Centre for Internet and Society

National IPR Policy: Mapping the Stakeholders’ Response

Akshath Mithal — 2015-11-24T15:02:17Z

The first draft of the National IPR Policy was released last December. Following that, a plethora of comments and suggestions was submitted to the DIPP on the same. In this post, I will focus on the comments that were available online and analyse the trends that I was able to find in the same and also highlight the many suggestions put forth by the stakeholders.

Nehaa Chaudhari provided inputs and feedback and also edited this post.

I. Introduction

On 24^th December 2014, the IPR Think Tank constituted by the Department of Industrial Policy and Promotion (DIPP) officially released the first draft of the National IPR Policy. Following this, in a press release dated 30^th December, 2014, the DIPP called for comments and suggestions on the draft from all stakeholders. CIS, through an RTI, asked the DIPP to disclose all the comments received by it. However, the DIPP’s reply, rather vague, stated that it is not in the position to provide the same. (Further details here).

II. Research Methodology

In this post, I have compiled and compared the various submissions that I was able to find online in a SpicyIP post and will provide an analysis of the same.

The spreadsheet that I have created contains a compilation of the many issues that were raised by 15 stakeholders of various affiliations (organisations/scholars/unions). This spreadsheet was put together after reading each submission carefully, and summarizing the same. After dividing the contents of the submissions into the various issues, they were put under certain heads in this sheet. Though there were a few ideas covered by certain submissions that have not been tabulated, all the major and important ones have been covered, in my opinion.

On the basis of this spreadsheet, the following observations have been made on the feedback of the many stakeholders on the various aspects of the draft.

III. Stakeholders - A Statistical Analyis

A total of 15 submissions were taken into consideration for the purpose of this post, and all of them applauded the government for recognizing of the need for a comprehensive policy on IP and the DIPP’s efforts to give the public a chance to play a role in the process of formation of a policy that would affect the country and its economy significantly. However, each submission had its own set of criticisms and suggestions to the various aspects dealt with by the policy. In my analysis there are three broad categories that the stakeholders can be divided into:

Research organisations/NGOs.
Industrial representative bodies/Political organisations.
Scholars/Academia.

A representation of the stakeholders and the categories that they belong to has been produced below.

Categories	Stakeholders
Research organisations/NGOs	Centre for Internet and Society (CIS); Consumer Unity & Trust Society (CUTS); Software Freedom Law Centre (SFLC); Centre for Law & Policy Research (CLPR).
Industrial representative bodies/Political organisations	Intellectual Property Owners Association (IPO); National Association of Manufacturers (NAM); International Trademark Association (INTA); IP Federation – UK; ICC’s Business Action to Stop Counterfeiting and Piracy (BASCAP); Swadeshi Jagaran Manch (SJM); American Chamber of Commerce (AmCham – India).
Scholars/Academia	Centre for Intellectual Property and Technology Law – O.P. Jindal Global University (CIPTEL); S. Ragavan, B. Baker, S. Flynn; Adv. Ravindra Chingale – NLU Delhi; Prof. N.S. Gopalakrishnan & Dr T.G. Agitha – CUSAT.

Out of the comments studied, the largest chunk of stakeholders (46.67%) belonged to the industrial/manufacturing sector, with the other two categories comprising only 26.67% each. This could be attributed to the fact that a country’s IPR policy has a very vital role to play in influencing an industrial firm’s strategy and an unsatisfactory policy could have a serious and adverse effect on the profit-making abilities of an industry.

IV. IP - Innovation / Growth Nexus

There are a total of 13 themes that have been identified in the spreadsheet, and out of these 13, the one that the largest number of stakeholders has commented on is the question of there being nexus between intellectual property, innovation and growth. Eleven out of the fifteen stakeholders have given their opinion on this issue.

The opinion on this theme is not very uniform. Some organisations are of the opinion that there is a strong correlation between robust IPR protection mechanisms and innovation in a country, and thus there is a resultant benefit to the economy of the country. For example, the IP Federation of UK claimed that with a strong IPR regime, there is a greater inflow of FDI and R&D expenditure in countries, thus benefitting the country’s economy. On the other hand, there are some stakeholders who believe that there is no nexus and that the underlying assumption made by the draft policy is not backed by any research or evidence. The Centre for Internet and Society (CIS), for example, even cites evidence in its submission to oppose this assumption. The smallest chunk of stakeholders suggests to the Think Tank that in the current draft, there is not enough authority cited by them, and thus, there should be some research that must be done in order to give this assumption some backing. CIPTEL, a research centre based in OP Jindal Global University, stated that there should be a transparent survey conducted on this issue by a neutral agency.

The figure below would give the reader a comparative analysis of the responses from the stakeholders on this particular theme.

All the research organisations/NGOs that presented their views on this assumption are in opposition to the same and have proposed to the Think Tank that it should amend the contents of the policy after taking this incorrectly-made assumption out of the mix.

A majority of the industrial bodies have supported the existence of a nexus and have stated that by enforcing stronger IPR protection laws, the innovative/inventive environment of a country develops and this in turn encourages investors, which culminates into a rise in the growth of the economy.

Scholars and academia have a difference of opinion amongst themselves and there is no uniform pattern that can be seen in their responses to this issue.

The only political organisation in this analysis, the Swadeshi Jagaran Manch opposes the assumption and states that the policy has turned a blind eye to the development of the country and that there is no analysis on whether there is any effect of the proposed strengthening of IP protection on the various sectors of the economy.

V. International Treaties

The policy, in its introduction states the following stance on negotiation of international treaties and agreements – “In future negotiations in international forums and with other countries, India shall continue to give precedence to its national development priorities whilst adhering to its international commitments and avoiding TRIPS plus provisions.”

On this general theme, 9 out of 15 stakeholders have submitted their comments to the Think Tank. Out of these 9, the category-wise division of the stakeholders is represented by the diagram below.

The opinion of the stakeholders on this issue varied and there were broadly 3 kinds of responses that were found in the analysis. More than half of these responses (56%) suggested that all negotiations of treaties must be done transparently, with proper consultation of all stakeholders. CUTS, for example, recommended that to increase the confidence of the people in the country’s IP regime, the negotiations must be done with the opinion of all stakeholders being taken into consideration. They also cautioned the government to make sure that any future agreements do not contain any TRIPS-plus provisions. The second category applauded the policy’s pro-global stance towards IPR developments, and has recommended certain treaties that India must sign in order to strengthen its regime (details in spreadsheet). Only one stakeholder, the National Association of Manufacturers of the USA suggested that India’s stance of avoiding TRIPS-plus agreements is in contravention to its objective of keeping up with global IP developments. This point of view is clearly in favour of the USA as TRIPS-plus provisions have always been more beneficial to developed countries than developing countries like India.

Thus, it can be said that almost 90% of stakeholders, from across categories, are satisfied with India’s pro-international stance, and only want the government to be cautious and consult the public before signing treaties on IPR.

VI. Utility Models

A provision to legalise utility model protection was also a part of the draft policy. Utility models or petty patents are suggested by the policy in order to protect parties like MSMEs and their many innovations which may not satisfy the requirements of regular patent protection and thus losing out from IPR protection, leading to benefits not being reaped properly from these inventions.

This provision was commented on by eight of the 15 stakeholders, making it a little above half of the total. A category-wise division can be found below.

The opinion on utility models was majorly negative across categories, with 75% of the stakeholders believing that utility model protection must be given a second thought and many drawbacks were pointed out such as frivolous litigation, uncertainty in the market, and a drop in the quality of innovation registered in the country. A review of how effective utility model laws are in other countries was suggested before making any final decision. Only 2 out of the 8 stakeholders supported the provision for petty patents and stated that this would give a good means of protection to ‘jugaad’ innovations that are very popular in India and thus believed that such laws would help increase the innovation levels in the country.

VII. Public Funded Research Labs and Universities

Only four stakeholders had a say on the issue of grants to Government labs and universities, these organisations being Indian research organisations and academia. The opinion varied from party to party and the Centre for Internet and Society argued that if there was a rise in IP protection for government funded research, it would be against the vision of free and open access to research funded by taxpayers’ money.

The other three stakeholders, namely CIPTEL, CUTS and Adv. Ravindra Chingale emphasised on the importance of merit-based funding instead of funding on the basis of whether an organisation is Government-owned or not. Two of these also suggested that there must be a system of contact between industry and academia to incentivise and utilize innovation properly.

VIII. Limitations and Flexibilities

A very important aspect of any IPR regime is the presence of limitations, exceptions and flexibilities on the rights protected by IP laws, as it allows for the appropriate amount of information being shared for free or at reasonable costs, for furtherance of public interest.

On this vital issue, most stakeholders had a say and the trends of the feedback on the limitations and flexibilities on IP protection were as expected. There were two broad sets of opinions that could be gathered from the analysis, and while there was a majority (62.5%) of organisations and people who believed that the government must keep up its efforts of providing a good framework for exceptions to IPR protection with measures like compulsory licensing being put in place in order to protect broader interests of the country such as access to reasonably priced medicines and other necessities. The only recommendation that they had was that these measures should be decided after a careful analysis of what the economy really needed in order to develop further.

The opposition, quite understandably came from international industrial bodies representing manufacturers and intellectual property owners who argued that the policy of limitations to IPR protection is discouraging those who want to invest in the country and that it hurts the business of foreign-based companies that operate in India or want to do so in the near future as their intellectual property may not be protected adequately with such a policy in place.

The figure above clearly points out that none of those against limitations being placed on IP protection had an Indian background and all those in favour of the same were primarily Indian-based organisations and academics, with the exception of the American scholars – S. Ragavan, B. Baker, and S. Flynn.

IX. Trademarks

Only a single stakeholder, the International Trademark Association, was interested in the issue of trademarks. This can be attributed to the fact that this is the only association out of all the stakeholders having a direct interest in trademark law and policy. The organisation suggested that there should be a greater amount of clarity in the trademark examination process and also suggested that there should be an increase in the number of examiners to make the process of trademark registration quicker.

X. Trade Secrets

In objective 3 of the draft policy, the Think Tank suggests that to strengthen the IP framework of the country, trade secret protection must be introduced as a formal law. India, today, does not have a law to protect sensitive trading information and there needs to be a formalised contract for there to be any relief for leaking of such information.

The stakeholders supporting the enactment of trade secret legislation were interestingly all industrial bodies representing international companies and firms. Only 2 parties expressed their worries about such a law, and argued that there must be more backing to make this recommendation more convincing. A graphical representation of the stakeholders is given below to provide a clearer picture of the responses.

This chart portrays clearly that international bodies are insistent on the enactment of a trade secret law as this would help incentivise knowledge sharing in the country. In many countries, trade secret protection is formalised legally and these stakeholders argue that for foreign multinationals to feel confident while sharing sensitive information with others in India, the government must follow in the footsteps of such countries and legislate on this matter soon.

XI. On Specialised Courts

A common suggestion found across 5 of the 15 stakeholder responses was for the creation of a specialised IP judiciary that would be formed by widening the patent bench that was proposed in the draft policy. Such a court would deal only with issues of intellectual property and would consist of judges having special knowledge in the various branches of IP law.

XII. Conclusion

The draft policy was released almost a year ago, and since then, much discussion has taken place on the same, with many contradictory opinions and suggestions on the various aspects of the policy. It can be observed from this compilation that industrial bodies have been insistent on stronger IP protection and more incentives to multinationals to invest in India in the form of trade secret legislations, keeping limitations such as compulsory licensing to a minimum, et al.

On the other hand, a trend could be seen of research organisations and academia having a view that was more in the interest of the public and with the Indian scenario taken into consideration, with the criticism of utility models, TRIPS-plus agreements, and by raising the question of whether the assumption underlying the draft of there being a link between IP protection and a rise in innovation had any basis whatsoever. This post, however, is only a glimpse of the stakeholders’ responses owing to the fact that the DIPP has not officially released the submissions made to it and only the ones that were available online have been taken into consideration.

It is only a matter of time that the Think Tank releases the final policy and one shall hope that this tedious process of seeking comments and suggestions will bear any fruit with the policy being a balanced one and being aimed ultimately towards the benefit of the country as a whole.

For more details visit https://cis-india.org/a2k/blogs/national-ipr-policy-mapping-the-stakeholders2019-response

National IPR Policy Series: What Have the Sectoral Innovation Councils Been Doing on IPR

nehaa — 2015-08-13T01:36:35Z

In this post, Nehaa Chaudhari and Varun Baliga delve into the question of what the mandate of the Sectoral Innovation Councils is, what its activities are, and what vision for IPR development in India has it put forth. An RTI Application has been filed by CIS to attain information on these issues.

Thanks to Amulya.P for her support on this.

The National Innovation Council [“NIC”] was constituted by the Prime Minister’s Office “to create a roadmap for innovation for the ‘Decade of Innovation - 2010-2020’ focussing on five key parameters namely Platform, Inclusion, Eco-system, Drivers and Discourse”.[1] Pursuant to the creation of the NIC, Sectoral Innovation Councils [“SIC”][2] were established in order to promote innovation in particular sectors.

The focus of this post is on the SIC established by the Department of Industrial Policy and Promotion [“DIPP”] – a 12 member body on Intellectual Property Rights [“IPR”]. What is the mandate of this body? What have been its activities over the few years of its existence? What vision does it have of the development of IPR in India over the course of this critical decade?

In 2012, the body drafted a strategy document that did three things: an overview of the contemporary IP system, stakeholders’ involved in the protection and commercialization of IPRs and recommendations for an IPR Strategy.[3] This ambitious document merits significant work in order for actionable recommendations that will form the basis for a coherent IPR Strategy. The body has the burden to show how its work will be consistent with that of the IPR Think Tank and the National IPR Policy. In light of the circulation of the 2012 first draft of the strategy, Ajay Dua, former Secretary of the DIPP commented that the strategy would help in improving trade and capital flows. CIS has noted the increasingly trade-oriented approach to IPR in a previous comment on the US 301 Report.[4] However, the work and action that the SIC has taken does not reflect any of these ambitious documents or statements. In limbo for the past three years, we know very little about its functioning.

First, we know the Terms of Reference of the SIC.[5] The SIC has the mandate to formulate the National IPR Strategy to “address key concerns of sustainable development, inclusive growth and food security”. Further, formulation of medium term policy objectives that would provide the proper context to the strategy itself. Significantly, the SIC is required by the Terms of Reference to submit a roadmap within six months of its establishment.

The IPR Think Tank constituted by the DIPP also has a similar mandate, in so far as the Terms of Reference for the IPR Think Tank includes tasks such as drafting the National IPR Policy, identifying areas in IPRs that require further studying, creating views on the implications of demands by various negotiating partners, keeping the government informed about developments in IPR law, advising the government on best practices to be followed in different government offices that work with IPRs, advising the Ministry on solutions to any anomalies in IPR legislation, examining issues raised by industry associations and those that may have appeared in the media and providing suggestions to the Ministry on the IPR issues of the day.[6]

This raises questions of whether the SIC is required at all and what if any purpose it serves that is not already covered by the National IPR Think Tank.

Second, we know the minutes of the meeting of the SIC on IPRs dated 30 April 2013.[7] No further information of any other meetings, if any, is provided by the DIPP or the NIC. The minutes are an insightful window into the functioning of this body. Of the 12 members of the SIC, only 6 were present at the meeting. Of these 6 individuals, 2 – Mr. Sushil Kumar Jain and Professor Surendra Prasad – were not present in person but sent representatives instead. This was noted in a slightly disapproving tone by the body: “It was agreed that in future since members have been nominated by name, they may not send representatives and may instead provide their valuable views in the meeting”. We do not know whether future meetings, if any, witnessed better attendance.

In conclusion, the dormant nature of the SIC can only be probed further using the tools of the Right to Information Act [“RTI”]. What, however, is the harm of an institution like the SIC that is doing nothing. At a pragmatic level, it is a drain on public resources and time. More egregiously, on a principled level, such bodies serve to only legitimize contemporary trends in IP discourse. We have explored some of these trends in past blog posts.[8] Whether it is its trade-oriented nature or the undue emphasis on rights-holders, bodies like the SIC serve to entrench the alienation of the raison d’etre, the founding principles, of IP – innovation and creativity for all.

Annex I – RTI filed by CIS with the DIPP seeking information on the functioning of the NIC

26 June 2015

To,

Central Public Information Officer,
IPR I, II, III, IV, V and VI Sections,
Room No. 260,
Udyog Bhawan, New Delhi.

Subject: Request for Information under Section 6 of the Right to Information Act, 2005 regarding Functioning of the Sectoral Innovation Council on Intellectual Property Rights under the National Innovation Council

Dear Sir/Ma’am,

Full Name of the Applicant: Nehaa Chaudhari
Address of the Applicant: Centre for Internet and Society, G-15 Top Floor, Hauz Khas, New Delhi - 110016. Mailing Address: nehaa@cis-india.org
Information Required: Context

Please consider this an application for information under Section 6 of the Right to Information Act, 2005.

Therefore, I seek information on the following:

a) How many meetings has the Sectoral Innovation Council [“SIC”] of the DIPP on Intellectual Property Rights [“IPR”] held since its establishment?

b) Please supply minutes and all related documents of all its meetings?

c) How much are members of the SIC paid? Are members paid on the basis of time or number of meetings held?

d) Has the SIC done any work or produced any outputs other than the 2012 draft of the National IPR Strategy?

This is to certify that I, Nehaa Chaudhari, am a citizen of India.

A fee of Rs. 10/- (Rupees Ten Only) has been made out in the form of a demand draft drawn in favour of “Public Information Officer, ..................................................”

Please provide me this information in electronic form, via the email address provided above.

[1] http://innovationcouncilarchive.nic.in/index.php?option=com_content&view=article&id=74&Itemid=47

[2] http://innovationcouncilarchive.nic.in/index.php?option=com_content&view=article&id=25&Itemid=18

[3] http://dipp.nic.in/english/Discuss_paper/draftNational_IPR_Strategy_26Sep2012.pdf

[4] http://cis-india.org/a2k/blogs/us-301-report-a-myopic-view-of-ip-rights

[5] http://innovationcouncilarchive.nic.in/index.php?option=com_content&view=article&id=74&Itemid=47

[6] http://pib.nic.in/newsite/PrintRelease.aspx?relid=110790

[7]http://innovationcouncilarchive.nic.in/images/stories/sectoral/minutes/IPRs%20-%20Minutes%20of%20the%20meeting%20-%2020April2013.pdf

[8] http://cis-india.org/a2k/blogs/us-301-report-a-myopic-view-of-ip-rights

For more details visit https://cis-india.org/a2k/blogs/national-ipr-policy-series-what-have-sectoral-innovation-councils-been-doing-on-ipr

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

nehaa — 2015-11-19T05:13:14Z

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

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

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

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

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

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

Here are some other quick comments:

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

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

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

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

nehaa — 2015-05-21T17:03:30Z

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

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

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

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

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

(a) by or under the Constitution;

(b) by any other law made by Parliament;

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

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

(i) body owned, controlled or substantially financed;

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

A. Who is a "Public Authority"?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

C. Conclusion

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[12] ibid .

[13] See n 12.

[14] See n 13.

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

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

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

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

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

[20] See n 1.

[21] See n 1.

[22] See n 16.

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

For more details visit https://cis-india.org/a2k/blogs/national-ipr-policy-series-who-is-a-public-authority-under-rti-act

National IPR Policy Series : The Development of the National IPR Policy

nehaa — 2015-01-22T00:48:33Z

This is the first blog post in a series of posts on India's National IPR Policy. In this post, CIS intern, Varnika Chawla traces the evolution of the National IPR Policy.

Significant changes have been implemented in the Intellectual Property regime of India since India's accession to TRIPS in 1995. This post details the timeline of the development of Intellectual Property law in India, highlighting the discourse around the formulation of a National IPR Policy. The author has also looked at the formulation of IP Strategies in different nations across the world, summarized in the infographic, observing that the trend for the same is very recent and has only emerged over the last decade.

"Intellectual Property Right is a private right recognized within the territory of a country and assigned to an individual or individuals for a specified period of time in return for making public, the results of their creativity and innovation." India has a well-established and comprehensive legislative, judicial and administrative framework for intellectual property. The decade of 2010-2020 was declared as the Decade of Innovation, with an objective of expanding the space for dialogue for inclusive growth. With the emergence of globalization, the Indian society has become more knowledge-intensive giving rise to rapid development in the field of information technology and consequently intellectual property, thereby increasing the role of the legislature as well as the judiciary to protect and promote intellectual property rights.

India gained membership of the World Trade Organization in 1995. This membership initiated a new round of revisions resulting in the upheaval of the Indian intellectual property system. All IP legislations were hereby required to comply with the provisions of the TRIPS Agreement by 2000, with the exception of the Patents Act, which had an extended time limit to be compliant till 2005.

The Indian system of intellectual property rights is designed in a manner to ensure the protection of intellectual property while maintaining a balance between rights and obligations. There are several legislations which deal with the protection of intellectual property in India. These include thePatents Act, 1970, the Trade Marks Act, 1999, theGeographical Indications of Goods (Registration and Protection) Act, 1999, the Semiconductor Integrated Circuits Layout Design Act, 2000, the Competition Act, 2002 as well as theBiological Diversity Act, 2002. India is also thefirst country to ratify theMarrakesh Treaty, 2013 for access to copyright works for visually impaired persons. India also recently acceded to the Madrid Protocol in 2013.

National IP Strategy and the Role of WIPO

A National IP strategy has been defined by WIPO as "a vehicle for creating better functional linkages between the national economic objectives, development priorities and resources, and the IP system of the country concerned."[1] It is therefore a set of policy measures undertaken by governments in order to facilitate the proper use of IP as a strategic tool, for economic, social, cultural and technological development.[2] WIPO also gave the framework of the planning process each country should implement, in its efforts to adopt an IP strategy. As per this, the process is divided into four main stages:

Government initiative
Establishment of a National IP Strategy Formulation Committee
Presentation of draft strategy before stakeholders
Government approval of National IP Strategy,[3]

WIPO can assist in the formulation of a National IP Strategy by advising the governments as well as providing technical expertise during the planning process and providing support and assistance as and when required.[4]

India's National IPR Strategy

Realizing the significance of having a strong and well-balanced IP system in the emerging economy of India, several initiatives have been undertaken by the Department of Industrial Policy & Promotion at the policy level to create an environment conducive for the development of intellectual property and technology. Accordingly, a draft for the National IPR Strategy, outlining a set of measures and guidelines to encourage and facilitate the effective creation, protection, management and commercialization of IP for accelerating economic, social, cultural and technological development and for enhancing enterprise competitiveness prepared by the Sectoral Innovation Council on IPR was released by DIPP on September 26, 2012, inviting views from various stakeholders. It was felt that the National IP Strategy needs to be developed in a manner such that it is integrated with the overall national plan for development in order for better cooperation with IP components of specific and targeted national strategies in areas such as trade and investment, education, food and agriculture, science and technology etc.

Subsequently, a revised draft for the National IPR Strategy in India was released on July 21, 2014, detailing a vision statement, objectives and means to achieve the same.

The DIPP constituted an IPR Think Tank , as notified on November 13, 2014, in order to draft the National Intellectual Property Rights Policy and to advise DIPP on IPR-related issues. Finally, a First Draft of the National IPR Policy was submitted by the IPR Think Tank on December 19, 2014 , inviting comments and suggestions from all stakeholders on or before January 30, 2015.

National IP Strategies: Around the World

WIPO Member States adopted 45 recommendations at the 2007 General Assembly, made by the Provisional Committee on Proposals Related to a WIPO Development Agenda. This also included Member States setting up "appropriate national strategies in the field of intellectual property." These recommendations were identified for immediate and effective implementation, resulting in countries beginning to adopt the same, with the objective of promoting and enforcing IP rights. The info-graphic below highlights the formulation of IP Strategies in Member States around the world.

China announced its "National Intellectual Property Strategic Principles" in June, 2008. Japan established its "Intellectual Property Strategy Headquarters" in 2003, and its Intellectual Property Strategic Program in 2004, while USA legislated the " Prioritizing Resources and Organization for Intellectual Property Act" in 2008. Furthermore, the Presidential Advisory Council on Education, Science and Technology in Korea announced the " Strategy for Intellectual Property System Constructing Plan" on June 27, 2006, consisting of three aspects: Creation and Application, Law and Regulation, and Infrastructure. The European Union has adopted a " Strategy for the Enforcement of Intellectual Property Rights in Third Countries", aimed at evaluating the recent major changes that have taken place in the international IP arena, preparing to meet the challenges in an effective manner. Finland adopted " The Government's Resolution on the Strategy Concerning Intellectual Property Rights " on March 26, 2009. Therefore, it is observed that the trend of National IP Strategies has only started recently, in the last decade.

Therefore we see the emerging need of an all-encompassing IP Policy arising in nations around the world, aimed at promoting a holistic environment conducive to the development of Intellectual Property.

[1] WIPO's Contribution to the Elaboration and Implementation of Strategies and National Plans for the Development of IP and Innovation , WTO Strategic Planning Workshop, Geneva, Switzerland, June 13, 2014.

[2] Id .

[3] Id .

[4] Id.

For more details visit https://cis-india.org/a2k/blogs/the-development-of-the-national-ipr-policy

National IPR Policy Series : India's National IPR Policy - What Would WIPO Think?

nehaa — 2015-07-02T17:47:58Z

As part of the National IPR Policy Series, CIS is evaluating how India's National IPR Policy framework and process holds up to WIPO's suggestions. In this note, Varun Baliga and Nehaa Chaudhari examine in particular, the functioning of the IPR Think Tank and the first draft of the National Policy in light of the WIPO framework and the principles it encapsulates.

This note is a brief overview of the approach set out by the World Intellectual Property Organization ("WIPO") for the development of National IPR Strategies by various countries. This note also compares WIPO's approach to the approach adopted by the IPR Think Tank ("Think Tank") in the formulation of India's National IPR Policy This note is only an academic exercise and is not to be construed as a recommendation of the procedure set out by WIPO for the development of National IPR Policies/Strategies.

An Overview of WIPO's Approach

WIPO's suggested model of a National IPR Policy operates at three levels - The Process, Baseline Questionnaire and Benchmarking Indicators. [1] On process, WIPO suggests an 8-step procedure in developing a National IP Strategy that lays clear emphasis on both continuous consultation and methodological rigour in data collection. The initial 'Assessment Mission' is aimed at preparing the ground for the formulation of the policy, and includes meetings with stakeholders so as to involve interested entities from the very beginning. [2] Given that an IPR policy is necessarily a political exercise, WIPO recommends that the mission be used to secure the political capital and commitment that would be necessary to see the exercise through. Then, a 'project (national) team' is constituted for an IP audit and develop an understanding of the economic, social and political infrastructure as context for the formulation of the policy. It is also stated that, in most instances, the team will include an international consultant. This is further complemented by 'Desk Research' and 'Data Collection' using the 'Baseline Survey Questionnaire', an integrated data collection tool developed by WIPO. The desk research is an assessment of the existing IP policies coupled with the country's broader goals - developmental, economic and social, so as to conceptualize a policy that is in conformity with the goals.

The data collection through the Baseline Survey Questionnaire is meant to complement the IP audit to understand the "weaknesses, strengths and potential" of "the current IP situation in the country". This audit and data collection drive is then buttressed with 'National Consultations' to validate the data and conclusions reached thus far. WIPO is unambiguous that the aim of these consultations is to enable a wide range of parties to exercise meaningful ownership and agency over the process of conceptualizing a national IPR policy. With the inputs received from the process so far, WIPO recommends that the drafting of the strategy commence on the basis of the "suggestions, opinions and recommendations received during the national consultation process". The drafting should operate at the level of each sector and the country as a whole. This is followed by a 'second round of stakeholder consultations'. These serve a dual purpose: to validate the findings of the first draft and to verify whether the first round of inputs are reflected in the draft itself. Finally, an 'implementation framework' including "implementation structures, a resource mobilization strategy, and monitoring and evaluation mechanisms".

Assessing the First Draft of India's National IPR Policy:

Now, we look at the National IPR Policy in India in light of the WIPO framework outlined above. First we look at the Assessment Mission or process followed prior to the announcement of any IPR policy. Then, we look at what assessment was undertaken of the existing IP laws in the country. Finally, the stakeholders meetings conducted so far are analysed in comparison to the purpose of such consultations that WIPO envisages.

Assessment Mission: There are no reports of an initial meeting having been held to explain the scope and methodology of the process. However, the IPR Think Tank invited comments before the release of the draft national policy in order to seek suggestions on the tentative policy. It should be noted that these comments have not been published.
Assessment of existing IP framework: The overview of the existing IP system in the draft policy covers just the various IP legislations and the relevant government departments. It then proceeds to underscore elements in Indian law that enhance and incentivize stricter standards for IP protection. For example, it illustrated the future challenge in copyright law as being enforcement on digital platforms. It identifies a need for concerted action to increase patent filings by Indians as over "75% of patent filings are by foreign entities". Further, even when it mentions India's ratification of the 2013 Marrakesh Treaty ensuring access to copyrighted works for persons with visual impairment, it is in the context of further reinforcement of copyright.Therefore, it is clear that the perspective of the draft policy towards India's existing framework downplays provisions ensuring access and protecting the public interest and focusses on more expansive IP protection, narrower exceptions and an overall priority for IP rights over the public interest in accessing knowledge. The purpose of the IP audit and desk research, "to obtain a clear picture of the current IP situation…, its weaknesses, strengths and potential.", has not been done justice by this audit weighted in favour of rightsholders. Finally, the Baseline Survey Questionnaire -an integrated tool for extensive data collection - has no mention in the draft policy. There is no indication that it has been utilized for the purpose of data collection, if any.
On stakeholder meetings: The Draft National IP Policy was released on 24 December 2014. A DIPP Press Release called for comments and suggestions to the First Draft to be sent in by January 30^th, 2015.[3] The first set of stakeholder meetings were only held on February 5^th and 6^th, 2015.[4] This is at odds with what the WIPO recommends. The very first step in the WIPO framework is the 'Assessment Mission' which involves meetings with stakeholders that explains the scope and methodology of the process, presumably to elicit views. There is no publicly available information that suggests that this has taken place. Second, the national consultation precedes the drafting of the strategy with the explicit goal of validating the IP audit findings and eliciting views on the drafting of the strategy. This is not intended to be a merely formalistic exercise but meaningful involvement of stakeholders in the whole process of conceptualizing a national IPR policy. Now, the DIPP has solicited comments prior to the publication of the first draft. However, mere solicitation of comments without meaningful consultation is a mere shadow of the objective of the WIPO recommendation of national consultations - "..to actively participate in the validation of the IP audit findings and the formulation of the National IP Strategy..to enhance a wide a range of IP stakeholders' ownership of the process of developing and eventually implementing a national IP strategy." Therefore, the principled objective of the consultation process as outlined by WIPO - enabling stakeholders to exercise a sense of agency over the policy document and drafting process - was severely undermined. Furthermore, WIPO suggests that the drafting of the policy should be based on the findings and suggestions submitted by the stakeholders. Given that comments have been solicited before the policy was drafted, it is incumbent upon the Think Tank to make comments submitted public. [5]

The following table summarizes the comparison in the WIPO approach to that of the IPR Think Tank. Apart from the procedure outlined thus far, the table touches upon other points of comparison that are sure to inform the continued functioning of the Think Tank in the road towards a National IPR Policy.

WIPO Suggestion	India's National IP Policy Framework - Comparison
WIPO has also suggested a number of justifications that may be advanced for the development of a national IP strategy. [6] These justifications will help in grounding the policy in a clear, lucid set of objectives. These are: Need to consolidate sectoral policies National long-term development agenda Benchmarking and best practices International trade obligations Strengthening the national IP office	India's Draft National IP Policy provides for the following objectives:[7] Create awareness of the economic, social and cultural benefits of IP (IP Awareness and Promotion) Stimulate the creation and growth of IP (Creation of IP) Strong and effective laws that protect IP rights in a manner consistent with national priorities and intl obligations and that balance the interests of the rights owners and the public (Legal and Legislative Framework) Strengthen IP administration and management of IP rights (IP Administration and Management) Augment Commercialization of IP rights; valuation, licensing and technology transfer (Commercialization of IP) Strengthen enforcement and adjudicatory mechanisms to protect and combat against IP rights violations ( Enforcement and Adjudication) Human Capital Development in IP
The second prong of WIPO's suggestions is devoted entirely to the Baseline Survey Questionnaire. There are seven clusters identified: IP Administration and Management Generation of IP by universities, research organizations, business, industry, SMEs and individuals Commercialization of IP and technology transfer by universities, research organization, business, industry, SMEs and individuals Copyright and copyright industries Plan breeders; rights (plant variety protection) Enforcement of IP rights IP and public policy	While there are elements of these clusters in the draft policy, there is no mention of them in the context of the method of a Baseline Survey Questionnaire. This means that the data collection was not undertaken in compliance with WIPO's recommendations and means that there was either no data collected or the results are undermined.
Finally, the WIPO framework places great emphasis on the implementation of the policy.[8] It has elements of this in all three prongs. It requires the policy to have an effective framework for its implementation that includes resource mobilization and monitoring and evaluation mechanisms.[9]	The issue of implementation is covered by the draft policy at two levels: 1. Implementation of IP rights - This includes a) Placing the burden on individuals to protect their IP rights as IP is an "essentially private rights [sic]". [10] The state merely plays the role of the facilitator for protection. b) Enacting rules and setting up institutions. Examples include the Intellectual Property Rights (Imported Goods) Enforcement Rules 2007 framed to implement border control measures as well as the Copyright Enforcement Advisory Council. [11] Further, strengthening enforcement mechanisms includes the establishment of a centralized 'Multi-Agency Task Force' for coordination between the raft of agencies that India has. [12] c) Facilitate IP dispute resolution through the designation of a specialized patent bench in select High Courts. It also calls for the creation of regional benches of the IPAB in all five regions where IPOs are located as well as an increase in the powers of the IPAB. [13] 2. Implementation of the Policy itself -[14] a) It suggests that the integration of the policy with stated government programmes such as 'Make in India' and 'Digital India' would enable its implementation. b) The establishment of IP Promotion and Development Council (IPPDC) which will open IP Promotion and Development Units (IPPDU) for promoting IP awareness, protection and utlilization. c) IP support to MSMEs. d) Technology Acquisition and Development Fund under the Manufacturing Policy for licensing or procuring patented technologies. e) Manufacturing units will be encouraged to set up IP cells in their own units and make IP a part of their corporate strategy. f) Integrate with government initiatives.

Conclusion: Testing Times Ahead

The IPR Think Tank has not been consistent with WIPO's recommendations on drafting a National IPR Policy. In terms of data analysis, the Think Tank has not displayed an iota of the analytical rigour and data collection that WIPO believes is necessary to understand both the state of IP in the country and devise effective means of responding to lacunae. Further, while consultations have been held with civil society, these have been lacking in two respects. They have not followed the timelines prescribed by WIPO insofar as consultations have happened only after the release of the first draft. As a result, the Think Tank has failed in actualizing the raison d'etre behind national consultations - "enhance a wide range of IP stakeholders' ownership of the process of developing and eventually implementing a national IP strategy". Finally, this piece is not an endorsement of WIPO or its recommendations but a mere acknowledgement of the role WIPO has played in this exercise. In the final analysis, India has fallen short of adhering to the principles reflected in the WIPO framework.

[1] http://www.wipo.int/ipstrategies/en/methodology/

[2] The stakeholders that WIPO mentions are "..inter alia, the national IP office(s), relevant government departments, universities and research institutes, SMEs, inventors, creators, legal practitioners, non-governmental organizations (NGOs)".

[3] http://www.dipp.nic.in/English/acts_rules/Press_Release/pressRelease_IPR_Policy_30December2014.pdf

[4] http://spicyip.com/2015/01/examining-the-draft-national-ip-policy-stakeholder-meetings-to-be-held.html

[5] http://cis-india.org/a2k/blogs/national-ipr-policy-series-cis-comments-to-the-first-draft-of-the-national-ip-policy

[6] Methodology for the Development of National Intellectual Property Strategies, Tool 1: The Process, p. 11.

[7] National IPR Policy (First Draft), p. 6-23.

[8] Methodology for the Development of National Intellectual Property Strategies, Tool 1: The Process, p. 9.

[9] Ibid .

[10] Ibid , p. 20.

[11] Ibid , p. 20.

[12] Ibid , p. 21.

[13] Ibid , p. 22.

[14] Ibid , p. 25-26.

For more details visit https://cis-india.org/a2k/blogs/national-ipr-policy-series-indias-national-ipr-policy-what-would-wipo-think

National IPR Policy Series : Follow-up RTI to DIPP on the IPR Think Tank

nehaa — 2015-06-25T00:43:34Z

This RTI was prepared by Varun Baliga and Nehaa Chaudhari as a follow-up, based on the responses of the DIPP to our earlier RTI requests (available at http://cis-india.org/a2k/blogs/national-ipr-policy-series-rti-requests-by-cis-to-dipp-dipp-responses)

To,

Ms. Palka Sahni,

Deputy Secretary,

Central Public Information Officer,

IPR-II, IPR-III, IPR-IV, IPR-VI,

Room No. 254,

Udyog Bhawan, Delhi.

Subject: Request for Information under Section 6 of the Right to Information Act, 2005 regarding Information on the Procedure to File a Right to Information Application with the IPR Think Tank

Dear Madam,

1. Full Name of the Applicant: Nehaa Chaudhari

2. Address of the Applicant: Centre for Internet and Society, G-15 Top Floor, Hauz Khas, New Delhi - 110016

Mailing Address : nehaa@cis-india.org

3. Information Required: Context

Please consider this an application for information under Section 6 of the Right to Information Act, 2005. Since the request for this information is inextricable from the context in which it is made, it is previewed with a succinct overview of the facts.

I, as an employee of the Centre for Internet and Society ["CIS"], first filed a Right to Information ["RTI"] application with the Department of Industrial Policy & Promotion ["DIPP"] requesting information on the procedure followed in the appointment of the IPR Think Tank ["Think Tank"]. We received a response from the DIPP detailing the procedure followed. Then, we filed a RTI application with the DIPP requesting information on its functioning, particularly procedure followed and comments received prior to and after the release of the first draft of the National IPR Policy ["Policy"]. [1] In your response dated 26^th February 2015, the DIPP stated that the Think Tank functioned "independently without any interference of this Department (DIPP)". Therefore, apart from information that an "interactive meeting with stakeholders" was conducted while drafting the Policy, the DIPP stated it was not in a position to give any further information. Finally, the DIPP in a separate response dated 26^th February 2015, stated that "suggestions and comments on the draft of on [sic] National IPR Policy have been received by the IPR Think Tank directly". CIS followed this up by filing a RTI application with the Think Tank itself but we have not received a response.

4. Information Required: Details

Therefore, I seek information on the following:

a) The Think Tank is a public authority constituted for the purpose of the RTI Act. Who is the Public Information Officer of the Think Tank for the purpose of filing RTI applications? What are the measures taken by the Think Tank to comply with its obligations under the RTI Act?

b) What is the procedure to be followed in filing an RTI Application with the Think Tank?

c) Given that there is no information on the above, would the appropriate authority to request for information on the functioning of the IPR Think Tank be the DIPP?

5. Proof of Payment of Application Fee:

An Indian Postal Order for the amount of Rs. 10 dated ___________ favouring the Public Information Officer, Department of Industrial Policy & Promotion is enclosed as proof of payment of application fee.

This is to certify that I, Nehaa Chaudhari, am a citizen of India.

Please provide me this information at the address provided earlier in this letter.

Thank you

Yours sincerely

Nehaa Chaudhari

[1] http://cis-india.org/a2k/blogs/national-ipr-policy-series-rti-requests-by-cis-to-dipp-dipp-responses

For more details visit https://cis-india.org/a2k/blogs/national-ipr-policy-series-follow-up-rti-to-dipp-on-ipr-think-tank

National IPR Policy Series : Comments on the Proposed Intellectual Property Rights Policy to the Department of Industrial Policy and Promotion

nehaa — 2015-04-12T11:39:16Z

On 13 November, 2014, the Department of Industrial Policy and Promotion had released a Call for Suggestions for India's proposed National IPR Policy. This is the Centre for Internet and Society's (CIS) submission for the same.

Submitted by CIS with inputs from Pranesh Prakash, Director, Nehaa Chaudhari, Programme Officer, Anubha Sinha, Programme Officer and Amulya P., Intern. Click to view the PDF.

I. Preliminary

I.1. This submission presents comments from the Centre for Internet and Society ("CIS")[1] on the proposed National Intellectual Property Rights Policy ("National IPR policy") to the Department of Industrial Policy and Promotion, Ministry of Commerce and Industry, Government of India. ("DIPP").

I.2. CIS commends the DIPP for this initiative, and appreciates the opportunity to provide comments on the National IPR Policy. CIS' comments are as stated hereafter.

II. Principles

II.1.1. The characterization of intellectual property rights may be two- fold- first, at their core, intellectual property rights, are temporary monopolies granted to inter alia, authors and inventors; and second, they are a tool to ensure innovation, social, scientific and cultural progress and further access to knowledge. This dual nature and purpose of intellectual property protection is particularly critical in developing economies such as India. Excessive intellectual property protection could result in stunted innovation and negatively impact various stakeholders. [2] It is therefore our submission that the development of the IPR Policy be informed by broader principles of fairness and equity, balancing intellectual property protections with limitations and exceptions/user rights such as those for research, education and access to medicines.

II.1.2. These comments will evaluate the recent developments in the intellectual property regime in India and point out instances for possible reform.

II.1.3. These comments have been divided into five sections, dealing with patents, openness, open access to scholarly works, copyright, and negotiating free trade agreements in that order.

III. Detailed Comments

III.1. Patents

III.1.1. Key Issues Regarding Patents

III.1.1.1. The key issues involving patents in India include compulsory licensing, uncertainty in software patenting, slow pace of examination of patent applications, inter alia.

III.1.1.2. CIS submits that the Indian intellectual property regime contains numerous safeguards to ensure that monopolies of intellectual property are not exercised to the detriment of the public and that the National IPR Policy should continue to reflect these ideals.

III.1.2. Software Patents and Dual Monopoly

III.1.2.1. Presently, software in India may be copyrighted and computer related inventions are patentable. CIS is of the opinion that this results in an ambiguity that could potentially result in a dual monopoly over the same subject matter. This ambiguity around the legality of software patents and the scope of patents on computer related inventions has existed since the Parliament introduced the term "per se" to section 3(k) through the Patent (Amendment) Act, 2002, persisting despite repeated attempts[3] to bring about clarity in the law (the most recent one being the Draft Guidelines on Computer Related Inventions, released in 2013 by the Indian patent office).

III.1.2.2. CIS believes that software is currently adequately protected under copyright, and does not merit patent protection. The software industry in its infancy grew by leaps and bounds in the absence of patents, and imposing twenty year monopolies is stunting the development of software, especially, in an industry where technology changes every two to five years.

III.1.2.3. Therefore, CIS is of the opinion that the National IPR Policy should recognise the danger of software patenting, and encourage the adoption of and development of alternatives to a strict intellectual property regime, for instance, Free/Open Source/Libre Software.

III.1.3. Compulsory Licensing of Patents

III.1.3.1. CIS believes that the current regime allowing for compulsory licensing of patents in India helps achieve a balance between the two concerns of rewarding inventions and making them available to the public during times of need, of the rights of the patent holder with his obligations to ensure availability of products at a reasonable price by allowing third parties who do not own the patent to license the use of the patent during the term of protection.[4] CIS believes that such a balance cannot be arrived at merely by market mechanisms. CIS further believes that achieving such a balance is important for a developing country like India as we have special concerns regarding access to healthcare and access to technologies that will protect our national interest.[5]

III.1.3.2. Therefore CIS submits that the National IPR policy should continue to make positive allowances for government involvement in this space, through the compulsory licensing of patents in certain situations.

III.1.4. Alternative Licensing Mechanisms

III.1.4.1. CIS believes that government participation in the patenting regime ensures that all interests are taken on board and the social costs of patents are kept in mind. CIS is of the opinion that the National IPR policy should be formed after careful consideration of alternative patent licensing mechanisms that could help achieve a balance between the interests of different stakeholders particularly because as a developing economy we have greater needs for access to medicines and technologies to ensure economic development.[6]

III.1.4.2. On patent pools: In the interests of ensuring development of technology and innovation while balancing the social costs of patents, CIS submits that the National IPR Policy should consider alternative licensing mechanisms such as patent pools which present an efficient legal arrangement to the different problems that arise when companies have complementary intellectual property rights and these rights are essential to new technologies being used and employed[7]. Such a licensing could be done with government participation to ensure standard royalty rates and standard agreements.

III.1.4.3. On tailoring patent strengths: Our patent system provides for a one size first all approach to patent terms. CIS believes that the National IPR Policy could suggest the adoption of a more studied approach to differential patent strengths that properly balances out the benefits of the innovation against social costs of patents both in the form of monopoly pricing and threats to subsequent pricing is required to ensure that our patent system is fair equitable and in our national interest.[8]

III.1.4.4. On royalty caps: CIS believes that the National IPR policy could encourage bringing back royalty caps for certain sectors as a means of regulating the market and ensuring that access to technologies is unharmed. CIS believes that this will serve the larger national interest and ensure technological development.[9]

III.2. Openness

III.2.1. Free and Open Source Software

III.2.1.1. Free and Open Source Software ("FOSS") has emerged as a key agent in information technology policy making in India. There has been an increased importance of free and open source software in education, governmental agencies, as recently demonstrated by the Indian Government's decision to shift to open source software, in sync with the Digital India initiative.[10]

III.2.1.2. CIS believes that the IPR policy should encourage free and open software in education, governmental agencies etc. CIS believes that this shift in open source software is necessary to keep our IPR policy in sync with developments in the digital world.

III.3. Open Access to Scholarly Works

III.3.1. Open Access Policies and Scientific and Scholarly Works

III.3.1.1. The benefits of implementing an open access policy with regard to scientific and scholarly works are manifold. Providing open access to scholarly research will ensure percolation of cutting edge research into the society. It has been often argued that restricted access to government funded research is unethical, since scientific research conducted by government agencies is partly, if not entirely, funded by the taxpayers' money.

III.3.1.2. Government Initiatives Towards Open Access

III.3.1.2.1. CIS believes that the steps taken in this regard by the Department of Biotechnology and Department of Science to make scientific research publicly available by developing an open access policy are laudable, especially from the view of increasing access to research undertaken at these institutions.

III.3.1.2.2. There are several other government agencies which have implemented open access policies, namely, the Council of Scientific and Industrial Research, Indian Council of Agricultural Research and Institute of Mathematical Sciences. CIS believes that this is step in the right direction

III.3.1.2.3. Copyright is the key instrument to effect open access policies. CIS believes that the work should be appropriately copyrighted to allow for free and open access to any interested person.

III.4. Copyright

III.4.1. Exceptions for Fair Dealings

III.4.1.1. The 2012, Amendment Act extended fair dealing exceptions in several ways; to sound recordings, videos, to the making of three dimensional works from two dimensional works,[11] to storing of electronic copies at non-commercial public libraries, [12] to rights of commercial rental.[13] While the Act touched upon some of the burning issues with regard to limitations and exceptions to copyright, CIS believes that it did miss out on laying down clear rules for issues like exceptions for educational institutions, libraries and archives which is currently being negotiated at the standing committee of the WIPO as an international instrument,[14] parallel importation of books for non-commercial libraries, and extending the current exceptions for education to distance education and digital education. CIS is of the opinion that while this was a step in the right direction the IPR policy should continue the trend of extending exceptions for fair dealing and should encourage forming general guidelines for fair dealings as it would help achieve goals of education and scientific and cultural progress.

III.4.1.2. CIS believes that it would be beneficial if general guidelines for fair dealing were provided for. These guidelines must not take away from existing fair dealing exceptions under the law, but should act as a framework to understand what constitutes fair dealing. CIS submits that this coupled with support for the International Treaty for Limitations and Exceptions for Libraries and Archives[15] and for International Treaty for Limitations and Exceptions for Educational and Research Institutions [16]would help serve national interest as it would help reduce the freezing effect by reducing the costs of using copyrighted work legitimately and ensure social and cultural progress. CIS submits that the National IPR policy should encourage the international instruments aimed at providing for exceptions and limitations for fair dealings.

III.4.2. Exceptions for Government Produced Works

III.4.2.1. CIS believes that the current exceptions for use of government produced works are far too limited and taxpayers must be free to use the works that they have paid for.[17] CIS submits that the National IPR policy should encourage the broadening of exceptions with regard to government produced works.

III.4.3. Compulsory Licensing

III.4.3.1. The Act allowed for compulsory licensing of foreign works[18] and put in place statutory licenses for broadcasters[19] CIS believes that this was a positive step that will encourage cultural and scientific education in India. CIS submits that compulsory licenses for copyrighted works help achieve goals of education, of scientific and cultural progress. CIS submits that the National IPR policy should encourage compulsory licensing of copyrighted works in certain situations for the promotion of access to knowledge and information.

III.4.4. Protection of Authors/ Performers Rights

III.4.4.1. The Act allowed for protection of author's rights regarding storing of their work in electronic medium[20] and for protection of rights of performers both commercial [21] and moral.[22] CIS believes that while this is in itself a positive step, there is need to ensure that such moral rights are not abused by authors or rights holders to stop discourse or to stop fair use and adequate measures to ensure the same must be put in place to avoid excessive intellectual property rights. CIS submits that the National IPR policy should discuss limitations to moral rights of authors and performers to make room for fair dealings.

III.4.5. Users Rights Regarding Cover Versions Of Songs

III.4.5.1. The Act allows for users to make cover versions of a sound recording required provided they comply with rules regarding notices and royalties. CIS believes that this is potentially problematic as even recording companies have acknowledged that the non-commercial cover versions help in increasing the popularity of the original and therefore help in the growth of the film and music industry and this new law could possibly stop individuals from making such cover versions due to fear of violating the law and therefore harm the film and music industry. Therefore, CIS believes that the National IPR policy should consider measures to provide more rights to the users in order to ensure development of the music and film industry; CIS believes that this is an instance of excessive intellectual property and is harmful to all stakeholders involved.

III.4.6. Relinquishment of Copyright and Creative Commons

III.4.6.1. The amended Section 21 of the Act now only requires a simply public notice from the author to relinquish his copyright as opposed to an application to the registrar of copyrights. CIS believes that this is a positive step as now the requirement under the rules can easily be satisfied by using a Creative Commons Zero license.[23] CIS submits that the National IPR policy should undertake similar steps to encourage the usage of creative commons licenses and thereby facilitate access to knowledge.

III.4.7. Term of Protection of Copyrights

III.4.7.1. The Act provided for an extension of term of copyright for photographs to almost double its earlier duration, [24] CIS believes that this is possibly harmful as it could lead to copyrighted works not entering the public domain for unnecessarily long periods of time and thereby harm progress in science and culture. In this regard CIS further believes that since the term of protections provided under our copyright law for all works extends beyond our international obligations, The National IPR policy should try to ensure that scientific and cultural development are not hindered by excessive terms of protection that go beyond the minimum owed under our international obligations.

III.4.8. Protection Of Rights Management Information

III.4.8.1. The amendment Act provided for protection of rights management information (RMI) and provided for both criminal and civil remedies in instances of unauthorised alteration or removal of RMIs.[25] CIS believes that these provisions are unnecessary as India does not have obligations to do so under international treaties and there is no actual demand for these rights as it is yet unclear how these rights help authors or performers. CIS submits that these provisions increase the costs for users who want to legitimately break these digital locks to obtain accessible formats for the information and that so long as the rights holder does not have an obligation to ensure that their works are accessible, provisions such as these cripple creativity and stunt industry growth.[26] Therefore CIS submits that the National IPR policy should help achieve a balance of concerns of users who want to legitimately break these digital locks on the one hand and the need to prevent digital piracy on the other.

III.4.9. Intermediary Liability

III.4.9.1. CIS submits that due to the IT (Intermediary Guidelines) Rules, 2011, there is a freezing effect on free speech on the internet as these rules are procedurally flawed and go against the principles of natural justice.[27] CIS believes that such a restraint on free speech harms creativity and innovation, to this end CIS submits that the National IPR policy should ensure free speech is not unfairly hindered by rules regarding copyright infringement.

III.4.10. Criminalization of Copyright Infringement

III.4.10.1. Individual non-commercial infringement of copyright is a crime under Section 63A of the Copyright Act [28] and is punishable by imprisonment which can extend to three years or a fine that can extend up to rs. 2,00,000/- CIS believes that this is an instance of excessive intellectual property protection; CIS is of the opinion that the civil remedies available for copyright enforcement are enough for copyright protection and that the criminal remedies under the Copyright Act, 1957 function only to ensure that there are obstacles to free and legitimate use of copyrighted material. CIS believes that such provisions are harmful for innovation within India and impose unnecessary costs on users.[29] Therefore CIS believes the National IPR policy should reconsider the question of criminalisation of copyright infringement and should ensure that any penal consequences are proportional to the act committed.

III.4.11. Concluding Remarks on Copyrights

III.4.11.1. In conclusion while India has what some call the most balanced approach to intellectual property law in the world today, [30] one that balances both the interests of the author and the copyrights holder as well as the end user and the overall public interest, there is room for improvement as far as adapting to the internet age is concerned, especially considering the easy appeal of forming an intellectual property regime that is excessive and in the end harms all the concerned stakeholders.

III.5. Free Trade Agreements (FTAs)

III.5.1. Need for Transparency Regarding FTA Negotiations

III.5.1.1. India has lately been negotiating Free Trade Agreements with several developed nations, these are closed door negotiations and the texts of the meetings are not available to the public. CIS believes that these texts should be made available to the public to ensure transparency and to ensure all stakeholders know of any developments, CIS believes that public knowledge of the positions of various actors in any negotiation process will help ensure that such positions are taken keeping in mind the interests of all stakeholders and will ensure that any outcome from such negotiations will be in national interest.[31] CIS therefore submits that the National IPR policy should encourage transparency with regards to negotiations for free trade agreements.

III.5.2. FTAs with Developed Nations and TRIPS Plus Standards

III.5.2.1. Leaked drafts of the European Union- India FTA negotiations have revealed that provisions on intellectual property protection were extensive and affected the pharmaceuticals sector, these provisions, if agreed upon, could go well beyond India's obligations under the WTO and under the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement. In fact, developed countries including the US [32] and EU[33] have tried time again and again to encourage developing countries to adopt standards of IP protection in bilateral or regional trade investment agreements that go beyond TRIPS [34]

India has repeatedly indicated to the WTO that it was not willing to commit to an agreement beyond TRIPS.[35] These commitments could include data exclusivity protection measures, ever-greening of patents etc. [36]

CIS believes that despite the growing pressure from developed nations regarding various FTAs,[37] India must hold its ground and ensure that concerns about India's national interest and the difference in the development levels of the European Union or other developed countries and developing countries like India are kept in mind while negotiating obligations under international agreements. Therefore CIS believes that the National IPR policy should ensure that TRIPS plus standards are not acceptable to India as they will undermine our national interest and hinder development at the national level.[38]

III.5.3. Shift from Multilateral Forums to Bilateral FTA negotiations

III.5.3.1. CIS believes that the trend of shift in negotiations from a multilateral forum such as the WIPO or the WTO to a bilateral or a regional forum [39] is harmful as certain flexibilities are built into the TRIPS and therefore multilateral negotiations based on TRIPS will help pursue India's interests better. And therefore when possible, India must prefer negotiations at multilateral forums as opposed to bilateral or regional treaties, CIS believes that the National IPR policy should reflect the same preferences. [40]

IV. Concluding observations

IV.1. On patents, CIS submits that the National IPR policy reconsider software patenting, that encourage open source software, continue and strengthen that compulsory licensing and consider and study alternative licensing mechanisms as means to achieve a balancing of the interests of different stakeholders.

IV.2. On openness, CIS submits that the IPR policy should encourage free and open software in education, governmental agencies etc.

IV.3. On open access to scholarly work, CIS commends the work done by government agencies so far and submits that the IPR policy should encourage open access to scholarly works.

IV.4. On copyright, CIS submits that the IPR policy work toward strengthening and extending fair dealings provisions, supporting international instruments that strengthen fair dealing, encourage compulsory licensing. CIS submits that the IPR policy should work towards ensuring that protections for copyright such as terms of protection, intermediary liability, protection of rights management information, criminalisation of copyright infringement etc., do not harm other legitimate interests of users or unnecessarily restrict free speech.

IV.5. On FTAs, CIS submits that the IPR policy encourage transparency with regard to FTA negotiations, ensure that TRIPS plus standards are not accepted as they would harm national interest and to encourage multilateral negotiations over bilateral free trade agreements.

IV.6. CIS welcomes the initiative of the DIPP to form a National IPR policy, CIS believes that it is essential that such an IPR policy avoid excessive intellectual property rights protection and is formed keeping in mind goals of development and national interest.

IV.7. CIS is thankful to the DIPP for the opportunity to provide comments on the National IPR policy and would be privileged to work with the government on this and other matters in these areas.

[1] www.cis-india.org (Last Accessed: 30/11/14).

[2] The Washington Declaration on Intellectual Property and Public Interest concluded after the Global Congress on Intellectual property and Public Interest in August 2011 attended by over 180 experts from 32 countries articulate this position perfectly. Available at: http://infojustice.org/wp-content/uploads/2011/09/Washington-Declaration.pdf (Last Accessed:29/11/14)

[3] Shashank Singh, Guidelines for Examination of Computer Related Inventions: Mapping the Stakeholders' Response, Available at: http://cis-india.org/a2k/blogs/guidelines-for-examination-of-computer-related-inventions (Last Accessed: 30/11/14).

[4] N.S. Gopalakrishnan, Compulsory License Under Indian Patent Law, MPI Studies on Intellectual Property and Competition Law, Vol.22, 2015, pp.11-42.

[5] Raadhika Gupta, Compulsory Licensing under TRIPS: How Far it Addresses Public Health Concerns in Developing Nations, Journal of Intellectual Property Rights, Vol.15, September 2010, pp.357-363. Available at: http://nopr.niscair.res.in/bitstream/123456789/10211/1/JIPR%2015(5)%20357-363.pdf (Last Accessed: 30/11/14).

[6] Id.

[7] Nehaa Chaudhari, Pervasive Technologies: Patent Pools, Available at: http://cis-india.org/a2k/blogs/patent-pools (Last Accessed: 30/11/14).

[8] One of the measures along which we could have differential patent strengths could be the time for the invention to reach the market, see, Benjamin N Roin, The case for Tailoring Patent Awards Based on the Time-to-Market of Inventions, UCLA Law Review, Vol.61, 2013, Available at: http://dash.harvard.edu/bitstream/handle/1/10612849/Case%20for%20Tailoring%20Patent%20Awards%203-15-13.pdf?sequence=1 (Last Accessed: 30/11/14).

[9] Sunil Abraham, Patented Games, Available at: http://cis-india.org/a2k/patented-games (Last Accessed: 30/11/14.

[10] See Nabi Hasan, Issues and Challenges in Open Source Software Environment with Special Reference to India, Available at: http://crl.du.ac.in/ical09/papers/index_files/ical-43_144_317_1_RV.pdf (Last Accessed: 30/11/14).

[11] Section 52(1), the Copyright (Amendment) Act, 2012.

[12] Section 52(1) (n), the Copyright (Amendment) Act, 2012.

[13] Zakir Thomas, Overview of Changes to the Indian Copyright Law, Journal of Intellectual Property Rights, Vo.17, July 2012, pp.324-334.

[14] See conclusions of the chair at the 23^rd session of the Standing Committee on Copyright and Related Rights at the WIPO, Available at: http://www.eifl.net/wipo-sccr23-conclusions (Last Accessed: 30/11/14).

[15] For draft proposal of the treaty see IFLA, Treaty proposal on Limitations and Exceptions for Libraries and Archives, Available at: http://www.wipo.int/edocs/mdocs/copyright/en/sccr_27/sccr_27_2_rev.pdf (Last Accessed: 30/11/14).

[16] See The Draft WIPO Treaty on Exceptions and Limitations for the Persons with Disabilities, Educational and Research Institutions, Libraries and Archives, proposal by the African Group (document SCCR/22/12).Available at: http://www.wipo.int/edocs/mdocs/copyright/en/sccr_22/sccr_22_12.pdf (Last Accessed: 30/11/14).

[17] See Section 52(q) of the Copyright Act, 1957.

[18] Section 31 and 31A, the Copyright (Amendment) Act, 2012.

[19] Section 31D, the Copyright (Amendment) Act, 2012.

[20] Section 14(1), the Copyright (Amendment) Act, 2012.

[21] Id.

[22] Section 38B, the Copyright (Amendment) Act, 2012.

[23] CIS, Comments on Draft Copyright Rules, 2012, available at: http://cis-india.org/a2k/feedback-to-draft-copyright-rules-2012 (Last Accessed: 29/11/14).

[24] See Pranesh Prakash, Analysis of the Copyright (Amendment) Bill, 2012, Available at: http://cis-india.org/a2k/blogs/analysis-copyright-amendment-bill-2012

[25] Section 65B, The Copyright (Amendment) Act, 2012.

[26] Pranesh Prakash, Technological Protection Measures in the Copyright (Amendment) Bill, 2010, Available at: http://cis-india.org/a2k/blogs/tpm-copyright-amendment (Last Accessed: 29/11/14).

[27] Rishabh Dara, Intermediary Liability in India: Chilling Effects on Free Expression on the Internet, 2011, Available at: http://cis-india.org/internet-governance/intermediary-liability-in-india.pdf (Last Accessed: 30/11/14).

[28] Section 63A, Copyright Act 1957.

[29] See Right to Share: Principles on Freedom of Expression and Copyright in the Digital Age, Article19, Available at: http://www.article19.org/resources.php/resource/3716/en/ (Last Accessed: 29/11/14).

[30] V Premanath, S Sivaram, Intellectual Property Systems in India: Progressing towards Greater Maturity and Diversity, Available at: http://iimahd.ernet.in/users/anilg/files/Articles/Emerging%20IPR%20Consciousness,%20vikalpa.pdf (Last Accessed: 29/11/14).

[31] Jan Wouters, Idesbald Goddeeries, Bregt Natens etc, Some Critical Issues in the EU -India Free Trade Agreement Negotiation, Working Paper No.102,KU Leuven Centre for Global Governance Studies, https://ghum.kuleuven.be/ggs/publications/working_papers/new_series/wp101-110/wp102-wouters-goddeeris-natens.pdf , February 2013, p.16.

Monika Ermert, Lack of Transparency in EU-India FTA Talks Spurs Requests for Halt, ip-watch, Available at: http://www.ip-watch.org/2010/09/03/lack-of-transparency-in-eu-india-fta-talks-spurs-requests-for-halt/ .

[32] The current policy of the US Trade Representative is seen to be reflected in the 2002 Trade Act available here: http://www.gpo.gov/fdsys/pkg/BILLS-107hr3009enr/pdf/BILLS-107hr3009enr.pdf See HR3009.

[33] The current trade strategy for the EU can be found here http://trade.ec.europa.eu/doclib/docs/2014/july/tradoc_152643.pdf .

[34] Commission on Intellectual Property Rights, Integrating Intellectual Property Rights and Development Policy, Available at: http://www.iprcommission.org/papers/pdfs/final_report/ciprfullfinal.pdf , p.174.

[35] C. Correa, 'Negotiation of a Free Trade Agreement European Union-India: Will India Accept Trips-Plus

Protection?', (2009) Oxfam Deutschland and Evangelischer Entwicklungsdienst Analysis,

http://www.oxfam.de/files/20090609_negotiationofafreetradeaggrementeuindia_218kb.pdf .

[36] S. Sharma, 'the EU-India FTA: Critical Considerations in a Time of Crisis', (2009) Centad Working Paper.

[37] Asit Ranjan Mishra, India to negotiate FTAs with emerging market nations, Livemint, Available at: http://www.livemint.com/Politics/RlJNxUXovjNVaRzQt9KXmO/India-to-negotiate-FTAs-with-emerging-market-nations.html .

[38] Sisule F Musungu and Graham Dutfield, Commission Multilateral Agreements and a TRIPS -Plus Word: the World Intellectual Property Organisation (WIPO), Available at: http://www.iprsonline.org/ictsd/docs/WIPO_Musungu_Dutfield.pdf.

[39] For Trends, See Beginda Pakpahan, Deadlock in the WTO: What is next? Available at: http://www.wto.org/english/forums_e/public_forum12_e/art_pf12_e/art19.htm .

[40] See Amit Sengupta, Do not trade away our lives, Vo.9, No.2, Indian Journal of Medical Ethics, 2012, Available at: http://www.issuesinmedicalethics.org/index.php/ijme/article/view/88/1047 .

For more details visit https://cis-india.org/a2k/blogs/comments-on-proposed-ip-rights-policy-to-dipp

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

nehaa — 2015-02-09T00:59:10Z

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

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

Preliminary

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

About CIS

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

Structure of this Submission

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

Principles

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

Detailed Comments

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

On the Vision

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

On the Mission

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

On Objective 1: IP Awareness and Promotion

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

On Objective 2: Creation of IP

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

On the IP-Innovation/ Creativity Nexus

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

On Utility Models

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

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

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

On Objective 3: Legal and Legislative Framework

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

On Utility Models and Intellectual Property in Public Funded Research

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

On the Negotiation of International Treaties and Agreements

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

On Limitations and Exceptions

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

On Standard Setting

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

On Objective 5: Commercialization of IP

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

Concluding Remarks

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

31 Id .

32 Id .

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

34 Id .

35 Id .

36 Id .

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

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

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

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

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

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

43 See

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

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

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

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

48 Id .

49 Id .

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

73 Id.

74 Id.

75 Id.

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

77 Id .

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

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

80 Id .

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

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

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

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

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

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

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

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

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

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

National Conference on Competition & IPR in ICT, Telecom & Mobile Sets

praskrishna — 2016-05-30T01:50:19Z

Rohini Lakshané and Anubha Sinha attended this conference held at Vigyan Bhawan in New Delhi on May 18, 2016. The event was organized by CMAI.

This was a specific conference dedicated to Make in India especially Mobile, Telecom and role of Competition v/s IPR. The speakers were from CCI, Industry and Legal luminaries. There is a need to arrive at balance between Competition and IPR. The conference was aimed to address the issues of IPRs v/s competition, role of SSO in standard settings, SEP’s contentions, basis of FRAND negotiations and need to recommend to Government to form an appropriate policy that is suitable for Make in India.

The conference focused on the need to discuss these issues with all the stakeholders and come out with appropriate status on the date and its relevance on Make in India and appropriate recommendations to the government. Further details of the conference can be accessed here.

For more details visit https://cis-india.org/a2k/news/national-conference-on-competition-ipr-in-ict-telecom-mobile-sets

Modi’s New Intellectual Property Rights Policy Will Only Benefit Players with Deep Pockets

sinha — 2016-05-28T16:02:54Z

The new policy fails to enact a balanced regime and instead is tilted in favour of rights-holders.

The article was published in Wire on May 21, 2016

In November 2014, five national governments wrote to the Department of Industrial Policy and Promotion (DIPP) to inform the policy-making process of India’s first national intellectual property rights policy (IPR policy). The DIPP received 300 submissions from various other stakeholders, including NGOs and civil society, multinational companies, businesses and trade associations, cutting across various sectors. The policy-making process itself was marred by bizarre, unfair and unexplained steps such as the sudden disbanding of the first think tank put in charge for producing a draft policy, an opaque and long-drawn process of releasing a first draft, the leak of a near-complete final draft and no publication of responses (yet) of the 300 odd submissions that were made by stakeholders. Finally, the DIPP released the policy last week.

Despite the long and extensive drafting process, the policy is tilted in favour of right-holders, and places undue reliance on IPRs to stimulate innovation and growth. It obviously claims otherwise, but there are some fundamental flaws in the policy’s premise which render the DIPP’s claims meaningless. Delving briefly into the subject of IPRs, it is a matter of principle that a balanced intellectual property (IP) regime, i.e. a model that balances rights with adequate limitations/exceptions, contributes optimally to the holistic development and growth of the nation. Limitations or exceptions are flexibilities in the law, which cut down absolute monopoly conferred by IPRs, and ensure that use and sharing of knowledge for purposes such as research, education and access to medicines are not overridden by IP rightholders’ claims. The Trade-Related Aspects of Intellectual Property Rights agreement (TRIPS), which is the largest international agreement governing countries’ IPR regimes also promotes the use of these flexibilities to build balanced regimes. The policy does occasionally state its commitment to the TRIPS agreement and the Doha Declaration, but does not commit or spell out any new concrete steps. Thus, it fails to show any seriousness about upholding and promoting a ‘balanced’ regime – in stark comparison to the detailed and surgical manner in which it aims to raise awareness about IPRs and commercialise them.

Unfortunately for the policy, a myopic rationale captures the ambition of the document. The policy document states that, “The rationale… lies in the need to create awareness about the importance of IPRs as a marketable financial asset and economic tool.” As such, the policy fails to recognise the philosophy of welfare and balance embedded in IPRs: to ensure innovation, social, scientific and cultural progress and furtherance of access to knowledge. In all fairness, while the document pays a salutary tribute to objectives such as “achieve economic growth and socio-cultural development, while protecting public interest; also of advancing science and technology, arts and culture, traditional knowledge and biodiversity, transforming knowledge-owned into knowledge shared,” it never rises above its treatment of IPR as a tool to solely serve the interests of rights-holders.

The policy’s attempts to ‘create awareness’ about IPRs through massive outreach and promotion would perhaps be justified, if the singular aim was not the glorification of IPRs. This section implements several steps to induce positivity around IPRs in society to the extent of teaching young students about the benefits of IPRs, which is excessive. While I am of the opinion that awareness building may be important at research centres and industries, a lopsided rights-centric positive view of IPRs should not pass off for ‘awareness’. This is a dangerous view, and will only create a mad race to generate IP and acquire rights.

Chinese copycat?

Unfortunately, it appears that the government is indeed on board with this. I say this because the lopsided view was endorsed by senior Indian Patent Office and DIPP officials at a recent national conference. It is likely that the idea to use the IPR policy as a tool for ‘IPR indoctrination’ to result in staggering IPR generation came to the Indian government from their Chinese counterparts. In 1995, China started conducting elaborate training of its officers, researchers and students to popularise a generation of IPRs and last year the country received 10 lakh patent filings – an international record. At the conference, the officials were in awe of the Chinese statistics, and they were confident of catching up in the next few years. This despite the fact that in China, the race to patent innovations has only led to a proliferation of low value innovations in high numbers. Less than 1% of China’s patents are of intermediate or high value. Thus, China despite its high patent filings shows only a weak innovative performance. Globally, there is enough evidence to show that there is no positive correlation between patent filings and cumulative innovative performance of a country.

Further, the policy in its bid to maximise IPR generation goes to the extent of encumbering public-funded research by IPRs. It suggests that R&D institutions and academia reward researchers based on the degree of IPR creation, which would obviously lead to IPR-driven research. Such an approach would mean that research on less profiteering sectors in terms of IPR revenues would be neglected. Is this how we want our fledgling research and development sector to shape up?

It is disappointing to see how the DIPP has used the policy to strengthen administrative, enforcement and adjudicatory mechanisms for only trade protectionist purposes. The policy is also in contrast with steps taken by other government departments to foster access to knowledge and openness in domains traditionally encumbered by various barriers, including IPRs. For instance, the Department of Biotechnology, Department of Science and Technology has adopted an open access policy applicable to all researchers – this policy ensures that all publications resulting from publicly funded research will be made freely accessible. The Ministry of Law and Justice is in the process of finalising a suitable licence to enable the distribution and sharing of government data. This policy seems at odds, therefore, with other commons-oriented approaches adopted within the government itself.

Next up, pharma

India’s generic drug industry has been a saviour for providing affordable drugs worldwide. The most critical provision to ensure a check on ‘evergreening’ of patents is section 3(d) of the Patents Act, 1970. This provision along with compulsory licensing mechanism has been regularly attacked by big pharma. However, the policy does not mention or affirm its commitment to using such tools effectively. Moreover, the policy also misses an opportunity to stress on enforcement of form 27 filings by patent-holders. Form 27 filings demonstrate if a patent is being ‘worked’ in a territory or not, and if it is not worked adequately, a third party can apply for a compulsory licence. Both the Indian Patent Office and patent holders have largely neglected providing form 27 in a timely manner. The policy also over-reaches in certain areas. It mandates the creation of a separate offence for illegal duplication of films – which is completely unwarranted and redundant. The creation of a new criminal penalty for what essentially is infringement and already punishable (under Indian Copyright Act, 1957) comes directly from lobbying by movie studios.

Finally, while it is laudable that the policy aims to step up the efficiency of all concerned IPR offices, there is little to suggest that the policy is capable of nurturing and protecting a balanced IP regime. The flawed assumption of a linkage between IPR generation and cumulative innovation underpins the document, which should have no place in any national IPR policy. It is common knowledge that India had been under pressure from western governments and industry lobbies to ‘strengthen’ its IPR regime to the likes of matured economies and societies. India, a fast developing country, could have secured its unique developmental needs through a more balanced and nuanced IPR policy. But the changes that have taken place will largely benefit a small fraction of the ecosystem, one with deep pockets and great power.

Anubha Sinha is a programme officer at CIS. She works primarily on the Pervasive Technologies Project, and on other issues involving intellectual property law and openness.

For more details visit https://cis-india.org/a2k/blogs/modi2019s-new-intellectual-property-rights-policy-will-only-benefit-players-with-deep-pockets

Mixed Reactions Among Participants In WIPO Talks On Treaty For The Blind

praskrishna — 2013-04-25T08:08:47Z

At the close of this week’s negotiating session for an international treaty on copyright exceptions for blind and visually impaired persons, some governments, including upcoming host Morocco, expressed disappointment in the outcome of a three-day drafting session, as it left so much for the diplomatic conference. But most said they are optimistic that solutions can be found.

The article by William New was published in Intellectual Property Watch on April 22, 2013. CIS is quoted.

An informal session of the WIPO Standing Committee on Copyright and Related Rights (SCCR) was held from 18-20 April. The diplomatic conference (top-level political negotiation) will be held in Marrakesh, Morocco from 17-28 June. The session concluded a draft treaty text with numerous areas lacking agreement (IPW, WIPO, 22 April 2013).

A delegate from Morocco said at the meeting closing that he had “mixed feelings” about the outcome of the three days and was “somewhat disappointed” by the inability to remove brackets in text, signifying areas of disagreement.

“Marrakesh will be the last chance” to agree on this treaty, he warned. “There will be no room for mistakes. In Marrakesh, we will be in front of the entire international community.” Even with pressure from creators and artists, the membership must persist with this “humanitarian gesture,” he said, adding, “We must conclude, in Marrakesh, a treaty.”

A delegate from Honduras, speaking on behalf of the Group of Latin American and Caribbean countries (GRULAC), cited concern about a “backward trend” occurring in the talks, increasing the risk of failure in Morocco.

The Egyptian delegate said the results “make us worried” for Marrakesh, as new proposals are still coming up at this late stage. “We are going with many difficulties,” he said, stressing the importance of the humanitarian side “rather than the cost and gain criterion.”

But Algeria, on behalf of the African Group, praised the treaty as “an excellent basis for Marrakesh.” Nigeria, which was active on the part of the African Group, also restated the commitment to accomplish a treaty that will be “meaningful to those who need it,” as well as to creators. “The interests are competing but not irreconcilable,” the delegate said.

The United States said the aim is to have a treaty that will lead to a solution for the blind while protecting the “world’s authors.” But there are “simply too many brackets and too many options for us to be comfortable,” he said, so everyone should be prepared to show flexibility.

Rights Holders’ Concern for Protection

Rights holders such as publishers whose works will be exported have sought to explain their concern about a treaty whose purpose would be to allow copyrighted content to circulate freely. Among their concerns is that the accessible formats may be usable by sighted readers and may make it back upstream to developed country markets. They also are viewing the approximately 280 million blind and visually impaired persons worldwide as a potential market.

The International Publishers Association said they are fully committed to a treaty that will address the problem and work on the ground, and that the only accusations of bad faith have come from NGOs, not member states. The international publishers’ community wants access for visually impaired persons, “not only on paper but in reality,” he said.

A representative of the Association of American Publishers told Intellectual Property Watch that negotiators were close to a consensus document two years ago but that industry concerns had gradually increased its complexity. He said publishers “have never opposed this treaty,” and that nothing is stopping nations from adopting limitations and exceptions at the national level. More than 50 countries already have some form of limitations and exceptions, he said, while others consider that it would “politically useful” to have a treaty saying that adoption of such limitations and exceptions is an international norm.

Publishers also understand the need for flexibility for countries to adopt such provisions in suitable ways to their national systems. But in order to agree, publishers wanted it clear that such provisions adhere to international laws, including the 3-step test, which places strict conditions on the use of the limitations and exceptions. Also, this instrument must include a mechanism for accountability, a process for dealing with an authorised entity that is not complying.

“The objectives of this treaty can be attained within the established international framework,” he said.

In creating the first-ever treaty on exceptions to copyright, representatives of a range of rights holders sought to ensure that it will not harm to their existing system. In the hallways of WIPO, they expressed concern that this treaty not set a precedent of exceptions that would erode copyright. Concern over precedent led lobbyists to come not only from the publishing industry but also the film industry.

A representative of the International Video Federation implied that even if a deal is struck on a treaty, governments won’t ratify it if they do not like what it says. The treaty “needs incentives for as many ratifications as possible,” he said, and addressing commercial availability is one way to offer an incentive.

Any instrument needs to provide as much certainty as possible, he added. Fair use and fair practices are not a familiar notion in international copyright law and should not be mentioned in this treaty, he said, adding that members are “absolutely free” to do what they want on fair use.

A Motion Picture Association representative said at closing that the industry has “unambiguous support” for the treaty, but that it rejects what it sees as “attempts to roll back” other treaties. “Attempts to hijack” the treaty talks “cannot be tolerated,” he said.

A Knowledge Ecology International (KEI) representative responded that this was “hypocritical” of the MPA as it has “hijacked the political process to turn this into some kind of ACTA exercise,” referring to the controversial Anti-Counterfeiting Trade Agreement negotiated a couple of years ago.

NGO Concerns about Lost Focus

As described by the World Blind Union (WBU), which contributed to the initial treaty concept, the new treaty is expected to: “Allow specialist organisations to make accessible copies of books in all signatory countries; Make it legal to send accessible books across national borders; Still respect copyright law: it is not an attack on publishers!; Make more books available for blind people.”

But the WBU raised alarm at the close of this week’s session. Fred Schroeder, first vice president of the WBU, said in the statement, “The purpose of this treaty is to ensure access to books for blind people and help end the ‘book famine’ we face. WBU is alarmed that some of the negotiators have focused their efforts almost exclusively on crafting language around copyright protections that have nothing to do with the ability of authorized entities to produce books for the blind and visually impaired.”

“The shift away from a treaty for the blind to a treaty focussed on rights holder protections has taken up precious negotiating time which should be directed at ensuring a treaty that makes it possible for materials to be shared internationally,” he said. “For example, the negotiators have spent considerable time talking about the concept of commercial availability when, in practice, there is no reason why an authorized entity would spend its limited resources to duplicate works in formats that already exist.” A WBU representative noted in the plenary meeting earlier that the treaty is about exceptions and does not require restating details of existing treaties and rights but rather just could make reference.

An Indian delegate asked, “Is this a WIPO treaty on access to published works for [visually impaired persons], or a WIPO treaty on the protection of the 3-step test?” He said the treaty is critical for India, which has 40 percent of the world’s blind and visually impaired people. The treaty would give the important cross-border access to accessible format books and work as a stimulus for Indian publishers to publish in those formats as well.

Jonathan Band, a Washington, DC attorney speaking on behalf of the Library Copyright Alliance, told negotiators that there are now possibly 10 references to the 3-step test in the draft text, and only one indirect reference to the principle of fair use and fair dealing. But those latter principles are found in some 45 national laws, making it a widely adopted norm, he said. Overall, the treaty has become far too complicated for countries to use, and has strayed from the original idea of having a simple template and structure.

A representative of the Center for Internet and Society (CIS) in India, said: “There is nothing in these provisions that would convert infringement by sighted people under the pretence of this treaty magically into lawful acts. And, indeed, there are multifarious ways of infringing copyright without such resort to this treaty. Yet, these very same onerous requirements (such as the “commercial availability” requirement) and bureaucratic processes will unrealistically increase transaction costs for the visually impaired and render infructuous the very purpose of this treaty.

The CIS representative cast particular blame on the European Union for going against the demands of the European Parliament to address the ‘book famine’ of the blind and visually impaired, and to live up to international obligations on disabilities. “The EU, and a few countries of Group B, including the United States, have been slowly bleeding this treaty to death through over-legislation and bureaucracy.”

“Here is what it boils down to,” he continued. “[W]hen it comes to the economic rights of copyright owners, current international law insists that there be no formalities, yet when it comes to the human rights of visually impaired person to access information – a right specifically guaranteed to them under the UN Convention on the Rights of Persons with Disabilities – some delegates in this room wish to ensure as many formalities as possible.”

The representative of KEI told negotiators that for the “non-Berne” clause, they would be better off to use the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) than Berne. He said TRIPS is more balanced, recognises the first-sale doctrine (which says copyright expires after sale of the item), and has other flexibilities. KEI also said in its closing remarks that the purpose of the treaty is to help visually impaired people, and anyone outside the treaty is subject to copyright law already.

A WBU representative told negotiators that the treaty must have a practical application for solving the lack of materials for blind people, especially in developing countries. “We are here to solve a human rights problem,” he said. “Our goal is not a treaty, but rather a treaty that will solve access” to published works.

As one delegate put, members will feel pressure to do whatever it takes to conclude a treaty because whoever stands in the way of this effort for blind people “will be branded as a villain.”

For more details visit https://cis-india.org/news/ip-watch-william-new-april-22-2013-mixed-reactions-among-participants-in-wipo-talks-on-treaty-for-the-blind

MHRD IPR Chair Series: Introduction

Amulya Purushothama — 2015-09-03T15:17:22Z

In this blog post, Amulya Purushothama announces our new MHRD IPR Chair Series and charts the sequence of events, starting from the establishment of the MHRD IPR Chairs, to discussions surrounding their purpose and functioning, to concerns surrounding the lack of information about the IPR Chairs, the first round of RTIs CIS had filed in regard to this and the responses received. This series will document and analyze further RTIs filed and responses received in this regard.

Special thanks to CIS Intern Aditya Garg for his research and support on this.

Genesis of MHRD IPR Chairs

The Intellectual Property Education, Research and Public Outreach (IPERPO) scheme (Scheme) was set up by the Ministry for Human Resources and Development (MHRD) to encourage study of IP rights and research and create awareness about IP matters. The Scheme was also supposed to develop specialized courses, train enforcement personnel, organize seminars and workshops on IPR matters, develop inputs, awareness on WTO matters and evolve strategies of regional co-operation.

It was under this scheme that the MHRD-IPR Chairs were set up. These IPR Chairs were set up in 20 Universities and Institutes across India including 6 in Universities, 6 in IITs, 5 in National Law Universities and 3 in IIMs.

Performance of MHRD IPR Chairs

CIS had reported that the Planning Commission and the MHRD in 2014 organized a stakeholders consultation where they discussed India’s National Program on Intellectual Property Management. Apart from discussing the need to revisit the purpose behind the MHRD IPR Chairs program, One of the documents discussed in the context of evaluating how the IPR Chairs function was the Report of the Evaluation Committee on Continuation of the Scheme of IPERO in the XII Five Year Plan Period 2012-2017 (Evaluation Committee Report).

The Evaluation Committee Report among other things noted that many IPR Chair positions are left vacant, that there is no explicit mandate for the activities to be undertaken by the MHRD IPR Chairs, that most of the Chairs only organize a few workshops and deliver lectures and as a consequence the research outputs produced by the Chairs have been very weak. This leads to underutilization of funds available under the scheme.

The Evaluation Committee Report stated that the IPR Chairs were not performing well due to a number of reasons such as: inability to find a suitable Professor level person to occupy the IPR Chair, absence of qualification-criteria for the IPR chair in the Scheme, lack of focus on research, development of human resource and teaching, non-appointment of adequate staff by IPR Chairs, flow of funds to the IPR Chair being interrupted due to lack of proper documentation, uncertainty about the continuation of IPR Chairs etc.

Informational vacuum around MHRD IPR Chairs

The MHRD launched the MHRD IPR Chair Gateway recently. It was developed by the IPR Chair of NALSAR to serve as a forum where the information about the team of the MHRD IPR Chair, research work done by them, events hosted by them and degrees offered by them are available in one common platform. This gateway is a definite improvement when compared to the website of the Copyright Office which was the central host for the MHRD IPR Chairs earlier.

However, the website is difficult to navigate through and even though the design of the gateway is comprehensive, the information is uploaded by the individual IPR Chairs themselves. The information about some MHRD IPR Chairs is up to date, while some others. None of the Chairs seem to have uploaded the mandated Annual Report of their work.

As CIS has reported earlier there exists an informational vacuum around the activities of the MHRD IPR Chairs, the funds allocated to them and accounts of utilization of these funds. Most of the information that is available can only be found in pieces and fragments. The last near comprehensive account of allocation and expenditure of funds with regard to all the IPR Chairs is the Evaluation Committee Report that dates back to 2013.

The following table shows a matrix of individual MHRD IPR Chairs, their status, and information available about them.

S.No.	Name of Institute	Instituted	Present Status	Last Active	Website	Information Available
1	University of Delhi		Active (since February 2014)		Chair is supposed to be working in Cluster Innovation Centre, DU.	Information present on the MHRD website; no separate dedicated website.
2	University of Madras		Active (Co-coordinator assigned)		None.	None, even on University of Madras website.
3	Cochin University of Science and Technology (CUSAT), Cochin	2003	Not Active	March 2012	http://ciprs.cusat.ac.in/hrdchair.php Link on CUSAT’s Schools of Legal Studies’ website which is supposed to redirect – broken	Provides information of work done under the Chair till 2012.
4	Tezpur University	2010	Active		http://www.tezu.ernet.in/mhrdipr/index.html	Lists their objects and past activities up to 2012; interestingly the name of the IPR Chair cannot be found on this website, although the name of the Staff is present.
5	National Law School of India University (NLSIU), Bangalore		Active		https://www.nls.ac.in/index.php?option=com_content&view=article&id=65%3Athe-centre-for-intellectual-property-research-and-advocacy-cipra&catid=6%3Aacademic-programmes&Itemid=32	Provides information about their project (developed iprlawindia.org). No dedicated website.
6	Indian Institute of Technology (IIT), Kanpur		Not Active (site says selection process is ongoing)	June 2010	None.	None.
7	Indian Institute of Technology (IIT), Kharagpur		Not Active	October 2013	None.	None.
8	Indian Institute of Technology (IIT), Bombay		Active		Functions under Shailesh J. Mehta School of Management, IIT-B (http://www.som.iitb.ac.in/) but no separate website.	Nothing on the SJMSOM website.
9	Indian Institute of Technology (IIT), Madras		Active		Works under Department of Management Studies, IIT-Madras (http://www.doms.iitm.ac.in/) but no separate website.	Annual Report for 2014-15: https://www.dropbox.com/s/4tmyrkdmwvfa3ud/Annual%20Report%20IPR%20Chair%20IITM%202014-2015.pdf?dl=0
10	Indian Institute of Technology (IIT), Delhi		Currently on Leave		Works under Department of Management Studies, IIT-Delhi (http://dms.iitd.ac.in/ ) but no separate website.	Nothing on the DOMS website.
11	Indian Institute of Technology (IIT), Roorkee		Active		http://www.iitr.ac.in/ipr/ - Website of their IPR Cell; doesn’t list the work of the MHRD IPR Chair separately.	Basic activities undertaken by their Cell; nothing in particular about research work done by the Chair.
12	Jawaharlal Nehru University (JNU), Delhi		Active		Works under Centre for Economic Studies and Planning, School of Social Sciences, JNU. No separate website.	No information about the work undertaken.
13	Delhi School of Economics, DU, Delhi		Not Active		None.	None.
14	Indian Institute of Management (IIM), Ahmadabad		Not Active.		None.	None.
15	Indian Institute of Management (IIM), Calcutta		Not Active.		None.	None.
16	Indian Institute of Management (IIM), Bangalore		Active	2004	No information on the IIM Bangalore website.	None.
17	NALSAR University of Law, Hyderabad		Active		Works under N. C. Banerjee Centre for Intellectual Property Rights Studies.	List of activities undertake have been mentioned in the Centre’s working. No separate dedicated website.
18	National Law University (NLU), Jodhpur		Active		http://www.nlujodhpur.ac.in/mhrd_ipr_chair.php	Lists down the work undertaken, events hosted, research, etc.
19	National Law University (NLU), Bhopal		Active		None.	None.
20	West Bengal National University of Juridical Sciences (WBNUJS), Kolkata		Not Active	December 2013	None.	None

As can be seen, out of the twenty MHRD IPR Chairs, only 13 remain active while the rest have become inactive. The MHRD Chair at IIT Kanpur was last active over five years ago in June 2010. Out of the twenty, 11 IPR Chairs either do not have a website or redirect to a broken link. Out of the 20, fifteen do not provide any information or only provide for outdated information. Only one of the twenty, the IIT Madras Chair, has provided the mandated Annual Report for 2014-2015.

RTIs and Responses

CIS has filed several RTIs before the IPR Chairs asking for information regarding allocation of funds and utilization of funds.

The first round of RTIs filed in November 2014, elicited adequate responses from seven out of twenty IPR Chairs. Among the rest, the IPR Chairs at Jawaharlal Nehru University, Delhi University, Delhi School of Economics, Tezpur University and CUSAT Kerala did not provide information. And IIT Kharagpur sought exemption from providing this information under Section 8(1) (d) of the RTI Act, 2005.

Of those who did respond favorably to the RTI and had received money (five in number), three institutions, NLU Jodhpur, NALSAR University of Law, Hyderabad and IIT Bombay had underutilized the funds allocated to them. NLSIU, Bangalore had spent more than the allocated funds and IIM, Bangalore had spent the entire amount allocated.

MHRD IPR Chair Series

We have since followed up with the IPR Chairs with further RTI applications and received responses for the same. Updates on the same will now be part of our MHRD IPR Chair Series. Watch this space.

For more details visit https://cis-india.org/a2k/blogs/mhrd-ipr-chair-series-introduction

MHRD IPR Chair Series: Information Received from Tezpur University

Karan Tripathi — 2016-04-26T16:27:55Z

This post provides a factual description about the operation of Ministry of Human Resource Development IPR Chair’s Intellectual Property Education, Research and Public Outreach (IPERPO) scheme in Tezpur University. The author has analysed all the data received under various heads such as income, grants from MHRD, planned and non planned expenditure, nature and frequency of programmes organised and the allocation of funds for the same.

Throughout the course of observation and presentation of the analysed data, the author seeks to trace the presence of unjustified underutilisation of funds by the aforementioned university as provided by the MHRD during the period 2013-2014.

To collect the information for the given study, an RTI application was filed to the Tezpur University on 16/01/2015 by the Centre for Internet and Society. The reply to RTI application was received on 05/02/2015. These are the documents received by CIS from Tezpur University:

For RTI Response click here (Tezpur Receipt of RTI). Also see Tezpur Forwarded Response
For complete supporting documents see (Tezpur- Annual Report, Financial Statement, Report on IPR Cell)

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

1. Reports on the implementation of the IPERPO scheme of the Ministry of Human Resource Development and the implementation of the MHRD IPR Chair funded under the scheme at Tezpur University from 2003-2014

Reply: Tezpur University has submitted detailed documents for the period 2013-2014 in order to highlight various activities undertaken by the University to implement the IPERPO scheme. This information is sent to CIS through summary documents, notices and newsletters.

2. Documents detailing the release of grants to the MHRD IPR Chairs under the IPERPO Scheme

Reply: The University received a grant of Rs.25,00,000 from MHRD under the IPERPO scheme for the period 2013-2014.

3. Documents relating to receipts of utilisation certificates and audited expenditure statements and matters related to all financial sanctions with regard to funds granted to the MHRD IPR Chair established under the IPERPO scheme at Tezpur University

Reply: The University has submitted the utilisation certificate for the period 2013-2014 along with the expenditure statement.

4. Documents regarding all matters pertaining to finance and budget related the MHRD IPR Chair under the IPERPOs scheme established at Tezpur University

Reply: As per the documents submitted to CIS, the proposed budget for the period 2013-2014 is not submitted by the University. However, the budget for the period 2014-2015 is submitted and the sum of Rs. 49,79,231 is proposed by the University.

2.0 Comparative Analysis between University Response and the guidelines of MHRD Scheme Document

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

Objectives

In order to fulfil the objectives mentioned in the scheme document, Tezpur University undertook following activities:

Conducted courses in the mainstream undergraduate, post graduate and PhD programmes
Facilitated assessment and IPR filings of university innovations
Field work on Geographical Indication: Muga Silk of Assam
Training of IPR Officers
Outreach programmes at Dilbrugarh University and Silchar
Colloquium on Contemporary Physics and the Role of IPR
Training programmes on traditional knowledge and communication with stakeholders

Eligibility

Tezpur University is recognized by the University Grants Commission. Therefore, it fulfils the eligibility criteria mentioned in the scheme document.

3.0 Financial Analysis

Tezpur University received grants in two instalments for the same financial year (2013-2014). The first instalment was sanctioned on 19^th August 2013 and the second instalment was sanctioned on 26^th March 2014.

Financial Year 2013-2014

In this financial year a total grant of Rs. 33,00,000 was sanctioned to the University in two instalments of Rs. 25,00,000 and Rs. 8,00,000. Out of this, a total sum of Rs. 35,24,446 was utilised by the University.

It is clear from the above drawn chart that the maximum amount of money was spent on the salaries of Chair Professor and his staff.

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

MHRD IPR Chair Series: Information Received from NUJS

nehaa — 2016-05-15T07:51:55Z

The author has analysed all the data received under various heads such as income, grants from MHRD, planned and non-planned expenditure, nature and frequency of programmes organised and the allocation of funds for the same. Throughout the course of observation and presentation of the analysed data, the author seeks to trace the presence of unjustified underutilisation of funds by the aforementioned university as provided by the MHRD during the period of 2013-2014.

To collect the information for the given study, an RTI application was filed to NUJS on 09/02/2015 by the Centre for Internet and Society. The reply to RTI application was received on 24/02/2015.

These are the documents received by CIS from NUJS:

For the RTI application filed by the CIS, click here
For the reply to the RTI application, click here

NUJS did not entertain the RTI and furnished no documents for perusal.

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