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DIPP RESPONSE TO CIS (FIRST) RTI - FEBRUARY, 2015
https://cis-india.org/a2k/blogs/dipp-response-to-cis-first-rti-february-2015
<b></b>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/dipp-response-to-cis-first-rti-february-2015'>https://cis-india.org/a2k/blogs/dipp-response-to-cis-first-rti-february-2015</a>
</p>
No publishernehaaGovernment InformationAccess to KnowledgeDIPPIntellectual Property RightsAccountabilityNATIONAL IPR POLICYIPR THINK TANK2015-04-14T17:42:43ZFileDIPP RESPONSE TO CIS RTI - IMPROPER PAYMENT - FEBRUARY, 2015
https://cis-india.org/a2k/blogs/dipp-response-to-cis-rti-improper-payment-february-2015
<b></b>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/dipp-response-to-cis-rti-improper-payment-february-2015'>https://cis-india.org/a2k/blogs/dipp-response-to-cis-rti-improper-payment-february-2015</a>
</p>
No publishernehaaGovernment InformationAccess to KnowledgeIntellectual Property RightsAccountabilityNATIONAL IPR POLICYIPR THINK TANK2015-04-14T17:35:58ZFileCIS RTI REQUEST TO DIPP - NUMBER 3 - FEBRUARY, 2015
https://cis-india.org/a2k/blogs/cis-rti-request-to-dipp-number-3-february-2015
<b></b>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/cis-rti-request-to-dipp-number-3-february-2015'>https://cis-india.org/a2k/blogs/cis-rti-request-to-dipp-number-3-february-2015</a>
</p>
No publishernehaaGovernment InformationAccess to KnowledgeDIPPIntellectual Property RightsAccountabilityNATIONAL IPR POLICYIPR THINK TANK2015-04-14T17:28:53ZFileCIS RTI REQUEST TO DIPP - NUMBER 2 - FEBRUARY, 2015
https://cis-india.org/a2k/blogs/cis-rti-request-to-dipp-number-2-february-2015
<b></b>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/cis-rti-request-to-dipp-number-2-february-2015'>https://cis-india.org/a2k/blogs/cis-rti-request-to-dipp-number-2-february-2015</a>
</p>
No publishernehaaGovernment InformationAccess to KnowledgeDIPPIntellectual Property RightsNATIONAL IPR POLICYIPR THINK TANK2015-04-14T17:22:37ZFileCIS RTI REQUEST TO DIPP - NUMBER 1 - FEBRUARY, 2015
https://cis-india.org/a2k/blogs/cis-rti-request-to-dipp-number-1-february-2015
<b></b>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/cis-rti-request-to-dipp-number-1-february-2015'>https://cis-india.org/a2k/blogs/cis-rti-request-to-dipp-number-1-february-2015</a>
</p>
No publishernehaaAccess to KnowledgeCopyrightIntellectual Property RightsAccountabilityPatents2015-04-14T17:17:53ZFileConference on Standards Settings Organizations (SSO) and FRAND, NLSIU
https://cis-india.org/a2k/blogs/conference-on-standards-settings-organizations-sso-and-frand-nlsiu
<b>Rohini Lakshané attended the Conference on Standards Settings Organizations (SSO) and FRAND held at NLSIU, Bengaluru on March 21 and 22, 2015. It was organised by the MHRD Chair on Intellectual Property Rights, Centre for Intellectual Property Rights and Advocacy (CIPRA), National Law School of India University, Bengaluru in association with Intel Technology India. This post is a compilation of notes from the conference.</b>
<p><a href="https://cis-india.org/a2k/blogs/conference-on-standards-setting-organizations-frand-schedule" class="external-link">Programme Schedule </a></p>
<table class="grid listing">
<tbody>
<tr>
<th>Significant Takeaways</th>
</tr>
<tr>
<td style="text-align: justify; ">
<ul>
<li>It is anti-competitive to seek to exclude competitors from the market by seeking injunctions on the basis of SEPs, if the licensee is willing to take a license on FRAND terms.</li>
<li>In these circumstances, the seeking of injunctions can distort licensing negotiations and lead to unfair licensing terms, with a negative impact on consumer choice and prices. -- EU Competition Policy Brief, Issue 8, June 2014.</li>
<li>This is a very important issue for India as it thinks about how it can attract foreign investments. India has a unique opportunity to learn from these lessons from around the globe and craft India-specific solutions. India has the intellectual capability and the institutions capable of crafting these solutions, and in doing that we can support Make In India.</li>
<li>India needs to be mindful about what is happening in the [South Asian] region. China has moved aggressively to try to curb FRAND abuse. The People's Court in China ruled in Huawei vs. InterDigital that for 2G, 3G, and 4G patents, the license fees of royalties should not exceed 0.019% of the actual sale price.</li>
<li>Apple also stated that Ericsson was calculating royalties on the sale price of the iPhone or iPad, whereas the royalty should be calculated on the value of the baseband chip that runs this technology in the mobile device. If such litigation occurs in India, what would be India's position? If a building block contains the technology pertaining to a patent, then royalty should be calculated on the smallest possible patent practising unit and not the entire product.</li>
<li>The government of India has adopted a royalty free (RF) approach to licensing open standards.</li>
<li>Non-essential claims are excluded from disclosure. Pending patent applications are not.</li>
<li>Only 16% patents declared as SEPs are actually SEPs, according to a study.</li>
<li>The Delhi High Court has passed interim orders restraining the CCI from deciding these cases. Our appeal to the courts is that these patent infringement lawsuits should not be viewed in isolation. They should not be viewed as merely contractual issues between the licensor and the licensee. They should be seen in the context of their economic effects and their adverse effect on competition. The CCI should be enabled to deal with such cases.</li>
<li>Matheson: The phrase "compulsory license" sends a shiver down every corporate's spine every time it is used. International experience is that the judicial system has been the only forum where we have been able to have due process to enable us to construct cases properly in order to explain to the judge or to the jurors how the system works. That has produced very sensible solutions to this problem. Handing it off to the government to institute a compulsory license wouldn't be fair to the SEP holders.</li>
</ul>
</td>
</tr>
</tbody>
</table>
<hr />
<h3>SSOs and FRAND: Licensing issues</h3>
<h3></h3>
<h3>John Matheson, Director of Legal Policy (Asia Pacific), Intel</h3>
<p><b>The role of licensing policy</b></p>
<ul>
<li>Ensuring market access</li>
<li>Standards often depend on patented technology, which is accessed through the <i>Promise to License </i>on FRAND terms.</li>
<li>It is equally critical to ensure that standards can be implemented without unfair legal games.</li>
<li>It is essential to prevent patent hold-up.</li>
<li>Reasonable compensation</li>
</ul>
<p style="text-align: justify; ">Patent holders remain entitled to fair compensation and benefit from the proliferation of their technologies via standardisation.</p>
<p style="text-align: justify; "><b>Why FRAND?</b></p>
<p style="text-align: justify; ">A FRAND commitment embodies certain fundamental principles that have been recognised widely by the courts and regulators.</p>
<p style="text-align: justify; ">The fundamental purpose of a FRAND commitment is widespread adoption of the standard.</p>
<p style="text-align: justify; ">Because of the peculiar nature of SEPs, the process is open to abuse.</p>
<p style="text-align: justify; ">A FRAND commitment is aimed at preventing patent holders from exploiting a hold-up value and extracting unreasonable royalties and concessions that could otherwise follow from being in a very unique position. Often, the holders of the IP have a single solution to an interoperability or connectivity conundrum that technology is facing.</p>
<p style="text-align: justify; "><b>Why are SEP license negotiations different from Non-SEP ones?</b></p>
<p style="text-align: justify; ">In the context of non-SEPs, one may be negotiating to obtain a license to a patent for a particular feature. If the licensor is being difficult, one can discard the feature to include something else. In a competitive market, this negotiation is focused on the value of the invention to be licensed. Thus one can redesign to avoid a particular claim and, in turn, avoid injunction.</p>
<p style="text-align: justify; ">On the other hand, it is necessary to either obtain a license for or infringe an SEP to manufacture the mobile device. There is no workable alternative or workaround to obtaining a license for the desired technology. With the threat of an injunction looming over the negotiations, the prospective licensee is under pressure to obtain a license. So the market negotiations for SEPs and non-SEPs are very different. One-way negotiations raise the possibility of a patent hold-up, and abuse of the standard implementer.</p>
<p style="text-align: justify; ">IP policies inevitably involve compromise.</p>
<p style="text-align: justify; "><b>Common areas of misunderstanding include:</b></p>
<ul style="text-align: justify; ">
<li>
<p>Valuations or meaning of "reasonable". Valuations of IP under consideration.</p>
</li>
<li>
<p>Injunctive relief or exclusion orders</p>
</li>
<li>
<p>Discrimination or refusal to license</p>
</li>
<li>
<p>Patent transfer (It requires a continuation of the FRAND commitment, and shouldn't get differential treatment in the IP policy.)</p>
</li>
</ul>
<p style="text-align: justify; ">Competition authorities in the US and EU have asked SSOs to reconsider policies to reduce ambiguity in the context of these areas of misunderstanding.</p>
<p style="text-align: justify; ">The ex-ante or the incremental value of the SEPs before the standard is set needs to be understood. The SSOs look at several different ways to solve a connectivity problem. The patent owners bring their patents into the standards body and claim that theirs is the best way to solve that problem. The market and consumers want an uncomplicated solution which works and is as cheap as possible. In many cases, there is one single winner, simply because we need one solution. In exchange for being the winner, the FRAND discipline is quid pro quo.</p>
<p style="text-align: justify; ">European Commission's response to two different patent lawsuits:</p>
<p style="text-align: justify; ">In the Samsung and Motorola cases, the Commission clarifies that in the standardisation context where the SEP holders have committed to:</p>
<ol>
<li>License their SEPs</li>
<li>Do so on FRAND terms</li>
</ol>
<p class="callout" style="text-align: justify; ">It is anti-competitive to seek to exclude competitors from the market by seeking injunctions on the basis of SEPs, if the licensee is willing to take a license on FRAND terms.</p>
<p style="text-align: justify; ">In other words, if there is a bona fide commitment on the part of the licensee to agree to that test, then it is anti-competitive to seek an injunction.</p>
<p class="callout" style="text-align: justify; ">In these circumstances, the seeking of injunctions can distort licensing negotiations and lead to unfair licensing terms, with a negative impact on consumer choice and prices. -- EU Competition Policy Brief, Issue 8, June 2014.</p>
<p style="text-align: justify; ">Anyone who needs access to connectivity or needs interoperability requires to get a SEP license, and if that license is required to be obtained within a time limit, it almost -- by definition -- is not going to work. Patent licenses take years to negotiate, and they're incredibly complex. For example, a patent policy may offer up to 12 months to agree on a license, but that is not the way the market works. So we cannot expect policies that put forth time limits to work in the SEP arena. What we can expect is that the implementers make a bona fide commitment to seek a license.</p>
<p style="text-align: justify; "><b>Motorola vs. Microsoft, Germany:</b></p>
<p style="text-align: justify; ">Motorola sought injunctive relief against Microsoft in Germany. Microsoft moved its distribution centre from Germany to the Netherlands. This resulted in loss of jobs, relocation costs ($11.6 million), and annual increased operating costs of $5 million for Microsoft.</p>
<p style="text-align: justify; "><b>Samsung vs. Apple, Germany</b></p>
<p style="text-align: justify; ">Similarly, on the basis of one patent, a temporary injunction was granted on the sale of the Apple iPad and iPhone. Apple was forced to agree to terms it didn't want to agree to, so that the sale of its products would resume.</p>
<p class="callout" style="text-align: justify; ">This is a very important issue for India as it thinks about how it can attract foreign investments. India has a unique opportunity to learn from these lessons from around the globe and craft India-specific solutions. India has the intellectual capability and the institutions capable of crafting these solutions, and in doing that we can support Make In India.</p>
<p style="text-align: justify; ">SEP holders that make FRAND commitments should not be allowed to obtain injunctions against alleged infringers, except in limited circumstances. This formula has been adopted by the IEEE, which has solved this problem. India has the opportunity to leapfrog a lot of patent litigation by adopting the IEEE test.</p>
<p style="text-align: justify; ">Learn from what happened with Microsoft in Germany. What kind of message do you want to send to the foreign community about investing in India? Do you want to use the scare tactics of injunctions or do you want to adopt a policy that will avoid litigation?</p>
<p class="callout" style="text-align: justify; ">India needs to be mindful about what is happening in the [South Asian] region. China has moved aggressively to try to curb FRAND abuse. The People's Court in China ruled in <i>Huawei vs. InterDigital</i> that for 2G, 3G, and 4G patents, the license fees of royalties should not exceed 0.019% of the actual sale price.</p>
<p style="text-align: justify; "><b>Reasonable Compensation Considerations</b></p>
<ul>
<li>Royalty based on the smallest unit that practices the standard.</li>
<li>Technical value of patented technologies vs. alternatives.</li>
<li>Overall royalty that could reasonably charged for all SEPs.</li>
</ul>
<p style="text-align: justify; "><b>Non-discrimination</b></p>
<p style="text-align: justify; ">A commitment to license every implementer of the relevant standard.</p>
<p style="text-align: justify; "><b>Transfer</b></p>
<p style="text-align: justify; ">FRAND commitments follow the transfer of a patent to subsequent proprietors.</p>
<h3 style="text-align: justify; ">Dr. Krishna Sirohi, Impact Innovator, GISFI, President, I2TB</h3>
<p style="text-align: justify; ">As per the Make in India programme, we have to achieve zero imports by 2020. Product development in India by Indian companies will happen with collaborative research and development and IPR sharing through licenses. We are looking at national capacity building through product development and patent uses.</p>
<p style="text-align: justify; "><b>Global Information and Communication Technology Forum for India (GISFI)</b> is a standards setting body involved with standardisation and research. It is a telecommunications standards development body (TSDO) set up with the approval of the DoT. It has peer relationships with ITU, OMA, TTC and a bunch of other SDOs. Internet of Things (IoT), mobility and security are its three major research programmes.</p>
<p style="text-align: justify; ">GISFI is working towards defining 5G in India. The 5G standardisation theme in India is called WISDOM (Wireless Innovative System for Dynamic Operating Mega Communications). GISFI is considering the perspective of the Indian user, the network capability, the network architecture, network development and the Indian revenue model, strategic and special purpose networks, inclusive growth, and network security.</p>
<p style="text-align: justify; ">However, some India-specific aspects such as illiteracy and lack of basic civic infrastructure need to be considered in the standardisation process.</p>
<p style="text-align: justify; "><b>GISFI plans and stages for 5G definition and adoption</b></p>
<p style="text-align: justify; "><b>Stage 1 (2014-2018): </b> National agenda for strategic research, innovation and experimentation</p>
<p style="text-align: justify; ">Focus on Digital India and Make in India programmes.</p>
<p style="text-align: justify; "><b>Stage 2 (2016-2019): </b> Standardisation</p>
<p style="text-align: justify; "><b>Stage 3 (2017-2021): </b> Product Development</p>
<p style="text-align: justify; "><b>Stage 4 (2019-2023): </b> Early Development</p>
<p style="text-align: justify; "><b>Technical understanding required for IPR issues</b></p>
<ul style="text-align: justify; ">
<li>
<p>Enhancement applicable to general scenarios</p>
<ul>
<li>
<p>Traffic capacity</p>
</li>
<li>
<p>Cell coverage</p>
</li>
<li>
<p>Edge cell performance</p>
</li>
<li>
<p>Intercell interference</p>
</li>
<li>
<p>Network congestion</p>
</li>
<li>
<p>Mobility</p>
</li>
<li>
<p>Energy consumption</p>
</li>
</ul>
</li>
<li>
<p>Enhancements targeting new use cases</p>
<ul>
<li>
<p>machine-type communication</p>
</li>
<li>
<p>national security</p>
</li>
<li>
<p>public safety services</p>
</li>
</ul>
</li>
<li>
<p>Carrier aggregation</p>
<ul>
<li>
<p>Higher throughput owing to intra and inter-band transmission bandwidth of more than 20 MHz.</p>
</li>
<li>
<p>Reduced network congestion owing to load-balancing across multiple carriers.</p>
</li>
<li>
<p>Improvement in mobility and reduction in inter-cell interference.</p>
</li>
</ul>
</li>
<li>
<p>Enhanced MIMO</p>
<ul>
<li>
<p>Improved spatial diversity and multiplexing</p>
</li>
<li>
<p>Improved beam-forming</p>
</li>
<li>
<p>Multiple access with multi-antenna transmission</p>
</li>
</ul>
</li>
<li>
<p>Coordinated Multi-Point Operation (CoMP)</p>
<ul>
<li>
<p>Reduction in intercell interference owing to coordinated scheduling or beamforming (CS/CB)</p>
</li>
<li>
<p>Transmission from multiple distribution points (base stations, RRH) in a coordinated way (Dynamic point selection, and Joint transmission)</p>
</li>
</ul>
</li>
</ul>
<p style="text-align: justify; "><b>What do SSOs handle IPR in different parts of the world and what are the issues they face?</b></p>
<p style="text-align: justify; ">GISFI has adopted ITU's IPR policy.</p>
<p style="text-align: justify; ">In SSOs, the FRAND principle works well only when participating entities have equal or almost equal IPR clout, and can reciprocate with their own patents every time other entities share their patents. It is difficult to create a balance between entities that only own IPR and those that only consume IPR.</p>
<p style="text-align: justify; ">Most of the members of SSOs are IPR owners. The entities that develop [technological] solutions without owning the IPRs are usually not a part of SSOs. However, additional strategies need to be implemented for realising the "Make in India" goal. The goal of zero imports by 2020 can only be achieved if a large number of small companies use these standards to develop products locally. <b>So small manufacturers should be represented even at the highest levels of the standards development body. </b>An IPR policy should be defined/ modified to factor in these needs.</p>
<p style="text-align: justify; "><b>Evaluation of LTE essential patents declared by ETSI </b></p>
<p style="text-align: justify; ">Cyber Creative Institute, June 2013: <a href="http://www.cybersoken.com/research/pdf/lte03EN.pdf">http://www.cybersoken.com/research/pdf/lte03EN.pdf</a></p>
<p style="text-align: justify; ">A large number of LTE patents are held by a handful of companies. There is no Indian owner of any LTE SEP.</p>
<p>Ericsson sued Apple in the US over infringement of its LTE patents. As of January 2015, Apple countersued Ericsson in a federal court in California and claimed that it did not owe any royalties to the latter.</p>
<p class="callout">Apple also stated that Ericsson was calculating royalties on the sale price of the iPhone or iPad, whereas the royalty should be calculated on the value of the baseband chip that runs this technology in the mobile device. If such litigation occurs in India, what would be India's position? If a building block contains the technology pertaining to a patent, then royalty should be calculated on the smallest possible patent practising unit and not the entire product.</p>
<h3 style="text-align: justify; ">Dr. Kumar N. Shivarajan, CTO, Tejas Networks</h3>
<h3></h3>
<p style="text-align: justify; "><b>TSDSI's (Telecommunications Standards Development Society of India)</b> IPR policy states that a member's technology will become a part of a standard as long as the member licenses it on FRAND terms to other members.</p>
<ul>
<li>By 2017, 70% of the global equipment spend will be on LTE.</li>
<li>TD-LTE subscriber base in India has been projected to reach 67 million by 2017.</li>
<li>Most of the data connections in India are still on 2.5G.</li>
<li>Smartphones have become affordable but 3G continues to languish in India; 4G yet to take off.</li>
<li>The number of 3G connections in India grew from 30 million to 33 million from 2013 to 2014.</li>
</ul>
<h3 style="text-align: justify; ">Is 5G the answer to India's access problems?</h3>
<p style="text-align: justify; ">The mobile industry is aiming to go beyond traditional 4G LTE in 2015 and there is increasing focus on adding new bells and whistles to 4G and realise 4G+.</p>
<ul style="text-align: justify; ">
<li>
<p>LTE Licensed-assisted access (formerly LTE-Unlicensed)</p>
</li>
<li>
<p>LTE Direct/ Peer-to-peer</p>
</li>
<li>
<p>LTE-M for machine to machine communication</p>
</li>
<li>
<p>CoMP</p>
</li>
</ul>
<p style="text-align: justify; ">Countries forming 5G groups to take an early lead:</p>
<ul style="text-align: justify; ">
<li>
<p>China: IMT-2020 (5G) Promotion Group</p>
</li>
<li>
<p>Korea: 5G Forum</p>
</li>
<li>
<p>EU: 5G Public Private Partnership (5G-PPP)</p>
</li>
</ul>
<p style="text-align: justify; ">5G in its current form is souped-up 4G.</p>
<p style="text-align: justify; "><b>Key India-specific requirements for 5G standard development</b></p>
<ul style="text-align: justify; ">
<li>
<p>5G must factor in the Indian requirement for DSL-like connectivity: Always ON, low latency, affordable cost</p>
</li>
<li>
<p>To minimise costs, 5G must minimise the use of BTS sites and focus on spectral efficiency.</p>
</li>
<li>
<p>5G should allow virtual network operations enabling multiple operators to use the same physical network infrastructure.</p>
</li>
<li>
<p>5G must work well in Indian propagation environments: concrete buildings blocking signals, dense barriers.</p>
</li>
<li>
<p>5G infrastructure should be green as electricity shortfall is a problem. India has 400,000 cell towers. 10% of them are not connected to the electricity grid. More than 70% experience power outages longer than 8 hours per day, and work on diesel-powered generators. As a result, 25% of the operational costs of telcos are their energy bills. India imports 3 billion litres of diesel annually to run these cell sites.</p>
</li>
</ul>
<p style="text-align: justify; ">India can try to get a headstart in owning the IPR that would eventually go into the 5G standard.</p>
<h3 style="text-align: justify; ">Prof. Ramakrishna, MHRD Chair, NLSIU, Bengaluru</h3>
<p style="text-align: justify; ">The attitude of an SSO towards patented technology determines the objective of its IPR policy. For example, an SSO may want to:</p>
<ul style="text-align: justify; ">
<li>
<p>Promote widespread implementation of a standard without unnecessary IPR implications.</p>
</li>
<li>
<p>Ensure transparency and certainty about the declaration of patents and patents' claims as SEPs.</p>
</li>
<li>
<p>Ensure that every patented technology is available at a reasonable fee, comparable to the value of the technology.</p>
</li>
</ul>
<p style="text-align: justify; ">What happens when IP ownership is transferred to another owner? It continues to be a part of the SSO but things get complicated.</p>
<p style="text-align: justify; ">New owners, third parties, subsidiaries, and affiliates fall under the purview of the IPR policy, by extension.</p>
<p style="text-align: justify; "><b>IP and Disclosure policies of Indian SDOs</b></p>
<ul>
<li><b>BIS</b> (Bureau of Indian Standards) and <b>TEC </b>(Telecommunication Engineering Centre) do not have IP policies of their own. TEC refers to the ISO/IEC IP policies wherever the technology is equivalent or the same.</li>
<li><b>GISFI</b> disclosure requirement: Each member is required to inform GISFI in a timely manner of essential IPRs. But members are not under any obligation to conduct IP searches. GISFI's IPR policy is based on that of ETSI.</li>
<li><b>DOSTI </b> (Development Organization of Standards for Telecommunications in India) is not functional.</li>
</ul>
<p> </p>
<p style="text-align: justify; "><b>IPR policy for open standards in e-governance</b></p>
<p class="callout" style="text-align: justify; ">The government of India has adopted a royalty free (RF) approach to licensing open standards.</p>
<p style="text-align: justify; "><b>Mandatory Characteristics of Open Standards:</b></p>
<ul style="text-align: justify; ">
<li>
<p>The patent claims necessary to implement the standard should be made available royalty free for the lifetime of the standard.</p>
</li>
<li>
<p>The standard shall be adapted and maintained by a not-for-profit organisation.</p>
</li>
<li>
<p>The standard shall have a technology-neutral specification.</p>
</li>
</ul>
<p style="text-align: justify; ">The RF approach and the maintenance by a non-profit may be a disincentive for IP owners.</p>
<p style="text-align: justify; "><b>IEEE patent policy:</b></p>
<p style="text-align: justify; ">IEEE invites participants to disclose patent claims essential to a standard under development. Upon disclosure, the patent holder needs to submit a letter of assurance that states:</p>
<ul style="text-align: justify; ">
<li>
<p>License(s) will be made available without compensation or at a RAND rate.</p>
</li>
<li>
<p>A commitment to enforce the essential patent claims against any entity complying with the standard.</p>
</li>
<li>
<p>Or state its unwillingness or inability to license its essential patent claims.</p>
</li>
</ul>
<p style="text-align: justify; "><b>Common patent policy for ITU-T/ ITU-R/ ISO/ IEC</b></p>
<p style="text-align: justify; ">Recommendations/ deliverables are non-binding -- ensure compatibility of technologies and systems on a worldwide basis.</p>
<p style="text-align: justify; "><b>The "code of practice":</b></p>
<p style="text-align: justify; ">It is desirable that the fullest available information should be disclosed although ITU, ISO or IEC are unable to verify the validity of any such information.</p>
<p style="text-align: justify; "><b>Major types of IPR policies:</b></p>
<ul style="text-align: justify; ">
<li>
<p><b>Participation-based IPR policies</b></p>
</li>
<ul>
<li>
<p>These are common in small, informal bodies such as consortia.</p>
</li>
<li>
<p>Members are bound by the terms of membership to commit to licensing SEPs on RAND or RF terms.</p>
</li>
<li>
<p>SEP holders notify the standards body in case RAND or RF licenses are not available after the draft standard has been published.</p>
</li>
</ul>
</ul>
<ul style="text-align: justify; ">
<li>
<p><b>Commitment-based IPR policies</b></p>
<ul>
<li>
<p>These are commonly followed large, standards setting bodies.</p>
</li>
<li>
<p>These bodies identify SEPs to a draft standard through disclosure and submission of licensing commitment.</p>
</li>
<li>
<p>Parties may seek alternative solutions or work on a withdrawn standard is the the alternative solutions don't work out.</p>
</li>
</ul>
</li>
</ul>
<p style="text-align: justify; "><b>Basic building blocks of commitment-based IPR policies</b></p>
<p style="text-align: justify; "><b>Disclosure policies:</b></p>
<ul style="text-align: justify; ">
<li>
<p>Disclosure is important for</p>
<ul>
<li>
<p>sending requests to SEP holders to make licensing commitments</p>
</li>
<li>
<p>ensuring that experts' groups make informed decisions on inclusion of patented technologies</p>
</li>
<li>
<p>providing information to prospective standards implementers about the SEP owners</p>
</li>
</ul>
</li>
</ul>
<p style="text-align: justify; "><b>Two forms of disclosure:</b></p>
<ul style="text-align: justify; ">
<li>
<p>A call for patents is made at the start of meetings. This is more informational than binding.</p>
</li>
<li>
<p>Later, the member states its intentions regarding licensing the patent on RAND terms.</p>
</li>
</ul>
<p style="text-align: justify; "><b>How disclosure obligations arise (and commitments are binding):</b></p>
<ul style="text-align: justify; ">
<li>
<p>IEEE has by-laws that are binding on members.</p>
</li>
<li>
<p>ITU, IEC, and ISO: It is via a resolution or recommendation.</p>
</li>
</ul>
<p style="text-align: justify; ">(Indicative list)</p>
<p style="text-align: justify; "><b>General disclosure procedure:</b></p>
<p style="text-align: justify; ">The nature of disclosure rules concerning self-owned patents depends on the status or the role of the entity.</p>
<ul style="text-align: justify; ">
<li>
<p>A "submitter" is a participant in the working group making a conscious decision to submit its technology to the SSO for a license or free of royalty.</p>
</li>
<li>
<p>A participant in a working group may submit its technology to the SSO free of royalty, on RAND terms, on RAND terms with the right to charge a fee, or with a refusal to license it. (A working group participant who discloses technology is usually a technology expert. When someone who does not have adequate knowledge of patents discloses technology, it has complicated implications.)</p>
</li>
<li>
<p>A non-working group participant (third-party) may also submit its technology.</p>
</li>
</ul>
<p style="text-align: justify; ">ANSI has left it to the accredited SSO to decide the terms of disclosure for participants of working groups. It has not laid out a policy in this regard. Other organisations have laid out obligations on the submitter to disclose SEPs.</p>
<p style="text-align: justify; "><b>Nature of disclosure terms for patents owned by third-parties:</b></p>
<p style="text-align: justify; ">ETSI: It is obligatory.</p>
<p style="text-align: justify; ">ITU/ ISO: Obligatory only for participants of the working groups.</p>
<p style="text-align: justify; ">IEEE: Entirely voluntary</p>
<p class="callout" style="text-align: justify; ">Non-essential claims are excluded from disclosure. Pending patent applications are not.</p>
<p><b> </b></p>
<p style="text-align: justify; ">Working groups prefer early disclosure so that they may adopt or discard the claim as early as possible in the standard setting process.</p>
<p style="text-align: justify; ">ITU: Disclosure from the outset</p>
<p style="text-align: justify; ">IEEE: During meetings of the working group</p>
<p style="text-align: justify; ">ETSI: "Timely manner"</p>
<p style="text-align: justify; ">AFSI: At a sufficiently mature level</p>
<p style="text-align: justify; ">There is no mandate for updating the disclosure in case a standard evolves.</p>
<p style="text-align: justify; ">Most SSOs make disclosed patents public. Failure to disclose patents may result in accusations of abuse of monopoly or anti-trust/ anti-competitive activities.</p>
<p style="text-align: justify; ">It is difficult to identify all potentially essential patents due to the complexity of specifications.</p>
<p style="text-align: justify; ">Some SSOs don't require IP disclosure at all. The obligations to license on FRAND terms would be sufficient.</p>
<p class="callout" style="text-align: justify; ">Only 16% patents declared as SEPs are actually SEPs, according to a study.</p>
<p>It makes sense for rightsholders to go for blanket disclosures instead of disclosure of specific patents.</p>
<h3 style="text-align: justify; "><a name="docs-internal-guid-5f495392-d5b5-aaaf-afc5-9ebade8e118f"></a> Vinod Dhall, ex-chairperson of the Competition Commission of India (CCI):</h3>
<p style="text-align: justify; ">Our competition law is new, so there aren't any cases pertaining to patent litigation and involving the competition law, which we can treat as precedents. In one of the mobile phone patent litigation cases in India, the implementer has approached the CCI claiming that the licensor has been abusing its dominant position in the market by charging unreasonable royalties.</p>
<p class="callout" style="text-align: justify; ">The Delhi High Court has passed interim orders restraining the CCI from deciding these cases. Our appeal to the courts is that these patent infringement lawsuits should not be viewed in isolation. They should not be viewed as merely contractual issues between the licensor and the licensee. They should be seen in the context of their economic effects and their adverse effect on competition. The CCI should be enabled to deal with such cases.</p>
<h3>Questions-answers round:<b> </b></h3>
<p><b>What are the criteria for declaring a patent an SEP?</b></p>
<ol style="text-align: justify; "> <b> </b></ol>
<p><b> </b></p>
<p style="text-align: justify; "><b>T. Ramakrishnan: </b> SSOs have no role in declaring that a patent is an SEP. The SEP holder declares that their patent is essential to a technical standard. Most of the time, the SEP may turn out to be a non-SEP at a later stage. Statistically, 16 out 100 claimed SEPs are actually SEPs. There is no way for SSOs to tell if a patent is an SEP. IP policies of most SSOs state that they don't search [if a patent is an SEP]. The members of SSOs are under no obligation to search.</p>
<p style="text-align: justify; ">The commitment to license an SEP on FRAND terms is more important to an SSO [than determining if the patent is indeed an SEP].</p>
<ol style="text-align: justify; "> </ol>
<p><b>Can compulsory licensing be implemented with government intervention in India so that the Central Government can fix a royalty and put an end to patent litigation?</b></p>
<ol style="text-align: justify; "> </ol>
<p class="callout" style="text-align: justify; "><b>Matheson: </b> The phrase "compulsory license" sends a shiver down every corporate's spine every time it is used. International experience is that the judicial system has been the only forum where we have been able to have due process to enable us to construct cases properly in order to explain to the judge or to the jurors how the system works. That has produced very sensible solutions to this problem. Handing it off to the government to institute a compulsory license wouldn't be fair to the SEP holders.</p>
<p style="text-align: justify; "><b>With respect to the "safe harbour" approach towards SEP-based injunctions, what does the licensee need to do to prove to the courts that it is a willing licensee, in the event that licensing negotiations fail or take a long time?</b></p>
<ol style="text-align: justify; "> </ol>
<p style="text-align: justify; "><b>Matheson: </b> It gets down to the licensee showing its willingness to negotiate. The licensee cannot make a half-hearted attempt and decline to negotiate or decline the licensor's offer and then disappear. They should physically engage in the negotiation. If and when it gets to a judicial environment, the judges know when people are telling stories and when parties are bona fide. They can tell a ruse when they see one, and I think it is one of the things you observe in practice.</p>
<p style="text-align: justify; "><b>Ramakrishnan: </b> The licensee should be able to demonstrate that it is willing to pay the royalty and should deposit an amount towards royalty. One recommendation from AIPP states that instead of using the terms "willing licensee" and "willing licensor", use "good faith response". For "good faith" we have very well established criteria. The entire licensing process should end within 12 months of starting. If the negotiations fail or if the process takes longer, then they should agree upon an arbitrator to fix FRAND terms. These are indicators that demonstrate the licensee being a "willing licensee" or a "good faith" licensee.</p>
<p style="text-align: justify; "><b>Often technology changes before the legal action can be taken or the lawsuit completed, and the patent over which litigation has happened may no longer be relevant to the technology. How do patent holders deal with this situation?</b></p>
<p style="text-align: justify; "><b>S.K. </b> <b>Murthy, </b> <b>Research Scholar, </b> <b>NLSIU:</b> Even if the technology becomes obsolete, damages can be claimed retrospectively.</p>
<p style="text-align: justify; "><b>Matheson: </b> You have a commitment to a FRAND solution, so that when you enter the protracted negotiation, you know that at the end of it you will get a fair solution. That's not always the case when you are dealing outside the FRAND world. You're dealing with a FRAND incumbent, not with unlicensed patents.</p>
<p style="text-align: justify; "><b>Why is putting a time limit to negotiations not a good idea? Also, IEEE seems to have done well by taking the threat of negotiations out of its way. Is it practical in India, because injunction is still the most potent weapon to protect intellectual property rights in India currently?</b></p>
<p style="text-align: justify; "><b>Matheson:</b> Licensing is incredibly complex. There can be claims to the validity of the patent, there are claim charts to be drawn, there is expert evidence to be put together. Litigation over patents can take 2 to 3 years. To say that there must be a solution [arrived at] within a smaller framework gives the licensor the opportunity to wait around till the end of that period and assert its patents through an injunction. If you're leaving injunction at the table, you will not have a fair solution. The licensee will always be at a major disadvantage. The IEEE solution is a good one because it has taken the time limit away, but at the same time the policies that would adopt that solution need to include the discipline to ensure that the negotiations are bona fide.</p>
<p style="text-align: justify; "><b>What percentage of the sale price should be provisioned by a product developer for royalties? Can a mechanism be drawn up for this purpose?</b></p>
<p style="text-align: justify; "><b>Justice Ratnakala: </b> Definitely. Such a mechanism should be drawn up in the near future.</p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/conference-on-standards-settings-organizations-sso-and-frand-nlsiu'>https://cis-india.org/a2k/blogs/conference-on-standards-settings-organizations-sso-and-frand-nlsiu</a>
</p>
No publisherrohiniIntellectual Property RightsAccess to KnowledgePervasive Technologies2016-04-02T18:12:41ZBlog EntryNational IPR Policy Series : CIS Comments to the First Draft of the National IP Policy
https://cis-india.org/a2k/blogs/national-ipr-policy-series-cis-comments-to-the-first-draft-of-the-national-ip-policy
<b>The Department of Industrial Policy and Promotion, Government of India invited comments on the First Draft of India's National IPR Policy. The Centre for Internet & Society (CIS) made this submission. The comments were prepared by Nehaa Chaudhari, Pranesh Prakash and Anubha Sinha. We also thank our intern, Varnika Chawla for her assistance.</b>
<p style="text-align: justify; ">The press release from the Department of Industrial Policy and Promotion in which it invited comments is <a class="external-link" href="http://www.dipp.nic.in/English/acts_rules/Press_Release/pressRelease_IPR_Policy_30December2014.pdf">here</a>. The First Draft of India's National IPR Policy is <a class="external-link" href="http://www.dipp.nic.in/English/Schemes/Intellectual_Property_Rights/IPR_Policy_24December2014.pdf">here</a>. Click to <a href="https://cis-india.org/a2k/blogs/cis-comments_first-draft-of-national-ipr-stategy.pdf" class="external-link">view the PDF</a>. Note: <i>In some places there might be references to paragraph/page numbers (of the document) and for that readers should refer to the PDF since the formatting in HTML is slightly different</i>.</p>
<hr />
<ol type="I"> </ol>
<h2 align="JUSTIFY">Preliminary</h2>
<ol>
<li style="text-align: justify; ">This submission presents comments from the Centre for Internet and Society, India (<b>"CIS"</b>)<a href="#sdfootnote1sym" name="sdfootnote1anc"><sup>1</sup></a> on the proposed National Intellectual Property Rights Policy <b>("the Policy") </b>to the Department of Industrial Policy and Promotion, Ministry of Commerce and Industry, Government of India.<b>("DIPP"</b>).</li>
<li>This submission is made in response to the requests and suggestions from stakeholders sought by the DIPP in its Press Release. <a href="#sdfootnote2sym" name="sdfootnote2anc"><sup>2</sup></a> </li>
<li>
<p align="JUSTIFY">CIS commends the DIPP for this initiative, and appreciates the opportunity to provide comments on the National IPR Policy. CIS' comments are as stated hereafter.</p>
<hr />
</li>
</ol> <ol type="I"> <ol> </ol></ol>
<h3 align="JUSTIFY">About CIS</h3>
<ol type="I">
<li style="text-align: justify; ">CIS<a href="#sdfootnote3sym" name="sdfootnote3anc"><sup>3</sup></a> is a non-profit research organization that works on among others, issues of intellectual property law reform,<a href="#sdfootnote4sym" name="sdfootnote4anc"><sup>4</sup></a> openness,<a href="#sdfootnote5sym" name="sdfootnote5anc"><sup>5</sup></a> privacy, freedom of speech and expression and internet governance,<a href="#sdfootnote6sym" name="sdfootnote6anc"><sup>6</sup></a> accessibility for persons with disabilities,<a href="#sdfootnote7sym" name="sdfootnote7anc"><sup>7</sup></a> and engages in academic research on digital humanities<a href="#sdfootnote8sym" name="sdfootnote8anc"><sup>8</sup></a> and digital natives. <a href="#sdfootnote9sym" name="sdfootnote9anc"><sup>9</sup></a></li>
<li style="text-align: justify; ">CIS is an accredited Observer<a href="#sdfootnote10sym" name="sdfootnote10anc"><sup>10</sup></a> at the World Intellectual Property Organization ("WIPO"), enabling us to attend formal meetings of member states and participate in debates and consultations on various issues. CIS has been attending meetings of the WIPO Standing Committee on Copyright and Related Rights since 2010. At these sessions, CIS has actively participated through various interventions, emphasizing the adoption of an approach balancing the rights holders' perspective with public interest. CIS has also attended sessions of some other committees at WIPO, made interventions wherever applicable, produced reports of these meetings, and profiled the work of other non-governmental organizations engaging in similar work on intellectual property law and policy reform. <a href="#sdfootnote11sym" name="sdfootnote11anc"><sup>11</sup></a></li>
<li style="text-align: justify; ">CIS undertakes research in other fields of intellectual property, in addition to WIPO-related work. Over the past five years since our inception, some of our key research has included analyses of intellectual property issues of the proposed Indo-EU Free Trade Agreement<a href="#sdfootnote12sym" name="sdfootnote12anc"><sup>12</sup></a> and other free trade agreements,<a href="#sdfootnote13sym" name="sdfootnote13anc"><sup>13</sup></a> the US Special 301 Report,<a href="#sdfootnote14sym" name="sdfootnote14anc"><sup>14</sup></a> the (2010) amendment to the Copyright Act, 1957,<a href="#sdfootnote15sym" name="sdfootnote15anc"><sup>15</sup></a> the (draft) Science, Technology and Innovation Policy,<a href="#sdfootnote16sym" name="sdfootnote16anc"><sup>16</sup></a> parallel importation, <a href="#sdfootnote17sym" name="sdfootnote17anc"><sup>17</sup></a> the (draft) Patent Manual and the subsequent Guidelines for Computer Related Inventions,<a href="#sdfootnote18sym" name="sdfootnote18anc"><sup>18</sup></a> royalty caps,<a href="#sdfootnote19sym" name="sdfootnote19anc"><sup>19</sup></a> copyright exceptions and limitations for education, <a href="#sdfootnote20sym" name="sdfootnote20anc"><sup>20</sup></a> and the preparation of the India Report for the Consumers International IP Watch List.<a href="#sdfootnote21sym" name="sdfootnote21anc"><sup>21</sup></a> </li>
</ol>
<h3>Structure of this Submission</h3>
<ol>
<li>
<p align="JUSTIFY">This submission is divided into 4 parts. The first<i> </i>part gives a preliminary overview of the suggestions submitted by CIS. The second part highlights the principles that should be followed in the formulation of a National IPR Policy, the third part provides detailed comments and recommendations for the National IPR Policy and the last part provides certain concluding remarks.</p>
</li>
</ol>
<h2 align="JUSTIFY">Principles</h2>
<ol>
<li>
<p align="JUSTIFY">The characterization of intellectual property rights may be two-fold - first<i>,</i> at their core, intellectual property rights, are temporary monopolies granted to <i>inter alia,</i> authors and inventors; and <i>second, </i>they are a tool to ensure innovation, social, scientific and cultural progress and further access to knowledge. This dual nature and purpose of intellectual property protection is particularly critical in developing economies such as India. Excessive intellectual property protection could result in stunted innovation and negatively impact various stakeholders.<a href="#sdfootnote22sym" name="sdfootnote22anc"><sup>22</sup></a> It is therefore our submission that the development of the IPR Policy be informed by broader principles of fairness and equity, balancing intellectual property protections with limitations and exceptions/user rights such as those that promote freedom of expression, research, education and access to medicines, cultural rights, data mining, use of governmental works, etc.</p>
</li>
</ol> <ol type="I"> </ol>
<h2>Detailed Comments</h2>
<ol type="I"> </ol> <ol>
<li>
<p align="JUSTIFY">This section will detail CIS' submissions on various aspects of the National IPR Policy. Submissions have been categorised thematically.</p>
</li>
</ol> <ol type="I"> <ol> </ol></ol>
<h3>On the Vision</h3>
<ol>
<li style="text-align: justify; ">It is submitted that the Vision of the National IPR Policy (<b>"Vision"</b>) in encouraging growth for the 'benefit of all' and in accepting the philosophy that knowledge owned 'is transformed into knowledge shared' <a href="#sdfootnote23sym" name="sdfootnote23anc"><sup>23</sup></a> is commendable.However, the vision is at odds with the methods proposed in the document. True advancement in science and technology, arts and culture, protection of traditional knowledge as well as bio-diverse resources and the true sharing of knowledge would be impaired by a system centred only around the development and maximization of intellectual property.</li>
<li style="text-align: justify; ">An attractive social culture would be one where citizens had access to a cornucopia of ideas and information, thereby fostering an environment of cultural diversity, which would enable individuals to shape themselves. Indeed, this is not just an ideal, but is a right recognized under Article 27(1) of the Universal Declaration of Human Rights, and Article 15 of the .<a href="#sdfootnote24sym" name="sdfootnote24anc"><sup>24</sup></a> However, an IP maximization approach, which the draft stategy seems to embrace, hinders the growth of such a culture, creating a protectionist environment while preventing access to various resources which may be of use for further innovations.</li>
<li style="text-align: justify; ">The question of whether IP rights given to innovators are the most effective tools to promote innovation in society has been widely discussed in economics, politics and law, especially in the last four decades.<a href="#sdfootnote25sym" name="sdfootnote25anc"><sup>25</sup></a> Traditional arguments in favour of temporary monopolies incentivising innovation have been effectively questioned as creating monopolies on innovation, contributing to increasing prices and a distorted allocation of resources, inefficiency and a net loss of welfare. <a href="#sdfootnote26sym" name="sdfootnote26anc"><sup>26</sup></a> It has also been effectively established that most innovation is incremental and cumulative, necessitating the access to pre-existing data and works.<a href="#sdfootnote27sym" name="sdfootnote27anc"><sup>27</sup></a> It would be welcome if the huge amount of academic literature on these matter were taken into consideration by the expert group. While intellectual property rights are not <i>per se</i> antithetical to innovation, creativity, and cultural development, an IP-maximalist policy and law has been shown to harm those very objectives.</li>
<li style="text-align: justify; ">CIS therefore submits that the vision of the policy also reflect the commitment to the creation of a holistic and balanced framework of intellectual property rights in the nation with the recognition that an intellectual property-centric system would not necessarily be the best means of promoting creativity, innovation and access, the promotion of which are part of the stated desire of the policy.</li>
<li style="text-align: justify; ">Further, we believe that the principles of freedom of expression and of due process of law, both of which are constitutionally-recognized rights in India, should be recognized in the vision as principles that any intellectual property rights regime should respectively seek to promote and respect. </li>
</ol><ol> </ol> <ol type="I"> <ol> </ol></ol>
<h3>On the Mission</h3>
<ol>
<li style="text-align: justify; ">CIS appreciates the commitment to establish a balanced, dynamic and vibrant intellectual property system in India.<a href="#sdfootnote28sym" name="sdfootnote28anc"><sup>28</sup></a> We recommend that the mission of the policy also include a commitment to<i>foster </i><i>a</i><i>ccess to </i><i>k</i><i>nowledge </i>as well as the commitment to creating a<i>system of intellectual property rights </i><i>which serve the public interest by strengthening </i><i>limitations and exceptions </i> <i>to IP regimes, which are aimed to provide a public interest oriented counterbalance to the monopoly rights granted under IPR laws.</i></li>
<li style="text-align: justify; ">We believe that preventing unreasonable and disproportionate remedies to IPR law violations are an important part of ensuring that these laws serve the public interest rather than subvert them for purely private interests. This important principle ought to find reflection in the policy's mission statement.</li>
<li style="text-align: justify; ">It is suggested that in addition to public health, food security and the environment<a href="#sdfootnote29sym" name="sdfootnote29anc"><sup>29</sup></a>, other areas of socio-economic and cultural importance, including <i> inter alia,</i>foundational scientific research, education, disability rights, and access to knowledge, be added as additional areas that warrant special protection , in the mission statement.</li>
<li style="text-align: justify; ">It is submitted that these commitments are essential to the creation and working of a balanced intellectual property framework that the Policy seeks to achieve. </li>
</ol><ol> </ol> <ol type="I"> <ol> </ol></ol>
<h3>On Objective 1: IP Awareness and Promotion</h3>
<ol>
<li style="text-align: justify; ">The first objective of the Policy lays out a detailed action plan for creating awareness about intellectual property as well as for the promotion of intellectual property. The underlying rationale for this endeavour has been identified on various levels - that there are economic, social and cultural benefits of intellectual property;<a href="#sdfootnote30sym" name="sdfootnote30anc"><sup>30</sup></a> that intellectual property protection accelerates development, promotes entrepreneurship as well as increases competitiveness; <a href="#sdfootnote31sym" name="sdfootnote31anc"><sup>31</sup></a> and that the global regime is one of strongly protected intellectual property rights.<a href="#sdfootnote32sym" name="sdfootnote32anc"><sup>32</sup></a></li>
<li style="text-align: justify; ">It is submitted that the identification of this underlying rationale is not backed by sufficient evidence. These justifications, in their pursuit of a favourable intellectual property regime do not present a balanced picture of all the facts.</li>
<li style="text-align: justify; ">Current existing empirical research does not show an unambiguous nexus between the granting of IP rights and an increase in innovation and productivity, as innovation and productivity cannot not identified with the number of patents awarded. <a href="#sdfootnote33sym" name="sdfootnote33anc"><sup>33</sup></a> This can be seen in the US economy, where despite an enormous increase in the number of patents, there has been no dramatic acceleration in technological progress. <a href="#sdfootnote34sym" name="sdfootnote34anc"><sup>34</sup></a> In fact, studies prove the contrary to be true. In the United States, patenting increased drastically over the last few decades, quadrupling from 59,715 patents being issued in 1983, to 244,341 in 2010. However, according to the Bureau of Labour Statistics, annual growth in the total factor productivity reduced from 1.2% in 1970-79 to below 1% in 2000-09, <a href="#sdfootnote35sym" name="sdfootnote35anc"><sup>35</sup></a> whereas the annual expenditure on research and development saw hardly any change, oscillating in a band of 2.5% of the GDP for over three decades.<a href="#sdfootnote36sym" name="sdfootnote36anc"><sup>36</sup></a> In relatively new industries such as software and biotechnology, still in their nascent stages of development, patenting has been introduced without any positive contributions to innovation. In fact, in their empirical work described in <i>Patent Failure</i> (2008), <a href="#sdfootnote37sym" name="sdfootnote37anc"><sup>37</sup></a> Bessen and Meurer have argued that increased patenting has resulted in decreased social welfare.</li>
<li style="text-align: justify; ">Further, no unambiguous connections have been found between innovation and intellectual property rights in academic studies. In a meta-study conducted in 2006,<a href="#sdfootnote38sym" name="sdfootnote38anc"><sup>38</sup></a> Boldrin and Levine observed that there was weak or no evidence which suggested that strengthening the patent regime led to an increase in innovation. Similarly, it was observed by Jaffe that "despite the significance of policy changes and the wide availability of detailed data relating to patenting, robust conclusions regarding the empirical consequences for technological innovations of changes in patent policy are few. There is widespread unease that the costs of stronger patent protection may exceed the benefits. Both theoretical and, to a lesser extent, empirical research suggest this possibility." <a href="#sdfootnote39sym" name="sdfootnote39anc"><sup>39</sup></a></li>
<li style="text-align: justify; ">In his study of 60 nations over the past 150 years, Josh Lerner concluded that "the impact of patent protection-enhancing on innovation was in fact negative, thereby running counter to assumptions made by economists that incentives affect behavior and that stronger property rights encourage economic growth.<a href="#sdfootnote40sym" name="sdfootnote40anc"><sup>40</sup></a></li>
<li style="text-align: justify; ">Even in those studies, where support is found for a positive correlation between patents and innovation, it is made clear that this correlation is not applicable to developing and least-developed countries. This, for instance, is the conclusion of the United Nations Industrial Development Organization's meta-study titled "The Role of Intellectual Property Rights in Technology Transfer and Economic Growth: Theory and Evidence". <a href="#sdfootnote41sym" name="sdfootnote41anc"><sup>41</sup></a></li>
<li>It is crucial that all policy be based on evidence, and not ideology.</li>
<li style="text-align: justify; ">Thus, it is submitted that any program that seeks to create awareness about intellectual property must necessarily be one that presents a balanced view, clearly stating all facts and as many diverse opinions as possible; avoiding the current situation where public interest groups and academics are sidelined in favour of rights-holders groups.</li>
<li style="text-align: justify; ">CIS submits that the nation-wide program of promotion on the benefits of intellectual property <a href="#sdfootnote42sym" name="sdfootnote42anc"><sup>42</sup></a> must be based on evidence. Crucially, the importance of the public domain, for which a great deal of evidence exists,<a href="#sdfootnote43sym" name="sdfootnote43anc"><sup>43</sup></a> must highlighted in any such also equally promote the importance the role of limitations and exceptions and clearly identify the issues with the intellectual property system, including the fact that it has not been proven that there is a nexus between intellectual property and innovation. The nation wide program should convey the role of different stakeholders, including libraries and archives, organizations working with persons with disabilities and educational institutions and the negative effects of a rights centric intellectual property system on such important institutions.</li>
<li style="text-align: justify; ">It is important that public-funded research organizations should be engaged in neutral - non-industry funded -research, and not campaigns (as identified in the policy).<a href="#sdfootnote44sym" name="sdfootnote44anc"><sup>44</sup></a> This will help identify the issues of the present intellectual property system as well as the potential for reform, tailored to the Indian context. We have to ensure that campaigns - as with policymaking and pedagogic material - are based on research rather than faith or ideology. It is further submitted that course materials to be created for educational institutions at all levels as well as for online and distance learning programs <a href="#sdfootnote45sym" name="sdfootnote45anc"><sup>45</sup></a> should include a discussion on the drawbacks of a maximalist intellectual property system, a discussion on limitations and exceptions, alternatives to intellectual property, as well as case studies from different parts of the world highlighting the use of intellectual property as well as alternatives in a socio-economic and culture specific environment. Particularly in the case of education institutions as well as online and distance learning mechanisms, which are often faced with great challenges as a result of rights-holders centric intellectual property laws, the irony in promoting a system that only acts to their detriment would be great. </li>
</ol><ol> </ol> <ol type="I"> <ol> </ol></ol>
<h3>On Objective 2: Creation of IP</h3>
<ol type="I"><ol> </ol> </ol> <ol> </ol><ol>
<li style="text-align: justify; ">The second objective of the Policy seeks to stimulate the creation and growth of intellectual property through measures that encourage IP generation.<a href="#sdfootnote46sym" name="sdfootnote46anc"><sup>46</sup></a> This objective seeks to encourage IP generation and creation across various sectors, including the introduction of the system of 'utility models' in India. There are several problems with this objective, primarily that it assumes IP generation is necessarily a means to innovation, whereas it is submitted that the emphasis should be on innovation holistically, including by incentive mechanisms other than IP. </li>
</ol><ol> </ol> <ol> </ol> <ol> <ol> <ol> </ol></ol></ol>
<h3>On the IP-Innovation/ Creativity Nexus</h3>
<ol><ol><ol> </ol> </ol> </ol> <ol> </ol><ol>
<li style="text-align: justify; ">It is submitted that similar to the earlier objective relating to the promotion and the creation of awareness about intellectual property, the underlying rationale behind this objective too seems to be the perception that there is a positive correlation between greater amounts of intellectual property and greater innovation, and the belief that intellectual property protection necesarrily promotes innovation. However, there is relatively little research to back this assumption. Illustratively, the following example may be considered. In a study conducted by Heidi L. Williams,<a href="#sdfootnote47sym" name="sdfootnote47anc"><sup>47</sup></a> the sequencing of the human genome was used to provide an empirical context to showcase the deterioration in development due to the presence of IP. It was concluded by Williams that the presence of IP rights in the sequencing of the human genome resulted in reductions in subsequent scientific research and product development by up to 20-30%. <a href="#sdfootnote48sym" name="sdfootnote48anc"><sup>48</sup></a> Williams further observed that "if more socially valuable technologies are more likely to be held with IP, then the welfare costs for the same could be substantial." The presence of intellectual property rights, it is argued, stifles subsequent product development by restricting access to the data or technology required for further development. <a href="#sdfootnote49sym" name="sdfootnote49anc"><sup>49</sup></a></li>
<li style="text-align: justify; ">Prof. Petra Moser of Stanford has conducted a large volume of research on economic evidence on the linkages between patents and innovation. Her research, which shows that in the 19th century the majority of inventions happened outside the patent system <a href="#sdfootnote50sym" name="sdfootnote50anc"><sup>50</sup></a> indicates that alternative explanations might explain inventions better, including "the importance of a culture of entrepreneurship,<a href="#sdfootnote51sym" name="sdfootnote51anc"><sup>51</sup></a> experimentation,<a href="#sdfootnote52sym" name="sdfootnote52anc"><sup>52</sup></a> the free exchange of knowledge, <a href="#sdfootnote53sym" name="sdfootnote53anc"><sup>53</sup></a> and science.<a href="#sdfootnote54sym" name="sdfootnote54anc"><sup>54</sup></a> In a paper titled, "How do Patent Laws Influence Innovation", she concludes that "I find no evidence that patent laws increased levels of innovative activity but strong evidence that patent systems influenced the distribution of innovative activity across industries."</li>
<li style="text-align: justify; ">Prof. Bryan Mercurio, in a paper written for the World Economic Forum and the International Centre for Trade and Sustainable Development, concludes, "The empirical evidence suggests that increasing levels of patent protection have not resulted in increased innovation. Instead, it has limited competition, and increased the cost of business, to the detriment of the world economy. Innovation has also suffered, as increasing protection has inhibited the ability of many firms to innovate." He further recommends that we "conduct further research on the correlation or causal relationship between patents and innovation, including the indirect benefits for innovation that patent protection may provide". Petra Moser notes, "Patent laws that existed in the mid-nineteenth century had been adopted in a relatively ad-hoc manner, dependent more on legal traditions than economic considerations".<a href="#sdfootnote55sym" name="sdfootnote55anc"><sup>55</sup></a></li>
<li style="text-align: justify; ">The empirical data collected by scholars, as provided above is goes to show that innovation is not necessarily benefitted by stronger patent regimes. Further, even the literature that asserts a positive correlation between the two acknowledge that this doesn't apply to developing countries. In addition, whilepatents may provide revenue to patent owners, it also makes further innovation more costly, thereby discouraging competitors from entering the arena due to high prices, and due to the large number of pre-existing patents. This effect, known as the</li>
<li style="text-align: justify; ">The Supreme Court of Canada, has for instance, has on multiple occasions recognized the importance of the public domain. In "2002, Justice Binne, writing for the majority in Théberge v. Galerie d'Art du Petit Champlain inc., stated: 'Excessive control by holders of copyrights and other forms of intellectual property may unduly limit the ability of the public domain to incorporate and embellish creative innovation in the long-term interests of society as a whole (para.32).' Two years later, in CCH Canadian Ltd. v. Law Society of Upper Canada, Chief Justice McLachlin spoke of the importance that there be 'room for the public domain to flourish as others are able to produce new works by building on the ideas and information contained in the works of others (para. 23).'"<a href="#sdfootnote56sym" name="sdfootnote56anc"><sup>56</sup></a></li>
<li>Lastly, there is even evidence that in multiple sectors - including fashion, finance, font design, and software - lesser IP protection in the form of patents, trademarks, and copyright, actual encourages increased innovation.<a href="#sdfootnote57sym" name="sdfootnote57anc"><sup>57</sup></a></li>
</ol> <ol> </ol> <ol> <ol> <ol> </ol></ol></ol>
<h3>On Utility Models</h3>
<ol><ol><ol> </ol> </ol> </ol> <ol> </ol><ol>
<li style="text-align: justify; ">On the question of introduction of a new on utility models<a href="#sdfootnote58sym" name="sdfootnote58anc"><sup>58</sup></a> CIS observes that DIPP has previously considered developing a framework for granting Utility Models for 'innovations' and invited suggestions on a discussion paper on the subject.<a href="#sdfootnote59sym" name="sdfootnote59anc"><sup>59</sup></a> Reports <a href="#sdfootnote60sym" name="sdfootnote60anc"><sup>60</sup></a> suggest that Small, Medium and Micro Enterprises are in favour of the Utility Model Protection system in India because developing countries such as China and Korea have demonstrated a corresponding economic growth attributable to the introduction of the system. However, there is no evidentiary data to support this hypothesis. Studies suggest that there exist only correlations and not causal links between heightened innovative activity and implementation of utility model protection. <a href="#sdfootnote61sym" name="sdfootnote61anc"><sup>61</sup></a> Empirical evidence on the role of intellectual property protection in promoting innovation and growth in general remains limited and inconclusive.<a href="#sdfootnote62sym" name="sdfootnote62anc"><sup>62</sup></a> Reports also suggest that in China, the abundance of Utility Model has led to lowering of quality of innovation. <a href="#sdfootnote63sym" name="sdfootnote63anc"><sup>63</sup></a> In Australia, an "innovation patent" - the Australian version of utility model protection - was awarded for a "circular transportation facilitation device", i.e., a wheel. <a href="#sdfootnote64sym" name="sdfootnote64anc"><sup>64</sup></a></li>
<li style="text-align: justify; ">It is this submitted that whether the ushering of a 2nd tier of protection model for lower and incremental innovations would have a positive impact on innovation in India is extremely debatable. There have been several criticisms of utility models, <i>inter alia</i>, explosion in litigation of poor quality patents and legal uncertainty - which impact small business the maximum in terms of costs <a href="#sdfootnote65sym" name="sdfootnote65anc"><sup>65</sup></a>; the system may be more utilised by foreign companies rather than local firms, in which case there is a possibility that this will lead to an increase in a flow of royalties and licensing fees to overseas producers. Utility model rights can be, and have been, used by companies to cordon off entire areas of research. <a href="#sdfootnote66sym" name="sdfootnote66anc"><sup>66</sup></a></li>
<li style="text-align: justify; ">CIS submits that as the policy 'intends to harness the full benefits of creation and innovation in the larger interest of society and citizens' <a href="#sdfootnote67sym" name="sdfootnote67anc"><sup>67</sup></a> the introduction of a law on utility models would be antithetical to this objective. </li>
</ol><ol> </ol> <ol> <ol> <ol> </ol></ol></ol>
<h3>On Improving IP Output of National Research Laboratories, Universities <i>et al</i><b> </b></h3>
<ol><ol><ol> </ol> </ol> </ol> <ol> </ol><ol>
<li style="text-align: justify; ">The Policy seeks to improve the output of national research laboratories, universities and technical institutions, among others.<a href="#sdfootnote68sym" name="sdfootnote68anc"><sup>68</sup></a> It is submitted that these institutions are public funded institutions, <a href="#sdfootnote69sym" name="sdfootnote69anc"><sup>69</sup></a> and in effect, this recommendation of the Policy seeks to therefore promote intellectual property creation in public funded institutions.</li>
<li style="text-align: justify; ">A significant chunk of research and development occurs at public funded academic and research institutions and, excessive use of IPR as a tool to creating private ownership rights over inventions may preclude use of such innovation by the public. This may also create a barrier to access the best technologies and research- which were funded by taxpayers' money to begin with. CIS supports the principle that IPRs resulting from of publicly funded research should automatically belong to the funder.<a href="#sdfootnote70sym" name="sdfootnote70anc"><sup>70</sup></a></li>
<li style="text-align: justify; ">Further, it is submitted that there exists a danger of public funded research institutions re-orienting their objectives focus only on areas of commercial value. This may lead to neglect of certain research areas. A stringent policy will create an unfavourable conflict between revenue generation and sharing of public good. The policy must ensure that it is flexible and compensates the inventors whilst permitting public access to research.</li>
<li style="text-align: justify; ">CIS submits that there should be no encumbrances over public funded research and inventions. The Policy must also ensure that such proposed IP creation does not prevent or interfere with dissemination of public funded research. <a href="#sdfootnote71sym" name="sdfootnote71anc"><sup>71</sup></a></li>
<li style="text-align: justify; ">CIS strongly supports the recent steps by government agencies (including the Department of Science and Technology and the Department of Biotechnology<a href="#sdfootnote72sym" name="sdfootnote72anc"><sup>72</sup></a> as well as other institutions including the Council of Scientific and Industrial Research<a href="#sdfootnote73sym" name="sdfootnote73anc"><sup>73</sup></a>, Indian Council of Agricultural Research<a href="#sdfootnote74sym" name="sdfootnote74anc"><sup>74</sup></a> and Institute of Mathematical Sciences <a href="#sdfootnote75sym" name="sdfootnote75anc"><sup>75</sup></a>) in making scholarly research openly accessible. The benefits of implementing an open access policy with regard to scientific and scholarly works are manifold. Providing open access to scholarly research will ensure percolation of cutting edge research into the society.</li>
<li style="text-align: justify; ">It is thus submitted that the Policy should adopt a more nuanced, cautious and balanced take on the creation of intellectual property, particularly taking into consideration India's economic status as an emerging economy and our international position. The Policy must recognise that there is no inherent societal merit in the mere creation of intellectual property and that innovation flourishes even in the absence of intellectual property protections. </li>
</ol><ol> </ol>
<h3>On Objective 3: Legal and Legislative Framework</h3>
<ol>
<li style="text-align: justify; ">According to the Policy, the objective sought to be achieved is the creation of strong and effective laws on intellectual property, consistent with national priorities as well as our international obligations, balancing the interest of the rights holders with public interest. <a href="#sdfootnote76sym" name="sdfootnote76anc"><sup>76</sup></a></li>
<li style="text-align: justify; ">CIS fully supports the view that the legislative framework on intellectual property must balance the rights of all stakeholders and be in public interest. CIS is also appreciates the importance of national priorities in the framing of India's legislative framework. CIS also notes with appreciation that the discussion in the Policy reiterates that India's laws are in compliance with the TRIPS Agreement <a href="#sdfootnote77sym" name="sdfootnote77anc"><sup>77</sup></a> as well as the stance that India will continue to utilize the flexibilities available in international treaties as well as the TRIPS Agreement<a href="#sdfootnote78sym" name="sdfootnote78anc"><sup>78</sup></a> while creating its legal framework.</li>
<li style="text-align: justify; ">CIS also supports the acknowledgement of the fact that India's laws need to be updated periodically, depending on various factors.<a href="#sdfootnote79sym" name="sdfootnote79anc"><sup>79</sup></a> CIS fully supports the process proposed for amendments to the law, including,<i>inter alia, </i>the conduction of objective and analytical studies and inputs from various stakeholders. <a href="#sdfootnote80sym" name="sdfootnote80anc"><sup>80</sup></a> It is submitted however, that equal weightage must be given to the inputs from all stakeholders and measures must be taken to ensure that the interests and demands of rights-holders do not outweigh the interests and demands of other stakeholders, particularly those at the other end of the spectrum, who greatly rely on the existence and guarantee of flexibilities, limitations and exceptions to intellectual property. </li>
</ol><ol> </ol>
<h3 align="JUSTIFY">On Utility Models and Intellectual Property in Public Funded Research</h3>
<ol>
<li>The Policy envisages significant changes to India's intellectual property system, including the creation of a law for the protection of utility models as well as introduction of intellectual property in public funded research.</li>
<li style="text-align: justify; ">CIS recommends that it would not be advisable to introduce intellectual property in public funded research as well as cautions against the introduction of a law on utility patents. A detailed submission on these issues has been made earlier in this document, in Section 3.4.3. at page 7 for intellectual property in public funded research as well as in Section 3.4.2. at page 6 on utility models. </li>
</ol><ol> </ol>
<h3 align="JUSTIFY">On the Negotiation of International Treaties and Agreements</h3>
<ol>
<li>CIS commends the recommendation of the Policy that the negotiation of international treaties and agreements will be in consultation with various stakeholders. However, CIS cautions against entering into bilateral or plurilateral international agreements which increase India's IPR obligations beyond our current obligations under multilateral agreements. It was only in 2006 that</li>
<li style="text-align: justify; ">It is submitted that FTAs often levy standards which are beyond those found in the TRIPS Agreement, and have thus been criticized. <a href="#sdfootnote81sym" name="sdfootnote81anc"><sup>81</sup></a> A central aspect of this criticism is that TRIPS-plus-FTAs reduce policy space for the implementation of TRIPS flexibilities. This also creates the impression that TRIPS only imposes a "minimum level" of protection, which must be available in all national laws of its Member States, without any apparent limitation to a further extension of such protection or intervention which one country may impose on another. The World Health Organization enunciated that "bilateral trade agreements should not seek to incorporate TRIPS-plus protection in ways that may reduce access to medicines in developing countries.<a href="#sdfootnote82sym" name="sdfootnote82anc"><sup>82</sup></a> Further, WHO members were urged in the Fifty-Seventh World Health Assembly "to take into account in bilateral trade agreements the flexibilities contained in the Agreement on Trade-related Aspects of Intellectual Property Rights and recognized by the Declaration on the TRIPS Agreement and Public Health adopted by the WTO Ministerial Conference."<a href="#sdfootnote83sym" name="sdfootnote83anc"><sup>83</sup></a></li>
<li style="text-align: justify; ">Furthermore, TRIPS-plus initiatives consequent in the dilution into a bilateral forum, as opposed to the plurality provided in multilateral fora, provided by the TRIPS. The imposition of standards by FTAs may ultimately disturb the balance of rights and obligations which are enshrined in the TRIPS Agreement,<a href="#sdfootnote84sym" name="sdfootnote84anc"><sup>84</sup></a> and also have the potential to constrain the flexibilities provided to Member States in the TRIPS, particularly in areas which are of extreme significance to developing countries, such as transfer of technology, socio-economic development, promotion of innovation, public health and access to knowledge. Furthermore, they also tend to negate decisions which were taken multilaterally such as the Doha Declaration on the TRIPS Agreement and Public Health.</li>
<li style="text-align: justify; ">It is therefore submitted that the Policy must caution against entering into any international agreement that seeks to enforce TRIPS-plus standards, contrary to India's stance (as noted by the Policy itself) that its laws were compliant with international obligations.</li>
</ol>
<h3 align="JUSTIFY">On Limitations and Exceptions</h3>
<ol>
<li style="text-align: justify; ">It is observed that the Policy recommends that laws be enacted to address national needs, <a href="#sdfootnote85sym" name="sdfootnote85anc"><sup>85</sup></a> but the only mentions limitations and exceptions as an area of study for future policy development.<a href="#sdfootnote86sym" name="sdfootnote86anc"><sup>86</sup></a>It is submitted that while it is indeed necessary for further research to be undertaken in the area of limitations and exceptions, it is also critical to enact new laws and amend existing ones to foster a rich environment for limitations and exceptions, in order to achieve a holistic and balanced intellectual property framework. It is further submitted that this would also be in consonance with the objective of the negotiation of international treaties and agreements in consultation with stakeholders.</li>
<li style="text-align: justify; ">While the granting of exclusive rights over intellectual property is considered to be an incentive for further investments into innovative activities and the production of knowledge, allowing the exercise of the full scope of this exclusion in all circumstances may not meet the end goal of the enhancement of public welfare, using the intellectual property system. Therefore, it is essential that an intellectual property system be flexible allowing for certain limitations and exceptions in order to strike a balance between right holders, the public and third parties. The need for such flexibility in the intellectual property system of a country has also been highlighted by the <a href="http://www.wipo.int/patents/en/topics/exceptions_limitations.htm">World Intellectual Property Organization</a>.</li>
<li style="text-align: justify; ">It is therefore suggested that the Policy include an additional recommendation for the inclusion, adoption and periodic renewal of limitations and exceptions in India's intellectual property laws, either be enacting new legislations or by amending existing legislations wherever applicable. It is further suggested that this recommendation also inform India's negotiations at the international level, where any agreement that India might potentially sign, not invalidate or narrow in any form any limitations and exceptions and provide for their continued exercise in the broadest possible scope and manner.</li>
</ol> <ol> </ol>
<h3 align="JUSTIFY">On Standard Setting</h3>
<ol>
<li style="text-align: justify; ">CIS commends the Policy's focus on standards in technology and standard setting organisations. CIS strongly supports the adoption of open standards as a measure that helps stimulate active competition amongst implementors of various standards, and thereby encourages innovation. The Department of IT finalized its Policy on Open Standards for e-Governance in 2010,<a href="#sdfootnote87sym" name="sdfootnote87anc"><sup>87</sup></a> and CIS strongly supports this policy, and would encourage it be adopted by all state governments as well.</li>
<li style="text-align: justify; ">CIS strongly recommends developing and supporting the evolution of open standards. The Policy must not encourage use of IPR to limit access to standards, because these are the foundational rules any technology must adhere to enter the market or ensure quality. <a href="#sdfootnote88sym" name="sdfootnote88anc"><sup>88</sup></a> CIS submits that access to these standards must not be limited by making them proprietary through IPR protection. Further, the Policy must support transparent standard setting processes and procedures in national and at international for a for all participants.</li>
<li>CIS further appreciates the endeavor to encourage the development of global standards influenced by technologies developed in India.</li>
<li style="text-align: justify; ">CIS submits that it is also important to ensure that India emerges as a global player in the technology sector, not just in the development of indigenous standards, but also in the equally important space of manufacturing using existing standards, particularly in light of the Government's recent "Make In India" and "Digital India" initiatives. It is further submitted however, that in most instances, these standards are protected by patents; where patents essential to a standard would be standard essential patents. CIS suggests that the Policy recommend measures that might be adopted to ensure access to standards essential patents, including, for instance, the establishment of a government aided patent pool. It is submitted that addressing the question of access to standards and not just their development would be a holistic approach that the Policy should adopt.</li>
</ol>
<h3>On Objective 5: Commercialization of IP</h3>
<ol type="I"><ol> </ol> </ol> <ol>
<li style="text-align: justify; ">CIS appreciates that the Policy seeks to promote licensing and technology transfer for intellectual property, and notes that the Policy also seeks to promote reasonable and non-discriminatory patent pooling to maximise the ability of smaller companies to commercialise IP and bring innovative solutions based on standards to the market.</li>
<li style="text-align: justify; ">CIS believes that the government establishing patent pools for digital technologies will promote access to knowledge and stimulate manufacturing in the information technology and electronics sectors in India, in line with the government's "Make In India" and "Digital India" initiatives. CIS has earlier urged the government to enable access to low cost access devices by establishing a government-aided patent pool of essential technologies, without which there is a high likelihood of such devices getting caught up in the 'patent wars' that have happened elsewhere around the world over smartphones.<a href="#sdfootnote89sym" name="sdfootnote89anc"><sup>89</sup></a> CIS submits that the creation of government-aided patent pools and facilitation of cross-licensing will also be helpful in resolving issues created by patent thickets and gridlocks by reducing transaction costs for licensees and solving an economic cooperation problem.</li>
</ol> <ol type="I"> </ol>
<h2 align="JUSTIFY">Concluding Remarks</h2>
<ol>
<li style="text-align: justify; ">Debabrata Saha, the Deputy Permanent Representative of India to the United Nations, while speaking on the introduction of the Development Agenda at the World Intellectual Property Organization, with admirable clarity noted, "Let me start on a positive note by asking: with all the damage that TRIPS has wrought on developing countries could it possibly have a silver lining? Maybe - if we want to be generous. TRIPS, one might argue, did bring intellectual property to the forefront of consciousness of people everywhere, and, over time made them aware of the dangers inherent in a protective regime that takes little account of either public policy, or the state of development of a member country." It is thus imperative that when we fashion our public policy, we take account of the dangers he mentioned. He went on to note, "Intellectual property rights have to be viewed not as a self contained and distinct domain, but rather as an effective policy instrument for wide ranging socio-economic and technological development. The primary objective of this instrument is to maximize public welfare." We wholeheartedly support this position of the Indian government, and would encourage the IPR Think Tank to seek to maximize public welfare and creativity and innovation rather than maximizing IPR alone. Importantly, as Mr. Saha, speaking on behalf of the Indian government noted, IP is not an end in itself, contrary to what the current draft of the National IPR Policy seems to promote.</li>
<li style="text-align: justify; ">Flexibility is considered to be an essential characteristic in defining and shaping the intellectual property system of countries around the world. Such flexibility allows scope for further innovations and creations, thereby subserving the common good. As per Article 39 of the Constitution of India, "the State shall in particular, direct its policy towards securing that the ownership and control of the material resources of the community are so distributed as best to subserve the common good." It is therefore submitted that the National IPR Policy of India should be contoured in such a manner that it encourages greater use of exceptions and limitations to the otherwise exclusionary use of intellectual property, encourages the expansion of the public domain, secures proportionality in enforcement of IP rights, promotes alternatives to IP - including open access to scholarly literature, open educational resources, free/open source software, open standards, open data, and aims to create a regime of intellectual property that aims to serve the public interest and not just the narrow interest of private right holders. Such an approach should not be merely rights-based, but look at interests of the general public, especially the poor, as well, in order to further the aim of the nation to create a more egalitarian society, and adopt the Directive Principles in the Constitution.</li>
<hr />
</ol><ol></ol>
<div id="sdfootnote1">
<p style="text-align: justify; "><a href="#sdfootnote1anc" name="sdfootnote1sym">1</a> <a href="http://www.cis-india.org/">www.cis-india.org</a> (last accessed 30 November, 2014).</p>
</div>
<div id="sdfootnote2">
<p><a href="#sdfootnote2anc" name="sdfootnote2sym">2</a> http://www.dipp.nic.in/English/acts_rules/Press_Release/pressRelease_IPR_Policy_30December2014.pdf.</p>
</div>
<div id="sdfootnote3">
<p><a name="_GoBack"></a> <a href="#sdfootnote3anc" name="sdfootnote3sym">3</a> <i>See </i> http://cis-india.org/ (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote4">
<p><a href="#sdfootnote4anc" name="sdfootnote4sym">4</a> <i>See </i> http://cis-india.org/a2k (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote5">
<p><a href="#sdfootnote5anc" name="sdfootnote5sym">5</a> <i>See </i> http://cis-india.org/openness (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote6">
<p><a href="#sdfootnote6anc" name="sdfootnote6sym">6</a> <i>See</i> http://cis-india.org/internet-governance (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote7">
<p><a href="#sdfootnote7anc" name="sdfootnote7sym">7</a> <i>See </i> http://cis-india.org/accessibility (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote8">
<p><a href="#sdfootnote8anc" name="sdfootnote8sym">8</a> <i>See </i> http://cis-india.org/digital-natives (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote9">
<p><a href="#sdfootnote9anc" name="sdfootnote9sym">9</a> <i>See</i> http://cis-india.org/raw (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote10">
<p><a href="#sdfootnote10anc" name="sdfootnote10sym">10</a> <i>See</i> http://www.wipo.int/members/en/admission/observers.html (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote11">
<p><a href="#sdfootnote11anc" name="sdfootnote11sym">11</a> <i>See </i> http://cis-india.org/a2k/blog/ngo-profile-knowledge-ecology-international (last accessed 18 January, 2015); http://cis-india.org/a2k/blog/ngo-profile-third-world-network (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote12">
<p style="text-align: justify; "><a href="#sdfootnote12anc" name="sdfootnote12sym">12</a> <i>See illustratively </i> http://cis-india.org/a2k/blog/analysis-copyright-expansion-india-eu-fta (last accessed 18 January, 2015); http://cis-india.org/a2k/blog/india-eu-fta-copyright-issues (last accessed 18 January, 2015); http://cis-india.org/a2k/blog/a-guide-to-the-proposed-india-european-union-free-trade-agreement (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote13">
<p><a href="#sdfootnote13anc" name="sdfootnote13sym">13</a> <i>See illustratively</i> http://cis-india.org/news/inet-bangkok-june-8-2013-governance-in-the-age-of-internet-and-fta (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote14">
<p><a href="#sdfootnote14anc" name="sdfootnote14sym">14</a> <i>See illustratively</i> http://cis-india.org/a2k/blog/2010-special-301 (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote15">
<p style="text-align: justify; "><a href="#sdfootnote15anc" name="sdfootnote15sym">15</a> <i>See illustratively</i> http://cis-india.org/a2k/blog/analysis-copyright-amendment-bill-2012 (last accessed 18 January, 2015); http://cis-india.org/a2k/blog/sc-report-on-amendments (last accessed 18 January, 2015); http://cis-india.org/a2k/blog/copyright-bill-parliament (last accessed 18 January, 2015); http://cis-india.org/a2k/blog/tpm-copyright-amendment (last accessed 16 January, 2015); http://cis-india.org/a2k/blog/copyright-privacy (last accessed 16 January, 2015); http://cis-india.org/a2k/blog/copyright-bill-analysis (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote16">
<p><a href="#sdfootnote16anc" name="sdfootnote16sym">16</a> <i>See</i> http://cis-india.org/a2k/blog/comments-on-science-technology-and-innovation-policy-draft (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote17">
<p><a href="#sdfootnote17anc" name="sdfootnote17sym">17</a> <i>See</i> http://cis-india.org/a2k/blog/exhaustion (last accessed 18 January, 2015); http://cis-india.org/a2k/blog/parallel-importation-of-books (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote18">
<p style="text-align: justify; "><a href="#sdfootnote18anc" name="sdfootnote18sym">18</a> <i>See</i> http://cis-india.org/a2k/blog/cis-submission-draft-patent-manual-2010 (last accessed 18 January, 2015) and http://cis-india.org/a2k/blog/comments-on-draft-guidelines-for-computer-related-inventions (last accessed 18 January, 2015) respectively.</p>
</div>
<div id="sdfootnote19">
<p><a href="#sdfootnote19anc" name="sdfootnote19sym">19</a> <i>See</i> http://cis-india.org/a2k/blog/lid-on-royalty-outflows (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote20">
<p><a href="#sdfootnote20anc" name="sdfootnote20sym">20</a> <i>See</i> http://cis-india.org/a2k/blog/exceptions-and-limitations (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote21">
<p style="text-align: justify; "><a href="#sdfootnote21anc" name="sdfootnote21sym">21</a> <i>See illustratively</i> http://cis-india.org/a2k/consumers-international-ip-watchlist-report-2012 (last accessed 18 January, 2015);<i> </i> http://cis-india.org/a2k/blog/ip-watch-list-2011 (last accessed 18 January, 2015); http://cis-india.org/a2k/blog/consumers-international-ip-watch-list-2009 (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote22">
<p style="text-align: justify; "><a href="#sdfootnote22anc" name="sdfootnote22sym">22</a> The Washington Declaration on Intellectual Property and Public Interest concluded after the Global Congress on Intellectual property and Public Interest in August 2011 attended by over 180 experts from 32 countries articulate this position perfectly. Available at: <a href="http://infojustice.org/wp-content/uploads/2011/09/Washington-Declaration.pdf"> http://infojustice.org/wp-content/uploads/2011/09/Washington-Declaration.pdf </a> (Last Accessed: 29 November, 2014).</p>
</div>
<div id="sdfootnote23">
<p><a href="#sdfootnote23anc" name="sdfootnote23sym">23</a> IPR Think Tank, National IPR Policy (First Draft) at page 5.</p>
</div>
<div id="sdfootnote24">
<p><a href="#sdfootnote24anc" name="sdfootnote24sym">24</a> Article 27(1) of the Universal Declaration of Human Rights states: "Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits."</p>
</div>
<div id="sdfootnote25">
<p style="text-align: justify; "><a href="#sdfootnote25anc" name="sdfootnote25sym">25</a> Julia Brüggemann, Paolo Crosetto <i>et al</i>, <i>Intellectual Property Rights Hinder Sequential Innovation - Experimental Evidence</i>, Center for European, Governance and Economic Development Research, Number 227, January 2015.</p>
</div>
<div id="sdfootnote26">
<p><a href="#sdfootnote26anc" name="sdfootnote26sym">26</a> Joseph E. Stiglitz, <i>Economic Foundations of Intellectual Property Rights</i>, Duke Law Journal, 57(6): 1693-1724.</p>
</div>
<div id="sdfootnote27">
<p><a href="#sdfootnote27anc" name="sdfootnote27sym">27</a> Graham M. Dutfield, Uma Suthersanen, <i>The Innovation Dilemma: Intellectual Property and the Historical Legacy of Cumulative Creativity</i>, Intellectual Property Quarterly, 2004 at 379.</p>
</div>
<div id="sdfootnote28">
<p><a href="#sdfootnote28anc" name="sdfootnote28sym">28</a> IPR Think Tank, National IPR Policy (First Draft) at page 5.</p>
</div>
<div id="sdfootnote29">
<p><a href="#sdfootnote29anc" name="sdfootnote29sym">29</a> IPR Think Tank, National IPR Policy (First Draft) at page 5<i>.</i></p>
</div>
<div id="sdfootnote30">
<p><a href="#sdfootnote30anc" name="sdfootnote30sym">30</a> IPR Think Tank, National IPR Policy (First Draft) at page 6.</p>
</div>
<div id="sdfootnote31">
<p><a href="#sdfootnote31anc" name="sdfootnote31sym">31</a> <i>Id</i> .</p>
</div>
<div id="sdfootnote32">
<p><a href="#sdfootnote32anc" name="sdfootnote32sym">32</a> <i>Id</i> .</p>
</div>
<div id="sdfootnote33">
<p><a href="#sdfootnote33anc" name="sdfootnote33sym">33</a> Michele Boldrin and David K. Levine, <i>The Case Against Patents</i>, Journal of Economic Perspectives, Vol. 27, No.1 - Winter 2013, 3-22.</p>
</div>
<div id="sdfootnote34">
<p><a href="#sdfootnote34anc" name="sdfootnote34sym">34</a> <i>Id</i> .</p>
</div>
<div id="sdfootnote35">
<p><a href="#sdfootnote35anc" name="sdfootnote35sym">35</a> <i>Id</i> .</p>
</div>
<div id="sdfootnote36">
<p><a href="#sdfootnote36anc" name="sdfootnote36sym">36</a> <i>Id</i> .</p>
</div>
<div id="sdfootnote37">
<p><a href="#sdfootnote37anc" name="sdfootnote37sym">37</a> James Bessen and Michael J. Meurer, Patent Failure: How Judges, Bureaucrats and Lawyers Put Innovation at Risk, March 2008.</p>
</div>
<div id="sdfootnote38">
<p><a href="#sdfootnote38anc" name="sdfootnote38sym">38</a> Michele Boldrin and David K. Levine<i> Supra </i>Note 32.</p>
</div>
<div id="sdfootnote39">
<p><a href="#sdfootnote39anc" name="sdfootnote39sym">39</a> B.J. Jaffe, <i>The US Patent System in Transition: Innovation and the Innovation Process</i>, Research Policy, 29, 531-557, 2000.</p>
</div>
<div id="sdfootnote40">
<p><a href="#sdfootnote40anc" name="sdfootnote40sym">40</a> Josh Lerner, <i>The Empirical Impact of Intellectual Property Rights on Innovation: Puzzles and Clues</i>, Intellectual Property Rights and Economic Growth in the Long-Run: A Discover Model (2009).</p>
</div>
<div id="sdfootnote41">
<p><a href="#sdfootnote41anc" name="sdfootnote41sym">41</a> Rod Falvey & Neil Foster, The Role of Intellectual Property Rights in Technology Transfer and Economic Growth: Theory and Evidence (UNIDO Working Paper,</p>
</div>
<div id="sdfootnote42">
<p><a href="#sdfootnote42anc" name="sdfootnote42sym">42</a> <b>¶</b> 1.2 IPR Think Tank, National IPR Policy (First Draft) at page 6.</p>
</div>
<div id="sdfootnote43">
<p><a href="#sdfootnote43anc" name="sdfootnote43sym">43</a> See</p>
</div>
<div id="sdfootnote44">
<p><a href="#sdfootnote44anc" name="sdfootnote44sym">44</a> <b>¶</b> 1.3 IPR Think Tank, National IPR Policy (First Draft) at page 7.</p>
</div>
<div id="sdfootnote45">
<p><a href="#sdfootnote45anc" name="sdfootnote45sym">45</a> <b>¶</b> 1.5 IPR Think Tank, National IPR Policy (First Draft) at page 8.</p>
</div>
<div id="sdfootnote46">
<p><a href="#sdfootnote46anc" name="sdfootnote46sym">46</a> IPR Think Tank, National IPR Policy (First Draft) at page 8.</p>
</div>
<div id="sdfootnote47">
<p><a href="#sdfootnote47anc" name="sdfootnote47sym">47</a> Heidi L. Williams, <i>Intellectual Property Rights and Innovation: Evidence from the Human Genome</i>, National Bureau of Economic Research. Working Paper 16213, July 2010.</p>
</div>
<div id="sdfootnote48">
<p><a href="#sdfootnote48anc" name="sdfootnote48sym">48</a> <i>Id</i> .</p>
</div>
<div id="sdfootnote49">
<p><a href="#sdfootnote49anc" name="sdfootnote49sym">49</a> <i>Id</i> .</p>
</div>
<div id="sdfootnote50">
<p><a href="#sdfootnote50anc" name="sdfootnote50sym">50</a> Petra Moser, <i>Innovations and Patents in</i> Oxford Handbook of Economic History (Cain et al., eds., forthcoming), http://ssrn.com/abstract=2503503.</p>
</div>
<div id="sdfootnote51">
<p><a href="#sdfootnote51anc" name="sdfootnote51sym">51</a> <i>See generally</i> , David. S. Landes, The Unbound Prometheus: Technological Change and Industrial Development in Western Europe from 1750 to the Present (1969).</p>
</div>
<div id="sdfootnote52">
<p><a href="#sdfootnote52anc" name="sdfootnote52sym">52</a> <i>See generally</i> , Joel Mokyr. The Lever of Riches: Technological Creativity and Economic Progress (1990).</p>
</div>
<div id="sdfootnote53">
<p style="text-align: justify; "><a href="#sdfootnote53anc" name="sdfootnote53sym">53</a> <i>See generally</i> , Alessandro Nuvolari <i>Collective Invention during the British Industrial Revolution: the Case of the Cornish Pumping Engine,</i> 28 Cambridge J. Econ. 347 (2004). <i>See also</i>, Robert C. Allen, <i>Collective Invention</i>, 4 J. Econ. Behavior & Org. 1 (1983).</p>
</div>
<div id="sdfootnote54">
<p style="text-align: justify; "><a href="#sdfootnote54anc" name="sdfootnote54sym">54</a> A. Arora & N. Rosenberg, <i>Chemicals: A US Success Story</i> in Chemicals and Long-Term Economic Growth 71 (Arora et al., eds., 1998); see also, David C. Mowery & Nathan Rosenberg, Paths of Innovation. Technological Change in 20th-century America (1998).</p>
</div>
<div id="sdfootnote55">
<p><i><a href="#sdfootnote55anc" name="sdfootnote55sym">55</a></i> Petra Moser, <i>How Do Patent Laws Influence Innovation? Evidence from Nineteenth-Century World Fairs</i>, NBER Working Paper Series 9909, http://www.nber.org/papers/w9909.</p>
</div>
<div id="sdfootnote56">
<p><a href="#sdfootnote56anc" name="sdfootnote56sym">56</a> Meera Nair, <i>A Short-Lived Celebration</i>, Fair Duty (Jan. 8, 2012), https://fairduty.wordpress.com/2012/01/08/a-short-lived-celebration/</p>
</div>
<div id="sdfootnote57">
<p><a href="#sdfootnote57anc" name="sdfootnote57sym">57</a> See generally, Kal Raustiala & Christopher Sprigman, The Knockoff Economy (2012).</p>
</div>
<div id="sdfootnote58">
<p><a href="#sdfootnote58anc" name="sdfootnote58sym">58</a> <b>¶</b> 2.10 IPR Think Tank, National IPR Policy (First Draft) at page 10.</p>
</div>
<div id="sdfootnote59">
<p><a href="#sdfootnote59anc" name="sdfootnote59sym">59</a> <i>See</i> <i>FICCI Suggestions on Discussion Paper on Utility Model</i> available at <a href="http://www.ficci.com/Sedocument/20179/UM.pdf">http://www.ficci.com/Sedocument/20179/UM.pdf</a> (last accessed January 28, 2015).</p>
</div>
<div id="sdfootnote60">
<p><a href="#sdfootnote60anc" name="sdfootnote60sym">60</a> <i>See</i> <i>FICCI Suggestions on Discussion Paper on Utility Model</i> available at <a href="http://www.ficci.com/Sedocument/20179/UM.pdf">http://www.ficci.com/Sedocument/20179/UM.pdf</a> (last accessed January 28, 2015).</p>
</div>
<div id="sdfootnote61">
<p><a href="#sdfootnote61anc" name="sdfootnote61sym">61</a> <i>See</i> <i>Utility Model: A Tool for Economic and Technological Development: A Case Study of Japan</i> available at <a href="http://www.ipindia.nic.in/research_studies/finalreport_april2007.pdf">http://www.ipindia.nic.in/research_studies/finalreport_april2007.pdf</a> (last accessed January 28, 2015).</p>
</div>
<div id="sdfootnote62">
<p><a href="#sdfootnote62anc" name="sdfootnote62sym">62</a> U. Suthersanen, <i>Utility Models and Innovation in Developing Countries, International Center for Trade and Sustainable Development </i>(ICTSD), Issue Paper No. 13 (2006), available at <a href="http://www.unctad.org/en/docs/iteipc20066_en.pdf">http://www.unctad.org/en/docs/iteipc20066_en.pdf</a> , (last accessed January 28, 2015).</p>
</div>
<div id="sdfootnote63">
<p><a href="#sdfootnote63anc" name="sdfootnote63sym">63</a> <i>See</i> <i>China's great leap forward in patents</i> , available at <a href="http://www.ipwatchdog.com/2013/04/04/chinas-great-leap-forward-in-patents/id=38625/"> http://www.ipwatchdog.com/2013/04/04/chinas-great-leap-forward-in-patents/id=38625/ </a> (last accessed January 28, 2015).</p>
</div>
<div id="sdfootnote64">
<p><a href="#sdfootnote64anc" name="sdfootnote64sym">64</a> Will Knight, <i>Wheel Patented in Australia</i>, New Scientist (July 3, 2001), <a href="http://www.newscientist.com/article/dn965-wheel-patented-in-australia.html"> http://www.newscientist.com/article/dn965-wheel-patented-in-australia.html </a> .</p>
</div>
<div id="sdfootnote65">
<p><a href="#sdfootnote65anc" name="sdfootnote65sym">65</a> Keith E. Maskus, <i>Beyond the Treaties: A Symposium on Compliance with International Intellectual Property </i>Law, February 6, 2000.</p>
</div>
<div id="sdfootnote66">
<p><a href="#sdfootnote66anc" name="sdfootnote66sym">66</a> U. Suthersanen, <i>Utility Models and Innovation in Developing Countries</i>, International Center for Trade and Sustainable Development (ICTSD), Issue Paper No. 13 (2006), available at <a href="http://www.unctad.org/en/docs/iteipc20066_en.pdf">http://www.unctad.org/en/docs/iteipc20066_en.pdf</a> , (last accessed January 28, 2015).</p>
</div>
<div id="sdfootnote67">
<p><a href="#sdfootnote67anc" name="sdfootnote67sym">67</a> IPR Think Tank, National IPR Policy (First Draft) at page 1.</p>
</div>
<div id="sdfootnote68">
<p><a href="#sdfootnote68anc" name="sdfootnote68sym">68</a> <b>¶</b> 2.3 IPR Think Tank, National IPR Policy (First Draft) at page 10.</p>
</div>
<div id="sdfootnote69">
<p><a href="#sdfootnote69anc" name="sdfootnote69sym">69</a> <i>See </i> <a href="http://mhrd.gov.in/technical-education-1">http://mhrd.gov.in/technical-education-1</a> (last accessed 30 January, 2015).</p>
</div>
<div id="sdfootnote70">
<p><a href="#sdfootnote70anc" name="sdfootnote70sym">70</a> <i>See</i> <i>'Expert Group Report on Role and Strategic Use of IPR (Intellectual Property Rights) in International Research Collaborations'</i> by European Commission 'available at <a href="http://ec.europa.eu/research/era/pdf/ipr-eur-20230_en.pdf">http://ec.europa.eu/research/era/pdf/ipr-eur-20230_en.pdf</a> (last accessed January 28, 2015).</p>
</div>
<div id="sdfootnote71">
<p style="text-align: justify; "><a href="#sdfootnote71anc" name="sdfootnote71sym">71</a> <i>See</i> <i>'Ministry of Science makes Open Access to Research Mandatory</i> ', available at <a href="http://cis-india.org/news/down-to-earth-july-16-2014-aparajita-singh-ministry-of-science-makes-open-access-to-research-mandatory"> http://cis-india.org/news/down-to-earth-july-16-2014-aparajita-singh-ministry-of-science-makes-open-access-to-research-mandatory </a> (last accessed January 28, 2015).</p>
</div>
<div id="sdfootnote72">
<p style="text-align: justify; "><a href="#sdfootnote72anc" name="sdfootnote72sym">72</a> DBT and DST Open Access Policy - Policy on Open Access to DBT and DST Funded Research, Department of Biotechnology and Department of Science and Technology, Ministry of Science and Technology, Government of India.</p>
</div>
<div id="sdfootnote73">
<p><a href="#sdfootnote73anc" name="sdfootnote73sym">73</a> <i>Id.</i></p>
</div>
<div id="sdfootnote74">
<p><a href="#sdfootnote74anc" name="sdfootnote74sym">74</a> <i>Id.</i></p>
</div>
<div id="sdfootnote75">
<p><a href="#sdfootnote75anc" name="sdfootnote75sym">75</a> <i>Id.</i></p>
</div>
<div id="sdfootnote76">
<p><a href="#sdfootnote76anc" name="sdfootnote76sym">76</a> IPR Think Tank, National IPR Policy (First Draft) at page 11.</p>
</div>
<div id="sdfootnote77">
<p><a href="#sdfootnote77anc" name="sdfootnote77sym">77</a> <i>Id</i> .</p>
</div>
<div id="sdfootnote78">
<p><a href="#sdfootnote78anc" name="sdfootnote78sym">78</a> IPR Think Tank, National IPR Policy (First Draft) at pages 10, 11.</p>
</div>
<div id="sdfootnote79">
<p><a href="#sdfootnote79anc" name="sdfootnote79sym">79</a> IPR Think Tank, National IPR Policy (First Draft) at page 12.</p>
</div>
<div id="sdfootnote80">
<p><a href="#sdfootnote80anc" name="sdfootnote80sym">80</a> <i>Id</i> .</p>
</div>
<div id="sdfootnote81">
<p style="text-align: justify; "><a href="#sdfootnote81anc" name="sdfootnote81sym">81</a> The Doha Declaration on the TRIPS Agreement and Public Health and the Contradictory Trend in Bilateral and Regional Free Trade Agreements (2004), Available at http://www.quno.org/geneva/pdf/ec onomic/Occasional/TRIPS-Public-Health-FTAs.pdf.</p>
</div>
<div id="sdfootnote82">
<p style="text-align: justify; "><a href="#sdfootnote82anc" name="sdfootnote82sym">82</a> World Health Organization, Report of the Commission on Intellectual Property Rights, Innovation and Public Health, Recommendation 4.26 (2006), available at http://www.who.int/intellectualproperty/ documents/thereport/CIPIHReport23032006.pdf [hereinafter WHO].</p>
</div>
<div id="sdfootnote83">
<p><a href="#sdfootnote83anc" name="sdfootnote83sym">83</a> Fifty-Seventh World Health Assembly, May17-22,2004, (May 22, 2004), available at http:// apps.who.int/gb/ebwha/pdf_files/WHA57/A57_R14-en.pdf;</p>
</div>
<div id="sdfootnote84">
<p><a href="#sdfootnote84anc" name="sdfootnote84sym">84</a> Preamble, Articles 7, 8, TRIPS Agreement, 1994.</p>
</div>
<div id="sdfootnote85">
<p><a href="#sdfootnote85anc" name="sdfootnote85sym">85</a> <b>¶</b> 3.2 IPR Think Tank, National IPR Policy (First Draft) at page 12.</p>
</div>
<div id="sdfootnote86">
<p><a href="#sdfootnote86anc" name="sdfootnote86sym">86</a> <b>¶</b> 3.6 IPR Think Tank, National IPR Policy (First Draft) at page 13.</p>
</div>
<div id="sdfootnote87">
<p><a href="#sdfootnote87anc" name="sdfootnote87sym">87</a> <i>See</i> <i>'Open Standards Policy'</i> , available at <a href="http://cis-india.org/news/open-standards-policy">http://cis-india.org/news/open-standards-policy</a> (last accessed January 28, 2015).</p>
</div>
<div id="sdfootnote88">
<p><a href="#sdfootnote88anc" name="sdfootnote88sym">88</a> <i>See</i> <i>'The BIS, Standards and Copyright'</i> , available at <a href="http://spicyip.com/2014/11/the-bis-standards-and-copyright.html">http://spicyip.com/2014/11/the-bis-standards-and-copyright.html</a> (last accessed January 28, 2015).</p>
</div>
<div id="sdfootnote89">
<p style="text-align: justify; "><a href="#sdfootnote89anc" name="sdfootnote89sym">89</a> <i>See</i> <i>CIS' Letter for Establishment of Patent Pool for Low-cost Access Devices through Compulsory Licenses</i> , available at <a href="http://cis-india.org/a2k/blogs/letter-for-establishment-of-patent-pool-for-low-cost-access-devices"> <span>http://cis-india.org/a2k/blogs/letter-for-establishment-of-patent-pool-for-low-cost-access-devices</span> </a> (last accessed January 29, 2015).</p>
</div>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/national-ipr-policy-series-cis-comments-to-the-first-draft-of-the-national-ip-policy'>https://cis-india.org/a2k/blogs/national-ipr-policy-series-cis-comments-to-the-first-draft-of-the-national-ip-policy</a>
</p>
No publishernehaaCall for CommentsAccess to KnowledgeIntellectual Property RightsFeaturedHomepage2015-02-09T00:59:10ZBlog EntryRTI Responses - MHRD IP Chairs: Details of Funding & Expenditure
https://cis-india.org/a2k/blogs/rti-responses-mhrd-ip-chairs-details-of-funding-and-expenditure
<b>In an earlier blog post titled "MHRD IPR Chairs — Underutilization of Funds and Lack of Information Regarding Expenditures", we discussed the lack of information regarding the expenditure by various MHRD Chairs in the country. We sent out RTI requests to find out more. This blog post discusses the responses that we have received so far.
(Many thanks to CIS intern Varnika Chawla for her assistance)</b>
<p style="text-align: justify; ">See the earlier post on <a class="external-link" href="http://cis-india.org/a2k/blogs/mhrd-ipr-chairs-underutilization-of-funds-and-lack-of-information-regarding-expenditures#http://cis-india.org/a2k/blogs/mhrd-ipr-chairs-underutilization-of-funds-and-lack-of-information-regarding-expenditures">MHRD IPR Chairs — Underutilization of Funds and Lack of Information Regarding Expenditures</a> <span style="text-align: start; float: none; "><br /></span></p>
<hr />
<p style="text-align: justify; ">A wide variation in the allocation of funds among different Universities was observed. Further, it was noted that no information was available on any platform, regarding the actual utilization of these funds, and therefore, CIS had filed a Right to Information request for the same with the concerned authorities.</p>
<p style="text-align: justify; ">A four-pronged Right to Information query (dated 17.11.2014) was filed by CIS with various Universities, seeking the following:</p>
<ul>
<li style="text-align: justify; ">A report on the implementation of the IPERPO Scheme and the MHRD IPR Chair funded under the Scheme at different Universities across India, for the year 2013-14;</li>
<li style="text-align: justify; ">Documents on the release of grants to the MHRD IPR Chairs under the IPERPO Scheme at different Universities, for the year 2013-14;</li>
<li style="text-align: justify; ">Documents relating to the receipt of utilization certificates and audited expenditures statements and matters related to all financial sanctions with regard to funds granted to the MHRD IPR Chair established under the IPERPO Scheme for the year 2013-14;</li>
<li style="text-align: justify; ">Documents regarding all matters related to finance and budget related to the MHRD IPR Chair under the IPERPO Scheme for 2013-14 established across different Universities.</li>
</ul>
<p style="text-align: justify; ">Accordingly, CIS received the following information from Universities:</p>
<table class="grid listing">
<tbody>
<tr>
<td>
<p><b>Name of University</b></p>
</td>
<td>
<p align="center"><b>Implementation of IPERPO Scheme</b></p>
</td>
<td>
<p align="center"><b>Release of Grants</b></p>
</td>
<td>
<p align="center"><b>Utilization Certificates & Exp. Stmts.</b></p>
</td>
<td>
<p align="center"><b>Finance & Budget Matters</b></p>
</td>
</tr>
<tr>
<td>
<p>WBNUJS, Kolkata</p>
</td>
<td>
<p>Information not yet available</p>
</td>
<td>
<p>-</p>
</td>
<td>
<p>-</p>
</td>
<td>
<p>-</p>
</td>
</tr>
<tr>
<td>
<p>DU, Delhi School of Economics, Tezpur University</p>
</td>
<td>
<p>Information not yet available</p>
</td>
<td>
<p>-</p>
</td>
<td>
<p>-</p>
</td>
<td>
<p>-</p>
</td>
</tr>
<tr>
<td>
<p>Jawaharlal Nehru University</p>
</td>
<td>
<p>Information not yet available</p>
</td>
<td>
<p>-</p>
</td>
<td>
<p>-</p>
</td>
<td>
<p>-</p>
</td>
</tr>
<tr>
<td>
<p>IIM, Ahmedabad</p>
</td>
<td>
<p>No MHRD IPR Chair</p>
</td>
<td>
<p>-</p>
</td>
<td>
<p>-</p>
</td>
<td>
<p>-</p>
</td>
</tr>
<tr>
<td>
<p>IIM, Bangalore</p>
</td>
<td>
<p>Established a Chair</p>
</td>
<td>
<p>Rs. 23,50,000</p>
</td>
<td>
<p>Rs. 23,50,000</p>
</td>
<td>
<p>Submitted</p>
</td>
</tr>
<tr>
<td>
<p>IIT Delhi</p>
</td>
<td>
<p>No MHRD IPR Chair</p>
</td>
<td>
<p>No money has been received</p>
</td>
<td>
<p>-</p>
</td>
<td>
<p>-</p>
</td>
</tr>
<tr>
<td>
<p>NLU, Jodhpur</p>
</td>
<td>
<p>Established a Chair</p>
</td>
<td>
<p>Rs. 36,00,000</p>
</td>
<td>
<p>Rs. 18,86,566</p>
</td>
<td>
<p>Submitted</p>
</td>
</tr>
<tr>
<td>
<p>University of Madras</p>
</td>
<td>
<p>No MHRD IPR Chair</p>
</td>
<td>
<p>No money has been received</p>
</td>
<td>
<p>-</p>
</td>
<td>
<p>-</p>
</td>
</tr>
<tr>
<td>
<p>Nalsar University of Law, Hyderabad</p>
</td>
<td>
<p>Established a Chair</p>
</td>
<td>
<p>Rs. 40,00,000</p>
</td>
<td>
<p>Rs. 37, 88,349</p>
</td>
<td>
<p>Submitted</p>
</td>
</tr>
<tr>
<td>
<p>NLSIU, Bangalore</p>
</td>
<td>
<p>Established a Chair</p>
</td>
<td>
<p>Rs. 45,00,000</p>
</td>
<td>
<p>Rs. 45,31,927</p>
</td>
<td>
<p>-</p>
</td>
</tr>
<tr>
<td>
<p>CUSAT, Kerala</p>
</td>
<td>
<p>Information not yet available</p>
</td>
<td>
<p>-</p>
</td>
<td>
<p>-</p>
</td>
<td>
<p>-</p>
</td>
</tr>
<tr>
<td>
<p>IIT, Bombay</p>
</td>
<td>
<p>No IPR Chair for 2013-14</p>
</td>
<td>
<p>Rs. 35,00,000</p>
</td>
<td>
<p>Rs. 15,66,179</p>
</td>
<td>
<p>Submitted</p>
</td>
</tr>
</tbody>
</table>
<p>The RTI Requests were returned by <b>NUJS Kolkata</b> as well as <b>IIT, Kanpur</b>, in a response dated 28.11.2014.</p>
<p><b>IIM Ahmedabad</b> in its response (dated 9.12.2014), informed of the fact that no MHRD IPR Chair has been established under the IPERPO Scheme at the institution.</p>
<p style="text-align: justify; ">Details of the activities undertaken by the MHRD IPR Chair, as well as their finance and budget allocation were received from <b>IIM, Bangalore</b> (dated 16.12.2014). It was disclosed that the focus of the IPR Chair is on research on the economic and management dimensions of IPR with special reference to the corporate, SME and agricultural sectors. Since 2011-12, the Chair has focused on creative content management and protection with reference to cinema, electronic media and classical performing arts. Several activities were undertaken by the Chair, including finalization of a Research Monograph; inclusion of IPR Economics into the Core Course in Microeconomics for the Post Graduate Programme in Software Enterprise Management; a National Workshop on “Macro Policy Environment, IPR’s and Competition Policy” was organized; and 2 Research Assistants were appointed under the Chair. Against a request for Rs. 26,10,000, a grant of Rs. 23,50,000 was received, utilized for the payment of the Chair’s salary (Rs. 19,20,000), RA honorarium (Rs. 5,40,000) and Round Table Expenses.</p>
<p><b>IIT, Delhi</b>, in its response (dated 16.12.2014) informed that no MHRD IPR Chair has been established under the IPERPO Scheme at the University. Further, no grant money has been received by the University under the Scheme.</p>
<p style="text-align: justify; "><b>NLU, Jodhpur</b> submitted a detailed reply (dated 16.12.2014). A number of IPR research and learning initiatives have been undertaken under the MHRD IPR Chair established under the IPERPO Scheme, including IPR Awareness Programmes, formulation and conduction of various undergraduate and postgraduate IPR Courses, research and suggestions on IPR Law Reforms and IPR Policies etc. NLU Jodhpur conducted a training session for researchers and teachers of IPR, a workshop for students on IP Litigation, a conference on “The Impact of IPR on Access to Medicine”, Training, Sensitization and Outreach Programmes as well as lectures and paper presentations. Funding received from the grant was utilized towards payment of the coordinator’s salary (Rs. 5,78,800) RA honorarium (Rs. 6,00,000), Ph.D. fellows’ honorarium (Rs. 3,38,000), travel grants (Rs. 2,00,000) and miscellaneous expenditure. A total of Rs. 17,00,000 was spent on sensitization and outreach programmes, workshops, conferences as well as the IP Depository.</p>
<p style="text-align: justify; ">The <b>University of Madras</b> in its response (dated 29.12.2014) submitted that no MHRD IPR Chair has been established under the IPERPO Scheme and no grants were sanctioned to the University.</p>
<p style="text-align: justify; ">The requisite documents detailing expenditure incurred (Rs. 37,88,349) as well as the financial budget were made available by <b>NALSAR University of Law</b> (dated 22.12.2014). Expenditure was incurred towards the payment of the Chair Professor’s salary (Rs. 17,50,093), payments to the staff (Rs.7,11,544), the IPR Journal (Rs. 40,000), Travel (Rs.6,45,864), books (Rs. 2,67,740) and other miscellaneous expenditure. A link to an <a class="external-link" href="http://www.mhrdipchairs.org/nalsar/annualreport.aspx">online report</a>, was also made available. However, this is a dead link.</p>
<p><b>The website established for MHRD IPR Chairs itself is not functioning.</b></p>
<p style="text-align: justify; ">No information has been made available by <b>Jawaharlal Nehru University, Delhi University, Delhi School of Economics and Tezpur University as well as CUSAT, Kerala</b> as of now. Further, <b>IIT, Kharagpur</b> in its reply (dated 17.12.2014), sought exemption from providing the required information under Section 8(1)(d) of the RTI Act, 2005.</p>
<p style="text-align: justify; "><b>IIT Bombay</b>, in its reply (dated 15.01.2015) submitted that having established a MHRD IPR Chair under the IPERPO Scheme, activities such as research, training, academic courses (Introductory Foundation Course at U.G., P.G. Level, Elective Course at P.G. Level), conducting workshops, conferences and outreach programmes and maintaining an IP Depository have been undertaken. Details about budgetary allocation were also made available. From a grant of Rs. 35,00,000, a total amount of Rs. 15,66,179 has been utilized. However, there was no IPR Chair for the year 2013-14. Out of a cumulative grant of Rs. 1,95,00,000 received till March 31, 2014, the institution has spent a total of Rs. 1,62,60,265 on IPR Activities, workshops, honorariums, salaries, conferences etc. from 2007.</p>
<p style="text-align: justify; ">Lastly, as per the information received from <b>NLSIU, Bangalore</b> (dated 14.01.2015), an MHRD IPR Chair has been established at the University. Several activities have been organized at NLSIU, including a <i>Workshop on IPR in S.J.R. College of Law</i>, the release of an IP Newsletter publication “<i>March of the IP Law</i>”, a conference on the <i>Advantages of Madrid Protocol</i>, a conference on <i>Patents, Innovation and Trade Secrets for MSMEs in IT/ITES Sectors in Karnataka, </i>research activities such as the <i>Fact-Screening-and-Transforming-Processor Project</i>, the release of a website <a href="http://iprlawindia.org">http://iprlawindia.org</a> which is currently under construction, conducting awareness and outreach programmes etc. The MHRD IPR Chair at NLSIU was awarded a grant of Rs.45,00,000 which was largely spent on the payment of the Chair’s salary (Rs. 24,17,378), RA honorarium (Rs. 5,88,415), workshops and conferences (Rs.1,27,805), creation of a depository of IP books (Rs. 1,00,105), publication of newsletters (Rs.1,00,000) and staff payments.</p>
<p>It is therefore observed that firstly, there was a variation in replies to the RTI queries filed under the same format, with some Universities providing information, some blatantly refusing to do so (IIT Kharagpur), and some delaying the process for what appear to be minor procedural irregularities.</p>
<p><img src="https://cis-india.org/home-images/Universities1.png" alt="null" class="image-inline" title="Universities 1" /></p>
<p>Four Universities have still not sent the requisite information, whereas no MHRD IPR Chair has been established in four of them. Only four replied with some information.</p>
<p><img src="https://cis-india.org/home-images/Universities2.png" alt="null" class="image-inline" title="Universities 2" /></p>
<p style="text-align: justify; ">Moreover, for the year 2013-14, MHRD allocated a grant of Rs. 1,79,50,000 among 5 Universities, disproportionately (ranging from Rs.23 lakhs-Rs. 45 lakhs per University). Out of this grant, the Universities have incurred a total expenditure of Rs. 1,41,23,021, largely for the payment of salaries of the IPR Chair (Rs. 66,66,271), honorariums for Research Assistants (24,50,183), and conducting workshops, conferences and travel for the same.</p>
<p style="text-align: justify; "><img src="https://cis-india.org/home-images/IIMBangalore.png" alt="null" class="image-inline" title="IIM Bangalore" /></p>
<p style="text-align: justify; ">The various responses received to the RTI queries filed reveal a great variation in not just the allocation of funds by the Ministry, but also on the utilization of these funds (if at all), as well as in the range of activities conducted by the Chairs. <br /><br />We're still tracking this. Watch this space for more, including copies of our RTIs and the responses as well as details from other Universities who are yet to get back to us.</p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/rti-responses-mhrd-ip-chairs-details-of-funding-and-expenditure'>https://cis-india.org/a2k/blogs/rti-responses-mhrd-ip-chairs-details-of-funding-and-expenditure</a>
</p>
No publishernehaaIntellectual Property RightsAccess to Knowledge2015-02-02T13:28:30ZBlog EntryNational IPR Policy Series : The Development of the National IPR Policy
https://cis-india.org/a2k/blogs/the-development-of-the-national-ipr-policy
<b>This is the first blog post in a series of posts on India's National IPR Policy. In this post, CIS intern, Varnika Chawla traces the evolution of the National IPR Policy.</b>
<p style="text-align: justify; ">Significant changes have been implemented in the Intellectual Property regime of India since India's accession to TRIPS in 1995. This post details the timeline of the development of Intellectual Property law in India, highlighting the discourse around the formulation of a National IPR Policy. The author has also looked at the formulation of IP Strategies in different nations across the world, summarized in the infographic, observing that the trend for the same is very recent and has only emerged over the last decade.</p>
<p style="text-align: justify; ">"<a href="http://dipp.nic.in/english/Discuss_paper/draftNational_IPR_Strategy_26Sep2012.pdf">Intellectual Property Right</a> is a private right recognized within the territory of a country and assigned to an individual or individuals for a specified period of time in return for making public, the results of their creativity and innovation." India has a well-established and comprehensive legislative, judicial and administrative framework for intellectual property. The decade of 2010-2020 was declared as the <a href="http://www.dst.gov.in/whats_new/press-release10/pib_10-3-2010.htm">Decade of Innovation</a>, with an objective of expanding the space for dialogue for inclusive growth. With the emergence of globalization, the Indian society has become more knowledge-intensive giving rise to rapid development in the field of information technology and consequently intellectual property, thereby increasing the role of the legislature as well as the judiciary to protect and promote intellectual property rights.</p>
<p style="text-align: justify; ">India gained membership of the World Trade Organization in 1995. This membership initiated a new round of revisions resulting in the upheaval of the Indian intellectual property system. All IP legislations were hereby required to comply with the provisions of the TRIPS Agreement by 2000, with the exception of the Patents Act, which had an extended time limit to be compliant till 2005.</p>
<p style="text-align: justify; ">The Indian system of intellectual property rights is designed in a manner to ensure the protection of intellectual property while maintaining a balance between rights and obligations. There are several legislations which deal with the protection of intellectual property in India. These include the<b>Patents Act, 1970,</b> the <b>Trade Marks Act, 1999,</b> the<b>Geographical Indications of Goods (Registration and Protection) Act, 1999, </b>the<b> Semiconductor Integrated Circuits Layout Design Act, 2000, </b>the<b> Competition Act, 2002</b> as well as the<b>Biological Diversity Act, 2002</b>. India is also the<a href="http://www.worldipreview.com/news/india-first-country-to-ratify-marrakesh-treaty-6863">first country</a> to ratify the<b>Marrakesh Treaty, 2013</b> for <i>access to copyright works for visually impaired persons</i>. India also recently acceded to the <b>Madrid Protocol<i> </i></b>in 2013.</p>
<h3 style="text-align: justify; ">National IP Strategy and the Role of WIPO</h3>
<p style="text-align: justify; ">A National IP strategy has been defined by WIPO as "a vehicle for creating better functional linkages between the national economic objectives, development priorities and resources, and the IP system of the country concerned."<a href="#_ftn1" name="_ftnref1">[1]</a> It is therefore a set of policy measures undertaken by governments in order to facilitate the proper use of IP as a <i>strategic</i> tool, for economic, social, cultural and technological development.<a href="#_ftn2" name="_ftnref2">[2]</a> WIPO also gave the framework of the planning process each country should implement, in its efforts to adopt an IP strategy. As per this, the process is divided into four main stages:</p>
<ul style="text-align: justify; ">
</ul>
<ul>
<li> Government initiative</li>
<li>Establishment of a National IP Strategy Formulation Committee</li>
<li>Presentation of draft strategy before stakeholders</li>
<li>Government approval of National IP Strategy,<a href="#_ftn3" name="_ftnref3">[3]</a></li>
</ul>
<ul style="text-align: justify; ">
</ul>
<p style="text-align: justify; ">WIPO can assist in the formulation of a National IP Strategy by advising the governments as well as providing technical expertise during the planning process and providing support and assistance as and when required.<a href="#_ftn4" name="_ftnref4">[4]</a></p>
<h3 style="text-align: justify; ">India's National IPR Strategy</h3>
<p style="text-align: justify; ">Realizing the significance of having a strong and well-balanced IP system in the emerging economy of India, several initiatives have been undertaken by the Department of Industrial Policy & Promotion at the policy level to create an environment conducive for the development of intellectual property and technology. Accordingly, a <a href="http://dipp.nic.in/english/Discuss_paper/draftNational_IPR_Strategy_26Sep2012.pdf"><b>draft</b></a> <b> for the National IPR Strategy, </b> <i> outlining a set of measures and guidelines to encourage and facilitate the effective creation, protection, management and commercialization of IP for accelerating economic, social, cultural and technological development and for enhancing enterprise competitiveness </i> prepared by the Sectoral Innovation Council on IPR<b> w</b>as released by DIPP on September 26, 2012<b>,</b> inviting <a href="http://dipp.nic.in/English/Discuss_paper/DiscussionPaper_IPRStrategy.htm">views</a> from various stakeholders. It was felt that the National IP Strategy needs to be developed in a manner such that it is integrated with the overall national plan for development in order for better cooperation with IP components of specific and targeted national strategies in areas such as trade and investment, education, food and agriculture, science and technology etc.</p>
<p style="text-align: justify; ">Subsequently, a <a href="http://dipp.nic.in/English/Schemes/Intellectual_Property_Rights/national_IPR_Strategy_21July2014.pdf">revised draft</a> for the <b>National IPR Strategy in India was released on July 21, 2014</b>, detailing a vision statement, objectives and means to achieve the same.</p>
<p style="text-align: justify; ">The <b>DIPP constituted an </b><a href="http://dipp.nic.in/English/News/publicNotice_13November2014.pdf"><b>IPR Think Tank</b></a> <b>, </b>as notified on November 13, 2014, in order to draft the National Intellectual Property Rights Policy and to advise DIPP on IPR-related issues. Finally, a <a href="http://dipp.nic.in/English/Schemes/Intellectual_Property_Rights/IPR_Policy_24December2014.pdf"> <b><i>First Draft of the National IPR Policy</i></b> </a> <b> was submitted by the IPR Think Tank on December 19, 2014</b> , <a href="http://dipp.nic.in/English/Schemes/Intellectual_Property_Rights/press_release_13012015.pdf">inviting comments</a> and suggestions from all stakeholders on or before <b>January 30, 2015</b>.</p>
<h3 style="text-align: justify; ">National IP Strategies: Around the World</h3>
<p style="text-align: justify; ">WIPO Member States adopted <a href="http://www.wipo.int/ip-development/en/agenda/recommendations.html">45 recommendations</a> at the 2007 General Assembly, made by the Provisional Committee on Proposals Related to a WIPO Development Agenda. This also included Member States setting up "appropriate national strategies in the field of intellectual property." These recommendations were identified for immediate and effective implementation, resulting in countries beginning to adopt the same, with the objective of promoting and enforcing IP rights. The info-graphic below highlights the formulation of IP Strategies in Member States around the world.</p>
<table class="grid listing">
<tbody>
<tr>
<th><img src="https://cis-india.org/home-images/nationalIPRpolicy.png" alt="National IPR Policy" class="image-inline" title="National IPR Policy" /></th>
</tr>
</tbody>
</table>
<p style="text-align: justify; ">China announced its "<a href="http://www.gov.cn/english/2008-06/21/content_1023471.htm">National Intellectual Property Strategic Principles</a>" in June, 2008. Japan established its "<a href="http://japan.kantei.go.jp/policy/titeki/index_e.html">Intellectual Property Strategy Headquarters</a>" in 2003, and its <a href="http://japan.kantei.go.jp/policy/titeki/kettei/040527_e.html">Intellectual Property Strategic Program</a> in 2004, while USA legislated the " <a href="http://www.gpo.gov/fdsys/pkg/PLAW-110publ403/pdf/PLAW-110publ403.pdf">Prioritizing Resources and Organization for Intellectual Property Act</a>" in 2008. Furthermore, the Presidential Advisory Council on Education, Science and Technology in Korea announced the " <a href="http://www.ipkorea.go.kr/frontEn/strategic_plan/strategic_plan.do">Strategy for Intellectual Property System Constructing Plan</a>" on June 27, 2006, consisting of three aspects: <i>Creation and Application, Law and Regulation, and Infrastructure</i>. The European Union has adopted a " <a href="http://trade.ec.europa.eu/doclib/html/122636.htm">Strategy for the Enforcement of Intellectual Property Rights in Third Countries</a>", aimed at evaluating the recent major changes that have taken place in the international IP arena, preparing to meet the challenges in an effective manner. Finland adopted " <a href="https://www.tem.fi/files/22788/vn_periaatepaatos_ipr_strategia_en.pdf"> The Government's Resolution on the Strategy Concerning Intellectual Property Rights </a> " on March 26, 2009. Therefore, it is observed that the trend of National IP Strategies has only started recently, in the last decade.</p>
<p style="text-align: justify; ">Therefore we see the emerging need of an all-encompassing IP Policy arising in nations around the world, aimed at promoting a holistic environment conducive to the development of Intellectual Property.</p>
<div style="text-align: justify; ">
<hr align="left" size="1" width="100%" />
<div id="ftn1">
<p><a href="#_ftnref1" name="_ftn1">[1]</a> <i>WIPO's Contribution to the Elaboration and Implementation of Strategies and National Plans for the Development of IP and Innovation</i> , WTO Strategic Planning Workshop, Geneva, Switzerland, June 13, 2014.</p>
</div>
<div id="ftn2">
<p><a href="#_ftnref2" name="_ftn2">[2]</a> <i>Id</i> .</p>
</div>
<div id="ftn3">
<p><a href="#_ftnref3" name="_ftn3">[3]</a> <i>Id</i> .</p>
</div>
<div id="ftn4">
<p><a href="#_ftnref4" name="_ftn4">[4]</a> <i>Id.</i></p>
</div>
</div>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/the-development-of-the-national-ipr-policy'>https://cis-india.org/a2k/blogs/the-development-of-the-national-ipr-policy</a>
</p>
No publishernehaaIntellectual Property RightsAccess to Knowledge2015-01-22T00:48:33ZBlog EntrySeventh Global Intellectual Property Convention
https://cis-india.org/a2k/news/seventh-global-ip-convention
<b>The Seventh Global IP Convention took place in Mumbai from January 15 to 17, 2015. Rohini Lakshané attended the event.</b>
<h3>Agenda</h3>
<table class="listing">
<tbody>
<tr>
<th>Time</th><th>Detail</th>
</tr>
<tr>
<td>
<p>08.00<br />09.00</p>
</td>
<td>Registration</td>
</tr>
<tr>
<td>09.00<br />10.30</td>
<td>Inaugural Session (Majestic I & II)<br /></td>
</tr>
<tr>
<td>10.30<br />11.00</td>
<td>Coffee Break and Networking Session<br /></td>
</tr>
<tr>
<td>11.00<br />12.30</td>
<td>Plenary Session I: Power of IP: Gateway to Growth (Majestic I & II) <br /></td>
</tr>
<tr>
<td>12.30<br />13.30</td>
<td>Lunch Break & Networking Session<br /></td>
</tr>
<tr>
<td>13.30<br />15.30</td>
<td>Technical Session: I, II & III</td>
</tr>
<tr>
<td>15.30<br />16.00</td>
<td>Coffee Break and Networking Session</td>
</tr>
<tr>
<td>16.00<br />18.00</td>
<td>Technical Session: IV, V & VI</td>
</tr>
</tbody>
</table>
<p>For more info on the event, <a class="external-link" href="http://iprconference.com/">click here</a>.</p>
<p>
For more details visit <a href='https://cis-india.org/a2k/news/seventh-global-ip-convention'>https://cis-india.org/a2k/news/seventh-global-ip-convention</a>
</p>
No publisherpraskrishnaIntellectual Property RightsAccess to Knowledge2015-02-12T16:59:01ZNews ItemWIPO Delegates Hear Concerns of NGOs on Exceptions for Libraries
https://cis-india.org/a2k/news/ip-watch-catherine-saez-december-19-2014-wipo-delegates-hear-concerns-of-ngos-on-exceptions-for-libraries
<b>As World Intellectual Property Organization member states launched into discussions on exceptions and limitations to copyright for the benefit of libraries and archives this week, non-governmental organisations were given the opportunity to present their views on the issue. They delivered vibrant, sometimes contradictory, statements on the opportunity for a treaty to preserve exceptions in the international copyright system. </b>
<p style="text-align: justify; ">The 26th session of the WIPO Committee on Copyright and Related Rights (SCCR) is taking place from 16-20 December. After two days devoted to the protection of broadcasting organisations, the focus of the next two days has been on a potential international instrument providing exceptions and limitations for libraries and archives.</p>
<p style="text-align: justify; ">In their general statements, countries remained faithful to their known positions. Developing countries generally underlined the necessity of achieving a balanced international copyright system and their wish to establish a legally binding instrument, and developed countries were of the view that the existing international copyright system already provides exceptions which could be used by libraries and archives.</p>
<p style="text-align: justify; ">The African Group said the countries in the group: find it difficult to set up and understand the existing limitations and exceptions; believe an international legally binding instrument would enable them to understand better how they can provide exceptions and limitations for libraries and archives; and consider that it would provide a mechanism for cross-border exchange for such entities.</p>
<p style="text-align: justify; ">The European Union clearly stated that its member countries were not willing to consider a legally binding instrument, and said that exceptions and limitations for libraries and archives did not require the same kind of action that was taken in favour of visually impaired people, referring to the recently adopted <a href="http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=245323">Marrakesh Treaty</a> to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled.</p>
<p style="text-align: justify; ">Developed countries, in particular those in the European Union, did not always stand in favour of a treaty providing exceptions and limitations to copyright for visually impaired people. In the discussion on libraries and archives, developed countries are in favour of sharing national experiences rather than establishing binding new norms.</p>
<p style="text-align: justify; ">The United States said it was not in support of norm-setting through treaty provisions. The delegate also said exceptions and limitations should be consistent with other member state obligations, including the so-called three step test.</p>
<p style="text-align: justify; ">The notion of three-step test haunted the discussions leading to the Marrakesh Treaty. It stems originally from <a href="http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html#P140_25350">Article 9(2)</a> of the Berne Convention for the Protection of Literary and Artistic Works (<a href="http://www.ip-watch.org/2013/06/14/test-of-political-flexibility-in-final-lap-for-wipo-treaty-for-the-blind/"><i>IPW</i>, WIPO, 14 June 2013</a>) and provides conditions for reproduction.</p>
<p style="text-align: justify; ">A large number of non-governmental organisations took the floor on 18 December, with stark differences in the approach of the issue of exceptions and limitations to copyright for libraries and archives.</p>
<p style="text-align: justify; ">Industry, Creators: International Instrument Superfluous</p>
<p style="text-align: justify; ">The industry, such as the International Federation of Film Producers, the Motion Picture Association (MPA), The International Association of Editors (IPA), the International Video Federation (IVF), the Ibero-Latin-American Federation of Performers (FILAIE), and the International Association of Scientific, Technical and Medical Publishers (STM), said that the existing international copyright framework already provides exceptions and limitations, and national legislations can be develop to address issues met by libraries and archives.</p>
<p style="text-align: justify; ">FILAIE said that it was in support of the Marrakesh Treaty but that a balance between society and the rights holders should be maintained. The IPA said there is no need for change in the international law, and suggested active legislative assistance to WIPO member states by the secretariat.</p>
<p style="text-align: justify; ">IVF concurred and said effective technical assistance in implementing the existing international copyright framework should be a focus of the SCCR.</p>
<p style="text-align: justify; ">The International Federation of Reproduction Rights Organisation (IFRRO), in <a href="http://www.ifrro.org/content/ifrro-statement-wipo-sccr-26-18-december-2013">its statement</a>, also said the current international conventions adequately provide for the establishment of relevant library exceptions in national legislation, such as reproduction for preservation proposals. The sharing of experiences ” both in the wording of library and archive exceptions and practical solutions seems to IFRRO to be the most appropriate way to enhance the performance of library and archive services,” the representative said.</p>
<p style="text-align: justify; ">“Exceptions and limitations are already part of the toolkit of existing treaties,” the representative for the International Federation of Actors and the International Federations of Musicians said. The international normative framework is providing “a coherent and flexible structure with just recognition of the contribution of creators to the information society and knowledge society, and the establishment of exceptions and other mechanisms providing access for the public to creative content,” he said.</p>
<p style="text-align: justify; ">The International Authors Forum concurred with the idea that existing provisions contain sufficient flexibility and asked that WIPO member states “will take advantage of the opportunity provided by the WIPO texts for adequate remuneration for the authors in accordance with the three-step test.”</p>
<p style="text-align: justify; ">Libraries, Archive Underline Inadequacies, Support Treaty</p>
<p style="text-align: justify; ">Libraries and archivists have a different view of the issue and reported on problems as they experience them on the ground.</p>
<p style="text-align: justify; ">The German Library Association cited a new study published by the European Commission (<a href="http://ec.europa.eu/internal_market/copyright/docs/studies/131216_study_en.pdf">Study on the application of Directive 2001/29/EC on copyright and related rights in the information society</a> [pdf]), and said it “paints a dire picture of the adequacy of the Directive for exceptions for libraries in the European Union in the digital environment.”</p>
<p style="text-align: justify; ">In particular, the representative said, it “identifies a lack of cross-border application of exceptions for libraries and a patchwork of national laws as preventing libraries from fulfilling their functions,” in particular presenting cross-border issues, he said.</p>
<p style="text-align: justify; ">“There is a high level of international copyright protection,” he said, but “there is no such uniformity of limitations.” To act legally, he said, “library staff has to know about the limitations and exception, not only in their own country, the country of origin, but also in the country of destination of its service.”</p>
<p style="text-align: justify; ">The Canadian Library Association said it came to WIPO “to ensure a basic copyright framework is made available to libraries everywhere, and not just in Canada to deliver essential information services, and so that other communities can benefit from the same societal and economic impacts as we have in Canada.”</p>
<p style="text-align: justify; ">Even in Canada, the representative said, libraries’ activities are under threat, “as increased restrictions such as technology group protection measures and licensing terms and conditions degrade the environment in which we work, leaving libraries changing our role to simple market access intermediaries for publishers.”</p>
<p style="text-align: justify; ">For Electronic Information for Libraries, an international framework establishing basic standards is necessary to avoid increasing inequalities in public knowledge. “We recognise the theory that the international copyright framework provides legal space to ensure meaningful limitations and exceptions,” the representative said, “But when the reality is different, and the gap between countries is widening, intervention is required to ensure the integration of key public interest concepts into the international framework.”</p>
<p style="text-align: justify; ">The International Federation of Library Associations and Institutions also underlined the disparity in national exceptions and limitations making it impossible for libraries to “competently fulfil our role as intermediaries between rights holders and users.”</p>
<p style="text-align: justify; ">Archives</p>
<p style="text-align: justify; ">The International Council of Archives (CIA) said a legally binding instrument will enable cross-border for non-commercial research purposes. The Societies of American Archivists said “current law prevents us from using the barrier-breaking technology to reach the shared goals of archives and copyright law, that is, expanding knowledge and creating new works.”</p>
<p style="text-align: justify; ">“The United States, for instance, has some library and archives exceptions, but they are inadequate and woefully out of date,” the representative said, listing a number of actions that are not permitted, such as preserving backup copies of digitised materials. “As for fair use, it is often subject to costly litigation leaving too many archives hesitant to put material online,” he said.</p>
<p style="text-align: justify; ">Civil Society</p>
<p style="text-align: justify; ">Knowledge Ecology International underlined the increasing role of contracts in eroding exceptions in countries which have statutory exceptions. “We notice,” the representative said, “that the groups that oppose the library treaty are strong supporters of treaties for broadcast organisations.”</p>
<p style="text-align: justify; ">The Center for Internet and Society (India) supported an international instrument, in particular from the perspective of developing and least-developed countries. It would serve two main purposes, the representative said. On the one hand, it would protect copyrighted works, and on the other, it would provide greater access to these materials, and allow the dissemination of knowledge, culture and information, in accordance with the WIPO Development Agenda.</p>
<p style="text-align: justify; ">The SCCR Chair, Martin Moscoso, director of the Peru Copyright Office, encouraged member states to take the NGOs statements into account.</p>
<p>
For more details visit <a href='https://cis-india.org/a2k/news/ip-watch-catherine-saez-december-19-2014-wipo-delegates-hear-concerns-of-ngos-on-exceptions-for-libraries'>https://cis-india.org/a2k/news/ip-watch-catherine-saez-december-19-2014-wipo-delegates-hear-concerns-of-ngos-on-exceptions-for-libraries</a>
</p>
No publisherpraskrishnaIntellectual Property RightsAccess to KnowledgeWIPO2014-12-27T14:40:05ZNews ItemAt WIPO, Study On Copyright Exceptions Stimulates Broad Discussion With Author
https://cis-india.org/a2k/news/ip-watch-catherine-saez-december-18-2014-wipo-study-on-copyright-exceptions-stimulates-broad-discussion-with-author
<b>During the recent meeting of the World Intellectual Property Organization copyright committee, a study was presented on exceptions and limitations to copyright for libraries and archives at the national level. The presentation spurred a full day of discussion about how to ensure libraries can continue to provide an indispensable service, and a substantive exchange with the author. </b>
<p style="text-align: justify; ">The article by Catherine Saez was <a class="external-link" href="http://www.ip-watch.org/2014/12/18/wipo-study-on-copyright-exceptions-stimulates-broad-discussion-with-author/">published in Intellectual Property Watch</a> on December 18, 2014</p>
<hr />
<p style="text-align: justify; "><a href="http://www.wipo.int/meetings/en/details.jsp?meeting_id=32094">The 29th session</a> of the Standing Committee on Copyright and Related Rights (SCCR) took place from 8-12 December.</p>
<p style="text-align: justify; ">On 10 December, Kenneth Crews, former director of the copyright advisory office at Columbia University and now in the private sector, presented <a href="http://www.wipo.int/edocs/mdocs/copyright/en/sccr_29/sccr_29_3.pdf">an update</a> [pdf] of his 2008 WIPO-commissioned study on Copyright Limitations and Exceptions for Libraries and Archives (<a href="http://www.ip-watch.org/2014/12/12/copyright-exceptions-for-libraries-wipo-should-step-up-before-someone-else-does-researcher-says/"><i>IPW</i>, WIPO, 12 December 2014</a>).</p>
<p style="text-align: justify; ">The study provided safe ground for broad discussions on the sensitive issue of exceptions and limitations, and the role of WIPO in the issue, with a large number of countries taking the floor to offer comments on the study and its findings, providing specific details on their own legislation and/or asking questions.</p>
<p style="text-align: justify; "><b>Harmonisation</b></p>
<p style="text-align: justify; ">Mexico, for example, asked whether there was a general movement leading to a harmonisation exercise in international copyright law.</p>
<p style="text-align: justify; ">Crews answered there was no movement toward an era of harmonisation, but harmonisation could be an answer in the field of limitations and exceptions if it left sufficient policy space to countries.</p>
<p style="text-align: justify; ">On the one hand, he said, “there is virtue in harmonisation, in allowing for the predictability of the law … as your business activities move from one country to another.” It makes the law easier to understand, and easier to address some of the issues of cross-border exchange..,” he said.</p>
<p style="text-align: justify; ">But the major disadvantage of harmonisation would be the loss of opportunity for countries to “experiment, test new ideas in lawmaking, and to move in some new directions,” he added.</p>
<p style="text-align: justify; ">Maybe the answer lies in the middle, said Crews: harmonise the law to a certain extent, “and then leave some of the details to individual countries.”</p>
<p style="text-align: justify; ">The European Union delegate remarked that even in an integrated legal system such as the EU, very few exceptions to copyright are mandatory for EU members. Member states “remain free to implement most of the exceptions in the EU legislation in their national systems,” he said.</p>
<p style="text-align: justify; "><b>Implementation Issues</b></p>
<p style="text-align: justify; ">Tunisia stressed the issue of the implementation of copyright exceptions and limitations in developing countries, particularly for libraries. Libraries often are “fearful of the complications,” referring to the exceptions and limitations legislation, and simply do not use it, preferring “what is possible and available,” he said</p>
<p style="text-align: justify; ">Crews said it is important to find “the right formula” for drafting a statute that is detailed enough that users are law-abiding citizens, “and at the same time not be so complicated in the structure of the law that it is difficult or impractical for most – even trained professionals – to follow.”</p>
<p style="text-align: justify; "><b>Cross-Border Exchange, TPMs</b></p>
<p style="text-align: justify; ">Brazil said the study sheds light on certain areas where further cooperation would be welcome. The Brazilian delegate said this cooperation could take into account the dynamic evolution of digital technologies and the “growing cross-border cooperation among libraries and archives.”</p>
<p style="text-align: justify; ">The delegate said some factors pose concrete problems for cross-border cooperation, such as the fact that some 33 WIPO members do not provide exceptions for libraries, and a higher number of countries do not provide exceptions and limitations that “could be deemed adequate” to address the new challenges created by the digital environment, and limitations and exceptions provided by national legislation vary deeply from country to country.</p>
<p style="text-align: justify; ">Now that the research has started with the 2008 report has been updated, we can see that from the universe of the WIPO membership 33 countries still do not provide limitations and exceptions for libraries and archives in their national legislation. A even greater number of WIPO members do not seem to provide limitations and exceptions that could be deemed adequate in order to address the new challenges libraries and archives increasingly face with the emergence of the digital environment</p>
<p style="text-align: justify; ">He also said the study states that technological protection measures (TPM) can have a negative impact on countries’ ability to “legitimately implement exceptions and limitations,” which is a “growing concern as countries seek to better regulate and avoid abuses in the use of TPMs.”</p>
<p style="text-align: justify; ">Crews said the issue of cross-border activity and the difficulty in cooperation between countries induced by the difference in laws is perhaps one of the most important that WIPO could address. Part of the solution to that problem might be a trusted third party facilitating the transfer of copyrighted works, he said. A sharing of resources should be allowed while protecting the interest of right-holders, he said, “so that they can participate in this and encourage this activity as well.”</p>
<p style="text-align: justify; ">Many developing countries keep insisting that the major issue for libraries and archives is the digital era. The digital revolution “has barely begun,” Crews said. “The transformation of technology and the way we communicate and the way we share information is only beginning, so it is important not to prescribe exact details, but … to take some steps to open up the issue,” he said.</p>
<p style="text-align: justify; ">Chile also underlined the fact that the study showed a low number of countries providing exceptions for interlibrary loans.</p>
<p style="text-align: justify; ">According to Crews, using licences for cross-border activities is limited to the countries which the licence covers. The risks of having licences as a solution to cross-border exchange is that “it leaves the terms to private negotiations,” and many countries might not have laws on licensing.</p>
<p style="text-align: justify; "><b>Licensing Agreements</b></p>
<p style="text-align: justify; ">Sweden said the country has a dual system: “traditional limitations” in the law or preservation and replacement, for example, and a licensing agreement system. The two systems run side-by-side smoothly, he said.</p>
<p style="text-align: justify; ">Crews said that the licensing agreement system is not adaptable to all countries. “There are many reasons why it has not been adopted” in some countries, he said, adding, “I would express some concern about requiring it as an international matter.”</p>
<p style="text-align: justify; ">The European Union said exceptions and limitations and licences often coexist well. Those licences are often collectively negotiated, said the EU delegate, and sometimes cover broader uses than the exceptions themselves.</p>
<p style="text-align: justify; ">Crews said conceptually in the law-making process, countries need to reckon with the relationship not only of the rights of owners and the public rights of use or the copyright exceptions, but also the role of licences, and should they be allowed to override an exception that is in the law.</p>
<p style="text-align: justify; ">“That is a tough question,” he said. “It not only goes to the balance of rights,” he added, but lawmakers should decide to what extent an agreement can impede the statute they have worked hard to develop.</p>
<p style="text-align: justify; "><b>Countries Provide Clarifications, New Legislations</b></p>
<p style="text-align: justify; ">Some countries provided clarifications or additions to the study. For example, Saudi Arabia, which was mentioned in the study as one of the countries with no exceptions and limitations, said the 1984 copyright law provides an exception in paragraph 3.</p>
<p style="text-align: justify; ">Ecuador said it is working on a substantial reform of its current intellectual property legislation, including exceptions and limitations for people with disabilities, teaching and educational institutions, and libraries and archives.</p>
<p style="text-align: justify; ">China said it is undergoing the third revision of its copyright law, and Thailand said in November it passed an amendment to its copyright law, on TPMs, and this amendment includes an exemption for the circumvention of TPM for libraries and archives, educational institutes, and public broadcasting organisations.</p>
<p style="text-align: justify; ">Crews said many countries, including the United States and those in the European Union, have exceptions for TPMs, with two basic procedures: an exception that allows the user to “do the act of circumventing the measures to access the content,” and a legal system that calls on the rights holder to provide the means to users to access the content.</p>
<p style="text-align: justify; ">The United States said the US Congress is currently reviewing elements of its domestic copyright law, including library-related exceptions and limitations.</p>
<p style="text-align: justify; ">In November, the Czech Republic introduced a new amendment to its copyright system, the delegate said, “and the amendment brought a new exception for libraries and archives and for other cultural and educational institutions and for public broadcasters,” enabling them to use orphan works existing in their collection, under specific terms and for certain specific uses.</p>
<p style="text-align: justify; "><b>NGO Questions and Comments</b></p>
<p style="text-align: justify; ">The representative of the Electronic Information for Libraries (eIFL) asked Crews how WIPO, as a United Nations agency with a commitment to enhance developing countries’ participation in the global innovation economy, could support countries to be at the forefront of digital developments. The representative also asked how libraries can accommodate their increasing need to send and receive information across border, within the realm of copyright law.</p>
<p style="text-align: justify; ">Many countries have either no exceptions, or have exceptions but very limited applications, which do not cover digital technology, Crews said, adding that WIPO is in a position to shape the next model.</p>
<p style="text-align: justify; ">The International Publishers Association said that legislation is one thing but to know whether they are implemented and how they work is another. The representative advised looking at what kind of practice, and also practical initiatives between stakeholders can solve issues at stake.</p>
<p style="text-align: justify; ">In many cases, the representative said, issues are solved by alternative means, citing collective licensing, but also solutions bringing together stakeholders, he said, which provide space and flexibility for adaptation and further change. On cross-border document delivery, he said, “It is not true that documents are not crossing continents or crossing borders.” He explained that there are many alternative ways of receiving content across borders.</p>
<p style="text-align: justify; ">Crews said he is supportive of alternatives outside of the law, however, they might not be optimal solutions, he said. In particular, it often takes no less time to develop those alternatives than writing law, he said. He added that those alternatives, such as licences, are available only with respect to certain types of works, whereas statues apply to all types of works.</p>
<p style="text-align: justify; ">“The private extra-legal systems are not going to solve all of the issues,” said Crews.</p>
<p style="text-align: justify; ">The International Federation of Library Associations and Institutions said the United Kingdom reform of its copyright law includes for the first time provisions that prevent contracts and licences from overriding the exceptions and limitations enjoyed by libraries and archives for non-commercial uses.</p>
<p style="text-align: justify; ">The Center for Internet and Society (India) asked about the interoperability of limitations and exceptions to allow for easier trans-boundary movement of works. Crews said the trans-border concept seldom appears in library exceptions. Trans-border sometimes is governed by copyright law and sometimes by some other part of national law, such as import and export, he said. Some degree of harmonisation can help with interoperability, he said.</p>
<p style="text-align: justify; ">In general terms, and following an intervention by the TransAtlantic Consumer Dialogue mentioning public involvement in the discussions, Crews said, “We are all copyright owners and we are all users of other people’s copyrights to some extent.”</p>
<p style="text-align: justify; ">The public does not realise that they are all owners and users of copyrighted works on a daily basis, he said, and they need to become participants in the process.</p>
<p style="text-align: justify; "><i>[Update:]</i></p>
<p style="text-align: justify; ">Knowledge Ecology International asked if the periodical revision of the Berne Convention’s standards for copyright exceptions, which ended in 1971, should be resumed. The KEI representative also asked whether the copyright three-step test contained in the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) applies to specific limitations and exceptions to remedies for infringement, in part III of TRIPS (Enforcement of Intellectual Property Rights).</p>
<p style="text-align: justify; ">Crews answered that the three-step test does not apply to the remedies, or other matters. The test is on “its own terms applicable to the limitations and exceptions,” he said.</p>
<p style="text-align: justify; ">On the revision on the Berne Convention, Crews said “the answer is yes” but it is a “bigger subject than we are convened here today to discuss.”</p>
<p style="text-align: justify; ">KEI also mentioned a Spanish tax which “apparently” is taken on snippets from news organisations and asked if this tax does not violate the two mandatory exceptions in the Berne Convention, which are news of the day, and quotations.</p>
<p style="text-align: justify; ">Crews said the issue might be about the interrelationship of copyright with other areas of the law. The Spanish tax mentioned might be relative to a tax law, he said.</p>
<p>
For more details visit <a href='https://cis-india.org/a2k/news/ip-watch-catherine-saez-december-18-2014-wipo-study-on-copyright-exceptions-stimulates-broad-discussion-with-author'>https://cis-india.org/a2k/news/ip-watch-catherine-saez-december-18-2014-wipo-study-on-copyright-exceptions-stimulates-broad-discussion-with-author</a>
</p>
No publisherpraskrishnaIntellectual Property RightsAccess to KnowledgeWIPO2014-12-27T14:33:46ZNews Item29th Session of the WIPO SCCR: CIS Intervention : Questions to Prof. Kenneth Crews on his Updated Study on Limitations and Exceptions for Libraries and Archives
https://cis-india.org/a2k/blogs/cis-intervention-questions-to-prof-kenneth-crews-on-limitations-and-exceptions-for-libraries-and-archives
<b>Nehaa Chaudhari on behalf of the Centre for Internet and Society (CIS) on December 11 during one of the sessions in WIPO asked two questions to Prof. Kenneth Crews. </b>
<p style="text-align: justify; ">In 2008, WIPO commissioned <a class="external-link" href="http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=109192">a study on Limitations and Exceptions for Libraries and Archives</a>.This was prepared by Prof. Kenneth Crews. On December 10-11, 2014, at SCCR 29, Prof. Crews presented <a class="external-link" href="http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=109192">an updated (2014) version of this study</a> and addressed comments and questions from Member States and Observers.</p>
<hr />
<p style="text-align: justify; ">CIS Statement:<br /><br />Thank you, Madam Chair.<br /><br />Thank you very much, Professor Crews for your presentation yesterday, and for this comprehensive study on Limitations and Exceptions for Libraries and Archives, very timely, and very important to us, from the perspective of access to knowledge and information.<br /><br />I have two questions:</p>
<p style="text-align: justify; ">My first question: Did you find, in your examination, that, in terms of/ or on the question of limitations and exceptions, did you find, that there was an equal or equitable treatment of digital resources in comparison to resources available in more traditional formats? And if not, where do you think that lever of change lies to ensure that fair dealing provisions are extended equitably to the digital environment as well?<br /><br />My second question, is on the interoperability of Limitations and Exceptions: Given that copyright is a very national thing, and, as your study has also well established, countries have a whole range of very diverse approaches and practices on Limitations and Exceptions; but also given that we live in an increasingly globalized world, we need a system that is interoperable with respect to the trans-boundary movement of works, with as little friction as possible, both- in the physical as well as in the digital environments. So, what did your examination show us of how interoperable- or not- the range of Limitations and Exceptions actually are?<br /><br />Those are my two questions.<br /><br />Thank you very much.</p>
<h3 style="text-align: justify; ">Response by Prof. Kenneth Crews:</h3>
<p style="text-align: justify; ">Thank you very much. On the second question, I'm afraid I might mind myself only repeating some of the concepts that have already said about transborder and really about in the statutes anyway, a lack of recognition of transborder. And the transborder concept, so I will add this piece to the conversation, the transborder concept seldom if ever appears in these library exceptions to the extent that we are going to find it in copyright law or some other part of a national law it may very well be over in the import/export kind -- area of the law. But that also goes to the interoperability which think we have answered a few times just this sort -- the lack of exact harmonization and as others have reminded me I have said before that I may not be a fan of exact precise harmonization and indeed it may not be possible or even desirable. But some degree of harmonization can help with that interoperability. Interesting question, you do -- you did raise a new point about digital. We have talked several times in this conversation about use of digital technologies in the exercise of the rights of use under the exception. However what I think you were asking about is the ability to apply the exception to works that are digital in the first place that are what we call born digital and that's a very interesting question. The statutes do not address that. Sometimes you will see a statute that refers to -- that says it applies to all these different kinds of works but not computer software. That tells you somebody was thinking it shouldn't apply to software but somehow software is different and there are problems with that. We know that software has changed and been incorporated in to many different works. But we generally see a statute almost always see a statute that's about books or archival materials or some other kind of work without specifying the technology. So can it apply to an e-book in addition to the paper book? The statutes don't go there. They don't sort that out. So in my common law tradition I look at that and see that as a question for interpretation. In a civil code system I might look at it and see it a little bit more firmly for lack of a better word about what the scope of that word book, for example, really means.</p>
<p style="text-align: justify; ">Really good question. And it is one that the statutes have not picked up on.</p>
<p style="text-align: justify; ">Thank you very much.</p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/cis-intervention-questions-to-prof-kenneth-crews-on-limitations-and-exceptions-for-libraries-and-archives'>https://cis-india.org/a2k/blogs/cis-intervention-questions-to-prof-kenneth-crews-on-limitations-and-exceptions-for-libraries-and-archives</a>
</p>
No publishernehaaIntellectual Property RightsAccess to KnowledgeWIPO2014-12-14T02:56:46ZBlog EntrySCCR 29 Libraries, Archives and Public Interest NGOs in Q&A with Dr. Crews
https://cis-india.org/a2k/news/knowledge-ecology-international-sccr-29-december-11-2014-libraries-archives-public-interest-ngos-q-a-with-dr-crews
<b>While the many publishers representatives took the floor to explain that there are truly no problems with limitations and exceptions for libraries and archives (and anyway according to them if there are problems that can be solved with licenses), libraries & archives as well as public interest groups make their case: the committee must continue its work on limitations and exceptions for libraries and archives and find solutions.</b>
<p style="text-align: justify; ">This blog entry was <a class="external-link" href="http://keionline.org/node/2147">published on the website of Knowledge Ecology International</a> on December 11, 2014.</p>
<hr />
<p style="text-align: justify; ">Here are excerpts from some of the interventions:</p>
<p style="text-align: justify; "><b>Hasmik Galstyan, Yerevan, Armenia speaking for the Electronic Information for LIbraries (eIFL.net)</b>:</p>
<blockquote style="text-align: justify; ">>> EIFL: I'm speaking on behalf of the electronic information for libraries and that works with libraries and library con sort Sha in more than 60 developing and transition economy countries. We thank the Secretariat for commissioning the updated study that provided a comprehensive overview in the IP law. We thank professor crews for his clear presentation.
<p>The report contains positives and negatives from our Point of View. The positives include the fact that law makers are to some degree responding to the need for legal change and a small number of countries have over the last six years created new exceptions especially with regard to digital services. These changes are to be commended. On the other hand, it is discouraging that 18% of countries including five EIFL partner countries have new exceptions for libraries and over one-third located almost totally in the developing world still do not have an exception allowing libraries to make copies of their works for the users. The trend regarding digital library services doesn't look good. Even for states that introduce amendment 2008 digital is barred in 50% in some cases for preservation and it states with anti-circumvention protection while some have applied library exceptions as mentioned by professor crews half of the countries have provided no library exceptions. So while a small number of countries are moving ahead and reforming their copyright laws the digital divide is being perpetuated at a time when libraries everywhere are adopting new technologies and Developing Countries are rapidly moving to mobile. My question is how can the situation be addressed. How can WIPO as an UN agency with a commitment to work with Developing Countries to enhance their participation in the global innovation economy most effectively support countries to be at the forefront of digital developments. To ensure that our libraries that are working hard to support education and development are not operating with one hand tied behind our backs.</p>
<p>My second question is considering that between 2008 and 2014 only a handful of countries have been implemented made changes benefitting libraries and their users and imagining that the current rate of support for a change stays the same, how long do you think it will take before all WIPO Member States have exceptions good enough to support library activities in the Digital Age? And the last question, please. Libraries collections contain materials of unique cultural and historical significance to people in other countries to the national border changes shared languages and a host of other reasons. In addition collaboration among researchers today is international. Therefore libraries increasingly need to send and receive information across borders. In our examination of copyright laws how do they accommodate or not these activities? Thank you very much.</p>
</blockquote>
<p style="text-align: justify; ">The libraries representatives were echoed by archives representatives. <b>William Maher, University of Illinois at Urbana-Champaign, representing the Society of America Archivists</b>.</p>
<blockquote style="text-align: justify; ">Thank you for producing a study that brings such clarity to the quite confusing maze of the laws that librarians and archivists must work with. Archives has been mentioned a lot over the past couple of days but I am only the second archivist to be addressing this issue at SCCR. Archivists know that the general populations does not understand what archives are and how and why we do what we do. However, it seems reasonable that those who draft copyright laws should understand that archives are fundamentally about the unpublished legacy of humankind. Yet, when looking at the 70 or so countries in the 2014 study, archives are seriously overlooked–Despite whatever minimal improvement for libraries, archives have been left out of 53% of the exceptions for preservation and 72 % of the exceptions for copying for research. Is this absence of provisions also reflected in the fact that the laws lack definitions of archives? Can this oversight be read as meaning that archives do not matter to the nations copyright system, or does it mean that copyright should not matter to archives?<br /> >> KENNETH CREWS: Well, thank you very much. Yes, I think you have also heard me speak very strongly about the distinct interests of archives and maybe I should say even more important the distinct interests of our citizens in archives and in the works that they are -- the work that they are doing. And their ability to use these copyright provisions for the benefit of the country and of its citizens. I certainly can't emphasize that enough. So I -- I'm not going to read in to the lack of reference to archives. The kind of meaning that you are asking about. But instead I think we can certainly say that it makes you wonder if archives have been recognized by the drafters of many of these statutes and if in the case of following through on the example of the models influencing domestic law it really is have archives come to the attention of the individuals who have been responsible for developing some of the models. So I believe very strongly that the future statutes in individual countries and the drafting of different kinds of instruments or models that may come from WIPO or any other organization need to encompass archives. And the -- because the preservation and research access and other kinds of beneficial uses of archival material goes directly to the preservation of the culture and the history of our countries and our people. And it is vital that we be able to do that and keep archives at the table. And I thank you very much for being here.</blockquote>
<p style="text-align: justify; ">Another stakeholder, <b>Nehaa Chaudhari, Lawyer, Programme Officer at the Centre for Internet and Society</b> questioned Dr. Crews on provisions regarding digital works:</p>
<blockquote style="text-align: justify; ">CIS: Thank you Madame Chair. Thank you very much professor crews for your presentation yesterday and this comprehensive study on libraries and archives. Very timely and very important to us from the [...] access to knowledge and information most critically.
<p>I have two questions. My first question: did you find in your examination that in terms of or on the question of limitations and exceptions did you find that there was an equal or equitable treatment of digital resources in comparison to resources available in more traditional formats? And if not, where do you think that are lever of change lies to ensure that fair use of fair dealing provisions are extended e equitably to the digital environment as well.</p>
<p>My second question is on the interoperability of limitations and exceptions. Given that copyright is a very national thing and as your study has also well established countries have a whole range of veridy veers approaches and practices on limitations and exceptions. But also given the fact that we live in an increasingly globalized world we need a system that is interoperable with respect to the transboundary movement of works with as little fiction as possible. Again both in the physical as well as in the digital environments. So what did your examination show of how interoperable or not the range of limitations and exceptions actually have. Those are my two questions. Thank you very much.</p>
<p>> KENNETH CREWS: Thank you very much. On the second question, I'm afraid I might mind myself only repeating some of the concepts that have already said about transborder and really about in the statutes anyway, a lack of recognition of transborder. And the transborder concept, so I will add this piece to the conversation, the transborder concept seldom if ever appears in these library exceptions to the extent that we are going to find it in copyright law or some other part of a national law it may very well be over in the import/export kind -- area of the law. But that also goes to the interoperability which think we have answered a few times just this sort -- the lack of exact harmonization and as others have reminded me I have said before that I may not be a fan of exact precise harmonization and indeed it may not be possible or even desirable. But some degree of harmonization can help with that interoperability. Interesting question, you do -- you did raise a new point about digital. We have talked several times in this conversation about use of digital technologies in the exercise of the rights of use under the exception. However what I think you were asking about is the ability to apply the exception to works that are digital in the first place that are what we call born digital and that's a very interesting question. The statutes do not address that. Sometimes you will see a statute that refers to -- that says it applies to all these different kinds of works but not computer software. That tells you somebody was thinking it shouldn't apply to software but somehow software is different and there are problems with that. We know that software has changed and been incorporated in to many different works. But we generally see a statute almost always see a statute that's about books or archival materials or some other kind of work without specifying the technology. So can it apply to an e-book in addition to the paper book? The statutes don't go there. They don't sort that out.</p>
<p>So in my common law tradition I look at that and see that as a question for interpretation. In<br /> a civil code system I might look at it and see it a little bit more firmly for lack of a better word<br /> about what the scope of that word book, for example, really means. Really good question. And it is one that the statutes have not picked up on. Thank you very much.</p>
</blockquote>
<p style="text-align: justify; ">Finally, the <b>TransAtlantic Consumer Dialogue (TACD) representative David Hammerstein</b> made the following political and philosophical intervention:</p>
<blockquote style="text-align: justify; ">Thank you very much. Thank you Mr. Crews for your presentation. I would like to say a few general words. Internet and the digital obviously is global. Copyright laws are national. Economic power is global. Politics is national. This is very relevant to our discussion.
<p>And other relevant factor is that copyright law and the idea of exceptions and limitations are very complicated. It is for small circles of specialists usually and when these things come out in to the open to the greater public opinion things change radically. I can only remind peep of this room for the debate on ACTA or the debate for SOPA and PIPA in the United States. When these issues come out of the closet things are seen in a very, very different light. The opinion of copyright specialist especially where I know in the European Union and totally different with the opinions of the general public. And the general public the vast majority are frustrated by copyright law because social reality that applies de facto and I am not talking about piracy, I am talking about de facto flexibilities and exceptions and limitations are very, very far from the legal reality of the copyright. The vast majority of Europeans would like to have a harmonized and mandatory exceptions and limitations that we are speaking about, whether it be more text and data mining, whether it be for libraries whether it be cross-border, whether it be preservation of cultural heritage, they would like that. Now the opinions of the often of political structures are captured by certain experts and very special groups that are interested in what they want. Especially the European Union is at a cross roads and we can see it politically because around a year ago the European Union launched a process called lnss for Europe where some of the ideas presented by some of the industry people were brought up memorandums of understanding and that the solution to exceptions and limitations for these issues could be found in voluntary measures between stakeholders. This was a failure. This was a terrible failure. We had letters many many many Nobel Prize winners who are asking tore a legal exceptions and limitations for text and data mining for other scientific research and we think that many orphan works legislation does not go far enough. Et cetera, et cetera, self generated user content. How can that Democratic debate take place and these cross roads can be made a positively by real decisions. And I think those real decisions have to be deal with the public dough minute yon, what is public knowledge and things about the commons, we are talking about the knowledge commons here need to have a democratic debate and need to have democratic management. Now this could be done by very delayed mediation to end up in the hands of a few copyright experts that are very close to very narrow industry that I think is defending outdated models or we could open a democratic debate where exceptions and limitations for libraries and archives for preservation for scientific limitation would be beyond borders. Even inside the European Union today it is almost hard to imagine there to be harmonization in the internal market. And the people making money prefer a fragmented market even though European site sents want a harmonized market for these things. My question is impossible question. I am sorry to put you on spot of how to open up the door, how to bring this issue out of the closet and how to involve millions of people who really want that change. Thank you very much</p>
</blockquote>
<p>
For more details visit <a href='https://cis-india.org/a2k/news/knowledge-ecology-international-sccr-29-december-11-2014-libraries-archives-public-interest-ngos-q-a-with-dr-crews'>https://cis-india.org/a2k/news/knowledge-ecology-international-sccr-29-december-11-2014-libraries-archives-public-interest-ngos-q-a-with-dr-crews</a>
</p>
No publisherpraskrishnaIntellectual Property RightsAccess to KnowledgeWIPO2014-12-27T16:54:58ZNews ItemCIS Submission to the Expert Committee: Comment on the Broadening of Definitions in the Proposed Broadcast Treaty Compared to Other International Conventions
https://cis-india.org/a2k/blogs/the-broadening-of-definitions-in-the-proposed-broadcast-treaty-compared-to-other-international-conventions
<b>This is a submission made by Nehaa Chaudhari on behalf of the Centre for Internet and Society to the Expert Committee on the Broadcast Treaty constituted by the Ministry of Information and Broadcasting, Government of India. This submission compares the definitions of various terms in the Proposed Treaty for the Protection of Broadcasting Organizations that is being deliberated at WIPO's SCCR at the moment, and definitions for these terms that are already present in existing international instruments. </b>
<p style="text-align: justify; ">Special thanks to CIS intern, Amulya Purushothama for her research and writing on this subject. <i>While Amulya was acknowledged as the co author in the actual submission itself, the blurb didn't say so and this has now been changed</i>. Download the file of <a href="https://cis-india.org/a2k/blogs/cis-submission-to-expert-committee.pdf" class="external-link">CIS submission here</a>.</p>
<hr />
<p style="text-align: justify; "><b>Introduction</b></p>
<p style="text-align: justify; ">This note analyses the differences in definitional clauses across six documents, the proposed Treaty on the Protection of Broadcasting Organisations <a href="#_ftn1" name="_ftnref1">[1]</a> <b>("Broadcast Treaty")</b>,<b> </b>the Proposal on the Draft Treaty on the Protection of Broadcasting Organization- The Proposal by the Delegation of South Africa<a href="#_ftn2" name="_ftnref2">[2]</a> <b>("Proposal by South Africa"), </b>The WIPO Copyright Treaty, 1996, the WIPO Performances and Phonograms Treaty,1996 <b>("WPPT")</b>, the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, 1961 <b>("The Rome Convention")</b>, and the Beijing Treaty on Audiovisual Performances, 2012 <b>("The Beijing Treaty")</b></p>
<p style="text-align: justify; ">The definitions for signal, broadcasting, broadcasting organization, retransmission, fixation, communication to the public and rights management information will be studied in detail as the definitions for these concepts has varied somewhat through the years. The rest of the definitions can be found in a detailed table that follows.</p>
<p style="text-align: justify; ">The argument here is simply that by subtly broadening the definition of certain terms, the broadcast treaty grants a higher level of protection to broadcasting organization, and that these protections could possibly extend to covering the content underlying the signals.</p>
<p style="text-align: justify; "><b>1. </b><b>Signal</b></p>
<p style="text-align: justify; ">The proposed Broadcast Treaty defines a signal as an "electronically generated carrier consisting of sounds or images or sounds and images or representations thereof whether encrypted or not"<a href="#_ftn3" name="_ftnref3">[3]</a>, the alternative to this provision defines a signal as an "electronically generated carrier capable of transmitting a broadcast cablecast"<a href="#_ftn4" name="_ftnref4">[4]</a>. The proposal by South Africa, on the other hand, defines a signal as "an electric current or electromagnetic field used to convey data". Clearly the definition in the Broadcast Treaty could be extended to cover the content underlying the signal and is not as technologically neutral as the alternative definitions.</p>
<p style="text-align: justify; "><b>2. </b> <b>Broadcasting </b></p>
<p style="text-align: justify; ">The proposed Broadcast Treaty defines broadcast as the "transmission of a signal by a broadcasting organization for reception by the public"<a href="#_ftn5" name="_ftnref5">[5]</a>, an alternative to this excludes signals sent over computer networks from the definition of a broadcast, <a href="#_ftn6" name="_ftnref6">[6]</a> another alternative defines broadcasting as "the transmission by wireless means for the reception by the public of sounds or of images or of images and sounds or of the representations thereof". This definition includes satellite transmission, wireless transmission of encrypted signals where the means for decrypting are provided to the public by the broadcasting organization or with its consent. Transmission over computer networks is excluded from this definition as well.<a href="#_ftn7" name="_ftnref7">[7]</a> This mirrors definitions of broadcasting set out in the WPPT<a href="#_ftn8" name="_ftnref8">[8]</a>, the Rome Convention<a href="#_ftn9" name="_ftnref9">[9]</a> and the Beijing Treaty<a href="#_ftn10" name="_ftnref10">[10]</a>. The proposal by South Africa defines "broadcasting" as the process whereby "the output signal of a broadcasting organization is taken from the point of origin, being the point where such signal is made available in its final content format and is conveyed to any broadcast target area by means of electronic communications" and "broadcast" is construed accordingly. Clearly the proposed definition under the Broadcast Treaty is less technologically neutral as compared to the proposal by South Africa. The proposed definition under the Broadcast Treaty also does not limit the protection granted by the treaty to the signal and unlike the proposal by South Africa does not ensure that definition excludes the underlying content being transmitted by the signal.</p>
<p style="text-align: justify; "><b>3. </b><b>Broadcasting Organisations</b></p>
<p style="text-align: justify; ">The proposed Broadcast Treaty defines a broadcasting organization as "the legal entity that takes the initiative for packaging assembling and scheduling program content for which it has, where necessary, been authorized by rights holders and takes the legal and editorial responsibility for the communication to the public of everything which is included in its broadcast signal." Or alternatively<a href="#_ftn11" name="_ftnref11">[11]</a>, considers broadcasting organisations and cablecasting organisations as one and the same and defines them as "the legal entity that takes the initiative and has the responsibility for the transmission to the public of sounds or of images or of images and sounds or of the representation thereof and the assembly and scheduling of the content of the transmission." The proposal by South Africa defines a broadcasting organization as the "legal entity that has the responsibility for packaging, assembly and/or scheduling of program content for which it has legitimate license. Or rights of use for the transmission to the public, sections of the public or subscribers in the form of an unencrypted or encrypted output signal containing sounds, visual images or other visible signals whether with or without accompanying sounds". Clearly, in stark contrast to the proposed Broadcast Treaty, the proposal by South Africa ensures that cablecasting organisations aren't included within the definition of broadcasting organisations, this definition is also by far the most technologically neutral and ensures adequate protection for broadcasting organisations on all broadcasting platforms.</p>
<p style="text-align: justify; "><b>4. </b><b>Retransmission</b></p>
<p style="text-align: justify; ">The proposed Broadcast Treaty defines "retransmission" as "the transmission by any means by any person other than the original broadcasting organization for reception by the public whether simultaneous or delayed";<a href="#_ftn12" name="_ftnref12">[12]</a> or alternatively defines rebroadcast as "the simultaneous transmission for the reception by the public of a broadcast or a cablecast by any other person than the original broadcasting organization"; even simultaneous transmission of a rebroadcast is understood to be a rebroadcast under this definition. <a href="#_ftn13" name="_ftnref13">[13]</a></p>
<p style="text-align: justify; ">Under a further alternative<a href="#_ftn14" name="_ftnref14">[14]</a> retransmission is defined as "the simultaneous transmission for the reception by the public by any means of a transmission … by any other person than the original broadcasting or cablecasting organization" this definition of retransmission also includes simultaneous transmission of a retransmission.</p>
<p style="text-align: justify; ">To contrast to this, the Rome convention defines rebroadcasting as the simultaneous broadcasting by one broadcasting organization of the broadcast of another broadcasting organization.<a href="#_ftn15" name="_ftnref15">[15]</a> Clearly a higher level of protection is granted to broadcasting organisations under the proposed Broadcast Treaty, one that was so far not guaranteed to them by international conventions.</p>
<p style="text-align: justify; "><b>5. </b><b>Fixation</b></p>
<p style="text-align: justify; ">The proposed Broadcast Treaty defines fixation as "the embodiment of sounds or images or sounds and images or representations thereof from which they can be perceived , reproduced or communicated through a device" <a href="#_ftn16" name="_ftnref16">[16]</a> <a href="#_ftn17" name="_ftnref17">[17]</a>,the WPPT defines fixation as "the embodiment of sounds, or of the representations thereof, from which they can be perceived, reproduced or communicated through a device";<a href="#_ftn18" name="_ftnref18">[18]</a> and the Beijing Treaty defines audiovisual fixation as "the embodiment of moving images, whether or not accompanied by sounds or by the representations thereof, from which they can be perceived reproduced or communicated through a device".<a href="#_ftn19" name="_ftnref19">[19]</a> In this capacity, the definitions proposed in the Broadcast Treaty seem to be in line with the earlier international treaties.</p>
<p style="text-align: justify; "><b>6. </b><b>Communication to the Public</b></p>
<p style="text-align: justify; ">The proposed Broadcast Treaty defines communication to the public as "any transmission or retransmission to the public of a broadcast signal or a fixation thereof by any medium or platform".<a href="#_ftn20" name="_ftnref20">[20]</a>or alternatively as "making the transmissions … audible or visible or audible and visible in places accessible to the public.<a href="#_ftn21" name="_ftnref21">[21]</a> Whereas the WPPT defined communication to the public as "the transmission to the public by any medium, otherwise than by broadcasting, of sounds of a performance or the sounds or the representations of sounds fixed in a phonogram… including making the sounds or representations of sounds fixed in a phonogram audible to the public."<a href="#_ftn22" name="_ftnref22">[22]</a> The Beijing Treaty defined communication to the public as "the transmission to the public by any medium otherwise than by broadcasting, of an unfixed performance or of a performance fixed in an audio visual fixation… "communication to the public" includes making a performance fixed in an audiovisual fixation audible or visible or audible and visible to the public." <a href="#_ftn23" name="_ftnref23">[23]</a> Clearly the definition has been broadened under the proposed treaty, which makes it plausible for the protection granted to broadcasters to cover the content underlying the signal as well.</p>
<p style="text-align: justify; "><b>7. </b><b>Rights Management Information</b></p>
<p style="text-align: justify; ">The proposed Broadcast Treaty defines rights management information as "information that identifies the broadcasting organization, the broadcast, the owner of any right in the broadcast, or information about the terms and conditions of use of the broadcast and any numbers or codes that represent such information when any of these items of information is attached to or associated with the broadcast or the pre broadcast signal or its use in accordance with Article 6."<a href="#_ftn24" name="_ftnref24">[24]</a> The WIPO Copyright Treaty, 1996, defines it as "information which identifies the work, the author of the work, the owner of any right in the work, or information about the terms and conditions of use of the work, and any numbers or codes that represent such information, when any of these items of information is attached to a copy of a work or appears in connection with the communication of a work to the public."<a href="#_ftn25" name="_ftnref25">[25]</a></p>
<p style="text-align: justify; ">The WPPT extends the same definition to performances and performers as it defines rights management information as "information which identifies the performer, the performance of the performer, the producer of the phonogram, the phonogram, the owner of any right in the performance or phonogram, or information about the terms and conditions of use of the performance or phonogram, and any numbers or codes that represent such information, when any of these items of information is attached to a copy of a fixed performance or a phonogram or appears in connection with the communication or making available of a fixed performance or a phonogram to the public."<a href="#_ftn26" name="_ftnref26">[26]</a> And the Beijing Treaty defines rights management information as "information which identifies the performer, the performance of the performer or the owner of any right in the performance or information about the terms and conditions of use of the performance, and any numbers or codes that represent such information, when any of these items of information is attached to a performance fixed in an audiovisual fixation."<a href="#_ftn27" name="_ftnref27">[27]</a></p>
<p style="text-align: justify; ">Clearly the current treaty extends the protection offered to rights management information to pre-broadcasting signals in addition to broadcast signals, this represents a higher level of protection granted to broadcasters under the proposed Broadcast Treaty.</p>
<p style="text-align: justify; "><b> </b></p>
<p style="text-align: justify; "><b> </b></p>
<p style="text-align: justify; "><b>Detailed Table on Definitions in International Treaties</b></p>
<table class="grid listing">
<tbody>
<tr>
<td>
<p><b>Definition</b></p>
</td>
<td>
<p><b>Broadcast Treaty 27/2 rev</b></p>
</td>
<td>
<p><b>Broadcast Treaty Proposal by South Africa</b></p>
<p><b>WIPO/CR/Consult/GE/11/2/2</b></p>
</td>
<td>
<p><b>WIPO Copyright Treaty, 1996</b></p>
</td>
<td>
<p><b>WIPO Performances and Phonograms Treaty,1996 </b></p>
</td>
<td>
<p><b>Rome Convention, 1961</b></p>
</td>
<td>
<p><b>Beijing Treaty on Audiovisual Performances, 2012</b></p>
</td>
</tr>
<tr>
<td>
<p><b>Signal</b></p>
</td>
<td>
<p>Article 5, Alternative A, 5(a): "signal" is an electronically generated carrier consisting of sounds or images or sounds and images or representations thereof, whether encrypted or not;</p>
<p>Alternative to (a), "signal" means an electronically generated carrier capable of transmitting a broadcast or cablecast</p>
</td>
<td>
<p>"signal" is an electric current or electromagnetic field used to convey data;</p>
</td>
<td></td>
<td></td>
<td></td>
<td></td>
</tr>
<tr>
<td>
<p><b>Broadcast</b></p>
</td>
<td>
<p>Article 5, Alternative A : Article 5 (b): "broadcast" means the transmission of a signal by or on behalf of a broadcasting organization for reception by the public;</p>
<p>Alternative to (b): "broadcast" means the transmission of a set of electronically generated signals by wireless and carrying a specific program for reception by the general public, broadcast shall not be understood as including transmission of such a set of signals over computer networks.</p>
<p>Alternative B for Article 5, Article 5 (a) "broadcasting" means the transmission by wireless means for the reception by the public of sounds or of images or of images and sounds or of the representations thereof; such transmission by satellite is also "broadcasting". Wireless transmission of encrypted signals is "broadcasting" where the means for decrypting are provided to the public by the broadcasting organization or with its consent. "broadcasting" shall not be understood as including transmissions over computer networks</p>
</td>
<td>
<p>"broadcasting" means the process whereby the output signal of a broadcasting organization is taken from the point of origin, being the point where such signal is made available in its final content format and is conveyed to any broadcast target area by means of electronic communications and "broadcast" is construed accordingly"</p>
</td>
<td></td>
<td>
<p>Article 2(f): "broadcasting" means the transmission by wireless means for public reception of</p>
<p>sounds or of images and sounds or of the representations thereof; such transmission by</p>
<p>satellite is also "broadcasting"; transmission of encrypted signals is "broadcasting" where the</p>
<p>means for decrypting are provided to the public by the broadcasting organization or with its</p>
<p>consent;</p>
</td>
<td>
<p>Article 3 (f): "broadcasting" means the transmission by wireless means for public reception of sounds or of</p>
<p>images and sounds;</p>
</td>
<td>
<p>Article 2(c): "broadcasting" means the transmission by wireless means for public reception of sounds or of images and sounds or of the representations thereof; such transmission by satellite is also "broadcasting", transmission of encrypted signals is "broadcasting where the means for decrypting are provided to the public by the broadcasting organization or with its consent.</p>
</td>
</tr>
<tr>
<td>
<p><b>Broadcasting Organization</b></p>
</td>
<td>
<p>Article 5, Alternative A to Article 5 (c): "broadcasting organization" means the legal entity that takes the initiative for packaging assembling and scheduling program content for which it has, where necessary, been authorized by rights holders and takes the legal and editorial responsibility for the communication to the public of everything which is included in its broadcast signal.</p>
<p>Alternative B for Article 5, Article 5 (c): "broadcasting organization" and "cablecasting organization" mean the legal entity that takes the initiative and has the responsibility for the transmission to the public of sounds or of images or of images and sounds or of the representation thereof and the assembly and scheduling of the content of the transmission.</p>
</td>
<td>
<p>"broadcasting organization" means the legal entity that has the responsibility for packaging, assembly and/or scheduling of program content for which it has legitimate license. Or rights of use for the transmission to the public, sections of the public or subscribers in the form of an unencrypted or encrypted output signal containing sounds, visual images or other visible signals whether with or without accompanying sounds.</p>
</td>
<td></td>
<td></td>
<td></td>
<td></td>
</tr>
<tr>
<td>
<p><b>Retransmission</b></p>
</td>
<td>
<p>Article 5, Alternative A to Article 5(d): "retransmission" means the transmission by any means by any person other than the original broadcasting organization for reception by the public whether simultaneous or delayed;</p>
<p>Alternative to (d) rebroadcast means the simultaneous transmission for the reception by the public of a broadcast or a cablecast by any other person than the original broadcasting organization; simultaneous transmission of a rebroadcast shall be understood as well to be a rebroadcast.</p>
<p>Alternative B for Article 5, Article 5 (d): "retransmission" means the simultaneous transmission for the reception by the public by any means of a transmission referred to in provisions (a) or (b) of this article by any other person than the original broadcasting or cablecasting organization; simultaneous transmission of a retransmission shall be understood as well to mean a retransmission.</p>
</td>
<td></td>
<td></td>
<td></td>
<td>
<p>Article 3(g): "rebroadcasting" means the simultaneous broadcasting by one broadcasting organization of the</p>
<p>broadcast of another broadcasting organization.</p>
</td>
<td></td>
</tr>
<tr>
<td>
<p><b>Fixation</b></p>
</td>
<td>
<p>Article 5, Alternative A to Article 5 (e) "fixation" means the embodiment of sounds or images or sounds and images or representations thereof from which they can be perceived , reproduced or communicated through a device</p>
<p>Alternative B for Article 5, Article 5 (f) "fixation" means the embodiment of sounds or of images or of images and sounds or of the representations thereof from which they can be perceived, reproduced or communicated through a device.</p>
</td>
<td></td>
<td></td>
<td>
<p>Article 2(c): "fixation" means the embodiment of sounds, or of the representations thereof, from</p>
<p>which they can be perceived, reproduced or communicated through a device;</p>
</td>
<td></td>
<td>
<p>Article 2(b): "audiovisual fixation" means the embodiment of moving images, whether or not accompanied by sounds or by the representations thereof, from which they can be perceived reproduced or communicated through a device.</p>
</td>
</tr>
<tr>
<td>
<p><b>Communication to the Public</b></p>
</td>
<td>
<p>Article 5, Alternative A to Article 5 (f): "communication to the public" means any transmission or retransmission to the public of a broadcast signal or a fixation thereof by any medium or platform.</p>
<p>Alternative B for Article 5, Article 5 (e): "communication to the public" means making the transmissions referred to in provisions (a), (b) or (d) of this article audible or visible or audible and visible in places accessible to the public.</p>
</td>
<td></td>
<td></td>
<td>
<p>Article 2(g): "communication to the public" of a performance or a phonogram means the</p>
<p>transmission to the public by any medium, otherwise than by broadcasting, of sounds of a</p>
<p>performance or the sounds or the representations of sounds fixed in a phonogram. For the</p>
<p>purposes of Article 15, "communication to the public" includes making the sounds or</p>
<p>representations of sounds fixed in a phonogram audible to the public.</p>
</td>
<td></td>
<td>
<p>Article 2(d): "Communication to the public of a performance means the transmission to the public by any medium otherwise than by broadcasting, of an unfixed performance or of a performance fixed in an audiovisual fixation. For the purposes of Article 11, "communication to the public" includes making a performance fixed in an audiovisual fixation audible or visible or audible and visible to the public.</p>
</td>
</tr>
<tr>
<td>
<p><b>Pre-broadcast Signal</b></p>
</td>
<td>
<p>Article 5, Alternative A to Article 5 (g): "pre broadcast signal" means a transmission prior to broadcast that a broadcasting organization intends to include in its program schedule, which is not intended for direct reception by the public</p>
</td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
</tr>
<tr>
<td>
<p><b>Rights Management Information</b></p>
</td>
<td>
<p>Article 5, Alternative A to Article 5 (h) "rights management information" means information that identifies the broadcasting organization, the broadcast, the owner of any right in the broadcast, or information about the terms and conditions of use of the broadcast and any numbers or codes that represent such information when any of these items of information is attached to or associated with the broadcast or the pre broadcast signal or its use in accordance with Article 6.</p>
</td>
<td></td>
<td>
<p>Article 12(2): "rights management information" means information which</p>
<p>identifies the work, the author of the work, the owner of any right in the work, or information</p>
<p>about the terms and conditions of use of the work, and any numbers or codes that represent</p>
<p>such information, when any of these items of information is attached to a copy of a work or</p>
<p>appears in connection with the communication of a work to the public</p>
</td>
<td>
<p>Article 19(2): "rights management information" means information which</p>
<p>identifies the performer, the performance of the performer, the producer of the phonogram,</p>
<p>the phonogram, the owner of any right in the performance or phonogram, or information</p>
<p>about the terms and conditions of use of the performance or phonogram, and any numbers or</p>
<p>codes that represent such information, when any of these items of information is attached to a</p>
<p>copy of a fixed performance or a phonogram or appears in connection with the</p>
<p>communication or making available of a fixed performance or a phonogram to the public.</p>
</td>
<td></td>
<td>
<p>Article 16(2): "rights management information" which identifies the performer, the performance of the performer or the owner of any right in the performance or information about the terms and conditions of use of the performance, and any numbers or codes that represent such information, when any of these items of information is attached to a performance fixed in an audiovisual fixation.</p>
</td>
</tr>
<tr>
<td>
<p><b>Transmission</b></p>
</td>
<td>
<p>Article 5, Alternative A to Article 5 (i), "transmission" means the sending for reception by the public of visual images sounds or representations thereof by the way of an electronic carrier</p>
</td>
<td>
<p>"electronic communications" means the emission, transmission or reception of sounds , visual images or other visible signals whether with or without accompanying sounds by means of magnetism, radio or other electromagnetic waves, optical electromagnetic systems or any agency of a like nature, whether with or without the aid of tangible conduct.</p>
</td>
<td></td>
<td></td>
<td></td>
<td></td>
</tr>
<tr>
<td>
<p><b>Program</b></p>
</td>
<td>
<p>Article 5, Alternative A to Article 5 , alternative to (j), "program" means a discreet package of one or more works protected by copyright or related rights in the form of live or recorded material consisting of images, sounds or both.</p>
</td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
</tr>
<tr>
<td>
<p><b>Cablecast</b></p>
</td>
<td>
<p>Article 5, Alternative A to Article 5 (k) "cablecast" means the same as "broadcast" when the transmission is by wire and excluding transmission by satellite or over computer networks.</p>
<p>Alternative B for Article 5, Article 5 (b): "cablecasting" means the transmission by wire for the reception by the public of sounds or of images or of images and sounds or of the representations thereof. Transmission by wire of encrypted signals is "cablecasting" where the means for decrypting are provided to the public by the cablecasting organization or with its consent. "cablecasting" shall not be understood as including transmissions over computer networks.</p>
</td>
<td></td>
<td></td>
<td></td>
<td></td>
<td></td>
</tr>
<tr>
<td>
<p><b>Performers</b></p>
</td>
<td></td>
<td></td>
<td></td>
<td>
<p>Article 2(a) :"performers" are actors, singers, musicians, dancers, and other persons who act,</p>
<p>sing, deliver, declaim, play in, interpret, or otherwise perform literary or artistic works or</p>
<p>expressions of folklore</p>
</td>
<td>
<p>Article 3(a): "performers" means actors, singers, musicians, dancers, and other persons who act, sing, deliver,</p>
<p>declaim, play in, or otherwise perform literary or artistic works;</p>
</td>
<td>
<p>Article 2(a): "performers" are actors, singers, musicians, dancers, and other persons, who act, sing, deliver, declaim, play in, interpret or otherwise perform literary or artistic works or expressions of folklore.</p>
</td>
</tr>
</tbody>
</table>
<div><br clear="all" />
<hr align="left" size="1" width="33%" />
<div id="ftn1">
<p style="text-align: justify; "><a href="#_ftnref1" name="_ftn1">[1]</a> See Working Document for a Treaty on the Protection of Broadcasting Organisations, Prepared by the Secretariat, Standing Committee on Copyright and Related Rights, 27<sup>th</sup> Session, Geneva, April 28- May 2, 2014, SCCR/27/2/REV. (Hereafter The Broadcast Treaty.)</p>
</div>
<div id="ftn2">
<p><a href="#_ftnref2" name="_ftn2">[2]</a> The Proposal on the Draft Treaty on the Protection of Broadcasting Organisations, Proposal by the Delegation of South Africa, Informal Consultation Meeting on the Protection of Broadcasting Organisations, Geneva, April 14 and 15, 2011, WIPO/CR/Consult/Ge/11/2/2. (Hereafter, The South African Proposal)</p>
</div>
<div id="ftn3">
<p><a href="#_ftnref3" name="_ftn3">[3]</a> Article 5, Alternative A, 5(a), the Broadcast Treaty.</p>
</div>
<div id="ftn4">
<p><a href="#_ftnref4" name="_ftn4">[4]</a> Article 5, Alternative A, Alternative to (a), The Broadcast Treaty.</p>
</div>
<div id="ftn5">
<p><a href="#_ftnref5" name="_ftn5">[5]</a> Article 5, Alternative A, Article 5 (b), The Broadcast Treaty.</p>
</div>
<div id="ftn6">
<p><a href="#_ftnref6" name="_ftn6">[6]</a> Article 5, Alternative A, Alternative to (b), The Broadcast Treaty.</p>
</div>
<div id="ftn7">
<p><a href="#_ftnref7" name="_ftn7">[7]</a> Alternative B for Article 5, Article 5 (a) The Broadcast Treaty.</p>
</div>
<div id="ftn8">
<p><a href="#_ftnref8" name="_ftn8">[8]</a> See Article 2(f) of the WIPO Performances and Phonograms Treaty, 1996.(Hereinafter, WPPT) that reads as: "broadcasting" means the transmission by wireless means for public reception of sounds or of images and sounds or of the representations thereof; such transmission by satellite is also "broadcasting"; transmission of encrypted signals is "broadcasting" where the means for decrypting are provided to the public by the broadcasting organization or with its consent"</p>
</div>
<div id="ftn9">
<p><a href="#_ftnref9" name="_ftn9">[9]</a> See Article 3 (f) of the Rome Convention, 1961 (Hereafter The Rome Convention), that reads as: '"broadcasting" means the transmission by wireless means for public reception of sounds or of images and sounds.'</p>
</div>
<div id="ftn10">
<p style="text-align: justify; "><a href="#_ftnref10" name="_ftn10">[10]</a> See Article 2(c) of the Beijing Treaty on Audiovisual Performances, 2012(Hereafter The Beijing Treaty), that reads as '"broadcasting" means the transmission by wireless means for public reception of sounds or of images and sounds or of the representations thereof; such transmission by satellite is also "broadcasting", transmission of encrypted signals is "broadcasting where the means for decrypting are provided to the public by the broadcasting organization or with its consent.'</p>
</div>
<div id="ftn11">
<p><a href="#_ftnref11" name="_ftn11">[11]</a> Alternative B for Article 5, Article 5 (c) The Broadcast Treaty.</p>
</div>
<div id="ftn12">
<p><a href="#_ftnref12" name="_ftn12">[12]</a> Article 5, Alternative A to Article 5(d) The Broadcast Treaty.</p>
</div>
<div id="ftn13">
<p><a href="#_ftnref13" name="_ftn13">[13]</a> Alternative to Article 5(d), The Broadcast Treaty.</p>
</div>
<div id="ftn14">
<p><a href="#_ftnref14" name="_ftn14">[14]</a> Alternative B for Article 5, Article 5 (d), The Broadcast Treaty.</p>
</div>
<div id="ftn15">
<p><a href="#_ftnref15" name="_ftn15">[15]</a> Article 3(g), The Rome Convention, 1961.</p>
</div>
<div id="ftn16">
<p><a href="#_ftnref16" name="_ftn16">[16]</a> Article 5, Alternative A to Article 5 (e), The Broadcast Treaty.</p>
</div>
<div id="ftn17">
<p><a href="#_ftnref17" name="_ftn17">[17]</a> Alternative B for Article 5, Article 5 (f), The Broadcast Treaty.</p>
</div>
<div id="ftn18">
<p><a href="#_ftnref18" name="_ftn18">[18]</a> Article 2(c), WPPT.</p>
</div>
<div id="ftn19">
<p><a href="#_ftnref19" name="_ftn19">[19]</a> Article 2(b), The Beijing Treaty</p>
</div>
<div id="ftn20">
<p><a href="#_ftnref20" name="_ftn20">[20]</a> Article 5, Alternative A to Article 5 (f), The Broadcast Treaty.</p>
</div>
<div id="ftn21">
<p><a href="#_ftnref21" name="_ftn21">[21]</a> Alternative B for Article 5, Article 5 (e), The Broadcast Treaty.</p>
</div>
<div id="ftn22">
<p><a href="#_ftnref22" name="_ftn22">[22]</a> Article 2(g), WPPT.</p>
</div>
<div id="ftn23">
<p><a href="#_ftnref23" name="_ftn23">[23]</a> Article 2(d), The Beijing Treaty.</p>
</div>
<div id="ftn24">
<p><a href="#_ftnref24" name="_ftn24">[24]</a> Article 5 (h), The Broadcast Treaty.</p>
</div>
<div id="ftn25">
<p><a href="#_ftnref25" name="_ftn25">[25]</a> Article 12(2), The WIPO Copyright Treaty, 1996.</p>
</div>
<div id="ftn26">
<p><a href="#_ftnref26" name="_ftn26">[26]</a> Article 19(2), WPPT.</p>
</div>
<div id="ftn27">
<p style="text-align: justify; "><a href="#_ftnref27" name="_ftn27">[27]</a> Article 16(2), The Beijing Treaty.</p>
</div>
</div>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/the-broadening-of-definitions-in-the-proposed-broadcast-treaty-compared-to-other-international-conventions'>https://cis-india.org/a2k/blogs/the-broadening-of-definitions-in-the-proposed-broadcast-treaty-compared-to-other-international-conventions</a>
</p>
No publisherAmulya Purushothama and Nehaa ChaudhariIntellectual Property RightsAccess to KnowledgeWIPO2015-09-03T02:08:34ZBlog Entry