The Centre for Internet and Society
https://cis-india.org
These are the search results for the query, showing results 61 to 75.
WIPO reaches agreement on treaty for blind
https://cis-india.org/news/livemint-pankaj-mishra-june-26-2013-wipo-reaches-agreement-on-treaty-for-blind
<b>Officials at the World Intellectual Property Organisation have reached an agreement to provide wider access to books for the visually impaired in different countries, a long-pending demand of the World Blind Union and activist groups. </b>
<hr />
<p>The article by Pankaj Mishra was <a class="external-link" href="http://www.livemint.com/Politics/zirXp3IC1rTtAFOd2O4fYL/WIPO-reaches-agreement-on-treaty-for-blind.html">published in Livemint</a> on June 26, 2013. Sunil Abraham is quoted.</p>
<hr />
<p style="text-align: justify; ">If officially approved, the treaty will help distribution of specially formatted books for the blind and visually impaired in different countries by removing copyright law hurdles. For instance, US-based Bookshare, which is an online library for people with sight disabilities, has about 200,000 books in its collection, but only about 75,000 of them can be distributed in the UK because of copyright restrictions.</p>
<p class="mceContentBody documentContent" style="text-align: justify; ">According to the Intellectual Property Watch website that track international policy on the subject, the agreement was reached over the weekend in Marrakesh, Morocco, where a conference to facilitate access to published books for people with sight disabilities is being held.</p>
<p class="mceContentBody documentContent" style="text-align: justify; ">“The text, which has not been presented to the conference plenary, nor adopted yet, also addresses the issue known as ‘the Berne gap’, which refers to countries which are not part of international treaties governing copyright, such as the Berne Convention for the Protection of Literary and Artistic Works, the World Trade Organization Agreement on Trade-Related Intellectual Property Rights (TRIPS), and the WIPO Copyright Treaty,” the website said in a report on 24 June.</p>
<p class="mceContentBody documentContent" style="text-align: justify; ">According to the World Health Organisation (WHO), India has 63 million visually impaired people, of whom about 8 million are blind.</p>
<p class="mceContentBody documentContent" style="text-align: justify; ">Experts such as <span class="person"><a href="http://www.livemint.com/Search/Link/Keyword/Sunil%20Abraham">Sunil Abraham </a></span>of the Centre for Internet and Society said Indian negotiators played a crucial role in pushing for these amendments.</p>
<p class="mceContentBody documentContent" style="text-align: justify; ">“India’s copyright law after the latest amendment has a very robust exception for the disabled. It is disability neutral and works neutral. We must applaud the Indian negotiators for exporting Indian best practice to global copyright policy. India continues to be a leader in WIPO when it comes to protecting the public interest and facilitating access to knowledge,” said Abraham.</p>
<p class="mceContentBody documentContent" style="text-align: justify; ">The treaty, which promotes sharing the books in any format for the blind or visually impaired, is expected to alleviate the “book famine” experienced by many of the WHO-estimated 300 million people suffering from such disability in the world, Intellectual Property Watch said.</p>
<p class="mceContentBody documentContent" style="text-align: justify; ">“The treaty however is both disability specific, i.e. the visually impaired, and works specific, mostly targeted at ending the book famine,” Abraham said.</p>
<p>
For more details visit <a href='https://cis-india.org/news/livemint-pankaj-mishra-june-26-2013-wipo-reaches-agreement-on-treaty-for-blind'>https://cis-india.org/news/livemint-pankaj-mishra-june-26-2013-wipo-reaches-agreement-on-treaty-for-blind</a>
</p>
No publisherpraskrishnaIntellectual Property RightsCopyrightAccess to KnowledgeWIPO2013-07-01T09:59:29ZNews Item‘Miracle at Marrakesh’ to help visually impaired read
https://cis-india.org/news/the-hindu-ramya-kannan-june-30-2013-miracle-at-marrakesh-to-help-visually-impaired-read
<b>The treaty will make access to books for the visually impaired, blind and print disabled easier.</b>
<hr />
<p>The article by Ramya Kannan was <a class="external-link" href="http://www.thehindu.com/news/national/miracle-at-marrakesh-to-help-visually-impaired-read/article4864281.ece?homepage=true">published in the Hindu</a> on June 30, 2013. Pranesh Prakash is quoted.</p>
<hr />
<p style="text-align: justify; ">On Friday, in the same city that established the World Trade Organisation nearly two decades ago, another significant treaty was born. In Marrakesh, Morocco, international negotiators signed a treaty that will make access to books for the visually impaired, blind and print disabled easier.</p>
<p style="text-align: justify; ">After a week of intense debate among the negotiators (facilitated by the World Intellectual Property Organisation), the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired, or otherwise Print Disabled emerged.</p>
<p class="body" style="text-align: justify; ">It will address the ‘book famine’ for the visually impaired by “requiring its contracting parties to adopt national law provisions that permit the reproduction, distribution and making available of published works in accessible formats through limitations and exceptions to the rights of copyright right holders.” Very simply, it allows the waiver of copyright restrictions in order for books to be available in formats such as formats such as Braille, large print text and audio books.</p>
<p class="body" style="text-align: justify; ">Pranesh Prakash of the Centre for Internet and Society, in his closing remarks said: “It is historic that today WIPO and its members have collectively recognised in a treaty that copyright isn't just an ‘engine of free expression’ but can pose a significant barrier to access to knowledge.”</p>
<p class="body" style="text-align: justify; ">To recognise that copyright should not frustrate access for some groups of people and thereby to free books from that ‘constraint’ is of immeasurable significance for people otherwise unable to access books in the conventional format.</p>
<p class="body" style="text-align: justify; ">The treaty also provides assurances to authors and publishers that that system will not expose their published works to misuse or distribution to anyone other than the intended beneficiaries. “There are no winners and no losers, this is a treaty for everyone,” said Moroccan Minister of Communications Mustapha Khalfi, going on to describe it as the “Miracle in Marrakesh.”</p>
<p class="body" style="text-align: justify; ">There are an estimated 285 million blind and partially-sighted people in the world, of which the largest percentage lives in India. Only 1 to 7 per cent of all books published are available in formats accessible to them. India’s key campaigner for the treaty, the late Rahul Cherian of Inclusive Planet was full of beans when he spoke to <i>The Hindu</i> in December last year, anticipating the possibility of a treaty half a year later.</p>
<p class="body" style="text-align: justify; ">“It is a breakthrough!” he said excitedly as he broke the news, “The Extraordinary General Assembly of the World Intellectual Property Organisation has referred the Treaty for Visually Impaired Persons to a diplomatic conference in June of 2013.”</p>
<p>
For more details visit <a href='https://cis-india.org/news/the-hindu-ramya-kannan-june-30-2013-miracle-at-marrakesh-to-help-visually-impaired-read'>https://cis-india.org/news/the-hindu-ramya-kannan-june-30-2013-miracle-at-marrakesh-to-help-visually-impaired-read</a>
</p>
No publisherpraskrishnaIntellectual Property RightsCopyrightAccess to KnowledgeWIPO2013-07-02T10:07:28ZNews ItemCIS's Closing Statement at Marrakesh on the Treaty for the Blind
https://cis-india.org/a2k/blogs/cis-closing-statement-marrakesh-treaty-for-the-blind
<b>Pranesh Prakash read out an abridged version of this statement as his closing remarks in Marrakesh, where the WIPO Treaty for the Blind (the "Marrakesh Treaty") has been successfully concluded. The Marrakesh Treaty aims to facilitate access to published works by blind persons, persons with visual impairment, and other print disabled persons, by requiring mandatory exceptions in copyright law to enable conversions of books into accessible formats, and by enabling cross-border transfer of accessible format books.</b>
<p>Thank you, Mr. President.</p>
<p>I am truly humbled to be here today representing the Centre for Internet and Society, an Indian civil society organization. If I may assume the privilege of speaking on behalf of my blind colleagues at CIS who led much of our work on this treaty, and the many blindness organizations we have been working with over the past five years who haven't the means of being here today, I would like to thank you and all the delegates here for this important achievement. And especially, I would like to thank the World Blind Union and Knowledge Ecology International who renewed focus on this issue more than 2 decades after WIPO and UNESCO first called attention to this problem and created a "Working Group on Access by the Visually and Auditory Handicapped to Material Reproducing Works Produced by Copyright".</p>
<p>While doing so, I would like to remember my friend Rahul Cherian — a young, physically impaired lawyer from India — who co-founded Inclusive Planet, was a fellow with the Centre for Internet and Society, and was a legal adviser to the World Blind Union. He worked hard on this treaty for many years, but very unfortunately did not live long enough to see it becoming a reality. His presence here is missed, but I would like to think that by concluding this treaty, all the distinguished delegations here managed to honour his memory and work.</p>
<p>I am grateful to all the distinguished delegations here for successfully concluding a reasonably workable treaty, but especially those — such as Brazil, India, Ecuador, Nigeria, Uruguay, Egypt, South Africa, Switzerland, and numerous others — who realized they were negotiating with blind people's lives, and regarded this treaty as a means of ensuring basic human rights and dignity of the visually impaired and the print disabled, instead of regarding it merely as "copyright flexibility" to be first denied and then grudgingly conceded. The current imbalance in terms of global royalty flows and in terms of the bargaining strength of richer countries within WIPO — many of who strongly opposed the access this treaty seeks to facilitate right till the very end — is for me a stark reminder of colonialism, and I see the conclusion of this treaty as a tiny victory against it.</p>
<p>It is historic that today WIPO and its members have collectively recognized in a treaty that copyright isn't just an "engine of free expression" but can pose a significant barrier to access to knowledge. Today we recognize that blind writers are currently curtailed more by copyright law than protected by it. Today we recognize that copyright not only <em>may</em> be curtailed in some circumstances, but that it <em>must</em> be curtailed in some circumstances, even beyond the few that have been listed in the Berne Convention. One of the original framers of the Berne Convention, Swiss jurist and president, Numa Droz, recognized this in 1884 when he emphasized that "limits to absolute protection are rightly set by the public interest". And as Debabrata Saha, India's delegate to WIPO during the adoption of the WIPO Development Agenda noted, "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."</p>
<p>When copyright doesn't serve public welfare, states must intervene, and the law must change to promote human rights, the freedom of expression and to receive and impart information, and to protect authors and consumers. Importantly, markets alone cannot be relied upon to achieve a just allocation of informational resources, as we have seen clearly from the book famine that the blind are experiencing. Marrakesh was the city in which, as Debabrata Saha noted, "the damage [of] TRIPS [was] wrought on developing countries". Now it has redeemed itself through this treaty.</p>
<p>This treaty is an important step in recognizing that exceptions and limitations are as important a part of the international copyright acquis as the granting of rights to copyright holders. This is an important step towards fulfilling the WIPO Development Agenda. This is an important step towards fulfilling the UN Convention on the Rights of Persons with Disabilities. This is an important step towards fulfilling Article 27 of the Universal Declaration of Human Rights, Article 15 of the International Covenant on Economic Social and Cultural Rights and Article 30 of the UN Convention on Persons with Disabilities, all of which affirm the right of everyone — including the differently-abled — to take part in cultural life of the community.</p>
<p>While this treaty is an important part of overcoming the book famine that the blind have faced, the fact remains that there is far more that needs to be done to bridge the access gap faced by persons with disabilities, including the print disabled.</p>
<p>We need to ensure that globally we tackle societal and economic discrimination against the print disabled, as does the important issue of their education. This treaty is a small but important cog in a much larger wheel through which we hope to achieve justice and equity. And finally, blind people can stop being forced to wear an eye-patch and being pirates to get access to the right to read.</p>
<p>I also thank the WIPO Secretariat, Director General Francis Gurry, Ambassador Trevor Clark, Michelle Woods, and the WIPO staff for pushing transparency and inclusiveness of civil society organizations in these deliberations, in stark contrast to the way many bilateral and plurilateral treaties such as Anti-Counterfeiting Trade Agreement, the India-EU Free Trade Agreement, and the Trans-Pacific Partnership Agreement have been, and are being, conducted. I hope we see even more transparency, and especially non-governmental participation in this area in the future.</p>
<p>I call upon all countries, and especially book-exporting countries like the USA, UK, France, Portugal, and Spain to ratify this treaty immediately, and would encourage various rightholders organizations, and the MPAA who have in the past campaigned against this treaty and now welcome this treaty, to show their support for it by publicly working to get all countries to ratify this treaty and letting us all know about it.</p>
<p>I congratulate you all for the "Miracle of Marrakesh", which shows, as my late colleague Rahul Cherian said, "when people are demanding their basic rights, no power in the world is strong enough to stop them getting what they want".</p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/cis-closing-statement-marrakesh-treaty-for-the-blind'>https://cis-india.org/a2k/blogs/cis-closing-statement-marrakesh-treaty-for-the-blind</a>
</p>
No publisherpraneshAccess to KnowledgeCopyrightIntellectual Property RightsFeaturedWIPO2013-07-03T12:01:25ZBlog EntryA Treat for the Blind
https://cis-india.org/news/business-world-june-26-2013-chitra-narayanan-a-treat-for-the-blind
<b>The WIPO treaty will provide copyright exceptions on books making them available to blind people in formats they can use.</b>
<hr />
<p style="text-align: justify; ">The article by Chitra Narayanan was <a class="external-link" href="http://www.businessworld.in/en/storypage/-/bw/a-treat-for-the-blind/r959485.0/page/0">published in Business World</a> on June 26, 2013. Pranesh Prakash is quoted.</p>
<hr />
<p style="text-align: justify; ">For millions of visually impaired people around the globe, it’s a landmark treaty that could open up the kingdom of books for them. After days of intense deliberations at Marrakesh in Morrocco, about 600 World Intellectual Property Organisation (Wipo) negotiators, including delegates from India, reached a consensus on a treaty that will provide copyright exceptions on books making them available to blind people in formats they can use.</p>
<div id="stcpDiv" style="text-align: justify; ">
<div>Wipo, a United Nations agency, is dedicated to the use of intellectual property as a means of stimulating innovation and creativity. The agency has 186 member states.</div>
<div><br />Sure, content is king. But for the visually impaired, the right platform for accessing content is what makes the difference. Thanks to audio books, a host of apps, and digital platforms such as Bookshare, which provides content in accessible formats, the technology is already there to bring the rich world of 'hardcovers' and 'paperbacks' alive for those who cannot see. What’s more, these books are compatible with all kinds of devices from mobile phones to tablets to PCs.<br /> <br />Now, at last, there is legal sanction as well to content that was not being made available in accessible formats by the copyrights holders. For the 15 million people who are blind in India, the treaty is expected to open education doors as well as provide entertainment needs. India has the world’s largest number of blind people.<br /> <br />Bangalore-based Centre for Internet Society, a policy research organisation, has been at the forefront of negotiations at WIPO to get the treaty through. Minutes after the session concluded, Pranesh Prakash, policy Director at CIS and his colleague Sunil Abraham were tweeting ecstatically about the “win”.<br /><br />For five long years, this Wipo treaty has witnessed contentious discussions on issues such as including exports of copyrighted works, translations of copyrighted works and so on. According to Prakash, who responded over twitter, “On Exports we won, but re-exports which was earlier permitted has become much more difficult.”<br /> <br />There are also other grainy areas such as commercial availability of the books. According to a post on the Intellectual Property Watch website, soon after the agreement was reached, commercial availability still stands under Article 4 (National Law Limitations and Exceptions on Accessible Format Copies) but has disappeared from Article 5 (cross border exchange of accessible format copies).<br /> <br />Although blind music legend Stevie Wonder, one of the most ardent supporters of the treaty, must be crooning Signed, Sealed, Delivered... it’s early days yet. The draft of the treaty has to be ratified by governments before being adopted.<br /> <br />But for five long years, it has been a long hard battle between copyright owners and those fighting for human rights of the visually impaired. Finally, as one observer, put it: 'a rare victory is in sight for human rights'.</div>
</div>
<p>
For more details visit <a href='https://cis-india.org/news/business-world-june-26-2013-chitra-narayanan-a-treat-for-the-blind'>https://cis-india.org/news/business-world-june-26-2013-chitra-narayanan-a-treat-for-the-blind</a>
</p>
No publisherpraskrishnaCopyrightAccessibilityAccess to Knowledge2013-07-11T06:02:27ZNews ItemPrimer on the Treaty for the Visually Impaired
https://cis-india.org/a2k/blogs/primer-on-tvi
<b>In this primer, Pranesh Prakash and Puneeth Nagaraj explain what effects a WIPO Treaty for the Visually Impaired can have and who's opposing it.</b>
<h2>A Primer on the provisions of the TVI and ongoing negotiations</h2>
<p>The Treaty on Limitations and Exceptions for Visually Impaired Persons/Persons with Print Disabilities (“TVI” for short) is a landmark international instrument in recognizing the crucial link between copyright limitation and greater access to visually impaired persons / persons with print disabilities (“VIPs” for short). Below is a summary of the provisions of the Treaty and the benefit it will bring to VIPs, and the kinds of speed-bumps that rich countries are trying to place to make this treaty ineffective for the blind, the majority of whom live in poor countries.</p>
<h2>1. Exceptions in Domestic Copyright Law</h2>
<p>Currently, in most countries, only the owner of copyright to a particular book has the right to convert it into an “accessible format” (e.g. Braille, audio book, DAISY book, etc.). This treaty aims to create an exception to this rule by allowing print disabled persons, their representatives and non-profit ‘authorized entities’ the ability to convert books for the benefit of VIPs without seeking permission. The treaty would leave it up to each country whether their law will require such conversions to be paid or not since there is no uniformity on this question among countries that have national exceptions.</p>
<p>Opposition: The United States, European Union, France, Australia, Canada, and the publishing lobby have asked for multiple conditions for creation of accessible formats. They wish to confine this exception to non-profits, prevent translations, and ensure that books that are “commercially available” can be excluded, and require that countries who wish to use this exception have to comply with an onerous test called the “three step test”. Internationally, rights holders have zero formalities for gaining copyright (which, by international treaty, does not even have to be registered). But the rights holders want to ensure as many bureaucratic hurdles are put to exceptions as possible.</p>
<h2>2. Cross-border Transfer of Accessible Works</h2>
<p>One of the main purpose main purpose of the TVI is to increase the cross-boundary exchange of copyrighted works in accessible formats. According to the World Health Organisation, 87% of the visually impaired live in underdeveloped countries. Bangladesh and Swaziland, for instance, spend very little money on converting books, while in the USA, millions of dollars are spent both by the government and by charities. If this treaty is passed the way the World Blind Union and other pro-disability NGOs are asking, a blind girl from Bangladesh would be able register with a US-based site like Bookshare.org, after proving she’s blind, and just download the book she needs in a format that is accessible to her.</p>
<p>Opposition: The European Union and United States want make this non-mandatory. They also wish to restrict the ability of the Bangladeshi blind girl from accessing these books by allowing trade only between non-profit ‘authorized entities’. Unfortunately, many developing world countries (like Swaziland) don’t have any authorized entities to speak of, leaving blind people there stranded. For a treaty to be effective, individuals must be granted the right to import books as well.
The European Union also wishes for a ‘commercial availability’ clause, meaning that if a book is ‘commercially available’ in the receiving country, then the authorized entity can’t export. In Europe itself there are almost no countries (with the UK being an exception) that have such a requirement when it comes to domestic conversions, but the EU still wants to ensure that as a requirement for poor countries. It is very difficult for an authorized entity located in the USA to determine in each and every case whether an accessible format of the book is ‘commercially available’ in the hundreds of countries they will receive requests from. Importantly, even a book priced exorbitantly or available only for those with expensive iPads may be considered ‘commercially available’, even if it is practically out of reach of the blind in the receiving country. This clause must go if the treaty is to be meaningful.</p>
<h2>3. Digital locks</h2>
<p>If digital locks (often called “Digital Rights/Restrictions Management” or DRMs) are used, then technologically, the blind can be restricted from enjoying a work which they have a legal right to access. For instance, Amazon has limited — at the behest of the Authors’ Guild of America — the ability of blind people to get their Kindle e-book readers to read aloud a book, and did so using digital locks. The TVI proposes that countries be required to ensure that the blind have effective access to books, even if they have digital locks.</p>
<p>Opposition: The United States and the publishing lobby is the biggest opponent of this provision. They have a system under which the blind are not required to automatically be granted the right to ‘circumvent’ the digital lock to make a book accessible even if they have bought an e-book, but have to granted permission to do so every three years by the government. The most recent three-yearly review found that the blind groups did not make out a strong enough case to justify granting them an exception, but thankfully this determination was overruled by the US Librarian of Congress. Thus the TVI must ensure that publishers cannot technologically impose restrictions on a book for the blind that they can’t do legally.</p>
<h2>4. Translation</h2>
<p>Another hot-button issue is the right to translation. Given that the biggest exporters of books, due to their colonial legacy, are USA, UK, France, and Spain, it is imperative that the blind in developing countries have access to these books in languages that they can understand. Very unfortunately, most of these languages are not profitable-enough markets for publishers to publish accessible translated books. Given this, it is necessary for charities to be able to make translations of accessible works specifically for the blind.</p>
<p><em>Opposition</em>: The European Union and the publishing lobby is strongly opposing this, claiming that this will result in the blind having better access than the sighted. This is a false claim. A sighted student might have access to a translated book (made without an exception), but the blind student might not. For this
has no merit as it ignores the social consequences of disability. This provision will merely bring the visually impaired to the same level as the rest of the population and not give them some illusory advantage.</p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/primer-on-tvi'>https://cis-india.org/a2k/blogs/primer-on-tvi</a>
</p>
No publisherpraneshCopyrightAccessibilityAccess to KnowledgeWIPO2013-06-25T08:47:18ZBlog EntryIndia- EU FTA: A Note on the Copyright Issues
https://cis-india.org/a2k/blogs/india-eu-fta-copyright-issues
<b>In this blog post, Nehaa Chaudhari gives us an overview of some of the provisions of the Free Trade Agreement (FTA) and the copyright issues identified therein. </b>
<hr />
<p style="text-align: justify; "><a href="https://cis-india.org/a2k/blogs/india-eu-fta-copyright-issues.pdf" class="internal-link">Click to download the India-EU FTA: A Note on Copyright Issues</a> (PDF, 205 Kb)</p>
<hr />
<p style="text-align: justify; ">Against the backdrop of ongoing negotiations dating back to 2007, and, more recently, with parties being unable to make substantial progress on the Indo-EU FTA<a href="#fn1" name="fr1">[1]</a> this note presents an overview on some of the provisions of the FTA and the copyright issues identified therein. This note deals with the issues on two levels- first to examine the impact of intellectual property right provisions in FTAs in general and second to apply these generic principles to the Indo- EU FTA specifically.</p>
<h2>Introduction</h2>
<p style="text-align: justify; ">Investment agreements, of which bilateral investment treaties are a part, and investment chapters in various FTAs often result in an increase in the effective levels of intellectual property protection in one of the countries that is a part to the agreement. This can be done either explicitly, where ‘investment’ may be defined to include IP, or implicitly, for instance, through an expropriation provision.<a href="#fn2" name="fr2">[2]</a> This has concurrently witnessed the growing realization that the promotion of these increased IP standards is not suited to the need of developing countries. Therefore, it has been observed<a href="#fn3" name="fr3">[3]</a>that there is now an attempt by the developed countries to use FTAs as a forum to push for higher standards of IP protection in developing countries, and to restrict the scope of the flexibilities offered by TRIPS, most notably in the sectors of protection of plant varieties, patents and access to medicine, farmers rights and access to information.<a href="#fn4" name="fr4">[4]</a>This approach is inherently problematic, because it then infringes on the developing countries’ ability to achieve their developmental objectives.</p>
<h2 style="text-align: justify; ">Dismantling the Arguments In Favour of Increased IP Protection</h2>
<p style="text-align: justify; ">A prevalent view of thought is that in order to increase Foreign Direct Investment (FDI), developing countries would have to increase their IP protection. This section of the paper seeks to argue that this might not necessarily be the case.</p>
<p style="text-align: justify; ">An illustration of the aforesaid proposition may be <i>Heald’s </i>criticism<a href="#fn5" name="fr5">[5]</a> levied on <i>Mansfield’s </i>paper<a href="#fn6" name="fr6">[6]</a> arguing that there was a direct correlation between the level of intellectual property protection in a country and the foreign direct investment into that country. Further, a study<a href="#fn7" name="fr7">[7]</a> conducted under the aegis of the United Nations has suggested that there was a ‘considerable incentive’ for countries to use the flexibilities provided under TRIPS to maximise net benefits for their development; stating that while in countries with a capacity to innovate stronger IPR protection can reap some benefits in terms of greater innovation at home and a greater diffusion of technology, the same cannot be said about nations without such a capacity, and may in fact impose additional costs.<a href="#fn8" name="fr8">[8]</a></p>
<p style="text-align: justify; ">Specifically in the area of copyright, it has been observed that increased copyright protection can hamper the growth and development of knowledge based industries. <i>Sanya Smith </i>argues that those who control copyright have a ‘significant advantage’ in the knowledge based economy, and says that in the current scenario where ownership of copyright is largely in the hands of industrialized nations, this places developing nations, and smaller economies at a significant disadvantage.<a href="#fn9" name="fr9">[9]</a> She also goes on to argue that increasing copyright protection alone does not seem to be sufficient to stimulate industries, and there may other factors involved. Additionally, copyright could also significantly increase the cost of creative industries.<a href="#fn10" name="fr10">[10]</a> More fundamentally however, access to information and knowledge are amongst the most affected areas as a result of tightening of copyright laws, leaving students, academicians, researchers, scientists and persons with print disability significantly disadvantaged.</p>
<h2>Implications of the Copyright Provisions in the Proposed Indo- EU FTA</h2>
<p class="MsoListParagraph" style="text-align: justify; ">Based on the general discussion earlier, this section of the paper seeks to examine the proposed and long debated Indo- EU FTA for the concerns enumerated earlier. As things currently stand, both parties have failed to reach a consensus on various substantial differences, and a ministerial meet originally scheduled for June seems unlikely to take place.<a href="#fn11" name="fr11">[11]</a></p>
<p style="text-align: justify; ">It has been observed<a href="#fn12" name="fr12">[12]</a> that the Indo- EU FTA<a href="#fn13" name="fr13">[13]</a> includes various provisions that preserve the flexibilities offered under the TRIPS framework. This is extremely critical from the perspective of developing countries, given that access to knowledge is an extremely important ideal to be preserved. For instance, as noted by Knowledge Ecology International<a href="#fn14" name="fr14">[14]</a>the proposed FTA includes Articles 7 (Objectives) and 8 (Principles) of the TRIPS<a href="#fn15" name="fr15">[15]</a> by reference. Further, the language of Article 13 under the proposed FTA explicitly recognizes the importance of the Doha Declaration, which is a positive step.<a href="#fn16" name="fr16">[16]</a> It has been said however, that stronger language where the parties ‘affirmed’ their obligations under the Declaration could have been used.<a href="#fn17" name="fr17">[17]</a> However, this does not take away from the fact that many of the provisions of the proposed FTA are extremely problematic, as will be discussed in the forthcoming parts of this paper.</p>
<h3>Problematic Provisions</h3>
<p class="MsoListParagraph" style="text-align: justify; ">The main concern that has emerged from this FTA is the fact that some of its provisions dealing with IPR go beyond the mandate as under the TRIPS Agreement. For instance, as pointed out by Shamnaad Basheer to Intellectual Property Watch, various provisions now provide for intermediary liability, which isn’t present in TRIPS. He also adds however, that if the initial stand of the government that India would not go TRIPS plus continues to hold, the government should indeed adopt a strong stance and not cave in to the said provisions.<a href="#fn18" name="fr18">[18]</a> An overview of some of the problematic provisions has been presented hereafter:</p>
<h4>International Obligations</h4>
<p style="text-align: justify; ">As per the proposed treaty, protection granted by the parties should be in accordance with the Berne Convention, the Rome Convention and the WIPO Copyright and Performance and Phonograms Treaties. Snehashish Ghosh in his blog post<a href="#fn19" name="fr19">[19]</a> writes that the EU stipulates compliance with Articles 1 through 22 of the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (1961), Articles 1 through 14 of the WIPO Copyright Treaty – WCT (Geneva, 1996), Articles 1 through 23 of the WIPO Performance and Phonograms Treaty – WPPT (Geneva, 1996). It is critical to note that the Rome Convention is not in force in India<a href="#fn20" name="fr20">[20]</a>, and that India is not a party to either the WCT<a href="#fn21" name="fr21">[21]</a> or the WPPT<a href="#fn22" name="fr22">[22]</a>, and therefore, this provision would have the effect of substantially surpassing all obligations that India has at the moment under multilateral international agreements.</p>
<h4>Technical Protection Measures (TPMs) and Digital Rights Management (DRM)</h4>
<p style="text-align: justify; ">A TPM, understood simply, is a lock in a digital format, placed on digital material to prevent access to or copying of the material in question. The problem with such measures is that they can prevent even those forms of copying which are legal (for instance, the copying of a movie on which copyright has expired could be prevented), creating a potentially infinite monopoly over the product in question. India, in its negotiations with the EU, has agreed to sweeping language under this provision, where TPMs and DRM measures are broadly defined. The Agreement further provides for limitations on TPM protections only to persons who have “legal access to the protected work or subject matter”.<a href="#fn23" name="fr23">[23]</a></p>
<h4>Copyright Expansion</h4>
<p style="text-align: justify; ">There are various provisions under the proposed FTA that have the effect of copyright expansion. To begin with, the duration of protection for photographic works is not expressly mentioned in the proposed agreement.<a href="#fn24" name="fr24">[24]</a> Snehashish Ghosh concludes that the term of photographic works is unclear in the proposed FTA. He writes that the proposed FTA makes it mandatory for the parties to comply with the Berne Convention, and all literary and artistic work under the proposed FTA is to be construed as the same as the Berne Convention<a href="#fn25" name="fr25">[25]</a>. Photographic works are included under literary and artistic works under the Berne Convention, and the rights of an author in case of photographic works are protected for a minimum period of 25 years. However, the proposed FTA extends the period of protection to beyond that prescribed by the Berne Convention and states that protection is given to literary and artistic works (as defined in the Berne Convention) for a period of the duration of the life of the author plus fifty years after this death. It further states that works for which the period of protection is not calculated from the death of the author, and which have not been lawfully made available to the public within at least 50 years from their creation, the protection shall terminate.<a href="#fn26" name="fr26">[26]</a></p>
<p style="text-align: justify; ">Article 7.6 (proposed by the EU), limits the resale rights of a downstream purchaser. It has been noted by Knowledge Ecology International<a href="#fn27" name="fr27">[27]</a> that this seems to give the author of an original work of art a right in perpetuity, to receive a royalty for the resale of the piece of art, where such right cannot be waived or transferred by the author of the work. Therefore, a situation would arise where each time a person who has purchased the work wants to resell the same, he would have to pay royalties to the original author.<a href="#fn28" name="fr28">[28]</a> The observations further go on to note that royalties are not limited, and the amount has to be determined by national legislation. Further complicating the situation is the fact that the provision does not cease to apply after a given number of re-sales, and continues to the death of the author (but might not into the 50 year protection post the death of the author).<a href="#fn29" name="fr29">[29]</a></p>
<p style="text-align: justify; ">Exceptions and limitations for copyright have been covered under Article 7.9(1) of the proposed FTA, and they may be created “only” in accordance with the three step test, which is essentially that (a) the exceptions and limitations must apply in certain special cases; (b) must not be in conflict with the normal course of exploitation of the subject matter in question and (c) must not unreasonably prejudice the legitimate interests of the right holders.<a href="#fn30" name="fr30">[30]</a> It has been observed that this test is more restrictive than TRIPS, Berne Convention, Rome Convention or the WCT.<a href="#fn31" name="fr31">[31]</a></p>
<p style="text-align: justify; ">On the plus side, temporary copies have been excluded from copyright protection, as per Article 7.9(2) of the proposed FTA, which would ensure the proper functioning of technology.</p>
<h4>Persons with Disabilities</h4>
<p style="text-align: justify; ">There is nothing that deals with the import/export or cross border exchange of files/documents/books etc. for persons with disabilities.</p>
<h4>Cross Border Measures</h4>
<p style="text-align: justify; ">Cross Border Measures have been dealt with under Article 30 of the proposed FTA. It is interesting to note that under this Article the EU has proposed the application of border measures to exports as well. This is contrary to the position laid down in the TRIPS Agreement, which has this requirement only for importing infringing goods.<a href="#fn32" name="fr32">[32]</a> Further, the EU also seeks to expand the applicability of such measures to include those goods which also infringe designs or geographical indications. Additionally, Article 30 also leaves out certain TRIPS safeguards, for instance, one that requires the right holder to provide adequate evidence for a prima facie case of infringement.<a href="#fn33" name="fr33">[33]</a></p>
<h4>Intermediary Liability</h4>
<p style="text-align: justify; ">It has been suggested that the EU, under the garb of protecting intermediate service providers from liability for infringement by users, is purporting to place a greater burden on the providers in question, of policing user activity.<a href="#fn34" name="fr34">[34]</a> For instance under Article 35.1.1 of the proposed FTA, while service providers are not under any general obligation to seek facts or circumstances that could indicate illegal activity, they may be obligated to promptly inform competent authorities of these alleged illegal activities undertaken/information provided by recipients of their service. <a href="#fn35" name="fr35">[35]</a> Otherwise, the providers may also be required to communicate to the authorities, on their request, information that would enable the identification of their service with whom they have storage agreements, as per Article 35.1.2.<a href="#fn36" name="fr36">[36]</a> It has been rightly identified by Glover Wright, that such provisions would only serve to increase tensions between the users and their service providers, with relations dictated by concerns about liability, and barriers in the sending, receiving and storing of information freely. It would be a tricky question for intermediate service providers to check what would constitute ‘knowledge’ and how they were to best safeguard themselves from liability.<a href="#fn37" name="fr37">[37]</a> Therefore, the author is inclined to agree with Wright’s submission that India needs to reject all provisions of liability of intermediate service providers as discussed above.</p>
<h4>IP Enforcement</h4>
<p style="text-align: justify; ">There exist, as regards the enforcement of rights, many problematic provisions in the proposed FTA. For starters, the EU has proposed that interlocutory injunctions may also be issued under the same conditions against an intermediary whose services are being used by a third party to infringe intellectual property rights.<a href="#fn38" name="fr38">[38]</a> This may be found under Article 22.1 of the proposed FTA, and is inherently problematic for being a provision far beyond the mandate as laid down by TRIPS.</p>
<p style="text-align: justify; ">The EU is also pushing for the use of very explicit language as regards seizing movable and immovable property of the alleged infringer as a precautionary measure. This also extends to the blocking of the bank accounts and other assets of the said infringer, and to this end, competent authorities may even order the communication of bank, financial or commercial documents, or access to the said information.<a href="#fn39" name="fr39">[39]</a> It is critical to note that such a provision is greatly problematic as being rather vague in its approach, and very readily compromising privacy for ‘alleged’ acts of infringement.</p>
<p style="text-align: justify; ">It is further critical to note that while Article 20 states that courts should have the power to grant ex parte order to collect evidence that is allegedly infringing, there are no safeguards provided for protection of a bona fide defendant whose premises might have been raided wrongly. It is submitted that provisions that safeguard the interests of defendants are of prime importance, especially in the Indian set up, where courts are as it is rather generous in their granting of ex parte orders.</p>
<h2>Concluding Observations</h2>
<p style="text-align: justify; ">While India may stand to benefit from the proposed FTA with the EU, there remain significant IP related issues that need to be ironed out before India comes to any consensus about the agreement and ratifies the same. On the basis of the discussion over the course of this paper, it may be seen that the provisions on intellectual property rights are problematic on various levels, particularly in the areas of expansion of copyright, the inclusion of TRIPS plus provisions, cross border measures, TPMs, liability of service providers and enforcement mechanisms.</p>
<p style="text-align: justify; ">Discussions in the first half of this paper have demonstrated that increased IP protections do not necessarily translate into increased FDI and may in fact stifle innovation. Further, the warning to developing countries against adopting IPR standards fixed by developed nations has been sounded many times over, and is one that needs to be heeded to very closely for developing nations to achieve their developmental objectives.</p>
<p style="text-align: justify; ">India has over a period of time established an IP regime that is consumer friendly. In adopting the proposed FTA in its current form, she risks endangering this regime that has thus far been instrumental in proliferating emerging technologies in the county.<a href="#fn40" name="fr40">[40]</a> Given that India has already acceded to international standards for IPRs as a result of being a member of the WTO and being TRIPS compliant, there is no cogent reason to be made out that warrants the accession to an FTA with TRIPS plus provisions. India ought to continue to push back strongly on these fronts, bearing in mind that its stance could very well set the tone for other such agreements in South Asia. From the way things stand at the moment, it is indeed a matter of some relief that the ratification of this proposed FTA still appears to be at a considerable distance.</p>
<hr />
<p style="text-align: justify; ">[<a href="#fr1" name="fn1">1</a>].Hereafter referred to as the FTA.</p>
<p style="text-align: justify; ">[<a href="#fr2" name="fn2">2</a>]. <span>Sanya Reid Smith, Intellectual Property in Free Trade Agreements, for the UNDP Regional Trade Workshop (17-18 December, Penang, Malaysia), available at </span><a class="external-link" href="http://bit.ly/11W8dqy">http://bit.ly/11W8dqy</a> <span>(last accessed 04 June, 2013). </span></p>
<p style="text-align: justify; ">[<a href="#fr3" name="fn3">3</a>]. Id.</p>
<p style="text-align: justify; ">[<a href="#fr4" name="fn4">4</a>]. Id at 5.</p>
<p style="text-align: justify; ">[<a href="#fr5" name="fn5">5</a>]. Supra note 2, citing PJ Heald, Information Economics and Policy 16 (2004) 57-65</p>
<p style="text-align: justify; ">[<a href="#fr6" name="fn6">6</a>]. <span>Edwin Mansfield, Intellectual Property Protection, Foreign Direct Investment and Technology Transfer, International Finance Corporation: Discussion Paper No. 19, available at </span><a class="external-link" href="http://bit.ly/18V4D5v">http://bit.ly/18V4D5v</a><span><a href="http://www-wds.worldbank.org/servlet/WDSContentServer/WDSP/IB/1994/02/01/000009265_3970311123634/Rendered/PDF/multi_page.pdf"></a> (last accessed 05 June, 2013)</span></p>
<p style="text-align: justify; ">[<a href="#fr7" name="fn7">7</a>]. See generally- Rod Falvey et. al., The Role of Intellectual Property Rights in Technology Transfer and Economic Growth: Theory and Evidence, United Nations Industrial Development Organization: Discussion Paper (2006), available at <a class="external-link" href="http://bit.ly/11JBR4o">http://bit.ly/11JBR4o</a> <span>(last accessed 05 June, 2013).</span></p>
<p style="text-align: justify; ">[<a href="#fr8" name="fn8">8</a>]. Id.</p>
<p style="text-align: justify; ">[<a href="#fr9" name="fn9">9</a>]. Supra note 2 at 23.</p>
<p style="text-align: justify; ">[<a href="#fr10" name="fn10">10</a>]. Supra note 2 at 23.</p>
<p style="text-align: justify; ">[<a href="#fr11" name="fn11">11</a>]. <span>PTI, India – EU FTA Talks Fail to Bridge Gaps, available at </span>http://bit.ly/19LJaeP <span>(last accessed 05 June, 2013). </span></p>
<p style="text-align: justify; ">[<a href="#fr12" name="fn12">12</a>]. <span>Krista Cox, Quick Reaction to the EU/India (BTIA) Negotiating Text, available at <a href="http://keionline.org/node/1693">http://keionline.org/node/1693</a> (last accessed 04 June, 2013). </span></p>
<p style="text-align: justify; ">[<a href="#fr13" name="fn13">13</a>]. Hereafter referred to as the FTA</p>
<p style="text-align: justify; ">[<a href="#fr14" name="fn14">14</a>]. <span>KEI Staff, More Notes on the India EU FTA (BTIA), available at <a href="http://keionline.org/node/1692">http://keionline.org/node/1692</a> (last accessed 05 June, 2013).</span><span> </span></p>
<p style="text-align: justify; ">[<a href="#fr15" name="fn15">15</a>]. <span>See </span><a class="external-link" href="http://bit.ly/13XhCfZ">http://bit.ly/13XhCfZ</a> <span> for more details, and for the bare text of the Articles. (last accessed 05 June, 2013).</span><span> </span></p>
<p style="text-align: justify; ">[<a href="#fr16" name="fn16">16</a>]. Supra note 14.</p>
<p style="text-align: justify; ">[<a href="#fr17" name="fn17">17</a>]. Supra note 12.</p>
<p style="text-align: justify; ">[<a href="#fr18" name="fn18">18</a>]. <span>Patralekha Chatterjee, Leaked IP Chapter of India- EU FTA Shows TRIPS-PLUS Pitfalls for India, Expert Says, available at </span><a class="external-link" href="http://bit.ly/Y7w70e">http://bit.ly/Y7w70e</a><span> (last accessed 05 June, 2013).</span><span> </span></p>
<p style="text-align: justify; ">[<a href="#fr19" name="fn19">19</a>]. <span>Snehashish Ghosh, Analysis of Copyright Expansion in the India-EU FTA (July 2010), available at </span><a class="external-link" href="http://bit.ly/ysitEC">http://bit.ly/ysitEC</a><span><a href="https://cis-india.org/a2k/blogs/blog/analysis-copyright-expansion-india-eu-fta"></a> (last accessed 03 June, 2013).</span></p>
<p style="text-align: justify; ">[<a href="#fr20" name="fn20">20</a>]. <span>For the status of Contracting Parties, see </span><a class="external-link" href="http://bit.ly/UITpsX">http://bit.ly/UITpsX</a><span> (last accessed 05 June, 2013).</span></p>
<p style="text-align: justify; ">[<a href="#fr21" name="fn21">21</a>]. <span>For the status of Contracting Parties, see </span><a class="external-link" href="http://bit.ly/f92xL2">http://bit.ly/f92xL2</a><span> (last accessed 05 June, 2013).</span></p>
<p style="text-align: justify; ">[<a href="#fr22" name="fn22">22</a>]. For the status of Contracting Parties, see <a class="external-link" href="http://bit.ly/fEsUAF">http://bit.ly/fEsUAF</a> (last accessed 05 June, 2013).</p>
<p style="text-align: justify; ">[<a href="#fr23" name="fn23">23</a>]. Supra note 14.</p>
<p style="text-align: justify; ">[<a href="#fr24" name="fn24">24</a>]. Supra note 19.</p>
<p style="text-align: justify; ">[<a href="#fr25" name="fn25">25</a>]. Supra note 19.</p>
<p style="text-align: justify; ">[<a href="#fr26" name="fn26">26</a>]. Supra note 19.</p>
<p style="text-align: justify; ">[<a href="#fr27" name="fn27">27</a>]. Supra note 12.</p>
<p style="text-align: justify; ">[<a href="#fr28" name="fn28">28</a>]. Supra note 12.</p>
<p style="text-align: justify; ">[<a href="#fr29" name="fn29">29</a>]. Supra note 12.</p>
<p style="text-align: justify; ">[<a href="#fr30" name="fn30">30</a>]. Supra note 12.</p>
<p style="text-align: justify; ">[<a href="#fr31" name="fn31">31</a>]. Supra note 14.</p>
<p style="text-align: justify; ">[<a href="#fr32" name="fn32">32</a>]. Supra note 12.</p>
<p style="text-align: justify; ">[<a href="#fr33" name="fn33">33</a>]. Supra note 12.</p>
<p style="text-align: justify; ">[<a href="#fr34" name="fn34">34</a>]. See Article 35 of the Proposed FTA.</p>
<p style="text-align: justify; ">[<a href="#fr35" name="fn35">35</a>]. <span>Glover Wright, A Guide to the Proposed India-European Union Free Trade Agreement, available at </span><a class="external-link" href="http://bit.ly/16Dfuga">http://bit.ly/16Dfuga</a><span><a href="https://cis-india.org/a2k/blogs/publications/CIS%20Open%20Data%20Case%20Studies%20Proposal.pdf/view"></a> (last accessed 05 June, 2013) at 12- 14.</span><span> </span></p>
<p style="text-align: justify; ">[<a href="#fr36" name="fn36">36</a>]. Id.</p>
<p style="text-align: justify; ">[<a href="#fr37" name="fn37">37</a>]. Id.</p>
<p style="text-align: justify; ">[<a href="#fr38" name="fn38">38</a>]. <span>Thiru, EU-India FTA: EU Pushes for IP Enforcement- IP Chapter Draft Text Under Negotiation (2013), available at <a href="http://keionline.org/node/1681">http://keionline.org/node/1681</a> (last accessed 05 June, 2013).</span></p>
<p style="text-align: justify; ">[<a href="#fr39" name="fn39">39</a>]. See Article 22.3 of the proposed FTA.</p>
<p style="text-align: justify; ">[<a href="#fr40" name="fn40">40</a>]. Supra note 35.</p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/india-eu-fta-copyright-issues'>https://cis-india.org/a2k/blogs/india-eu-fta-copyright-issues</a>
</p>
No publishernehaaAccess to KnowledgeCopyrightAccessibilityIntermediary LiabilityTechnological Protection Measures2013-07-03T06:47:08ZBlog Entry CIS Intervention on the Treaty for the Visually Impaired at SCCR/SS/GE/2/13
https://cis-india.org/a2k/blogs/cis-intervention-eu-blocking-wipo-treaty-for-blind
<b>The informal session and special session of the Standing Committee on Copyright and Related Rights was organised by WIPO in Geneva from April 18 to April 20, 2013. Pranesh Prakash participated in the session and spoke about the rights of the visually impaired. An abridged version of this was read out during the meeting on Saturday, April 20, 2013, at 22:15 due to time restrictions.
</b>
<p style="text-align: justify; ">Thank you, Mr. Chair. I represent the Centre for Internet and Society, a policy research organization based in India. India, as everyone who has been attending these SCCR meetings since 2008 would know, has the world's largest population of blind and visually impaired persons. Two of my colleagues at CIS — Nirmita Narasimhan and Anandhi Viswanathan — are blind, and another one of my CIS colleagues who passed away recently (and whose tireless efforts were remembered here at WIPO recently with a minute of silence) — Rahul Cherian — spent many years working extensively on policy issues related to persons with disabilities, and in particular worked here in WIPO as part of Inclusive Planet, and with the World Blind Union. Hence, this issue is not an abstract one for us, but a very real one.</p>
<p style="text-align: justify; ">I commend the delegates here for taking some steps forward during this meeting. However, very disappointingly, with those few steps forward, we have seen a few things we had taken as settled being opened up again, and many steps being taken backward. The already-onerous requirements and procedures laid down in this treaty are seen by a few countries as not being onerous enough. Blind people, it is believed, might 'wrongly' take advantage of these provisions. Worse yet, there is a fear that sighted persons might take advantage of these provisions relating to the blind.</p>
<p style="text-align: justify; ">The absurdity of these fears somehow seems to have escaped the notice of many involved in these discussions. There is nothing in these provisions that would convert infringement by sighted people — even if 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. Those delegations who are unrelenting on these issues seem to living in a bizarre world where sighted infringers deviously use exceptions granted in an international copyright treaty to engage in piracy; a bizarre world where scanners and the Internet have not been invented. And by refusing to acknowledge these ground realities, they are merely forcing the blind into wearing eye-patches and being 'pirates'.</p>
<p style="text-align: justify; ">In particular, I would like to deplore the stand taken by the European Union, being represented here by the European Commission, whose actions run contrary to the call made in May 2011 by the European Parliament to "to address the ‘book famine’ experienced by visually impaired and print-disabled people". This is despite the European Parliament having reminded "the Commission and Member States of their obligations under the UN Convention on the Rights of Persons with Disabilities to take all appropriate measures to ensure that people with disabilities enjoy access to cultural materials in accessible formats, and to ensure that laws protecting IPR do not constitute an unreasonable or discriminatory barrier to access by people with disabilities to cultural materials". 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.</p>
<p style="text-align: justify; ">The United States' and EU's stand on technological protection measures, if accepted, would mean that publishers will technologically be able to prevent the blind from enjoying accessible works, even when they can't do so legally on the basis of copyright law. The European Union's stand on all issues has been extraordinarily harmful, and seems to have an aim to make this treaty as unwieldy and unworkable as possible. They seem to regard the Berne Appendix as their model in this regard: an international agreement that exists on paper for the benefit of developing countries, but because of its bureaucratic processes is little used, and is widely regarded as a failure.</p>
<p style="text-align: justify; ">Here is what it boils down to: when 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.</p>
<p style="text-align: justify; ">The rights of the visually impaired are being buried under unnecessary and complicated requirements and bureaucratic practices. This injustice must stop: the delegates here have the power to do so. And if the EU does not wish to be viewed as villains by all persons with print disabilities and all persons with conscience, it should stop trying to make this an ineffectual treaty. Many have quipped that this is fast becoming "A Treaty for Rightholders Against Persons with Visual Impairments and Print Disabilities" or alternatively "A Treaty for Morally Impaired Persons and Persons with Ethical Disabilities". That is an international shame.</p>
<p style="text-align: justify; ">Having colonized much of the world into using English, French, and Spanish, these European countries along with the USA are now in a position to be both culturally dominant and to refuse to sign up to this treaty if it helps blind persons outside of the EU and the USA who seek access to texts in these languages. These remnants of colonialism must be stamped out.</p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/cis-intervention-eu-blocking-wipo-treaty-for-blind'>https://cis-india.org/a2k/blogs/cis-intervention-eu-blocking-wipo-treaty-for-blind</a>
</p>
No publisherpraneshCopyrightAccessibilityAccess to KnowledgeWIPO2013-04-25T11:57:02ZBlog EntryLand and Social Justice - An introduction to Georgism
https://cis-india.org/a2k/events/land-and-social-justice-an-introduction-to-georgism
<b>Cherry G Mathew will be giving a public talk on Georgism at the office of the Centre for Internet and Society in Bangalore on April 12, 2013, from 5 p.m. to 7 p.m.</b>
<h3>Abstract</h3>
<p style="text-align: justify; ">In his popular book of the 1870s "Progress and Poverty", Henry George examined the causes of Poverty in contemporary America, and proposed very specific solutions for economic justice. "His genius has been glowingly acknowledged by such renowned figures as philosophers John Dewey and Mortimer J. Adler, presidents Woodrow Wilson and Dwight D. Eisenhower, scientists Alfred Russel Wallace and Albert Einstein, essayists John Ruskin and Albert Jay Nock, jurists Louis D. Brandeis and Samuel Seabury, columnists William F. Buckley and Michael Kinsley, and statesmen Winston Churchill and Sun Yat-sen.", while being heavily criticised by Karl Marx (who referred to George's teaching as "Capitalism's last ditch."<a href="#fn*" name="fr*">[*]</a></p>
<p style="text-align: justify; ">This talk will make a brief introduction to George's Ideas, and then will attempt to draw discussion on their relevence to information and current copyright and intellectual property landscapes.</p>
<h3 style="text-align: justify; ">Cherry G. Mathew</h3>
<p style="text-align: justify; ">Cherry G. Mathew is a British Chevening Scholar and an Open Source Kernel Hacker. He has worked on the Linux kernel in the past, and is an active FreeBSD and NetBSD developer/committer. He is an Electronics Engineer by basic training, with a Masters in Evolutionary and Adaptive Systems. He has worn various hats professionally, from Technical Developer, Roboticist, Free Software campaigner, CEO, volunteer teacher and currently software consultant. His current area of professional work is the Xen hypervisor and BSD kernels. His non-technology hobbies include outdoor pursuits and swing dancing.</p>
<hr />
<p><a class="external-link" href="https://docs.google.com/presentation/d/131Wt1xsux_Llc_Itcs2hbegZIC7kAgfysvwYwk02yWI/edit?usp=sharing">Click</a> to see the presentation</p>
<p>[<a href="#fr*" name="fn*">*</a>]. <a class="external-link" href="http://bit.ly/13HZg7m">http://bit.ly/13HZg7m</a> (Retrieved on March 29, 2013).</p>
<p>
For more details visit <a href='https://cis-india.org/a2k/events/land-and-social-justice-an-introduction-to-georgism'>https://cis-india.org/a2k/events/land-and-social-justice-an-introduction-to-georgism</a>
</p>
No publisherpraskrishnaIntellectual Property RightsCopyrightAccess to KnowledgeEvent2013-04-28T07:06:03ZEventWIPO To Negotiate Treaty For The Blind In June; ‘Still Some Distance To Travel’
https://cis-india.org/news/ip-watch-catherine-saez-december-18-2012-wipo-to-negotiate-treaty-for-the-blind-in-june
<b>In a swift 15 minute session this morning delegates at the World Intellectual Property Organization extraordinary assembly agreed to convene a high-level meeting in Morocco in June to finalise a treaty on international exceptions to copyrights on books in special formats for visually impaired people. </b>
<hr />
<p style="text-align: justify; ">This article by Catherine Saez was <a class="external-link" href="http://www.ip-watch.org/2012/12/18/wipo-to-negotiate-treaty-for-the-blind-in-june-still-some-distance-to-travel/">published</a> in Intellectual Property Watch on December 18, 2012. Rahul Cherian is quoted.</p>
<hr />
<p style="text-align: justify; ">After long informal discussions yesterday with the assembly chair, Ambassador Uglješa Zvekić of Serbia, the decision <a href="http://www.ip-watch.org/weblog/wp-content/uploads/2012/12/WIPO-EGA-Decisions-Dec-2012.pdf" target="_blank">document</a> [pdf] was issued this morning.</p>
<p style="text-align: justify; ">WIPO Director General Francis Gurry said, “It is a great decision. Of course we are all aware that there is still some distance to travel before we have a treaty, but this decision, I think, places us one further step along the road and in a very good position to be able to deliver the objective, namely a very positive outcome of this exercise, with a good treaty that improves the situation of visually impaired persons and the print disabled.”</p>
<p style="text-align: justify; ">The General Assembly decided that a diplomatic conference should be convened in June 2013, in Morocco, with a mandate to negotiate and conclude a treaty.</p>
<p style="text-align: justify; ">Furthermore, the WIPO Standing Committee on Copyright and Related Rights (SCCR) will meet in a special session for five days in February to expedite further text-based work on the draft treaty, <a href="http://www.wipo.int/edocs/mdocs/copyright/en/sccr_25/sccr_25_2.pdf" target="_blank">document SCCR/25/2</a> [pdf] “in order to reach sufficient level of agreement on the text.”</p>
<p style="text-align: justify; ">The assembly also directs "the Preparatory Committee to meet at the end of the February SCCR meeting to decide, if needed whether additional work is required with the objective of holding a successful Conference in June 2013," the decision says. It also states that the preparatory committee will invite observers.</p>
<p style="text-align: justify; ">The assembly decision has five paragraphs. With respect to paragraph 4 of the decision (on the special work session in February), Zvekić said, “we agreed to state for the record that in this paragraph, the phrase ‘additional work’ means additional work by either the SCCR or the preparatory committee, so that the preparatory committee can decide that either itself, the SCCR, or both may have additional work to do in order to prepare a revised text for the diplomatic conference.”</p>
<p style="text-align: justify; ">Document SCCR/25/2, which contains the draft articles as approved by the last SCCR session in November, "will constitute the substantive articles of the Basic Proposal for the Diplomatic Conference," the decision says, “with the understanding that any Member State and the special delegation of the European Union may make proposals at the Diplomatic Conference.”</p>
<p style="text-align: justify; ">The assembly also established a preparatory committee, which met at the close of the assembly this morning to work on modalities of the diplomatic conference, such as the draft rules of procedure, the list of states and organisations to be invited, and the agenda, dates, venue and other organisational questions.</p>
<p style="text-align: justify; ">Blue Sky with Some Clouds</p>
<p style="text-align: justify; ">The new consensus on a diplomatic conference and on a legally binding treaty to create exceptions and limitations to copyright for the benefit of visually impaired people cannot eclipse the fact that the draft text still reflects profound divisions between countries.</p>
<p style="text-align: justify; ">In February, delegates will have to tackle remaining issues, such as the inclusion of the three step test and commercial availability, on which they currently are at a standstill. Both inclusions are favoured by developed countries, in an effort to protect their right holders.</p>
<p style="text-align: justify; ">Yesterday morning, the delegation of Barbados said the treaty should be effective, and “while acknowledging the importance of safeguards,” it is important that “provisions in the text would not unduly restrict authorised entities from making accessible formats available under national law exceptions.”</p>
<p style="text-align: justify; ">“Provisions should not render the text nugatory through exposing authorised entities to possible liability and making their work administratively burdensome,” the delegate said.</p>
<p style="text-align: justify; ">In a <a href="http://www.ip-watch.org/weblog/wp-content/uploads/2012/12/WBU-press-release-18-Dec-2012.doc" target="_blank">press release</a> [doc] issued today by the World Blind Union (WBU), Maryanne Diamond, leader of the WBU Right To Read campaign, said, "The decision of the WIPO Extraordinary General Assembly today is a very significant milestone on the road to a treaty. It means governments have kept the work on track to agree a binding and effective treaty in 2013, which if completed would allow blind people to access many thousands more books."</p>
<p style="text-align: justify; ">"The work is far from over, though. We urge all parties to now negotiate a simple, binding and effective treaty. A good treaty will really help us to end the book famine in which only some one to seven percent of books are ever made accessible to us," the release said.</p>
<p style="text-align: justify; ">Rahul Cherian, from Indian WBU member Inclusive Planet, also said in the release that "the objective of this treaty must be that of helping blind and print disabled people to get accessible format books, especially in developing countries. To achieve this goal, it must be workable and simply worded so that blind and print disabled people and their organisations can use it to really make a difference."</p>
<p style="text-align: justify; ">Currently in many countries, copyright law prevents charities from making accessible copies of books, and from sending them to others in countries speaking the same language, the release said. "The WIPO treaty sought by the World Blind Union would remove these copyright barriers and open up a new world of reading to blind people."</p>
<p>
For more details visit <a href='https://cis-india.org/news/ip-watch-catherine-saez-december-18-2012-wipo-to-negotiate-treaty-for-the-blind-in-june'>https://cis-india.org/news/ip-watch-catherine-saez-december-18-2012-wipo-to-negotiate-treaty-for-the-blind-in-june</a>
</p>
No publisherpraskrishnaCopyrightAccess to KnowledgeWIPO2012-12-21T11:50:04ZNews ItemComments on the Broadcast Treaty and Exceptions and Limitations for Libraries and Archives
https://cis-india.org/a2k/blogs/comments-on-broadcast-treaty-and-exceptions-and-limitations-for-libraries-and-archives
<b>This November at WIPO the Standing Committee on Copyright and Related Rights was witness to a tough negotiation on the proposed Treaty providing access to copyrighted materials to visually impaired persons. In between these discussions, the SCCR also found time to have two short plenary sessions on the proposed broadcast treaty as well as working documents on exceptions for libraries and archives.</b>
<p style="text-align: justify; ">Although we were unable to make a statement at the SCCR due to logistical constraints, CIS had the following comments prepared on both these issues:</p>
<h3>Treaty for the Protection of Broadcasting Organizations:</h3>
<p style="text-align: justify; ">The Centre for Internet and Society would like to reiterate the statement on principles provided in the 22nd SCCR by many civil society non-governmental organizations, cable casters and technology companies opposing a rights-based Broadcast Treaty. While we are encouraged by the inclusion of more suitable alternatives in many of the areas that civil society organizations had expressed concern, it is important that these alternatives be considered carefully. Some of the alternatives in the working document are not in keeping with the mandate of this Committee and we need to ensure that any new treaty provides a balanced protection to broadcast organizations.</p>
<p>We wish to enumerate a few key areas that need to be emphasized once again in this regard –</p>
<p style="text-align: justify; ">To begin with, the definition of ‘broadcast’ itself should not be too broad. The treaty needs a clear and precise definition that limits the protection to signals and does not extend to retransmissions or transmissions over computer networks.</p>
<p style="text-align: justify; ">Similarly, it is essential that the protection granted to a broadcasting organization should be limited to broadcast signals. The current working document extends this protection to public accessibility/performance of the broadcast signal and such restrictions might not be feasible in developing and least developed countries. One alternative even extends the protection available to fixations of the broadcasts and this is entirely unacceptable in a signals based treaty. The obligations with regard to technological protection measures, if any, should also be limited to protect only those broadcasts that are lawful.</p>
<p>Limitations and exceptions to the protections granted by this treaty are also of great importance, especially so in light of the Development Agenda. These exceptions and limitations should be made mandatory and be expanded to include issues of national interest and for free-to-air broadcast signals (such as the laws governing broadcast of cricket games in India).</p>
<p style="text-align: justify; ">Lastly, as pointed out many times already, we are of the opinion that a fixed term of protection, whether 20 or 50 years, is inconsistent with the idea of a signals based approach to the treaty.</p>
<h3 style="text-align: justify; ">Proposed Legal Instruments on Exceptions and Limitations for Libraries and Archives and Educational, Teaching and Research Institutions and Persons with Other Disabilities:</h3>
<p style="text-align: justify; ">The Centre for Internet and Society would like to thank the Secretariat and the entire Committee for the hard work being put in this week at the SCCR.</p>
<p style="text-align: justify; ">International instruments that govern exceptions and limitations for libraries and archives as well as educational, teaching and research instruments and persons with other disabilities is key to ensure a balanced global copyright system that protects both right holders and users. Such instruments will not only allow the preservation of copyrighted works, but also provide greater access to these materials, especially in developing countries.</p>
<p style="text-align: justify; ">The working documents before us cover a number of issues and we would like to address a few of them today.</p>
<p style="text-align: justify; ">First, the three-step test. This has been a contentious issue with regard to all three instruments that are being discussed here this week. We would like to reiterate that a narrow interpretation of the three-step test should not be adopted, it is important that any and all flexibilities that can be made available to libraries and archives.</p>
<p style="text-align: justify; ">Second, libraries, archives, educational, research and teaching institutions should definitely be allowed to import and export copyrighted works and parallel trade in these works should be allowed. The language used in the current working document (SCCR/24/8) needs to be improved upon (Article 14, under 4.1 on page 12). This provision should indicate that as long as the copy of the work is lawfully produced, an educational institution, library, research organization or student is free to acquire, sell, import, export or otherwise dispose of that copy.</p>
<p style="text-align: justify; ">Thirdly, we wish to emphasize once again, the importance of protecting works that are in a digital format, as well as online libraries and archives. Additionally, the transmission of these works in a digital form as well as any internet service providers engaged in facilitating access to materials under this treaty should also be granted protection.</p>
<p>Thank you.</p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/comments-on-broadcast-treaty-and-exceptions-and-limitations-for-libraries-and-archives'>https://cis-india.org/a2k/blogs/comments-on-broadcast-treaty-and-exceptions-and-limitations-for-libraries-and-archives</a>
</p>
No publishersmitaIntellectual Property RightsCopyrightAccess to KnowledgeWIPO2012-12-04T23:11:34ZBlog EntryTranscripts of Discussions at WIPO SCCR 25
https://cis-india.org/a2k/blogs/wipo-sccr25-discussions-transcripts
<b>We are providing archival copies of the transcripts of the 25th session of the WIPO Standing Committee on Copyright and Related Rights, which is being held in Geneva from November 19, 2012 to November 23, 2012.
</b>
<p>This is an unedited rough transcript of the discussions at SCCR 25 which is live-streamed and made available by WIPO at <a class="moz-txt-link-freetext" href="http://www.streamtext.net/player/carttranscript?Event=WIPO">http://www.streamtext.net/player/carttranscript?Event=WIPO</a> and <a class="moz-txt-link-freetext" href="http://www.streamtext.net/player?event=WIPO">http://www.streamtext.net/player?event=WIPO</a>. We are hosting the live-streamed text for archival purposes:</p>
<ul>
<li><a href="https://cis-india.org/a2k/blogs/wipo-sccr-25-day-1-november-19-2012.txt" class="internal-link">WIPO SCCR 25 Day 1, November 19, 2012</a> (Full Text)</li>
<li><a href="https://cis-india.org/a2k/blogs/wipo-sccr-25-day-2-november-20-2012.txt" class="internal-link">WIPO SCCR 25 Day 2, November 20, 2012</a> (Full Text)</li>
<li><a href="https://cis-india.org/a2k/blogs/wipo-sccr-25-day-3-november-21-2012.txt" class="internal-link">WIPO SCCR 25 Day 3, November 21, 2012</a> (Full Text)</li>
<li><a href="https://cis-india.org/a2k/blogs/wipo-sccr-25-day-4-november-22-2012.txt" class="internal-link">WIPO SCCR 25 Day 4, November 22, 2012</a> (Full Text)</li>
<li><a href="https://cis-india.org/a2k/blogs/wipo-sccr-25-day-5-november-23-2012.txt" class="internal-link">WIPO SCCR 25 Day 5, November 23, 2012</a> (Full Text)</li>
</ul>
<p> </p>
<ul>
</ul>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/wipo-sccr25-discussions-transcripts'>https://cis-india.org/a2k/blogs/wipo-sccr25-discussions-transcripts</a>
</p>
No publishersmitaLive BlogCopyrightAccess to KnowledgeWIPO2012-12-05T00:58:55ZBlog EntrySuper Cassettes v. MySpace
https://cis-india.org/a2k/blogs/super-cassettes-v-my-space
<b>The Delhi High Court’s judgment in Super Cassettes v. MySpace last July is worrying for a number of reasons. The court failed to appreciate the working of intermediaries online and disregard all pragmatic considerations involved. The consequences for free expression and particularly for file sharing by users of services online are especially unfavourable. </b>
<p style="text-align: justify; ">The judgment<a href="#fn*" name="fr*">[*]</a>is extremely worrying since it holds MySpace liable for copyright infringement, <b>despite</b> it having shown that it did not know, and could not have known, about each instance of infringement; that it removed each instance of alleged infringement upon mere complaint; that it asked Super Cassettes to submit their songs to their song identification database and Super Cassettes didn't.</p>
<p style="text-align: justify; ">This, in essence, means, that all 'social media services' in which there is even a <b>potential</b> for copyright infringement (such as YouTube, Facebook, Twitter, etc.) are now faced with a choice of either braving lawsuits for activities of their users that they have no control over — they can at best respond to takedown requests after the infringing material has already been put up — or to wind down their operations in India.</p>
<h2 style="text-align: justify; ">The Facts</h2>
<p style="text-align: justify; ">Aside from social networking, MySpace facilitates the sharing of content between its users. This case concerns content (whose copyright vested in T-Series) was uploaded by users to MySpace’s website. It appears that tensions between MySpace and T-Series arose in 2007, when T-Series entered into talks with MySpace to grant it licenses in its copyrighted content, while MySpace asked instead that T-Series register with its rights management programme. Neither the license nor the registration came about, and the infringing material continued to be available on the MySpace website.</p>
<p style="text-align: justify; ">Specifically, T-Series alleged that cases for primary infringement under section 51(a)(i) of the Copyright Act as well as secondary infringement under section 51 (a) (ii) could be made out. Alleging that MySpace had infringed its copyrights and so affected its earnings in royalties, T-Series approached the Delhi High Court and filed a suit seeking injunctive relief and damages. In proceedings for interim relief while the suit was pending, the court granted an injunction, but, in an appeal by MySpace, added the qualification that the content would have to be taken down only on receipt of a specific catalogue of infringing works available on MySpace, rather than a general list of works in which T-Series held a copyright.</p>
<h2 style="text-align: justify; ">The Defence</h2>
<p>While other arguments such as one around the jurisdiction of the court were also raised, the central issues are listed below:</p>
<ol>
<li style="text-align: justify; ">Non-Specificity of Prayer<br />T-Series’ claim in the suit is for a blanket injunction on copyrighted content on the MySpace website. This imposes a clearly untenable, even impossible, burden for intermediaries to comply with.</li>
<li style="text-align: justify; ">Knowledge<br />MySpace argued that no liability could accrue to it on two counts. The first was that it had no actual or direct knowledge or role in the selection of the content, while the second was that no control was exercised, or was exercisable over the uploading of the content. Additionally, there was no possible means by which it could have identified the offending content and segregated it from lawful content, or monitored all of the content that it serves as a platform for.</li>
<li style="text-align: justify; ">Intermediary status and Safe Harbour Protection<br />In relation to its status as an intermediary, MySpace raised several arguments. First, it argued that it had immunity under section 79 of the IT Act and under the US Digital Millennium Copyright Act (US DMCA). Another argument restated what is arguably the most basic tenet of intermediary liability that merely providing the platform by which infringement could occur cannot amount to infringement. In other words, the mere act of facilitating expression over internet does not amount to infringement. It then made reference to its terms of use and its institution of safeguards (in the form of a hash filter, a rights management tool and a system of take-down–stay-down), which it argued clearly reflect an intention to discourage or else address cases of infringement as they arise. MySpace also emphasized that a US DMCA compliant procedure was in place, although T-Series countered that the notice and take down system would not mitigate the infringement.</li>
<li style="text-align: justify; ">Relationship between MySpace and its Users<br />Taking from previous arguments about a lack of control and its status as an intermediary, MySpace argued that it was simply a licensee of users who uploaded content. The license is limited, in that MySpace is only allowed to alter user-generated content so as to make it viewable.</li>
</ol>
<h2 style="text-align: justify; ">Outcomes</h2>
<ol>
<li style="text-align: justify; ">Infringement by Facilitation<br />The court concluded that infringement in terms of section 51 (a) (ii) had occurred in this case, since web space is a “place” in the terms required by the section and there were monetary gains in the form of ad revenue. The argument as to a lack of knowledge of infringement was also rejected on the ground that MySpace’s provision for safeguards against infringement clearly established a reason to believe that infringement will occur. Also referenced as evidence of knowledge, or at least a reason to believe infringement would occur, is the fact that MySpace modifies the format of the content before making it available on its website. It also tested for infringement by authorization in terms of section 14 read with section 51 (a) (i), but concluded that this did not arise here.</li>
<li style="text-align: justify; ">Reading away section 79?<br />The court accepted the argument made by T-Series to the effect that sections 79 and 81 of the IT Act must be read together. Since section 79 would be overridden by section 81’s non-obstante, the effect would be that rights holders’ interests under the Copyright Act will erode intermediaries’ immunity under section 79. </li>
<li style="text-align: justify; ">Due Diligence<br />The court rejected the argument that the provision of due diligence or curative measures post-infringement would be sufficient. Specifically, the contention that the quantum of content being uploaded precludes close scrutiny, given the amount of labour that would be involved, was rejected. Content should not immediately be made available but must be subject to enquiries as to its title or to authentication of its proprietor before it is made available. In fact, it holds that, “there is no reason to axiomatically make each and every work available to the public solely because user has supplied them unless the defendants are so sure that it is not infringement.” (Paragraph 88).</li>
</ol> <ol> </ol>
<p style="text-align: justify; ">There is also an attempt to distinguish the Indian framework from the DMCA. While that law calls for post-infringement measures, it is argued that in India, on reading section 51 with section 55, the focus is on preventing infringement at the threshold. In response to the case that it would be impossible to do so, the court held that since the process here requires MySpace to modify the format of content uploaded to it to make it viewable, it will have a reasonable opportunity to test for infringement.</p>
<h2 style="text-align: justify; ">Analysis</h2>
<h3>Accounting for the Medium of Communication</h3>
<p style="text-align: justify; ">The court’s analysis of the issues begins with a predictable emphasis on how the law of copyright would operate in the context of what is termed “internet computing”, peppered with trite statements about “the virtual world of internet” creating “complexit[ies]” for copyright law. The court appears to have entered into this discussion to establish that the notion of place in section 51 (a) (ii) should extend to “web space” but the statements made here only serve to contrast starkly against its subsequent failure to account for the peculiarities of form and function of intermediaries online. Had this line of argument been taken to its logical conclusion, after the character of the medium had been appreciated, the court’s final conclusion, that MySpace is liable for copyright infringement, would have been an impossible one to arrive at.</p>
<h3 style="text-align: justify; ">And What of Free Speech?</h3>
<p style="text-align: justify; ">As it had argued before the court, intermediaries such as MySpace have no means by which to determine whether content is illegal (whether by reason of amounting to a violation of copyright, or otherwise) until content is uploaded. In other words, there is no existing mechanism by which this determination can be made at the threshold, before posting.</p>
<p style="text-align: justify; ">The court does not engage with the larger consequences for such a scheme of penalizing intermediaries. Censoring patent illegalities at the threshold, even if that were possible is one thing. The precedent that the court creates here is quite another. Given the general difficulty in conclusively establishing whether there is an infringement at all due to the complexities in applying the exceptions contained under section 52, it should not be for ordinary private or commercial interests such as intermediaries to sit in judgment over whether content is or is not published at all. In order to minimize its own liability, the likelihood of legitimate content being censored by the intermediary prior to posting is high.</p>
<p style="text-align: justify; ">The consequences for civil liberties, and free speech and expression online in particular, appear to have been completely ignored in favour of rights holders’ commercial interests.</p>
<h3 style="text-align: justify; ">Consequences for Intermediary Liability and Safe Harbour Protection</h3>
<blockquote class="pullquote" style="text-align: justify; ">Even if every instance in question did amount to an infringement of copyright and a mechanism did exist allowing for removal of content, the effect of this judgment is to create a strict liability regime for intermediaries.</blockquote>
<p style="text-align: justify; ">In other words, the court’s ruling will have the effect that courts’ determination of intermediaries’ liability will become detached from whether or not any fault can be attributed to them. MySpace did make this argument, even going as far as to suggest that doing so would impose strict liability on intermediaries. This would lead to an unprecedented and entirely unjustifiable result. In spite the fact that a given intermediary did apply all available means to prevent the publication of potentially infringing content, it would remain potentially liable for any illegality in the content, even though the illegality could not have been detected or addressed.</p>
<p style="text-align: justify; ">What is perhaps even more worrying is that MySpace’s attempt at proactively and in good faith preventing copyright infringement through its terms of use and in addressing them through its post-infringement measures was explicitly cited as evidence of knowledge of and control over the uploading of copyrighted material, at the threshold rather than ex post. This creates perverse incentives for the intermediary to ignore infringement, to the detriment of rights holders, rather than act proactively to minimize its incidence.</p>
<p style="text-align: justify; ">A final observation is that the court’s use, while pronouncing on relief, of the fact that MySpace makes a “copy” of the uploaded content by converting it into a format that could subsequently be hosted on the site and made accessible to show evidence of infringement and impose liability upon MySpace in itself is a glaring instance of the disingenuous reasoning the court employs throughout the case. There is another problem with the amended section 79, which waives immunity where the intermediary “modifies” material. That term is vague and overreaches, as it does here: altering formats to make content compatible with a given platform is not comparable to choices as to the content of speech or expression, but the reading is tenable under section 79 as it stands.</p>
<p style="text-align: justify; ">The result of all of this is to dislodge the section 79 immunity that accrues to intermediaries and replace that with a presumption that they are liable, rather than not, for any illegality in the content that they passively host.</p>
<h3 style="text-align: justify; ">Effect of the Copyright (Amendment) Act, 2012</h3>
<p style="text-align: justify; ">Since the judgment in the MySpace case, the Copyright Act has been amended to include some provisions that would bear on online service providers and on intermediaries’ liability for hosting infringing content, in particular. Section 52 (1) (b) of the amended Act provides that “transient or incidental storage of a work or performance purely in the technical process of electronic transmission or communication to the public” would not infringe copyright. The other material provision is section 52 (1) (c) which provides that “transient or incidental storage of a work or performance for the purpose of providing electronic links, access or integration, where such links, access or integration has not been expressly prohibited by the right holder, unless the person responsible is aware or has reasonable grounds for believing that such storage is of an infringing copy” will not constitute an infringement of copyright. The latter provision appears to institute a rather rudimentary, and very arguably incomplete, system of notice and takedown by way of a proviso. This requires intermediaries to takedown content on written complaint from copyright owners for a period of 21 days or until a competent rules on the matter whichever is sooner, and restore access to the content once that time period lapses, if there is no court order to sustain it beyond that period.</p>
<p style="text-align: justify; ">This post does not account for the effect that these provisions could have had on the case, but it is already clear, from the sloppy drafting of section 52 (1) (c) and its proviso that they are not entirely salutary even at the outset. At any rate, there appears to be nothing that *<i>determinatively*</i> affects intermediaries’ secondary liability, <i>i.e.</i>, their liability for users’ infringing acts.</p>
<hr />
<p style="text-align: justify; "><i>Disclosure: CIS is now a party to these proceedings at the Delhi High Court. This is a purely academic critique, and should not be seen to have any prejudice to the arguments we will make there.</i></p>
<hr />
<p>[<a href="#fr*" name="fn*">*</a>]. Super Cassettes Industries Ltd. v. MySpace Inc. and Another, on 29 July, 2011, Indian Kanoon - Search engine for Indian Law. See<a class="external-link" href="http://bit.ly/quj6JW"> http://bit.ly/quj6JW</a>, last accessed on October 31, 2012.</p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/super-cassettes-v-my-space'>https://cis-india.org/a2k/blogs/super-cassettes-v-my-space</a>
</p>
No publisherujwalaAccess to KnowledgeCopyrightIntellectual Property RightsIntermediary LiabilityFeatured2012-10-31T10:27:36ZBlog EntryFeedback to Draft Copyright Rules, 2012
https://cis-india.org/a2k/feedback-to-draft-copyright-rules-2012
<b>The Centre for Internet & Society submitted its written comments on the Draft Copyright Rules, 2012 to Mr. G.R. Raghavender, Registrar of Copyrights & Director (BP&CR), Ministry of Human Resource Development. </b>
<p>G.R. Raghavender<br />Registrar of Copyrights & Director (BP&CR)<br />Copyright Office<br />Department of Higher Education<br />Ministry of Human Resource Development<br />4th floor, Jeevan Deep Building,<br />Parliament Street<br />New Delhi — 110001</p>
<p>Dear Sir,</p>
<p style="text-align: justify; ">This submission contains comments from the Centre for Internet and Society on the Draft Copyright Rules, 2012. I apologize for the slight delay in submitting these.</p>
<p>Yours sincerely,<br />Pranesh Prakash<br />Policy Director<br />Centre for Internet and Society</p>
<hr />
<h2>Relinquishment of Copyright</h2>
<h3>Analysis</h3>
<p class="Firstparagraph" style="text-align: justify; ">The law in India allows anonymously and pseudonymously created works to be copyrighted as well, as is clear from section 23 of the Copyright Act. However, rule 8 as it currently is does not allow such authors to relinquish copyright. Relinquishment of copyright is a very different kind of act from registration of copyright, and hence it is not necessary to seek the same categories of information from both. Certain categories of information sought during registration of copyright ("class of work", "language of the work", "nationality of author") are required not because they help identify a work, but because they help in indexing the work ("class of work", "language of work") or in ensuring that the work is copyrightable in India ("nationality of author"). Such considerations do not matter when it comes to relinquishment of copyright, i.e., when a work is allowed to pass into the public domain. Further, technological progress has made it difficult to determine the answer to a question like "country of first publication", "nationality of the publisher", etc. If a work has been uploaded by an author on to his blog, is the publisher the author or the person hosting the blog? If an Indian author residing in India first publishes a work on the server located in Argentina, is the country of first publication India or Argentina? The answer to these questions does not make a difference to the issue of relinquishment of copyright. The only information that is required for relinquishment of rights is a) what work is being put in the public domain, b) by whom, c) from when.</p>
<p style="text-align: justify; ">Furthermore, the current requirements of rule 8 cannot easily be satisfied by using most of the popular means of relinquishing copyright (such as the CC0 — Creative Commons Zero — licence).</p>
<h2 style="text-align: justify; ">Recommendations</h2>
<p class="Firstparagraph" style="text-align: justify; ">Rule 8 be modified to read: A public notice issued by an author relinquishing his or her rights as per subsection (1) of section 21 of the Copyright Act, shall include the following details: (a) Title of the work (b) Full name, or pseudonym, in case the work has not been created anonymously (c) Date of issuance of the notice (d) If copyright in the work is registered under section 45, the registration number.</p>
<p style="text-align: justify; ">Rule 9 be modified to read: Any one of the following shall constitute public notice of relinquishment of copyright: i. Mentioning of the notice on the work, or cover of the work, or in the metadata of the work if the work is electronic; or ii. Publication in a newspaper; or iii. Publication by the author on a publicly-accessible website</p>
<p style="text-align: justify; ">Rule 10 be modified to add the following sentence: The author shall forward a copy of the public notice to the Registrar of Copyright if copyright in the work has been registered under section 45 and on receiving such notice, the Registrar of Copyright shall post the same on the website of the Copyright Office.</p>
<h2 style="text-align: justify; ">Statutory Licence for Cover Versions</h2>
<h3>Analysis</h3>
<p class="Firstparagraph">Rule 34(2) is redundant and does not contain any detail not already present in the existing proviso to section 31C(1) of the Copyright Act. Additionally, Rule 35 also does not contain any detail not already present in the existing parent provision, section 31C of the Copyright Act.</p>
<h3>Recommendations</h3>
<p>Rules 34(2) and 35 be deleted.<br />Rule 37 should be modified to add a sub-rule requiring maintenance of records online.</p>
<h2>Indexes</h2>
<h3>Analysis</h3>
<p class="Firstparagraph" style="text-align: justify; ">In rule 71(3), it requires that the indexes be maintained in the form of cards. These are presumably physical cards. It is unclear why the rule should not require the maintenance of these indexes online to facilitate search by the public. Further entries 13 and 14 of Schedule II are from a time when the transaction costs incurred by the Registrar of Copyright for providing extracts from an Index were non-negligible, and hence it would have been necessary to charge a person for such services. With the capabilities of electronic systems, such retrievals are almost costless, and can be done without the intervention of the Registrar of Copyright. Hence entries 13 and 14 should not be made applicable to online retrievals. If copyright societies can be required to provide information free of costs on their websites (as per rule 65), the Registrar of Copyright should be required to do so too.</p>
<h3>Recommendation</h3>
<p class="Firstparagraph" style="text-align: justify; ">Modify sub-rule (3) of rule 71 to read: "Every Index shall be available online as a downloadable database, with an online search facility."</p>
<p style="text-align: justify; ">Modify the second sentence in rule 72 to read: "The online search or inspection of the Register of Copyrights and Indexes can be utilised free of cost."</p>
<h2 style="text-align: justify; ">Storage of Transient or Incidental Copies of a Work</h2>
<h3>Analysis</h3>
<p class="Firstparagraph" style="text-align: justify; ">It is not clear enough from the language of rule 74 that it applies only to s.52(1)(c) and not to s.52(1)(b). Since only s.52(1)(c) has a complaints mechanism, this should be made clear.</p>
<p style="text-align: justify; ">Importantly, to protect the interest of the public, the intermediaries should be asked to give public notice regarding the alleged infringing copy to ensure that the take-down mechanism is not abused, and secondly to ensure that the public can independently verify that intermediaries are following the requirement in rule 74(4) of restoring storage of the work if no court order is forthcoming within 21 days.</p>
<p style="text-align: justify; ">Lastly, there is no clear precedent in India to treat a uniform resource identifier (URI) as 'place' for purposes of section 51(a)(ii) of the Copyright Act, 1957. Therefore it is necessary to further clarify the meaning of the term 'place' as used in current Rule 74(2)(d). This would be best served by using the correct technological term ("URI") instead of the word "place".</p>
<h3>Recommendation</h3>
<p class="Firstparagraph" style="text-align: justify; ">Modify sub-rule (1) of rule 74 to: "Any owner of copyright may give a written complaint as per clause (c) of subsection (1) of section 52 of the Copyright Act to a person who has facilitated..."</p>
<p style="text-align: justify; ">Add sub-rule (6) to rule 74: "The person responsible for storage shall put up a public notice thereby notifying all persons requesting access to the alleged infringing copy by stating reasons for restraining such access whether during the period of 21 days from the complaint from the copyright owner, or pursuant to an order from a competent court."</p>
<p style="text-align: justify; ">Modify rule 74(2) to read: "Details of the specific uniform resource identifier (URI) where transient or incidental storage of the work may be taking place."</p>
<h2 style="text-align: justify; ">Making or Adapting the Work by Organizations Working for the Benefit of Persons with Disabilities</h2>
<h3>Analysis</h3>
<p style="text-align: justify; ">Rule 75 requires organizations making use of the exception granted under s.52(1)(zb) to maintain records. This could not have been the intention of the legislature in passing s.52(1)(zb), since that provision does not require any maintenance of records. Indeed, none of the exceptions ennume-rated in s.52(1) require the maintenance of records. This is in contrast with s.31B, which is also applicable to organizations working for the benefit of persons with disabilities, but only those that are doing so as a for-profit venture. Rule 29(6) already requires the Registrar of Copyright to notify the grant of a licence under s.31B in the Official Gazette. That provision may be modified to add that the Registrar of Copyright maintains these records in a centralized database that can be queried online.</p>
<h3>Recommendations</h3>
<p>Delete rule 75, and modify rule 29(6) to include a centralized database.</p>
<h2>Technological Protection Measures</h2>
<h3>Analysis</h3>
<p class="Firstparagraph" style="text-align: justify; ">Most experts seem to hold that s.65A of the Indian Copyright Act does not affect circumvention tools, as it only deals with the act of unauthorized circumvention and not with the tools, in sharp contrast with s.1201(a)(2) of the Digital Millennium Copyright Act in the US, which criminalises the "manufacture, import, offer to the public, provision, or otherwise trafficking in any [circumvention] technology, product, service, device, component, or part thereof". The Indian law has conciously chosen not to emulate the DMCA in this respect, as the WIPO Copyright Treaty does not require it.</p>
<p style="text-align: justify; ">The broad understanding of "facilitation" contained the Copyright Rules unfortunately seem to undermine this clear distinction. If facilitation is understood to include offer to the public, provision, or distribution, as seems to be the case in Rule 79(3) and 79(4), then law becomes unworkable with each and every website that allows for the downloading of any software that can be used to play DVDs, etc., must specifically keep a register of downloaders from India. This is unnecessary, and goes beyond the intent of s.65A, which is to cover those who actively facilitate circumvention and not those who make available the tools to circumvent. This distinction should not be blurred.</p>
<h3 style="text-align: justify; ">Recommendation</h3>
<p style="text-align: justify; ">Delete sub-rules (3) and (4) of rule 79.</p>
<p>
For more details visit <a href='https://cis-india.org/a2k/feedback-to-draft-copyright-rules-2012'>https://cis-india.org/a2k/feedback-to-draft-copyright-rules-2012</a>
</p>
No publisherpraneshCopyrightAccess to Knowledge2012-10-04T04:53:47ZBlog EntryEntertainment industry and Internet piracy in focus
https://cis-india.org/news/www-the-hindu-sep-17-2012-krishnadas-rajagopal-entertainment-industry-and-internet-piracy-in-focus
<b>The first-of-its-kind initiative by the anti-piracy cell of the Kerala Police to register cases against 1,010 Internet users for uploading or downloading the Malayalam film Bachelor Party has sparked a debate between social media experts and legal puritans on what the law actually says.</b>
<hr />
<p class="body" style="text-align: justify; ">Krishnadas Rajagopal's article was <a class="external-link" href="http://www.thehindu.com/news/states/kerala/article3904909.ece">published</a> in the Hindu on September 17, 2012. Pranesh Prakash and Prashant Iyengar are quoted.</p>
<hr />
<p class="body" style="text-align: justify; ">Internet users and anti-monopoly advocates say the police action against movie downloaders is “questionable.” They argue how the Copyright Act, 1957, has given wide exception to those who disseminate copyright works for “personal and private use.”</p>
<p class="body" style="text-align: justify; ">Legal puritans, on the other hand, quote the same 1957 law and the Information Technology (IT) Act, 2000, to argue that the State police have not done anything wrong.</p>
<p class="body" style="text-align: justify; ">They say the act of uploading and downloading a copyrighted cinematographic work amounts to publishing and transmitting it, respectively.</p>
<p class="body" style="text-align: justify; ">They cite Section 66 of the IT Act, 2000, that says a “hacker,” if found guilty, can get three years’ imprisonment, a fine up to Rs.2 lakh, or even both.</p>
<p class="body" style="text-align: justify; ">That’s not all. Section 43 of the same statute prescribes that a “hacker” may have to cough up Rs.1 crore in compensation in case of “damage to the computer system.”</p>
<p><b>Middle line</b></p>
<p style="text-align: justify; ">Some others draw the middle line about the police’s drive. They say that though downloading is as illegal as buying a pirated CD from the market and “ignorance of law is no excuse to escape prosecution under an existing law,” the sheer magnitude of registering mass cases against downloaders, probably on a global scale, is impractical.</p>
<p style="text-align: justify; ">“It is questionable whether downloading for personal use by itself constitutes an offence under the Copyright Act, 1957. The Act has created a wide exception for personal and private use,” says Pranesh Prakash, programme manager for Access to Knowledge, Openness, Internet Governance and Freedom of Speech at The Centre for Internet and Society in Bangalore.</p>
<p style="text-align: justify; ">The usage “personal and private use” in the Act can be better understood in the contrast — that is, downloading without any intention to “disseminate the cinematographic work to a community you are not provisionally associated to.”</p>
<p><b>Legislative intent</b></p>
<p style="text-align: justify; ">Prashant Iyengar, Assistant Professor and Assistant Director, Centre for Intellectual Property Rights Studies, Jindal Global Law School, says the legislative intent behind the wide exceptions given to dissemination of work in the 1957 law is actually strengthening the public domain.</p>
<p style="text-align: justify; ">“In India under the Copyright Act, we have a robust regime of fair dealing rights to ensure that information cannot be monopolised at the expense of the public’s access to information,” he says.</p>
<p style="text-align: justify; ">He refers to Section 52 of the Act that allows reproduction of literary, artistic, musical, and dramatic works for research and private uses without any “quantitative restriction” on the amount that may be copied. “However, cinematographic works do not fall under this exception,” he says.</p>
<p style="text-align: justify; ">Under Section 51, a single copy of a cinematographic work could be “imported” to India for personal and domestic use. This would not amount to copyright infringement.</p>
<p style="text-align: justify; ">“But it is currently unsettled in law whether Section 51 would protect users downloading movies for their personal use. On the other hand, if you receive a copy of a movie CD by post, this section would clearly apply,” Mr. Iyengar says.</p>
<p style="text-align: justify; ">Pavan Duggal, senior Supreme Court lawyer specialising in cyber laws, differs in his opinion. As far as he is concerned, the law is clear against copyright infringement.</p>
<p style="text-align: justify; ">He says unauthorised downloading of movies also attracts action under the IT Act, 2000. “The legal perspective is that when you upload a pirated copy, you are doing an act of publishing and when you click the ‘download’ button, you are transmitting data in an electronic format for the purpose of diminishing the value of electronic information,” he says.</p>
<p style="text-align: justify; ">“The Kerala Police have not done anything fundamentally wrong by registering cases against uploaders and downloaders. When I am creating a film, I have copyright to both cinematic and electronic versions. In case of infringement, I can act by suing for damages, injunction, in addition to exposing the person to criminal liability under the Copyright Act,” Mr. Duggal says.</p>
<p style="text-align: justify; ">However, Mr. Iyengar vehemently counters the point. He asks a “pertinent” question — how the Kerala Police conducted their probe and how the Internet Protocol addresses were obtained when Internet service providers have strict privacy obligations against disclosure of any such details, except to government authorities.</p>
<p style="text-align: justify; ">“In this case, one hears that a private investigation firm called ‘Jadoo Infotech’ was involved in conducting ‘cyber-patrolling,’ which is not authorised by any law. They would be guilty of the digital equivalent offence of ‘lurking house trespass’,” Mr. Iyengar says.</p>
<p style="text-align: justify; ">But Nandagopal Rajan, an associate editor with a technology magazine in Delhi, has a simple logic grounded in law.</p>
<p>“Anybody who is downloading illegally cannot seek protection. You are actually doing something illegal. On the flip side, how many people can you prosecute?” he asked.</p>
<p>
For more details visit <a href='https://cis-india.org/news/www-the-hindu-sep-17-2012-krishnadas-rajagopal-entertainment-industry-and-internet-piracy-in-focus'>https://cis-india.org/news/www-the-hindu-sep-17-2012-krishnadas-rajagopal-entertainment-industry-and-internet-piracy-in-focus</a>
</p>
No publisherpraskrishnaPiracyCopyrightAccess to Knowledge2012-09-17T10:00:54ZNews ItemMeeting of the Global Network on Flexible Limitations and Exceptions
https://cis-india.org/news/info-justice-public-events-flexibility-network
<b>American University Washington College of Law organized a meeting of the Global Network in Washington D.C., on September 12 to 15, 2012. Pranesh Prakash was one of the 25 participants. </b>
<h2>Agenda</h2>
<p><b>September 12<br /></b></p>
<table class="plain">
<tbody>
<tr>
<td>4:00-6:00</td>
<td>
<p>Recent Developments in Fair Dealing In Canada Room 603 | (<a class="external-link" href="http://media.wcl.american.edu/Mediasite/Play/05899ed8a93048bfa4a91214b47d6f4c1d">Webcast</a>) Peter Jaszi, Ariel Katz, Howard Knopf, Martin Senftleben, Michael Carroll</p>
</td>
</tr>
</tbody>
</table>
<p><b>September 13</b></p>
<table class="plain">
<tbody>
<tr>
<td>5:00-6:00</td>
<td style="text-align: justify; ">PIJIP Welcoming Reception, Room 600. The reception will be a joint welcome for the L&E Network and a concluding reception for an Orphan Works meeting with librarians hosted by Pam Samuelson and the Berkeley clinic.</td>
</tr>
<tr>
<td>5:30-9:00</td>
<td>Public Knowledge hosts the 9th Annual IP3 Awards. Ronald Reagan Building, 1300 Pennsylvania Avenue, NW <br /></td>
</tr>
</tbody>
</table>
<p><b>September 14<br /></b></p>
<table class="plain">
<tbody>
<tr>
<td>9:00</td>
<td>Welcome Introduction</td>
</tr>
<tr>
<td>9:30</td>
<td>Discussion of the model open text</td>
</tr>
<tr>
<td>12:30</td>
<td>Lunch</td>
</tr>
<tr>
<td>1:15</td>
<td>Review of draft 3-Step paper (to be circulated)</td>
</tr>
<tr>
<td>2:15</td>
<td>Roundtable on current developments in local contexts</td>
</tr>
<tr>
<td>3:30</td>
<td>Review of the current state of the TPP negotiations and U.S. proposed text on Limitations and Exceptions</td>
</tr>
<tr>
<td>5:00</td>
<td>Transport to Leesburg – site of TPP meeting</td>
</tr>
<tr>
<td>7:00</td>
<td>Dinner reception with TPP IP negotiators</td>
</tr>
</tbody>
</table>
<p><b>September 15</b></p>
<table class="plain">
<tbody>
<tr>
<td>9:30</td>
<td>Discussion of the model arguments and counterarguments document</td>
</tr>
<tr>
<td>11:30</td>
<td>Discussion of a possible report of findings to accompany the models</td>
</tr>
<tr>
<td>12:30</td>
<td>Lunch</td>
</tr>
<tr>
<td>1:15</td>
<td>Roundtable on the way forward<br />
<ul>
<li>What work should we prioritize between this meeting and the December Global Congress?</li>
<li>What research is the group currently engaged in that may bear on limitations and exceptions?</li>
<li>How could this group define future uses of the network after the Global Congress? One example might be a book or other collection of case studies reporting on how laws actually work in given countries.</li>
</ul>
</td>
</tr>
<tr>
<td>3:15</td>
<td>Roundtable on local forums continued: where are L&E interventions needed most?</td>
</tr>
<tr>
<td>4:00</td>
<td>End of meeting</td>
</tr>
</tbody>
</table>
<p>The following individuals participated:</p>
<ul>
<li>Martin Senftleben</li>
<li>Pedro Paranagua</li>
<li>Pedro Mizukami</li>
<li>Dick Kawooya</li>
<li>Hong Xue</li>
<li>Jennifer Urban</li>
<li>Pam Samuelson</li>
<li>Ahmed Abdel Latif</li>
<li>Peter Yu</li>
<li>Andrew Rens</li>
<li>Carlos Affonso Pereira de Souza</li>
<li>Oliver Metzger</li>
<li>Gwen Hinze</li>
<li>Peter Jaszi</li>
<li>Michael Carroll</li>
<li>Sean Flynn</li>
<li>Meredith Jacob</li>
<li>Matt Sag</li>
<li>Jonathan Band</li>
<li>Ariel Katz</li>
<li>Howard Knopf</li>
<li>Alberto Cerda Silva</li>
<li>Pranesh Prakash</li>
<li>Allan Rocha de Souza</li>
<li>Sylvie Nerisson</li>
<li>Lila Bailey</li>
</ul>
<p>Read the original published in infojustice.org <a class="external-link" href="http://infojustice.org/public-events/flexibility-network">here</a></p>
<p>
For more details visit <a href='https://cis-india.org/news/info-justice-public-events-flexibility-network'>https://cis-india.org/news/info-justice-public-events-flexibility-network</a>
</p>
No publisherpraskrishnaCopyright2012-10-04T05:59:56ZNews Item