Centre for Internet and Society

Broadcasters Eager For Global Signal Protection; Others Warn Of Major Players Sneaking In

Admin — 2018-10-16T13:55:10Z

Anubha Sinha was recently part of a panel discussion on broadcast treaty.

The article by Catherine Saez was published in Intellectual Property Watch on October 9, 2018.

The so-called broadcasting treaty being negotiated at the World Intellectual Property Organization is supported by broadcasters’ organisations in the hope that it will stanch signal piracy. Some voices however, warn about creating a right that might be captured by large internet corporations such as Facebook, Google and Netflix, which can be a stone’s throw away from acquiring radio or television channels to qualify for the protection of the potential treaty. They also challenge the duration and scope of the protection. A seminar gathering stakeholders last week looked at implications of the treaty.

Knowledge Ecology International organised a seminar on 3-4 October gathering civil society speakers, international organisation representatives, and a representative of the broadcaster community.

Discussions were based on a working document [pdf] for a treaty on the protection of broadcasting organisations, and a revised consolidated text [pdf] on definitions, object of protection, rights to be granted and other issues, prepared by the SCCR Chair Daren Tang of Singapore, to be discussed at the next session of the WIPO Standing Committee on Copyright and Related Rights, from 26-30 November.

Broadcasters: Current Protection not Sufficient

Heijo Ruijsenaars, head of intellectual property law at the European Broadcasting Union, explained the need for broadcasters to have additional rights going beyond the 1961 Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations.

Key reasons for a treaty include the need for broadcasting to protect their investment in programming and dissemination, he said.

The current protection in view of the technology is not sufficient in a time where viewers want to access content whenever and wherever they want, which means it has to be delivered in a different way than traditional broadcasting, according to Ruijsenaars. This shift in technology also gave way to increasing piracy, he said, adding that signal piracy is a global issue and it is important to have a treaty covering everybody on the planet.

Ruijsenaars said there is evidence of ever-growing piracy and WIPO does not discuss enough the reasons underlining broadcasters’ neighbouring rights. For broadcasters it is not the delivery of signal that matters, he said, but that the public is provided with programmes.

Benefits for the public of those programmes include the provision of diversified information on national and local matters; educational content; special programming for niche or minority audiences; enhancement of public awareness and media literacy; supporting of independent audiovisual production; promotion of local authors, actors and artists; and the creation of new services on multiple platforms, his presentation listed.

If the focus of the discussion remains merely about the signal, he said, then it misses the broadcasters’ activity. Broadcasters make a programme, then embed it in a signal, which is then broadcast. The broadcast is the tool by which programmes are delivered to the public but producing the signal is just a necessary technical activity, he added.

The most important element of broadcasting is its independence from the audience, according to Ruijsenaars, it does not matter how many people are watching. It is also independent from the content since the content is covered by copyright, and independent from transmission, since each signal has its own protection.

In the digital age, most people have hybrid television which can receive both online and traditional signal from broadcasters at the same time, without them being aware of, or caring about, the difference, he said. In Europe, some 60 million households own an internet-connected TV set, he added.

The treaty would not impede but foster freedom of expression, it would stimulate innovation in consumer devices. would have no impact on the public domain or on internet service providers’ liability, he argued, adding, “If there is no treaty, everybody loses out.”

Beware of Large Internet Corporations Morphing

Anubha Sinha of the Center for Internet and Society, said the issue of signal piracy affects mostly sports broadcasters, and a potential narrow treaty could address this particular problem. A treaty as the one considered at the moment could have unintended adverse effects, she said.

The beneficiaries of the treaty appear to be only broadcasting organisations, but today it is impossible to distinguish between computer networks and wired or wireless means, she noted, asking about the risk of accidentally creating rights that could be misused “by the likes of Google, Facebook, Netflix…”

Facebook recently acquired the rights to broadcast La Liga games in the Indian sub-continent, she noted, warning about the “weak treatment” given to exceptions and limitations in the current treaty draft. She added that the treaty would affect the existing commons and the methods by which commons are being made accessible today.

The 1961 Rome Convention is narrow and broadcasters are facing competition from internet-based services that operate with fewer rights, but provide services that the public wants, which is part of the problem, according to James Love from Knowledge Ecology International.

Citing SCCR Chair Tang’s current proposed language, Love said that the definition of a broadcaster stating that “entities that deliver their programme-carrying signal exclusively by means of a computer network do not fall under the definition of a ‘broadcasting organization'” intends to exclude companies such as YouTube, Spotify, and Netflix, but would include other companies being broadcasters and also having internet platforms at the same time, such as the BBC.

That is creating a special right. which might be challenged by other companies arguing that those rights are contrary to a level playing field, he said.

It is also very easy for companies such as Facebook and Amazon to buy a radio station somewhere on the planet, thinking otherwise is naive, he said. This point was also made by Ryan Merkley of Creative Commons.

Love produced a colour-coded document [pdf] showing developments in technologies to distribute, broadcast or stream audio and audiovisual content from 1887 to 2018.

In white, the document lists what concerns traditional broadcasting, in yellow internet technologies, in blue technologies to make physical copies of audio and audiovisual recordings, and in green norm-setting activities. The vast majority of items listed belong to the yellow sections.

Players in the yellow fields will be the beneficiaries, he said. “You will be transferring money” to large platforms, the biggest of which are in the United States, he said, adding that the concentration will be much larger than in the radio and television arena.

To remedy those potential dangers, Love’s presentation suggested to eliminate post-fixation rights, and install mandatory exceptions including news of the day, public affairs, documentary films, education, and quotations.

Ruijsenaars argued that the European Union has legislation protecting post-fixation rights, and that did not bring any issues either with rights holders or the public interest.

50 Years Protection ‘Outrageous’

Love also challenged the proposed 50 years of protection. “If you were to keep a copy of something for 50 years,” the chances are that no technology would still be able to read it, he said, adding that if the treaty protects post-fixation rights, it is no longer protecting a signal.

Cristiana Gonzalez of the Centro: Tecnologia, Espaços, políticas públicas, Brazil, also said the treaty should be confined to immediate transmission without post-fixation rights. In Brazil, she said, organisations may not acquire protection for any deferred transmission.

The proposed term of protection should be no more than a few seconds, 24 hours if one wants to be generous, she said. Extending it further could have consequences for the public domain, impact cultural diversity and democracy, by for example preventing access to historical information, she said, adding that giving a monopoly over content could be dangerous.

Merkley said the current draft of the treaty could have a number of negative impacts. The world has and is changing, he said, and it is no longer a matter of creating rules for industry alone. “Every one of you is a copyright holder,” he said, adding that the draft treaty forgets about the public.

There have been many poor choices for the web, he argued, and the treaty would yet be another wrong choice. Negotiators have to be careful not to disturb the whole ecosystem to support an industry threatened by improvements in technology, he said.

He also called 50 years of protection “unreasonable” and said in the most compelling case of protection for sports event broadcasting, should be termed in hours. The most alarming in the proposed text, according to Merkley is that it would give post-fixation rights for public domain works. “This is outrageous,” he said, as broadcasters do not own this content and did not create it so they should have no rights over it.

Ruijsenaars commented that if the content is in the public domain, like a film, it can be found somewhere else than in the broadcast, which is protected.

Amalia Toledo of the Karisma Foundation said the rights awarded by the treaty to broadcasters could impede or restrict the flow of information that may not be protected by copyright, such as news of the day, and speeches from public officials. In Latin America, she said, there are various examples of how the political power has used copyright protection to silence voices.

This new right would be a direct attack on creators’ possibility to share their works as they see fit, she said. It would also ignore the public interest in having access to information, knowledge and culture, she added.

If a treaty is agreed against signal piracy, the protection should be for hours after the transmission, not 20 or 50 years, she said.

For more details visit https://cis-india.org/a2k/news/broadcasters-eager-for-global-signal-protection-others-warn-of-major-players-sneaking-in

Broadcast Treaty: An Overview

nehaa — 2014-03-20T09:55:45Z

In this blog post, CIS intern Varun Baliga, a third year law student at NALSAR University of Law, Hyderabad, presents an overview of the Treaty for the Protection of Broadcasting Organizations, currently being deliberated by nations at the World Intellectual Property Organization (WIPO) Standing Committee on Copyright and Related Rights (SCCR).

Negotiations on the Treaty for the Protection of Broadcasting Organizations (“Broadcast Treaty”) (draft circulated for discussion at the 26^th SCCR available here- http://www.wipo.int/edocs/mdocs/copyright/en/sccr_26/sccr_26_6.pdf) were initiated for the purpose of protecting such organizations from signal piracy. For a broadcasting organization, their signal is the prime source of revenue. Therefore, state intervention at the international level was required to quell the transnational issue of signal piracy. Moves by a majority of nations indicated that the mood was in favour of drafting a treaty that would codify certain protections for broadcasting organizations in the form of rights. The obvious concerns that arose were the nature and scope of those rights. Overbroad rights often posed significant obstacles to the free flow of information. A number of developing nations were concerned that the latest move was a further entrenchment of the colonization of information and knowledge. It was in the common interest to balance the dire need to combat signal piracy in order to maintain the integrity of the business of broadcasting organizations while at the same time ensuring that it doesn’t come at the cost of the access to the information itself.

From the perspective of the Global South, the focus of the text was Article that protected possible action that states may take in the public interest. The South was interested in elevating the status of the public interest to that of an aspiration that states must seek to live up to. So, public interest must continue to guide even negotiations that seek to protect the interests of multinational corporations. The Broadcast Treaty also protects against the restriction of free flow of technology and access to the same in Article 4. One of the sticking points of negotiations has been the nature and scope of the protection that is to be offered to broadcasting organizations. India, among other countries, has advocated for a strict signal-based approach to the protection. It opines that protection should be offered to the signal alone and not the subject matter that is carried by the signal. Many nations of the developed world look at this as a distinction without a difference. There has also been a strong push from the South to limit protection only to transmission and not cover the retransmission of signals within the aegis of the treaty. Another cleavage of opinion has been on definitional concerns that have plagued the negotiations ever since they commenced. Institutions such as Knowledge Ecology International among others have noted with caution the wide meanings conferred on beneficiaries of protection. Understanding broadcasting organizations and cablecasting organizations in an all-encompassing way would result in not just the proliferation of rights, thereby harming the sanctity associated with the concept, but would also lead to the manifestation of those rights on contexts that harm free speech and access to information. For example, the protection of the rights of broadcasting organizations on the internet could play out in a pernicious fashion, particularly since the internet space has long been one of open and free access.

Many countries, including India, Brazil and South Africa, have questioned the need for the treaty in the first place. Adopting this position doesn’t mean a devaluation of the harms of signal piracy. On the other hand, questions have been raised as to whether the creation of rights is the most effective, or even the right, solution. The harms of this problem-solution mismatch mean that the stakes are high; therefore, subjecting this treaty to critical scrutiny assumes great importance.

India, South Africa and the entire bloc has also argued against the inclusion of webcasts and netcasts in the spectrum of rights being conferred on broadcasting organizations. Broadcasting and webcasting work on completely different investment models and don’t work on the same kind of infrastructure. For that and other speech and access reasons, protection should be given, it was argued, only for traditional transmission of the signal. Consensus was ultimately achieved with the US agreeing that the focus of the treaty should be “true signal piracy, real-time transmission of the signal to the public without authorization".[1]

The Centre for Internet and Society has expressed its reservations about the treaty in no uncertain terms in the past. The underlying philosophy has consistently been a robust signal-based approach to the treaty. A consequence of this would be no term of protection for signals since the rights would exist only for infinitesimal amount of time that the signal does. The absence of a term of protection would also preclude concerns about harm to free flow of information from creeping up. CIS noted that there was a need for greater clarity on the meaning of ‘mere retransmissions’ which would not be granted any rights in the April 2007 Non-Paper circulated for the delegates. When the transmission is over a computer networks, there should be inkling of doubt as to the exclusion of both transmission and retransmission from the ambit of protection. Finally, it has called for a different structure of limitations and exceptions to be conceptualized for the treaty. A simplistic transplantation of the Berne Convention provisions would be ignorant of the particular needs of broadcasting. It is critical that the limitations and exceptions be actualized in a manner that is enabling and empowering for the most vulnerable stakeholders.

[1]. http://keionline.org/node/1701

For more details visit https://cis-india.org/a2k/blogs/broadcast-treaty-an-overview

Beyond Property Rights: Thinking About Moral Definitions of Openness

praskrishna — 2013-08-07T09:43:35Z

It is hard for Westerners to realize just how much we take for granted about intellectual property, and in particular, how much the property owner’s perspective--be it a corporation, government or creative artist--is embedded in our view of the world as the natural order of things.

This blog post by David Eaves was published in TECH President on August 6, 2013. Sunil Abraham is quoted.

While sharing and copying technologies are disrupting some of the ways we understanding “content,” when you visit a non-Western country like India, the spectrum of choices become broader. There is less timidity wrestling with questions like: should poor farmers pay inflated prices for patented genetically-engineered seeds? How long should patents be given for life-saving medicines that cost more than many make in a year? Should Indian universities spend millions on academic journals and articles? In the United States or other rich countries we may weigh both sides of these questions--the rights of the owner vs. the moral rights of the user--but there’s no question people elsewhere, such as in India, weigh them different given the questions of life and death or of poverty and development.

Consequently, conversations about open knowledge outside the supposedly settled lands of the “rich” often stretch beyond permission-based “fair use” and “creative commons” approaches. There is a desire to explore potential moral rights to use “content” in addition to just property rights that may be granted under statutes.

A couple of months ago I sat down in Bangalore with Sunil Abraham, the founder and executive director of the Center for Internet & Society (CIS) there, to talk about the center, and his views on the role of technology and openness in politics and society. One part of our conversation led to this WeGov column on “I Paid a Bribe” and the challenge of fighting corruption in India using technology. Here I want to reflect further on how Sunil and his counterparts may be radically challenging how we should think about open information more generally.

As we talked, Sunil outlined how people and organizations were using “open” methodologies to advance social movements or create counter power. To explain his view he sketched out the following “map” of IP rights and freedoms to show people use and view the different “permissions” (some legal, some illegal).

As a high-level overview this map offers a general list of the tools at the disposal of citizens interested in playing with intellectual property, particularly as they pursue social justice issues.

At the top of the chart are the various forms of “permissions” that a property owner may (or may not) grant you. Thus at the far left sits the most restrictive IP regime and, as you move right, the user gets more and more freedoms (or, if you take the perspective of property owners, property loses more and more of its formal legal protections and a different notion, of “moral rights,” arises).

The second row divides the permissions and the actors along what Sunil believes is one of the most important permissions - the requirement to attribute (or the freedom not to).

Finally, at the bottom, I’ve placed various actors along the spectrum to both show where they might be positioned in the access debate and/or how they use these tools to advance their aims. Thus someone like Lawrence Lessig, the intellectual father of Creative Commons, might support many uses of information as long as the owner gives permission; whereas groups like the Pirate Party or the Yes Men edge further out into uses that may not appear legitimate to a property owner.

Particularly interesting is Sunil’s decision to include non-legal “permissions” such as ignoring the property holders rights in his spectrum of openness. He sees this as the position of the Pirate Party, which he suggests advocates that people should have the right to do what they want with intellectual property even if they don’t have permission, with the exception, interestingly, of ignoring attribution.

He also includes two even more radical “permissions” – counterfeiting, that is claiming that you created the work – and false attribution – assigning your work to someone else! Sunil sees Anonymous as often using the former and the Yes Men as using the latter. “They (the Yes Men) are playing with the attribution layer,” he says, by conducting actions such as their fake DOW press release about the Bhopal disaster.

Pushing the identity envelope
To Sunil, the big dividing line is less about legal vs. illegal but around this issue of attribution. “This is the most exciting area because this (the non-attribution area) is where you escape surveillance,” he declares.

“All the modern day regulation over IP is trying to pin an individual against their actions and then trying to attach responsibility so as to prosecute them,” Sunil says. “All that is circumvented when you play with the attribution layer.”

This matters a great deal for individuals and organizations trying to create counter power – particularly against the state or large corporate interests. In this regard Sunil is actually linking the tools (or permissions) along the open spectrum to civil disobedience. Of course, such “permissions” are also used by states all the time, such as pretending that a covert action was the responsibility of someone else, or simply denying responsibility for some action.

This, in turn, has some interesting implications.

The first is, that it allows Sunil to weave together a number of groups that might not normally be seen as connected because he can map their strategies or tools against a common axis. Thus Lawrence Lessig, the Yes Man, companies and journalists can all be organized based on what “permissions” they believe are legitimate. For example, journalists and new publishers are often seen as fairly pro-copyright (it protects their work) but they are quite happy to ignore the proprietary rights of a government or corporate document and publish its contents, if they believe that action is in the public interest. Hence their position on the spectrum as “willing to ignore proprietary rights.” (Leave aside government arguments that publishing such documents is “stealing” when, at least in the US, they are technically already not subject to copyright.) However, a credible newspaper or journalist would never knowingly attribute a quote or document to a different person. Attribution remains sacred, even when legal proprietary rights are not.

It also tests the notions of who is actually an IP radical. As Sunil notes: “The more you move to the right the more radical you are. Because everywhere on the left you actually have to educate people about the law, which is currently unfair to the user, before you even introduce them to the alternatives. You aren’t even challenging the injustice in the law! On the right you are operating at a level that is liberated from identity and accountability. You are hacking identity.”

Sunil is thus justifying how the use of “illegal” permissions may actually be a form of civil disobedience that can be recognized as legitimate. This is something journalists confront regularly as well. Many are willing to publish “illegally” obtained leaked documents when they believe that may serve the public good. What is ethical is not always legal and so there position on this chart is more nuanced than one might initially suspect.

This is not to say that Sunil doesn’t believe in the effectiveness of legal approaches. For him this map represents a more complete range of choices an activist can choose from as they try to develop their strategy.

“So what you do, and the specific change you are trying to precipitate, you’ll have to determine what strategy you need. Sometimes working within the left hand group is sufficient. Having a non-derivative, non-commercial license to enable students to access academic works, in India, is good enough… But then, to do what the Yes Men did to DOW Chemicals? You have to be over on the right side.”

For more details visit https://cis-india.org/news/tech-president-august-6-2013-david-eaves-beyond-property-rights-thinking-about-moral-definitions-openness

Better intellectual property values luring Indian startups abroad

praskrishna — 2015-04-16T01:49:02Z

Prime Minister Narendra Modi says Make in India. But anyone who wants to, finds that their intellectual property is valued much more if the patent is filed in the US, or anywhere else, but India.

The article by Evelyn Fok and Varun Aggarwal was published in the Economic Times on April 10, 2015. Sunil Abraham is quoted.

Take the case of BITS Pilani graduate Sriram Kanuni, for instance, who decided to come back to India after spending 12 years with SAP in Germany. His family thought he was out of his mind, but he wanted to work for India and primarily serve Indian clients.

His core vision hasn't wavered five years down the line, but he has been forced to move a large part of his company's intellectual property (IP) to the US, just to get a better valuation for his next round of funding. And his is not an isolated case. "Global investors seem to value companies with patents in the US much higher. Therefore, it makes more sense to shift patents out of India, in case you're looking to raise money or exit the company," Kanuni, who is the CEO and co-founder of Arteria Technologies, said. Major Indian startups such as Flipkart, Myntra and ZipDial, which have either raised over a billion dollars or exited, already have their IPs outside the country. Experts say that is one of the reasons that attracted investors.

"If a company with its IP in India is acquired by an international firm, and post acquisition the buyer wishes to transfer the IP to a different jurisdiction, such transfer would need to be at a fair value decided by the government and the company is taxed at the rate of 34% on that," one of the bankers who was part of a large exit told ET.

"For tech-centric companies where the value of IP would comprise over 70-80% of their value, such high taxes can possibly make them unattractive for potential investors," they added. With better valuation and exits in mind, startups are moving out their innovation to countries such as Singapore and the US, leaving behind very little intellectual property that the country can proudly call its own.

"You would want to incorporate somewhere with a respected reputation for maintaining legal protection when it comes to copyright and trademarks, especially with global licensees or partners," said Sharad Devarajan, co-founder and CEO of character entertainment company Graphic India, which is incorporated in Singapore. "Incorporation in a country like the US where potential for M&A is higher, especially for core technology startups, will generally make it more attractive to potential buyers as it avoids a lot of legal and financial paperwork," said Brij Bhasin, India investment lead of Japanese venture capital firm Rebright Partners.

Investor concerns over IP are well founded. "Indian courts aren't uniform when it comes to developing jurisprudence around copyright and patent infringement," explained Sunil Abraham, executive director of Bengaluru based research organization Centre for Internet and Society.

"There is a high chance that a judge who doesn't understand the details would give an injunction. Then the loss of six months, etc., can be quite expensive, because in six months' time your competitor might eat into all of your market," he said.

For more details visit https://cis-india.org/a2k/news/economic-times-april-10-2015-evelyn-fok-varun-aggarwal-better-intellectual-property-values-luring-indian-startups-abroad

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

praskrishna — 2014-12-27T14:33:46Z

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

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

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

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

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

Harmonisation

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

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

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

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

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

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

Implementation Issues

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

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

Cross-Border Exchange, TPMs

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

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

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

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

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

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

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

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

Licensing Agreements

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

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

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

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

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

Countries Provide Clarifications, New Legislations

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

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

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

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

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

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

NGO Questions and Comments

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

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

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

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

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

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

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

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

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

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

[Update:]

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

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

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

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

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

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

At the end of the niche optical pirate

siddharth — 2011-08-04T04:44:58Z

In this blog post, Siddharth Chaddha goes enquiring into the modus operandi of a video pirate / film lover / businessman in Bangalore's famed National Market.

Getting to the National Market

Wading through Majestic Bus Stand, Flea Markets, Private Bus Stops and vehicles going around in circles, you could almost miss this board outside one of the shopping plazas. NATIONAL MARKET, the famed "pirate market" at the heart of the city. Most of the business here is illegal and the local police raid the thirty odd shops selling goods, which within the purview of any multilateral agreement under WIPO or TRIPS regime would be an infringement of copyright, at least once a month. The shops run shutter to shutter, each one five by four feet. Crowded with sellers and customers, all pirate markets typically smell the same. Pirated DVDs, DVD players, Chinese mobile phones and PDAs, even VHS players of the yore, smuggled MP3 music systems, fake Ray-Bans and Police sunglasses, gaming consoles. You name it, and National Market has it.

Meet the Pirate

Tall and sporting a stubble, Sooraj (name changed) is a Malayali who has been in the trade for over 8 years. "Earlier, I used to have the best English Movie collection ever. But now, its all going away. Most people have shifted from DVD's to Digital Storage and Bit Torrents", says Sooraj. A family comes across the counter. A middle aged man accompanied by two women in a burqua, one of them carrying a young baby boy in their hand. "Tom and Jerry!", says the man and Sooraj's helper brings out a carton full of animated Hollywood films. Finding Nemo, The Lion King, Madagascar, its all there. "No Tom and Jerry. This doesn't have Tom and Jerry", growls the stout customer. Sooraj jumps into the action, hunts out a DVD from a stack and puts it on the table. "Tom and Jerry Tales - 13 episodes", reads the the outside with a classic Tom chasing Jerry picture on the cover. Satisfied, the family puts it aside and goes on to explore other popular cartoon series. In the end, the man calls for Maharathi, a recent Bollywood flick. He looks at the cover intriguingly and I decide to butt in, "Amazing movie. Just saw it last week. Great plot." The deal is seized and after a bout of bargaining over the price. As the family dissolves into the market, Sooraj turns back and says to me, "A lot of customers bargain. I get a headache. And my shop is the first one in the market, inside people operate on margins of 5-10 rupees. That just ruins everything for us. They don't think of the amount of the risk involved."

The Business of Piracy

Sooraj explains to me how Chennai is the biggest market of the South. "Chennai is a sea. You will get everything there. Once you take a dive in that ocean, it's all there." When I ask him of the chain of distribution, he says, "No one will say that I print the covers of fake DVDs or I copy prints. For me, I just call my distributor and everything comes from Chennai. I don't ask beyond that. The stock comes in the price range of 25-35-40 Rupees. Now, there is only one quality of stock. The market is dying. No one has good stock. Earlier, we used to sell DVDs for Rs.70-80. Now, there is no demand. Even the wholesale business is at a low.'' I ask him, "So what are you going to do, now that soon DVDs will be gone?" Sooraj is not flustered. "We will shut this and start a new business," he says. I quietly step back, as another customer comes asking for audio CDs. He doesn't deal in those.

Enforcement Threat

When the customer is gone, I ask him, "How often does the police raid this market?" He smiles and replies, "Not often anymore. The business is almost dead. But yes, they come sometimes. Then you are taken away and a case ensues." I decide to ask him candidly, "How many times have you been booked?" He smiles again. "5-7 times. I have a few cases pending, dates that I have to go and visit the court. They arrest you for a day but that's all they can do. After all this is not a big crime." He continues dealing with customers who have various demands for music and films. Some he sells to, he guides others to the inside shops. "I sell about a 1000 DVDs everyday. Earlier, the figure used to be much higher. Mostly English. Hindi, Tamil and Telugu too. No Kannada," he volunteers. I probe further, "Why no Kannada?" He says that that he supports protection for their own industry. "And the market price for Kannada films is appropriate. Some are Rupees 60, 90, 110. That's reasonable. We do not need to pirate it."

I ask him for Tamil titles. He asked if I wanted Ghajani. “I saw it when it released. Give me something that's worth watching.” He picks out two. Saroja and Subramaniya Puram. He doesn't make a profit in this deal but something tells me that he is happy to spread the love of good films. "Can I click a picture?" He refuses, saying it would not be a good idea. I shake his hand. Until next time.

For more details visit https://cis-india.org/a2k/blogs/at-the-end-of-the-niche-optical-pirate

Assocham event sparks row over conflict of interest by CCI

praskrishna — 2015-09-19T16:34:07Z

CCI Chairman Ashok Chawla is the key speaker of the conference, organised by industry chamber Assocham with Ericsson being the event partner.

The article by Dilasha Seth and Deepak Patel was published in Business Standard on August 6, 2015.

An upcoming conference on intellectual property has triggered a controversy, as a section of the civil society has urged the Competition Commission of India (CCI) not to participate in the event, sponsored by Swedish multinational Ericsson, alleging it would be a conflict of interest since the watchdog is investigating cases against the telecom company on the very same issues that will be discussed in the function.

CCI Chairman Ashok Chawla is the key speaker of the conference, organised by industry chamber Assocham with Ericsson being the event partner. The conference scheduled for Friday also has three CCI members as participants, according to the event brochure.

In a letter, signed by six civil society organisations, argued that the participation of CCI in any form in a conference organised with the financial support of Ericsson would question the integrity and independence of CCI.

On the issue, Chawla said, "I am not aware of the point raised. (I) will see and take a position."

"The participation of CCI at this conference raises serious concerns of conflict of interest. Further, CCI's sharing of platforms with private actors would compromise the credibility and independence of CCI," said the letter sent to Chawla and also marked to Prime Minister Narendra Modi, the Chief Justice of India and several other ministries.

Ericsson is currently facing three CCI investigations on matters related to Standard Essential Patents and licensing of technologies on fair and equitable terms.

"Ericsson is not only an event partner but also giving a speech at the inaugural session," says the content of the letter. "We understand that the focus of the event is on two issues viz. Standard Essential Patents (SEPs) and the competition aspects of licensing agreements," the group has argued.

A CCI member on the condition of anonymity said, "As per the competition Act, 2002, it is our responsibility to raise awareness regarding competition issues. At such forums, the discussions which happen are of conceptual level only. No specific cases are ever discussed." "We have not got the letter as yet. We will take a decision as soon as we receive it," he added.

Unless there is an interaction, how can there be awareness about these issues faced by the country, asked Assocham.

D S Rawat, the chamber secretary general, said, "This is not the first time that Assocham is organising a function on the very same subject. It has in the past organised six-seven such functions, where CCI had participated."

CCI will give its view points and others including Ericsson will also give their view points, which will not have an impact on the watchdog's decisions on specific cases, he said.

"There will always be these disgruntled people who instead of contributing positively to the society, take negative stance," he added.

When contacted, an Ericsson spokesperson declined to comment on the issue.

Alternative Law Forum (Bengaluru), Centre for Internet and Society (Bengaluru), IT for Change (Bengaluru), Knowledge Commons Collective (New Delhi), National Working Group on Patent Laws (New Delhi) and Software Freedom Law Centre (New Delhi) are the six non-governmental organisations who have collectively raised the issue.

The letter argued that all the judicial or quasi judicial bodies are expected to avoid not only actual conflict of interest but also the perceived conflict of interest.

"As you know, the conflict of interest arises when there is an actual or perceived threat of the primary interest of the organisation (CCI) being influenced by the interest of another organisation/s (Ericsson)," it said.

It also pointed out that the issue of SEPs and licensing practices was an important public interest issue and the restrictive conditions and barriers to access SEPs would affect the technological and industrial development of India. Further, it would affect the consumers by creating economic barriers to access the benefits of communication technology equipment such as mobile phones.

For more details visit https://cis-india.org/a2k/news/business-standard-august-6-2015-dilasha-seth-and-deepak-patel-assocham-event-sparks-row-over-conflict-of-interest-by-cci

Arguments Against the PUPFIP Bill

pranesh — 2011-09-12T11:03:09Z

The Protection and Utilisation of Public Funded Intellectual Property Bill (PUPFIP Bill) is a new legislation being considered by Parliament, which was introduced in the 2008 winter session of the Rajya Sabha. It is modelled on the American Bayh-Dole Act (University and Small Business Patent Procedures Act) of 1980. On this page, we explore some of the reasons that the bill is unnecessary, and how it will be harmful if passed.

Summary

How is the legislation unnecessary?

The Indian government does not have vast reserves of underutilized patents, as the U.S. did in 1980.
Technology transfer is very important, but pushing IPRs aggressively is not the best way of ensuring technology transfer.

How is the legislation harmful?

Excessive patenting lead to gridlocks and retards innovation.
The legislation makes mandatory that which is optional now, and is anyway being followed in many institutions.
Copyright, trademark, etc., seem to be covered under the definition of “public funded IP”.
It will result in a form of double taxation for research, and will increase the consumer cost of all products based on publicly-funded research.
It could have unintended consequences of varied kinds, including discouraging fundamental research as well as discouraging industrial research.
Non-disclosure requirements in the Bill restricts the dissemination of research within the academic community, and curtails freedom of speech.
Exclusive licensing enables restriction on the dissemination of academic research in the marketplace, and increase in cost of products based on public-funded research.

Arguments

How is the legislation unnecessary?

1) The Indian government does not have vast reserves of underutilized patents, as the U.S. did in 1980.

The idea behind the Bayh-Dole Act was that the research funded by the government (and owned, in the US, by the government) was being underutilized. In 1980, over 28,000 unlicensed patents lay with the U.S. government.[1] The Act shifted the title of such works from the government to the University or small business that conducted the research, thus allowing them to take out patents on the research outputs. In India, under present laws, the researcher(s) own the rights over their research whether they be government-funded or not. Usually, due to employment contracts, the research institutes already have the right to patent their inventions. Thus, currently, there is no need for an enabling legislation in this regard, as there was in the U.S.

In fact, currently, the Council of Scientific and Industrial Research (CSIR) has over 5173 patents (counting both those in force and those under dispute), while only 222 patents are licensed (with 68 of them being under dispute). Thus, even with the IP being in the institute's hands, there is a "problem" situation similar to that which necessitated Bayh-Dole in the U.S. Thus, quite contrary to the aims of the Act, further patenting will only lead to a situation of even more underutilized patents.

2) Technology transfer is very important, but pushing IPRs aggressively is not the best way of ensuring technology transfer.

At a recent seminar held at NUJS Kolkata on the PUPFIP Bill, it was revealed that while IIT-Kharagpur’s TTO-equivalent (called the Sponsored Research & Industrial Consultancy division - SRIC) currently handles over Rs.300 crores through 850 projects, only around Rs. 5-15 crores (exact figures weren't available) are currently made through its patent portfolio.[2] Thus patents don't seem, on the face of things, to be the best way of ensuring technology transfer. Indeed, the oft-cited 28,0000 unlicensed patents held by the U.S. government were composed primarily of patents for which industry had refused to take exclusive licences.[3]

Many contend that one of the most important functions of a patent is to get inventors to disclose their inventions rather than keep them as secrets. This reason for awarding a patent is invalidated if stronger protection is granted to trade secrets (no term limit, for instance) than for patents. Secondly, this reason for granting patents is not valid in case of government-funded research in academia and research institutes. The culture of publication and the economy of reputation are sufficient to ensure disclosure. Even without these intrinsic factors, there grant requirements can necessitate publication. If mere publication is believed to be insufficient, then the government would do well to ask for technology dissemination plans before grants are made. At any rate, monopoly rights in the form of patents are thoroughly unnecessary.

How is the legislation harmful?

1) Excessive patenting lead to gridlocks and retard innovation.

It sees protection of IPR as the sole means of encouraging innovation and driving research to the doorstep of consumers. The trend around the world is that of exploring alternative forms of spurring innovation. Even in India, CSIR has gone for an innovative "Open Source Drug Discovery" project, which has proven very successful so far. Furthermore, recent literature shows that excessive patenting is harming research and innovation by creating gridlocks.[4] If platform technologies and basic research (such as SNP) gets mired in patents, then the transaction costs increase (not only in terms of money, but more importantly in administrative terms). This ends up in research clearances getting blocked, and thus retards innovation. It must be remembered that intellectual property is not only an output, but also an input. The more aggressively the outputs are guarded and prevented from being shared, the more the inputs will be affected. The study of patent thickets and gridlocks has reached such a stage that the U.S. law has been changed to reflect this. Firstly, the Bayh-Dole Act was amended in 2000 to state that the objectives of the Bayh-Dole Act were to be carried out "without unduly encumbering future research and discovery". Now, the courts (in the Bilski case) have increased the standard of obviousness in patent law (which means that less patents will be granted). Furthermore, the U.S.P.T.O. and the U.S. Senate are currently considering means of overhauling the U.S. patent system, which many fear is close to breaking down due to over-patenting. All these are signs that the footsteps we are seeking to follow are themselves turning back.

2) The legislation makes mandatory that which is optional now, and is anyway being followed in many institutions.

While the CSIR labs pursue patents aggressively, they also run the OSSD project. The latter might not be permissible if the Act is passed as it stands. Furthermore, this would increase the number of underutilized patents, which is a problem faced currently by CSIR, which has had an aggressive patent policy since the 1990s. Unlicensed patents constitute around 93% of CSIR's total patent portfolio. (In contrast, MIT averages around 50% licensing of patents.) If aggressive patenting is made mandatory, it adds substantially to administrative costs of all institutes which receive any grants from the government. These institutes might not be large enough to merit a dedicated team of professionals to handle

3) Copyright, trademark, etc., seem to be covered under the definition of "public funded IP".

This leads to a ridiculous need to attempt to commercialise all government-funded research literature (and the government funds science research, social sciences, arts, etc.). Furthermore, while the definition of "public funded IP" includes copyrights, trademarks, etc., yet the substantive provisions seem to only include those forms of IP which have to be registered compulsorily (copyright and trademark don't -- copyright comes into existence when an original work is expressed in a medium, and trademark can come into existence by use). Importantly, seeking to commercialise all copyrighted works of research would hamper the movement for open access to scholarly literature. The inititative towards open access to scholarly literature is something that National Knowledge Commission has recommended, and is a move that would result in increased dissemination of public-funded research, which seems to be an aim of the PUPFIP Bill as well.

4) It will result in a form of double taxation for research, and will increase the consumer cost of all products based on publicly-funded research.

This bill would increase the consumer cost of all products based on publicly-funded research, because of the additional burden of patent royalties.

Public funds research -> Institute patents research -> Pharma MNC gets exclusive license over research -> Drug reaches market.

Assuming an exclusive licence: Cost of the drug = cost of manufacturing, storage, etc. + mark-up (monopolistic) cost + cost of licence.

Thus, in effect, the public has to pay twice for the research: it pays once to enable the scientist to conduct the research, and once again in the form of royalties to have that research brought to the marketplace.

5) It could have unintended consequences of varied kinds, including discouraging fundamental research as well as discouraging industrial research.

The former could happen since institutions and individual scientists have a financial incentive to shift their focus away from fundamental research; the latter, conversely, because the filings and bureaucracy involved could drive scientists away from reporting or even engaging in industrial research [pdf]. Faculty and researcher involvement in the business of licensing is a sub-optimal usage of their talents, and there are scientists who would rather stay away from business (as is shown by the intake of former industry-researchers into government-funded labs such as those of CSIR).

6) Non-disclosure requirements in the Bill restricts the dissemination of research within the academic community, and curtails freedom of speech.

This will bring about a shift in science and research which is always done upon others' work. This is why in the U.S., the National Institute of Health (N.I.H.) has sought to ensure (without any legal authority) that it only finances that research that on single nucleotide polymorphism (S.N.P.) which is not patented, and is shared freely amongst scholars. Since this requirement of the N.I.H.'s does not have any legal backing (since it is contradictory to the Bayh-Dole Act), institutions are free to get the grant from N.I.H. and then go ahead and patent their inventions.

7) Exclusive licensing enables restriction on the dissemination of academic research in the marketplace, and increase in cost of products based on public-funded research.

The bill allows for both assignment of licences as well as exclusive licences. Both of these enable monopolistic pricing to be undertaken by the licensee/assignee. There are not even any mechanisms in the Act to ensure, for instance, that a public call is made to ascertain that no parties are willing to consider a non-exclusive licence. Patents are generally said to grant a monopoly right because of the opportunity to recover costs of research and development. When the research is being done by public-funded money, there is no justification for monopoly rights on that research, since there are no excessive costs to recover.

Footnotes:

[1] See So et al. and Thursby and Thursby, quoted in the National Knowledge Commission's letter to the Prime Minister.

[2] See Prof. Vivekanandans' presentation "Patenting and Technology Transfer-the IIT Khargpur Experience"

[3] See Anthony So et al., Is Bayh-Dole Good for Developing Countries, 6 PLoS Biol e262 (2008)

[4] See Michael A. Heller & Rebecca S. Eisenberg, Can Patents Deter Innovation? The Anticommons in Biomedical Research, 280 Science 698 (1998)

Additional Resources

On the PUPFIP Bill

February 5, 2004: NIPER holds parallel session of Indian Science Congress (Express Pharma)
October 27, 2006: Susan Finston, India to Propose New Technology Transfer Legislation (Bayh-Dole 25)
January 16, 2007: National Knowledge Commision's Letter to Indian Prime Minister (National Knowledge Commission)
April 15, 2007: Archita Bhatta, Proposed IPR law raises concern (Down to Earth)
May 31, 2007: Science & Technology needs to be core of the economic development says Kapil Sibal (PIB Press Release)
November 13, 2007: Government Accords Approval to National Biotechnology Development Strategy (PIB Press Release)
February 1, 2008: Yudhijit Bhattacharjee, Indian Government Hopes Bill Will Stimulate Innovation (Science)
February 19, 2008: Shamnad Basheer, Exporting Bayh Dole to India: Whither Transparency? (Part 1) (Part 2) (SpicyIP)
March 17, 2008: Kalpana Pathak, Varsities may soon own patent rights (Business Standard)
March 17, 2008: P.T. Jyothi Datta, Public-funded research may pay dividends for scientists (Business Line)
March 17, 2008: Joff Wild, India considers Bayh-Dole style legislation (IAM Magazine)
April 30, 2008: M.K. Unnikrishnan and Pradeepti Nayak, Lessons from Bayh Dole Act and its relevance to India (PharmaBiz)
July 2008: Sean M. O'Connor, Historical Context of U.S. Bayh-Dole Act: Implications for Indian Government Funded Research Patent Policy (STEM Newsletter)
July 7, 2008: Shamnad Basheer, Mysterious Indian "Bayh Dole" Bill: SpicyIP Procures a Copy (SpicyIP)
July 09, 2008: Latha Jishnu, Does India need a Bayh-Dole Act? (Business Standard)
September 2008: V.C. Vivekanandan, Transplanting Bayh-Dole Act- Issues at Stake Authors (13 Journal of Intell. Prop. 480)
September 18, 2008: Shamnad Basheer, Indian Patent Bill: Let's not be too hasty (SciDev.net)
October 28, 2008: Anthony So et al., Is Bayh-Dole Good for Developing Countries, 6 PLoS Biol e262 (2008)
October 31, 2008: Cabinet gives approval for Protection and Utilization of Public Funded Intellectual Property Bill, 2008 (PIB Press Release)
November 2008: Annette Lin et al., The Bayh-Dole Act and Promoting the Transfer of Technology of Publicly Funded-Research (UAEM White Paper on the Proposed Indian Bayh-Dole Analogue)
November 1, 2008: Editorial: Not in Public Interest (Mint)
November 12, 2008: Ben Butkus, As India Mulls Bill Modeled on Bayh-Dole, Critics Claim It May Stifle Innovation (Biotech Transfer Weekly)
December 16, 2008: Pranesh Prakash, Indian "Bayh Dole" Bill before Parliament (Commons Law)
January 23, 2009: Editorial: Time to Rethink Intellectual Property Laws (SciDev.net)
March 12, 2009: Feroz Ali Khader, Does Patenting Research Change the Culture of Science? (The Hindu)
April 24, 2009: Sunil Abraham & Pranesh Prakash, Does India Need Its Own Bayh-Dole? (Indian Express)
September 21, 2009: C.H. Unnikrishnan, Proposed Patent Bill Is Flawed, Say Experts (Mint)
September 23, 2009: Editorial: An Idea That's A Patent Misfit (Mint)
October 2009: Bhaven N. Sampat, The Bayh-Dole Model in Developing Countries: Reflections on the Indian Bill on Publicly Funded Intellectual Property (UNCTAD - ICTSD Policy Brief No. 5)
January 2010: Amit Shovon Ray & Sabyasachi Saha, Patenting Public-Funded Research for Technology Transfer: A Conceptual-Empirical Synthesis of US Evidence and Lessons for India (ICRIER Working Paper No. 244)
January 2010: Mrinalini Kochupillai, The Protection and Utilization of Public Funded Intellectual Property Bill, 2008: A Critique in the Light of India's Innovation Environment, 15 J. Intell. Prop. Rights 19 (2010)
January 16, 2010: Amit Shovon Ray & Sabyasachi Saha, Intellectual Bottlenecks (Financial Express)
January 21, 2010: Latha Jishnu, Perils of the US Model (Business Standard)
January 22, 2010: Rema Nagarajan, Scientists Fume Over New Patent Bill (Times of India)
January 26, 2010: Shamnad Basheer, The Problem with Patents (Mint)
February 5, 2010: Shalini Butani, Public Research May Become More Private (Business Line)
February 8, 2010: Anika Gupta, Scientists Want Changes in Innovation Bill (Mint)
February 9, 2010: C.H. Unnikrishnan, Parliament Panel Wants Govt Review on Innovation Bill (Mint)
February 15, 2010: Leena Menghaney, A Bad Example from the U.S. (Down to Earth)
February 19, 2010: Pranesh Prakash, A Patent Conundrum (Indian Express)
SpicyIP coverage by tag 'Bayh Dole'
Presentations from NUJS, Kolkata conference on the PUPFIP Bill

On Bayh-Dole

Newspapers and Magazines

Academic Journals

Amy Kapczynski et al., Addressing Global Health Inequities: An Open Licensing Approach for University Innovation, 20 Berkeley Tech. L.J. 1031 (2005)
Anthony So et al., Is Bayh-Dole Good for Developing Countries, 6 PLoS Biol. e262 (2008)
Arti K. Rai & Rebecca S. Eisenberg, Bayh-Dole Reform and the Progress of Biomedicine, 66 Law & Contemp. Probs. 289 (2003)
David C. Mowery & Arvids A. Aiedonis, Numbers, Quality, and Entry: How Has the Bayh-Dole Act Affected U.S. University Patenting and Licensing?, 1 Innovation Pol'y Econ. 187 (2000)
David C. Mowery, et al., Learning to Patent: Institutional Experience, Learning, and the Characteristics of U.S. University Patents After the Bayh-Dole Act, 1981-1992, 48 Mgmt. Sci. 73 (2002)
Donald Kennedy, Editorial: Enclosing the Research Commons, 294 Science 2249 (2001)
F.M. Scherer, The Political Economy of Patent Policy Reform in the United States, 7 Colorado J. Telecomm. High Tech. L. 167 (2009)
Henry Steck, Corporatization of the University: Seeking Conceptual Clarity, 585 Annals of Am. Acad. Pol. & Soc. Sci. 66 (2003)
Jason Owen-Smith, Trends and Transitions in the Institutional Environment for Public and Private Science, 49 Higher Educ. 91 (2005)
Jerry G. Thursby & Marie C. Thursby, University Licensing and the Bayh-Dole Act, 301 Science 1052 (2003)
Jerry G. Thursby & Marie C. Thursby, Who is Selling the Ivory Tower? Sources of Growth in University Licensing, 48 Mgmt. Sci. 90 (2002)
Josh Lerner, Review of 'Ivory Tower', 43 J. Econ. Litt. 510 (2005)
Joshua B. Powers, R&D Funding Source and University Technology Transfer: What is Stimulating Universities to Be More Entrepreneurial?, 45 Research in Higher Educ. 1 (2004)
Lita Nelsen, The Rise of Intellectual Property Protection in the American University, 279 Science 1460 (1998)
Marcia Angell & Arnold S. Relman, Patents, Profits & American Medicine: Conflicts of Interest in the Testing & Marketing of New Drugs, 131 Daedalus 102 (2002)
Maria Jelenik, Review: Two Books on Technology Transfer, 50 Admin. Sci. Q. 131 (2005) (Review of 'Ivory Tower')
Michael A. Heller & Rebecca S. Eisenberg, Can Patents Deter Innovation? The Anticommons in Biomedical Research, 280 Science 698 (1998)
Rebecca Henderson, et al., Universities as a Source of Commercia Technology: A Detailed Analsis of University Patenting, 1965-1988, 80 Rev. Econ. Statistics 119 (1998)
Rebecca S. Eisenberg, Public Research and Private Development: Patents and Technology Transfer in Government-Sponsorded Research, 82 Virginia L. Rev. 1663 (1996)
Rebecca S. Eisenberg & Richard R. Nelson, Public vs. Proprietary Science: A Fruitful Tension?, 131 Daedalus 89 (2002)
Richard Jensen & Marie Thursby, Proofs and Prototypes for Sale: The Licensing of University Inventions, 91 Am. Econ. Rev. 240 (2001)
Roberto Mazzoleni & Richard R. Nelson, Economic Theories about the Benefits and Costs of Patents, 32 J. Econ. Issues 1031 (1998)
Thomas A. Massaro, Innovation, Technology Transfer, and Patent Policy: The University Contribution, 82 Virginia L. Rev. 1729 (1996)
Walter W. Powell & Jason Owen-Smith, Universities and the Market for Intellectual Property in the Life Sciences, 17 J. Pol'y Analysis Mgmt. 253 (1998)
William M. Sage, Funding Fairness: Public Investment, Proprietary Rights and Access to Health Care Technology, 82 Virginia L. Rev. 1737 (1996)
Zach W. Hall & Christopher Scott, University-Industry Partnership, 291 Science 553 (2001)

Resources

For more details visit https://cis-india.org/a2k/publications/pupfip/why-no-pupfip

Arguments Against Software Patents in India

pranesh — 2012-03-13T10:43:12Z

CIS believes that software patents are harmful for the software industry and for consumers. In this post, Pranesh Prakash looks at the philosophical, legal and practical reasons for holding such a position in India. This is a slightly modified version of a presentation made by Pranesh Prakash at the iTechLaw conference in Bangalore on February 5, 2010, as part of a panel discussing software patents in India, the United States, and the European Union.

This blog post is based on a presentation made at the iTechLaw conference held on February 5, 2010. The audience consisted of lawyers from various corporations and corporate law firms. As is their wont, most lawyers when dealing with software patents get straight to an analysis of law governing the patenting of computer programmes in India and elsewhere, and seeing whether any loopholes exist and can be exploited to patent software. It was refreshing to see at least some lawyers actually going into questions of the need for patents to cover computer programs. In my presentation, I made a multi-pronged case against software patents: (1) philosophical justification against software patents based on the nature of software; (2) legal case against software patents; (3) practical reasons against software patents.

Preamble

Through these arguments, it is sought to be shown that patentability of software is not some arcane, technical question of law, but is a real issue that affect the continued production of new software and the everyday life of the coder/hacker/software programmer/engineer as well as consumers of software (which is, I may remind you, everywhere from your pacemaker to your phone). A preamble to the arguments would note that the main question to ask is: why should we allow for patenting of software? Answering this question will lead us to ask: who benefits from patenting of software. The conclusion that I come to is that patenting of software helps three categories of people: (1) those large software corporations that already have a large number of software patents; (2) those corporations that do not create software, but only trade in patents / sue on the basis of patents ("patent trolls"); (3) patent lawyers. How they don't help small and medium enterprises nor society at large (since they deter, rather than further invention) will be borne out by the rest of these arguments, especially the section on practical reasons against software patents.

What are Patents?

Patents are a twenty-year monopoly granted by the State on any invention. An invention has to have at least four characteristics: (0) patentable subject matter; (1) novelty (it has to be new); (2) inventive step / non-obviousness (even if new, it should not be obvious); (3) application to industry. A monopoly over that invention, thus means that if person X has invented something, then I may not use the core parts of that invention ("the essential claims") in my own invention. This prohibition applies even if I have come upon my invention without having known about X's invention. (Thus, independent creation is not a defence to patent infringement. This distinguishes it, for instance, from copyright law in which two people who created the same work independently of each other can both assert copyright.) Patents cover non-abstract ideas/functionality while copyright covers specific expressions of ideas. To clarify: imagine I make a drawing of a particular machine and describe the procedure of making it. Under patent law, no one else can make that particular machine, while under copyright law, no one can copy that drawing.

Philosophical Justification Against Software Patents

Even without going into the case against patents per se (lack of independent creation as a defence; lack of 'harm' as a criterion leading to internalization of all positive externalities; lack of effective disclosure and publication; etc.), which has been done much more ably by others like Bessen & Meurer (especially in their book Patent Failure) and Boldrin & Levine (in their book Against Intellectual Monopoly, the full text of which is available online).

But there is one essentially philosophical argument against software as subject matter of a patent. Software/computer programs ("instructions for a computer"), as any software engineer would tell you, are merely algorithms ("an effective method for solving a problem using a finite sequence of instructions") that are meant to be understood by a computer or a human who knows how to read that code.

Algorithms are not patentable subject matter, as they are mere expressions of abstract ideas, and not inventions in themselves. Computer programs, similarly, are abstract ideas. They only stop being abstract ideas when embodied in a machine or a process in which it is the machine/process that is the essential claim and not the software. That machine or process being patented would not grant protection to the software itself, but to the whole machine or process. Thus the abstract part of that machine/process (i.e., the computer program) could be used in any other machine/process, as it it is not the subject matter of the patent. Importantly, just because software is required to operate some machine would then not mean that the machine itself is not patentable, just that the software cannot be patented in guise of patenting a machine.

Legal Case Against Software Patents

In India, section 3(k) of the Patent Act reads:

(3) The following are not inventions within the meaning of this Act: (k) a mathematical or business method or computer programme (sic) per se or algorithms.

As one can see, computer programs are place in the same category as "mathematical methods", "algorithms", and "business methods", hence giving legal validity to the idea propounded in the previous section that computer programs are a kind of algorithms (just as algorithms are a kind of mathematical method).

Be that as it may, the best legal minds in India have had to work hard at understanding what exactly "computer programme per se" means. They have cited U.S. case law, U.K. case law, E.U. precedents, and sought to arrive at an understanding of how per se should be understood. While understanding what per se means might be a difficult job, it is much easier to see what it does not mean. For that, we can look at the 2004 Patent Ordinance that Parliament rejected in 2005. In that ordinance, sections 3(k) and (ka) read as follows:

(3) The following are not inventions within the meaning of this Act: (k) a computer programme per se other than its technical application to industry or a combination with hardware; (ka) a mathematical method or a business method or algorithms.

Thus, it is clear that the interpretation that "computer programme per se" excludes "a computer programme that has technical application to industry" and "a computer programme in combination with hardware" is wrong. By rejecting the 2004 Ordinance wording, Parliament has clearly shown that "technical application to industry" and "combination with hardware" do not make a computer programme patentable subject matter.

Indeed, what exactly is "technical application to industry"? "Technical" has various definitions, and a perusal through those definitions would show that barely any computer program can be said not to relate to a technique, not involve "specialized knowledge of applied arts and sciences" (it is code, after all; not everyone can write good algorithms), or not relate to "a practical subject that is organized according to scientific principles" or is "technological". Similarly, all software is, by definition, meant to be used in combination with hardware. Thus, it being used in combination with hardware must not, as argued above, give rise to patentability of otherwise unpatentable subject matter category.

In 2008, the Patent Office published a new 'Draft Manual Of Patent Practice And Procedure' in which it sought to allow patenting of certain method claims for software inventions (while earlier the Patent Office objected to method claims, allowing only device claims with hardware components). This Draft Manual was withdrawn from circulation, with Shri N.N. Prasad (then Joint Secretary of DIPP, the department administering the Patent Office) noting that the parts of the Manual on sections 3(d) and 3(k) had generated a lot of controversy, and were ultra vires the scope of the Manual (which could not override the Patent Act). He promised that those parts would be dropped and the Manual would be re-written. A revised draft of the Manual has not yet been released. Thus the interpretation provided in the Draft Manual (which was based heavily on the interpretation of the U.K. courts) cannot not be relied upon as a basis for arguments in favour of the patentability of software in India.

In October 2008, CIS helped organize a National Public Meeting on Software Patents in which Indian academics, industry, scientists, and FOSS enthusiasts all came to the conclusion that software patents are harmful for both the industry as well as consumers.

Practical Reasons Against Software Patents

This is going to be an attempt at distilling and simplifying some of the main practical arguments against patenting of software.

There are traditionally four incentives that the patent system caters to: (1) incentive to invent; (2) incentive to disclose; (3) incentive to commercialize; and (4) incentive to invent substitutes. Apart from the last, patenting of software does not really aid any of them.

Patent Landmines / Submarine Patents / Patent Gridlocks / No Exception for Independent Creation

Given that computer programs are algorithms, having monopolies over such abstract ideas is detrimental to innovation. Just the metaphors say a lot about software patents: landmines (they cannot be seen/predicted); submarines (they surface out of the blue); gridlocks (because there are so many software patents around the same area of computing, they prevent further innovation in that area, since no program can be written without violating one patent or the other).

Imagine the madness that would have ensued had patents been granted when computer programming was in its infancy. Imagine different methods of sorting (quick sort, bubble sort) that are part of Computer Science 101 had been patented. While those particular instances aren't, similar algorithms, such as data compression algorithms (including the infamous LZW compression method), have been granted patents. Most importantly, even if one codes certain functionality into software independently of the patent holder, that is still violative of the patent. Computer programs being granted patents makes it extremely difficult to create other computer programs that are based on the same abstract ideas. Thus incentives # (1) and (3) are not fulfilled, and indeed, they are harmed. There is no incentive to invent, as one would always be violating one patent or the other. Given that, there is no incentive to commercialize what one has invented, because of fear of patent infringement suits.

An apt illustration of this is the current difficulty of choosing a royalty-free video format for HTML 5, as it shows, in practical terms, how difficult it is to create a video format without violating one patent or the other. While the PNG image format was created to side-step the patent over the LZW compression method used in the GIF image format, bringing Ogg Theora or Dirac (both patent-free video format) to surpass the levels of H.264/MPEG-4 AVC or VC-1 will be very difficult without infringing dozens if not hundreds of software patents. Chris DiBona of Google, while talking about improving Ogg Theora as part of its inclusion in HTML 5 specifications said, "Here’s the challenge: Can Theora move forward without infringing on the other video compression patents?" Just the number of companies and organization that hold patents over H.264 is astounding, and includes: Columbia University, Electronics and Telecommunications Research Institute of Korea (ETRI), France Télécom, Fujitsu, LG Electronics, Matsushita, Mitsubishi, Microsoft, Motorola, Nokia, Philips, Robert Bosch GmbH, Samsung, Sharp, Sony, Toshiba, and Victor Company of Japan (JVC). As is the amount of royalties to be paid ("[t]he maximum royalty for these rights payable by an Enterprise (company and greater than 50% owned subsidiaries) is $3.5 million per year in 2005-2006, $4.25 million per year in 2007-08 and $5 million per year in 2009-10"; with royalty per unit of a decoder-encoder costing upto USD 0.20.)

Indeed, even the most diligent companies cannot guard themselves against software patents. FFII estimates that a very simple online shopping website would violate twenty different patents at the very least. Microsoft recently lost a case against i4i when i4i surfaced with a patent covering custom XML as implemented in MS Office 2003 and MS Office 2007. As a result Microsoft had to ship patches to its millions of customers, to disable the functionality and bypass that patent. The manufacturers of BlackBerry, the Canadian company Research in Motion, had to shell out USD 617 million as settlement to NTP over wireless push e-mail, as it was otherwise faced with the possibility of the court shutting down the BlackBerry service in the U.S. This happened despite there being a well-known method of doing so pre-dating the NTP patents. NTP has also filed cases against AT&T, Sprint Nextel, T-Mobile, Verizon Wireless, and Palm Inc. Microsoft was also hit by Visto Corporation over those same NTP patents, which had been licensed to Visto (a startup).
- Don't These Cases Show How Software Patents Help Small Companies?
  
  The astute reader might be tempted to ask: are not all of these examples of small companies getting their dues from larger companies? Doesn't all of this show that software patents actually help small and medium enterprises (SMEs)? The answer to that is: no. To see why, we need to note the common thread binding i4i, NTP, and Visto. None of them were, at the time of their lawsuits, actually creating new software, and NTP was an out-and-out "non-practising entity"/"patent holding company" AKA, patent troll. i4i was in the process of closing shop, and Visto had just started up. None of these were actually practising the patent. None of these were producing any other software. Thus, none of these companies had anything to lose by going after big companies. In other words, the likes of Microsoft, RIM, Verizon, AT&T, etc., could not file counter-suits of patent infringement, which is normally what happens when SMEs try to assert patent rights against larger corporations. For every patent that the large corporation violates of the smaller corporation, the smaler corporation would be violating at least ten of the larger corporation's. Software patents are more helpful for software companies as a tool for cross-licensing rather than as a way of earning royalties. Even this does not work as a strategy against patent trolls.
Thus, the assertion that was made at the beginning is borne out: software patents help only patent trolls, large corporations that already have large software patent portfolios, and the lawyers who draft these patents and later argue them out in court.
Term of Patents

Twenty years of monopoly rights is outright ludicrous in an industry where the rate of turnover of technology is much faster -- anywhere between two years and five months.
Software Industry Progressed Greatly Without Patents

In India, software patents have never been asserted in courts (even though many have been illegally granted), yet the software industry in India is growing in leaps and bounds. Similarly, most of the big (American) giants of the software industry today grew to their stature by using copyright to "protect" their software, and not patents.
Copyright Exists for Software

As noted above, the code/expression of any software is internationally protected by copyright law. There is no reason to protect the ideas/functionality of that software as well.
Insufficient Disclosure

When ordinary computer programmers cannot understand what a particular software patent covers (which is the overwhelming case), then the patent is of no use. One of the main incentives of the patent system is to encourage gifted inventors to share their genius with the world. It is not about gifted inventors paying equally gifted lawyers to obfuscate their inventions into gobbledygook so that other gifted inventors can at best hazard a guess as to precisely what is and is not covered by that patent. Thus, this incentive (#2) is not fulfilled by the current system of patents either -- not unless there is a major overhaul of the system. This ties in with the impossibility of ensuring that one is not violating a software patent. If a reasonably smart software developer (who are often working as individuals, and as part of SMEs) cannot quickly ascertain whether one is violating patents, then there is a huge disincentive against developing software in that area at all.
Software Patents Work Against Free/Libre/Open Source Software

Software patents hinder the development of software and FOSS licences, as the licensee is not allowed to restrict the rights of the sub-licensees over and above the restrictions that the licensee has to observe. Thus, all patent clearances obtained by the licensee must be passed on to the sub-licensees. Thus, patented software, though most countries around the world do not recognize them, are generally not included in the default builds of many FOSS operating systems. This inhabits the general adoption of FOSS, since many of the software patents, even though not enforceable in India, are paid heed to by the software that Indians download, and the MP3 and DivX formats are not enabled by default in standard installations of a Linux OS such as Ubuntu.

Conclusion

Currently, the U.S. patent system is being reviewed at the administrative level, the legislative level, as well as the judicial level. At the judicial level, the question of business method patents (and, by extension, software patents) is before the Supreme Court of the United States of America in the form of Bilski v. Kappos. Judge Mayer of the Court of Appeals for the Federal Circuit (CAFC, which heard In re Bilksi) noted that "the patent system has run amok". The Free Software Foundation submitted a most extensive amicus curiae brief to the U.S. Supreme Court, filled with brilliant analysis of software patents and arguments against the patentability of software that is well worth a read.

For more details visit https://cis-india.org/a2k/blogs/arguments-against-software-patents

April 2010 Bulletin

praskrishna — 2012-08-13T04:51:19Z

Greetings from the Centre for Internet and Society! We bring you updates of our research, events and news for the month of April 2010.

News Updates

Worries voiced over ID Project
The Government of India's Unique Identification (UID) Project came under flak at a workshop organised jointly by the Citizen Action Forum (CAF), the People's Union of Civil Liberties - Karnataka, the Alternative Law Forum and the Centre for Internet and Society - An article in The Hindu - 17th April.
http://cis-india.org/news/worries-voiced-over-id-project

UID: A debate on the Fundamental Rights
UID: A debate on the Fundamental Rights - was jointly organized by the Citizen Action Forum, People's Union for Civil Liberties - Karnataka, Alternative Law Forum and the Centre for Internet and Society on April 16th at IAT, Queens Road, Bangalore - An article in the Prajavani news paper - April 17th.
http://cis-india.org/news/uid-a-debate-on-fundamental-rights

UID is an invasion of Privacy: Experts
The Nandan Nilekani headed Unique Identification Authority of India (UIDAI) came in for much criricism at the first of a series of debates on the issue organised in the city on Friday - Deccan Chronicle, April 17th.
http://cis-india.org/news/uid-is-an-invasion-of-privacy-experts

Experts debate on UID and rights
Bangalore, Apr 16, DHNS: A debate on ‘UID and Fundamental Rights’ organised by several city-based organisations, discussed the social, ethical issues, economic and legal issues that accompanies the UID.
http://cis-india.org/news/experts-debate-on-uid-and-rights

Amendment to Copyright Act opposed
A report on the press conference held on 15th April, at the Press Club, Bangalore: The Hindu
http://cis-india.org/news/amendment-to-copyright-act-opposed

They fight for the visually challenged
Times News Network - A report on the press conference held at the Press Club, Bangalore on 15th April, 2010.
http://cis-india.org/news/they-fight-for-the-visually-challenged

Digital Natives Research Project Coordinator
The Centre for Internet and Society, Bangalore, in collaboration with Hivos Netherlands, is looking for a Research Project Coordinator to help develop a knowledge network and coordinate international workshops for the project "Digital Natives with a Cause?"
http://cis-india.org/news/research-coordinator

Expel or not? That is the question
The decision of an international school to expel 14 students for their alleged ‘promiscuous’ behaviour has led to much debate and discussion.
http://cis-india.org/news/expel-or-not

Nokia eyes GeNext to tap mobile email mkt
Finnish handset giant banks on youth to be in the technology race
http://cis-india.org/news/nokia-eyes-genNext

Research

Critical Point of View: Videos
The Second event for the Critical Point of View reader on Wikipedia was held in Amsterdam, by the Institute of Network Cultures and the Centre for Internet and Society. A wide range of scholars, academics, researchers, practitioners, artists and users came together to discuss questions on design, analytics, access, education, theory, art, history and processes of knowledge production. The videos for the full event are now available for free viewing and dissemination.

Colour Me Political
What are the tools that Digital Natives use to mobilise groups towards a particular cause? How do they engage with crises in their immediate environments? Are they using their popular social networking sites and web 2.0 applications for merely entertainment? Or are these tools actually helping them to re-articulate the realm of the political? Nishant Shah looks at the recent Facebook Colour Meme to see how new forms of political participation and engagement are being initiated by young people across the world.
http://cis-india.org/research/dn/dn2

Meet the Web 2.0 Suicide Machine
Digital Natives live their lives differently. But sometimes, they also die their lives differently! What happens when we die online? Can the digital avatar die? What is digital life? The Web 2.0 Suicide machine that has now popularly been called the 'anti-social-networking' application brings some of these questions to the fore. As a part of the Hivos-CIS "Digital Natives with a Cause?" research programme, Nishant Shah writes about how Life on the Screen is much more than just a series of games.
http://cis-india.org/research/dn/dn1

Digital Natives with a Cause?
Digital Natives With A Cause? - a product of the Hivos-CIS collaboration charts the scholarship and practice of youth and technology with a specific attention for developing countries to create a framework that consolidates existing paradigms and informs further research and intervention within diverse contexts and cultures.
http://cis-india.org/research/dn/dnrep

Advocacy

Accessibility

e-Accessibility: A Wiki Project
Envisaged and funded by the National Internet Exchange of India, and executed by the Centre for Internet and Society, a Wiki site pertaining to issues of disability and e-accessibility has recently been launched.
http://cis-india.org/advocacy/accessibility/blog/e-accessibility-a-wiki-project

Copyright Law as a tool for Inclusion
Can Copyright Law be used as a tool for Inclusion? Rahul Cherian examines this in his blog on copyright.
http://cis-india.org/advocacy/accessibility/blog/copyright-law-as-tool-for-inclusion

Web Accessibility as a Government Mandate?
Is Web accessibility just a Government Mandate? Should private sites be ignored? Wesolowski examines this in light of the steps taken by ictQATAR to make its website accessible to W3C standards, and hopes that Qatar and eventually all other Arab nations will follow suit and make Web accessibility much more of a mandate.
http://cis-india.org/advocacy/accessibility/blog/web-accessibility-government-mandate

Intellectual Property

When Copyright Goes Bad
A part of the Access to Knowledge Project, this short film by Consumers International is available on DVD and online at A2Knetwork.org/film.
http://cis-india.org/advocacy/ipr/blog/when-copyright-goes-bad

Openness

Research Project on Open Video in India
Open Video Alliance and the Centre for Internet and Society are calling for researchers for a project on open video in India, its potentials, limitations, and recommendations on policy interventions.
http://cis-india.org/advocacy/openness/blog/open-video-research

Does the Social Web need a Googopoly?
While the utility of the new social tool Buzz is still under question, the bold move into social space taken last week by the Google Buzz team has Gmail users questioning privacy implications of the new feature. In this post, I posit that Buzz highlights two privacy challenges of the social web. First, the application has sidestepped the consensual and contextual qualities desirable of social spaces. Secondly, Google’s move highlights the increasingly competitive and convergent nature of the social media landscape.
http://cis-india.org/advocacy/openness/blog/does-the-social-web-need-a-googopoly

The (in)Visible Subject: Power, Privacy and Social Networking
In this entry, I will argue that the interplay between privacy and power on social network sites works ultimately to subject individuals to the gaze of others, or to alternatively render them invisible. Individual choices concerning privacy preferences must, therefore, be informed by the intrinsic relationship which exists between publicness/privateness and subjectivity/obscurity.
http://cis-india.org/advocacy/openness/blog/the-in-visible-subject-power-privacy-and-social-networking

Internet Governance

Does the Safe-Harbor Program Adequately Address Third Parties Online?
While many citizens outside of the US and EU benefit from the data privacy provisions the Safe Harbor Program, it remains unclear how successfully the program can govern privacy practices when third-parties continue to gain more rights over personal data. Using Facebook as a site of analysis, I will attempt to shed light on the deficiencies of the framework for addressing the complexity of data flows in the online ecosystem.
http://cis-india.org/advocacy/igov/blog/does-the-safe-harbor-program-adequately-address-third-parties-online

Sense and censorship
Sunil Abraham examines Google's crusade against censorship in China in wake of the attacks on its servers in this article published in the Indian Express.
http://cis-india.org/advocacy/igov/blog/sense-and-censorship

Report on the Fourth Internet Governance Forum for Commonwealth IGF
This report by Pranesh Prakash reflects on the question of how useful is the IGF in the light of meetings on the themes of intellectual property, freedom of speech and privacy.
http://cis-india.org/advocacy/igov/blog/report-on-fourth-IGF

Telecom

The Right Ring Tone
Focus on improving service quality with a strong partner, and not on one-shot stake sales, says Shyam Ponappa in his article published in the Business Standard on April 1, 2010.
http://cis-india.org/advocacy/telecom/blog/ring-tone

Other Advocacy

Maps for Making Change Wiki Now Open to the Public
Since December 2009, CIS has been coordinating and nurturing the Maps for Making Change project, organised in collaboration with Tactical Tech. During the past four months, participants have been on a challenging yet fertile and inspiring journey that is now slowly coming to an end. Would you like to know more about what has happened in the time that has passed? The Maps for Making Change wiki is a good place to start.
http://cis-india.org/advocacy/others/maps-for-making-change-wiki-now-open-to-the-public

For more details visit https://cis-india.org/about/newsletters/april-2010-bulletin

Announcing the Tracks for the Global Congress on Intellectual Property and the Public Interest 2015

sinha — 2014-08-22T09:47:27Z

CIS recently announced that the Centre for Internet and Society will be hosting the fourth edition of the Global Congress on Intellectual Property and the Public Interest at New Delhi, India, tentatively in the first two weeks of December, 2015. This post declares the track events to be conducted, seeks your participation and invites contributions from potential funders.

The Global Congress on Intellectual Property and the Public Interest ("Global Congress") was instituted in 2011 at Washington D.C. Since its inception, three editions of the Global Congress have engaged national and international governmental entities, the private sector, civil society, and academia in providing perspectives and future scenarios for intellectual property, innovation and development.

The five tracks at the Global Congress 2015 will be:

a) User Rights
b) Patents (including Access to Medicines, but wider in scope)
c) Enforcement
d) Traditional Knowledge
e) Openness

We will soon post updates on the track leaders. We invite interested participants to send proposals for presentations, workshops and other side events for the Global Congress. Please share with us funding proposals for conferences/events and details of potential funders, or help out with funding, if possible.

You may contact the following CIS members to send in your queries and suggestions for the event:

CIS Global Congress Planning Team

Anubha Sinha- anubha@cis-india.org
M.P. Nagaraj- nagaraj@cis-india.org
Maggie Huang- maggie@cis-india.org
Pranesh Prakash- pranesh@cis-india.org
Rohini Lakshane- rohini@cis-india.org
Sunil Abraham- sunil@cis-india.org
Nehaa Chaudhari- nehaa@cis-india.org

For more details visit https://cis-india.org/a2k/announcing-the-tracks-for-the-global-congress-on-intellectual-property-and-the-public-interest-2015

Analysis of the Copyright (Amendment) Bill, 2010

pranesh — 2011-09-21T06:01:54Z

CIS analyses the Copyright (Amendment) Bill, 2010, from a public interest perspective to sift the good from the bad, and importantly to point out what crucial amendments should be considered but have not been so far.

The full submission that CIS and 21 other civil society organizations made to the Rajya Sabha Standing Committee on HRD (which is studying the Bill) is available here. Given below is the summary of our submissions:

Existing Copyright Act

The Indian Copyright Act, 1957 has been designed from the perspective of a developing country. It has always attempted a balance between various kinds of interests. It has always sought to ensure that rights of authors of creative works is carefully promoted alongside the public interest served by wide availability and usability of that material. For instance, our Copyright Act has provisions for:

compulsory and statutory licensing: recognizing its importance in making works available, especially making them available at an affordable rate.
cover versions: recognizing that more players lead to a more vibrant music industry.
widely-worded right of fair dealing for private use: recognizing that individual use and large-scale commercial misuse are different.

These provisions of our Act have been lauded, and India has been rated as the most balanced copyright system in a global survey conducted of over 34 countries by Consumers International.

The Indian Parliament has always sought to be responsive to changing technologies by paying heed to both the democratisation of access as well as the securing of the interests of copyright holders. This approach needs to be lauded, and importantly, needs to be maintained.

Proposed Amendments

Some positive amendments

Fair Dealings, Parallel Importation, Non-commercial Rental: All works (including sound recordings and cinematograph films) are now covered the fair dealings clause (except computer programmes), and a few other exceptions; parallel importation is now clearly allowed; and non-commercial rental has become a limitation in some cases.
Persons with disabilities: There is finally an attempt at addressing the concerns of persons with disabilities. But the provisions are completely useless the way they are currently worded.
Public Libraries: They can now make electronic copies of works they own, and some other beneficial changes relating to public libraries.
Education: Some exceptions related to education have been broadened (scope of works, & scope of use).
Statutory and compulsory licensing: Some new statutory licensing provisions (including for radio broadcasting) and some streamlining of existing compulsory licensing provisions.
Copyright societies: These are now responsible to authors and not owners of works.
Open licences: Free and Open Source Software and Open Content licensing is now simpler.
Partial exemption of online intermediaries: Transient and incidental storage of copyrighted works has been excepted, mostly for the benefit of online intermediaries.
Performer’s rights: The general, and confusing, exclusive right that performers had to communicate their performance to the public has been removed, and instead only the exclusive right to communicate sound/video recordings remains.
Enforcement: Provisions on border measures have been made better, and less prone to abuse and prevention of legitimate trade.

Some negative amendments

WCT and WPPT compliance: India has not signed either of these two treaties, which impose TRIPS-plus copyright protection, but without any corresponding increase in fair dealing / fair use rights.
Increase in duration of copyright: This will significantly reduce the public domain, which India has been arguing for internationally.
Technological Protection Measures: TPMs, which have been shown to be anti-consumer in all countries in which they have been introduced, are sought to be brought into Indian law.
Version recordings: The amendments make cover version much more difficult to produce.
Moral rights: Changes have been made to author’s moral rights (and performer’s moral rights have been introduced) but these have been made without requisite safeguards.

Missed opportunities

Government-funded works: Taxpayers are still not free to use works that were paid for by them. This goes against the direction that India has elected to march towards with the Right to Information Act.
Copyright terms: The duration of all copyrights are above the minimum required by our international obligations, thus decreasing the public domain which is crucial for all scientific and cultural progress.
Criminal provisions: Our law still criminalises individual, non-commercial copyright infringement.
Libraries and archives: The exceptions for ‘public libraries’ are still too narrow in what they perceive as ‘public libraries’.
Educational exceptions: The exceptions for education still do not fully embrace distance and digital education.
Communication to the public: No clear definition is given of what constitute a ‘public’, and no distinction is drawn between commercial and non-commercial ‘public’ communication.
Internet intermediaries: More protections are required to be granted to Internet intermediaries to ensure that non-market based peer-production projects such as Wikipedia, and other forms of social media and grassroots innovation are not stifled.
Fair dealing and fair use: We would benefit greatly if, apart from the specific exceptions provided for in the Act, more general guidelines were also provided as to what do not constitute infringement. This would not take away from the existing exceptions.

For more details visit https://cis-india.org/a2k/blogs/copyright-bill-analysis

Analysis of the Copyright (Amendment) Bill 2012

pranesh — 2013-11-12T14:13:04Z

There are some welcome provisions in the Copyright (Amendment) Bill 2012, and some worrisome provisions. Pranesh Prakash examines five positive changes, four negative ones, and notes the several missed opportunities. The larger concern, though, is that many important issues have not been addressed by these amendments, and how copyright policy is made without evidence and often out of touch with contemporary realities of the digital era.

The Copyright (Amendment) Bill 2012 has been passed by both Houses of Parliament, and will become law as soon as the President gives her assent and it is published in the Gazette of India. While we celebrate the passage of some progressive amendments to the Copyright Act, 1957 — including an excellent exception for persons with disabilities — we must keep in mind that there are some regressive amendments as well. In this blog post, I will try to highlight those provisions of the amendment that have not received much public attention (unlike the issue of lyricists’ and composers’ ‘right to royalty’).

Welcome Changes

Provisions for Persons with Disabilities

India now has amongst the most progressive exception for persons with disabilities, alongside countries like Chile. Under the amendments, sections 51(1)(zb) and 31B carve out exceptions and limitations for persons with disabilities. Earlier s.52(1)(zb) dealt only with formats that were “special designed only for the use of persons suffering from visual, aural, or other disabilities”. Thanks to a campaign mounted by disability rights groups and public interest groups such as CIS, it now covers “any accessible format”. Section 52(1)(zb) allows any person to facilitate access by persons with disabilities to copyrighted works without any payment of compensation to the copyright holder, and any organization working the benefit of persons with disabilities to do so as long as it is done on a non-profit basis and with reasonable steps being taken to prevent entry of reproductions of the copyrighted work into the mainstream. Even for-profit businesses are allowed to do so if they obtain a compulsory licence on a work-by-work basis, and pay the royalties fixed by the Copyright Board. The onerousness of this provision puts its utility into question, and this won’t disappear unless the expression “work” in s.31B is read to include a class of works.

Given that the Delhi High Court has — wrongly and per incuriam, since it did not refer to s.14(a)(ii) as it was amended in 1994 — held parallel importation to be barred by the Copyright Act, it was important for Parliament to clarify that the Copyright Act in fact follows international exhaustion. Without this, even if any person can facilitate access for persons with disabilities to copyrighted works, those works are restricted to those that are circulated in India. Given that not many books are converted into accessible formats in India (not to mention the costs of doing so), and given the much larger budgets for book conversion in the developed world, this is truly restrictive.

Extension of Fair Dealing to All Works

The law earlier dealt with fair dealing rights with regard to “literary, dramatic, musical or artistic works”. Now it covers all works (except software), in effect covering sound recordings and video as well. This will help make personal copies of songs and films, to make copies for research, to use film clips in classrooms, etc.

Creative Commons, Open Licensing Get a Boost

The little-known s.21 of the Copyright Act, which deals with the right of authors to relinquish copyright, has been amended. While earlier one could only relinquish parts of one’s copyright by submitting a form to the Registrar of Copyrights, now a simple public notice suffices. Additionally, s.30 of the Act, which required licences to be in writing and signed, now only requires it to be in writing. This puts Creative Commons, the GNU Public Licence, and other open licensing models, on a much surer footing in India.

Physical Libraries Should Celebrate, Perhaps Virtual Libraries Too

Everywhere that the word “hire” occurs (except s.51, curiously), the word “commercial rental” has been substituted. This has been done, seemingly, to bring India in conformance with the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT). The welcome side-effect of this is that the legality of lending by non-profit public libraries has been clarified. The amendment states:

"2(1)(fa) “commercial rental” does not include the rental, lease or lending of a lawfully acquired copy of a computer programme, sound recording, visual recording or cinematograph film for non-profit purposes by a non-profit library or non-profit educational institution."

Even after this, the overwhelming majority of the ‘video lending libraries’ that you see in Indian cities and towns continue to remain illegal.

Another welcome provision is the amended s.52(1)(n), which now allows “non-commercial public libraries” to store an electronic copy of a work if it already has a physical copy of the work. However, given that this provision says that the storage shall be “for preservation”, it seems limited. However, libraries might be able to use this — in conjunction with the fact that under s.14 of the Copyright Act lending rights of authors is limited to “commercial rental” and s.51(b) only covers lending of “infringing copies” — to argue that they can legally scan and lend electronic copies of works in the same manner that they lend physical copies. Whether this argument would succeed is unclear. Thus, India has not boldly gone where the European Commission is treading with talks of a European Digital Library Project, or where scholars in the US are headed with the Digital Public Library of America. But we might have gone there quietly. Thus, this amendment might help foster an Indian Internet Archive, or help spread the idea of the Open Library in India.

On a final note, different phrases are used to refer to libraries in the amendment. In s.2(1)(fa), it talks about "non-profit library"; in s.52(1)(n) and (o), it refers to "non-commercial public library"; and in s.52(1)(zb), it talks of "library or archives", but s.52(1)(zb) also requires that the works be made available on a "non-profit basis". The differentiation, if any, that is sought to be drawn between these is unclear.

Limited Protection to Some Internet Intermediaries

There are two new provisions, s.52(1)(b) and 52(1)(c), which provide some degree of protection to 'transient or incidental' storage of a work or performance. Section 52(1)(b) allows for "the transient or incidental storage of a work or performance purely in the technical process of electronic transmission or communication to the public", hence applying primarily to Internet Service Providers (ISPs), VPN providers, etc. Section 52(1)(c) allows for "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". This seems to make it applicable primarily to search engines, with other kinds of online services being covered or not covered depending on one’s interpretation of the word 'incidental'.

Compulsory Licensing Now Applies to Foreign Works Also

Sections 31 ("compulsory licence in works withheld from public") and 31A ("compulsory licence in unpublished Indian works") used to apply to Indian works. Now they apply to all works, whether Indian or not (and now s.31A is about "compulsory licence in unpublished or published works", mainly orphan works). This is a welcome amendment, making foreign works capable of being licensed compulsorily in case it is published elsewhere but withheld in India. Given how onerous our compulsory licensing sections are, especially sections 32 and 32A (which deal with translations, and with literary, scientific or artistic works), it is not a surprise that they have not been used even once. However, given the modifications to s.31 and s.31A, we might just see those starting to be used by publishers, and not just radio broadcasters.

Worrisome Changes

Term of Copyright for Photographs Nearly Doubled

The term of copyright for photographs has now gone from sixty years from publication to sixty years from the death of the photographer. This would mean that copyright in a photograph clicked today (2012) by a 20 year old who dies at the 80 will only expire on January 1, 2133. This applies not only to artistic photographs, to all photographs because copyright is an opt-out system, not an opt-in system. Quite obviously, most photoshopping is illegal under copyright law.

This has two problems. First, there was no case made out for why this term needed to be increased. No socio-economic report was commissioned on the effects of such a term increase. This clause was not even examined by the Parliamentary Standing Committee. While the WCT requires a ‘life + 50′ years term for photographs, we are not signatories to the WCT, and hence have no obligation to enforce this. We are signatories to the Berne Convention and the TRIPS Agreement, which require a copyright term of 25 years for photographs. Instead, we have gone even above the WCT requirement and provide a life + 60 years term.

The second problem is that it is easier to say when a photograph was published than to say who the photographer was and when that photographer died. Even when you are the subject of a photograph, the copyright in the photograph belongs to the photographer. Unless a photograph was made under commission or the photographer assigned copyright to you, you do not own the copyright in the photographs. (Thanks to Bipin Aspatwar, for pointing out a mistake in an earlier version, with "employment" and "commission" being treated differently.) This will most definitely harm projects like Wikipedia, and other projects that aim at archiving and making historical photographs available publicly, since it is difficult to say whether the copyright in a photograph still persists.

Cover Versions Made More Difficult: Kolaveri Di Singers Remain Criminals

The present amendments have brought about the following changes, which make it more difficult to produce cover versions:

Time period after which a cover version can be made has increased from 2 years to 5 years.
Requirement of same medium as the original. So if the original is on a cassette, the cover cannot be released on a CD.
Payment has to be made in advance, and for a minimum of 50000 copies. This can be lowered by Copyright Board having regard to unpopular dialects.
While earlier it was prohibited to mislead the public (i.e., pretend the cover was the original, or endorsed by the original artists), now cover versions are not allowed to "contain the name or depict in any way any performer of an earlier sound recording of the same work or any cinematograph film in which such sound recording was incorporated".
All cover versions must state that they are cover versions.
No alterations are allowed from the original song, and alteration is qualified as ‘alteration in the literary or musical work’. So no imaginative covers in which the lyrics are changed or in which the music is reworked are allowed without the copyright owners’ permission. Only note-for-note and word-for-word covers are allowed.
Alterations were allowed if they were "reasonably necessary for the adaptation of the work" now they are only allowed if it is "technically necessary for the purpose of making of the sound recording".

This ignores present-day realities. Kolaveri Di was covered numerous times without permission, and each one of those illegal acts helped spread its popularity. The singers and producers of those unlicensed versions could be jailed under the current India Copyright Act, which allows even non-commercial copyright infringers to be put behind bars. Film producers and music companies want both the audience reach that comes from less stringent copyright laws (and things like cover versions), as well as the ability to prosecute that same behaviour at will. It is indeed ironic that T-Series, the company that broke HMV’s stranglehold over the Indian recording market thanks to cover versions, is itself one of the main movers behind ever-more stringent copyright laws.

Digital Locks Now Provided Legal Protection Without Accountability

As I have covered the issue of Technological Protection Measures (TPM) and Rights Management Information (RMI), which are ‘digital locks’ also known as Digital Rights Management (DRM), in great detail earlier, I won’t repeat the arguments at length. Very briefly:

It is unclear that anyone has been demanding the grant of legal protection to DRMs in India, and We have no obligation under any international treaties to do so. It is not clear how DRM will help authors and artists, but it is clear how it will harm users.
While the TPM and RMI provisions are much more balanced than the equivalent provisions in laws like the US’s Digital Millennium Copyright Act (DMC), that isn’t saying much. Importantly, while users are given certain rights to break the digital locks, they are helpless if they aren’t also provided the technological means of doing so. Simply put: music and movie companies have rights to place digital locks, and under some limited circumstances users have the right to break them. But if the locks are difficult to break, the users have no choice but to live with the lock, despite having a legal right.

Removal of Parallel Importation

In past blog posts I have covered why allowing parallel imports makes sense in India. And as explained above, the Delhi High Court acted per incuriam when holding that the Copyright Act does not allow parallel importation. The Copyright Act only prohibits import of infringing copies of a work, and a copy of a book that has been legally sold in a foreign country is not an “infringing copy”. The government was set to introduce a provision making it clear that parallel importation was allowed. The Parliamentary Standing Committee heard objections to this proposal from a foreign publishers’ association, but decided to recommend the retention of the clause. Still, due to pressure from a few publishing companies whose business relies on monopolies over importation of works into India, the government has decided to delete the provision. However, thankfully, the HRD Minister, Kapil Sibal, has assured both houses of Parliament that he will move a further amendment if an NCAER report he has commissioned (which will be out by August or September) recommends the introduction of parallel imports.

Expansion of Moral Rights Without Safeguards

Changes have been made to author’s moral rights (and performer’s moral rights have been introduced) but these have been made without adequate safeguards. The changes might allow the legal heir of an author, artist, etc., to object to ‘distortion, mutilation, modification, or other act’ of her ancestors work even when the ancestor might not have. By this amendment, this right continues in perpetuity, even after the original creator dies and even after the work enters into the public domain. It seems Indian policymakers had not heard of Stephen Joyce, the grandson of James Joyce, who has “brought numerous lawsuits or threats of legal action against scholars, biographers and artists attempting to quote from Joyce’s literary work or personal correspondence”. Quoting from his Wikipedia page:

In 2004, Stephen threatened legal action against the Irish government when the Rejoyce Dublin 2004 festival proposed public reading of excerpts of Ulysses on Bloomsday. In 1988 Stephen Joyce burnt a collection of letters written by Lucia Joyce, his aunt. In 1989 he forced Brenda Maddox to delete a postscript concerning Lucia from her biography Nora: The Real Life of Molly Bloom. After 1995 Stephen announced no permissions would be granted to quote from his grandfather’s work. Libraries holding letters by Joyce were unable to show them without permission. Versions of his work online were disallowed. Stephen claimed to be protecting his grandfather’s and families reputation, but would sometimes grant permission to use material in exchange for fees that were often "extortionate".

Because in countries like the UK and Canada the works of James Joyce are now in the public domain, Stephen Joyce can no longer restrict apply such conditions. However now, in India, despite James Joyce’s works being in the public domain, Stephen Joyce’s indefensible demands may well carry legal weight.

Backdoor Censorship

As noted above, the provision that safeguard Internet intermediaries (like search engines) is very limited. However, that provision has an extensive removal provision:

Provided that if the person responsible for the storage of the copy has received a written complaint from the owner of copyright in the work, complaining that such transient or incidental storage is an infringement, such person responsible for the storage shall refrain from facilitating such access for a period of twenty-one days or till he receives an order from the competent court refraining from facilitating access and in case no such order is received before the expiry of such period of twenty-one days, he may continue to provide the facility of such access;

There are two things to be noted here. First, that without proof (or negative consequences for false complaints) the service provider is mandated to prevent access to the copy for 21 day. Second, after the elapsing of 21 days, the service provider may 'put back' the content, but is not mandated to do so. This would allow people to file multiple frivolous complaints against any kind of material, even falsely (since there is no penalty for false compalaints), and keep some material permanently censored.

Missed Opportunities

Fair Dealing Guidelines, Criminal Provisions, Government Works, and Other Missed Opportunities

The following important changes should have been made by the government, but haven’t. While on some issues the Standing Committee has gone beyond the proposed amendments, it has not touched upon any of the following, which we believe are very important changes that are required to be made.

Criminal provisions: Our law still criminalises individual, non-commercial copyright infringement. This has now been extended to the proposal for circumvention of Technological Protection Measures and removal of Rights Management Information also.
Fair dealing guidelines: We would benefit greatly if, apart from the specific exceptions provided for in the Act, more general guidelines were also provided as to what do not constitute infringement. This would not take away from the existing exceptions, but would act as a more general framework for those cases which are not covered by the specific exceptions.
Government works: Taxpayers are still not free to use works that were paid for by them. This goes against the direction that India has elected to march towards with the Right to Information Act. A simple amendment of s.52(1)(q) would suffice. The amended subsection could simply allow for “the reproduction, communication to the public, or publication of any government work” as being non-infringing uses.
Copyright terms: The duration of all copyrights are above the minimum required by our international obligations, thus decreasing the public domain which is crucial for all scientific and cultural progress.
Educational exceptions: The exceptions for education still do not fully embrace distance and digital education.
Communication to the public: No clear definition is given of what constitute a ‘public’, and no distinction is drawn between commercial and non-commercial ‘public’ communication.
Internet intermediaries: More protections are required to be granted to Internet intermediaries to ensure that non-market based peer-production projects such as Wikipedia, and other forms of social media and grassroots innovation are not stifled. Importantly, after the terrible judgment passed by Justice Manmohan Singh of the Delhi High Court in the Super Cassettes v. Myspace case, any website hosting user-generated content is vulnerable to payment of hefty damages even if it removes content speedily on the basis of complaints.

Amendments Not Examined

For the sake of brevity, I have not examined the major changes that have been made with regard to copyright societies, lyricists and composers, and statutory licensing for broadcasters, all of which have received considerable attention by copyright experts elsewhere, nor have I examined many minor amendments.

A Note on the Parliamentary Process

Much of the discussions around the Copyright Act have been around the rights of composers and lyricists vis-à-vis producers. As this has been covered elsewhere, I won’t comment much on it, other than to say that it is quite unfortunate that the trees are lost for the forest. It is indeed a good thing that lyricists and composers are being provided additional protection against producers who are usually in a more advantageous bargaining position. This fact came out well in both houses of Parliament during the debate on the Copyright Bill.

However, the mechanism of providing this protection — by preventing assignment of “the right to receive royalties”, though the “right to receive royalties” is never mentioned as a separate right anywhere else in the Copyright Act — was not critically examined by any of the MPs who spoke. What about the unintended consequences of such an amendment? Might this not lead to new contracts where instead of lump-sums, lyricists and music composers might instead be asked to bear the risk of not earning anything at all unless the film is profitable? What about a situation where a producer asks a lyricist to first assign all rights (including royalty rights) to her heirs and then enters into a contract with those heirs? The law, unfortunately at times, revolves around words used by the legislature and not just the intent of the legislature. While one cannot predict which way the amendment will go, one would have expected better discussions around this in Parliament.

Much of the discussion (in both the Rajya Sabha and the Lok Sabha) was rhetoric about the wonders of famous Indian songwriters and music composers and the abject penury in which some not-so-famous ones live, and there was very little discussion about the actual merits of the content of the Bill in terms of how this problem will be overcome. A few MPs did deal with issues of substance. Some asked the HRD Minister tough questions about the Statement of Objects and Reasons noting that amendments have been brought about to comply with the WCT and WPPT which were “adopted … by consensus”, even though this is false as India is not a signatory to the WCT and WPPT. MP P. Rajeeve further raised the issue of parallel imports and that of there being no public demand for including TPM in the Act, but that being a reaction to the US’s flawed Special 301 reports. Many, however, spoke about issues such as the non-award of the Bharat Ratna to Bhupen Hazarika, about the need to tackle plagiarism, and how the real wealth of a country is not material wealth but intellectual wealth.

This preponderance of rhetoric over content is not new when it comes to copyright policy in India. In 1991, when an amendment was presented to increase term of copyright in all works by ten years (from expiring 50 years from the author’s death to 60 years post-mortem), the vast majority of the Parliamentarians who stood up to speak on the issue waxed eloquent about the greatness of Rabindranath Tagore (whose works were about to lapse into the public domain), and how we must protect his works. Little did they reflect that extending copyright — for all works, whether by Tagore or not — will not help ‘protect’ the great Bengali artist, but would only make his (and all) works costlier for 10 additional years. Good-quality and cheaper editions of Tagore’s works are more easily available post-2001 (when his copyright finally lapsed) than before, since companies like Rupa could produce cheap editions without seeking a licence from Visva Bharati. And last I checked Tagore’s works have not been sullied by them having passed into the public domain in 2001.

Further, one could find outright mistakes in the assertions of Parliamentarians. In both Houses, DMK MPs raised objections with regard to parallel importation being allowed in the Bill — only in the version of the Bill they were debating, parallel importation was not being allowed. One MP stated that “statutory licensing provisions like these are not found anywhere else in the world”. This is incorrect, given that there are extensive statutory licensing provision in countries like the United States, covering a variety of situations, from transmission of sound recordings over Internet radio to secondary transmission of the over-the-air programming.

Unfortunately, though that MP did not raise this issue, there is a larger problem that underlies copyright policymaking in India, and that is the fact that there is no impartial evidence gathered and no proper studies that are done before making of policies. We have no equivalent of the Hargreaves Report or the Gowers Report, or the studies by the Productivity Council in Australia or the New Zealand government study of parallel importation.

There was no economic analysis conducted of the effect of the increase in copyright term for photographs. We have evidence from elsewhere that copyright terms are already too long, and all increases in term are what economists refer to as deadweight losses. There is no justification whatsoever for increasing term of copyright for photographs, since India is not even a signatory to the WCT (which requires this term increase). In fact, we have lost precious negotiation space internationally since in bilateral trade agreements we have been asked to bring our laws in compliance with the WCT, and we have asked for other conditions in return. By unilaterally bringing ourselves in compliance with WCT, we have lost important bargaining power.

Users and Smaller Creators Left Out of Discussions

Thankfully, the Parliamentary Standing Committee went into these minutiae in greater detail. Though, as I have noted elsewhere, the Parliamentary Standing Committee did not invite any non-industry groups for deposition before it, other than the disability rights groups which had campaigned really hard. So while changes that would affect libraries were included, not a single librarian was called by the Standing Committee. Despite comments having been submitted to the Standing Committee on behalf of 22 civil society organizations, none of those organizations were asked to depose. Importantly, non-industry users of copyrighted materials — consumers, historians, teachers, students, documentary film-makers, RTI activists, independent publishers, and people like you and I — are not seen as legitimate interested parties in the copyright debate. This is amply clear from the the fact that only one MP each in the two houses of Parliament raised the issue of users’ rights at all.

Concluding Thoughts

What stands out most from this process of amendment of the copyright law, which has been going on since 2006, is how out-of-touch the law is with current cultural practices. Most instances of photoshopping are illegal. Goodbye Lolcats. Cover versions (for which payments have to be made) have to wait for five years. Goodbye Kolaveri Di. Do you own the jokes you e-mail to others, and have you taken licences for quoting older e-mails in your replies? Goodbye e-mail. The strict laws of copyright, with a limited set of exceptions, just do not fit the digital era where everything digital transaction results in a bytes being copied. We need to take a much more thoughtful approach to rationalizing copyright: introduction of general fair dealing guidelines, reduction of copyright term, decriminalization of non-commercial infringement, and other such measures. If we don’t take such measures soon, we will all have to be prepared to be treated as criminals for all our lives. Breaking copyright law shouldn’t be as easy as breathing, yet thanks to outdated laws, it is.

This was reposted in infojustice.org on May 25, 2012

For more details visit https://cis-india.org/a2k/blogs/analysis-copyright-amendment-bill-2012

Analysing Alice Corporation Pty Ltd v CLS Bank International Et Al

sinha — 2014-08-01T19:09:05Z

The US Supreme Court delivered a unanimous decision in Alice Corporation Pty Ltd v CLS Bank International Et Al last month. The decision concerning software related inventions (with respect to carving an exception to “abstract ideas” patent eligibility category) was the most awaited and the final patent ruling of the US’ Supreme Court’s term. This post presents an analysis of the decision and a timeline of landmark US judicial decisions on software patents.

The Court declared Alice Corporation’s patent claims to be invalid by applying the tests and frameworks propounded in Mayo Collaborative Services v. Prometheus Laboratories Inc.(“Mayo”) and Bilski v. Kappos[1] (“Bilski”). You may read CIS’ analysis of the Bilski decision here and its impact here. A timeline of landmark decisions on software patents is inserted at the end of the analysis.

Background

Section 101 of 35 U. S. Code, 1952 (US Patent Act, 1952) provides that: “Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent thereof, subject to the conditions and requirements of this title.”

However, there exist certain judicially recognised exceptions to this section, namely, laws of nature, natural phenomena and abstract ideas.[2] Any claims wholly falling under any of these exceptions shall be ineligible for patent protection. [3]

Facts of the case

Alice Corporation’s software related inventions concerned a computer system which helped close financial transactions by avoiding a settlement risk. Specifically, the patent claims (granted by US Patents and Trademarks Office (“USPTO”)) involved, inter alia (1) a method for exchanging financial obligations, (2) a computer system as a third-party intermediary, and (3) a computer-readable medium (“CRM”) containing program code for performing the method of exchanging obligations.

CLS Bank filed for a declaratory judgment action seeking non-infringement, invalidity, and unenforceability of the patents. The district court granted a summary judgment[4] rendering the impugned patents invalid. Alice appealed in the Federal Circuit which reversed[5] the district court decision and found that the patent claims were not directed to an “abstract idea”, therefore were patent-eligible subject matter. Consequently CLS Bank appealed for an en banc hearing, which led to the Federal Circuit reversing its decision and ruling that the patents were indeed directed to patent-ineligible subject matter.[6] This decision was rather fragmented consisting of seven opinions without any clear majority[7], and did not address any of the unanswered issues pertaining to software patenting in wake of the Mayo and Bilski rulings.

Alice filed a certiorari writ at the Supreme Court which was granted in 2013, and the Court in the instant ruling affirmed the Federal Circuit’s decision by invalidating the patents. The opinion was authored by Justice Clarence Thomas. Relying on Bilski, the Court held that the claims were not patent eligible under section 101 since they were drawn to an “abstract idea”. It expressed the importance of pre-empting patenting of concepts fundamental to scientific and technological progress.

Determination of patent-worthiness of the subject matter

To ensure the openness of fundamental scientific concepts the Court highlighted the pressing need to “distinguish between patents that claim the ‘building blocks’ of human ingenuity and those that integrate the building blocks into something more.” The latter would qualify as a patent-eligible invention after the said transformation. However, instead of formulating a test to distinguish between the two kinds of claims, it went ahead and applied the framework devised in Mayo Collaborative Services v Prometheus. In the instant case, the Court elucidated on section 101, stating that:

“Section 101 framework has two parts: (1) determine if the claim at issue is directed towards an abstract idea; and (2) examine the elements of the claim to determine whether it contains an inventive “concept” sufficient to transform the abstract idea into a patent-eligible application.”

The Court applied the first part by turning to its recent decision in Bilski v. Kappos and held that the patent claims were indeed directed towards an abstract idea. The Court explained, illustratively, that in Bilski v. Kappos the claim consisted of a method for hedging against financial risk and in the instant case the claim consists of the concept of intermediated settlement. “Like the hedging risk in Bilski, the concept of intermediated settlement is “a fundamental economic practice long prevalent in our system of commerce.” The Court squarely rejected Alice’s argument that an “abstract idea” is merely confined to “pre-existing, fundamental truths which exist in principle apart from any human action.” It refrained from setting any definitive limitations on the “abstract idea” category.

Applying the second part of the framework, the Court concluded that Alice’s claims merely involved implementing a method on a generic computer which was insufficient to transform an abstract idea into a patent-eligible invention. The implementation of a method on a generic computer did not qualify as an “additional (inventive) element.” The Court reiterated Bilski v. Kappos at this point, stating (in the instant case) “..none of the hardware recited by the system claims "offers a meaningful limitation beyond generally linking 'the use of the [method] to a particular technological environment,' that is, implementation via computers."

Observations and Implications

1. Reiterated focus on substance of claim - The Court concentrated on substance of the claim and not form thereof. It “warned” against interpretation of section 101 in ways that make patent eligibility depend simply on the draftsman’s art. The Court noted that the CRM and apparatus/system claims were only “transformed method claims”. This highlighted the prevalent style of drafting claim sets (CRM, apparatus/system, method) when the hardware/apparatus used was generic.

2. USPTO soon thereafter issued “Preliminary Examination Instructions [8]” – As per the memorandum, this decision "neither creates a per se excluded category of subject matter, such as software or business methods, nor imposes any special requirements for eligibility of software or business methods." Further, examiners have been instructed to apply the framework set forth in the Mayo case, “to analyze all claims directed to laws of nature, natural phenomena, and abstract ideas for subject matter eligibility under 35 U.S.C. § 101.”

This instruction has had twofold implications –

The Bilski standard was followed to determine the eligibility of “abstract ideas”[9], and Mayo was applied in the “laws of nature” category[10]. Now Mayo shall be uniformly applicable to both categories, and also all statutory classes of claims, not just method claims.

The memorandum also has illustrated the theoretical exposition of the Court on “abstract ideas” by stating that abstract ideas include:

· Fundamental economic practices;

· Certain methods of organizing human activities;

· An idea of itself; and,

· Mathematical relationships / formulas.

It also exemplifies the limitations which may allow patent eligibility of an “abstract idea”:

· Improvements to another technology or technical fields;

· Improvements to the functioning of the computer itself; and

· Meaningful limitations beyond generally linking the use of an abstract idea to a particular technological environment.

What can you patent after Alice Corporation v CLS Bank?

Evidently, the Court did not seize the opportunity to plug gaps in the framework propounded by it in an earlier decision (Mayo Collaborative Services v. Prometheus Laboratories Inc.[11]]). It refrained from pronouncing a definitive test (to the extent avoided mentioning software patent in the judgment). Instead it relied on its recent decisions, inter alia, Mayo Collaborative Services v. Prometheus Laboratories Inc.(“Mayo”) and Bilski v. Kappos[12]. In consideration of the illustrative reasoning provided by the Court, and it declining from delving into setting of any parameters to define an “abstract idea” and to not clarify the second prong in the Mayo test; the decision completely deals with the rejection of Alice’s patents. A few aspects have emerged to be applicable precedents-wise. However, the decision is bound to limit poor quality software related inventions, at both appeals and prosecution stage. To conclude, the Supreme Court has narrowed the scope of software related inventions, without addressing pressing issues on the existing framework.

Timeline of US Court decisions on software patents

2014

Alice Corporation v CLS Bank [13]

SCOTUS declared Alice Corporation’s patent claims invalid by applying tests previously held in the cases of Mayo Medical Laboratories v Prometheus Laboratories [14] and Bilski v Kappos [15]. The principle question in the instant case was whether the claims spoke directly to an abstract idea- which would render the claims invalid on the basis of being patent ineligible subject matter.
The Court elucidated on section 101, stating that:

2012

Mayo Medical Laboratories v Prometheus Laboratories [16]

SCOTUS ruled that Prometheus Laboratories’ process patent which provided correlations between blood test results and the patient’s health in determining an appropriate dosage of a specific medication for the patient, was essentially a correlation of that of a law of nature, which was a judicially recognised exception to patentable subject matter.

2010

Bilski v Kappos [17]

SCOTUS upheld the U.S. Court of Appeals for the Federal Circuit decision in In re Bilski. It however, rejected the lower court’s holding that “machine-or-transformation test” was the sole test for patent subject matter eligibility.

2008

In re Bilski [18]

U.S. Court of Appeals for the Federal Circuit narrowed the scope for patenting software and business methods and declared the “machine-or-transformation test” as the sole determinative test to decide the patent eligibility of subject matter. The claim in question consisted of a method for hedging against financial risk.

1998

State Street Bank v. Signature Financial Group [19]

U.S. Court of Appeals for the Federal Circuit upheld a software patent granted to Signature Financial Group. The case is widely quoted as one of the first judicially recognised software patents- it set the stage for a deluge of software patent grants in the US.[20] The invention in question was a business method.
The Court held that an invention was patentable if it involved some practical application and produced a “useful, concrete and tangible result.”

1995

In Re Beauregard [21]

A claim which includes a manufactured article containing a Computer Readable Medium and instructions anointed as a “Beauregard claim”. Illustratively, floppy disks, CD-ROMS, etc would include a Beauregard claim.

1980s

Diamond v. Diehr [22] (1981)

SCOTUS held that a physical machine or a process making use of a mathematical algorithm which involves “transforming or reducing an article to a different state or thing” is patent eligible subject matter even if it includes a software component.

1970s

Parker v. Flook [23] (1978)

The Court held that unless the implementation of an algorithm was novel and non-obvious, the algorithm shall be regarded as prior-art, hence would be patent ineligible subject matter.

Gottschalk v. Benson [24] (1972)

SCOTUS addressed the patentability of software for the first time. The Court rejected a “process” patent for a method to convert binary-coded decimal numerals into pure binary numerals on a general purpose digital computer since it was solely directed to an algorithm (patent ineligible subject matter).

[1] 561 U.S. __, 130 S. Ct. 3218, 95 U.S.P.Q.2d 1001 (2010).

[2] Diamond v. Chakrabarty, 447 U.S. 303, 206 USPQ 193 (1980).

[3] ibid.

[4] 768 F.Supp.2d 221, 252 (D.D.C. 2011).

[5] 685 F.3d 1341 (Fed. Cir. 2012).

[6] 717 F.3d 1269 (Fed. Cir. 2013)

[7] ibid.

[8] USPTO, Memo to the Patent Examining Corps, “Preliminary Examination Instructions in view of the Supreme Court Decision in Alice Corporation Ply. Ltd. v. CLS Bank International, et al”, 2014.

[9] USPTO, “Interim Guidance for Determining Subject Matter Eligibility for Process Claims in View of Bilski v. Kappos”, 2010.

[10] USPTO, Memo to the Patent Examining Corps,“2012 Interim Procedure for Subject Matter Eligibility of Process Claims Involving Laws of Nature”, 2012.

[11] 566 U.S. ___ ,132 S. Ct. 1289, 101 U.S.P.Q.2d 1961 (2012).

[12] 561 U.S. __, 130 S. Ct. 3218, 95 U.S.P.Q.2d 1001 (2010).

[13] 573 U.S. __ (2014); 110 U.S.P.Q.2d 1976, 2014 ILRC 2109 (U.S. 2014) [2014 BL 170103].

[14] 566 U.S. ___ ,132 S. Ct. 1289, 101 U.S.P.Q.2d 1961 (2012)

[15] 561 U. S. 593 (2010)

[16] 566 U.S. ___ ,132 S. Ct. 1289, 101 U.S.P.Q.2d 1961 (2012)

[17] 561 U. S. 593 (2010)

[18] 545 f.3d 943 (2008)

[19] 149 F.3d 1368; 47 U.S.P.Q.2D (BNA) 1596

[20] “1998 July The State Street software patents decision” available at <http://www.thomasalspaugh.org/pub/fnd/ipswd-timeline.html#y1998-StateStreet> (last accessed July 29, 2014)

[21] 53 F.3d 1583 (Fed. Cir. 1995)

[22] 450 U.S. 175 (1981)

[23] 437 U.S. 584 (1978)

[24] 409 U.S. 63 (1972)

For more details visit https://cis-india.org/a2k/analysing-alice-corporation-pty-ltd-v-cls-bank-international-et-al

An Interview With Arjen Kamphuis

sachia — 2011-08-18T05:01:53Z

In an email interview with the Centre for Internet and Society, Dutch open source activist Arjen Kamphuis discussed his experience of successfully working with the government for a policy mandating open standards for all government IT in the Netherlands.

In 2002 Arjen Kamphuis co-authored a parliament motion to mandate open standards for all government IT in the Netherlands. The motion was unanimously accepted and, in 2007, became policy. The Netherlands thus became the first western country to make the use of open standards in public sector IT mandatory. Arjen is now working to e xport this set of policies to other European countries with the help of local political parties and business partners.

Arjen discussed his experience of lobbying for this policy change and some other questions related to his work as a consultant on IT strategy and the implications of nanotechnology and biotechnology in an email interview with the Centre for Internet and Society.

The Centre for Internet and Society: What is the Dutch government's policy on FOSS and Open Standards specifically and intellectual property rights in general? Provide some history, name the main lobbying factions in the Netherlands and their policy positions. What was your role in the formulation of these policies?

Arjen Kamphuis: The national action plan 'The Netherlands in Open Connection' is the government's answer to a unanimous vote in parliament in November 2002. The parliament stated that the market for desktop software was not functioning as it should and that significant vendor lock-in effects were harming both individual citizens and society as a whole. It requested maximum efforts from the government to change this situation. The suggested method for changing was mandating open standards in all public sector IT and actively supporting the adoption of open source software wherever functionally and technically feasible.

I was one of the people who got this process started by contacting a member of parliament from the Green Party. This was triggered by my inability to access the website of the national railway on 1 January 2002. The website had been redesigned and only allowed access to visiters with Internet Explorer. As a Linux user, I had previously had comparable problems with local government websites and electronic tax forms (usage of which was mandatory for small businesses like my consulting start-up).

After the unanimous vote in parliament, several people in the Dutch open source community, including me, kept the pressure on the government by monitoring major procurements and writing questions for the Members of the European Parliament (MEPs) to ask the government. In 2004 this led to a breakthrough when the Justice Ministry ran a project to procure 147 million euros' worth of desktop software without going through a proper multi-vendor selection process. They only talked to one vendor, and that is against European Union regulations. Since some of the civil servants working on this project were gagged, we can conclude that some people were aware they were breaking the law, yet went ahead anyway.

When the news broke we made sure the MEPs were armed with the proper questions the next day, and the contract was dropped. In reply to questions asked to the government by the MEPs, the responsible ministers admitted that the government was very dependent on Microsoft for basic functioning of its office environments; that this was a problem; and that the government would take active steps to remedy this situation by moving forward with the requests made in 2002 by parliament.

Two-and-a-half years and an election later, a new under-Minister for Economic Affairs, Frank Heemskerk, took up the challenge and promised a comprehensive policy. I gave input for this plan in mid-2007 and it was formally published and adopted later that year as a national policy for all government and public-sector (i.e. tax funded) organisations.

The policy has three objectives:

improving interoperability between public sector organisations;
lowering the vendor-dependence of the public sector;
improving the functioning of the software market and supporting the Dutch knowledge economy

Some of the practical measures are the mandating of the use of open standards in all public sector organisations. Whenever software is procured, open source should be considered and preferred whenever functionally adequate. These two very basic rules change the entire market for IT in the Dutch public sector (40% of the entire market) and is having a profound effect on the way software vendors offer their products as well as the negotiating power of the client organisations.

I continue to advise both the decision makers and the civil servants overseeing the implementation of the policy.

CIS: What is the current status on the implementation of these policies?

AK: After a slow start the government organisation that is responsable for overseeing the implementation is now up and running. The basic problem is lack of awareness about both the practical value that open standards and open source software can contribute and the underlying political reasons for making it the preferred option for government information processing.

Thus a lot of the work for the next few years will be communicating these ideas to civil servants (be they IT professionals or managers who have other jobs). The policy helps a lot because it puts some serious weight behind the whole process. The fact that government organisations have to support Open Document Format for instance significantly heightens their interest in the technical subject matter!

So the policy gives the drive needed to get things moving and now it is up to us to communicate the how and the why in a way that is understandable for people who are new to these concepts. I have no doubt it will be a long process, we have over 20 years of proprietary legacy built up in our public institutions. Replacing those systems with open alternatives will take many years. All the greater a reason to proceed with some urgency.

The complete policy document has been translated into English and released under Creative Commons Licence:
http://appz.ez.nl/publicaties/pdfs/07ET15.pdf

In December 2007 I gave a talk in Berlin. Here a summary, slides and video are available:
http://events.ccc.de/congress/2007/Fahrplan/events/2387.en.html

CIS: What can a country like India learn from the Dutch government's experience in eGovernance and ICT in Education?

AK: I am not familiar with the Indian political process but these are some of my lessons learned:

- The government will not do anything unless constant and significant pressure is applied by citizens. Politicians and civil servants only act if the pain of acting is less than the pain of not acting. Change is achieved by citizens standing up and working on these problems without guarantee of any reward or even achieving any results (it took us five years to get from a unanimous vote in parliament to an actual policy).

- Big IT companies may be your friend or your enemy. But even if they are your friends they generally will not be at the forefront of political action that could be seen as controversial. Once policies are pushed beyond the controversial stage and have been adopted as official policy some of them will support it. Others, with much to lose, will fight you and the policy every step of the way. The more money or loss of market share is involved the more radical the methods that are employed. Massive lobbying, applying political pressure through foreign governments, bribery and all kinds of other activities are well-funded, well organised and very common.

- In moving forward with these policies it's the lack of knowledge and vision with the the management of institutions that is by far the biggest bottleneck. Without a clear policy from the top it is impossible to get things moving in most organisations.

- Another big problem in switching over local governments and other smaller organisations is the fact that many of the advantages of such a switch is national and/or macro-economic in nature while the initial cost and risk is micro-economic in nature. Hence again the need for a national policy.

- The funding required to make significant improvements is often not that large compared to the existing operational budgets. Investing in the smart use of IT in education for instance is something that can pay for itself very quickly. This is generally also true for adoption of open source and open standards in general. By just reducing the yearly spend on software licences by 1% the entire government program can be funded.

- Simply stopping the procurement of new licences (while continuing the use of those already paid for) can often free up enough money to finance a migration process. This has been the case in the city of Amsterdam and the French Gendarmes.

- The actual value of better government services or education is hard to quantify in monetary terms. How do we value improved responsiveness, transparency, national sovereignty in information processing and supporting local service companies instead of foreign software companies?

- IT education should focus on understanding methods and principles, not products. The product life-cycle is 18-36 months, the educational process takes many years and the length of a career is decades. Any education with a focus on products leads to knowledge that is irrelevant by the time the degree is finished. Teach people to drive a car, not just a Volkswagen or Tata.

- The cost of physical books per student per year in the Netherlands is now greater that the cost of a laptop. This is insane since the content of those books is generally written by teachers who get paid very little for it. Using the funds to pay those teachers instad of the publishers and releasing the content under a free licence will free up resources to develop better educational programs and provide all students with computational tools to use them. All without increasing the total cost compared to our current situation. The financial numbers will be different for India but the basic principle is the same and works even better given the larger scale of India. The cost of producing and distributing electronic educational content will drop practically to zero when compared to physical on a per-student basis. Using funds to support teachers in the use of e-learning with open content is the way forward.

CIS: How can a local support environment for open technologies be created? Can local SMEs ever substitute for the transnational proprietary giants?

AK: Whether SMEs can supplant multinationals depends on the product being replaced. CPU manufacturing requires a very high upfront investment in R&D and manufacturing capability. This is usually far beyond any but a handful of companies. With software development and services things are very different. Software development only requires a human with programming skills, a good idea and a computer. The Free Software Movement has shown clearly that distributed methods of software development can lead to high quality products with excellent local support systems. Local organisations (or communities that are not even organisations) can often understand local needs and respond to local changes much better, faster and cheaper than large, lumbering corporations. If local organisations work together globally to share knowledge (and code) for those parts they all need they can beat any centralised system.

What many senior business and government leaders are struggling with is the realisation that many of the 'truths' they have learned while studying economics or business management or some such subject turn out to be empirically incorrect. For example: it has become clear there is no causal relationship between the cost of software and its quality or utility. This must be a fact that is difficult to truly understand and accept if you have been brought up believing the gospel of the Anglo-Saxon economic worldview. The current economic crisis is a great help in questioning some of those beliefs and opens up room for new ideas about economic vs. societal value of technology and its relationship to businesses trying to earn a living.

CIS: Could you tell us about the Dutch government's rollback on electronic voting machines? What is your opinion on the use of electronic voting machines in the upcoming elections in India?

AK: From the mid '80s onward, voting computers were introduced in the Netherlands. By 2006, the vast majority of all elections were being performed by proprietary computer systems. Citizens would press a button and then go home to watch TV. Some software that no-one could control, monitor or properly audit would spit out a result and that would be it -- new government. Only a handful of engineers (all working for the companies that made the voting computers) actually knew what the software did and could make the computer system say anything they wanted.

When the city of Amsterdam (the last holdout using paper ballots) announced in 2006 that it was moving to voting computers, a group of activists organised a campaign to ban voting computers. We felt that the very nature of democracy was under attack by running the election process in a way that makes it impossible for ordinary citizens to check the validity of the election. It also makes fraud a lot harder to detect. Detectability of fraud is the one of the primary properties any election process should have. We all know election fraud is also possible with non-electronic means but keeping it a secret is much harder in such cases (as we saw in the US and Zimbabwean election over the last years). There was a actual case of suspected voter fraud in a Dutch municipal election and the judge concluded that while the fraud seemed likely it could not be proven. Regrettably for the suspected council member the fraud could also not be disproven. This shows very clearly that such a method is wholly unsuitable for application in real democratic processes.

Through lots of media attention, a few spectacular hacks showing the technical insecurity of the systems, and legal pressure, we forced the government in 2007 to reverse the approval of the voting computers and go back to an all-paper balloting system. This reversal is part of a global backlash against electronic voting systems. Comparable changes have been going on in many US states and all over Europe.

I think India should have voting process that can be understood and monitored by its citizens. This understanding and monitoring should be possible without requiring advanced degrees in computer science, software engineering and electronics. The only way to have such a process is when there is a paper ballot involved. Such a ballot could be printed by a computer to increase the ease of use but all-electronic solutions are ruled out by the basic demands of what a democracy is.

India should move to either all paper systems or voting computer backed-up by a voter-verified paper trail.

Are more extensive telling of the tale can be found here: http://wijvertrouwenstemcomputersniet.nl/English

This is a link to the Berlin CCC conference of Rop Gongrijp's 2007 presentation (with video): http://events.ccc.de/congress/2007/Fahrplan/events/2342.en.html

http://www.blackboxvoting.org has a wealth of information on this subject.

CIS: What are the services provided by Gendo? Could you describe some of the projects that you have undertaken?

AK: My company (gendo.nl) also provides consulting services in the area of IT strategy, development of open IT architectures and implementing those in mixed open source/proprietary environments. We are currently advising both national and local government organisations in the implementation of policies and plans to move to open standards and open source software. We are also involved in projects where we do the actual development and implementation of new systems to enable innovation and lessen the dependance of our client on proprietary systems. Currently we are involved with a healthcare organisation where we are assisting in re-architecting their entire IT environment to allow service innovation, lower cost and increase information security.

We have also been involved in information security work and other auditing in the financial services and government sector. Here our activities focus on the grey area between technology and process.

Outside the field of IT we also do other consulting work such as scenario planning and strategic future studies, mostly for large corporate clients. Most of the big Anglo-Dutch multinationals such as Shell or Unilever are on our client list. We also have a large number of clients in the financial services and insurance sector.

For all of these clients we organise presentations and brainstorming sessions, often preceded by research. This helps the leaders in those organisations think about the nature of rapid, technology-driven changes in their markets and the world in general. These insights are then translated into new products, services and ways of delivering them.

Forgive me if this all sounds a bit vague but with many of these clients there is some confidentiality agreement involved.

CIS: Could you tell us more about yourself? Maybe you would like to share some formative experiences.

AK: Writing my first paper on black holes at age 11 showed me that grown-ups usually also don't know what is going on in the universe either. Despite rumours to the contrary parents, teachers, senior managers and politicians are not all-knowing and are stumbling about just like most two-year-olds where complex issues are concerned.

Over the last quarter century I've had this intuition reconfirmed again and again. In a world that is changing faster and faster experience becomes obsolete rather quickly and wisdom is no longer the sole purview of older, more senior, people. We need young smart-asses who have not yet learned what is impossible, so they go out there and do it.

-----

Arjen Kamphuis (born 1972) studied Science & Policy at Utrecht University and worked for IBM as Unix specialist, Tivoli consultant and software instructor. As IT-strategy consultant at Twynstra Gudde he was involved in starting up Kennisnet, the Dutch educational network. Since 2001 he is operating as an independent adviser of companies and governments. He co-authored, in 2002, a motion in parliament that ultimately turned, in 2007, into a full-fledged policy of the Dutch government mandating the use of open source software in all government and public sector IT operations.

Arjen at present divides his attention between IT-policy and the convergence of IT, biotechnology and nanotechnology and its social and economic implications. His customers include: Shell, Unilever, Pfizer, Stork, and various hospitals, governmental institutions and insurance companies. Arjen guest lectures on technology policy at various universities and colleges.

When not consulting Arjen is actively involved in (digital) civil liberties, the open source movement and criticizing the war on terror.

For more details visit https://cis-india.org/openness/blog-old/an-interview-with-arjen-kamphuis

Centre for Internet and Society

Broadcasters Eager For Global Signal Protection; Others Warn Of Major Players Sneaking In

Broadcast Treaty: An Overview

Beyond Property Rights: Thinking About Moral Definitions of Openness

Better intellectual property values luring Indian startups abroad

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

At the end of the niche optical pirate

Getting to the National Market

Meet the Pirate

The Business of Piracy

Enforcement Threat

Assocham event sparks row over conflict of interest by CCI

Arguments Against the PUPFIP Bill

Summary

How is the legislation unnecessary?

How is the legislation harmful?

Additional resources

Arguments

How is the legislation unnecessary?

1) The Indian government does not have vast reserves of underutilized patents, as the U.S. did in 1980.

2) Technology transfer is very important, but pushing IPRs aggressively is not the best way of ensuring technology transfer.

How is the legislation harmful?

1) Excessive patenting lead to gridlocks and retard innovation.

2) The legislation makes mandatory that which is optional now, and is anyway being followed in many institutions.

3) Copyright, trademark, etc., seem to be covered under the definition of "public funded IP".

4) It will result in a form of double taxation for research, and will increase the consumer cost of all products based on publicly-funded research.

5) It could have unintended consequences of varied kinds, including discouraging fundamental research as well as discouraging industrial research.

6) Non-disclosure requirements in the Bill restricts the dissemination of research within the academic community, and curtails freedom of speech.

7) Exclusive licensing enables restriction on the dissemination of academic research in the marketplace, and increase in cost of products based on public-funded research.

Additional Resources

On the PUPFIP Bill

On Bayh-Dole

Arguments Against Software Patents in India

Preamble

What are Patents?

Philosophical Justification Against Software Patents

Legal Case Against Software Patents

Practical Reasons Against Software Patents

Patent Landmines / Submarine Patents / Patent Gridlocks / No Exception for Independent Creation

Don't These Cases Show How Software Patents Help Small Companies?

Term of Patents

Software Industry Progressed Greatly Without Patents

Copyright Exists for Software

Insufficient Disclosure

Software Patents Work Against Free/Libre/Open Source Software

Conclusion

April 2010 Bulletin

News Updates

Research

Advocacy

Accessibility

Intellectual Property

Openness

Internet Governance

Telecom

Other Advocacy

Announcing the Tracks for the Global Congress on Intellectual Property and the Public Interest 2015

You may contact the following CIS members to send in your queries and suggestions for the event:

Analysis of the Copyright (Amendment) Bill, 2010

Existing Copyright Act

Proposed Amendments

Some positive amendments

Some negative amendments

Missed opportunities

Analysis of the Copyright (Amendment) Bill 2012

Welcome Changes

Provisions for Persons with Disabilities

Extension of Fair Dealing to All Works

Creative Commons, Open Licensing Get a Boost

Physical Libraries Should Celebrate, Perhaps Virtual Libraries Too

Limited Protection to Some Internet Intermediaries

Compulsory Licensing Now Applies to Foreign Works Also

Worrisome Changes

Term of Copyright for Photographs Nearly Doubled

Cover Versions Made More Difficult: Kolaveri Di Singers Remain Criminals

Digital Locks Now Provided Legal Protection Without Accountability

Removal of Parallel Importation

Expansion of Moral Rights Without Safeguards

Backdoor Censorship

Missed Opportunities