The Centre for Internet and Society
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The US 301 Report – A Myopic View of IP Rights
https://cis-india.org/a2k/blogs/us-301-report-a-myopic-view-of-ip-rights
<b>Varun Baliga and Nehaa Chaudhari discuss the 2015 US 301 Report, focussing on its narrow and convenient understanding of IP rights. A farrago of contradictions, it supports a rightsholder-centric view but not when the right, Geographical Indicator, is not to their liking. Similarly, the emphasis on the rights themselves gives short shrift to critical exceptions and limitations that also enhance and incentivize innovation, the ostensible purpose of IP.</b>
<p style="text-align: justify; ">The US Trade Representative ["USTR"] is the office in charge of the United States Special 301 Report ["301 Report"] - an annual report on the state of intellectual property rights in countries around the world. The Executive Summary of the 2015 Report states that it is conducted "pursuant to Section 182 of the Trade Act of 1974, as amended by the Omnibus Trade and Competitiveness Act of 1988 and the Uruguay Round Agreements Act (19 U.S.C. § 2242)". <a href="#_ftn1" name="_ftnref1">[1]</a> The relevant excerpt of the provision states:</p>
<p style="text-align: justify; ">" <i> The Trade Representative shall, by not later than the date by which countries are identified under subsection (a) of this section, transmit to the Committee on Ways and Means of the House of Representatives and the Committee on Finance of the Senate, a report on actions taken under this section during the 12 months preceding such report, and the reasons for such actions, including a description of progress made in achieving improved intellectual property protection and market access for persons relying on intellectual property rights </i> ."</p>
<p style="text-align: justify; ">The 2015 301 Report, much like its predecessors, prioritizes the existence of institutional mechanisms for the protection of intellectual property rights over the purported end goals of those rights, as argued by Shamnad Basheer.<a href="#_ftn2" name="_ftnref2">[2]</a> The purported link between intellectual property and innovation, a key element of the <a href="http://cis-india.org/a2k/blogs/national-ipr-policy-series-cis-comments-to-the-first-draft-of-the-national-ip-policy"> CIS comment on the National IPR Policy </a> , is not studied by the Report but simply assumed as a truism. In the usual criticism of India's laws, the Report notes that "IPR protection and enforcement challenges continue, and there are serious questions regarding the future of the innovative climate in India", operating on the assumption that IPR is the sole driving force of innovation. Instead, the Report is guided by the 'business climate' in a country as facilitated by its IP laws. To borrow from the EFF's incisive critique of this annual exercise, the 301 Report pressurizes India to criminalize the act of camcording in a cinema hall despite domestic copyright law that prohibits it subject to statutory exceptions.<a href="#_ftn3" name="_ftnref3">[3]</a> Further, the Report finds India's compliance with the Berne Convention to be insufficient since 'business climate' favours as comprehensive an intellectual property regime as possible directed at the expansion of rights and the narrowing of exceptions critical to education and openness of knowledge.</p>
<p style="text-align: justify; ">International law on intellectual property is interpreted instrumentally by the drafters of the report. What this means is that IP is being viewed solely through the prism of national interest. A particularly egregious implication is being witnessed in the shift of preferred fora to discuss IP from bodies like the WIPO to trade-oriented platforms, a theme that is discussed later on in this piece. Further, Italy's notice and takedown regime is praised in the 2015 Report notwithstanding its procedure of obtaining an order of removal not from the courts but the Communications Regulatory Authority, against the Manila Principles of Intermediary Liability, an important albeit non-binding piece of state practice.<a href="#_ftn4" name="_ftnref4">[4]</a></p>
<p style="text-align: justify; ">Furthermore, the emphasis on the interests of rightsholders themselves coupled with enforcement seldom happens in a comparative context, in the Report. This means that the Report privileges the interests of rightsholders to the exclusion of any interest that the exceptions to copyright, for fair use and education for instance, may hold. The 2015 Report, for instance, notes positive developments in IP law as exclusively including the strengthening of the regulatory framework weighted in favour of rights. It fails to note the ratification of the Accessible Books Consortium or the <a href="http://spicyip.com/2015/03/un-special-rapporteur-on-impact-of-intellectual-property-regimes-on-the-enjoyment-of-right-to-science-and-culture.html"> Report of the UN Special Rapporteur Farida Shaheed </a> on copyright policy,<a href="#_ftn5" name="_ftnref5">[5]</a> implicitly signalling that the US does not consider these developments favourable. This is problematic at two level.</p>
<p style="text-align: justify; "><i>First, </i> competing interests of free speech, open access to knowledge, education, public health are either downplayed or outright ignored. For example, the Report entirely ignores the work of WIPO on exceptions and limitations, and the Marrakesh Treat among the multilateral and plurilateral initiatives of note. Switzerland, for instance, is censured for the 2010 Swiss Federal Court decision that erred on the side of privacy by prohibiting Logistep from tracking IP addresses of entities accused of file-sharing.<a href="#_ftn6" name="_ftnref6">[6]</a> Even in the emphasis on rightsholders, the 301 Report reeks of hypocrisy and doublespeak. Gabriel J. Michael notes that the 301 Report criticized the European Union for having <i>too much</i> protection of IP through geographical indicators (GI). So, IP protection appears to be an unreserved good as long as it's the <i>right</i> kind of IP as determined by the United States.</p>
<p style="text-align: justify; ">" <i> For example, by any reasonably objective standard, the European Union offers very high levels of IP protection. Yet as recently as 2006, Special 301 listed the European Union on its watch list, citing "concerns" about the EU's geographical indication (GI) regime. Given that GIs are a form of intellectual property, USTR essentially placed the EU on its watch list for offering </i> <i> </i> <i>too much</i> <i> </i> <i> IP-or, if you prefer, the wrong kind of IP. Interestingly, this is a tacit admission by the U.S. that at least some kinds of IP can act as trade barriers </i> ."<a href="#_ftn7" name="_ftnref7">[7]</a></p>
<p style="text-align: justify; "><i>Second, </i> the 301 Report operates on the assumption that intellectual property is a right <i>in rem</i>. It does not even attempt to engage with the notion of IP as a public right. This is a direct implication of the methodology of the Report that privileges the simple existence of IP frameworks and enforcement mechanisms over a more substantive examination of the causal nexus between IP and its purported <i>raison d'etre</i>. Therefore, the interpretive approach of the 301 Report towards intellectual property law construes it not as a means to ends but as an end in itself.</p>
<p style="text-align: justify; "><b>What Does This Mean?</b></p>
<p style="text-align: justify; ">Finally, there are two implications of this approach to IP rights. The first is on the Report's words on India this year. Credit is given to India for establishing the High Level Working Group on Intellectual Property ["IPR Working Group"]. The purpose of the Working Group is said to be to "enable India to achieve its important domestic policy goals of increasing investment and stimulating innovation through, not at the expense of, IPR protection and enforcement". The façade of public interest behind which the 301 Report attempted to operate is finally off, one might say. IP exists, it seems, to facilitate not broader goals of public interest but investment and innovation within the myopic interests of 'rightsholders'. Paradoxically, however, the Report does call for more consultation on the First Draft of India's National IPR Policy - a noteworthy development, although inconsistent with the tenor of the rest of the Report. Second, the 301 Report as a reflection of American foreign policy goals is now being understood through the lens of ongoing trade negotiations. This steady shift in the preferable forum for IP negotiations from inclusive and democratic platforms, such as WIPO, towards restrictive and secretive ones, such as the WTO, is driven by regressive notions of IP as reflected in the 301 Report. Signalling a move towards a state-centric approach heralded by the United States, critical non-state actors from civil society find it increasingly difficult to exercise agency in these negotiations. While WIPO provides space for non-state actors such as non-governmental organizations to represent their positions and aid states with research, trade negotiations shunt civil society. The cloak and daggers approach of the United States Government towards the Trans-Pacific Partnership Treaty,<a href="#_ftn8" name="_ftnref8">[8]</a> brought to some light with recent votes in the US Congress, negotiations contrasted with the democratic and open nature of the negotiations surrounding the Marrakech treaty underscores the important difference in approach.<a href="#_ftn9" name="_ftnref9">[9]</a></p>
<p style="text-align: justify; ">As a result, the civil society finds itself unable to counterbalance the power hierarchies entrenched in international relations as it has done, for example, with the attempted imposition of TRIPS-plus standards through bilateral and multilateral agreements. A state-centric approach makes it easier for larger economies to coerce smaller and dependent countries to draft laws with little regard for limitations and flexibilities that are key for innovation and standard of life in large swathes of Global South - peoples who cannot afford the costs of IP protected-innovation. Further, issues of IP and trade are not pertinent solely to states but are increasingly driven by and relevant to a raft of non-state actors. Any policy that does not actively seek to include these stakeholders in the decision making process is destined to fail. Therefore, on both principled and consequentialist grounds, the Special 301 Report deserves very little attention from the international community.</p>
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<p><a href="#_ftnref1" name="_ftn1">[1]</a> Full text of the provision available at <a href="https://www.law.cornell.edu/uscode/text/19/2242">https://www.law.cornell.edu/uscode/text/19/2242</a>.</p>
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<p><a href="#_ftnref2" name="_ftn2">[2]</a> http://indianexpress.com/article/opinion/columns/these-rancid-rankings/99/</p>
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<p><a href="#_ftnref3" name="_ftn3">[3]</a> https://www.eff.org/deeplinks/2015/04/special-301-balance-not-found</p>
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<p><a href="#_ftnref4" name="_ftn4">[4]</a> <a href="https://www.eff.org/deeplinks/2015/04/special-301-balance-not-found"> https://www.eff.org/deeplinks/2015/04/special-301-balance-not-found </a> ; https://www.manilaprinciples.org/</p>
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<p><a href="#_ftnref5" name="_ftn5">[5]</a> <a href="http://www.un.org/ga/search/view_doc.asp?symbol=A/HRC/28/57">http://www.un.org/ga/search/view_doc.asp?symbol=A/HRC/28/57</a> .</p>
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<p><a href="#_ftnref6" name="_ftn6">[6]</a> http://arstechnica.com/tech-policy/2010/09/switzerland-gathering-ip-addresses-from-bittorrent-sites-illegal/</p>
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<p><a href="#_ftnref7" name="_ftn7">[7]</a> <a href="https://topromotetheprogress.wordpress.com/2014/06/05/special-301-is-it-effective/"> https://topromotetheprogress.wordpress.com/2014/06/05/special-301-is-it-effective/ </a> ;</p>
<p>https://www.techdirt.com/articles/20140612/17435227561/ustrs-special-301-list-naughty-countries-without-strong-enough-patent-copyright-laws-is-complete-joke.shtml</p>
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<p><a href="#_ftnref8" name="_ftn8">[8]</a> <a href="http://www.politico.com/magazine/story/2015/05/tpp-elizabeth-warren-labor-118068.html#.VWvcMk-qqko"> http://www.politico.com/magazine/story/2015/05/tpp-elizabeth-warren-labor-118068.html#.VWvcMk-qqko </a> ; http://www.ip-watch.org/2015/04/23/divide-and-conquer-the-new-us-strategy-to-disentangle-the-tpp-negotiations/</p>
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<p><a href="#_ftnref9" name="_ftn9">[9]</a> http://www.ip-watch.org/2013/12/19/wipo-delegates-hear-concerns-of-ngos-on-exceptions-for-libraries/</p>
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For more details visit <a href='https://cis-india.org/a2k/blogs/us-301-report-a-myopic-view-of-ip-rights'>https://cis-india.org/a2k/blogs/us-301-report-a-myopic-view-of-ip-rights</a>
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No publishernehaaIntellectual Property RightsAccess to Knowledge2015-06-24T15:35:29ZBlog EntryThe madness of software patents
https://cis-india.org/news/madness-software-patents
<b>India’s patent law excludes software per se, yet over a thousand patents have been granted, writes Lata Jishnu in an article published in Down to Earth.</b>
<p>Per se is a straightforward term meaning by or in itself. Those who use it are pretty clear what the Latin-origin term signifies. And that’s what our lawmakers must have also believed when they used it in the 2005 amendment to India’s Patent Act.</p>
<p>But unaccountably this particular term has turned out to be prone to misuse more than anything else in the country’s patent law, leading to a host of software patents that should never have been granted in the first place. So me have been challenged and many more are set to be opposed in the courts but what is clear is that patent examiners in India have learned nothing from the anarchy in the US where the liberal grant of patents to software programmes and business methods has resulted in the biggest logjam in the courts. Patents cripple innovation and creativity by blocking access to data format specifications—and they hurt everyone.</p>
<p>A scan of the current patents disputes reveals how expensive and destructive these suits are.</p>
<ul><li>InNova is suing 36 of the world’s top flight computer, telecom and banking companies for violating its patent, which “covers technology used to differentiate between spam email messages and those that users actually want to receive”. The company claims its spam filter is one of the “building blocks for all email communications” but some experts say that actual spam filtering is far more sophisticated than the methods in the firm’s patent.</li><li>Oracle is suing Google because it says Google’s Android operating system infringes seven patents it owns on Java. Analysts allege that Oracle wants to assert its dominant position in the Java ecosystem.</li><li>Microsoft and Salesforce, a small competitor, were suing each other, with the Redmond behemoth claiming Salesforce used its software-as-a-service products, while Salesforce accuses Microsoft of violating its patents.</li><li>VirnetX Holding Corp, an Internet security software firm, which successfully sued Microsoft for US $200 million, is now charging several other corporations with violating patents for technology used in mobile phones, remote communication and virtual private networking.</li></ul>
<p>This list is merely illustrative of the madness out there. It is precisely to avoid such anarchy that India’s law was so formulated as to exclude software and business method patents. Here is what Section 3 (k) of the Patent Act says cannot be considered inventions: a mathematical or business method or computer programme per se or algorithms. In other words, computer programmes are a kind of algorithm just as algorithms are a kind of mathematical method. One reason for this exclusion is that computer programmes are protected by copyright in India and it was not thought necessary to provide additional protection through patents.</p>
<p>But lawyers being what they are, have set their sharp legal brains to assay what “computer programme per se” could be made to mean—encouraged, of course, by firms keen on pat - ent protection for software applications and business methods. The result is pretty dismaying: hundreds of patents granted in recent years, setting at naught the intention of the law. The Bengaluru-based Centre for Internet and Society (CIS) offers some estimates of the number of software patents granted in India. It says around 200 software patents have been granted till date (applications have been filed since 1999), another 1,000 patents were given for inventions which use the term ‘computer’ in the abstract describing the invention.</p>
<p>Krithika Narayana of CIS explains that actual numbers are hard to come by because there is no category for software patents. Thus, applications may be described as either ‘computer-based’ or ‘computerised’ or ‘computer implemented’ systems. However, most software patents are concentrated in the group of patents with G06F as their classification. The figures have been culled from this category. There is more bad news. Hund reds of software patent applications are in various stages of examination, opposition and grant which have not been included in the CIS tally. How has all this come about?</p>
<p>Most applicants manipulate the term ‘computer programmes per se’ to obtain patents for computer programmes run in combination with hardware (even though the hardware only executes the programme and has no ingenuity of its own) or software embedded in a machine (embedded systems). Clearly, the patent office has been wrong in granting such patents.</p>
<p>To end this, CIS, working in tandem with Knowledge Com - mons and Software Freedom Law Centre, is set to challenge a software patent. Hopefully, it might stop the tide. Otherwise, the consequences are scary. As Richard Stallman, the guru of free software, said, “If people had understood how patents would be granted when most of today’s ideas were invented, and had taken out patents, the industry would be at a complete standstill today.”</p>
<p>Read the original in <a class="external-link" href="http://www.downtoearth.org.in/node/1886">Down to Earth</a></p>
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For more details visit <a href='https://cis-india.org/news/madness-software-patents'>https://cis-india.org/news/madness-software-patents</a>
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No publisherpraskrishnaIntellectual Property Rights2011-04-02T10:17:11ZNews ItemThe Game of IPR: Insights from the 6th Global Intellectual Property Convention in Hyderabad
https://cis-india.org/a2k/blogs/the-game-of-ipr-insights-from-the-6th-global-intellectual-property-convention-in-hyderabad
<b>IP practitioners and IP creators were among the 1700 participants to gather at the Hyderabad International Convention Centre earlier this month. Here, CIS had the opportunity of listening in on perspectives around the “Optimization of economic value of innovation & IPR in the global market” while attending numerous talks and sessions that were held over the course of the convention’s three days.</b>
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<p><img src="https://cis-india.org/a2k/blogs/NarendraSabharwal.JPG/image_large" alt="Narendra Sabharwal" class="image-inline" title="Narendra Sabharwal" /></p>
<p class="discreet">One of the event's speakers, Mr. Narendra Sabharwal, IPR-Chair of FICCI, speaks of the immense value of IPR, while serving as protection as well as collateral for investors. (Photo credit: GIPC 2014)</p>
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<p style="text-align: justify;">This year’s Global Intellectual Property Convention (GIPC) was held in Hyderabad January 16-18, 2014 by ITAG Business Solutions Ltd. in association with the Institute of International Trade (iitrade). As the 6th of its kind, the event was held in hopeful contribution “towards society with the active support and cooperation of the IP fraternity,” says ITAG Founder and Director, Dr. D. R. Agarwal, while offering a “good opportunity for learning and business networking through one to one interaction in a pre-arranged manner under a conducive environment.”</p>
<p style="text-align: justify;">The theme at bay had been “<em>Optimizing the economic value of innovation & IPR in global market</em>.” In respect of this central focus, common themes across panel discussions and workshops included IP management, monetisation, application drafting, and litigation, with particular emphasis on India’s ‘Pharma’ industry. Over 100 speakers and panelists shared their personal knowledge from experience in the industry, and largely consisted of representatives from law firms, IP consultancies, pharmaceutical companies, and business organisations; all of which from India, Europe and the USA. As an attendee representing the Centre for Internet & Society (CIS), a research institute that works to address issues related to intellectual property (IP) reform, I had the privilege of listening to such perspectives on intellectual property from an alternative outlook.</p>
<p style="text-align: justify;">On the other hand, if exploiting too much by “abusing one’s monopoly, you are [setting] certain conditions, which are neither germane nor connected to the patent, and more than what is statutory permissible.” Kumaran stresses the necessity for the intellectual property right (IPR) holder to comply to the rights given by statutory law.</p>
<blockquote style="text-align: justify;" class="pullquote">The name of the game is the quality of drafting. It is the first and last chance." <span class="discreet">Vaidya D.P., </span><br />
<div align="right"><span class="discreet"></span></div>
<div align="right"><span class="discreet">Lakshmi Kumaran & Sridharan</span></div>
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<p style="text-align: justify;">Mr. Narendra Sabharwal, Panellist and IPR-Chair for the Federation of Indian Chambers of Commerce (FICCI), sought to demonstrate the immense value of innovation and IPR in technology, arts and culture globally, in explaining that a large portion of the EU’s GDP (39%), and employment (26%) are derived from IP-intensive industries (See study by European Patent Office <a class="external-link" href="http://www.novagraaf.com/en/news?newspath=/NewsItems/en/ip-contributes-just-under-40-percent-eus-gdp">here</a>). Also argued was that enterprises and institutions can increase value through licensing of products and services, while also serving as protection, and which can then become “excellent collateral for investors,” he says. Among other points made, Sabharwal mentioned the need for more incubators in India. Currently, India acquires 200 new incubators each year compared to China’s 8000 new incubators annually. Opening more incubators will encourage innovation, he argues, leading to more marketable products and solutions.</p>
<p><span class="discreet"> </span></p>
<p style="text-align: justify;">Mr. William H. Manning, Partner of Robins, Kaplan, Miller & Ciresi L.L.P (USA), took on the role of the story teller while sharing particularly interesting cases of previous clients. Manning had explained the necessity to ask one question over and over throughout the entire IPR application process; that question being: “What difference does the invention make?”</p>
<p style="text-align: justify;">In doing so, Manning was even able to take what would have been an ‘incremental’ patent—which is just distinct enough from prior art to get by—and turn it into a ‘foundational’ patent—generally adopted by the industry for 10-20 years before moving to a different technology. The better of these two types, however, is the ‘pioneering’ patent, an inventive leap in itself. This client success story definitely affirmed Speaker and Director of Lakshmi Kumaran & Sridharan, Vaidya D. P., when he said that “the name of the game is the quality of drafting. It is the first and last chance.” Manning had also claimed that 99.9% of patent in India are said to be incremental patents, with none being pioneering—at least not from the patent applications he’s seen in his 34 years of experience, anyway.</p>
<p style="text-align: justify;">Also a rule of this game is the “Take now—pay later” rule, according to Manning, in which enterprises may “ignore the problem for now and move ahead with the product. If somebody sues you for patent litigation…. Take now—pay later.” Here, he makes reference to the judgements enterprises may make when misusing or infringing upon an IPR, while assessing the worth of doing so with the risks that may lie ahead. Often, an enterprise may find that it is more worthwhile to misuse or infringe and reap the benefits in the “now” while knowing there may be a chance they will have to “pay later.”</p>
<p style="text-align: justify;">Throughout the convention, what I expected to be the elephant in the auditorium was surprisingly addressed quite often. Best said by Panellist, Mr. Mohan Dewan, “IPR only becomes an asset when it is misused or infringed upon.” Principal to R K Dewan & Co., Dewan compares IP rights with car insurance, which can only be cashed in when the car is stolen.</p>
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<div align="center"><img src="https://cis-india.org/a2k/blogs/pacman.png/image_preview" title="Pacman" height="329" width="274" alt="Pacman" class="image-inline" /></div>
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<p style="text-align: justify;" class="discreet">Applying for an IPR is a game in itself, that requires much knowledge of how it is played. Grab those power-ups or get eaten.</p>
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<p style="text-align: justify;">He then posed the question “how can we increase the economic value of an asset?”—presumingly so that one can capitalize when opportunity comes knocking—and responded to it in recommending the following measures: 1) ensuring one’s IPR is as strong as possible by drafting it according to national standards, 2) optimal protection—it is easier to register more than one at once! 3) diligence in auditing and licensing, and 4) staying alert and questioning what people are doing around you.</p>
<p style="text-align: justify;">These are only a few excerpts of the event’s many talks and panel discussions, yet these insights alone help to reveal the nature of the system where intellectual property rights reign. This is surely a system to be familiar with if it is within one’s interest to receive IPR for protection, yet I find it difficult to stop at the word “protection.” When you must learn how to play the game to ensure that you stay in it, I would say that IPR can extend well beyond protection, to be better off referred to as <em>strategy</em>.</p>
<p style="text-align: justify;">A strategy that enables you to reach a higher level and protects you from your opponents’ wrath. The higher the level, the more power-ups in reach and the higher you go. All the while undermining their chances of climbing up to where you are, and knocking them to even lower levels when possible. Lucky for you the majority of players are still stuck at level 1, but the nasty ones may be right behind you.</p>
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For more details visit <a href='https://cis-india.org/a2k/blogs/the-game-of-ipr-insights-from-the-6th-global-intellectual-property-convention-in-hyderabad'>https://cis-india.org/a2k/blogs/the-game-of-ipr-insights-from-the-6th-global-intellectual-property-convention-in-hyderabad</a>
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No publishersamanthaPatentsIntellectual Property RightsCopyrightAccess to Knowledge2014-01-31T09:56:10ZBlog EntryThe Future of the Moving Image
https://cis-india.org/research/conferences/conference-blogs/future-of-the-moving-image
<b>All dissimilar technologies are the same in their own way, but all similar technologies are uniquely different. This was probably at the core of the zeitgeist at the international seminar on “The Future of Celluloid” hosted by the Media Lab at the Jadavpur University, Kolkata, at which Nishant Shah, Director - Research CIS, presented a research paper. Practitioners, film makers, artists, theoreticians and academics, blurring the boundaries of both their roles and their disciplines and areas of interest, came together to move beyond convergence theories – to explore the continuities, conflations, contestations and confusions that Internet Technologies have led to for earlier technologies, but specifically for the technology of the moving image.</b>
<h2 align="left"> How Digital Cinema changes the notion of authorship...<br /></h2>
<p>The
concerns that emerged at the <a class="external-link" href="http://medialabju.org/about.html">Jadavpur University Media Lab</a>'s international seminar on The Future of Celluloid, were manifold and not confined to cinema or the moving image. These are
concerns that are voiced on all realms of cultural production, where
the traditional forms feel stranded at digital
intersections, threatened by the emergence of new cultural
productions which are so much more quintessentially the form and ideal
that the traditional forms aspired to.</p>
<p>The blog, as we saw at the
“<a href="https://cis-india.org/research/conferences/conference-blogs/the-anxiety-of-the-future-and-internet-technologies" class="external-link">Writing the Future Conference</a>” was seen as a threat and more
fundamentally replacing the novel form. Ars electronica or digital music has long since played the swan song of traditional
orchestration practices. Similarly, the digital film (often broadcast
on video sharing spaces like YouTube and MySpace) or even mainstream
feature films that embody digital technologies of hypervisualisation, show necessarily more than celluloid could ever capture. As <a class="external-link" href="http://www.cscsarchive.org/Members/ashish">Ashish
Rajadhyaksha</a> pointed out, “The capacity to pay almost infinite
attention to the celluloid image was made possible only with the
digitisation of the celluloid image”.</p>
<p>Through
the different presentations, this strain of thought was apparent – will we
lose celluloid altogether? Is the future of cinema going to be in
infantile pre-lapsarian representations of smiling/dancing/gurgling
babies and furry pets made by indulgent mothers and doting pet
owners? When cinema transitions from deep celluloid to shallow
pixels, will the loss in depth also result in the death of meaning
and processes of reading the image? And finally, the question
that seems to surface, sometimes in the guise of academic concern,
sometimes in the shape of alarm and anxiety, and sometimes in the
form of paranoia and raging uncertainty: “Is this the end of
Celluloid? “ to which <a class="external-link" href="http://en.wikipedia.org/wiki/Matt_Hanson">Matt Hanson</a>, who presented his open source film <a class="external-link" href="http://aswarmofangels.com/">A Swarm of Angels</a>, nuancedly added: "Only the end of celluloid as we know it!”</p>
<p>In my presentation titled ´Of Pranksters, Jesters and Clowns –
YouTube Videos and Conditions of Collaborative Authorship´ I made a
call to identify these questions as symptomatic of another more deep
seated anxiety which makes for a fundamental revisiting of the
relationship between the author, the text and the reader. Looking
particularly at YouTube videos and the kind of arguments that have
surrounded them – on copyright, defamation, plagiarism, piracy,
sampling, remix, authorship, ownership – I proposed that at the
centre of all these anxieties is the question of authorship, what
constitutes it and the need to expand the scope of authorship
by looking at the series of engagements that happen online.</p>
<p> I presented two cases to make my argument. The first was the case
of <a class="external-link" href="http://in.youtube.com/watch?v=N1KfJHFWlhQ">13-month-old Holden Lenz</a>, dancing to Prince’s
<em>Let’s Go Crazy.</em> In February 2007, Stephanie Lenz’s
family had a digital equivalent of a Kodak moment. Her 13-month-old son Holden, pushing a walker across her kitchen floor,
started moving to the addictive rhythms of Prince’s <em>Let’s Go
Crazy </em>song and Stephanie recorded him on her
digicam. Wanting more of the family to share the joy, she uploaded
the video on to YouTube and it was viewed scores of times. Laughs
were shared, gaps were bridged, digital technologies brought
families scattered across time-zones and lifestyles together.</p>
<p>However, the lawyers at
Universal Music did not seem to share the enthusiasm or the joy. They fired off a notice to YouTube asking them to remove the video because
it amounted to a copyright infringement. YouTube, fearing legal ramifications, removed the video. Stephanie Lenz approached the
Electronic Frontier Foundation (EFF), which challenged Universal’s
claims that held Lenz liable for up to 150,000 USD in fines for
sharing the 29 seconds of her son dancing. While it is very easy to
draw the battle-lines and look upon the well educated, highly paid
lawyers of Universal as ‘idiots’ who spent probably millions of
dollars in starting the legal battle, I think there is more at play
here than who is right and who is wrong. What is really being
debated, is not whether Lenz indulged in wilful copyright
infringement or not, but the questions of who is an author, what are
the mechanisms of attribution, and how do we understand these in the
complex digital worlds that we populate?</p>
<p>Historically, the author
was constructed as a communitarian figure whose work depended on and
was enhanced by the collaborations and the collective knowledge of
the people s/he interacted with. Chaucer, to quote the most canonical
example, for instance, was recognised as the author of <em>The Canterbury
Tales</em> only after the print industry finds its footing, thus
neglecting the fact that the text was heavily distorted, enhanced,
mutated, corrected, revised, edited and transformed by the various
users of the manuscripts, who were not merely audience or receptors
but also collaborative authors of the text. It is only with the
establishment of the cultural industries, that such a fluid
understanding of authorship gets crystalised into specific forms of
engagement, where the author, the reader, the distributor, the
consumer, the audience and the end user are all clearly defined and
contained within presumed roles.</p>
<p>It is the blurring of these
boundaries in the digital world that leads to the kind of debates
that we observe around the Stephanie Lenz case. The inability of the
newly emerging digital cultural industry to recognise different forms
of engagement – remixing, sampling, embedding, referencing,
distributing, editing, etc. – as creative and productive forms of
authorship is at the basis of the anxieties that run amok in these
debates. My presentation made a call for not only a
de-criminalisation of pirate positions in the realm of cultural
production, but also to recognise and celebrate the various
conditions of collaborative authorship – be it by Holden Lenz who
probably made the song twice as popular than it was, or by <a class="external-link" href="http://www.avrilbandaids.com/">Avril
Lavigne fans </a>who went on a spree to make her song <em>Girlfriend, </em> the
first video to be viewed one million times on Youtube – not merely
as derivative or acts of prank and jests, but as legitimate and
distinctive forms of authorship which expand the scope of the
cultural object and give it unprecedented layers of meaning and
engagement.</p>
<p>
For more details visit <a href='https://cis-india.org/research/conferences/conference-blogs/future-of-the-moving-image'>https://cis-india.org/research/conferences/conference-blogs/future-of-the-moving-image</a>
</p>
No publishernishantinternet and societyPiracyIntellectual Property RightsYouTubeinternet artCyberculturesNew Pedagogies2008-11-11T09:06:57ZBlog EntryThe First IJLT-CIS Lecture Series on Jurisdictional Issues in Cyberspace
https://cis-india.org/events/ijlt-cis-lecture
<b>The IJLT-CIS Lecture Series will be held at the National Law School of India University in Bangalore on 3 April, 2010. </b>
<p>The Indian Journal of Law and Technology (IJLT) is the law and technology journal of the National Law School of India University, Bangalore. The Centre for Internet and Society (CIS) is a leading research organisation devoted to the study of the Internet and its interface with the society. The IJLT-CIS Annual Law Lecture Series is an effort to promote a better understanding about crucial legal issues pertaining to the Internet and other emerging technologies.</p>
<p>The core theme of the lecture is <strong>Jurisdictional Issues in Cyberspace</strong>. Hon'ble Dr. Justice S. Muralidhar (Judge, Delhi High Court) shall be the Chief Guest and the first speaker. The other speakers are Amit Sachdeva (Advocate, Delhi High Court), Aditya Sondhi (Advocate, Karnataka High Court) and Dr. Lorna E. Gillies (Lecturer in Law, University of Leicester).</p>
<p>The Lecture Series is <strong>open to all law students and the general public</strong>. There are <strong>no charges or fees</strong> applicable to participants. However, all participants are requested to <strong>register through an e-mail to “editorialboard@ijlt.in”</strong>. All student participants shall be provided certificates of participation.</p>
<p> </p>
<p>
For more details visit <a href='https://cis-india.org/events/ijlt-cis-lecture'>https://cis-india.org/events/ijlt-cis-lecture</a>
</p>
No publisherpraskrishnaIntellectual Property Rights2011-04-05T04:12:05ZEventThe Digital Protection of Traditional Knowledge: Questions Raised by the Traditional Knowledge Digital Library in India
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
<b>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.
</b>
<hr />
<p>The original report published by GISWatch can be <a class="external-link" href="https://www.giswatch.org/en/economic-social-and-cultural-rights-escrs/digital-protection-traditional-knowledge-questions-rais">read here</a>. 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. <a class="external-link" href="https://www.giswatch.org/sites/default/files/gw2016-thematic-traditional.pdf">Click to download the PDF</a></p>
<hr />
<h2>Introduction</h2>
<p style="text-align: justify; ">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,<a href="#_ftn1" name="_ftnref1"><sup>[1]</sup></a> 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.”<sup>4</sup> While TK embraces traditional cultural expressions within its ambit, and includes distinctive signs and symbols associated with traditional knowledge,<a href="#_ftn2" name="_ftnref2"><sup>[2]</sup></a> the scope of this report does not extend to traditional cultural expressions as they necessarily would fall under the purview of copyright law.</p>
<p style="text-align: justify; ">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.<a href="#_ftn3" name="_ftnref3"><sup>[3]</sup></a> 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.<a href="#_ftn4" name="_ftnref4"><sup>[4]</sup></a> 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.<a href="#_ftn5" name="_ftnref5"><sup>[5]</sup></a><a href="#_ftn6" name="_ftnref6"><sup>[6]</sup></a></p>
<p style="text-align: justify; ">This case is far more worrying than the neem case for two reasons.<a href="#_ftn7" name="_ftnref7"><sup>[7]</sup></a> 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.<a href="#_ftn8" name="_ftnref8"><sup>[8]</sup></a> Second, the patent was allowed to stand for almost a decade, amounting to half the life of a legitimate patent.<a href="#_ftn9" name="_ftnref9"><sup>[9]</sup></a> 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.</p>
<p>The differences between TK and other forms of IP are the following:</p>
<ul>
<li>With other forms of IP, property rights are afforded to the innovator or creator, whereas communities own TK.</li>
<li>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.</li>
<li>IP is also time-bound, whereas TK is held in perpetuity from generation to generation.</li>
<li>The invention under IP must also satisfy the requirement for novelty and industrial application, whereas TK does not have these requirements.</li>
</ul>
<p>Although patent law is not tailored to protect TK, it has been used to prevent misappropriation of TK.</p>
<h2>The Traditional Knowledge Digital Library</h2>
<p style="text-align: justify; ">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.<a href="#_ftn10" name="_ftnref10"><sup>[10]</sup></a> This expert group proposed the establishment of the Traditional Knowledge Digital Library (TKDL)<sup>13 </sup>in 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.”<sup>14</sup> 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.</p>
<p style="text-align: justify; ">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.<a href="#_ftn11" name="_ftnref11"><sup>[11]</sup></a> This was in response to several yoga-related patents being applied for<a href="#_ftn12" name="_ftnref12"><sup>[12]</sup></a> and granted<a href="#_ftn13" name="_ftnref13"><sup>[13]</sup></a> around the world, notably in the United States.</p>
<p style="text-align: justify; ">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.<a href="#_ftn14" name="_ftnref14"><sup>[14]</sup></a></p>
<h2>Defining the right</h2>
<p style="text-align: justify; ">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.</p>
<p style="text-align: justify; ">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.”<a href="#_ftn15" name="_ftnref15"><sup>[15]</sup></a> 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,<a href="#_ftn16" name="_ftnref16"><sup>[16]</sup></a> 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.”<a href="#_ftn17" name="_ftnref17"><sup>[17]</sup></a></p>
<p style="text-align: justify; ">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.”<a href="#_ftn18" name="_ftnref18"><sup>[18]</sup></a></p>
<p>India has signed the Convention on Biological</p>
<p style="text-align: justify; ">Diversity (CBD), a treaty with 194 parties in total.<a href="#_ftn19" name="_ftnref19"><sup>[19]</sup></a> 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.<a href="#_ftn20" name="_ftnref20"><sup>[20]</sup></a> 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.</p>
<p style="text-align: justify; ">Such provisions have been included in India’s Biological Diversity Act,<a href="#_ftn21" name="_ftnref21"><sup>[21]</sup></a> 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,<sup>26</sup> the transfer of biological resources or knowledge,<a href="#_ftn22" name="_ftnref22"><sup>[22]</sup></a> and the enforcement of equitable benefit sharing<a href="#_ftn23" name="_ftnref23"><sup>[23]</sup></a> aim to serve as effective legal bars to biopiracy and unauthorised use of traditional knowledge.</p>
<h2>Successes of the TKDL</h2>
<p style="text-align: justify; ">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.</p>
<p style="text-align: justify; ">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.<a href="#_ftn24" name="_ftnref24"><sup>[24]</sup></a></p>
<p style="text-align: justify; ">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.<a href="#_ftn25" name="_ftnref25"><sup>[25]</sup></a></p>
<p><b>But do digital databases work as a form of IP protection?</b></p>
<p>While proponents of the database have been vocal in their vision for its application, it has received criticism on several grounds.</p>
<p style="text-align: justify; ">First of all, there is a fair amount of disagreement regarding the best possible means through which TK can be protected.<a href="#_ftn26" name="_ftnref26"><sup>[26]</sup></a> 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.<a href="#_ftn27" name="_ftnref27"><sup>[27]</sup></a> While some believe that data aggregation and record creation is the best means to tackle biopiracy, others propose different approaches,<a href="#_ftn28" name="_ftnref28"><sup>[28]</sup></a> such as negotiating access agreements between indigenous communities and bio-prospectors.<a href="#_ftn29" name="_ftnref29"><sup>[29]</sup></a></p>
<p style="text-align: justify; ">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.<a href="#_ftn30" name="_ftnref30"><sup>[30]</sup></a> 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:</p>
<p>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:</p>
<ol>
<li>To lay the foundation for international protection of Korean traditional knowledge, thereby preventing unauthorized use of patents inside and outside the country.</li>
<li>To provide an abundance of information on traditional knowledge and related research, thereby expediting the development of related studies and industries.</li>
<li>To provide essential information for patent examinations, thereby enhancing the quality of intellectual property applications for traditional knowledge.<a href="#_ftn31" name="_ftnref31"><sup>[31]</sup></a></li>
</ol>
<p>Similarly, the contents of the China Traditional Medicine Patent Database are also publicly available on the internet.<a href="#_ftn32" name="_ftnref32"><sup>[32]</sup></a></p>
<p style="text-align: justify; ">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.<sup>38</sup> 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.<a href="#_ftn33" name="_ftnref33"><sup>[33]</sup></a></p>
<h2>The need for open knowledge systems</h2>
<p style="text-align: justify; ">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.”<a href="#_ftn34" name="_ftnref34"><sup>[34]</sup></a> For this reason, governments have been urged to make use of centralised databases only when absolutely necessary.<a href="#_ftn35" name="_ftnref35"><sup>[35]</sup></a> 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.</p>
<p>There are three changes that are necessary in this regard:</p>
<p style="text-align: justify; "><i>The need to push for open knowledge </i>A system like the TKDL constitutes a mechanism for <i>defensive protection</i> 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<a href="#_ftn36" name="_ftnref36"><sup>[36]</sup></a> initiative, which ensures that more eyes are involved in following the process: a crowd-sourced approach to preventing inappropriate appropriation.</p>
<p style="text-align: justify; "><i>The need to address legal barriers </i>Primarily, the TKDL’s data seems to be far from infallible, with several reports of mistranslations<a href="#_ftn37" name="_ftnref37"><sup>[37]</sup></a> and exaggerated claims<a href="#_ftn38" name="_ftnref38"><sup>[38]</sup></a> 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.<a href="#_ftn39" name="_ftnref39"><sup>[39]</sup></a> Further, the fundamental challenge faced by any defensive protection mechanism is its vulnerability to differing definitions of prior art in various jurisdictions:</p>
<ul>
<li style="text-align: justify; "><i>European Patent Convention (EPC):</i> 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”.<a href="#_ftn40" name="_ftnref40"><sup>[40]</sup></a> 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.<a href="#_ftn41" name="_ftnref41"><sup>[41]</sup></a></li>
<li style="text-align: justify; "><i>United States:</i> 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.”<sup>48</sup> 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.<a href="#_ftn42" name="_ftnref42"><sup>[42]</sup></a></li>
</ul>
<p><i>The need to address structural barriers</i></p>
<p style="text-align: justify; ">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,<a href="#_ftn43" name="_ftnref43"><sup>[43]</sup></a><a href="#_ftn44" name="_ftnref44"><sup>[44]</sup></a> and still other evaluations showing that applicants for patents are extremely unlikely to provide and identify prior art surrounding their claims,<a href="#_ftn45" name="_ftnref45"><sup>[45]</sup></a> 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.</p>
<p style="text-align: justify; ">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.</p>
<h2>Conclusion</h2>
<p style="text-align: justify; ">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.</p>
<p style="text-align: justify; ">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.”<a href="#_ftn46" name="_ftnref46"><sup>[46]</sup></a></p>
<hr />
<p><a href="#_ftnref1" name="_ftn1">[1]</a> Traditional Knowledge, WIPO. <a href="http://www.wipo.int/tk/en/tk">www.wipo.int/tk/en/tk </a> 4 Ibid.</p>
<p><a href="#_ftnref2" name="_ftn2">[2]</a> WIPO. (2010). <i>List and Brief Technical Explanation of Various Forms in which Traditional Knowledge May be Found</i>.<a href="http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=147152"> www.wipo.int/ </a><a href="http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=147152">meetings/en/doc_details.jsp?doc_id=147152 </a></p>
<p><a href="#_ftnref3" name="_ftn3">[3]</a> Shiva, V. (2001). <i>Protect or Plunder? Understanding Intellectual Property Rights. </i>London: Zed Books.</p>
<p><a href="#_ftnref4" name="_ftn4">[4]</a> See, e.g., Horsbrugh Porter, A. (2006, 17 April). Neem: India’s tree of life. <i>BBC</i>. <a href="http://news.bbc.co.uk/2/hi/south_asia/4916044.stm">news.bbc.co.uk/2/hi/south_asia/4916044.stm</a>; BBC. (2005, 9 March). India wins landmark patent battle. <i>BBC</i>. <a href="http://news.bbc.co.uk/2/hi/science/nature/4333627.stm">news. </a><a href="http://news.bbc.co.uk/2/hi/science/nature/4333627.stm">bbc.co.uk/2/hi/science/nature/4333627.stm</a>; Hoggan, K. (2000, 11 May). Neem tree patent revoked. <i>BBC</i>. <a href="http://news.bbc.co.uk/2/hi/science/nature/745028.stm">news.bbc.co.uk/2/hi/ </a><a href="http://news.bbc.co.uk/2/hi/science/nature/745028.stm">science/nature/745028.stm </a></p>
<p><a href="#_ftnref5" name="_ftn5">[5]</a> In re POD-NERS, L.L.C., Re-examination No. 90/005,892, US Fed.</p>
<p>Cir. 2009. <a href="http://law.justia.com/cases/federal/appellate-courts/cafc/08-1492/08-1492-2011-03-27.html">law.justia.com/cases/federal/appellate-courts/cafc/08-</a></p>
<p><a href="#_ftnref6" name="_ftn6">[6]</a> <a href="http://law.justia.com/cases/federal/appellate-courts/cafc/08-1492/08-1492-2011-03-27.html">/08-1492-2011-03-27.html </a></p>
<p><a href="#_ftnref7" name="_ftn7">[7]</a> 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.</p>
<p><a href="#_ftnref8" name="_ftn8">[8]</a> Shashikant, S., & Asghedom, A. (2009, 12 August). The ‘Enola Bean’ dispute: patent failure & lessons for developing countries. <i>Third World Network</i>. <a href="http://twn.my/title2/wto.info/2009/twninfo20090811.htm">twn.my/title2/wto.info/2009/ </a><a href="http://twn.my/title2/wto.info/2009/twninfo20090811.htm">twninfo20090811.htm </a></p>
<p><a href="#_ftnref9" name="_ftn9">[9]</a> Crouch, D. (2009, 10 July). Mexican Yellow Bean Patent Finally Cooked. <i>Patently-O</i>. <a href="http://patentlyo.com/patent/2009/07/mexican-yellow-bean-patent-finally-cooked.html">patentlyo.com/patent/2009/07/mexican</a><a href="http://patentlyo.com/patent/2009/07/mexican-yellow-bean-patent-finally-cooked.html">yellow-bean-patent-finally-cooked.html </a></p>
<p><a href="#_ftnref10" name="_ftn10">[10]</a> Gupta, V. K. (2011). <i>Protecting Indian Traditional Knowledge from Biopiracy. </i>WIPO. <a href="http://www.wipo.int/export/sites/www/meetings/en/2011/wipo_tkdl_del_11/pdf/tkdl_gupta.pdf">www.wipo.int/export/sites/www/meetings/ </a><a href="http://www.wipo.int/export/sites/www/meetings/en/2011/wipo_tkdl_del_11/pdf/tkdl_gupta.pdf">en/2011/wipo_tkdl_del_11/pdf/tkdl_gupta.pdf </a> 13 <a href="http://www.tkdl.res.in/tkdl/langdefault/common/Home.asp?GL=Eng">www.tkdl.res.in/tkdl/langdefault/common/Home.asp?GL=Eng</a> 14 Gupta, V. K. (2011). Op. cit.</p>
<p><a href="#_ftnref11" name="_ftn11">[11]</a> PTI. (2015, 9 August). Over 1500 yoga asanas shortlisted to thwart patenting by foreign parties. <i>Indian Express</i>. <a href="http://indianexpress.com/article/india/india-others/over-1500-yoga-asanas-shortlisted-to-thwart-patenting-by-foreign-parties">indianexpress.com/ </a><a href="http://indianexpress.com/article/india/india-others/over-1500-yoga-asanas-shortlisted-to-thwart-patenting-by-foreign-parties">article/india/india-others/over-1500-yoga-asanas-shortlisted-to</a><a href="http://indianexpress.com/article/india/india-others/over-1500-yoga-asanas-shortlisted-to-thwart-patenting-by-foreign-parties">thwart-patenting-by-foreign-parties </a></p>
<p><a href="#_ftnref12" name="_ftn12">[12]</a> TNN. (2007, 18 May). US patent on yoga? Indian gurus fume. <i>Indian Express.</i> <a href="http://timesofindia.indiatimes.com/india/US-patent-on-yoga-Indian-gurus-fume/articleshow/2058285.cms">timesofindia.indiatimes.com/india/US-patent-on</a><a href="http://timesofindia.indiatimes.com/india/US-patent-on-yoga-Indian-gurus-fume/articleshow/2058285.cms">yoga-Indian-gurus-fume/articleshow/2058285.cms </a></p>
<p><a href="#_ftnref13" name="_ftn13">[13]</a> Lee, T. B. (2013, 13 December). A yoga patent? Here’s why the USPTO approves so many dubious applications. <i>Washington Post</i>. <a href="https://www.washingtonpost.com/news/the-switch/wp/2013/12/13/a-yoga-patent-heres-why-the-uspto-approves-so-many-dubious-applications">https://www.washingtonpost.com/news/the-switch/ </a><a href="https://www.washingtonpost.com/news/the-switch/wp/2013/12/13/a-yoga-patent-heres-why-the-uspto-approves-so-many-dubious-applications">wp/2013/12/13/a-yoga-patent-heres-why-the-uspto-approves-so</a><a href="https://www.washingtonpost.com/news/the-switch/wp/2013/12/13/a-yoga-patent-heres-why-the-uspto-approves-so-many-dubious-applications">many-dubious-applications </a></p>
<p><a href="#_ftnref14" name="_ftn14">[14]</a> Press Information Bureau. (2010, 28 April). India Partners with US and UK to Protect Its Traditional Knowledge and Prevent Bio-Piracy. <a href="http://pib.nic.in/newsite/erelease.aspx?relid=61122">pib.nic.in/newsite/erelease.aspx?relid=61122 </a></p>
<p><a href="#_ftnref15" name="_ftn15">[15]</a> www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx</p>
<p><a href="#_ftnref16" name="_ftn16">[16]</a> <a href="http://genecampaign.org/">genecampaign.org </a></p>
<p><a href="#_ftnref17" name="_ftn17">[17]</a> Sahai, S. (1996). Importance of Indigenous Knowledge in IPR. <i>Economic and Political Weekly, 31</i>(47).</p>
<p><a href="#_ftnref18" name="_ftn18">[18]</a> World Health Organization. (2013). WHO Traditional Medicine Strategy 2014-2023. <a href="http://apps.who.int/iris/bitstream/10665/92455/1/9789241506090_eng.pdf?ua=1">apps.who.int/iris/ </a><a href="http://apps.who.int/iris/bitstream/10665/92455/1/9789241506090_eng.pdf?ua=1">bitstream/10665/92455/1/9789241506090_eng.pdf?ua=1</a></p>
<p><a href="#_ftnref19" name="_ftn19">[19]</a> List of Parties, Convention on Biological Diversity. <a href="https://www.cbd.int/information/parties.shtml">https://www. </a><a href="https://www.cbd.int/information/parties.shtml">cbd.int/information/parties.shtml </a></p>
<p><a href="#_ftnref20" name="_ftn20">[20]</a> Article 8(j) of the Convention on Biological Diversity.<a href="https://www.cbd.int/convention/text"> https://www.</a></p>
<p><a href="https://www.cbd.int/convention/text">cbd.int/convention/text </a></p>
<p><a href="#_ftnref21" name="_ftn21">[21]</a> <a href="http://nbaindia.org/content/25/19/1/act.html">nbaindia.org/content/25/19/1/act.html</a> 26 Section 6 of the Biological Diversity Act, 2002.</p>
<p><a href="#_ftnref22" name="_ftn22">[22]</a> Section 20 of the Biological Diversity Act, 2002.</p>
<p><a href="#_ftnref23" name="_ftn23">[23]</a> Section 21 of the Biological Diversity Act, 2002.</p>
<p><a href="#_ftnref24" name="_ftn24">[24]</a> <a href="http://www.tkdl.res.in/tkdl/langdefault/Common/ExaminerReport.asp?homepage=sub">www.tkdl.res.in/tkdl/langdefault/Common/ExaminerReport.</a></p>
<p><a href="http://www.tkdl.res.in/tkdl/langdefault/Common/ExaminerReport.asp?homepage=sub">asp?homepage=sub </a></p>
<p><a href="#_ftnref25" name="_ftn25">[25]</a> Ibid.</p>
<p><a href="#_ftnref26" name="_ftn26">[26]</a> WIPO. (2010). Op. cit., Annex 2.</p>
<p><a href="#_ftnref27" name="_ftn27">[27]</a> See, e.g., Coombe, R. J. (2005). Protecting Traditional</p>
<p>Environmental Knowledge and New Social Movements in the</p>
<p>Americas: Intellectual Property, Human Right, or Claims to an Alternative Form of Sustainable Development? <i>Florida Journal of International Law,</i> <i>17</i>(1), 115-136.</p>
<p><a href="#_ftnref28" name="_ftn28">[28]</a> Swiderska, K. (2006). <i>Banishing the Biopirates: A New Approach to Protecting Traditional Knowledge</i>. International Institute for Environment and Development. <a href="http://pubs.iied.org/pdfs/14537IIED.pdf">pubs.iied.org/pdfs/14537IIED.pdf</a></p>
<p><a href="#_ftnref29" name="_ftn29">[29]</a> Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore. (2002). <i>Review of Existing Intellectual Property Protection of Traditional Knowledge</i>. WIPO. <a href="http://www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_3/wipo_grtkf_ic_3_17-main1.html">www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_3/ </a><a href="http://www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_3/wipo_grtkf_ic_3_17-main1.html">wipo_grtkf_ic_3_17-main1.html </a></p>
<p><a href="#_ftnref30" name="_ftn30">[30]</a> Reddy, P. (2012, 29 March). Is the TKDL a ‘confidential database’ and is it compliant with Indian copyright law? <i>SpicyIP</i>.<a href="http://spicyip.com/2012/03/is-tkdl-confidential-database-and-is-it.html"> spicyip. </a><a href="http://spicyip.com/2012/03/is-tkdl-confidential-database-and-is-it.html">com/2012/03/is-tkdl-confidential-database-and-is-it.html</a></p>
<p><a href="#_ftnref31" name="_ftn31">[31]</a> <i>KTKP Introduction</i>, Korean Traditional Knowledge Portal.<a href="http://www.koreantk.com/en/m_about/about_01.jsp?about=1"> www. </a><a href="http://www.koreantk.com/en/m_about/about_01.jsp?about=1">koreantk.com/en/m_about/about_01.jsp?about=1</a></p>
<p><a href="#_ftnref32" name="_ftn32">[32]</a> Brief introduction of China Traditional Medicine (TCM) Patent Database, China TCM Patent Database. <a href="http://221.122.40.157/tcm_patent/englishversion/help/help.html">221.122.40.157/tcm_ </a><a href="http://221.122.40.157/tcm_patent/englishversion/help/help.html">patent/englishversion/help/help.html </a>38 Op. cit.</p>
<p><a href="#_ftnref33" name="_ftn33">[33]</a> Reddy, P. (2012, 21 April). The need for an ‘independent’ review of the TKDL project<i>. SpicyIP</i>. <a href="http://spicyip.com/2012/04/need-for-anindependent-review-of-tkdl.html">spicyip.com/2012/04/need-for</a><a href="http://spicyip.com/2012/04/need-for-anindependent-review-of-tkdl.html">anindependent-review-of-tkdl.html </a></p>
<p><a href="#_ftnref34" name="_ftn34">[34]</a> 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. <i>The Guardian</i>.<a href="http://www.theguardian.com/commentisfree/henryporter/2009/aug/10/id-card-database-breach"> www. </a><a href="http://www.theguardian.com/commentisfree/henryporter/2009/aug/10/id-card-database-breach">theguardian.com/commentisfree/henryporter/2009/aug/10/ </a><a href="http://www.theguardian.com/commentisfree/henryporter/2009/aug/10/id-card-database-breach">id-card-database-breach </a></p>
<p><a href="#_ftnref35" name="_ftn35">[35]</a> See, e.g., Anderson, R. et. al. (2009). <i>Database State</i>. Joseph Rowntree Reform Trust. <a href="http://www.jrrt.org.uk/sites/jrrt.org.uk/files/documents/database-state.pdf">www.jrrt.org.uk/sites/jrrt.org.uk/files/</a></p>
<p><a href="http://www.jrrt.org.uk/sites/jrrt.org.uk/files/documents/database-state.pdf">documents/database-state.pdf </a></p>
<p><a href="#_ftnref36" name="_ftn36">[36]</a> <a href="http://www.peertopatent.org/">www.peertopatent.org </a></p>
<p><a href="#_ftnref37" name="_ftn37">[37]</a> Rathi, M. (2012, 20 April). Guest Post – TKDL: A success – Really?</p>
<p><i>SpicyIP</i>. <a href="http://spicyip.com/2012/04/guest-post-tkdl-success-really.html">spicyip.com/2012/04/guest-post-tkdl-success-really.html</a></p>
<p><a href="#_ftnref38" name="_ftn38">[38]</a> Reddy, P. (2012, 19 March). Guest Post: The Traditional Knowledge Digital Library and the EPO. <i>SpicyIP</i>. <a href="http://spicyip.com/2012/03/guest-post-traditional-knowledge.html">spicyip.com/2012/03/guest</a><a href="http://spicyip.com/2012/03/guest-post-traditional-knowledge.html">post-traditional-knowledge.html </a></p>
<p><a href="#_ftnref39" name="_ftn39">[39]</a> Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore. (2003). <i>Practical Mechanisms for the Defensive Protection of Traditional Knowledge and Genetic Resources within the Patent System.</i> WIPO.<a href="http://www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_5/wipo_grtkf_ic_5_6.pdf"> www.wipo. </a><a href="http://www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_5/wipo_grtkf_ic_5_6.pdf">int/edocs/mdocs/tk/en/wipo_grtkf_ic_5/wipo_grtkf_ic_5_6.pdf</a></p>
<p><a href="#_ftnref40" name="_ftn40">[40]</a> Article 54(2) of the Convention on the Grant of European Patents. <a href="https://www.epo.org/law-practice/legal-texts/epc.html">https://www.epo.org/law-practice/legal-texts/epc.html</a></p>
<p><a href="#_ftnref41" name="_ftn41">[41]</a> <i>Outcomes against bio-piracy</i>, Traditional Knowledge Digital Library. <a href="http://www.tkdl.res.in/tkdl/langdefault/common/Outcome.asp">www.tkdl.res.in/tkdl/langdefault/common/Outcome.asp</a> 48 35 U.S.C. § 102(a).</p>
<p><a href="#_ftnref42" name="_ftn42">[42]</a> Quinn, G. (2009, 30 November). US Patent Office to Reject Based on Traditional Knowledge. <i>IPWatchdog</i>. <a href="http://www.ipwatchdog.com/2009/11/30/us-patent-office-to-reject-based-on-traditional-knowledge/id=7502">www.ipwatchdog.com/2009/11/30/us-patent</a><a href="http://www.ipwatchdog.com/2009/11/30/us-patent-office-to-reject-based-on-traditional-knowledge/id=7502">office-to-reject-based-on-traditional-knowledge/ </a><a href="http://www.ipwatchdog.com/2009/11/30/us-patent-office-to-reject-based-on-traditional-knowledge/id=7502">id=7502 </a></p>
<p><a href="#_ftnref43" name="_ftn43">[43]</a> Lemley, M. A., & Sampat, B. (2012). Examiner Characteristics and</p>
<p>Patent Office Outcomes. <i>The Review of Economics and Statistics,</i></p>
<p><a href="#_ftnref44" name="_ftn44">[44]</a> (3), 817-827. <a href="http://www.mitpressjournals.org/doi/abs/10.1162/REST_a_00194?journalCode=rest">www.mitpressjournals.org/doi/abs/10.1162/ </a><a href="http://www.mitpressjournals.org/doi/abs/10.1162/REST_a_00194?journalCode=rest">REST_a_00194?journalCode=rest </a></p>
<p><a href="#_ftnref45" name="_ftn45">[45]</a> Sampat, B. (2010). When do Applicants Search for Prior Art? <i>The Journal of Law and Economics, 53</i>(2), 399-416.<a href="http://www.journals.uchicago.edu/doi/abs/10.1086/651959?journalCode=jle"> www.journals. </a><a href="http://www.journals.uchicago.edu/doi/abs/10.1086/651959?journalCode=jle">uchicago.edu/doi/abs/10.1086/651959?journalCode=jle</a></p>
<p><a href="#_ftnref46" name="_ftn46">[46]</a> Human Rights Council. (2014). Report of the Special Rapporteur on the Rights of Indigenous People. <a href="http://unsr.vtaulicorpuz.org/site/index.php/documents/annual-reports/26-annual-report-hrc-2014">unsr.vtaulicorpuz.org/site/index. </a><a href="http://unsr.vtaulicorpuz.org/site/index.php/documents/annual-reports/26-annual-report-hrc-2014">php/documents/annual-reports/26-annual-report-hrc-2014</a></p>
<p>
For more details visit <a href='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'>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</a>
</p>
No publisherSunil Abraham and Vidushi MardaIntellectual Property RightsAccess to Knowledge2016-12-09T15:50:36ZBlog EntryThe Dark Fibre Files: 'Steal This Film' and the Pirate Bay Trial
https://cis-india.org/a2k/blogs/the-dark-fibre-files-steal-this-film-and-the-pirate-bay-trial
<b>In this posting, the fifth blog entry on the making of the film 'Dark Fibre' by Jamie King and Peter Mann, Siddharth Chadha discusses the Swedish trial of the Pirate Bay, which brought up some of the debates on intellectual property rights and piracy that were highlighted in 'Steal This Film'. </b>
<p>In August 2006, Jamie King shot Part I of 'Steal This Film' in Sweden, combining found material, propoganda-like slogans and Vox Pops, along with accounts from members of the Pirate Bay, Piratbryan and the Pirate Party. The film critiques the alleged regulatory capture attempt performed by the Hollywood film lobby in order to leverage economic sanctions by the United States government on Sweden through the WTO. The film interviews the Pirate Bay Members Fredrik Neij, Gottfrid Svartholm, and Peter Sunde and Piratbryan members Rasmus Fleischer, Johan and Sara Anderson, who recount the search and seizure raid conducted by the Swedish police, with the purpose of disrupting the Pirate Bay's BitTorrent tracker. This raid, according to the Pirate Bay members, was against the Swedish law and conducted under pressure from the Motion Pictures Association of America. The documentary was officially released on filesharing networks on 28 December 2007 and, according to the filmmakers, downloaded 150,000 times in the first three days of distribution. The Pirate Bay encouraged the downloading of 'Steal This Film II', announcing the film's release on its blog. 'Steal This Film II' was also screened by the Pirate Cinema, Copenhagen, in January 2008.</p>
<p align="center"> </p>
<p>In the post-Napster era of peer to peer networks, the Pirate Bay case has been the media highlight on file sharing. After the police raided 12 different premises in May 2006, confiscating 186 servers and causing the torrent tracker to shut down for three days, the Pirate Bay re-opened to double the number of visitors, as its popularity got a shot in the arm with the extensive media coverage. While the MPAA termed the raids as extremely succesful, the Pirate Bay, which restored its servers in three days, thought otherwise. After a preliminary investigation and interrogation by the police, a four thousand page report was prepared by the prosecutor, in preperation of a trial. The Swedish prosecutors filled charges in January 2008 against four individuals they associated with The Pirate Bay for 'promoting other people's infringement of copyright laws'. <br /><br />The Swedish prosecution raised a furore in the world of Intellectual Property by suing The Pirate Bay. While the prosecutors contended that millions of people get access to copyrighted materials such as movies, songs, and software programs, which can be downloaded for free by going to The Pirate Bay site, the contentious issue lies in the fact that the Pirate Bay itself does not host any files. Just as Google is an index of links, The Pirate Bay is an index of where those files are located. The original files are located across millions of computers around the world, which may only have a small fragment of the original file, and which share these fragments using BitTorrent. According to CableLabs, an organisation of the North American cable industry, BitTorrent represents 18% of all Broadband traffic. Apart from suing The Pirate Bay, the major Hollywood studios have also tried pressure tactics to contain copyright infringement. HBO in 2005, for example, poisoned torrents of its 'Rome' TV show by providing bad chunks of data to clients. It also sent cease and desist letters to the Internet Service Providers of BitTorrent users. The increased pressure from the Hollywood lobby and persistent lawsuits have resulted in the shutdown of various BitTorrent indexing sites, such as the Supernova.org, Torrentspy, LokiTorrent, Demonoid, Oink.cd and EliteTorrents.org. <br /><br />The Pirate Bay Trial started on 16th Feburary 2009, with defense lawer Per E. Samuelson, arguing that it is legal to offer a service that can be used both legally and illegally, under the Swedish Law. He compared the Pirate Bay services to making cars that can be driven faster than the speed limit. On the second day of the trial, the prosecution dropped half of the charges against the Pirate Bay, due to shortcomings in evidence. Prosecutor Hakan Roswall dropped all charges related to 'assisting copyright infringement', leaving 'assisting making available' as the remaining charge. The next day of the trial saw an argument by the defense attorney Per Samuelson, which was latter dubbed as the King Kong defense, popularised by the blogs, file sharing news feeds and the media. The defense stated:<br /><br /><em>EU directive 2000/31/EC says that he who provides an information service is not responsible for the information that is being transferred. In order to be responsible, the service provider must initiate the transfer. But the admins of the Pirate Bay don’t initiate transfers. It’s the users that do and they are physically identifiable people. They call themselves names like King Kong... According to legal procedure, the accusations must be against an individual and there must be a close tie between the perpetrators of a crime and those who are assisting. This tie has not been shown. The prosecutor must show that Carl Lundström personally has interacted with the user King Kong, who may very well be found in the jungles of Cambodia...</em><br /><br />The remaining six days of the trial saw questioning of the accused, witness depositions by plaintiffs and conflicting academic research by experts, as the prosecution tried to show that the Pirate Bay was an immensely profitable business that made money by helping others infringe copyright laws. The four operators of the site, Fredrik Neij, Gottfrid Svartholm, Peter Sunde and Carl Lundstrom, were convicted by Stockholm district court on 17 April 2009 and sentenced to one year in jail each and a total of 30 million SEK (approximately 3.5 million USD, 2.7 million EUR) in fines and damages. In its verdict the court stated that 'responsibility for assistance can strike someone who has only insignificantly assisted in the principal crime'. <br /><br />Even while filming of 'Dark Fibre' was on here in Bangalore, Jamie and his crew were filming outside the courtroom in Stockholm, as the the subjects of 'Steal This Film' went on trial and were convicted. The convicted are now preparing to appeal against the sentence and the fine in the higher Swedish court. </p>
<p><img class="image-inline image-inline" src="uploads/copy_of_piratebay.gif/image_preview" alt="piratebay" height="400" width="363" /> <img class="image-inline image-inline" src="uploads/copy_of_prtbay.jpg/image_preview" alt="prtbay" height="315" width="284" /></p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/the-dark-fibre-files-steal-this-film-and-the-pirate-bay-trial'>https://cis-india.org/a2k/blogs/the-dark-fibre-files-steal-this-film-and-the-pirate-bay-trial</a>
</p>
No publishersachiaPiracyIntellectual Property RightsCable TV2011-08-04T04:41:57ZBlog EntryThe Bilski Case - Impact on Software Patents
https://cis-india.org/a2k/blogs/bilski-case
<b>The Supreme Court of the United States gave its decision in Bilski v Kappos on 28 June, 2010. In this case the petitioners’ patent application sought protection for a claimed invention that explains how commodities buyers and sellers in the energy market can protect, or hedge, against the risk of price changes. The Court in affirming the rejection by the Court of Appeals for the Federal Circuit also held that the machine- or-transformation test is not necessarily the sole test of patentability. The Court’s ruling of abstract ideas as unpatentable and its admission that patents do not necessarily promote innovation and may sometimes limit competition and stifle innovation have provided a ray of hope. In the light of the developments, the Bilski decision as far as patentability of software is concerned may not be totally insignificant, says Krithika Dutta Narayana.</b>
<p>The United States Supreme Court’s much awaited decision of last month in <em>Bilski v. Kappos</em> (2010) (Bilski), a case that was touted as a potential watershed in the debate surrounding patentability of software, was disappointing, even though it was not without any impact. While the Supreme Court affirmed the rejection by the Court of Appeals for the Federal Circuit (CAFC) of a patent claim for a business method, it failed to define with clarity, any test for patentability which might have constituted a precedent for future cases involving patentability of software or business method. At the same time, it held that the “machine- or- transformation” test which was the test followed by the CAFC in rejecting the claim, was not the sole test to determine patentability, thus effectively providing no guideline to determine patentability of software or business methods in future cases.</p>
<p>The Supreme Court in Bilski, affirmed the rejection by the CAFC in <em>In</em> <em>re Bilski</em> (2008) of a patent claim involving a method of providing insurance against fluctuating energy prices due to changes in weather. The applicants, Bernard L. Bilski and Rand Warsaw filed a patent application for such a method of hedging risks – essentially a claim for a business method – under Section 101 of US Patent Act before the United States Patent and Trademark Office (USPTO). The examiner at the USPTO rejected the claim on the ground that the claim was not for patentable subject matter and that “the invention is not implemented on a specific apparatus and merely manipulates (an) abstract idea and solves a purely mathematical problem without any limitation to a practical application, therefore, the invention is not directed to the technological arts”. The Board of Patent Appeals and Interferences (BPAI) took a re-look at the examiner’s decision and held that the “machine or apparatus” test was in itself insufficient to determine patentability since a claim that included transformation of a physical object from one state to another would also be patent eligible subject matter. The BPAI also struck down the requirement of the invention to be a “technological art”. Thus, it rejected the Bilski claim on the ground that it did not cause transformation of a physical object from one state to another, since transformation of financial liabilities and risks does not constitute transformation of physical matter.</p>
<p>In its decision on October 30, 2008, the CAFC affirmed the ruling of the BPAI and laid down the machine or transformation test for patentability and held that Bilski’s claim was neither tied to any machine or apparatus to derive the result nor did it cause transformation of any physical object from one state to another and is hence, unpatentable subject matter. The Court reasoned that the “machine or transformation” test was crucial for determining patentability as it ensured that the claim based on a fundamental principle did not preempt all other uses of the principle. This test was the first test since the US Supreme Court’s decision in Diamond v. Diehr (1981) – which held that laws of nature, mathematical formulae and algorithms are not patentable – that had a huge potential for laying down definitive rules for patentability including declaring software and business methods to be outside the realm of patentable subject matter. If this test was upheld in the Supreme Court, that would effectively put an end to the rise of software patents since software, in most cases, did not cause transformation of physical object from one state to another. Thus, the decision of the Supreme Court had huge stakes for both sides of the software patent debate.</p>
<p>In light of the same, the Supreme Court’s ruling holding that the machine or transformation test is not the sole test for determining patentability and at the same time, failing to provide any other test on which to determine patentability, was a sore disappointment. Though, it affirmed the rejection of Bilski’s patent claim on the ground that the subject matter claimed was abstract and thus not a patentable “process” under section 101, its core decision was only limited to this particular claim and it did not lay down a concrete and definitive guideline for future claims. However, one must not be too quick to dismiss this decision as either going against the interests of open society and free software or as a completely inconsequential case that simply maintains status quo. There are important takeaways for the patentability of software in the Bilski decision – The Court did not totally reject the machine or transformation test relied on by the CAFC. It only held that the machine or transformation test is not the sole test on basis of which the patentability of a subject matter of a claim can be decided. The Court, in fact, held that the “machine or transformation test” was a “useful and important clue, an investigative tool for determining whether some claimed inventions are processes under section 101.” This leaves open the possibility of using the test to determine patentability in future cases and this is good news for opponents of software patents since software (an algorithm designed to be operated upon by a computer) is merely an abstract idea which, in most cases, does not involve transformation of a physical object from one state to another.</p>
<p>Bilski’s claim was essentially interpreted to be a patent for a business method. The Supreme Court was completely silent on the issue of patentability of software in its decision and stuck to only the narrow issue in hand – that of the patentability of a particular business method. This means that the “machine or transformation test”, whose applicability was ruled out in this particular case, may still be applicable for software patents. Nothing in this case precludes an opponent of a software patent from urging the courts to use the “machine or transformation test” to rule on patentability. Thus, the very fact that the Supreme Court only dealt with the narrow issue in hand ensures that the “machine or transformation test” is not altogether dismissed.</p>
<p>The main ground on which Bilski’s claim was rejected was that the patent claim was for an overly abstract idea which was not patent-eligible. The Court held that the basic concept on which the claim was based – the concept of hedging risks against risk is an unpatentable abstract idea. Further, some of the claims are constituted by equations and are purely mathematical in nature and are abstract and thus not patentable. This means that basic concepts and use of mathematical formulae constitute abstract ideas which are unpatentable. This test can strike down many software patents as these are simply algorithms executed by a computer and incorporate very fundamental and basic concepts which are abstract in nature and are thus, not patentable. This test for determining patentability on the basis of the claim being abstract as laid down in Bilski reaffirms the patentability test laid down in Diamond v. Deihr which kept laws of nature, mathematical formulae and algorithms outside the scope of patentable subject matter. This may serve as an important test to determine and especially, limit the patentability of software in coming years.</p>
<p>Notwithstanding the fact that Bilski’s claim has been interpreted to be one of a business method patent, when examined in detail, the claims indicate that the ‘method’ cannot be implemented without a computer. Certain claims for calculating probability (and risk), although mathematical or algorithmic in nature, have too many variables to be executed in any way other than by using a computer.<strong>1</strong> Such algorithms which can be executed only by a computer fall under the category of software and the patent is thus, also, a software patent. That being said, the ruling of the Court that the claim is for an overly abstract idea and thus not patentable lends credence and indicates that software patents can be validly claimed to be abstract ideas not falling under the scope of patentable subject matter.</p>
<p>Another important outcome of the Supreme Court’s ruling was the invalidation of the 1998 CAFC decision in <em>State Street Bank v. Signature Financial Group</em><strong>2</strong> which opened the floodgates for software patents by holding that a practical application of an algorithm or formula to produce “useful, concrete and tangible result” was sufficient to constitute patentable subject matter. The State Street test was too broad and afforded an opportunity for many frivolous patent applications to be admitted. In fact, Justice Stevens, in his concurring opinion, has stated that it would be a “grave mistake” to follow the test. By clearly striking down and dismissing such a test to determine patentable subject matter, the Court in Bilski has precluded future software patent claims for taking recourse to this test and has effectively, to an extent, made it that much harder for a software to be granted patent. The test in <em>State Street Bank</em> which opened the floodgates for software patents was definitively dismissed.</p>
<p>The Court in the 1978 case of <em>Parker v. Flook</em>, had rejected patent for a mathematical algorithm on the ground that an algorithm was a law of nature although its use was limited to a specific field in this case (the “field of use” test) and added an insignificant post solution activity (“post solution activity” test). The test laid down in Flook had been subsequently questioned and thus, subtly dismissed by the Court in <em>Diehr </em>in 1991. The Court in Bilski emphasized on the test for patentability laid down in <em>Flook</em> and opined that the two tests may well come in handy in future challenges or oppositions to a patent claim while determining if the claim pertained to an idea that was abstract and hence, not patentable. Thus, this test can be used in future for invalidating software patents which are characterized by broad claims adding insignificant post solution activity.</p>
<p>It is heartening to note that the Court looked at the importance of patent law while recognizing that patents are not always necessary to encourage innovation. It noted that patents could also limit competition and stifle innovation. They can have ill effects such as increasing prices while slowing progress and could actually be deterrent to free flow of information within society. By recognizing and validating this, the ruling not only helped increase awareness about the debate surrounding software patents but also showed that the Courts are open to such an approach to patent law in future. This can only be good news for busting software patents.</p>
<p>For <a class="external-link" href="http://www.supremecourt.gov/opinions/09pdf/08-964.pdf">further reading</a></p>
<ol><li>
<p class="discreet">Claim 4 of Bliski's claims is as follows - “perform a Monte Carlo simulation across all deals at all locations ... over the last 20 years of weather patterns and establish the payoffs from each deal under each historical weather pattern “ Such a simulation would involve multiple parameters such as deals, locations, weather patterns, to establish a payoff.</p>
</li><li>
<p class="discreet">149 F.3d. 1368.</p>
</li></ol>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/bilski-case'>https://cis-india.org/a2k/blogs/bilski-case</a>
</p>
No publisherpraskrishnaIntellectual Property RightsAccess to Knowledge2011-08-23T03:24:31ZBlog EntryThe ASSOCHAM International Conference on the "Interface between Intellectual Property and Competition Law"
https://cis-india.org/a2k/blogs/the-assocham-international-conference-on-the-interface-between-intellectual-property-and-competition-law
<b>An international conference on interface between intellectual property and competition law was organized by ASSOCHAM on July 12, 2013 in New Delhi. In this post, Nehaa Chaudhari shares select notes from the conference.</b>
<hr />
<p style="text-align: justify; "><i>All views expressed are only of the participants and cannot be taken to be those of any organization or the like that they may represent</i>.</p>
<hr />
<p><b>D.S. RAWAT- SECRETARY GENERAL- ASSOCHAM- WELCOME ADDRESS</b></p>
<ul>
<li style="text-align: justify; "> IPR and competition laws in conflict or have provisions (in existing law) that already take care of this possible conflict?</li>
<li style="text-align: justify; ">What happens if an IP right holder acquires a ‘dominant position’ by virtue of these rights?<br />
<ul>
<li>Abuse of dominant position provisions get attracted if rights are beyond the boundaries of IPRs.</li>
</ul>
</li>
<li style="text-align: justify; ">Anti-competitive agreements (and beyond the objective of preventing infringement)- then what happens?</li>
</ul>
<p><b>V. LAKSHMI KUMARAN- MANAGING PARTNER, LAKSHMI KUMARAN AND SRIDHARAN- THEME ADDRESS</b></p>
<ul>
<li style="text-align: justify; ">Trans-border transactions are normally of two types:<br />(a) trade (in goods and services) - WTO mandate is free trade of goods and services between nations; <br />(b) investment.</li>
<li>“Free” trade should also be “fair” trade.</li>
<li style="text-align: justify; ">Competition law will not question the grant of the IP rights. It will question how you use them, especially when/if you use in a way that is detrimental to competition.</li>
<li style="text-align: justify; ">Patent law places many restrictions on what you can and cannot do- these ‘can’t do actions’- if you perform them, you will be scrutinized under competition law.</li>
<li style="text-align: justify; ">Cases in US/Europe- challenging patents were withdrawn by ‘compromise’ but agreements really spoke of ‘something more’ promised by the patent holder if the challenging suit was withdrawn- scrutinized by competition law.</li>
</ul>
<p style="text-align: justify; "><b>NUNO PIRES DE CARVALHO- DIRECTOR, IP AND COMPETITION POLICY DIVISION, WIPO, GENEVA- SPECIAL ADDRESS</b> (<a class="mail-link" href="mailto:nuno.carvalho@wipo.int">nuno.carvalho@wipo.int</a>)</p>
<ul>
<li>2007- Agenda for Development at WIPO- Committee on Development and IP (CDIP) to supervise implementation of the AD and coordinate with other Committees.</li>
<li>WIPO- as of now, member states do not want to embark on negotiating processes on IP and Competition but rather want to <span style="text-decoration: underline;">better understand it</span>.</li>
<li>WIPO- 2011-2012- Project on IP and Competition Law.</li>
<li>WIPO Goal- to establish WIPO as a global forum on IP and Competition policy.</li>
<li>Rationale (WIPO)- same as the 3 DA (2007) recommendations.</li>
</ul>
<p style="text-align: justify; "><b>CHAITANYA PRASAD- IAS, CONTROLLER GENERAL OF PATENTS, DESIGNS AND TRADEMARKS- KEYNOTE ADDRESS</b></p>
<ul>
<li style="text-align: justify; ">Monopoly- genesis of both IP and Competition Law (IPRs= regulated monopoly= not bad- IPRs= carefully granted essential monopolies regulated by State).</li>
<li style="text-align: justify; ">Competition Law and IP have common goals- better technology etc., and also economic growth and better quality of life for consumers.</li>
<li style="text-align: justify; ">IPRs- (a) industrial IPRs- GIs, patents, TMs, IDs, etc and (b) non industrial IPRs- copyright and related rights.</li>
<li style="text-align: justify; ">Patent Law- grant of Compulsory licences in some situations- Doctrine of Exhaustion of IPRs- domestic or international?- international committee divided on this.</li>
<li style="text-align: justify; ">READ- Adams v. Burke- 1873 SCOTUS.</li>
<li style="text-align: justify; ">DB- Delhi HC- parallel imports- allowed under Trademark Law?</li>
<li style="text-align: justify; ">New York Times- 06/06/13- generic drug market v. patent holder- anti competitive markets- SCOTUS decision.</li>
</ul>
<ul>
<li style="text-align: justify; "><b>Standards- especially in communication networks- generally have higher royalties- disclose existence of IPRs and agree to license at reasonable rates- REQUIREMENT.</b></li>
<li style="text-align: justify; ">IP Law- in built mechanisms to address abuse and these are furthered by competition law.</li>
<li style="text-align: justify; ">IP + CL- hand in hand for welfare of market and growth of economy.</li>
</ul>
<p><b>ASHOK CHAWLA- CHAIRPERSON, CCI- INAUGURAL ADDRESS<br /></b></p>
<ul>
<li style="text-align: justify; ">“Very rightly” WIPO is not seeking to harmonize regime across nations- this has to be a domestic process of laws/jurisprudence.</li>
<li>Similarities/intersection of IP and competition law:<br />
<ul>
<li style="text-align: justify; ">IP + competition law- both put a premium on innovation – IP does this directly and competition law because there is a need to do better than other firms. </li>
<li style="text-align: justify; ">Lead to technical and economic innovation. </li>
<li style="text-align: justify; ">Goals – greater good for consumer and society.</li>
</ul>
</li>
<li style="text-align: justify; ">Merger Control- crystal gazing on post merger scenario is required. Competition law authorities required to take nuanced approach in fast growing and tech. sectors- ex ante analysis- need to be upfront to scrutinize kind of restrictions being imposed under the deal- need to balance protection of knowledge of the mind with protecting the interests of the stakeholders as well.- this is the CCI approach.</li>
</ul>
<ul>
<li style="text-align: justify; ">The aforesaid balancing act is also going to be a critical area over the next twenty years- especially for policy makers.</li>
<li>Wider dissemination of advocacy is required.</li>
<li style="text-align: justify; ">Question to Chawla- ‘pay for delay’ agreements/reverses payments- our generic companies (what happens to them?)- what happens to the consumers? Is there going to be a study on this by the CCI?- Chawla said that in the generic drugs sector we are already strong- he said that this is going to be an issue Indian manufacturers will have to grapple with eventually (internationally)- but we will take care when it comes here.- <i>Carvalho intervened and pointed out that ‘pay for delay’ agreements and reverse payments were different things.</i></li>
<li style="text-align: justify; ">Question to Chawla- IPR section on the CCI website does not have any content anymore- Chawla said that they will rectify this and understand that the section would be very useful in terms of clarifying the CCI’s stance on this intersection between Competition Law and IPRs.</li>
</ul>
<p style="text-align: justify; "><b>Technical Session 1- “Balancing IPRs against Fare Practice”- Moderator- Hitesh S. Barot- Senior Intellectual Property Counsel, GE India.<br />NUNO PIRES DE CARVALHO- DIRECTOR, IP AND COMPETITION POLICY DIVISION, WIPO, GENEVA- THE INTERFACE BETWEEN IP/COMPETITION IN WIPO DEVELOPMENT AGENDA </b>(<a class="mail-link" href="mailto:nuno.carvalho@wipo.int">nuno.carvalho@wipo.int</a>)</p>
<ul>
<li>Balanced IP- the Foundation of economic democracy.</li>
<li style="text-align: justify; ">Trade name- reputation- basis for survival in the market. Trade secret- sets you apart from competitors- IP not all about reputation- IP protects and promotes intangible differences that businesses introduce in their products/services- that is, differentiation. This could be of origin, quality, invention, creation, location, reputation, price etc. this differentiation is behind every IP asset.</li>
<li style="text-align: justify; ">What is balanced IP?<br />
<ul>
<li>IP in the right dosage- (not too much- examples of too much- IP for unmodified genes/functional signs/or common terms as trademarks.)- (not too little- example of too little- lack of protection for sound/smell designs, tolerance for counterfeit goods and piracy, no protection for new and inventive traditional knowledge etc).</li>
<li>IP that is not abused.</li>
<li>IP that is not distorted by external circumstances- regulation distorts competition and therefore distorts IP. Since IP is about differentiation, before innovation it promotes social, cultural and economic freedom. IP is the foundation of any free market economy based on consumers’ and entrepreneurs’ freedom.</li>
</ul>
</li>
</ul>
<p style="text-align: justify; "><b>PARTHASARATHY R., SENIOR PARTNER, LAKSHMI KUMARAN AND SRIDHARAN- THE INTERFACE BETWEEN IP/COMPETITION IN THE PHARMACEUTICAL SECTOR</b> (<a class="mail-link" href="mailto:partha@lakshmisri.com">partha@lakshmisri.com</a>)</p>
<ul>
<li>Patents Act- Section 140- certain prohibitions.</li>
<li style="text-align: justify; ">Section 107A of the Patents Act appears to provide for international exhaustion.- Delhi HC (2012)- Kapil Wadhwa v. Samsung International extended international exhaustion to trademarks also.</li>
<li style="text-align: justify; ">Areas of concern- ‘pay for delay’ agreements- will Section 3(5) of the Competition Act apply?</li>
<li style="text-align: justify; ">US- a granted patent is presumed to be valid. India does not envisage such a framework.</li>
<li style="text-align: justify; ">Getting a patent and getting the right to practice a patent are very different in patent law.</li>
<li style="text-align: justify; ">Acquiring patents by fraud attracts section 4 of the Competition Act.</li>
<li style="text-align: justify; ">Unfair pricing- not an offence to have excessive pricing in the US.</li>
<li style="text-align: justify; ">Standards- when you develop patents here, you AGREE to compulsory license on a FRAND basis. Only issue then is what are FRAND terms- won’t get injunctions on this issue here in India, since you can prove damages are enough of a remedy- so it all comes down to negotiations.</li>
</ul>
<p style="text-align: justify; "><b>MIHIR RALE- AVP- LEGAL AND REGULATORY, STAR INDIA PRIVATE LIMITED - <i>THE INTERFACE BETWEEN IP AND COMPETITION LAW IN THE BROADCASTING SECTOR</i></b></p>
<ul>
<li style="text-align: justify; ">Overregulation leads to lack of innovation- this is his conclusion.</li>
<li style="text-align: justify; ">Content costs rise constantly- recouping them is very hard since channel prices have remained static for about eleven years now- supposed to have been an interim measure by the SC but TRAI is allowing it to continue.</li>
<li style="text-align: justify; ">Question by Barot- who decides how to price is going to be something interesting to debate.</li>
<li style="text-align: justify; ">(Sort of answering the ,above> question)- Mandatory Sharing Act- share feed w/ Prasar Bharathi- feed here refers to sporting events of national importance- the purpose is to give access to those who have terrestrial network (not cable/DTH)- but provision in the Cable Act says operators HAVE to carry two DD channels- so.. now operators don’t want to carry other (sports) channels, since <i>Team India is available on DD anyway</i>.</li>
</ul>
<p style="text-align: justify; "><b>HEMANT KUMAR- GROUP GENERAL COUNSEL, ESSAR GROUP- ANTI COMPETITION AND IPR- DIFFERENT MEANS TO THE SAME END?</b></p>
<ul>
<li style="text-align: justify; ">Can of course recover costs of innovation- (under IP license agreements)- but only up to a reasonable limit.</li>
</ul>
<p style="text-align: justify; "><b>SANJEEV GEMAWAT- SENIOR VICE PRESIDENT- LEGAL AND SECRETARIAL, DLF RENTCO GROUP- <i>IPR AND COMPETITION LAW- INDUSTRY PERSPECTIVE</i></b></p>
<ul>
<li>The challenge is not competition, but protecting IPRs, given the size of the economy.</li>
<li>How will authorities interpret limits= challenges?</li>
<li>Challenge- threshold limits under Section 5 of the Competition Act- considering size of the economy.</li>
<li>Barot’s comment- soft convergence is emerging as a solution. </li>
</ul>
<p style="text-align: justify; "><b>Technical Session 2- “Innovation and Competition”- Moderator- Geeta Gouri- Member, Competition Commission of India</b><br /><b>BALAZS GARGYA- FIRST SECRETARY, EUROPEAN UNION DELEGATION TO INDIA – <i>INNOVATION AND IPR<br /></i></b></p>
<ul>
<li>Indo EU FTA<br />
<ul>
<li>Agreement will recognize India’s access to medicines policies.</li>
<li>Both sides have shown flexibility.</li>
<li>All our flexibilities will be untouched.</li>
<li>Right to compulsory licenses maintained and recognised.</li>
<li>Agreement not going beyond existing obligations.</li>
</ul>
</li>
</ul>
<ul>
</ul>
<p style="text-align: justify; "><b>J.L.N. MURTHY- GENERAL COUNSEL- ASIA PACIFIC, RED BULL- <i>RECENT CHANGES ON MADRID PROTOCOL</i></b></p>
<ul>
<li>Anand Sharma recently deposited the instrument of India’s accession to the Madrid Protocol.</li>
</ul>
<ul>
<li>This is w.e.f. 08/07/2013 in India.</li>
</ul>
<ul>
<li>Accession strengthens march towards excellence in IP recognition.</li>
</ul>
<p><b>MUNESH MAHTANI- GLOBAL COMPETITION COUNSEL, GOOGLE, U.K.- <i>COMPETITION LAW ENFORCEMENT IN THE HIGH-TECH SECTOR</i></b></p>
<ul>
<li>Challenges for competition authorities:<br />
<ul>
<li>Defining markets and assessing market power- increasing market shares may not indicate market power (e.g.- Microsoft/skype)- need to look at actual competitive dynamics.</li>
</ul>
<ul>
<li>Identify abusive conduct.</li>
</ul>
<ul>
<li>Important to distinguish between harm to competitors and harm to consumers.</li>
</ul>
</li>
<li>Existing antitrust laws can deal with high tech. sectors.</li>
</ul>
<p style="text-align: justify; "><b>MANAS KUMAR CHAUDHURI- CO-CHAIRPERSON, ASSOCHAM NATIONAL COUNCIL FOR COMPETITION LAW AND PARTNER, KHAITAN AND CO., <i>MONOPOLISTIC BEHAVIOURS IN HORIZONTAL AGREEMENTS AND VERTICAL AGREEMENTS</i></b></p>
<ul>
<li style="text-align: justify; ">Monopolistic behaviours in horizontal agreements and vertical agreements.</li>
<li style="text-align: justify; ">GI agreements- falling foul of Competition Law?</li>
<li style="text-align: justify; ">Assignment agreements- terms anti competitive (if any)- then principle of severability of contract will apply.</li>
<li style="text-align: justify; ">Function of patents- to reward innovative work of inventor and NOT to protect public from defects. (ECJ decision 15/74).</li>
<li style="text-align: justify; ">The beginning of competition law assessment lies where IPR enters the market.</li>
</ul>
<p style="text-align: justify; "><b>SAMIR GANDHI- PARTNER, AZB & PARTNERS, <i>RELATIONSHIP BETWEEN IPR, MONOPOLIES AND DOMINANCE<br /></i></b></p>
<ul>
<li style="text-align: justify; ">IPR and Competition Law are two sides of a coin aimed at furthering innovation.</li>
</ul>
<ul>
<li>Under Section 4 of the Competition Act, 2002, you cannot take the defence of “doing so to protect my IPRs’ stance for your actions.</li>
</ul>
<ul>
<li>CCI has not yet had an IPR+ competition law ‘meaty’ case yet.</li>
</ul>
<ul>
<li>Refusal to license IPRs- competition law cannot say that you HAVE to license, but MAY be construed as anti-competitive if not backed up by sound objective claims. </li>
</ul>
<ul>
<li>At what stage are you required to license?</li>
</ul>
<ul>
</ul>
<ul>
</ul>
<ul>
</ul>
<ul>
</ul>
<ul>
</ul>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/the-assocham-international-conference-on-the-interface-between-intellectual-property-and-competition-law'>https://cis-india.org/a2k/blogs/the-assocham-international-conference-on-the-interface-between-intellectual-property-and-competition-law</a>
</p>
No publishernehaaIntellectual Property RightsAccess to Knowledge2013-07-22T05:54:01ZBlog EntryThe 2010 Special 301 Report Is More of the Same, Slightly Less Shrill
https://cis-india.org/a2k/blogs/2010-special-301
<b>Pranesh Prakash examines the numerous flaws in the Special 301 from the Indian perspective, to come to the conclusion that the Indian government should openly refuse to acknowledge such a flawed report. He notes that the Consumers International survey, to which CIS contributed the India report, serves as an effective counter to the Special 301 report.</b>
<h1>Special 301 Report: Unbalanced Hypocrisy</h1>
<p>The United States Trade Representative has put yet another edition of the Special 301 report which details the copyright law and policy wrongdoings of the US's trading partners. Jeremy Malcolm of Consumers International notes that the report this year claims to be "well-balanced assessment of intellectual property protection and enforcement ... taking into account diverse factors", but:</p>
<blockquote>
<p>[I]n fact, the report largely continues to be very one-sided. As in previous editions, it lambasts developing countries for failing to meet unrealistically stringent standards of IP protection that exceed their obligations under international law.</p>
</blockquote>
<p>More the report changes, <a href="http://cis-india.org/advocacy/ipr/blog/consumers-international-ip-watch-list-2009">the more it stays the same</a>. <a href="http://www.michaelgeist.ca/content/view/4684/195/">Despite having wider consultations</a> than just the International Intellectual Property Alliance (IIPA, consisting of US-based IP-maximalist lobbyists like the Motion Picture Association of America, Recording Industry Association of America, National Music Publishers Association, Association of American Publishers, and Business Software Alliance) and the Pharmaceutical Research and Manufacturers of America (PhRMA, consisting of US-based pharma multinationals), things haven't really changed much in terms of the shoddiness of the Special 301 report.</p>
<h1>India and the 2010 Special 301 Report</h1>
<p>The Special 301 report for 2010 contains the following assessment of India:</p>
<blockquote>
<p>India will remain on the Priority Watch List in 2010. India continues to make gradual progress on efforts to improve its legislative, administrative, and enforcement infrastructure for IPR. India has made incremental improvements on enforcement, and its IP offices continued to pursue promising modernization efforts. Among other steps, the United States is encouraged by the Indian government’s consideration of possible trademark law amendments that would facilitate India’s accession to the Madrid Protocol. The United States encourages the continuation of efforts to reduce patent application backlogs and streamline patent opposition proceedings. Some industries report improved engagement and commitment from enforcement officials on key enforcement challenges such as optical disc and book piracy. However, concerns remain over India’s inadequate legal framework and ineffective enforcement. Piracy and counterfeiting, including the counterfeiting of medicines, remains widespread and India’s enforcement regime remains ineffective at addressing this problem. Amendments are needed to bring India’s copyright law in line with international standards, including by implementing the provisions of the WIPO Internet Treaties. Additionally, a law designed to address the unauthorized manufacture and distribution of optical discs remains in draft form and should be enacted in the near term. The United States continues to urge India to improve its IPR regime by providing stronger protection for patents. One concern in this regard is a provision in India’s Patent Law that prohibits patents on certain chemical forms absent a showing of increased efficacy. While the full import of this provision remains unclear, it appears to limit the patentability of potentially beneficial innovations, such as temperature-stable forms of a drug or new means of drug delivery. The United States also encourages India to provide protection against unfair commercial use, as well as unauthorized disclosure, of undisclosed test or other data generated to obtain marketing approval for pharmaceutical and agricultural chemical products. The United States encourages India to improve its criminal enforcement regime by providing for expeditious judicial disposition of IPR infringement cases as well as deterrent sentences, and to change the perception that IPR offenses are low priority crimes. The United States urges India to strengthen its IPR regime and will continue to work with India on these issues in the coming year. </p>
</blockquote>
<p>This short dismissal of the Indian IPR regime, and subsequent classification of India as a "Priority Watch List" country reveals the great many problems with the Special 301.</p>
<h2>On Copyrights</h2>
<ol>
<li>
<p>The report notes that there are "concerns over India's inadequate legal framework and ineffective enforcement". However, nowhere does it bother to point out precisely <em>how</em> India's legal framework is inadequate, and how this is negatively affecting authors and creators, consumers, or even the industry groups (MPAA, RIAA, BSA, etc.) that give input to the USTR via the IPAA. Nor does it acknowledge the well-publicised fact that the statistics put out by these bodies have time and again <a href="http://www.cis-india.org/a2k/blog/fallacies-lies-and-video-pirates">proven to be wrong</a>:</p>
</li>
<li>
<p>Apart from this bald allegation which has not backing, there is a bald statement about India needing to bring its copyright law "in line with international standards" including "the WIPO Internet Treaties". The WIPO Internet Treaties given that more than half the countries of the world are not signatories to either of the WIPO Internet Treaties (namely the WIPO Copyright Treaty and the WIPO Performance and Phonograms Treaty), calling them 'international standards' is suspect. That apart, both those treaties are TRIPS-plus treaties (requiring protections greater than the already-high standards of the TRIPS Agreement). India has not signed either of them. It should not be obligated to do so. Indeed, Ruth Okediji, a noted copyright scholar, <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1433848">states</a>:</p>
</li>
</ol>
<blockquote>
<p>Consistent with their predecessors, the WIPO Internet Treaties marginalize collaborative forms of creative engagement with which citizens in the global South have long identified and continue in the tradition of assuming that copyright’s most enduring cannons are culturally neutral. [...] The Treaties do not provide a meaningful basis for a harmonized approach to encourage new creative forms in much the same way the Berne Convention fell short of embracing diversity in patterns and modes of authorial expression.</p>
</blockquote>
<ol>
<li>
<p>Some of the of the 'problems' noted in the report are actually seen as being beneficial by many researchers and scholars such as Lawrence Liang, Achal Prabhala, Perihan Abou Zeid <a href="https://sites.google.com/site/iipenforcement/bibliography">and others</a>, who argue that <a href="http://www.altlawforum.org/intellectual-property/publications/articles-on-the-social-life-of-media-piracy/reconsidering-the-pirate-nation">lax enforcement has enabled access to knowledge and promotion of innovation</a>. In a panel on 'Access to Knowledge' at the Internet Governance Forum, <a href="http://a2knetwork.org/access-knowledge-internet-governance-forum">Lea Shaver, Jeremy Malcolm and others</a> who have been involved in that Access to Knowledge movement noted that lack of strict enforcement played a positive role in many developing countries. However, they also noted, with a fair bit of trepidation, that this was sought to be changed at the international level through treaties such as the Anti-Counterfeiting Treaty Agreement (ACTA).</p>
</li>
<li>
<p>The scope of an optical disc law are quite different from copyright law. The report condemns "unauthorized manufacture and distribution of optical discs", however it does not make it clear that what it is talking about is not just unlicensed copying of films (which is already prohibited under the Copyright Act) but the manufacture and distribution of blank CDs and DVDs as well. The need for such a law is assumed, but never demonstrated. It is onerous for CD and DVD manufacturers (such as the Indian company Moserbaer), and is an overbearing means of attacking piracy.</p>
</li>
<li>
<p>The report calls for "improve[ment] [of India's] criminal enforcement regime" and for "deterrent" sentences and expeditious judicial disposition of IPR infringement cases. While we agree with the last suggestion, the first two are most unacceptable. Increased criminal enforcement of a what is essentially a private monopoly right is undesirable. Copyright infringment on non-commercial scales should not be criminal offences at all. What would deter people from infringing copyright laws are not "deterrent sentences" but more convenient and affordable access to the copyright work being infringed.</p>
</li>
</ol>
<h2>On Patents</h2>
<p>Thankfully, this year the Special 301 report does not criticise the Indian Patent Act for providing for post-grant opposition to patent filings, as it has in previous years. However, it still criticises section 3(d) of the Patent Act which ensures that 'evergreening' of drug patents is not allowed by requiring for new forms of known substances to be patented only if "the enhancement of the known efficacy of [the known] substance" is shown. Thus, the US wishes India to change its domestic law to enable large pharma companies to patent new forms of known substances that aren't even better ("enhancement of the known efficacy"). For instance, "new means of drug delivery" will not, contrary to the assertions of the Special 301 report and the worries of PhRMA, be deemed unpatentable.</p>
<p>The United States has been going through much turmoil over its patent system. Reform of the patent system is currently underway in the US through administrative means, judicial means, as well as legislative means. One of the main reasons for this crumbling of the patent system has been the low bar for patentability (most notably the 'obviousness' test) in the United States and the subsequent over-patenting. An <a href="http://supreme.justia.com/us/447/303/case.html">American judgment</a> even noted that "anything under the sun that is made by man" is patentable subject matter. It is well-nigh impossible to take American concerns regarding our high patent standards seriously, given this context.</p>
<h2>Miscellanea</h2>
<p>The harms of counterfeit medicine, as <a href="http://www.cis-india.org/a2k/blog/fallacies-lies-and-video-pirates">we have noted earlier</a>, are separate issues that are best dealt under health safety regulations and consumer laws, rather than trademark law.</p>
<p>Data exclusivity has been noted to be harmful to the progress of generics, and seeks to extend proprietary rights over government-mandated test data. It is [clear from the TRIPS Agreement][de-trips] that data exclusivity is not mandatory. There are clear rationale against it, and the Indian pharmaceutical industry [is dead-set against it][de-india]. Still, the United States Trade Representative persists in acting as a corporate shill, calling on countries such as India to implement such detrimental laws.</p>
<h2>Conclusion</h2>
<p>Michael Geist, professor at University of Ottowa <a href="http://www.michaelgeist.ca/content/view/4997/125">astutely notes</a>:</p>
<blockquote>
<p>Looking beyond just Canada, the list [of countries condemned by the Special 301 report] is so large, that it is rendered meaningless. According to the report, approximately 4.3 billion people live in countries without effective intellectual property protection. Since the report does not include any African countries outside of North Africa, the U.S. is effectively saying that only a small percentage of the world meet its standard for IP protection. Canada is not outlier, it's in good company with the fastest growing economies in the world (the BRIC countries are there) and European countries like Norway, Italy, and Spain.
In other words, the embarrassment is not Canadian law. Rather, the embarrassment falls on the U.S. for promoting this bullying exercise and on the Canadian copyright lobby groups who seemingly welcome the chance to criticize their own country. </p>
</blockquote>
<p>His comments apply equally well for India as well.</p>
<h1>IIPA's Recommendation for the Special 301 Report</h1>
<p>Thankfully, this year <a href="http://www.iipa.com/rbc/2010/2010SPEC301INDIA.pdf">IIPA's recommendations</a> have not been directly copied into the Special 301 report. (They couldn't be incorporated, as seen below.) For instance, the IIPA report notes:</p>
<blockquote>
<p>The industry is also concerned about moves by the government to consider mandating the use of open source software and software of only domestic origin. Though such policies have not yet been implemented, IIPA and BSA urge that this area be carefully monitored.</p>
</blockquote>
<p>Breaking that into two bit:</p>
<h2>Open Source</h2>
<p>Firstly, it is curious to see industry object to legal non-pirated software. Secondly, many of BSA's members (if not most) use open source software, and a great many of them also produce open source software. <a href="http://hp.sourceforge.net/">HP</a> and <a href="http://www-03.ibm.com/linux/ossstds/">IBM</a> have been huge supporters of open source software. Even <a href="http://www.microsoft.com/opensource/">Microsoft has an open source software division</a>. [Intel][intel], <a href="http://www.sap.com/usa/about/newsroom/press.epx?pressid=11410">SAP</a>, <a href="http://www.cisco.com/web/about/doing_business/open_source/index.html">Cisco</a>, <a href="http://linux.dell.com/projects.shtml">Dell</a>, <a href="http://www.sybase.com/developer/opensource">Sybase</a>, <a href="http://www.entrust.com/news/index.php?s=43&item=702">Entrust</a>, <a href="http://about.intuit.com/about_intuit/press_room/press_release/articles/2009/IntuitPartnerPlatformAddsOpenSourceCommunity.html">Intuit</a>, <a href="http://www.synopsys.com/community/interoperability/pages/libertylibmodel.aspx">Synopsys</a>, <a href="http://www.apple.com/opensource/">Apple</a>, <a href="http://www.theregister.co.uk/2005/04/22/jbuilder_eclipse/">Borland</a>, <a href="http://w2.cadence.com/webforms/squeak/">Cadence</a>, <a href="http://usa.autodesk.com/adsk/servlet/item?siteID=123112&id=6153839">Autodesk</a>, and <a href="http://news.cnet.com/8301-13505_3-9967593-16.html">Siemens</a> are all members of BSA which support open source software / produce at least some open source software. And <em>all</em> BSA members rely on open source software (as part of their core products, their web-server, their content management system, etc.) to a lesser or greater extent. BSA's left hand doesn't seem to know what its right hand -- its members -- are doing. Indeed, the IIPA does not seem to realise that the United States' government itself uses [open source software], and has been urged to <a href="http://news.bbc.co.uk/2/hi/7841486.stm">look at FOSS very seriously</a> and is doing so, especially under CIO Vivek Kundra. And that may well be the reason why the USTR could not include this cautionary message in the Special 301 report.</p>
<h2>Domestic Software</h2>
<p>As <a href="http://arstechnica.com/tech-policy/news/2010/04/indias-copyright-proposals-are-un-american-and-thats-bad.ars">this insightful article by Nate Anderson in Ars Technica</a> notes:</p>
<blockquote>
<p>Open source is bad enough, but a "buy Indian" law? That would be <a href="http://www.canadainternational.gc.ca/sell2usgov-vendreaugouvusa/procurement-marches/buyamerica.aspx?lang=eng">an outrage</a> and surely something the US government would not itself engage in <a href="http://www.canadainternational.gc.ca/sell2usgov-vendreaugouvusa/procurement-marches/ARRA.aspx?lang=eng">as recently as last year</a>. Err, right?</p>
</blockquote>
<p>Furthermore, the IIPA submission do not provide any reference for their claim that "domestic origin" software is being thought of being made a mandatory requirement in governmental software procurement.<br />
</p>
<h2>WCT, WPPT, Camcording, and Statutory Damages</h2>
<p>The IIPA submission also wish that India would:</p>
<ol>
<li>Adopt a system of statutory damages in civil cases; allow compensation to be awarded in criminal cases;</li>
<li>Adopt an optical disc law;</li>
<li>Enact Copyright Law amendments consistent with the WCT and WPPT;</li>
<li>Adopt an anti-camcording criminal provision.</li>
</ol>
<p>Quick counters:</p>
<ol>
<li>Statutory damages (that is, an amount based on statute rather than actual loss) would result in ridiculousness such as the $1.92 million damages that the jury (based on the statutory damages) slapped on Jammie Thomas. The judge in that case <a href="http://arstechnica.com/tech-policy/news/2010/01/judge-slashes-monstrous-jammie-thomas-p2p-award-by-35x.ars">called the damage award</a> "monstrous and shocking" and said that veered into "the realm of gross injustice."</li>
<li>The reasons against an optical disc law are given above. Quick recap: it is a) unnecessary and b) harmful.</li>
<li>India has not signed the WCT and the WPPT. Indian law satisfies all our international obligations. Thus enacting amendments consistent with the WCT and the WPPT is not required.</li>
<li>Camcording of a film is in any case a violation of the Copyright Act, 1957, and one would be hard-pressed to find a single theatre that allows for / does not prohibit camcorders. Given this, the reason for an additional law is, quite frankly, puzzling. At any rate, IIPA in its submission does not go into such nuances.</li>
</ol>
<h2>Further conclusions</h2>
<p><a href="http://spicyipindia.blogspot.com/2010/05/us-special-301-report-and-not-so.html">Shamnad Basheer</a>, an IP professor at NUJS, offer the following as a response:</p>
<blockquote>
<p>"Dear USA,</p>
<p>India encourages you to mind your own business. We respect your sovereignty to frame IP laws according to your national priorities and suggest that you show us the same courtesy. If your grouse is that we haven't complied with TRIPS, please feel free to take us to the WTO dispute panel. Our guess is that panel members familiar with the English language will ultimately inform you that section 3(d) is perfectly compatible with TRIPS. And that Article 39.3 does not mandate pharmaceutical data exclusivity, as you suggest!
More importantly, at that point, we might even think of hauling you up before the very same body for rampant violations, including your refusal to grant TRIPS mandated copyright protection to our record companies, despite a WTO ruling (Irish music case) against you.</p>
<p>Yours sincerely,</p>
<p>India."</p>
</blockquote>
<p>Basheer's suggestion seems to be in line with that Michael Geist who believes that other countries should join Canada and Israel in openly refusing to acknowledge the validity of the Special 301 Reports because they lack ['reliable and objective analysis'][geist-reliable]. And that thought serves as a good coda.</p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/2010-special-301'>https://cis-india.org/a2k/blogs/2010-special-301</a>
</p>
No publisherpraneshDevelopmentConsumer RightsAccess to KnowledgeCopyrightPiracyAccess to MedicineIntellectual Property RightsData ProtectionFLOSSTechnological Protection MeasuresPublications2011-10-03T05:37:27ZBlog EntryThe 'Dark Fibre' Files: The Grey Market Deficit
https://cis-india.org/a2k/blogs/the-dark-fibre-files-the-grey-market-deficit
<b>In this, the third entry in his series discussing the making of 'Dark Fibre' by Jamie King and Peter Mann, Siddharth Chadha gives an overview of piracy in the pay TV industry. </b>
<p> </p>
<p>Television emerged as one of the biggest gainers in a post-liberalisation India during the '90s. From 41 television sets and one channel in 1962, the country has come a long way, with over 130 million homes with televison. Cable TV has spurred an unprecedented revolution for the entertainment and advertising industry. As a country where more than half the population lives on a daily income of less than USD 1 but swears by its Indian Premier League, India has also emerged as the Asian giant in pay TV piracy. The Cable and Satellite Broadcasting Association of Asia, in a pan-Asia survey, pegged the net loss of revenue to the television industry due to pay TV piracy at USD 1.1 Billion in 2008. In its annual report published last year, it estimates that over 21.64 million cable TV homes went unreported, either on account of theft or leakage by local cable operators. This is almost one-fouth of the 8.5 million existing cable TV connections across the country. The report also suggests that 65 percent of the total loss of USD 1.76 Billion due to cable TV piracy in Asia comes from India alone, followed by Thailand at USD 180 Million.</p>
<p> </p>
<p>According to Shashi Kumar, the General Manager of Hathway Cable TV Private Limited, a Multi Service Operator, 'All cable operators report only 10-15 percent of their total subscriber base. Obviously, the piracy figures in this industry will be very high.' A cable operator in Bangalore, on the condition of being anonymous, discloses, 'We are providing cable TV connections to over 800 homes. But we declare only 250, because that is the minimum number of connections that the MSO wants. There are not enough margins in the business to sustain accurate reporting.' The average cost of setting up a cable operation now runs into crores of rupees and the business is not lucrative if it is entirely clean. The average price for a digital cable connection charged by an MSO to the local cablewallah is between Rs. 180-200, the charge to the end consumer is Rs. 250 per connection per month. This does not seem to spell profit for the cable operators. 'An amplifier alone costs Rs. 3500 per unit and serves about 20 homes. The cost of the RJ6 cable is Rs. 4300 a bundle. How can we be expected to do business on a profit margin of Rs. 50 per month? If the margins were higher, perhaps operators would not leak connections,' adds the cable operator.</p>
<p> </p>
<p>While Multi Service Operators seem to be fed up of the situation, there is not much they can do about it. 'There are already 5-6 national level MSOs. And then there are new entrants into the market every month. Despite knowing that the cable operators are under-reporting connections, we continue to work on minimum level subscriptions because the market is extremely competitive. If we take action against a cable operator, we would lose out on whatever business we have to a new player,' adds Shashi, while describing the operations of their company.</p>
<p> </p>
<p>The industry is now looking at growth in the number of Direct To Home subscribers as a deterrent to piracy. Estimates suggest that by 2015, over 40 percent of subscribers in the pay TV universe is likely to comprise DTH owners, up from the current five percent. Frightened of repeated instances of signal piracy on their networks, broadcasters are now investing in signal encryption technology, to ward of the pirates. However, till DTH television becomes the norm rather than the exception, one can expect more tussles between the broadcasters, Multi Service Operators, regulators and cablewallahs, in the world of pay TV piracy.</p>
<p> </p>
<p align="center"><img class="image-inline image-inline" src="uploads/thefutureishere.jpg/image_preview" alt="the future is here" height="260" width="400" /></p>
<p align="center"><img class="image-inline image-inline" src="uploads/TVServantLogo.png/image_preview" alt="tv servant logo" height="400" width="250" /></p>
<p> </p>
<p> </p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/the-dark-fibre-files-the-grey-market-deficit'>https://cis-india.org/a2k/blogs/the-dark-fibre-files-the-grey-market-deficit</a>
</p>
No publishersachiaPiracyIntellectual Property RightsCable TV2011-08-04T04:41:47ZBlog EntryThe 'Dark Fibre' Files: Interview with Jamie King and Peter Mann
https://cis-india.org/a2k/blogs/dark-fibre-files
<b>Film-makers Jamie King (producer/director of the 'Steal This Film' series) and Peter Mann, in conversation with Siddharth Chadha, on 'Dark Fibre', their latest production, being filmed in Bangalore</b>
<p>'Dark Fibre' is a documentary/fiction hybrid by J. J. King, producer/director of the 'Steal This Film' series, which has already reached over six million people online and is working towards achieving international television distribution, and Peter Mann, a British film-maker whose most recent work is titled 'Sargy Mann'.</p>
<p>'Dark Fibre' is set amongst the cablewallahs of Bangalore, and uses the device of cabling to traverse different aspects of informational life in the city. It follows the lives of real cablewallahs and examines the political status of their activities.The fictional elements arrive in the form of a young apprentice cablewallah who attempts to unite the disparate home-brew networks in the city into a grassroots, horizontal 'people's network'. Some support the activity and some vehemently oppose it -- but what no one expects is the emergence of a seditious, unlicensed and anonymous new channel which begins to transform people's imaginations in the city. Our young cable apprentice is tasked with tracking down the channel, as powerful political forces array themselves against it. Not only the 'security' of the city, but his own wellbeing depend on whether he finds it, and whether it proves possible to stop its distribution. Meanwhile, mysterious elements from outside India -- possibly emissaries of a still-greater power -- are appearing on the scene. This quest for the unknown channel is reminiscent of a modern-day 'Moby Dick', with the city of Bangalore as the high seas and our cable apprentice a reluctant Ahab. The action is a combination of verite, improvisation and scripted action.</p>
<h3>In conversation with Jamie and Peter in Bangalore</h3>
<p><strong>Q: How did you get the idea to make Dark Fibre, a fiction film?</strong></p>
<strong></strong>
<p><strong>Peter: </strong></p>
<strong></strong>
<p>We first met through BritDoc--British Documentary--and they run Channel 4 which is a Film Foundation. They have been good to us. They funded both Steal This Film and 'Sargy Mann'--a film on my father who is a blind man. They organised a meeting of all the directors they had funded and we met there. We were both thinking about what to do next and felt frustrated because we were making documentaries but really wanted to make fiction. We both shared the same ideas, with regard to shooting something completely as it is but presenting it in a fictional context.</p>
<p><strong>Jamie:</strong></p>
<strong></strong>
<p>And furthermore, we agreed that documentaries are not really real life. Because at the end of the day, I will keep only what I like, make you look at the way I want you to, I would cut you out of the picture if I don't agree with you. This happens even with the most worthy of the films. And you can be more truthful in fiction because its always a subjective truth. Fiction allows things to remain more real. I don't need an argument in the film. If I can just say, here is one guy's story and this is his story, then you can see the city with no bullshit. The story would allow you to look at things as they are; it's partly that idea behind Dark Fibre.</p>
<strong>Peter:<br /><br /></strong>
<p>This is in some way related to the concept of the artistic truth. You use all the tools at your disposal to tell a story, not just literal facts. This is about presenting things within an atmosphere, presenting things in a context. This then adds up to someone understanding something about the world, and I think fiction serves that better than documentary.</p>
<p><strong>Q: What brings you to India to make Dark Fibre?</strong> </p>
<strong>Jamie:<br /><br /></strong>
<p>I think the cablewallah networks are unique. I have never seen anything like this anywhere else myself. India is also in a very, very interesting time and place. The idea of information as a commodity is alive here as it isn't in many other places. The value of information is very high here. There is a western imaginary of Bangalore which is immediately fascinating. It's the place where our information is processed. This is where our credit card and our phone data goes. And it enters a weird black market that we don't understand. This is the cliché. We already have cliché films about Bombay and call centers. We do not want to put a call center into the film because that is already the imagined cliché vision of Bangalore. It is obviously far more sophisticated than that. And in some ways it is far patchier than that. Who are these information workers? What are they doing and at which level are they doing it? Are they the street workers putting cables into walls or is it the guy at Infosys who is hiring people and teaching them to fake English accents? Which is the real information worker? That variegation of information life in Bangalore is interesting, not just to us, but, I think, to everybody. Information dexterity is perceived as the signature of Northern dominance. The ability to manipulate information, to move intellectual property, to transform an idea into a product, to transform someone else's idea into your property. That kind of dexterity is seen as the keynote of western dominance. And watching a developing country transform into an information dextrous economy, seeing information dextrous people is amazing. And then there is the patchiness of it--who gets left behind? Who gets included? Whats missed out and what is added in that vision? How is it manipulated in favor of big businesses? And all of this is fascinating not only from an orientalist's point of view but from a general economic-socio-political point of view.</p>
<p><strong>Q: What is the underlying concept that brought about Dark Fibre?</strong><br /><strong><br />Jamie:</strong><br /> <br />While making 'Steal This Film' we spent a year on a 36 minute film trying to make an argument that would be staunch, impactful, and radical. What we learned is that it's very difficult to set out to argue your way to the truth. It's relatively easier to let the world itself speak and in the meanwhile observe it in detail. The kind of issues we are engaging with in Dark Fibre are around people's relationships with information and their relationship with freedom. These are very, very hard to nail down and speak about in a radical way. These are things left to the Intellectual Property lawyers, it's already happening, it's already cliché. All the arguments are already written. And even after a year of Steal This Film, it's shown in liberal universities – Wait! Liberal universities? I was supposed to be an anarchist! We want to go further. We want to tell people things through an image.</p>
<strong></strong>
<p><strong>Peter:</strong></p>
<p>Our idea of relationships is exploring the parallel physical communications networks and the virtual networks. In a city like Bangalore you see it. The traffic here is chaotic but it works. How? There is no answer to that. But it provokes questions. Through Dark Fibre, we are trying to say that there is a potential network in the city (cablewallahs) which is currently being unused and asking what it would take to unlock that potential and where would it take us if that really happens.</p>
<p><strong>Q: Why the cablewallahs? What is so fascinating about them?</strong><br /> <br /><strong>Jamie: </strong><br /> <br />Yes, we are interested in the cablewallah network and I think it's quite perverse that it makes people from around here laugh. You see cablewallahs as a fact of life, probably a mundane fact of life. Westerners, Europeans, who are used to orderly deployments of information technology are completely blown away when you tell them that this is how it works in India. Ad hoc, grassroots, messy, out of control.</p>
<strong><br />Peter:<br /><br /></strong>
<p>To the West, it is just unthinkable that the government would allow something like these networks, which supply 24 hours television. To not have these under government control is unthinkable.</p>
<strong>Jamie:<br /><br /></strong>
<p>So, obviously, we are at a point of transition where it's unthinkable to the Global North and it would become unthinkable here too. We are in the middle of that shift and thats one of the things we are trying to document; the network form, which is horizontal, ad hoc and on the street, becomes not only regulated but seditious.</p>
<strong>Q: Why would you call it seditious?</strong><strong><br /><br />Jamie: <br /><br /></strong>
<p>Because it begins to be seen as almost dangerous. As the regulators move in, they take Direct to Home control of all the deployments of their intellectual properties. The older networks start to look not only like intellectual property right infringements, but their disorder is also seen to be terrorist.</p>
<strong>Q: What is the film trying to propose through linking these cablewallah networks?</strong>
<p> </p>
<strong>Jamie:<br /><br /></strong>
<p>Our proposal in this film is - "What if instead of just dying peacefully, someone had the idea of transforming these networks that used to deliver international and local content, by connecting them together, and turning them in to massive local media networks which are used for media sharing, file sharing, your own local channel?" There is a potential because the network is already there.</p>
<strong>Peter:<br /><br /></strong>
<p>In a way, if you think about the microcosm idea of the Internet as a whole, that essentially is what our plot is. On a certain level you would say that it's just a network but then the internet is the most important driving force of the world today.</p>
<p><strong>Jamie:</strong></p>
<strong></strong>
<p>The point is that once this idea is out, we can create the infrastructure to connect the entire city, infrastructure we can all use. Everyone starts to have a stake in it, be it the newspapers, TV channels, pirate markets (they will say, "No one is buying our shit anymore because they can share it over the network"), the computer manufacturers, the importer of Chinese routers, a gangster who thinks he can advertise on the network, the intellectual property lawyer... different people start getting the idea that they might have something to do with this network. Basically this is a chaos scenario, from which arises the plot. It is a fictional scenario but is set in the reality of information sharing here today.</p>
<p><strong>Q: What is the technique you use to make the plot hybrid fictional?</strong><br /> <br /><strong>Jamie:</strong><br /><br />The main character is played by an actor and he will be an embedded actor, working with the real cablewallah. Parts of it will be documentary, seeing how the cablewallah works and the viewer, through watching this actor, will understand how the network works. We have already spoken to some cablewallahs. And they have been very happy about all this. We see this as sort of embedded journalism, where the embedded actor takes the place of an interviewer. The film is not going to be historical. The characters will have a background and the film is going to have a background, but what we are trying to do is show the 'now'. We want to make it speak about the past and speak about the future. About our future.</p>
<p><strong>Q: 'Steal This Film' was a critique of the international intellectual property regimes. Would this film also be similarly advocative?</strong><br /> <br /><strong>Jamie:</strong><br /><br />We are going to the next level from 'Steal This Film', and this is more of my argument than Peter's -- that the conversation about Intellectual Propery is over or the film is the last word at all. But I personally need to go somewhere else to say more. I am interested in information in general. And how information affects what we can think, what we can dream, what we can be, how it forms all of us -- that is what we are working on in 'Dark Fibre' and the question of intellectual property is a subset of that question. We spend a lot of time talking about ideas and that's one of the things that connects us. We want to articulate a lot of the philosophical, abstract ideas in this film. And we will see if we can manage to do it in a new context. 'Steal This Film' interested a few people and this will be the next point of departure for discussion.</p>
<p><strong>Q: Peter, do you share Jamie's passion for Intellectual Property?</strong><br /> <br /><strong>Peter:</strong><br /><br />Not in the same way. I am very interested in the subject. Anybody who creates work is interested in it. In my last film, there is a constant commentary of a test match going on and as a result of it, it is almost impossible to sell it to television; people who own the rights to the cricket say that we have to pay them thousands of pounds! I am interested in documenting the world as it is and not what is cleaned up for TV. I am interested in the specifics. If you get on a bus in London, the ringtone everyone has on a mobile phone is not a ringtone but a particular song. But you can't put that on film because Mick Jagger, or whoever the artiste is, will want ten thousand pounds for it. The frustration that I face is that it is impossible to put the world that I see in front of me on film. I used to work with TV commercials and you would never see anything in commercials that is not the product being sold. I was once working on a Coca Cola commercial in New York and there was a person who was appointed by Coca Cola to go around the whole set to ensure that no one is drinking anything that is not made by Coca Cola, whether that is water or juice. Anything. And I think all that is about creating a creased world that we don't live in. I am interested in the world, through documentaries or fiction, that we live in. And it is bits of music, it is referenced films, we reference music, we reference sport. Just because people have rights over these, you never see them on film. That is my main area of interest, more than what is happening on the legal front.</p>
<p><img class="image-inline image-inline" src="uploads/stf.jpg/image_preview" alt="stf" height="400" width="284" /> <img class="image-inline image-inline" src="uploads/copy_of_steal_this_film_2.jpg/image_preview" alt="steal this film" height="400" width="280" /></p>
<p> </p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/dark-fibre-files'>https://cis-india.org/a2k/blogs/dark-fibre-files</a>
</p>
No publishersiddharthhistories of internet in Indiainternet and societyDigital AccessIntellectual Property RightsYouTubeart and interventionPiracyOpen Accessinnovationdigital artists2011-08-04T04:41:31ZBlog EntryThe 'Dark Fibre' Files: Cable TV Technology for Dummies
https://cis-india.org/a2k/blogs/the-dark-fibre-files-cable-tv-technology-for-dummies
<b>In the fourth entry documenting the making of 'Dark Fibre', a film by Jamie King and Peter Mann, Siddharth Chadha simplifies cable TV technology for the uninitiated. </b>
<p> </p>
<p>Confused about the difference between an MSO and a COAX? Well, this will simplify cable TV for you.</p>
<p>The system of providing television to consumers using radio frequency signals transmitted to televisions using fixed optical fibers or co-axial cables is called cable television. This is different from the over-the-air method used in traditional television broadcasting (via radio waves) for which a television antenna is required. FM radio programming, high-speed internet, telephony, and similar non-television services may also be provided.</p>
<p>Still confused? It's simple.</p>
<p>Your local cablewallah is a Private Cable Operator, a private small cable company dealing/competing with the Multi System Operators (MSO), who is an operator of multiple cable systems. For example, Hathway, Siti Cable, In TV are MSOs who operate either directly or via small cablewallahs. When cable TV was first introduced in India, small entrepreneurs set up their private cable companies, providing anywhere between seven to twenty channels to their local neighborhoods. They put up their own cable dish to down-link the broadcast signals from the satellite. Up until 1997, this was the only way one could access cable television; but this changed with the entry of the Multi Service Operators, who used better technology to provide clearer pictures, better sound and up to a 100 channels.</p>
<p>The broadcaster up-links the signal to their channel via satellite. The MSO down-links this signal, using a control room or a rear end. Inside the control room would be a set of RF signal modulators. Scientific Atalanta is an industry standard in India that provides control room equipment to various MSOs. The MSOs, which started off with analog technology to transmit their signals, are now moving to digital cable, delivering cable television as digital data instead of an analog frequency.</p>
<p>Because many MSOs continue to use analog transmission for low-numbered channels, and digital transmission for higher channels, a typical digital cable box is also able to convert traditional analog cable signals. Despite the advance of cable-ready television sets, most users need a cable box to receive digital channels. However, customers who do not subscribe to any digital channels can go without; MSOs provide "basic cable" service within the analog range, avoiding the need for distributing a box. However, advanced carrier services such as pay per view and video on demand will require a box.</p>
<p>Digital television allows for a higher quality and quantity of cable TV signals. Digital transmission is compressed and allows a much greater capacity than analog signals it almost completely eliminates interference. Digital converters have the same purpose as analog ones but are able to receive digital cable signals. With more data than analog in the same bandwidth, the system delivers superior picture and sound quality.</p>
<p>The MSO further re-transmits the RF signal from to the cablewallah, via coaxial optical cables or simply known as COAX that in turn boosts this signal using amplifiers and provide it to various homes using a common type of optical cable called RG6. The term RG was initially used by the US Military as an abbreviation for Radio Guide, but the term is now obsolete. RG6, in common practice, refers to coaxial cables with an 18 AWG center conductor and 75 ohm characteristic impedance. It typically has a copper-coated steel center conductor and a combination aluminum foil/aluminum braid shield. They are usually fitted with F connector style, in each end.</p>
<p align="center"><img class="image-inline image-inline" src="uploads/submarineumbilicalcable259620.jpg/image_preview" alt="Submariine Umblical Cable" height="386" width="400" /></p>
<p>Once the signal reaches a cablewallah, the responsibility of the MSO ends, and it is up to the Cable Operator to maintain and distribute cable television from there onwards. Once the signal reaches the consumer's home, it is processed by a television converter box, popularly known as a set top box. A set top box is an electronic tunning device that transposes or converts any of the available channels from a cable television service to an analog RF signal on a single channel. The device enables televisions which are not cable ready to receive cable channels.</p>
<p align="center"><img class="image-inline image-inline" src="uploads/SetTopBox.jpg/image_preview" alt="Set Top Box" height="125" width="400" /></p>
<p>Modern set top boxes have a descrambling ability. The past three years have seen the entry of Direct to Home Pay TV operators, such as Tata Sky or Dish TV in the market, taking the technology to a new levels of sophistication, where the customers use a small cable dish to down-link the broadcasters signals which are processed with a set top box. In case of premium television, or paid channels, the broadcaster up-links an encrypted or a scrambled signal. When the signal reaches the home of the end user, it is reprocessed using a set top box, thus descrambling it and making it available for viewing on Television. A descrambler must be used with a cable converter box to be able to unencrypt all the premium and pay-per-view channels of a cable television system.</p>
<p align="center"><img class="image-inline image-inline" src="uploads/DTHDish.jpg/image_preview" alt="DTH DISH" height="388" width="400" /></p>
<p>Now, put on that television, forget the tech and get back to the latest IPL match!<em><br /></em></p>
<p><em>With inputs from MSOs, Local Cable Operators and Wikipedia for definitions of terms.</em></p>
<p> </p>
<p> </p>
<p> </p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/the-dark-fibre-files-cable-tv-technology-for-dummies'>https://cis-india.org/a2k/blogs/the-dark-fibre-files-cable-tv-technology-for-dummies</a>
</p>
No publishersachiaPiracyIntellectual Property RightsCable TV2011-08-04T04:41:52ZBlog EntryTechnological Protection Measures in the Copyright (Amendment) Bill, 2010
https://cis-india.org/a2k/blogs/tpm-copyright-amendment
<b>In this post Pranesh Prakash conducts a legal exegesis of section 65A of the Copyright (Amendment) Bill, 2010, which deals with the stuff that enables 'Digital Rights/Restrictions Management', i.e., Technological Protection Measures. He notes that while the provision avoids some mistakes of the American law, it still poses grave problems to consumers, and that there are many uncertainties in it still.</b>
<p><a href="http://www.wipo.int/enforcement/en/faq/technological/faq03.html">Technological Protection Measures</a> are sought to be introduced in India via the Copyright (Amendment) Bill, 2010. This should be quite alarming for consumers for reasons that will be explained in a separate blog post on TPMs that will follow shortly.</p>
<p>In this post, I will restrict myself to a legal exegesis of section 65A of the Bill, which talks of "protection of technological measures". (Section 65B, which talks of Right Management Information will, similarly, be tackled in a later blog post.)</p>
<p>First off, this provision is quite unnecessary. There has been no public demand in India for TPMs to be introduced, and the pressure has come mostly from the United States in the form of the annual "Special 301" report prepared by the United States Trade Representative with input coming (often copied verbatim) from the International Intellectual Property Alliance. India is not a signatory to the WIPO Copyright Treaty (WCT) which requires technological protection measures be safeguarded by law. That provision, interestingly, was pushed for by the United States in 1996 when even it did not give legal sanctity to TPMs via its copyright law (which was amended in 2000 by citing the need to comply with the WCT).</p>
<p>TPMs have been roundly criticised, have been shown to be harmful for consumers, creators, and publishers, and there is also evidence that TPMs do not really decrease copyright infringement (but instead, quite perversely through unintended consequences, end up increasing it). Why then would India wish to introduce it?</p>
<p>Leaving that question aside for now, what does the proposed law itself say?</p>
<blockquote>
<p>65A. Protection of Technological Measures </p>
<p> (1) Any person who circumvents an effective technological measure applied for the purpose of protecting any of the rights conferred by this Act, with the intention of infringing such rights, shall be punishable with imprisonment which may extend to two years and shall also be liable to fine.</p>
<p> (2) Nothing in sub-section (1) shall prevent any person from:</p>
<p> (a) doing anything referred to therein for a purpose not expressly prohibited by this Act:</p>
<p> Provided that any person facilitating circumvention by another person of a technological measure for such a purpose shall maintain a complete record of such other person including his name, address and all relevant particulars necessary to identify him and the purpose for which he has been facilitated; or</p>
<p> (b) doing anything necessary to conduct encryption research using a lawfully obtained encrypted copy; or</p>
<p> (c) conducting any lawful investigation; or</p>
<p> (d) doing anything necessary for the purpose of testing the security of a computer system or a computer network with the authorisation of its owner; or</p>
<p> (e) operator; or [<em>sic</em>]</p>
<p> (f) doing anything necessary to circumvent technological measures intended for identification or surveillance of a user; or</p>
<p> (g) taking measures necessary in the interest of national security.</p>
</blockquote>
<h1>Implications: The Good Part</h1>
<p>This provision clearly takes care of two of the major problems with the way TPMs have been implemented by the Digital Millennium Copyright Act (DMCA) in the United States:</p>
<ul>
<li>
<p>In s.65A(1) it aligns the protection offered by TPMs to that offered by copyright law itself (since it has to be "applied for the purpose of protecting any of the rights conferred by this Act"). Thus, presumably, TPMs could not be used to restrict <em>access</em>, only to restrict copying, communication to the public, and that gamut of rights.</p>
</li>
<li>
<p>In s.65A(1) and 65A(2) it aligns the exceptions granted by copyright law with the exceptions to the TPM provision. Section 65A(1) states that the act of circumvention has to be done "with the intention of infringing ... rights", and s.52(1) clearly states that those exceptions cannot be regarded as infringement of copyright. And s.65A(2)(a) states that circumventing for "a purpose not expressly prohibited by this Act" will be allowed.</p>
</li>
</ul>
<p>A third important difference from the DMCA is that</p>
<ul>
<li>It does not criminalise the manufacture and distribution of circumvention tools (including code, devices, etc.). (More on this below.)</li>
</ul>
<h1>Implications: The Bad Part</h1>
<p>This provision, despite the seeming fair-handed manner in which it has been drafted, still fails to maintain the balance that copyright seeks to promote:</p>
<ul>
<li>
<p>TPM-placers (presumably, just copyright holders, because of point 1. above) have been given the ability to restrict the activities of consumers, but they have not been given any corresponding duties. Thus, copyright holders do not have to do anything to ensure that the Film & Telivision Institute of India professor who wishes to use a video clip from a Blu-Ray disc can actually do so. Or that the blind student who wishes to circumvent TPMs because she has no other way of making it work with her screen reader is actually enabled to take advantage of the leeway the law seeks to provide her through s.52(1)(a) (s.52(1)(zb) is another matter!). Thus, while there are many such exceptions that the law allows for, the technological locks themselves prevent the use of those exceptions. Another way of putting that would be to say:</p>
</li>
<li>
<p>The Bill presumes that every one has access to all circumvention technology. This is simply not true. In fact, Spanish law (in <a href="http://noticias.juridicas.com/base_datos/Admin/rdleg1-1996.l3t5.html">Article 161 of their law</a>) expressly requires that copyright holders facilitate access to works protected by TPM to beneficiaries of limitations of copyright. Thus, copyright holders who employ TPMs should be required to:</p>
<ul>
<li>tell their customers how they can be contacted if the customer wishes to circumvent the TPM for a legitimate purpose</li>
<li>upon being contacted, aid their customer in making use of their rights / the exceptions and limitations in copyright law</li>
</ul>
</li>
<li>
<p>How seriously can you take a Bill that has been introduced in Parliament that includes a provision that states: "Nothing in sub-section (1) shall prevent any person from operator; or" (as s.65A(2)(e), read in its entirety, does)?</p>
</li>
</ul>
<h1>Uncertainties</h1>
<p>As mentioned above, the provisions are not all that clear regarding manufacture and distribution of circumvention tools. Thus, the proviso to s.65A(2)(a) deserves a closer reading. What is clear is that there are no penalties mentioned for manufacture or dissemination of TPMs, and that only those who <em>circumvent</em> are penalised in 65A(1), and not those who produce the circumvention devices. However:</p>
<h2>On "shall maintain" and penalties</h2>
<p>In the proviso to s.65B(2)(a), there is an imperative ("shall maintain") requiring "any person facilitating circumvention" to keep records. It
is unclear what the implications of not maintaining such records are.</p>
<p>The obvious one is that the exemption contained in s.65(1)(a) will not apply if one were facilitated without the facilitator keeping records. Thus, under this interpretation, there is no independent legal (albeit penalty-less) obligation on facilitators. This interpretation runs into
the problem that if this was the intention, then the drafters would have written "Provided that any person facilitating circumvention ... for
such a purpose <em>maintain</em>/<em>maintained</em> a complete record ...". Instead, <em>shall maintain</em> is used, and an independent legal obligation seems,
thus, to be implied. But can a proviso create an independent legal obligation? And is there any way a penalty could <em>possibly</em> be attached
to violation of this proviso despite it not coming within 65A(1)?</p>
<h2>On "facilitating" and remoteness</h2>
<p>The next question is who all can be said to "facilitate", and how remote can the connection be? Is the coder who broke the circumvention a
facilitator? The distributor/trafficker? The website which provided you the software? Or is it (as is more likely) a more direct "the friend who sat at your computer and installed the circumvention software" / "the technician who unlocked your DVD player for you while installing it in your house"?</p>
<p>While such a record-keeping requirement is observable by people those who very directly help you (the last two examples above), it would be more difficult to do so the further up you get on the chain of remoteness. Importantly, such record-keeping is absolutely not possible in decentralized distribution models (such as those employed by most free/open source software), and could seriously harm fair and legitimate circumvention.</p>
<h1>More uncertainties</h1>
<p>It is slightly unclear which exception the bypassing of Sony's dangerous "Rootkit" copy protection technology would fall under if I wish to get rid of it simply because it makes my computer vulnerable to malicious attacks (and not to exercise one of the exceptions under s.52(1)). Will such circumvention come under s.65A(2)(a)? Because it does not quite fall under any of the others, including s.65(2)(b) or (f).</p>
<h2>On "purpose" as a criterion in 65A(2)(a)</h2>
<p>A last point, which is somewhat of an aside is that 65A(2)(a) states:</p>
<blockquote>
<p>Nothing in sub-section (1) shall prevent any person from doing anything referred to therein for a purpose not expressly prohibited by this Act.</p>
</blockquote>
<p>There's something curious about the wording, since the Copyright Act generally does not prohibit any acts based on purposes (i.e., the prohibitions by ss.14 r/w s.51 are not based on <em>why</em> someone reproduces, etc., but on the act of reproduction). In fact, it <em>allows</em> acts based on purposes
(via s.52(1)). The correct way of reading 65A(2)(a) might then be:</p>
<blockquote>
<p>Nothing in sub-section (1) shall prevent any person from doing anything referred to therein for a purpose expressly allowed by this Act.</p>
</blockquote>
<p>But that might make it slightly redundant as s.65A(1) covers that by having the requirement of the circumvention being done "with the intention of infringing such right" (since the s.52(1) exceptions are clearly stated as not being infringements of the rights granted under the Act).</p>
<h1>Conclusion</h1>
<p>It would be interesting to note how leading copyright lawyers understand this provision, and we will be tracking such opinions. But it is clear that TPMs, as a private, non-human enforcement of copyright law, are harmful and that we should not introduce them in India. And we should be especially wary of doing so without introducing additional safeguards, such as duties on copyright holder to aid access to TPM'ed works for legitimate purposes, and remove burdensome record-keeping provisions.</p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/tpm-copyright-amendment'>https://cis-india.org/a2k/blogs/tpm-copyright-amendment</a>
</p>
No publisherpraneshAccess to KnowledgeCopyrightIntellectual Property RightsFLOSSTechnological Protection MeasuresPublications2012-05-17T16:51:38ZBlog EntrySuper Cassettes v. MySpace
https://cis-india.org/a2k/blogs/super-cassettes-v-my-space
<b>The Delhi High Court’s judgment in Super Cassettes v. MySpace last July is worrying for a number of reasons. The court failed to appreciate the working of intermediaries online and disregard all pragmatic considerations involved. The consequences for free expression and particularly for file sharing by users of services online are especially unfavourable. </b>
<p style="text-align: justify; ">The judgment<a href="#fn*" name="fr*">[*]</a>is extremely worrying since it holds MySpace liable for copyright infringement, <b>despite</b> it having shown that it did not know, and could not have known, about each instance of infringement; that it removed each instance of alleged infringement upon mere complaint; that it asked Super Cassettes to submit their songs to their song identification database and Super Cassettes didn't.</p>
<p style="text-align: justify; ">This, in essence, means, that all 'social media services' in which there is even a <b>potential</b> for copyright infringement (such as YouTube, Facebook, Twitter, etc.) are now faced with a choice of either braving lawsuits for activities of their users that they have no control over — they can at best respond to takedown requests after the infringing material has already been put up — or to wind down their operations in India.</p>
<h2 style="text-align: justify; ">The Facts</h2>
<p style="text-align: justify; ">Aside from social networking, MySpace facilitates the sharing of content between its users. This case concerns content (whose copyright vested in T-Series) was uploaded by users to MySpace’s website. It appears that tensions between MySpace and T-Series arose in 2007, when T-Series entered into talks with MySpace to grant it licenses in its copyrighted content, while MySpace asked instead that T-Series register with its rights management programme. Neither the license nor the registration came about, and the infringing material continued to be available on the MySpace website.</p>
<p style="text-align: justify; ">Specifically, T-Series alleged that cases for primary infringement under section 51(a)(i) of the Copyright Act as well as secondary infringement under section 51 (a) (ii) could be made out. Alleging that MySpace had infringed its copyrights and so affected its earnings in royalties, T-Series approached the Delhi High Court and filed a suit seeking injunctive relief and damages. In proceedings for interim relief while the suit was pending, the court granted an injunction, but, in an appeal by MySpace, added the qualification that the content would have to be taken down only on receipt of a specific catalogue of infringing works available on MySpace, rather than a general list of works in which T-Series held a copyright.</p>
<h2 style="text-align: justify; ">The Defence</h2>
<p>While other arguments such as one around the jurisdiction of the court were also raised, the central issues are listed below:</p>
<ol>
<li style="text-align: justify; ">Non-Specificity of Prayer<br />T-Series’ claim in the suit is for a blanket injunction on copyrighted content on the MySpace website. This imposes a clearly untenable, even impossible, burden for intermediaries to comply with.</li>
<li style="text-align: justify; ">Knowledge<br />MySpace argued that no liability could accrue to it on two counts. The first was that it had no actual or direct knowledge or role in the selection of the content, while the second was that no control was exercised, or was exercisable over the uploading of the content. Additionally, there was no possible means by which it could have identified the offending content and segregated it from lawful content, or monitored all of the content that it serves as a platform for.</li>
<li style="text-align: justify; ">Intermediary status and Safe Harbour Protection<br />In relation to its status as an intermediary, MySpace raised several arguments. First, it argued that it had immunity under section 79 of the IT Act and under the US Digital Millennium Copyright Act (US DMCA). Another argument restated what is arguably the most basic tenet of intermediary liability that merely providing the platform by which infringement could occur cannot amount to infringement. In other words, the mere act of facilitating expression over internet does not amount to infringement. It then made reference to its terms of use and its institution of safeguards (in the form of a hash filter, a rights management tool and a system of take-down–stay-down), which it argued clearly reflect an intention to discourage or else address cases of infringement as they arise. MySpace also emphasized that a US DMCA compliant procedure was in place, although T-Series countered that the notice and take down system would not mitigate the infringement.</li>
<li style="text-align: justify; ">Relationship between MySpace and its Users<br />Taking from previous arguments about a lack of control and its status as an intermediary, MySpace argued that it was simply a licensee of users who uploaded content. The license is limited, in that MySpace is only allowed to alter user-generated content so as to make it viewable.</li>
</ol>
<h2 style="text-align: justify; ">Outcomes</h2>
<ol>
<li style="text-align: justify; ">Infringement by Facilitation<br />The court concluded that infringement in terms of section 51 (a) (ii) had occurred in this case, since web space is a “place” in the terms required by the section and there were monetary gains in the form of ad revenue. The argument as to a lack of knowledge of infringement was also rejected on the ground that MySpace’s provision for safeguards against infringement clearly established a reason to believe that infringement will occur. Also referenced as evidence of knowledge, or at least a reason to believe infringement would occur, is the fact that MySpace modifies the format of the content before making it available on its website. It also tested for infringement by authorization in terms of section 14 read with section 51 (a) (i), but concluded that this did not arise here.</li>
<li style="text-align: justify; ">Reading away section 79?<br />The court accepted the argument made by T-Series to the effect that sections 79 and 81 of the IT Act must be read together. Since section 79 would be overridden by section 81’s non-obstante, the effect would be that rights holders’ interests under the Copyright Act will erode intermediaries’ immunity under section 79. </li>
<li style="text-align: justify; ">Due Diligence<br />The court rejected the argument that the provision of due diligence or curative measures post-infringement would be sufficient. Specifically, the contention that the quantum of content being uploaded precludes close scrutiny, given the amount of labour that would be involved, was rejected. Content should not immediately be made available but must be subject to enquiries as to its title or to authentication of its proprietor before it is made available. In fact, it holds that, “there is no reason to axiomatically make each and every work available to the public solely because user has supplied them unless the defendants are so sure that it is not infringement.” (Paragraph 88).</li>
</ol> <ol> </ol>
<p style="text-align: justify; ">There is also an attempt to distinguish the Indian framework from the DMCA. While that law calls for post-infringement measures, it is argued that in India, on reading section 51 with section 55, the focus is on preventing infringement at the threshold. In response to the case that it would be impossible to do so, the court held that since the process here requires MySpace to modify the format of content uploaded to it to make it viewable, it will have a reasonable opportunity to test for infringement.</p>
<h2 style="text-align: justify; ">Analysis</h2>
<h3>Accounting for the Medium of Communication</h3>
<p style="text-align: justify; ">The court’s analysis of the issues begins with a predictable emphasis on how the law of copyright would operate in the context of what is termed “internet computing”, peppered with trite statements about “the virtual world of internet” creating “complexit[ies]” for copyright law. The court appears to have entered into this discussion to establish that the notion of place in section 51 (a) (ii) should extend to “web space” but the statements made here only serve to contrast starkly against its subsequent failure to account for the peculiarities of form and function of intermediaries online. Had this line of argument been taken to its logical conclusion, after the character of the medium had been appreciated, the court’s final conclusion, that MySpace is liable for copyright infringement, would have been an impossible one to arrive at.</p>
<h3 style="text-align: justify; ">And What of Free Speech?</h3>
<p style="text-align: justify; ">As it had argued before the court, intermediaries such as MySpace have no means by which to determine whether content is illegal (whether by reason of amounting to a violation of copyright, or otherwise) until content is uploaded. In other words, there is no existing mechanism by which this determination can be made at the threshold, before posting.</p>
<p style="text-align: justify; ">The court does not engage with the larger consequences for such a scheme of penalizing intermediaries. Censoring patent illegalities at the threshold, even if that were possible is one thing. The precedent that the court creates here is quite another. Given the general difficulty in conclusively establishing whether there is an infringement at all due to the complexities in applying the exceptions contained under section 52, it should not be for ordinary private or commercial interests such as intermediaries to sit in judgment over whether content is or is not published at all. In order to minimize its own liability, the likelihood of legitimate content being censored by the intermediary prior to posting is high.</p>
<p style="text-align: justify; ">The consequences for civil liberties, and free speech and expression online in particular, appear to have been completely ignored in favour of rights holders’ commercial interests.</p>
<h3 style="text-align: justify; ">Consequences for Intermediary Liability and Safe Harbour Protection</h3>
<blockquote class="pullquote" style="text-align: justify; ">Even if every instance in question did amount to an infringement of copyright and a mechanism did exist allowing for removal of content, the effect of this judgment is to create a strict liability regime for intermediaries.</blockquote>
<p style="text-align: justify; ">In other words, the court’s ruling will have the effect that courts’ determination of intermediaries’ liability will become detached from whether or not any fault can be attributed to them. MySpace did make this argument, even going as far as to suggest that doing so would impose strict liability on intermediaries. This would lead to an unprecedented and entirely unjustifiable result. In spite the fact that a given intermediary did apply all available means to prevent the publication of potentially infringing content, it would remain potentially liable for any illegality in the content, even though the illegality could not have been detected or addressed.</p>
<p style="text-align: justify; ">What is perhaps even more worrying is that MySpace’s attempt at proactively and in good faith preventing copyright infringement through its terms of use and in addressing them through its post-infringement measures was explicitly cited as evidence of knowledge of and control over the uploading of copyrighted material, at the threshold rather than ex post. This creates perverse incentives for the intermediary to ignore infringement, to the detriment of rights holders, rather than act proactively to minimize its incidence.</p>
<p style="text-align: justify; ">A final observation is that the court’s use, while pronouncing on relief, of the fact that MySpace makes a “copy” of the uploaded content by converting it into a format that could subsequently be hosted on the site and made accessible to show evidence of infringement and impose liability upon MySpace in itself is a glaring instance of the disingenuous reasoning the court employs throughout the case. There is another problem with the amended section 79, which waives immunity where the intermediary “modifies” material. That term is vague and overreaches, as it does here: altering formats to make content compatible with a given platform is not comparable to choices as to the content of speech or expression, but the reading is tenable under section 79 as it stands.</p>
<p style="text-align: justify; ">The result of all of this is to dislodge the section 79 immunity that accrues to intermediaries and replace that with a presumption that they are liable, rather than not, for any illegality in the content that they passively host.</p>
<h3 style="text-align: justify; ">Effect of the Copyright (Amendment) Act, 2012</h3>
<p style="text-align: justify; ">Since the judgment in the MySpace case, the Copyright Act has been amended to include some provisions that would bear on online service providers and on intermediaries’ liability for hosting infringing content, in particular. Section 52 (1) (b) of the amended Act provides that “transient or incidental storage of a work or performance purely in the technical process of electronic transmission or communication to the public” would not infringe copyright. The other material provision is section 52 (1) (c) which provides that “transient or incidental storage of a work or performance for the purpose of providing electronic links, access or integration, where such links, access or integration has not been expressly prohibited by the right holder, unless the person responsible is aware or has reasonable grounds for believing that such storage is of an infringing copy” will not constitute an infringement of copyright. The latter provision appears to institute a rather rudimentary, and very arguably incomplete, system of notice and takedown by way of a proviso. This requires intermediaries to takedown content on written complaint from copyright owners for a period of 21 days or until a competent rules on the matter whichever is sooner, and restore access to the content once that time period lapses, if there is no court order to sustain it beyond that period.</p>
<p style="text-align: justify; ">This post does not account for the effect that these provisions could have had on the case, but it is already clear, from the sloppy drafting of section 52 (1) (c) and its proviso that they are not entirely salutary even at the outset. At any rate, there appears to be nothing that *<i>determinatively*</i> affects intermediaries’ secondary liability, <i>i.e.</i>, their liability for users’ infringing acts.</p>
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<p style="text-align: justify; "><i>Disclosure: CIS is now a party to these proceedings at the Delhi High Court. This is a purely academic critique, and should not be seen to have any prejudice to the arguments we will make there.</i></p>
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<p>[<a href="#fr*" name="fn*">*</a>]. Super Cassettes Industries Ltd. v. MySpace Inc. and Another, on 29 July, 2011, Indian Kanoon - Search engine for Indian Law. See<a class="external-link" href="http://bit.ly/quj6JW"> http://bit.ly/quj6JW</a>, last accessed on October 31, 2012.</p>
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For more details visit <a href='https://cis-india.org/a2k/blogs/super-cassettes-v-my-space'>https://cis-india.org/a2k/blogs/super-cassettes-v-my-space</a>
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No publisherujwalaAccess to KnowledgeCopyrightIntellectual Property RightsIntermediary LiabilityFeatured2012-10-31T10:27:36ZBlog Entry