is "broadcasting" where the means for decrypting are provided to the public by the broadcasting organization or with its consent. "broadcasting" shall not be understood as including transmissions over computer networks	"broadcasting" means the process whereby the output signal of a broadcasting organization is taken from the point of origin, being the point where such signal is made available in its final content format and is conveyed to any broadcast target area by means of electronic communications and "broadcast" is construed accordingly"		Article 2(f): "broadcasting" means the transmission by wireless means for public reception of sounds or of images and sounds or of the representations thereof; such transmission by satellite is also "broadcasting"; transmission of encrypted signals is "broadcasting" where the means for decrypting are provided to the public by the broadcasting organization or with its consent;	Article 3 (f): "broadcasting" means the transmission by wireless means for public reception of sounds or of images and sounds;	Article 2(c): "broadcasting" means the transmission by wireless means for public reception of sounds or of images and sounds or of the representations thereof; such transmission by satellite is also "broadcasting", transmission of encrypted signals is "broadcasting where the means for decrypting are provided to the public by the broadcasting organization or with its consent.
Broadcasting Organization	Article 5, Alternative A to Article 5 (c): "broadcasting organization" means the legal entity that takes the initiative for packaging assembling and scheduling program content for which it has, where necessary, been authorized by rights holders and takes the legal and editorial responsibility for the communication to the public of everything which is included in its broadcast signal. Alternative B for Article 5, Article 5 (c): "broadcasting organization" and "cablecasting organization" mean the legal entity that takes the initiative and has the responsibility for the transmission to the public of sounds or of images or of images and sounds or of the representation thereof and the assembly and scheduling of the content of the transmission.	"broadcasting organization" means the legal entity that has the responsibility for packaging, assembly and/or scheduling of program content for which it has legitimate license. Or rights of use for the transmission to the public, sections of the public or subscribers in the form of an unencrypted or encrypted output signal containing sounds, visual images or other visible signals whether with or without accompanying sounds.
Retransmission	Article 5, Alternative A to Article 5(d): "retransmission" means the transmission by any means by any person other than the original broadcasting organization for reception by the public whether simultaneous or delayed; Alternative to (d) rebroadcast means the simultaneous transmission for the reception by the public of a broadcast or a cablecast by any other person than the original broadcasting organization; simultaneous transmission of a rebroadcast shall be understood as well to be a rebroadcast. Alternative B for Article 5, Article 5 (d): "retransmission" means the simultaneous transmission for the reception by the public by any means of a transmission referred to in provisions (a) or (b) of this article by any other person than the original broadcasting or cablecasting organization; simultaneous transmission of a retransmission shall be understood as well to mean a retransmission.				Article 3(g): "rebroadcasting" means the simultaneous broadcasting by one broadcasting organization of the broadcast of another broadcasting organization.
Fixation	Article 5, Alternative A to Article 5 (e) "fixation" means the embodiment of sounds or images or sounds and images or representations thereof from which they can be perceived , reproduced or communicated through a device Alternative B for Article 5, Article 5 (f) "fixation" means the embodiment of sounds or of images or of images and sounds or of the representations thereof from which they can be perceived, reproduced or communicated through a device.			Article 2(c): "fixation" means the embodiment of sounds, or of the representations thereof, from which they can be perceived, reproduced or communicated through a device;		Article 2(b): "audiovisual fixation" means the embodiment of moving images, whether or not accompanied by sounds or by the representations thereof, from which they can be perceived reproduced or communicated through a device.
Communication to the Public	Article 5, Alternative A to Article 5 (f): "communication to the public" means any transmission or retransmission to the public of a broadcast signal or a fixation thereof by any medium or platform. Alternative B for Article 5, Article 5 (e): "communication to the public" means making the transmissions referred to in provisions (a), (b) or (d) of this article audible or visible or audible and visible in places accessible to the public.			Article 2(g): "communication to the public" of a performance or a phonogram means the transmission to the public by any medium, otherwise than by broadcasting, of sounds of a performance or the sounds or the representations of sounds fixed in a phonogram. For the purposes of Article 15, "communication to the public" includes making the sounds or representations of sounds fixed in a phonogram audible to the public.		Article 2(d): "Communication to the public of a performance means the transmission to the public by any medium otherwise than by broadcasting, of an unfixed performance or of a performance fixed in an audiovisual fixation. For the purposes of Article 11, "communication to the public" includes making a performance fixed in an audiovisual fixation audible or visible or audible and visible to the public.
Pre-broadcast Signal	Article 5, Alternative A to Article 5 (g): "pre broadcast signal" means a transmission prior to broadcast that a broadcasting organization intends to include in its program schedule, which is not intended for direct reception by the public
Rights Management Information	Article 5, Alternative A to Article 5 (h) "rights management information" means information that identifies the broadcasting organization, the broadcast, the owner of any right in the broadcast, or information about the terms and conditions of use of the broadcast and any numbers or codes that represent such information when any of these items of information is attached to or associated with the broadcast or the pre broadcast signal or its use in accordance with Article 6.		Article 12(2): "rights management information" means information which identifies the work, the author of the work, the owner of any right in the work, or information about the terms and conditions of use of the work, and any numbers or codes that represent such information, when any of these items of information is attached to a copy of a work or appears in connection with the communication of a work to the public	Article 19(2): "rights management information" means information which identifies the performer, the performance of the performer, the producer of the phonogram, the phonogram, the owner of any right in the performance or phonogram, or information about the terms and conditions of use of the performance or phonogram, and any numbers or codes that represent such information, when any of these items of information is attached to a copy of a fixed performance or a phonogram or appears in connection with the communication or making available of a fixed performance or a phonogram to the public.		Article 16(2): "rights management information" which identifies the performer, the performance of the performer or the owner of any right in the performance or information about the terms and conditions of use of the performance, and any numbers or codes that represent such information, when any of these items of information is attached to a performance fixed in an audiovisual fixation.
Transmission	Article 5, Alternative A to Article 5 (i), "transmission" means the sending for reception by the public of visual images sounds or representations thereof by the way of an electronic carrier	"electronic communications" means the emission, transmission or reception of sounds , visual images or other visible signals whether with or without accompanying sounds by means of magnetism, radio or other electromagnetic waves, optical electromagnetic systems or any agency of a like nature, whether with or without the aid of tangible conduct.
Program	Article 5, Alternative A to Article 5 , alternative to (j), "program" means a discreet package of one or more works protected by copyright or related rights in the form of live or recorded material consisting of images, sounds or both.
Cablecast	Article 5, Alternative A to Article 5 (k) "cablecast" means the same as "broadcast" when the transmission is by wire and excluding transmission by satellite or over computer networks. Alternative B for Article 5, Article 5 (b): "cablecasting" means the transmission by wire for the reception by the public of sounds or of images or of images and sounds or of the representations thereof. Transmission by wire of encrypted signals is "cablecasting" where the means for decrypting are provided to the public by the cablecasting organization or with its consent. "cablecasting" shall not be understood as including transmissions over computer networks.
Performers				Article 2(a) :"performers" are actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in, interpret, or otherwise perform literary or artistic works or expressions of folklore	Article 3(a): "performers" means actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in, or otherwise perform literary or artistic works;	Article 2(a): "performers" are actors, singers, musicians, dancers, and other persons, who act, sing, deliver, declaim, play in, interpret or otherwise perform literary or artistic works or expressions of folklore.

[1] See Working Document for a Treaty on the Protection of Broadcasting Organisations, Prepared by the Secretariat, Standing Committee on Copyright and Related Rights, 27^th Session, Geneva, April 28- May 2, 2014, SCCR/27/2/REV. (Hereafter The Broadcast Treaty.)

[2] The Proposal on the Draft Treaty on the Protection of Broadcasting Organisations, Proposal by the Delegation of South Africa, Informal Consultation Meeting on the Protection of Broadcasting Organisations, Geneva, April 14 and 15, 2011, WIPO/CR/Consult/Ge/11/2/2. (Hereafter, The South African Proposal)

[3] Article 5, Alternative A, 5(a), the Broadcast Treaty.

[4] Article 5, Alternative A, Alternative to (a), The Broadcast Treaty.

[5] Article 5, Alternative A, Article 5 (b), The Broadcast Treaty.

[6] Article 5, Alternative A, Alternative to (b), The Broadcast Treaty.

[7] Alternative B for Article 5, Article 5 (a) The Broadcast Treaty.

[8] See Article 2(f) of the WIPO Performances and Phonograms Treaty, 1996.(Hereinafter, WPPT) that reads as: "broadcasting" means the transmission by wireless means for public reception of sounds or of images and sounds or of the representations thereof; such transmission by satellite is also "broadcasting"; transmission of encrypted signals is "broadcasting" where the means for decrypting are provided to the public by the broadcasting organization or with its consent"

[9] See Article 3 (f) of the Rome Convention, 1961 (Hereafter The Rome Convention), that reads as: '"broadcasting" means the transmission by wireless means for public reception of sounds or of images and sounds.'

[10] See Article 2(c) of the Beijing Treaty on Audiovisual Performances, 2012(Hereafter The Beijing Treaty), that reads as '"broadcasting" means the transmission by wireless means for public reception of sounds or of images and sounds or of the representations thereof; such transmission by satellite is also "broadcasting", transmission of encrypted signals is "broadcasting where the means for decrypting are provided to the public by the broadcasting organization or with its consent.'

[11] Alternative B for Article 5, Article 5 (c) The Broadcast Treaty.

[12] Article 5, Alternative A to Article 5(d) The Broadcast Treaty.

[13] Alternative to Article 5(d), The Broadcast Treaty.

[14] Alternative B for Article 5, Article 5 (d), The Broadcast Treaty.

[15] Article 3(g), The Rome Convention, 1961.

[16] Article 5, Alternative A to Article 5 (e), The Broadcast Treaty.

[17] Alternative B for Article 5, Article 5 (f), The Broadcast Treaty.

[18] Article 2(c), WPPT.

[19] Article 2(b), The Beijing Treaty

[20] Article 5, Alternative A to Article 5 (f), The Broadcast Treaty.

[21] Alternative B for Article 5, Article 5 (e), The Broadcast Treaty.

[22] Article 2(g), WPPT.

[23] Article 2(d), The Beijing Treaty.

[24] Article 5 (h), The Broadcast Treaty.

[25] Article 12(2), The WIPO Copyright Treaty, 1996.

[26] Article 19(2), WPPT.

[27] Article 16(2), The Beijing Treaty.

For more details visit https://cis-india.org/a2k/blogs/the-broadening-of-definitions-in-the-proposed-broadcast-treaty-compared-to-other-international-conventions

National IPR Policy Series : CIS Comments to the First Draft of the National IP Policy

nehaa — 2015-02-09T00:59:10Z

The Department of Industrial Policy and Promotion, Government of India invited comments on the First Draft of India's National IPR Policy. The Centre for Internet & Society (CIS) made this submission. The comments were prepared by Nehaa Chaudhari, Pranesh Prakash and Anubha Sinha. We also thank our intern, Varnika Chawla for her assistance.

The press release from the Department of Industrial Policy and Promotion in which it invited comments is here. The First Draft of India's National IPR Policy is here. Click to view the PDF. Note: In some places there might be references to paragraph/page numbers (of the document) and for that readers should refer to the PDF since the formatting in HTML is slightly different.

Preliminary

This submission presents comments from the Centre for Internet and Society, India ("CIS")¹ on the proposed National Intellectual Property Rights Policy ("the Policy") to the Department of Industrial Policy and Promotion, Ministry of Commerce and Industry, Government of India.("DIPP").
This submission is made in response to the requests and suggestions from stakeholders sought by the DIPP in its Press Release. ²
CIS commends the DIPP for this initiative, and appreciates the opportunity to provide comments on the National IPR Policy. CIS' comments are as stated hereafter.

About CIS

CIS³ is a non-profit research organization that works on among others, issues of intellectual property law reform,⁴ openness,⁵ privacy, freedom of speech and expression and internet governance,⁶ accessibility for persons with disabilities,⁷ and engages in academic research on digital humanities⁸ and digital natives. ⁹
CIS is an accredited Observer¹⁰ at the World Intellectual Property Organization ("WIPO"), enabling us to attend formal meetings of member states and participate in debates and consultations on various issues. CIS has been attending meetings of the WIPO Standing Committee on Copyright and Related Rights since 2010. At these sessions, CIS has actively participated through various interventions, emphasizing the adoption of an approach balancing the rights holders' perspective with public interest. CIS has also attended sessions of some other committees at WIPO, made interventions wherever applicable, produced reports of these meetings, and profiled the work of other non-governmental organizations engaging in similar work on intellectual property law and policy reform. ¹¹
CIS undertakes research in other fields of intellectual property, in addition to WIPO-related work. Over the past five years since our inception, some of our key research has included analyses of intellectual property issues of the proposed Indo-EU Free Trade Agreement¹² and other free trade agreements,¹³ the US Special 301 Report,¹⁴ the (2010) amendment to the Copyright Act, 1957,¹⁵ the (draft) Science, Technology and Innovation Policy,¹⁶ parallel importation, ¹⁷ the (draft) Patent Manual and the subsequent Guidelines for Computer Related Inventions,¹⁸ royalty caps,¹⁹ copyright exceptions and limitations for education, ²⁰ and the preparation of the India Report for the Consumers International IP Watch List.²¹

Structure of this Submission

This submission is divided into 4 parts. The first part gives a preliminary overview of the suggestions submitted by CIS. The second part highlights the principles that should be followed in the formulation of a National IPR Policy, the third part provides detailed comments and recommendations for the National IPR Policy and the last part provides certain concluding remarks.

Principles

The characterization of intellectual property rights may be two-fold - first, at their core, intellectual property rights, are temporary monopolies granted to inter alia, authors and inventors; and second, they are a tool to ensure innovation, social, scientific and cultural progress and further access to knowledge. This dual nature and purpose of intellectual property protection is particularly critical in developing economies such as India. Excessive intellectual property protection could result in stunted innovation and negatively impact various stakeholders.²² It is therefore our submission that the development of the IPR Policy be informed by broader principles of fairness and equity, balancing intellectual property protections with limitations and exceptions/user rights such as those that promote freedom of expression, research, education and access to medicines, cultural rights, data mining, use of governmental works, etc.

Detailed Comments

This section will detail CIS' submissions on various aspects of the National IPR Policy. Submissions have been categorised thematically.

On the Vision

It is submitted that the Vision of the National IPR Policy ("Vision") in encouraging growth for the 'benefit of all' and in accepting the philosophy that knowledge owned 'is transformed into knowledge shared' ²³ is commendable.However, the vision is at odds with the methods proposed in the document. True advancement in science and technology, arts and culture, protection of traditional knowledge as well as bio-diverse resources and the true sharing of knowledge would be impaired by a system centred only around the development and maximization of intellectual property.
An attractive social culture would be one where citizens had access to a cornucopia of ideas and information, thereby fostering an environment of cultural diversity, which would enable individuals to shape themselves. Indeed, this is not just an ideal, but is a right recognized under Article 27(1) of the Universal Declaration of Human Rights, and Article 15 of the .²⁴ However, an IP maximization approach, which the draft stategy seems to embrace, hinders the growth of such a culture, creating a protectionist environment while preventing access to various resources which may be of use for further innovations.
The question of whether IP rights given to innovators are the most effective tools to promote innovation in society has been widely discussed in economics, politics and law, especially in the last four decades.²⁵ Traditional arguments in favour of temporary monopolies incentivising innovation have been effectively questioned as creating monopolies on innovation, contributing to increasing prices and a distorted allocation of resources, inefficiency and a net loss of welfare. ²⁶ It has also been effectively established that most innovation is incremental and cumulative, necessitating the access to pre-existing data and works.²⁷ It would be welcome if the huge amount of academic literature on these matter were taken into consideration by the expert group. While intellectual property rights are not per se antithetical to innovation, creativity, and cultural development, an IP-maximalist policy and law has been shown to harm those very objectives.
CIS therefore submits that the vision of the policy also reflect the commitment to the creation of a holistic and balanced framework of intellectual property rights in the nation with the recognition that an intellectual property-centric system would not necessarily be the best means of promoting creativity, innovation and access, the promotion of which are part of the stated desire of the policy.
Further, we believe that the principles of freedom of expression and of due process of law, both of which are constitutionally-recognized rights in India, should be recognized in the vision as principles that any intellectual property rights regime should respectively seek to promote and respect.

On the Mission

CIS appreciates the commitment to establish a balanced, dynamic and vibrant intellectual property system in India.²⁸ We recommend that the mission of the policy also include a commitment tofoster access to knowledge as well as the commitment to creating asystem of intellectual property rights which serve the public interest by strengthening limitations and exceptions to IP regimes, which are aimed to provide a public interest oriented counterbalance to the monopoly rights granted under IPR laws.
We believe that preventing unreasonable and disproportionate remedies to IPR law violations are an important part of ensuring that these laws serve the public interest rather than subvert them for purely private interests. This important principle ought to find reflection in the policy's mission statement.
It is suggested that in addition to public health, food security and the environment²⁹, other areas of socio-economic and cultural importance, including inter alia,foundational scientific research, education, disability rights, and access to knowledge, be added as additional areas that warrant special protection , in the mission statement.
It is submitted that these commitments are essential to the creation and working of a balanced intellectual property framework that the Policy seeks to achieve.

On Objective 1: IP Awareness and Promotion

The first objective of the Policy lays out a detailed action plan for creating awareness about intellectual property as well as for the promotion of intellectual property. The underlying rationale for this endeavour has been identified on various levels - that there are economic, social and cultural benefits of intellectual property;³⁰ that intellectual property protection accelerates development, promotes entrepreneurship as well as increases competitiveness; ³¹ and that the global regime is one of strongly protected intellectual property rights.³²
It is submitted that the identification of this underlying rationale is not backed by sufficient evidence. These justifications, in their pursuit of a favourable intellectual property regime do not present a balanced picture of all the facts.
Current existing empirical research does not show an unambiguous nexus between the granting of IP rights and an increase in innovation and productivity, as innovation and productivity cannot not identified with the number of patents awarded. ³³ This can be seen in the US economy, where despite an enormous increase in the number of patents, there has been no dramatic acceleration in technological progress. ³⁴ In fact, studies prove the contrary to be true. In the United States, patenting increased drastically over the last few decades, quadrupling from 59,715 patents being issued in 1983, to 244,341 in 2010. However, according to the Bureau of Labour Statistics, annual growth in the total factor productivity reduced from 1.2% in 1970-79 to below 1% in 2000-09, ³⁵ whereas the annual expenditure on research and development saw hardly any change, oscillating in a band of 2.5% of the GDP for over three decades.³⁶ In relatively new industries such as software and biotechnology, still in their nascent stages of development, patenting has been introduced without any positive contributions to innovation. In fact, in their empirical work described in Patent Failure (2008), ³⁷ Bessen and Meurer have argued that increased patenting has resulted in decreased social welfare.
Further, no unambiguous connections have been found between innovation and intellectual property rights in academic studies. In a meta-study conducted in 2006,³⁸ Boldrin and Levine observed that there was weak or no evidence which suggested that strengthening the patent regime led to an increase in innovation. Similarly, it was observed by Jaffe that "despite the significance of policy changes and the wide availability of detailed data relating to patenting, robust conclusions regarding the empirical consequences for technological innovations of changes in patent policy are few. There is widespread unease that the costs of stronger patent protection may exceed the benefits. Both theoretical and, to a lesser extent, empirical research suggest this possibility." ³⁹
In his study of 60 nations over the past 150 years, Josh Lerner concluded that "the impact of patent protection-enhancing on innovation was in fact negative, thereby running counter to assumptions made by economists that incentives affect behavior and that stronger property rights encourage economic growth.⁴⁰
Even in those studies, where support is found for a positive correlation between patents and innovation, it is made clear that this correlation is not applicable to developing and least-developed countries. This, for instance, is the conclusion of the United Nations Industrial Development Organization's meta-study titled "The Role of Intellectual Property Rights in Technology Transfer and Economic Growth: Theory and Evidence". ⁴¹
It is crucial that all policy be based on evidence, and not ideology.
Thus, it is submitted that any program that seeks to create awareness about intellectual property must necessarily be one that presents a balanced view, clearly stating all facts and as many diverse opinions as possible; avoiding the current situation where public interest groups and academics are sidelined in favour of rights-holders groups.
CIS submits that the nation-wide program of promotion on the benefits of intellectual property ⁴² must be based on evidence. Crucially, the importance of the public domain, for which a great deal of evidence exists,⁴³ must highlighted in any such also equally promote the importance the role of limitations and exceptions and clearly identify the issues with the intellectual property system, including the fact that it has not been proven that there is a nexus between intellectual property and innovation. The nation wide program should convey the role of different stakeholders, including libraries and archives, organizations working with persons with disabilities and educational institutions and the negative effects of a rights centric intellectual property system on such important institutions.
It is important that public-funded research organizations should be engaged in neutral - non-industry funded -research, and not campaigns (as identified in the policy).⁴⁴ This will help identify the issues of the present intellectual property system as well as the potential for reform, tailored to the Indian context. We have to ensure that campaigns - as with policymaking and pedagogic material - are based on research rather than faith or ideology. It is further submitted that course materials to be created for educational institutions at all levels as well as for online and distance learning programs ⁴⁵ should include a discussion on the drawbacks of a maximalist intellectual property system, a discussion on limitations and exceptions, alternatives to intellectual property, as well as case studies from different parts of the world highlighting the use of intellectual property as well as alternatives in a socio-economic and culture specific environment. Particularly in the case of education institutions as well as online and distance learning mechanisms, which are often faced with great challenges as a result of rights-holders centric intellectual property laws, the irony in promoting a system that only acts to their detriment would be great.

On Objective 2: Creation of IP

The second objective of the Policy seeks to stimulate the creation and growth of intellectual property through measures that encourage IP generation.⁴⁶ This objective seeks to encourage IP generation and creation across various sectors, including the introduction of the system of 'utility models' in India. There are several problems with this objective, primarily that it assumes IP generation is necessarily a means to innovation, whereas it is submitted that the emphasis should be on innovation holistically, including by incentive mechanisms other than IP.

On the IP-Innovation/ Creativity Nexus

It is submitted that similar to the earlier objective relating to the promotion and the creation of awareness about intellectual property, the underlying rationale behind this objective too seems to be the perception that there is a positive correlation between greater amounts of intellectual property and greater innovation, and the belief that intellectual property protection necesarrily promotes innovation. However, there is relatively little research to back this assumption. Illustratively, the following example may be considered. In a study conducted by Heidi L. Williams,⁴⁷ the sequencing of the human genome was used to provide an empirical context to showcase the deterioration in development due to the presence of IP. It was concluded by Williams that the presence of IP rights in the sequencing of the human genome resulted in reductions in subsequent scientific research and product development by up to 20-30%. ⁴⁸ Williams further observed that "if more socially valuable technologies are more likely to be held with IP, then the welfare costs for the same could be substantial." The presence of intellectual property rights, it is argued, stifles subsequent product development by restricting access to the data or technology required for further development. ⁴⁹
Prof. Petra Moser of Stanford has conducted a large volume of research on economic evidence on the linkages between patents and innovation. Her research, which shows that in the 19th century the majority of inventions happened outside the patent system ⁵⁰ indicates that alternative explanations might explain inventions better, including "the importance of a culture of entrepreneurship,⁵¹ experimentation,⁵² the free exchange of knowledge, ⁵³ and science.⁵⁴ In a paper titled, "How do Patent Laws Influence Innovation", she concludes that "I find no evidence that patent laws increased levels of innovative activity but strong evidence that patent systems influenced the distribution of innovative activity across industries."
Prof. Bryan Mercurio, in a paper written for the World Economic Forum and the International Centre for Trade and Sustainable Development, concludes, "The empirical evidence suggests that increasing levels of patent protection have not resulted in increased innovation. Instead, it has limited competition, and increased the cost of business, to the detriment of the world economy. Innovation has also suffered, as increasing protection has inhibited the ability of many firms to innovate." He further recommends that we "conduct further research on the correlation or causal relationship between patents and innovation, including the indirect benefits for innovation that patent protection may provide". Petra Moser notes, "Patent laws that existed in the mid-nineteenth century had been adopted in a relatively ad-hoc manner, dependent more on legal traditions than economic considerations".⁵⁵
The empirical data collected by scholars, as provided above is goes to show that innovation is not necessarily benefitted by stronger patent regimes. Further, even the literature that asserts a positive correlation between the two acknowledge that this doesn't apply to developing countries. In addition, whilepatents may provide revenue to patent owners, it also makes further innovation more costly, thereby discouraging competitors from entering the arena due to high prices, and due to the large number of pre-existing patents. This effect, known as the
The Supreme Court of Canada, has for instance, has on multiple occasions recognized the importance of the public domain. In "2002, Justice Binne, writing for the majority in Théberge v. Galerie d'Art du Petit Champlain inc., stated: 'Excessive control by holders of copyrights and other forms of intellectual property may unduly limit the ability of the public domain to incorporate and embellish creative innovation in the long-term interests of society as a whole (para.32).' Two years later, in CCH Canadian Ltd. v. Law Society of Upper Canada, Chief Justice McLachlin spoke of the importance that there be 'room for the public domain to flourish as others are able to produce new works by building on the ideas and information contained in the works of others (para. 23).'"⁵⁶
Lastly, there is even evidence that in multiple sectors - including fashion, finance, font design, and software - lesser IP protection in the form of patents, trademarks, and copyright, actual encourages increased innovation.⁵⁷

On Utility Models

On the question of introduction of a new on utility models⁵⁸ CIS observes that DIPP has previously considered developing a framework for granting Utility Models for 'innovations' and invited suggestions on a discussion paper on the subject.⁵⁹ Reports ⁶⁰ suggest that Small, Medium and Micro Enterprises are in favour of the Utility Model Protection system in India because developing countries such as China and Korea have demonstrated a corresponding economic growth attributable to the introduction of the system. However, there is no evidentiary data to support this hypothesis. Studies suggest that there exist only correlations and not causal links between heightened innovative activity and implementation of utility model protection. ⁶¹ Empirical evidence on the role of intellectual property protection in promoting innovation and growth in general remains limited and inconclusive.⁶² Reports also suggest that in China, the abundance of Utility Model has led to lowering of quality of innovation. ⁶³ In Australia, an "innovation patent" - the Australian version of utility model protection - was awarded for a "circular transportation facilitation device", i.e., a wheel. ⁶⁴
It is this submitted that whether the ushering of a 2nd tier of protection model for lower and incremental innovations would have a positive impact on innovation in India is extremely debatable. There have been several criticisms of utility models, inter alia, explosion in litigation of poor quality patents and legal uncertainty - which impact small business the maximum in terms of costs ⁶⁵; the system may be more utilised by foreign companies rather than local firms, in which case there is a possibility that this will lead to an increase in a flow of royalties and licensing fees to overseas producers. Utility model rights can be, and have been, used by companies to cordon off entire areas of research. ⁶⁶
CIS submits that as the policy 'intends to harness the full benefits of creation and innovation in the larger interest of society and citizens' ⁶⁷ the introduction of a law on utility models would be antithetical to this objective.

On Improving IP Output of National Research Laboratories, Universities et al

The Policy seeks to improve the output of national research laboratories, universities and technical institutions, among others.⁶⁸ It is submitted that these institutions are public funded institutions, ⁶⁹ and in effect, this recommendation of the Policy seeks to therefore promote intellectual property creation in public funded institutions.
A significant chunk of research and development occurs at public funded academic and research institutions and, excessive use of IPR as a tool to creating private ownership rights over inventions may preclude use of such innovation by the public. This may also create a barrier to access the best technologies and research- which were funded by taxpayers' money to begin with. CIS supports the principle that IPRs resulting from of publicly funded research should automatically belong to the funder.⁷⁰
Further, it is submitted that there exists a danger of public funded research institutions re-orienting their objectives focus only on areas of commercial value. This may lead to neglect of certain research areas. A stringent policy will create an unfavourable conflict between revenue generation and sharing of public good. The policy must ensure that it is flexible and compensates the inventors whilst permitting public access to research.
CIS submits that there should be no encumbrances over public funded research and inventions. The Policy must also ensure that such proposed IP creation does not prevent or interfere with dissemination of public funded research. ⁷¹
CIS strongly supports the recent steps by government agencies (including the Department of Science and Technology and the Department of Biotechnology⁷² as well as other institutions including the Council of Scientific and Industrial Research⁷³, Indian Council of Agricultural Research⁷⁴ and Institute of Mathematical Sciences ⁷⁵) in making scholarly research openly accessible. The benefits of implementing an open access policy with regard to scientific and scholarly works are manifold. Providing open access to scholarly research will ensure percolation of cutting edge research into the society.
It is thus submitted that the Policy should adopt a more nuanced, cautious and balanced take on the creation of intellectual property, particularly taking into consideration India's economic status as an emerging economy and our international position. The Policy must recognise that there is no inherent societal merit in the mere creation of intellectual property and that innovation flourishes even in the absence of intellectual property protections.

On Objective 3: Legal and Legislative Framework

According to the Policy, the objective sought to be achieved is the creation of strong and effective laws on intellectual property, consistent with national priorities as well as our international obligations, balancing the interest of the rights holders with public interest. ⁷⁶
CIS fully supports the view that the legislative framework on intellectual property must balance the rights of all stakeholders and be in public interest. CIS is also appreciates the importance of national priorities in the framing of India's legislative framework. CIS also notes with appreciation that the discussion in the Policy reiterates that India's laws are in compliance with the TRIPS Agreement ⁷⁷ as well as the stance that India will continue to utilize the flexibilities available in international treaties as well as the TRIPS Agreement⁷⁸ while creating its legal framework.
CIS also supports the acknowledgement of the fact that India's laws need to be updated periodically, depending on various factors.⁷⁹ CIS fully supports the process proposed for amendments to the law, including,inter alia, the conduction of objective and analytical studies and inputs from various stakeholders. ⁸⁰ It is submitted however, that equal weightage must be given to the inputs from all stakeholders and measures must be taken to ensure that the interests and demands of rights-holders do not outweigh the interests and demands of other stakeholders, particularly those at the other end of the spectrum, who greatly rely on the existence and guarantee of flexibilities, limitations and exceptions to intellectual property.

On Utility Models and Intellectual Property in Public Funded Research

The Policy envisages significant changes to India's intellectual property system, including the creation of a law for the protection of utility models as well as introduction of intellectual property in public funded research.
CIS recommends that it would not be advisable to introduce intellectual property in public funded research as well as cautions against the introduction of a law on utility patents. A detailed submission on these issues has been made earlier in this document, in Section 3.4.3. at page 7 for intellectual property in public funded research as well as in Section 3.4.2. at page 6 on utility models.

On the Negotiation of International Treaties and Agreements

CIS commends the recommendation of the Policy that the negotiation of international treaties and agreements will be in consultation with various stakeholders. However, CIS cautions against entering into bilateral or plurilateral international agreements which increase India's IPR obligations beyond our current obligations under multilateral agreements. It was only in 2006 that
It is submitted that FTAs often levy standards which are beyond those found in the TRIPS Agreement, and have thus been criticized. ⁸¹ A central aspect of this criticism is that TRIPS-plus-FTAs reduce policy space for the implementation of TRIPS flexibilities. This also creates the impression that TRIPS only imposes a "minimum level" of protection, which must be available in all national laws of its Member States, without any apparent limitation to a further extension of such protection or intervention which one country may impose on another. The World Health Organization enunciated that "bilateral trade agreements should not seek to incorporate TRIPS-plus protection in ways that may reduce access to medicines in developing countries.⁸² Further, WHO members were urged in the Fifty-Seventh World Health Assembly "to take into account in bilateral trade agreements the flexibilities contained in the Agreement on Trade-related Aspects of Intellectual Property Rights and recognized by the Declaration on the TRIPS Agreement and Public Health adopted by the WTO Ministerial Conference."⁸³
Furthermore, TRIPS-plus initiatives consequent in the dilution into a bilateral forum, as opposed to the plurality provided in multilateral fora, provided by the TRIPS. The imposition of standards by FTAs may ultimately disturb the balance of rights and obligations which are enshrined in the TRIPS Agreement,⁸⁴ and also have the potential to constrain the flexibilities provided to Member States in the TRIPS, particularly in areas which are of extreme significance to developing countries, such as transfer of technology, socio-economic development, promotion of innovation, public health and access to knowledge. Furthermore, they also tend to negate decisions which were taken multilaterally such as the Doha Declaration on the TRIPS Agreement and Public Health.
It is therefore submitted that the Policy must caution against entering into any international agreement that seeks to enforce TRIPS-plus standards, contrary to India's stance (as noted by the Policy itself) that its laws were compliant with international obligations.

On Limitations and Exceptions

It is observed that the Policy recommends that laws be enacted to address national needs, ⁸⁵ but the only mentions limitations and exceptions as an area of study for future policy development.⁸⁶It is submitted that while it is indeed necessary for further research to be undertaken in the area of limitations and exceptions, it is also critical to enact new laws and amend existing ones to foster a rich environment for limitations and exceptions, in order to achieve a holistic and balanced intellectual property framework. It is further submitted that this would also be in consonance with the objective of the negotiation of international treaties and agreements in consultation with stakeholders.
While the granting of exclusive rights over intellectual property is considered to be an incentive for further investments into innovative activities and the production of knowledge, allowing the exercise of the full scope of this exclusion in all circumstances may not meet the end goal of the enhancement of public welfare, using the intellectual property system. Therefore, it is essential that an intellectual property system be flexible allowing for certain limitations and exceptions in order to strike a balance between right holders, the public and third parties. The need for such flexibility in the intellectual property system of a country has also been highlighted by the World Intellectual Property Organization.
It is therefore suggested that the Policy include an additional recommendation for the inclusion, adoption and periodic renewal of limitations and exceptions in India's intellectual property laws, either be enacting new legislations or by amending existing legislations wherever applicable. It is further suggested that this recommendation also inform India's negotiations at the international level, where any agreement that India might potentially sign, not invalidate or narrow in any form any limitations and exceptions and provide for their continued exercise in the broadest possible scope and manner.

On Standard Setting

CIS commends the Policy's focus on standards in technology and standard setting organisations. CIS strongly supports the adoption of open standards as a measure that helps stimulate active competition amongst implementors of various standards, and thereby encourages innovation. The Department of IT finalized its Policy on Open Standards for e-Governance in 2010,⁸⁷ and CIS strongly supports this policy, and would encourage it be adopted by all state governments as well.
CIS strongly recommends developing and supporting the evolution of open standards. The Policy must not encourage use of IPR to limit access to standards, because these are the foundational rules any technology must adhere to enter the market or ensure quality. ⁸⁸ CIS submits that access to these standards must not be limited by making them proprietary through IPR protection. Further, the Policy must support transparent standard setting processes and procedures in national and at international for a for all participants.
CIS further appreciates the endeavor to encourage the development of global standards influenced by technologies developed in India.
CIS submits that it is also important to ensure that India emerges as a global player in the technology sector, not just in the development of indigenous standards, but also in the equally important space of manufacturing using existing standards, particularly in light of the Government's recent "Make In India" and "Digital India" initiatives. It is further submitted however, that in most instances, these standards are protected by patents; where patents essential to a standard would be standard essential patents. CIS suggests that the Policy recommend measures that might be adopted to ensure access to standards essential patents, including, for instance, the establishment of a government aided patent pool. It is submitted that addressing the question of access to standards and not just their development would be a holistic approach that the Policy should adopt.

On Objective 5: Commercialization of IP

CIS appreciates that the Policy seeks to promote licensing and technology transfer for intellectual property, and notes that the Policy also seeks to promote reasonable and non-discriminatory patent pooling to maximise the ability of smaller companies to commercialise IP and bring innovative solutions based on standards to the market.
CIS believes that the government establishing patent pools for digital technologies will promote access to knowledge and stimulate manufacturing in the information technology and electronics sectors in India, in line with the government's "Make In India" and "Digital India" initiatives. CIS has earlier urged the government to enable access to low cost access devices by establishing a government-aided patent pool of essential technologies, without which there is a high likelihood of such devices getting caught up in the 'patent wars' that have happened elsewhere around the world over smartphones.⁸⁹ CIS submits that the creation of government-aided patent pools and facilitation of cross-licensing will also be helpful in resolving issues created by patent thickets and gridlocks by reducing transaction costs for licensees and solving an economic cooperation problem.

Concluding Remarks

Debabrata Saha, the Deputy Permanent Representative of India to the United Nations, while speaking on the introduction of the Development Agenda at the World Intellectual Property Organization, with admirable clarity noted, "Let me start on a positive note by asking: with all the damage that TRIPS has wrought on developing countries could it possibly have a silver lining? Maybe - if we want to be generous. TRIPS, one might argue, did bring intellectual property to the forefront of consciousness of people everywhere, and, over time made them aware of the dangers inherent in a protective regime that takes little account of either public policy, or the state of development of a member country." It is thus imperative that when we fashion our public policy, we take account of the dangers he mentioned. He went on to note, "Intellectual property rights have to be viewed not as a self contained and distinct domain, but rather as an effective policy instrument for wide ranging socio-economic and technological development. The primary objective of this instrument is to maximize public welfare." We wholeheartedly support this position of the Indian government, and would encourage the IPR Think Tank to seek to maximize public welfare and creativity and innovation rather than maximizing IPR alone. Importantly, as Mr. Saha, speaking on behalf of the Indian government noted, IP is not an end in itself, contrary to what the current draft of the National IPR Policy seems to promote.
Flexibility is considered to be an essential characteristic in defining and shaping the intellectual property system of countries around the world. Such flexibility allows scope for further innovations and creations, thereby subserving the common good. As per Article 39 of the Constitution of India, "the State shall in particular, direct its policy towards securing that the ownership and control of the material resources of the community are so distributed as best to subserve the common good." It is therefore submitted that the National IPR Policy of India should be contoured in such a manner that it encourages greater use of exceptions and limitations to the otherwise exclusionary use of intellectual property, encourages the expansion of the public domain, secures proportionality in enforcement of IP rights, promotes alternatives to IP - including open access to scholarly literature, open educational resources, free/open source software, open standards, open data, and aims to create a regime of intellectual property that aims to serve the public interest and not just the narrow interest of private right holders. Such an approach should not be merely rights-based, but look at interests of the general public, especially the poor, as well, in order to further the aim of the nation to create a more egalitarian society, and adopt the Directive Principles in the Constitution.

1 www.cis-india.org (last accessed 30 November, 2014).

2 http://www.dipp.nic.in/English/acts_rules/Press_Release/pressRelease_IPR_Policy_30December2014.pdf.

3 See http://cis-india.org/ (last accessed 18 January, 2015).

4 See http://cis-india.org/a2k (last accessed 18 January, 2015).

5 See http://cis-india.org/openness (last accessed 18 January, 2015).

6 See http://cis-india.org/internet-governance (last accessed 18 January, 2015).

7 See http://cis-india.org/accessibility (last accessed 18 January, 2015).

8 See http://cis-india.org/digital-natives (last accessed 18 January, 2015).

9 See http://cis-india.org/raw (last accessed 18 January, 2015).

10 See http://www.wipo.int/members/en/admission/observers.html (last accessed 18 January, 2015).

11 See http://cis-india.org/a2k/blog/ngo-profile-knowledge-ecology-international (last accessed 18 January, 2015); http://cis-india.org/a2k/blog/ngo-profile-third-world-network (last accessed 18 January, 2015).

12 See illustratively http://cis-india.org/a2k/blog/analysis-copyright-expansion-india-eu-fta (last accessed 18 January, 2015); http://cis-india.org/a2k/blog/india-eu-fta-copyright-issues (last accessed 18 January, 2015); http://cis-india.org/a2k/blog/a-guide-to-the-proposed-india-european-union-free-trade-agreement (last accessed 18 January, 2015).

13 See illustratively http://cis-india.org/news/inet-bangkok-june-8-2013-governance-in-the-age-of-internet-and-fta (last accessed 18 January, 2015).

14 See illustratively http://cis-india.org/a2k/blog/2010-special-301 (last accessed 18 January, 2015).

15 See illustratively http://cis-india.org/a2k/blog/analysis-copyright-amendment-bill-2012 (last accessed 18 January, 2015); http://cis-india.org/a2k/blog/sc-report-on-amendments (last accessed 18 January, 2015); http://cis-india.org/a2k/blog/copyright-bill-parliament (last accessed 18 January, 2015); http://cis-india.org/a2k/blog/tpm-copyright-amendment (last accessed 16 January, 2015); http://cis-india.org/a2k/blog/copyright-privacy (last accessed 16 January, 2015); http://cis-india.org/a2k/blog/copyright-bill-analysis (last accessed 18 January, 2015).

16 See http://cis-india.org/a2k/blog/comments-on-science-technology-and-innovation-policy-draft (last accessed 18 January, 2015).

17 See http://cis-india.org/a2k/blog/exhaustion (last accessed 18 January, 2015); http://cis-india.org/a2k/blog/parallel-importation-of-books (last accessed 18 January, 2015).

18 See http://cis-india.org/a2k/blog/cis-submission-draft-patent-manual-2010 (last accessed 18 January, 2015) and http://cis-india.org/a2k/blog/comments-on-draft-guidelines-for-computer-related-inventions (last accessed 18 January, 2015) respectively.

19 See http://cis-india.org/a2k/blog/lid-on-royalty-outflows (last accessed 18 January, 2015).

20 See http://cis-india.org/a2k/blog/exceptions-and-limitations (last accessed 18 January, 2015).

21 See illustratively http://cis-india.org/a2k/consumers-international-ip-watchlist-report-2012 (last accessed 18 January, 2015); http://cis-india.org/a2k/blog/ip-watch-list-2011 (last accessed 18 January, 2015); http://cis-india.org/a2k/blog/consumers-international-ip-watch-list-2009 (last accessed 18 January, 2015).

22 The Washington Declaration on Intellectual Property and Public Interest concluded after the Global Congress on Intellectual property and Public Interest in August 2011 attended by over 180 experts from 32 countries articulate this position perfectly. Available at: http://infojustice.org/wp-content/uploads/2011/09/Washington-Declaration.pdf (Last Accessed: 29 November, 2014).

23 IPR Think Tank, National IPR Policy (First Draft) at page 5.

24 Article 27(1) of the Universal Declaration of Human Rights states: "Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits."

25 Julia Brüggemann, Paolo Crosetto et al, Intellectual Property Rights Hinder Sequential Innovation - Experimental Evidence, Center for European, Governance and Economic Development Research, Number 227, January 2015.

26 Joseph E. Stiglitz, Economic Foundations of Intellectual Property Rights, Duke Law Journal, 57(6): 1693-1724.

27 Graham M. Dutfield, Uma Suthersanen, The Innovation Dilemma: Intellectual Property and the Historical Legacy of Cumulative Creativity, Intellectual Property Quarterly, 2004 at 379.

28 IPR Think Tank, National IPR Policy (First Draft) at page 5.

29 IPR Think Tank, National IPR Policy (First Draft) at page 5.

30 IPR Think Tank, National IPR Policy (First Draft) at page 6.

31 Id .

32 Id .

33 Michele Boldrin and David K. Levine, The Case Against Patents, Journal of Economic Perspectives, Vol. 27, No.1 - Winter 2013, 3-22.

34 Id .

35 Id .

36 Id .

37 James Bessen and Michael J. Meurer, Patent Failure: How Judges, Bureaucrats and Lawyers Put Innovation at Risk, March 2008.

38 Michele Boldrin and David K. Levine Supra Note 32.

39 B.J. Jaffe, The US Patent System in Transition: Innovation and the Innovation Process, Research Policy, 29, 531-557, 2000.

40 Josh Lerner, The Empirical Impact of Intellectual Property Rights on Innovation: Puzzles and Clues, Intellectual Property Rights and Economic Growth in the Long-Run: A Discover Model (2009).

41 Rod Falvey & Neil Foster, The Role of Intellectual Property Rights in Technology Transfer and Economic Growth: Theory and Evidence (UNIDO Working Paper,

42 ¶ 1.2 IPR Think Tank, National IPR Policy (First Draft) at page 6.

43 See

44 ¶ 1.3 IPR Think Tank, National IPR Policy (First Draft) at page 7.

45 ¶ 1.5 IPR Think Tank, National IPR Policy (First Draft) at page 8.

46 IPR Think Tank, National IPR Policy (First Draft) at page 8.

47 Heidi L. Williams, Intellectual Property Rights and Innovation: Evidence from the Human Genome, National Bureau of Economic Research. Working Paper 16213, July 2010.

48 Id .

49 Id .

50 Petra Moser, Innovations and Patents in Oxford Handbook of Economic History (Cain et al., eds., forthcoming), http://ssrn.com/abstract=2503503.

51 See generally , David. S. Landes, The Unbound Prometheus: Technological Change and Industrial Development in Western Europe from 1750 to the Present (1969).

52 See generally , Joel Mokyr. The Lever of Riches: Technological Creativity and Economic Progress (1990).

53 See generally , Alessandro Nuvolari Collective Invention during the British Industrial Revolution: the Case of the Cornish Pumping Engine, 28 Cambridge J. Econ. 347 (2004). See also, Robert C. Allen, Collective Invention, 4 J. Econ. Behavior & Org. 1 (1983).

54 A. Arora & N. Rosenberg, Chemicals: A US Success Story in Chemicals and Long-Term Economic Growth 71 (Arora et al., eds., 1998); see also, David C. Mowery & Nathan Rosenberg, Paths of Innovation. Technological Change in 20th-century America (1998).

55 Petra Moser, How Do Patent Laws Influence Innovation? Evidence from Nineteenth-Century World Fairs, NBER Working Paper Series 9909, http://www.nber.org/papers/w9909.

56 Meera Nair, A Short-Lived Celebration, Fair Duty (Jan. 8, 2012), https://fairduty.wordpress.com/2012/01/08/a-short-lived-celebration/

57 See generally, Kal Raustiala & Christopher Sprigman, The Knockoff Economy (2012).

58 ¶ 2.10 IPR Think Tank, National IPR Policy (First Draft) at page 10.

59 See FICCI Suggestions on Discussion Paper on Utility Model available at http://www.ficci.com/Sedocument/20179/UM.pdf (last accessed January 28, 2015).

60 See FICCI Suggestions on Discussion Paper on Utility Model available at http://www.ficci.com/Sedocument/20179/UM.pdf (last accessed January 28, 2015).

61 See Utility Model: A Tool for Economic and Technological Development: A Case Study of Japan available at http://www.ipindia.nic.in/research_studies/finalreport_april2007.pdf (last accessed January 28, 2015).

62 U. Suthersanen, Utility Models and Innovation in Developing Countries, International Center for Trade and Sustainable Development (ICTSD), Issue Paper No. 13 (2006), available at http://www.unctad.org/en/docs/iteipc20066_en.pdf , (last accessed January 28, 2015).

63 See China's great leap forward in patents , available at http://www.ipwatchdog.com/2013/04/04/chinas-great-leap-forward-in-patents/id=38625/ (last accessed January 28, 2015).

64 Will Knight, Wheel Patented in Australia, New Scientist (July 3, 2001), http://www.newscientist.com/article/dn965-wheel-patented-in-australia.html .

65 Keith E. Maskus, Beyond the Treaties: A Symposium on Compliance with International Intellectual Property Law, February 6, 2000.

66 U. Suthersanen, Utility Models and Innovation in Developing Countries, International Center for Trade and Sustainable Development (ICTSD), Issue Paper No. 13 (2006), available at http://www.unctad.org/en/docs/iteipc20066_en.pdf , (last accessed January 28, 2015).

67 IPR Think Tank, National IPR Policy (First Draft) at page 1.

68 ¶ 2.3 IPR Think Tank, National IPR Policy (First Draft) at page 10.

69 See http://mhrd.gov.in/technical-education-1 (last accessed 30 January, 2015).

70 See 'Expert Group Report on Role and Strategic Use of IPR (Intellectual Property Rights) in International Research Collaborations' by European Commission 'available at http://ec.europa.eu/research/era/pdf/ipr-eur-20230_en.pdf (last accessed January 28, 2015).

71 See 'Ministry of Science makes Open Access to Research Mandatory ', available at http://cis-india.org/news/down-to-earth-july-16-2014-aparajita-singh-ministry-of-science-makes-open-access-to-research-mandatory (last accessed January 28, 2015).

72 DBT and DST Open Access Policy - Policy on Open Access to DBT and DST Funded Research, Department of Biotechnology and Department of Science and Technology, Ministry of Science and Technology, Government of India.

73 Id.

74 Id.

75 Id.

76 IPR Think Tank, National IPR Policy (First Draft) at page 11.

77 Id .

78 IPR Think Tank, National IPR Policy (First Draft) at pages 10, 11.

79 IPR Think Tank, National IPR Policy (First Draft) at page 12.

80 Id .

81 The Doha Declaration on the TRIPS Agreement and Public Health and the Contradictory Trend in Bilateral and Regional Free Trade Agreements (2004), Available at http://www.quno.org/geneva/pdf/ec onomic/Occasional/TRIPS-Public-Health-FTAs.pdf.

82 World Health Organization, Report of the Commission on Intellectual Property Rights, Innovation and Public Health, Recommendation 4.26 (2006), available at http://www.who.int/intellectualproperty/ documents/thereport/CIPIHReport23032006.pdf [hereinafter WHO].

83 Fifty-Seventh World Health Assembly, May17-22,2004, (May 22, 2004), available at http:// apps.who.int/gb/ebwha/pdf_files/WHA57/A57_R14-en.pdf;

84 Preamble, Articles 7, 8, TRIPS Agreement, 1994.

85 ¶ 3.2 IPR Think Tank, National IPR Policy (First Draft) at page 12.

86 ¶ 3.6 IPR Think Tank, National IPR Policy (First Draft) at page 13.

87 See 'Open Standards Policy' , available at http://cis-india.org/news/open-standards-policy (last accessed January 28, 2015).

88 See 'The BIS, Standards and Copyright' , available at http://spicyip.com/2014/11/the-bis-standards-and-copyright.html (last accessed January 28, 2015).

89 See CIS' Letter for Establishment of Patent Pool for Low-cost Access Devices through Compulsory Licenses , available at http://cis-india.org/a2k/blogs/letter-for-establishment-of-patent-pool-for-low-cost-access-devices (last accessed January 29, 2015).

For more details visit https://cis-india.org/a2k/blogs/national-ipr-policy-series-cis-comments-to-the-first-draft-of-the-national-ip-policy

Seventh Global Intellectual Property Convention

praskrishna — 2015-02-12T16:59:01Z

The Seventh Global IP Convention took place in Mumbai from January 15 to 17, 2015. Rohini Lakshané attended the event.

Agenda

Time	Detail
08.00 09.00	Registration
09.00 10.30	Inaugural Session (Majestic I & II)
10.30 11.00	Coffee Break and Networking Session
11.00 12.30	Plenary Session I: Power of IP: Gateway to Growth (Majestic I & II)
12.30 13.30	Lunch Break & Networking Session
13.30 15.30	Technical Session: I, II & III
15.30 16.00	Coffee Break and Networking Session
16.00 18.00	Technical Session: IV, V & VI

For more info on the event, click here.

For more details visit https://cis-india.org/a2k/news/seventh-global-ip-convention

CIS RTI REQUEST TO DIPP - NUMBER 1 - FEBRUARY, 2015

nehaa — 2015-04-14T17:17:53Z

For more details visit https://cis-india.org/a2k/blogs/cis-rti-request-to-dipp-number-1-february-2015

CIS RTI REQUEST TO DIPP - NUMBER 2 - FEBRUARY, 2015

nehaa — 2015-04-14T17:22:37Z

For more details visit https://cis-india.org/a2k/blogs/cis-rti-request-to-dipp-number-2-february-2015

CIS RTI REQUEST TO DIPP - NUMBER 3 - FEBRUARY, 2015

nehaa — 2015-04-14T17:28:53Z

For more details visit https://cis-india.org/a2k/blogs/cis-rti-request-to-dipp-number-3-february-2015

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

nehaa — 2015-04-14T18:14:18Z

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

The Digital Protection of Traditional Knowledge: Questions Raised by the Traditional Knowledge Digital Library in India

Sunil Abraham and Vidushi Marda — 2016-12-09T15:50:36Z

This is an edited version of part three of a study that considers the International Covenant on Economic, Social and Cultural Rights (ICESCR) through aspects of intellectual property in India, namely, mobile patents, free and open source software, and India's Traditional Knowledge Digital Library. Through these, it demonstrates the potential of the internet in realising ESCRs.

The original report published by GISWatch can be read here. Aditya Singh Chawla, Parvathy Nair, Raji Gururaj and Balaji Subramaniam provided research assistance for this paper during their internships with the Centre for Internet and Society. Click to download the PDF

Introduction

The first problem one encounters in studying traditional knowledge (TK) is the extent and meaning of the term itself. No globally accepted definition of TK exists,^[1] and therefore no clear delineation of its scope. The definition adopted by the World Intellectual Property Organization (WIPO) is that TK is “knowledge, know-how, skills and practices that are developed, sustained and passed on from generation to generation within a community, often forming part of its cultural or spiritual identity.”⁴ While TK embraces traditional cultural expressions within its ambit, and includes distinctive signs and symbols associated with traditional knowledge,^[2] the scope of this report does not extend to traditional cultural expressions as they necessarily would fall under the purview of copyright law.

Before we frame TK in terms of economic, social and cultural rights (ESCRs), let us understand the phenomenom of biopiracy in a bit more detail using two examples, one connected to the right to food, and the other connected to health. Biopiracy is the use of intellectual property (IP) systems to legitimise control over biological products and processes that were previously used for centuries in non- industrialised cultures.^[3] The case of neem-related patents, through which bio-prospectors attempted to appropriate the royalty arising from a plant whose medicinal value was already in the public domain, is well documented.^[4] Another case worth noting is that of the “Enola bean”, in which Larry Proctor, a United States (US) citizen, purchased a package of Mexican beans of various colours, separated out the yellow ones, and spent three years selectively breeding the plants. He then named his line “Enola” and obtained patent protection for the bean, its plant, its pollen, and the method of producing it.^[5]^[6]

This case is far more worrying than the neem case for two reasons.^[7] First, it was a case that had an immediate and tangible impact on the producers of the commodity in that yellow Mexican beans were exported into the United States before the patent was granted, and the assertion of the patent led to significant reductions in bean exports, representing a quantifiable economic loss for bean farmers.^[8] Second, the patent was allowed to stand for almost a decade, amounting to half the life of a legitimate patent.^[9] This represents an incredibly unjust outcome – an invention (“specifically selected yellow beans”) arising from traditional knowledge in the public domain (since Mexican farmers had been cultivating and exporting these beans) being monopolised by a private entity illegally for almost a decade.

The differences between TK and other forms of IP are the following:

With other forms of IP, property rights are afforded to the innovator or creator, whereas communities own TK.
Other forms of IP are designed as incentive mechanisms for the creation of new property; however, there is no such incentive to create new property with TK.
IP is also time-bound, whereas TK is held in perpetuity from generation to generation.
The invention under IP must also satisfy the requirement for novelty and industrial application, whereas TK does not have these requirements.

Although patent law is not tailored to protect TK, it has been used to prevent misappropriation of TK.

The Traditional Knowledge Digital Library

At the turn of the millennium, an expert group found that roughly 2,000 patents linked to India’s TK in medicine were being granted annually around the world.^[10] This expert group proposed the establishment of the Traditional Knowledge Digital Library (TKDL)¹³in order to reduce biopiracy. The TKDL was envisaged as “a home-grown effort to ensure patent offices around the world do not grant patents for applications founded on India’s wealth of TK that has existed for millennia.”¹⁴ In 2001 India launched the initiative, which digitised its wide repository of TK, with the hope of enabling the protection of this knowledge and preventing its misuse.

The TKDL is a digital knowledge repository of Indian traditional knowledge about medicinal plants and formulations, and practices used in Indian systems of medicine. Its knowledge base is primarily derived from Ayurveda, Unani, Siddha and Yoga. These areas are being documented by collating the information on TK from literature existing in local languages such as Sanskrit, Urdu, Arabic, Persian and Tamil in digitised format. These have been made available in five international languages: English, German, Spanish, French and Japanese. While it is clear that the first three systems of medicine (i.e. Ayurveda, Unani and Siddha) are systems that have a corresponding system of traditional medicines, the framing of Yoga as a system of medicine is unclear as there is no medicine administered to the patient. Increasingly, however, medical procedures are being patented, and the Indian government in August 2015 shortlisted 1,500 yoga asanas to be included in the TKDL to prevent foreign parties from patenting them.^[11] This was in response to several yoga-related patents being applied for^[12] and granted^[13] around the world, notably in the United States.

The TKDL’s appeal lies in the manner in which it approaches attempts to patent TK (the “state of the art”) – it serves to pre-empt the granting of a patent, rather than to contest a patent’s validity after it has been granted. This, it is claimed, reduces the time taken to contest claims from a matter of years to a few weeks.^[14]

Defining the right

The protection of TK can be primarily placed within Article 15 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). In order to understand the relationship between TK and Article 15, we must first appreciate that TK is also scientific knowledge. There are two ways in which the right of the TK community can be mapped onto Article 15. First, the Article recognises “the right to take part in cultural life”, and second, “to enjoy the benefits from scientific progress and its applications”. This ensures that communities have the right to continue to operationalise and use TK. Further, Article 15 includes the right “to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production”. However, while this is a universal right, in practice it will only happen when national law recognises the property rights of the community, facilitates protection of these rights, takes legal action against infringements, and provides mechanisms for the collection and distribution of royalties. What might not strike the reader as obvious is that the benefits of protecting the moral and material interests in the world of TK accrue to the community, while in other forms of IP the rights holder is either an individual or corporation.

Article 11 of the ICESCR is also relevant to TK. It recognises the right of everyone to an adequate standard of living, including adequate food, clothing and housing, and to the continuous improvement of living conditions. Article 11 (2) (a) mandates that states parties to the Covenant take measures to “improve methods of production, conservation and distribution of food by making full use of technical and scientific knowledge, by disseminating knowledge of the principles of nutrition and by developing or reforming agrarian systems in such a way as to achieve the most efficient development and utilization of natural resources.”^[15] TK is connected to food in multiple ways, such as ecosystem and landscape management, water management, soil conservation, biological control of pests and diseases, ecological agriculture and livestock practices, and plant and animal breeding – and most importantly, with regard to the latter, breeding and preserving varieties of plant and animal species. Suman Sahai, founder of the Gene Campaign,^[16] helps us understand the connection between food security and traditional knowledge. She argues that farmers are a community of women and men who have not only created several thousand breeds of food and cash crops, but also “identified valuable genes and traits in these crops and maintained them over generations through a highly sophisticated system of crossing and selection.”^[17]

There exist a host of international and national norms, both of a general and a specific nature, enunciating the right of indigenous communities to their traditional knowledge. One specific example is the World Health Organization’s approach to Traditional and Complementary Medicine (T&CM). In this, it urges states to “prevent the misappropriation of T&CM by implementing the relevant international instruments in line with the WHO global strategy and plan of action on public health, innovation and intellectual property, adopting or amending national intellectual property legislation, and enacting other defensive protection strategies.”^[18]

India has signed the Convention on Biological

Diversity (CBD), a treaty with 194 parties in total.^[19] The CBD provides for the respect, preservation and maintenance of “knowledge, innovation and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity”, and also for encouraging the wider application of such practices while ensuring that the benefits arising from such utilisation are shared equit ably with the communities in question.^[20] Having signed this convention, India has the duty to protect this knowledge without appropriating it, and the TKDL is a means to protect this right.

Such provisions have been included in India’s Biological Diversity Act,^[21] which was enacted in pursuance of India’s duties under the CBD. Restrictions on the granting of patents for inventions arising from research on biological resources,²⁶ the transfer of biological resources or knowledge,^[22] and the enforcement of equitable benefit sharing^[23] aim to serve as effective legal bars to biopiracy and unauthorised use of traditional knowledge.

Successes of the TKDL

Since the inception of the TKDL, in just under two years, and in Europe alone, India has succeeded in using this resource to bring about the cancellation or withdrawal of 36 applications to patents traditionally known as medicinal formulations.

Between 2001 and 2015, out of a total of 189 pharmaceutical applications which include medicines, therapeutics, etc., 21 were granted while 17 were rejected. An additional 30 were deemed withdrawn and another 31 were abandoned. At the time of writing, 90 have their examination still in progress. Out of the 10 applications under cosmetics, seven are under progress while one each has been accepted, rejected and deemed to be withdrawn. There was only one application under agriculture which was rejected. The domain of food had three applications out of which one was rejected, one deemed to be withdrawn and the last one in progress.^[24]

India and the US had the maximum number of applications at 75 and 43 respectively. Japan and Korea were third and fourth at 16 and 11 respectively. Most of these applications were in progress, with 12 applications from India being rejected and 17 being abandoned. Only five had been granted to India while three were deemed to be withdrawn; 38 of India’s applications and 12 of those from the US are pending. Taiwan and Jordan’s only applications were granted while Spain’s only application was rejected.^[25]

But do digital databases work as a form of IP protection?

While proponents of the database have been vocal in their vision for its application, it has received criticism on several grounds.

First of all, there is a fair amount of disagreement regarding the best possible means through which TK can be protected.^[26] Indeed, existing literature already features catalogues of international law (both “hard” and “soft”), regional norms and domestic legislation that accord protection to TK within the framework of culture.^[27] While some believe that data aggregation and record creation is the best means to tackle biopiracy, others propose different approaches,^[28] such as negotiating access agreements between indigenous communities and bio-prospectors.^[29]

Secondly, the TKDL has also attracted criticism because of its high level of confidentiality. In response to a right to information application, the Council for Scientific and Industrial Research (CSIR) clarified that the TKDL can only be accessed by foreign patent offices.^[30] It is not made available to the Indian Patent Office or to CSIR scientists. As per the same response, the decision to make the TKDL confidential was taken during a cabinet meeting in 2006, but there exists no legal instrument that mandates such confidentiality. TK databases in other countries do not impose access restrictions. The Korean Traditional Knowledge Portal, for example, explicitly states the motivation behind making itself publicly available:

The database is presented on-line through the Korean Traditional Knowledge Portal (KTKP). The reasons for making the database publicly accessible through the KTKP are as follows:

To lay the foundation for international protection of Korean traditional knowledge, thereby preventing unauthorized use of patents inside and outside the country.
To provide an abundance of information on traditional knowledge and related research, thereby expediting the development of related studies and industries.
To provide essential information for patent examinations, thereby enhancing the quality of intellectual property applications for traditional knowledge.^[31]

Similarly, the contents of the China Traditional Medicine Patent Database are also publicly available on the internet.^[32]

Finally, the TKDL has also raised questions of copyright, with claims that it falls foul of the Indian Copyright Act, 1957, since it has digitised works (such as translations or compilations of ancient texts) that are still under copyright without the consent of their authors.³⁸ Responding to the same right to information application discussed above, the CSIR claimed that no consent was required since the traditional knowledge in question was authored many years ago. This is a perplexing position to take, as there is significant skill and labour involved in translating and compiling these ancient texts and putting this knowledge together, which merits copyright protection.^[33]

The need for open knowledge systems

There seems to be no reason to keep a valuable resource such as the TKDL away from the public’s reach, especially considering the fact that the entire project was bankrolled by the Indian taxpayer. Restricting access to the TKDL severely limits the benefit that the general public could derive from this knowledge. Even if one were to accept that there exist compelling reasons to keep the data confidential, it is clear that the TKDL, by its very nature, cannot possibly be invulnerable to breach. Problems of access control are endemic to large databases – it has been postulated that large aggregations of secret data are fundamentally impossible because security must be traded off for ease of access in such situations. Thus, “you cannot construct a database with scale, functionality and security because if you design a large system for ease of access it becomes insecure, while if you make it watertight it becomes impossible to use.”^[34] For this reason, governments have been urged to make use of centralised databases only when absolutely necessary.^[35] If we accept the premise that centralised databases cannot possibly be both accessible and secure, then we must examine whether the TKDL represents a balanced trade-off between accessibility and confidentiality.

There are three changes that are necessary in this regard:

The need to push for open knowledge A system like the TKDL constitutes a mechanism for defensive protection of TK – it seeks to keep TK in the public domain rather than to exclusively put it in the hands of the community that evolved it. This is similar to the Peer-to-Patent^[36] initiative, which ensures that more eyes are involved in following the process: a crowd-sourced approach to preventing inappropriate appropriation.

The need to address legal barriers Primarily, the TKDL’s data seems to be far from infallible, with several reports of mistranslations^[37] and exaggerated claims^[38] made by the CSIR. Apart from this, the most important requirement that the TKDL must fulfil is for its data to meet the legal criteria established for prior art in various jurisdictions. This would entail ensuring that the knowledge is made available with clear evidence of the date of its publication, and the presentation of the knowledge in a manner that clearly establishes that a patent claim is anticipated by the data contained in the library.^[39] Further, the fundamental challenge faced by any defensive protection mechanism is its vulnerability to differing definitions of prior art in various jurisdictions:

European Patent Convention (EPC): The most TKDL-friendly jurisdictions are those such as the EU. The EPC defines prior art as “everything made available to the public by means of a written or oral description, by use, or in any other way, before the date of filing of the European patent application”.^[40] Thus, innovations detailed in the works indexed by the TKDL would fall within the definition of prior art, and therefore be unpatentable – assuming, of course, that all the works digitised and translated by the database were publicly available. An overwhelming majority of the TKDL’s self-proclaimed “successes” have been achieved in the EU – around 120 of the 180 “successful outcomes” are against European patent applications.^[41]
United States: On the other end of the spectrum is the US definition of prior art. The United States Patent Act provides that a person “shall be entitled to a patent unless (a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent.”⁴⁸ This effectively excludes protection for any non-published knowledge outside the US. Further, given the restrictive access to the TKDL, it appears that the database would not fall within the definition of a “printed publication”, since it has never been “published” – merely circulated among patent examiners on conditions of non-disclosure. Thus, it appears that there is no legal basis for the TKDL to be cited as evidence of prior art in the US, or other jurisdictions that have similar definitions of prior art.^[42]

The need to address structural barriers

In choosing to characterise itself as an archive of prior art, the TKDL has placed the burden of enforcing TK assertions upon patent examiners around the world. In doing so, it has pigeonholed itself into a doctrine (namely prior art) that has a tendency to go largely unheard in patent examinations. With studies showing that more experienced patent examiners, typically occupying higher positions in the patent office, are less likely to cite examples of prior art in their examinations,^[43]^[44] and still other evaluations showing that applicants for patents are extremely unlikely to provide and identify prior art surrounding their claims,^[45] it is evident that there are structural imbalances working against the efficacy of the prior art doctrine in preventing illegitimate patent claims. Thus, efforts must be made to counter this imbalance at two levels: first, access to the TKDL must be made as easy as possible; second, the TKDL has to undertake proactive patent monitoring efforts.

Patent monitoring, while an onerous and expensive task, is nevertheless necessary for the success of a defensive system such as the TKDL, especially in those jurisdictions which do not have the legislative framework to enable provisions of the CBD that mandate disclosure of genetic material sources.

Conclusion

For the reasons stated above, the access policy of the TKDL requires significant modification if the database is to reach its true potential for providing accurate, efficient and time-bound protection to TKbased innovations through the use of a centralised database that is wired into a network of interested parties.

TK systems require all the external support they can get in order to protect their mandate. Civil society must engage effectively with the TKDL initiative, encourage the accuracy of its records through research, and stimulate dialogue regarding the key issues discussed in this report. As pointed out by the UN Special Rapporteur on the rights of indigenous people: “Much more needs to be done to understand fully how … treaties and agreements can undermine or reinforce indigenous peoples’ rights and how they shape the trajectories of national economic development plans.”^[46]

[1] Traditional Knowledge, WIPO. www.wipo.int/tk/en/tk 4 Ibid.

[2] WIPO. (2010). List and Brief Technical Explanation of Various Forms in which Traditional Knowledge May be Found. www.wipo.int/ meetings/en/doc_details.jsp?doc_id=147152

[3] Shiva, V. (2001). Protect or Plunder? Understanding Intellectual Property Rights. London: Zed Books.

[4] See, e.g., Horsbrugh Porter, A. (2006, 17 April). Neem: India’s tree of life. BBC. news.bbc.co.uk/2/hi/south_asia/4916044.stm; BBC. (2005, 9 March). India wins landmark patent battle. BBC. news. bbc.co.uk/2/hi/science/nature/4333627.stm; Hoggan, K. (2000, 11 May). Neem tree patent revoked. BBC. news.bbc.co.uk/2/hi/ science/nature/745028.stm

[5] In re POD-NERS, L.L.C., Re-examination No. 90/005,892, US Fed.

Cir. 2009. law.justia.com/cases/federal/appellate-courts/cafc/08-

[6] /08-1492-2011-03-27.html

[7] It is also noteworthy for another reason: it is illustrative of the time and effort required to contest claims after a patent has been granted. Proponents of the TKDL would argue that what took a decade in the Enola bean case could have been achieved in a manner of weeks at the application stage by a patent office equipped with such a database.

[8] Shashikant, S., & Asghedom, A. (2009, 12 August). The ‘Enola Bean’ dispute: patent failure & lessons for developing countries. Third World Network. twn.my/title2/wto.info/2009/ twninfo20090811.htm

[9] Crouch, D. (2009, 10 July). Mexican Yellow Bean Patent Finally Cooked. Patently-O. patentlyo.com/patent/2009/07/mexican yellow-bean-patent-finally-cooked.html

[10] Gupta, V. K. (2011). Protecting Indian Traditional Knowledge from Biopiracy. WIPO. www.wipo.int/export/sites/www/meetings/ en/2011/wipo_tkdl_del_11/pdf/tkdl_gupta.pdf 13 www.tkdl.res.in/tkdl/langdefault/common/Home.asp?GL=Eng 14 Gupta, V. K. (2011). Op. cit.

[11] PTI. (2015, 9 August). Over 1500 yoga asanas shortlisted to thwart patenting by foreign parties. Indian Express. indianexpress.com/ article/india/india-others/over-1500-yoga-asanas-shortlisted-to thwart-patenting-by-foreign-parties

[12] TNN. (2007, 18 May). US patent on yoga? Indian gurus fume. Indian Express. timesofindia.indiatimes.com/india/US-patent-on yoga-Indian-gurus-fume/articleshow/2058285.cms

[13] Lee, T. B. (2013, 13 December). A yoga patent? Here’s why the USPTO approves so many dubious applications. Washington Post. https://www.washingtonpost.com/news/the-switch/ wp/2013/12/13/a-yoga-patent-heres-why-the-uspto-approves-so many-dubious-applications

[14] Press Information Bureau. (2010, 28 April). India Partners with US and UK to Protect Its Traditional Knowledge and Prevent Bio-Piracy. pib.nic.in/newsite/erelease.aspx?relid=61122

[15] www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx

[16] genecampaign.org

[17] Sahai, S. (1996). Importance of Indigenous Knowledge in IPR. Economic and Political Weekly, 31(47).

[18] World Health Organization. (2013). WHO Traditional Medicine Strategy 2014-2023. apps.who.int/iris/ bitstream/10665/92455/1/9789241506090_eng.pdf?ua=1

[19] List of Parties, Convention on Biological Diversity. https://www. cbd.int/information/parties.shtml

[20] Article 8(j) of the Convention on Biological Diversity. https://www.

cbd.int/convention/text

[21] nbaindia.org/content/25/19/1/act.html 26 Section 6 of the Biological Diversity Act, 2002.

[22] Section 20 of the Biological Diversity Act, 2002.

[23] Section 21 of the Biological Diversity Act, 2002.

[24] www.tkdl.res.in/tkdl/langdefault/Common/ExaminerReport.

asp?homepage=sub

[25] Ibid.

[26] WIPO. (2010). Op. cit., Annex 2.

[27] See, e.g., Coombe, R. J. (2005). Protecting Traditional

Environmental Knowledge and New Social Movements in the

Americas: Intellectual Property, Human Right, or Claims to an Alternative Form of Sustainable Development? Florida Journal of International Law, 17(1), 115-136.

[28] Swiderska, K. (2006). Banishing the Biopirates: A New Approach to Protecting Traditional Knowledge. International Institute for Environment and Development. pubs.iied.org/pdfs/14537IIED.pdf

[29] Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore. (2002). Review of Existing Intellectual Property Protection of Traditional Knowledge. WIPO. www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_3/ wipo_grtkf_ic_3_17-main1.html

[30] Reddy, P. (2012, 29 March). Is the TKDL a ‘confidential database’ and is it compliant with Indian copyright law? SpicyIP. spicyip. com/2012/03/is-tkdl-confidential-database-and-is-it.html

[31] KTKP Introduction, Korean Traditional Knowledge Portal. www. koreantk.com/en/m_about/about_01.jsp?about=1

[32] Brief introduction of China Traditional Medicine (TCM) Patent Database, China TCM Patent Database. 221.122.40.157/tcm_ patent/englishversion/help/help.html 38 Op. cit.

[33] Reddy, P. (2012, 21 April). The need for an ‘independent’ review of the TKDL project. SpicyIP. spicyip.com/2012/04/need-for anindependent-review-of-tkdl.html

[34] Proposed by Ross J. Anderson, this thumb-rule has come to be known as Anderson’s Rule. See: Porter, H. (2009, 10 August). Nine sacked for breaching core ID card database. The Guardian. www. theguardian.com/commentisfree/henryporter/2009/aug/10/ id-card-database-breach

[35] See, e.g., Anderson, R. et. al. (2009). Database State. Joseph Rowntree Reform Trust. www.jrrt.org.uk/sites/jrrt.org.uk/files/

documents/database-state.pdf

[36] www.peertopatent.org

[37] Rathi, M. (2012, 20 April). Guest Post – TKDL: A success – Really?

SpicyIP. spicyip.com/2012/04/guest-post-tkdl-success-really.html

[38] Reddy, P. (2012, 19 March). Guest Post: The Traditional Knowledge Digital Library and the EPO. SpicyIP. spicyip.com/2012/03/guest post-traditional-knowledge.html

[39] Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore. (2003). Practical Mechanisms for the Defensive Protection of Traditional Knowledge and Genetic Resources within the Patent System. WIPO. www.wipo. int/edocs/mdocs/tk/en/wipo_grtkf_ic_5/wipo_grtkf_ic_5_6.pdf

[40] Article 54(2) of the Convention on the Grant of European Patents. https://www.epo.org/law-practice/legal-texts/epc.html

[41] Outcomes against bio-piracy, Traditional Knowledge Digital Library. www.tkdl.res.in/tkdl/langdefault/common/Outcome.asp 48 35 U.S.C. § 102(a).

[42] Quinn, G. (2009, 30 November). US Patent Office to Reject Based on Traditional Knowledge. IPWatchdog. www.ipwatchdog.com/2009/11/30/us-patent office-to-reject-based-on-traditional-knowledge/ id=7502

[43] Lemley, M. A., & Sampat, B. (2012). Examiner Characteristics and

Patent Office Outcomes. The Review of Economics and Statistics,

[44] (3), 817-827. www.mitpressjournals.org/doi/abs/10.1162/ REST_a_00194?journalCode=rest

[45] Sampat, B. (2010). When do Applicants Search for Prior Art? The Journal of Law and Economics, 53(2), 399-416. www.journals. uchicago.edu/doi/abs/10.1086/651959?journalCode=jle

[46] Human Rights Council. (2014). Report of the Special Rapporteur on the Rights of Indigenous People. unsr.vtaulicorpuz.org/site/index. php/documents/annual-reports/26-annual-report-hrc-2014

For more details visit https://cis-india.org/a2k/blogs/giswatch-december-9-2016-sunil-abraham-and-vidushi-marda-digital-protection-of-traditional-knowledge-questions-raised-by-traditional-knowledge-digital-library-in-india

Comparison of National IPR Strategy September 2012, National IPR Strategy July 2014 and Draft National IP Policy, December 2014

amulya — 2016-03-08T01:49:07Z

This is an analysis of the first draft of India's National IPR Policy with an earlier document "India's National IPR Strategy".

Nehaa Chaudhari provided inputs, analysed, reviewed and edited this blog post.

As part of our IPR Policy Series, we have so far CIS has submitted comments to the Department of Industrial Policy and Promotion on the proposed IPR Policy and the first draft of the National IPR Policy, traced the development of the National IPR Policy, evaluated how the IPR Policy holds up to WIPO’s suggestions , filed RTI’s regarding the formation of the IPR Think Tank and the functioning of the Sectoral Innovation Council.

In this blog post Amulya.P compares the National IPR Strategy September 2012 prepared by the Sectoral Innovation Council, the National IPR Strategy July 2014 and the Draft National IP Policy, December 2014 to understand the commonalities and differences between the three.

Vision/ Mission

The vision stated in the IPR Strategy, July 2014 is “To develop India during the decade of Innovation into a major Innovative competitive and knowledge based economy by strategic utilization of IP as an engine for accelerated growth and sustainable and inclusive development.” This is comparable to the vision statement laid out in the Draft National IP Policy, December 2014 (Draft Policy) that states as follows: “An India where IP led growth in creativity and innovation is encouraged for the benefit of all; an India where IPRs promote advancement in science and technology, arts and culture, traditional knowledge and bio-diversity resources; an India where knowledge is the main driver of development, and knowledge owned is transformed into knowledge shared.” The Mission Statement laid out in the Draft Policy reads as follows “Establish a dynamic vibrant balanced intellectual property system in India to : foster innovation and creativity in a knowledge economy, accelerate economic growth, employment and entrepreneurship, enhance socio-cultural development and protect public health, food security and environment among other areas of socio-economic importance”

Clearly the Draft Policy strives for more balance and envisions IPRs as not only a tool to ensure social welfare alongside economic growth, but also envisions IPR as a tool to ensure the sharing of knowledge.

Objectives/ Approaches

The objectives of both the September 2012 National IPR Strategy and the July 2014 National IPR Strategy are more or less to “ Transform India into an innovative economy that would be reflected in high rankings in development and innovation indices from a global standpoint and develop, sustainable and innovation-promoting IPR management system in India while ensuring that the IP system continues to have appropriate checks and balances conducive to social and economic welfare and to a balance of rights and obligations. Besides measures that need to be taken, the strategy also needs to have an implementation matrix and a time bound schedule.”

In addition to this, the September 2014 IPR Strategy Document lays down a four pronged approach- to promote respect for IP, to simulate creation of IPRs ,creation of new IP regimes to address needs of the country and strengthening protection of IP, and to facilitate commercialization of IP. The IPR Strategy of July 2014 expands on this to include the establishing of cost effective, efficient, service oriented administration, institutional capacity building and development of human capital and the integrating of IP components of national sectoral policy and the Addressing of IP issues in international fora.

The Draft Policy though has enumerated seven objectives throughout the report. They are: a) “To create public awareness about economic social and cultural benefits of IP among all sections of society for accelerating development, promoting entrepreneurship, enhancing employment and increasing competitiveness”.b) “To stimulate creation of growth of IP through measures that encourage IP generation.”c) “To have strong and effective laws with regard to IPRs that are consistent with national priorities and international obligations which balance the interests of rights owners with public interest.” d) “To modernize and strengthen IP administration for efficient, expeditious and cost effective grant and management of IP rights and user oriented services.” e) “To augment the commercialization of IP rights, valuation licensing and technology transfer.” f)”To strengthen the enforcement and adjudicatory mechanisms for combating IP violations, piracy and counterfeiting, to facilitate effective and speedy adjudication of IP disputes to promote awareness and respect for IPRs among all sections of society.” f) “To strengthen and expand human resources, institutions and capacities for teaching, training, research and skill building in IP.”

Clearly the Draft Policy lays more emphasis on raising public awareness about the benefits of IP, strengthening the enforcement and adjudicatory mechanisms to combat violations and on balancing different interests during the creation of new IP laws and regulations.

Raising Awareness

While the September 2012 IPR Strategy speaks of raising awareness as a tool in encouraging creation of IP and facilitating commercialization of IP, the Draft Policy envisions an elaborate awareness raising and publicity program. Some of the schemes suggested in the Draft Policy include: Adoption of the slogan “Creative India: Innovative India” and launching an associated campaign on electronic , print and social media by linking IPRs and other national initiatives such as Make in India, Digital India, Skill India and Smart Cities. Reaching out to industry, MSMEs, R&D institutions, science and technology institutes, universities, colleges, inventors, creators, farmers/plant variety users, traditional knowledge holders, designers and artisans through campaigns tailored to their needs and concerns. Promoting the idea of high quality and cost effective innovation as a particularly Indian competence leading to competitive advantage, Involving of eminent personalities as ambassadors to spread awareness of India’s IP, Using audio visual material in print/electronic/social media for propagation, Creating moving exhibits that can travel to all parts of the country, Establishing Innovation and IPR museums, announcing a National IPR day and celebrating world IPR day etc.

The Draft Policy has a much more elaborate program for awareness raising and publicity and this is reflected throughout the document with almost every stakeholder and department being involved in the awareness programme.

MSMEs

The July 2014 IPR Strategy and the September 2012 IPR strategy both call for very similar policies with regard to MSMEs. Both lie emphasis on educating and incentivizing MSMEs to create new IP and formalize existing ones, on government intervention in setting up IP facilitation centers to bring about collaboration between the facilitation centers and the activities of existing industrial clusters, provision of access to databases on patent and non-patent literature to enable prior art research to IITs and NITs free of cost so that they can assist MSMEs or individuals with determining novelty in their inventions free of cost and other provide assistance with the patent application for a fee. While the September 2014 strategy called for identifying such institutions, the July 2014 Strategy does. Both of these strategies however, call for favorable tax treatments toward MSMEs for R&D Expenditures. Both also call for support mechanisms to offset IP costs and facilitate technology transfer through in-licensing from publicly funded research.

The Draft Policy discusses MSMEs in less detail, but still calls for creation of educational materials for MSMEs and highlighting special mechanisms for them to develop and protect IP, encouraging IP creation by establishing and strengthening IP facilitation centers especially in industrial and innovation university clusters, Introducing “first-time patent” fee waiver and support systems for MSMEs and reduce transaction costs in other ways (e.g. prior art search). It does not specifically mention favorable tax treatment to MSMEs or access to databases to determine novelty or provision of assistance with patent application or call for government intervention to better the IP facilitation centers.

Academia and Research Organisations

The July 2014 IPR Strategy and the September 2012 IPR strategy again recommend similar strategies when it comes to academia and research organisations. They both recommend some sort of education/awareness rising targeted at researchers and innovators regarding precautions to be exercised before patent application such as not selling inventions to company at early stages / not publishing research to public etc. they also recommend promoting university startups to motivate scientists to take up technology ventures. They both promote encouraging IITs and other similar institutions to undertake research on national issues like poverty, health, food, security, energy, information technology, bio-technology etc. They both recommend that IP creation be a key performance indicator for universities and institutions that participate in publicly sponsored/collaborative research and development and that this be gradually introduced in Tier 1 and Tier 2 institutions. And finally they both recommend that basic concepts of IP creation and respect for IP as part of formal education at school/college/university/vocational level including a course on IPR that is to be included in the curriculum of all technical programmes recognized by AICTE and in post grad/research programme in science and applied fields in universities.

The Draft Policy recommends all this and more. It recommends the formulation of institutional IP policy/strategy in higher education, research and technical institutions. Even though it recommends educating researchers and innovators regarding IP and precautions to be taken with respect to protecting their invention before publishing, it doesn’t go into detail or state that there is a need to protect against inventions being sold prematurely to companies. The Draft Policy also recommends that public funded research organisations and private sector are to be tapped to create campaigns highlighting the process of IPR creation and the value generated therefrom. It also recommends that IITs NITs etc. be encouraged to focus on research in areas such as nanotechnology, data analytics and ICT in addition to areas such as food security, healthcare and agriculture. Further in addition to creating educational material about IPR at school and university levels, the Draft Policy also calls for online and distance learning programs for all categories of users that focus on IPR. And for IP courses/modules to be introduced in all major training institutes such as judicial academies, National Academy of Administration, Police and Customs Academies, IIFT, Institute of Foreign Service Training, Forest Training Institutes etc., creating IPR cells and technology development and management units in such institutes. The Draft Policy also recommends that IPR be a compulsory subject in all legal educational institutions, NIDs NIFTs, agricultural universities and management institutes, and making IP teaching a part of accreditation mechanism in institutes under the purview of UGC, AICTE MCI as well as IITs and IIMs.

Large Organisations

The September 2012 IPR Strategy recommends that the government encourage large organisations to take a long term view of R&D and make research investments to create strong self-reliant tech portfolio and also acquire the scale to build strategic global positions, it recommends that the government encourage these organisations to share their expertise and resources for national benefit through PPPs, development of high technology base requires strategic relationships with overseas players, it recommends that it be made mandatory for MNCs to align with innovation strategy and the National Innovation systems and that the MNCs be encouraged by the state to leverage their standing and reach to ensure inflow of best practices and investments.it also recommends sops and preferential treatment in public contracts to large Indian organisations with a strong culture of IP creation. And that these organisations be encouraged to tap open innovation platforms and tie ups with academia. The July 2014 IPR Strategy recommends more or less the same strategies with regard to large organisations.

The Draft Policy recommends that public funded research organisations and private sector be encouraged to create campaigns highlighting the process of IPR creation and its value, that MNCs and large organisations develop IPR programs for their employees, that government encourage large organisations to create, protect and utilize IP in India and that the government create an industry-academia interface for encouraging cross-fertilization of ideas and IPR driven research and innovation in jointly identified areas. It makes no mention of requiring large organisations to align with the National IPR Policy, to ensure best practices but also doesn’t particularly mention tax cuts or other sops to encourage large organisations with a strong IP culture. The Draft Policy makes no mention at all of open innovation platforms. In large parts the Draft Policy is vague and lacks specifics with regard to strategies toward large organisations.

Startups and Individuals

The September 2012 IPR Strategy and the July 2014 IPR Strategy both make separate recommendations aimed at startups and individuals. They both recommend that information on the delivery mechanism for support services including things like venture capital funding should be made expedient and that identified public institutions should offer end to end support for creation, protection and commercialization of IP. The September 2012 Strategy also recommends that procedural mechanisms adopted for giving financial support for patent filing should be made smoother and that the assistance provided should be improved. The Draft Policy does not include any specific recommendations with regard to start ups or individuals apart from involving them in the publicity/awareness campaigns. In this measure the Draft Policy seems to fall short.

Strengthening IP Protection/ Creating New IP Regimes

The September 2012 IPR strategy generally called for improvement in institutions that grant IPRs and in institutions that are responsible for its enforcement and expansion of rights to include new IPRs.

The July 2014 IPR Strategy had a significant advance to this and recommended periodic review and streamlining procedures and process and guidelines for search, grant examination, maintenance and registration of IPRs in consultation with relevant stakeholders and benchmarked with best practices. It also recommended that full benefit be taken of global protection systems of WIPO, Patent Cooperation Treaty, Madrid System for International Registration of Marks etc. and that consequent upon amendment in 2012 of the Copyright Act, 1957, consideration be given to acceding to the Marrakesh Treaty for the blind, that avenues for international cooperation in IPR be studied. And finally it recommended that with respect to traditional knowledge and grant of patents in other countries, the Nagoya protocol is a step in the right direction and while the Patents Act, 1970, Biological Diversity Act, 2002 and the Plant Variety Protection and Farmers Rights Act, 2001 address the issue, a sui generis system of protection to check misappropriation is required at the international level.

The Draft Policy generally recommends that there be a review of existing IP laws to update and improve them and remove any inconsistencies, a review of IP related rules and procedures etc. to ensure clarity, simplification, streamlining, transparency and time bound process in administration and enforcement of IP rights. The Draft Policy also recommends that the government actively engage in negotiating international treaties and agreements in consultation with stakeholders, examine accession to some multilateral treaties that are in the countries interest and become a signatory to those treaty that India has defacto implemented so that India can participate in their decision making process. The central problem here is of course that what is in the countries interest may be open to debate, the Draft Policy does not at any point for example indicate whether or not the Government would consider taking on TRIPS plus obligations, the Draft Policy does not clarify what the Governments general stance on such issues would be.

The Draft Policy further recommends that important areas of study and research for future policy development be identified, some examples provided are: a) Interplay between IP laws and other laws to remove ambiguities or inconsistencies, b) Interface between IP and competition law and policy, c) Protection of undisclosed information not extending to data exclusivity, d) Guidelines for authorities whose respective jurisdictions impact the administration or enforcement of IPRs such as patents and bio-diversity, e) Exceptions and limitations and f) Exhaustion of IP rights. A prominent concern here would be data exclusivity, while the policy uses vague language and only wants these issues to be studied, Data exclusivity among others are demands made by the EU and others in Free Trade Agreements that go beyond our obligation under TRIPS and could harm the public interest.

Establishing Cost Effective, Efficient and Service Oriented IP Administrative Infrastructure

The July 2014 IPR Strategy recommends that IPOs be restructured to aim for ISO 9002 model to increase efficiency, quality and cost effectiveness; that after a review of the need of human resources to enable IPOs to discharged workload efficiently the required amount of manpower be employed; that recruitment training and career development of officials has to be reviewed to recruit and retain best personnel in the IPO; that the possibility of providing advisory services and value added products be studied; and recommends that there should be cooperation with IPOs in other countries in the area of capacity building, human resource development and awareness.

The Draft Policy recommends that IPOs be restructured, upgraded and be granted greater responsibility and autonomy taking into account the rapid growth and diversity of IP users and services, it also recommends an increase in manpower according to findings after a review to ensure speedy liquidation of backlog, requirements of global protection systems and productivity parameters. And that the process of recruitment training, cadre structure and career development of officials be studied and reviewed to retain the best talent to enhance efficiency and productivity. The Draft Policy also recommends that the government collaborate with R&D institutions universities, funding agencies, chambers of industry and commerce in providing advisory services which will improve IP creation and management and utilization, promote cooperation with IP offices in other countries in areas of capacity building, HRD, training, access to databases, best practices in search and examinations, use of ICT and user oriented services, enhance international and bilateral cooperation and post IP attaches in select countries to follow IP developments and advice on IP related matters.

Office of CGPDTM

The September 2012 IPR Strategy recommended that Grant/registration procedure to be quickened through recruitment and increasing human resources, that the functioning of IPOs be improved by measures such as: complete digitization of IP records and uploading for public view to improve transparency, communication with applicant/agents to be improved to bring in transparency meticulousness, database to be made searchable so that researchers can conduct effective searches to identify state of the art technology, electronic filing of applications and subsequent examination through electronic mode to be mandatory, Increase in filing fee with specific discounts for identified sectors such as MSEs.

The 2012 IPR Strategy observed that the quality of examination of IP applications needs to be improved and suggested reassessment of procedures followed in IPO to reduce timelines toward statutory actions.

The July 2014 IPR Strategy recommended that the grant and registration procedure be quickened through recruitment and increasing human resources, and that there be regular meetings between the CGPDTM and the National Biodiversity Authority to resolve issues that arise from implementing guidelines about grant of patents on inventions using genetic resources and TK.

The Draft Policy recommended that the government establish close cooperation between IPOs and create a common web portal for ease of access to statutes regulations, guidelines, databases and for better coordination.

The Draft policy also recommended that the CGPDTM examine joining centralized access for search and examination (CASE) and WIPO digital access services (DAS), that the CGPDTM fix and adhere to timelines for grant of registration and disposal of opposition matters, create a service oriented culture, include appointing public relations officers who would make the IP office user friendly, that the CGPDTM conduct periodic audits of processes being adopted in IP administration for efficient grant and management of IP rights.

The Draft Policy also recommended that the CGPDTM implement quality standards at all stages of operations with the aim to obtain ISO certification and adopt best practices with respect to filing and docketing of documents, maintenance of records and digitizing the same including document workflow and tracking systems, and take steps to expedite digitization of the design office and enable online search and filing in the design office

The Draft Policy also recommended that the CGPDTM ensure that public records in IP office are easily available and accessible both online and offline and establish effective coordination between its office and NBA to enable harmonious implementation of guidelines relating to grant of patents on inventions using genetic resources and associated TK, that the CGPDTM remove disparities among different branches of the trademark registries and patent offices and adopt standardized procedures in examination/grant of applications including maintenance of rights, implement centralized priority field wise on a national basis and provide value added services in form of helpdesks, awareness and training materials, patent mapping, licensing and technology transfer support services, ease of remote access of the international patent search mechanisms and other IP related databases. And that the CGPDTM implement incentives for MSMEs to encourage filing by the said sector like waiver of official fee, support of examiners and pro-bono legal help for the first time filing.

Administrative Departments of Other IP Institutions

The September 2012 IPR Strategy and the July 2014 IPR Strategy both generally recommended that the administrative departments of other IP institutions also take up similar actions as the CGPDTM.

The Draft Policy however, goes into this with some detail. The Draft Policy recommends that with regard to the office of Registrar of Copyright, the Government take measures to expedite modernization of the office both in terms of office space and infrastructure and in terms of introducing e filing facility including e- applications, electronic processing and issuance of final extracts of registrations etc. It also recommends that all copyright records be digitized and that the government introduce an online search facility and provide necessary manpower and adequate training facilities to personnel in the copyright office. It further recommends that the government take urgent measures for the effective management and administration of copyright societies to ensure transparency and efficiency in the collection and disbursement of royalties in the best interests of rights holders and that the government provide user friendly services in the form of help desks, awareness raising and training materials.

The Draft Policy recommends that the registrar of Semiconductor Integrated Circuits Layout Design study the reasons for lack of interest in filings under the Semiconductor Integrated Circuits Layout Design Act, 2000 and suggest appropriate measures. The Draft Policy also recommends that the government formalize a consultation and coordination mechanism between the National Biodiversity Authority and the IPOs with a view to harmonious implementation of guidelines for grant of IP rights and access to biological resources and associated traditional knowledge and benefit sharing.

Institutional Capacity Building

The July 2014 IPR Strategy recommended that the RGNIIPM act as a think tank, carry out research on IP matters, formulate and deliver training courses and develop teaching curricular for academic institutions, develop linkages with other national and international institutions involved in similar fields and develop joint training programs and conduct joint research studies on IPRs including programs for plant variety protection and issues related to traditional knowledge and bio resources. And establish IP institutes with state governments for raising awareness and training and teaching.

It also recommended that the MHRD IPR chairs provide support to all ministries and departments in policy making law making and negotiations under bilateral or multilateral frameworks. The Strategy also recommended that institutes responsible for training customs, police, judiciary, forest research institutes have IP training as an essential part of the curriculum, that National level institutes associated with creation enforcement or commercialization should be encouraged to incorporate IP training and capacity building in their operations and finally that industry, business, IP professional bodies, inventers associations, venture capital funds etc. should be encouraged to develop IP training modules for their members as well.

The Draft Policy recommends all this and more and suggests that RGNIIPM Nagpur conduct training for IP administrators , managers in the industry, academicians, R&D institutions, IP professionals, inventors, civil society apart from training the trainers, developing training modules and links with other similar entities at the international level and set up state level institutions. Further it recommended that the MHRD IPR Chairs provide high quality teaching and research, develop teaching capacity and curricula and evaluate their work on performance based criteria.

The Draft Policy also recommends that the CGPDTM provide continuous training to the IPO staff and update them with developments in procedures, substantive laws and technologies along with the RGNIIPM.

The Draft policy also recommends that the government establish national level institutes of excellence to provide leadership in IP, conduct policy and empirical research, examine trends and developments in the field of IP at the national and international level, support the government in strategic development of IP systems and international negotiations, establish links with similar institutes and experts in other countries for exchange of ideas, information and best practices and suggest approaches and guidelines for inter-disciplinary human capital development. And that the government facilitate industry associations, inventors and creators associations and IP support institutions to raise awareness of IP issues for teaching, training and skill building.

Strengthening Institutional Set-up to Improve Enforcement of IPRs and Create Respect for IPRs

The September 2012 IPR Strategy and the July 2014 IPR Strategy both recommend that the government encourage small and niche businesses to protect their products through trademarks, the September 2012 Strategy also adds that these businesses should be encouraged to seek international protection to participate in global competition and contribute to international trade activities. The Draft Policy recommends increasing awareness of international mechanisms and treaties (e.g. PCT, Madrid and The Hague) to encourage creation and protection of IP in global markets.

The 2012 IPR Strategy and the July 2014 Strategy go into further detail, they recommend that the service sector be encouraged to adopt strategies for registration of trademarks to ensure competitiveness and to leverage the goodwill of strong indigenous brands that have acquired traction in international markets. They also recommend that SME clusters be encouraged to develop a comprehensive database of their products to ensure that a parent isn’t issued on unprotected innovations.

As far as GI is concerned, both the July 2014 and the September 2012 IPR Strategy recommend that central public bodies such as the development commissioner for handicrafts and handlooms etc. partner with the suitable state, district and Panchayat level entities to educate communities on the benefits of registering GIs, to put in place examination protocols to ensure GI owners comply with quality standards. They further recommend that these bodies develop a roadmap to build brands for better market presence for products registered as GIs and coordinate with relevant state authority on enforcement and provide periodical updates to enforcement taskforce on issues that need redressal.

The Draft Policy only recommends that the government encourage registration of GI through support institutions and assist GI producers to define and maintain acceptable quality standards and providing better marketability.

As far as designs are concerned, both the July 2014 IPR Strategy and the September 2012 IPR Strategy recommend that the government encourage a move from informal to formal practices of protecting designs by administrative intervention, while the Draft Policy recommends the encouraging of creation of design related IP rights by identifying, nurturing, and promoting aspects of innovation protectable under the design law and educating designers to utilize and benefit from their designs , involve the NIDs , NIFTs and other institutions in sensitization campaigns.

With regard to plant varieties, both the 2014 and 2012 IPR Strategies recommend awareness generation programmes to encourage filings of new extant and essentially derived varieties. While the 2012 IPR Strategy further stated that there was a need to evaluate whether restructuring institutions/merging all IP issues under one umbrella would improve efficiency and a need for centrally managed National IP Enforcement Taskforce that could :a) Maintain database on criminal enforcement measures instituted for trademark infringement and copyright piracy, civil cases filed to be collated also, b) Mandated to deliberate upon operational issues of enforcement with the concerned Central and State agencies, c) Conduct periodic industry wise infringement surveys d) Coordinate capacity building programmes for the central and state enforcing agencies.

The Draft Policy recommends that the protection of plant varieties and farmers rights authority should: a) Support increased registration of new, extant and essential derived varieties and streamline procedures, b) Facilitate development of seeds and their commercialization by farmers., c) Establish links with agriculture universities, research institutions, technology development and management centers and Krishi Vikas Kendras, d) Coordinate with other IPOs for training sharing expertise and adopting best practices, e) Augment awareness building, training and teaching programs and modernize office infrastructure and use of ICT.

With regard to Traditional Knowledge, the Draft Policy also recommends that the government create a sui generis system for protecting TK which will safeguard misappropriation of traditional knowledge as well as promote further research and development in products and services based on traditional knowledge.

Creation of New IP Rights to Address Gaps

The September 2012 IPR Strategy recommended protection of utility models, utility patents as they have Protection of utility model. Utility patents / models proposed as they have less stringent patentability criteria, faster examination/grant, shorter term of protection as a cost effective way to incentivize incremental innovation and encourage creation of IPRs, with sector specific exemptions to ensure TRIPS compliance. And included a proposal for a predictable recognizable trade secret regime to improve investor confidence and facilitate flow of information.

The Draft Policy also recommended that the government facilitate creation and protection of small inventions through a new law on utility models, enact laws to address national needs to fill gaps in protective regimes of IPRs such as utility models and trade secrets to keep up with advancements in science and technology to strengthen IP and innovation ecosystem from example IP created from public funded research, to protect and promote traditional knowledge. As pointed out in the CIS Submission to the IPR Think Tank, the creation of utility models should by no means be assumed to be completely uncontroversial, many countries that had this system have now given it up, further this could lead to granting of frivolous patents and thereby harming development.

Facilitating Commercialization of IPRs

Both the July 2014 and the September 2012 IPR Strategies have similar recommendations with respect to facilitating commercialization of IPRs; they both recommend policy interventions to create strong and transparent national strategies to encourage: licensing of rights to another entity for commercialization, cross licensing agreements, leveraging the intellectual assets for future R&D growth and improved services, sale merger acquisition of either IPR or entire business distinguished and appropriately valued by their intellectual capital, patent pooling, reinforcing stability of IP license contracts.

And they both recommend that National research laboratories and academia and public institutions to stimulate commercialization of research resultants: intervention in building strengthening institutional capacity of research led organisations to enable utilization of IP.

The 2012 IPR Strategy also recommends national level policy changes to encourage development of indigenous technologies, that government fund (grants/loans) demonstration projects of new technologies that require large investment, suitable tax breaks for indigenously developed and commercialized products till attainment of some maturity levels, that qualification requirements during tendering process to accord acceptance to indigenously developed products where heavy development investments have been incurred, strengthening the indigenous R&D ecosystem policy frameworks should provide for flexibility in outsourcing technical expertise in niche areas and type testing of prototypes. Further it visualizes the emergence of open innovation systems and the role of voluntary SSOs.

The Draft Policy does all this and more. It recommends that the government establish an IP Promotion and Development Council (IPPDC) as a nodal organization for promotion and commercialization of IPR, the IPPDC is supposed to, among other things, promote licensing and technology transfer of IP, devise suitable contractual and licensing guidelines to enable commercialization of IP, promoting patent pooling and cross licensing to create IP based products and services and also establishing links with similar organisations for exchange of information and ideas as also to develop promotional educational products and services for promotion and commercialization, to facilitate access to databases on Indian IP and global databases of creators/innovators, market analysts, funding agencies, IP intermediaries, to study and facilitate implementation of best practices for promotion and commercialization of IP within the country and outside. IPPDC to establish IP Promotion and Development Units (IPPDU) in various regions The IPPDC is also tasked with identifying opportunities for marketing Indian IPR based products and services to a global audience.

The government is also recommended to provide statutory incentives like tax benefits linked to IP creation for the entire value chain from IP creation to commercialization, to support financial aspects of IP commercialization by: a)Enabling valuation of IP rights by application of appropriate methodologies including for better accounting as intangible assets, b) Facilitating investments in IP driven industries and services through the proposed IP exchange for bringing investors/funding agencies and IP owners /users together, c) Providing financial support to less empowered groups of IP owners or creators like farmers weavers, artisans, craftsmen etc. through financial institutions like rural banks or cooperative banks offering IP friendly loans, d) Taking stock of all IP funding by the government and suggesting measures to consolidate the same to the extent possible generating scale in funding and avoiding duplication, enhancing the visibility of IP and innovation related funds so that utilization is increased, performance based evaluation for continued funding, c) Regulating IP created through publicly funded research by a suitable law.

The Draft policy also recommends that the government promote going to market activities by: a) Creating mechanisms to help MSMEs and research institutions to validate scale and pilot through market testing, b) Providing seed funding for market activities such as participating in trade fairs, industry standards bodies and other forums, c) Providing guidance and support to IPR owners about commercial opportunities of e commerce through internet and mobile platforms. And that the government study the role of IPRs in setting standards in various areas of technology, actively participate in standards setting processes at national, international and industry SSO levels and to encourage the development of global standards that are influenced by technologies and IP generated in India

Facilitating and Encouraging Commercialization of IP Assets

The July 2014 IPR Strategy had specific recommendations to make in this regard. It recommended that the government forge links between creators and inventors , universities, industry and financial institutions for commercialization, that the government establish an IP exchange to stimulate trading of IP and creating markets for IP assets, to facilitate MSMEs to identify protect and commercialize their IP, creations through facilitation centers by providing package of services, to encourage technologies acquired under the patent pool of the Technology Acquisition and Development Fund (TADF) and licensed as per provision in manufacturing policy.

The Draft IP policy recommends all of these, tasking the IPPDC with most of these tasks and also recommends that the government improve awareness of the value of copyright for creators, the importance of their economic and moral rights and the rationalization of payment mechanisms for them, and to support initiative taken by public sector research entities to commercialize their IPRs for commercialization and lastly to develop skills among scientists to access , interpret and analyze the techno-legal and business information contained in IP documents.

Enforcement and Adjudication

The Draft Policy makes very specific recommendations with regard to enforcement and adjudication, apart from suggestions that go toward creating awareness and sensitizing the public, students, industry and inventors about IP, the policy also recommends that the government establish a Multi-Agency Task Force for coordination between various agencies and providing direction and guidance on enforcement measures, creating a nationwide database of known IP offenders, coordination and sharing intelligence and best practices at the national and international levels, studying the extent of IP violations in various sectors, examining the implications of jurisdictional difficulties among enforcement authorities and introducing appropriate technology based solutions for curbing digital piracy.

The government is also tasked with working with state governments in establishing IP cells and including IP crimes under their special laws, increasing manpower and infrastructure of the enforcement agencies and building capacity to check proliferation of digital crimes, providing regular training for officials in enforcement agencies, encouraging application of tech-based solutions in enforcement of IP rights, initiating fact finding studies in collaboration with stakeholders concerned to assess the extent of counterfeiting and piracy and the reasons behind it as well as the measures to combat it and taking up the issue of Indian works and products being pirated and counterfeited abroad with countries concerned.

On improving IP dispute resolution, the Draft Policy recommends the designation of specialized patent bench in the High Courts of Bombay, Calcutta, Delhi and Madras, the designation of one IP court at the district level depending on the number of IP cases filed, working with judicial academies to conduct regular workshops for judges, promoting ADRs in the resolution of IP cases by strengthening mediation and conciliation centers and developing ADR capabilities, creating regional benches of the IPAB in all five regions where IPOs are located, increasing the powers of IPAB in its administration including autonomy in financial matters and selection of technical and judicial members and providing necessary infrastructure for its effective and efficient funding and also taking urgent steps to make the copyright board function effectively and efficiently and provide adequate infrastructure and manpower to it.

Work Plans

In addition to all of the above, the July 2014 IPR Strategy also recommends a work plan which includes commissioning a study on schemes and programs financed by the government including under the PP mode for innovation, signing and acceding to the Marrakesh Treaty, the NICE agreement on international classification of goods and services for the purpose of registration of trademarks, assessing the Hague Agreement regarding registration of industrial design vis a vis India’s Designs Act with a view to accede to the treaty, assessing the possibility of accepting facilitation centers run by universities/academic institutions/departments of science and technology as receiving offices for patent applications where there are no patent offices.

The Draft IP Policy also makes recommendations to integrate IP with other government Initiatives like Make in India and Digital India, and plans to integrate into these government initiatives the different schemes of the Department of Electronics, and IT for IP promotion and global protection. It further recommends the establishing of a high-level body in the government to co-ordinate, guide and oversee the implementation and development of IP in India in accordance with the National IP Policy. The body will be responsible for bringing cohesion and coordination among different ministries and departments with regard to how they deal with IP matters, laying down priorities for IP development and preparing plans of action for time bound implementation of national and sector specific IP policies, strategies and programs, monitoring the progress and implementation of the National IP policy linked with performance indicators, targeted results and deliverables, annual evaluation of the overall working of the policy and a major review of the policy ever three years.

Concluding Observations

The National IPR Strategies of 2012 and 2014 contain more or less similar recommendations, the key differences being that the 2014 IPR Strategy emphasizes the need to address IP issues in international fora and in establishing cost effective, efficient and service oriented IP administrative infrastructure. It does not, in contrast to the 2012 IPR Strategy, recommend the introduction of laws on utility models or protection of trade secrets, policy changes to encourage development of indigenous technologies, but it does more specifically address facilitating commercialization of IP.

The Draft Policy is an important advance over the National IPR Strategy of July 2014 and September 2012. It places makes important new recommendations with regards to publicity and awareness raising, creation of legal regime with regard to traditional knowledge, utility patents and trade secrets, enforcement and adjudication- including the setting up of new courts, creation of the IPPDC and of a new high-level government body to oversee the implementation of the policy. It does however miss out on the chance to help start-ups, MSMEs and individuals in contrast to recommendations of the previous IPR Strategies. And in context of its avowed aim to turn knowledge owned into knowledge shared does little to encourage open access and focuses heavily on IP creation assuming that increase in IP would promote innovation and thereby lead to national development.

Table - Comparison of National IPR Strategy September 2012, National IPR Strategy July 2014 And Draft National IP Policy, December 2014

Sectoral Innovation Council, National IPR Strategy, September 2012, Available at: http://dipp.nic.in/english/Discuss_paper/draftNational_IPR_Strategy_26Sep2012.pdf (Hereafter : National IPR Strategy, September 2012)

National IPR Strategy, July 2014, Available at: http://dipp.nic.in/English/Schemes/Intellectual_Property_Rights/national_IPR_Strategy_21July2014.pdf (Hereafter: National IPR Policy, July 2014)

IPR Think Tank, Draft National IP Policy, December 2014, Available at: http://dipp.nic.in/English/Schemes/Intellectual_Property_Rights/IPR_Policy_24December2014.pdf (Here after: Draft Policy)

National IPR Strategy, July 2014, p.5

Draft Policy, p.5

[5] National IPR Strategy, July 2014, p.5

Draft Policy, p.5

National IPR Strategy, September 2012, pp.11 and Draft Policy, December 2014, pp.5

National IPR Strategy, September 2012, pp.11

National IPR Strategy, July 2014, pp.5-6,

Draft Policy, p.6,

Draft Policy, p.8.

Draft Policy, p.11.

Draft Policy, p.13.

Draft Policy, p.17.

Draft Policy, p.20.

Draft Policy, p.23.

National IPR Strategy, September 2012, pp. 7, 11, 12, 19 20

National IPR Strategy, September 2012, pp. 21

Draft Policy, p.6-8

National IPR Strategy, September 2012, pp.6-7 , 12-13 and National IPR Strategy, July 2014 , pp.6-8

Draft Policy, p.5, 9-10, 15,18-19

National IPR Strategy, September 2012, pp. 7, 13-14 and National IPR Strategy, July 2014 , pp.8-9.

Draft Policy, p.8,11,24

National IPR Strategy, September 2012, pp.6, 14-15 and National IPR Strategy, July 2014 , pp.9-10

Draft Policy, p.7-8, 10

National IPR Strategy, September 2012, pp. 7, 15 and National IPR Strategy, July 2014 , pp.10

National IPR Strategy, September 2012, pp. 7, 15

National IPR Strategy, September 2012, pp. 15

National IPR Strategy, July 2014 , pp.10-12

Draft Policy, p.12-13,

Draft Policy, p.13

Swaraj Paul Barooah, Data Exclusivity back on the table for India, SpicyIP, March 27, 2015, Available at: http://spicyip.com/2015/03/data-exclusivity-back-on-the-table-for-india.html

National IPR Strategy, July 2014 , pp.11-12

Draft Policy, p.14

National IPR Strategy, September 2012, pp. 15-16

National IPR Strategy, September 2012, pp. 16

National IPR Strategy, July 2014 , pp. 12-14

Draft Policy, p. 15-16

Draft Policy,p. 16

Draft Policy, p.15

Draft Policy, p. 15-16

National IPR Strategy, September 2012, pp.16 and National IPR Strategy, July 2014 , pp.14

Draft Policy, p.16

Draft Policy, p.17

National IPR Strategy, July 2014 , pp.14-15

National IPR Strategy, July 2014 , pp.15

Draft Policy, p.24

Draft Policy, p.23

Draft Policy, p.24

National IPR Strategy, September 2012, pp.18 and National IPR Strategy, July 2014 , pp.15-16

Draft Policy, p.11

National IPR Strategy, September 2012, pp.17-18 and National IPR Strategy, July 2014 , pp.16-17

National IPR Strategy, September 2012, pp.19 and National IPR Strategy, July 2014 , pp.16

Draft Policy, p. 11

National IPR Strategy, September 2012, pp.19-20 and National IPR Strategy, July 2014 , pp. 17-18

Draft Policy, p.11

National IPR Strategy, September 2012, pp. 20 and National IPR Strategy, July 2014 , pp.18

National IPR Strategy, September 2012, pp. 18

Draft Policy, p.11

Draft Policy, p. 12

National IPR Strategy, September 2012, pp. 20-22

Draft Policy, p.12

See, CIS Comments to the First Draft of the National IP Policy, Available at: http://cis-india.org/a2k/blogs/national-ipr-policy-series-cis-comments-to-the-first-draft-of-the-national-ip-policy

National IPR Strategy, September 2012, pp. 22 and National IPR Strategy, July 2014 , pp. 18-19

National IPR Strategy, September 2012, pp.22 and National IPR Strategy, July 2014 , pp.18

National IPR Strategy, September 2012, pp.23

Draft Policy, p. 18-19

Draft Policy, p.19

Draft Policy, p.10,19

Draft Policy, p.19-20

Draft Policy, p. 12-13

National IPR Strategy, July 2014 , pp.19

Draft Policy, pp. 10, 18-19.

Draft Policy, pp. 20-22

Draft Policy, p. 22

Draft Policy, p.22-23

National IPR Strategy, July 2014 , pp.22

Draft Policy, pp. 25-26.

Draft Policy, p.26

Draft Policy, p.27-28

For more details visit https://cis-india.org/a2k/blogs/comparison-of-national-ipr-strategy-september-2012-national-ipr-strategy-july-2014-and-draft-national-ip-policy-december-2015

National IPR Policy Series: Quick Observations on the Leaked Draft of the National IPR Policy

nehaa — 2015-11-19T05:13:14Z

Earlier this week, the “Don’t Trade Our Lives Away” blog leaked the supposed final draft of India’s National IPR Policy (“leaked draft”). This article presents quick comments on this leaked draft.

The leaked draft (which is not final) is available here. The only official document that the Department of Industrial Policy and Promotion (“DIPP”) has released so far is the First Draft of the National IPR Policy (“First Draft”).

CIS has tracked these developments since the beginning. We have submitted preliminary comments, critical comments to the First Draft, sent multiple requests under the Right to Information Act, 2005 (“RTI requests”) to the DIPP and published their responses, discussed the IPR Think Tank as a public authority under the RTI Act, analysed the process compared to recommendations by the World Intellectual Property Organization (“WIPO”), compared the First Draft to an earlier National IPR Strategy[N1] , written a letter to the Think Tank and have now begun to track the work being done by the Sectoral Innovation Council on IPR, also established under the DIPP. At the time of writing this post, we have been unable to locate comments to the First Draft made available by the DIPP.

Since the release of the First Draft in December, 2014, this leaked document has been the first look at an updated IPR Policy for India. Not much seems to have changed since December, 2014 and this new leaked draft (which is dated April, 2015), barring the inclusion of some Special Focus Areas.

Perhaps one of the strongest criticisms of the First Draft had been that it supposed a nexus between IP and innovation, and various stakeholders had been quick to point this out as problematic, and fallacious. Unfortunately, since the language of the new draft has barely changed (I have managed to count only two-three additions), this remains the underlying issue in the new draft as well.

What continues to be worrying in both drafts is sweeping references of benefits of IP to India’s socio-economic development. What constitutes this development and how IPR, and specifically the IPR Policy will achieve it is anyone’s guess, given that there are no references to studies undertaken to assess how IPR contributes to socio-economic development, specifically in India.

Here are some other quick comments:

In the first objective on IP Awareness and Promotion, the new draft includes an additional recommended step – that of engaging with the media to ‘sensitize them on IP issues’ (sic.). Given that this is under a broader objective of encouraging IP promotion, I am inclined to believe that this could be interpreted as telling the media to print positive things about intellectual property and refrain from criticizing intellectual property (that seems to be the theme of this entire document!). What does it mean to ‘sensitize’ the media about intellectual property?
In the second objective, on IP creation, the leaked draft contains a recommendation to conduct a study to assess the contribution of various IP based industries to the economy – including employment, exports and technology transfer. No other details have been provided in the draft.
Also in the second objective, the new draft makes a mention of improving the IP output of universities, national laboratories etc. The new draft proposes to encourage and facilitate the acquisition of intellectual property rights by these labs and institutions, whereas the earlier draft recommended the protection of IPRs created by them.
In the covering letter to the leaked draft, Justice Sridevan states that the final draft includes a discussion on key focus areas – creative industries, biotechnology, ICT, energy, agriculture, health, geographical indications (“GIs”) and traditional knowledge (“TK”). These have been discussed at the end of the new draft.
Limitations and exceptions remain confined to an area of future study/research for future policy development. The ‘Creative Industries’ section of the leaked draft makes a mention of the significance of limitations and exceptions to safeguard access to knowledge and information; and the need to balance user rights and property rights. One would have liked to see this discussed more substantively in the policy and not confined only to a paragraph in the section on ‘Creative Industries’.
In a welcome move, the policy draft (new) seeks to promote the adoption of free and open standards and free and open software in the ‘Information and Communication Technology and Electronics’ section.

With the DIPP Secretary’s latest update that the new policy draft will be released in about a month’s time, one will have to wait and see what the final draft looks like.

For more details visit https://cis-india.org/a2k/blogs/national-ipr-policy-series-quick-observations-on-the-leaked-draft-of-the-national-ipr-policy