Centre for Internet and Society

FOSS for Public Use: Free and Open Source Software for Digital India

sinha — 2016-06-18T18:20:35Z

I attended a round-table meeting on May 29, 2015 at the India Habitat Centre, New Delhi. The meeting was organized by SFLC in collaboration with the International Centre for Free and Open Source Software, and the Centre for Internet & Society.

The meeting commenced with welcome address by Ms.Mishi Choudhary, Executive Director, SFLC.in. She elaborated on the idea of the round table conference and explained how sharing of knowledge and experience of the stakeholders will help and assist the people responsible for framing this policy. She then introduced the various dignitaries who participated in this endeavour.

The first session was on the topic, The Open Source Policy - Enabling Digital India, with Mishi Chaoudhary being the moderator. She explained about the “Policy on Adoption of Open Source Software for Government of India” that was launched in March 2015 by the Government of India.

The second session was opened by Satish Babu, who emphasized on the Policy’s stand that the ecosystem is more important than the code and stated that this ecosystem comprises of several stakeholders.

Delegates who spoke at the event included Dr. Nagarjuna G, Cmdr. L. R. Prakash, Dr. Andrew M Lynn, Prof. Arun Mehta, Vikram Vincent, Venkatesh Hariharan,Kishore Bhargava, Prabir Purkayastha, Ashok T. Ukrani, Ganapathy Narayanan, Anivar Aravind, Satish Babu, Srinivasan Ramakrishnan, Rahul De, Mishi Choudhary, and Anubha Sinha.

The meeting of the minutes can be downloaded here.

For more details visit https://cis-india.org/openness/blog-old/foss-for-public-use-free-and-open-source-software-for-digital-india

Call for Participation: Global Congress on Intellectual Property and the Public Interest

sinha — 2015-06-24T16:11:07Z

We are pleased to announce the call for participation for the fourth edition of the Global Congress on Intellectual Property and the Public Interest (“Global Congress”), being hosted at New Delhi from December 15 to 17, 2015.

The theme for this year’s Congress will be “Three Decades of Openness; Two Decades of TRIPS.” We are now inviting applications to participate in the Congress, including session participation and presentations. We are also welcoming proposals for panels and workshops.

The application form is available now at [http://form.jotformpro.com/form/50854976184973?] Please note that this form is for application purposes, and does not amount to confirmation of participation. The registrations for the plenary sessions, which are open to the public, will open closer to the date of the Global Congress.

Deadlines

August 1st: Priority Deadline for Applications- Applicants will be considered on a rolling basis, with applications made by August 1st being given first consideration. Applications after August 1st to receive travel assistance will be considered only under exceptional circumstances (these details will be collected in a subsequent form).

November 1st: All applications for session participation and paper submissions will close on November 1st.

Application Information

For applications to participate/host: Applications to present or host workshops shall be considered based on the proposals to be submitted in the form.

For applications to attend sessions: Applications to attend sessions as discussants will be considered based on the statement of purpose and/or any other relevant information provided by the applicant.

Limited travel grants to cover accommodation and/or travel to the Congress will be available, with priority to those from developing countries.

Background, Theme and Expected Outcomes

The Global Congress on Intellectual Property and the Public Interest is the most significant event on the calendar for scholars and policy advocates working on intellectual property from a public interest perspective. By sharing their research and strategies, the network of experts and activists supported by the Global Congress are empowered to put forward a positive agenda for policy reform. The Global Congress began in Washington D.C. in 2011, moved to Rio de Janeiro in 2012, and was held in Cape Town in 2013. The fourth Global Congress will now be held in New Delhi, in December 2015. The event would be the largest convening of public interest-oriented intellectual property practitioners ever held in Asia, and would help link in the world's most populous region to these global debates around how intellectual property policy can best serve the public interest.

The fourth edition of the Global Congress brings research, civil society, industry and regulatory and policy-making communities together for active, intense engagement on key public-interest intellectual property issues. Opportunities for these groups to interact are rare but valuable; and have been proven to lead to successful policy outcomes. The 4^th edition of the Congress, slated to be held in December, 2015 in New Delhi seeks to be one such opportunity.

The theme for the 2015 Congress is Three Decades of Openness; Two Decades of TRIPS-coming at a pivotal time for reflection, revision, and further strategizing. Specifically, the 2015 Congress seeks to produce three outcomes- first, the mobilization of existing scholarly research directly into the hands of civil society advocates, business leaders and policy makers, leading to evidence-based policies and practices; second, the collaborative identification of urgent, global and local research priorities and generation of a joint research/advocacy agenda; and third, the solidification of an inter-disciplinary, cross-sector and global networked community of experts focused on public interest aspects of IP policy and practice.

Participation Opportunities

Discussions at the Global Congress will be carried out in the form of plenary sessions, thematic tracks, cross-track sessions, and the room of scholars. Participation is invited for the thematic track sessions, cross-track sessions and the room of scholars.

The thematic tracks at the Global Congress are: 1) Openness, 2) Access to Medicines, 3) User Rights, 4) IP and Development. Cross-track sessions will feature research that cuts across tracks in order to facilitate engagement between tracks on themes of mutual interest.

The Room of Scholars will feature presentations of research outputs such as draft works or white papers that may not fit directly within the thematic tracks but fall within the overall theme of the Global Congress.

Participation could be in the form of presenting / discussing conference papers or policy briefs, or by conducting workshops where they may share their own work and solicit feedback from peers, during the aforementioned sessions.

The application form for participation is available now at http://form.jotformpro.com/form/50854976184973?. Please forward this invitation to interested lists and individuals. For more information or questions, you may contact global-congress@cis-india.org.

Organisation

The 4^th Global Congress on Intellectual Property and Public Interest, is being organised in cooperation with National Law University, Delhi, by the American Assembly at Columbia University, the Centre for Internet and Society, Open A.I.R., and the Program on Information Justice and Intellectual Property at American University Washington College of Law.

For more details visit https://cis-india.org/a2k/blogs/call-for-participation-global-congress-on-intellectual-property-and-the-public-interest

2015 USTR Report: Old Wine in New Bottle

sinha — 2015-06-16T10:24:49Z

Every year, the Office of the United States Trade Representative (USTR) undertakes an elaborate exercise to castigate countries' domestic intellectual property (IP) law and policy. The criticisms and recommendations are presented in a document called the Special 301 Report. This year's edition puts India on the Priority Watch List for the twenty-sixth time in a row. Below, I rebut the report's prejudicial claims and demands, and argue that the report puts free speech, innovation and public interest in jeopardy.

Keeping in tradition , the 2015 report yet again exposes US' hypocrisy by faithfully serving Hollywood and Big Pharma. In the past, countries such as Israel and Canada have publicly rejected the USTR's findings and derided the US for unwarranted interference with domestic law and policy. Last year, India too had refused to cooperate with a USTR initiated unilateral investigation (Out of Cycle review) of its IP regime because the investigation violated international law.

The Electronic Frontier Foundation has released a hard-hitting response to the report. It draws case studies of countries where overbroad IP law has affected public interest, free speech and innovation. For instance, it mentions how Colombia's 'reformed' copyright law has become a travesty. Colombia introduced extreme enforcement and harsh criminal sanctions for unauthorised sharing of works at the behest of the US. Last year, news surfaced that a Colombian biodiversity researcher faced upto eight years in prison for sharing an academic article on Scribd. Any balanced IP regime (including India) permits such use of copyrighted works under the fair use principle, however, Colombia's narrow fair use provision has led to a situation where citizens now face prison for ordinary use of academic works.

This year the Special 301 Report in its section on India approves the Prime Minister's statements to align IP law with international standards, which is a cause for concern. Firstly, what are these “international standards” that both US and India refer to exactly? The most comprehensive international agreement on IP that binds 160 member nations is the WTO Agreement on Trade related aspects of Intellectual Property (TRIPS Agreement). Ergo, this agreement would qualify as the most accepted “international standard”, which India already complies with. Secondly, the TRIPS Agreement sets down certain global minimum standards for protecting and enforcing IP, simultaneously providing countries a certain degree of flexibility. However, the US has consistently pushed India to enact tougher provisions known as TRIPS Plus provisions. This is reflected in the report as well. Legally speaking, under international law India is not obligated to accede to such demands, and it should not if it wants a balanced IP regime to protect and serve the interests both of rights holders and its citizens.

The report shamelessly aligns its concerns with the financial interests of foreign rights holders and American companies. It erroneously projects IP as a tool to only maximise revenues, agnostic to public interest. While IP rights are temporary monopolies, they also are a tool to ensure innovation, social, scientific and cultural progress and further access to knowledge. It is well established that flexible IP laws enable access to knowledge and promote innovation. Such a flexible regime is critical to developing countries like India. The USTR conveniently forgets that lax IP law and enforcement for a large part of the 19th century helped the US to accelerate into an economic powerhouse and a front-runner in innovation. It also brazenly threatens to impose unilateral sanctions against a country designated as a Priority Foreign Country on the list. This treatment is usually reserved for the worst offender on the list. Such unilateral threats and sanctions are again a direct violation of international law.

Unsurprisingly, the report is critical of India's under-enforcement of copyright laws and the impact of patent law on pharmaceuticals. It demands a specific legislation to counter camcording and video piracy. The prospective legislation is unnecessary because all movie theatres in India prohibit camcorders and the prevailing Copyright Act, 1957 contains penalties to punish offenders. Instead of creating new offences, we should re-evaluate the need of existing offences. For instance, copyright infringement on non-commercial scales should not be a criminal offence at all . Instead, the law should provide convenient and affordable access to such works to counter petty infringement.

India is home to the world's largest apothecary. The Indian pharmaceutical and medical device industry provides affordable healthcare to the citizens, and also exports drugs to countries in need. In fact, the compulsory licensing mechanism has ensured affordable access to life saving liver and kidney drugs in India. The report comments on the undesirability of section 3(d) and the compulsory licensing mechanism in Indian patent law. With respect to section 3(d), the US wishes India to to change its patent law to enable large pharma companies to patent new forms of known substances that aren't even better. This alarmist outlook smacks of hypocrisy because the US, in fact, has a higher rate of patent invalidation and compulsory license grants! It also demands data exclusivity – which would extend proprietary rights to patentees over government mandated drug data, and would be detrimental to the local pharma industry. Further, the report states that the Indian system is biased against enforcement of foreign patent rights holders - which is mere speculation. There is no evidence to draw such a conclusion. The claims relating to localisation trends in pharma are half- baked and speculative again.

The report observes that at the UNFCCC negotiations, India recognised patents as an obstacle to dissemination of climate change technologies. It wishes India understood the critical role of patent protection and competitiveness to ensure innovation, which is a flawed co-relation. While strong IP rights may protect inventors against infringement and provide return on investment, however, stronger IP rights also raise the cost of innovation by raising the price of technological inputs into innovation and lower the frequency of innovation.

As far as the issue of counterfeit medicines is concerned, a better remedy lies in health safety laws and consumer laws, than the trademark law. The report also approves of state legislatures' version of the Goondas Act. These Acts provide for detainment of criminals and lumpen elements in society, and with recent amendments have expanded to include video pirates and digital offenders. Karnataka's Goonda Act enabling preventive detention violates constitutional rights. While the Sixth Amendment to the United States Bill of rights protects offenders against preventive detention, the US has no qualms about approving such unconstitutional procedures in India.

The arguments above underscore the irrelevance of the report. The Prime Minister may have made appeasing statements to the USA, however, in a welcome development Commerce and Industry Minister Nirmala Sithraman in response to the report stated “India is fully aligned with international intellectual property rights standards and "there is no need for anyone to question us."” Our IP regime with its inherent flexibilities should be preserved and not sacrificed at the altar of US' business interests. Using compulsory licensing across sectors would indeed accelerate technology transfer and diminish initial capex for manufacturers, a move promoted by the National Manufacturing Policy. The ambitious Make in India and Digital India campaigns are set to suffer if India incorporates TRIPS plus standards into its IP regime. The government supports opennes s and has implemented policies mandating use of open standards and open source software as a part of the Digital India campaign. India should not let foreign hands dictate its IPR Policy, and proceed to develop a policy which is informed by broader principles of fairness and equity, balancing intellectual property protections with limitations and exceptions/user rights such as those for research, education and access to medicines.

For more details visit https://cis-india.org/a2k/blogs/2015-ustr-report-old-wine-in-new-bottle

Pervasive Technologies Project Working Document Series: Literature Review on IPR in Mobile app development

sinha — 2015-08-31T13:48:02Z

This post is literature survey of material exploring and analysing the role of Application Platforms in the Mobile Applications Development ecosystem, albeit from an intellectual property perspective. The document is a work in progress.

1. What are the decisions developers are making within their practice in terms of location of their enterprise and clients, scale of audience, funding, business models and mobile apps marketplace (app stores)? Who is the primary actor in the mobile applications development cycle in India?

1.1. Is the mobile apps marketplace organically developing into a Bazaar model, or a Cathedral model?

1.2. What are the contractual terms between the enterprise and the employee? What is the typical nature of agreements in the mobile apps development industry between enterprise- employee and enterprise- client?

The role of Mobile application developers (“developers”) is critical in the app market, especially when such markets are regarded as the key entry and dissemination point for mobile content. Developers are seen as innovation engines and the fastest route to innovation, so understanding factors that attract and retain third party mobile application developers is of importance to mobile platform providers in order to survive.

Who are the primary actors in the mobile applications development cycle in India?

This chapter of the Pervasive Technologies Project (“Project”) aims to study developers who are key contributors to the mobile applications space within India; and the problems, those being faced by them as they attempt to navigate an emerging and ambiguous ecosystem. The results of our qualitative research give us insight into the characteristics of this new tribe. A majority of the developers do not own the products they innovate and instead assign ownership of their IP over to their clients. Innovating for the purpose of creating and retaining ownership is a key motivation and is reflected in the tendency of developers to move away from the services sector to develop their own products.[1]

As one developer puts it, “unless you're a 1000 man enterprise, there's no economic benefit in services; as competition has driven pricing so low, everyone's struggling to deliver $12-14 per hour.”

Every startup in mobile development, especially, is doing services to stay afloat and would like to move toward a product model.

Further, IAMAI conducted a survey[2] in 2013 and the report presents an analysis in four sections:

a) Who? The App Developer in India

b) What? The Preference of Users and Developers in India

c) Why? The Business of Apps in India

d) How? The Future of Apps in India

The Report states:

“The vast majority of app developers in India are male. In their survey of 454 developers, only 35 respondents were female reflecting the gender bias. On the demand side 80 percent of smartphone users in India are male reinforcing the male dominance. Geographically the respondents were all based in India except one developer of Indian origin residing in Malaysia. The well known and established IT cities in India are attractive for app developers because they provide with easy access to infrastructure, skill and a ready market for products. The survey shows the concentration of app developers in the cities of Bangalore, Mumbai, Delhi NCR, Hyderabad and Ahmedabad. A larger percentage of developers in such IT cities make apps on a full-time basis as compared to developers in other cities. The survey data also shows that Bangalore, Mumbai and NCR have the maximum number of companies (organized business operations) engaged in app development. Cities like Ahmedabad, Hyderabad and Chennai host many small teams of app developersas well as self-employed app professionals. In most of the other cities such as Bhubaneshwar, Cochin, Coimbatore, Gandhinagar and Kota, app development is done primarily on a part-time basis and is not the primary source of income. This could be the result of limited monetization options that make app development an unsustainable livelihood for many.

The popularity of international apps was evident in the survey data. The average download of ‘Indian’ apps was very low. Only 14 of the 454 developers has crossed the hundred thousand download mark, of which only 5 surpassed the one million milestone. These numbers do not pertain to a single app, but to the cumulative number of downloads across all the apps created by each developer, supporting the thesis of low visibility of apps developed domestically.

In their sample of 454 developers, entertainment apps including gaming and social networking are the dominant categories reflecting demand side preference. Utilities, health and education are the other important categories. The survey also below provided the number of apps developed under each category. The list does not include lifestyle and enterprise apps which are exceptions. One forceful result of their survey is the focus of app developers on foreign app demand in preference to producing locally-relevant content - as the latter is less profitable. Each respondent in their sample had developed an average of 38 apps. Of these 13 have developed 100 or more apps and these are the larger professional app companies. After excluding extreme values, the average number of apps developed by each respondent fell to 17.

Skewed revenue sharing models biased against content providers was one of the main reasons why Indian app developers focus on international app stores such as Apple App Store or Google PlayStore that offer a flat 70 percent of the total revenue to developers. This adversely affected development of India-specific apps and even popular apps such as Saavn and Zomato have expanded abroad because of this very reason.

Survey results indicated an Android dominated future for the app economy in India for two apparent reasons. One, Android devices are more affordable and two, the Android ecosystem is open allowing OEMs such as Samsung and HTC to manufacture mobile devices that use the Android OS. The drawback turns out to be the resulting fragmentation in screen sizes, resolution limits and hardware traits. Because of this, “developing apps that work across the whole range of Android devices can be extremely challenging and time-consuming.” Moreover, Indian app developers need to recognise the existence of an active market for used phones and thus the appeal of ‘backward compatibility’ i.e. an app that can work across old devices as well as new ones and also function across both old and new versions of operating systems will stand a better chance of success.

On the whole, app development was not considered to be a remunerative business opportunity. 17 percent of respondents who answered the question on choice of revenue model indicated that they did not have a specific revenue generation plan. While some developers are engaged in contractual development, there are few developers who self finance their project and do not actively market or promote their app. The business of app development in India seems to be at a stage in which it could be characterised as one based on a ‘hit and trial’ philosophy. Self financing is common in the industry. Only 7 and 13 developers approached banks or venture capitalists for financing. Funding an app developer was not an investor’s primary choice. Recognising the market failure and the utility of apps, the Department of Electronics and IT and Department of Telecommunication have both instituted funds to encourage mobile technology ventures

and app development in India.[3] One can argue on the efficacy of the use of limited public resources for app development, but not the fact that app development in India needs a boost. The industry is still very young and ‘unorganized’ and is largely dependent on own and informal sources for financing. The study presents presents the source of financing for app developers.”

Understanding of IP

There is a lack of understanding of IP amongst the developers. During the course of interviews, IP was often thought of as mere content or code. There was also confusion between the terms IP and IPR. The few developers who understood the nuances of IP better, voiced a need for the developer community to deepen their understanding of what parts of their work are IP. Samuel Mani, Founding Partner of Mani Chengappa & Mathur, stressed that developers should recognize the value within not just the product or software itself, but the background business processes. According to Mani, the execution of the idea is the true source of innovation; how one accesses the market, and maybe who the market is as well.[4]

The IAMAI report[5] had some observations on the impact of IP on the apps industry. According to the report, “since the industry thrived on innovation, protection of intellectual property was important to developers. The balance between protection and sharing of innovation was part of a larger and often tendentious debate on open source versus proprietary software development.[6] The survey did not attempt to deconstruct that debate; merely reported that 70 percent of respondents were of the view that intellectual property protection was a concern for app developers. However, not all had taken steps to protect intellectual property. The lack of seriousness could be associated with poor revenue potential from apps. Among those who had, some obtained copyrights/patents, while others worked with individual checks on in-app piracy using code morphing, copy protection, server–based checks, or both etc (The study provides data on different IP protection measures).”

Nature of their clients

Out-sourced 'mobile app services' is marginal as a business model here in India.[7]

Ownership of their product/service:

Often, the lack in understanding can be traced to the developers working in isolation from the legalities involved in assigning the product to the client. Majority of those interviewed developed mobile app products for clients, and in turn assigned ownership of their products to their clients. As previously mentioned, they commonly shared an interest in leaving the services sector to create products of their own, with some of them already having made the transition within their business model.[8]

Contractual clauses most important to mobile app developers: Delving deeper into the aspect of assigning ownership to clients, the most common practice is for developers to enter into a work-for-hire agreement with the client. Typically, a work-for-hire agreement mandates that if a worker is paid to carry out a particular project, whatever is created within the project belongs to the client.[9]

For startups where team players are small in number, it is likely that all will have access to any contract agreements entered into with clients. For larger corporate software developer firms, there may be a specialized department for legal-related matters. In such cases, the mobile app developers themselves would seldom lay eyes on the legalese of contracts, for the primary reason being that it doesn't concern them. Instead, the terms of agreement more familiar to them would be those that they obliged to upon working for their employer. The interviews revealed that the importance of contract agreements was actually underestimated in the country.[10]

Within a work-for-hire agreement, it is commonplace for developers to enter into restrictive agreements that obstruct the freedoms of what they can do with the code created for the client. Problematic areas proved to be those related to the time periods in which the developer was not allowed to take up future work for competing clients (i.e. the non-compete clause), or could not talk about their work for the client at all (the “quiet period”).[11]

Developers are unable to license their work to other interested clients when one client retains ownership. “Clients typically do not want a perpetual license, but complete ownership”, says a website developer. He further explains that, “this means they could make a derivative work or use it for another project. Depending on how bad we want the project, we'll work out some middle ground.” But it does not seem to be so easy for he and his SME to do so: “The thing about contracts is it’s all about a sort of differential bargaining power that the two parties have... you’ll have very little control about what happens once you’ve got paid.”[12]

To have any sort of bargaining power within a work-for-hire arrangement requires a lot of time for negotiating, and the space for communication to begin with. In many cases, contracts may not even be introduced into a work agreement, leaving a lot of intricacies to the unknown.

The problems are further compounded by contract illiteracy, more so in second tier cities.[13]

2. What is the nature of innovation emerging from the mobile app industry? What is the awareness of the "mobile applications developer and its enterprise on rules concerning code, content and design? How does re-use and sharing of code, content and design occur in the mobile application developer ecosystem ? What is the perceived impact of the Indian IPR regime on the aforementioned aspects? Finally, do the emerging trends in re-use and sharing of code run afoul of Indian IP law?

There is a marked shift towards using open source software amongst developers. According to a Gartner study, most software makers will have some open source applications or code in their portfolio by 2016. The study also reaches the conclusion that 99% of Forbes’ Global 2000 companies will be using some form of open source software.[14]

Awareness

The interviews revealed different personal understandings of the meaning of IP. The most common responses were the following[15]:

A : When questioned about IP to developers, they did not know what it meant, because it didn’t have anything to do with what they were doing.

B : Developers often did not know what part of their app was IP... there is was gap in understanding with respect to IP.

For the most part, it seems, IP was considered to refer to content or code across interviews, and was even confused at one point with IPR (IP Rights) within a response referring to an SME's trademark and pending application.

For those who appeared to be better versed in matters related to IP, they emphasised on the need for developers to be better acquainted with what parts of their work are IP. One interviewee stressed on the importance of developers to recognize the value of background business processes, apart from software and the product itself. [16]

In certain cases, it took $1 million in sales for a medium-sized software development enterprise to start paying attention to IP. The enterprise tried to obtain patent protection for their application, but the effort turned out to be futile.[17]

Protection of work (Speaks to awareness also)

When asked, those interviewed responded with a variance in answers. Some simply stated that their work is not protected, while a few mentioned that they acquired trademark or intend to apply for trademark protection. One interviewee had a patent pending in India and the US, as well. In many conversations, developers mentioned that their code for their apps is under open source licenses, and a couple others entailed sharing that the content is under creative commons licenses, “individual licenses,” or joint copyright. Additionally, within one interview, one mentioned the use of encryption tools as a technical means of protection for their work.[18]

“The concept of securing IP is relatively new within the Indian context... it becomes a question of priority between innovation and protection" — Aravind Krishnaswamy, Levitum.

Of the developers interviewed, many exhibited some sort of confusion or misunderstanding related to the protection of their works by means of intellectual property rights (IPR). Those interviewed seemed to either express an interest to acquire IPR in the future for their products in the forms of patent or trademark protection, or expressed their appreciation for openness source licensing—or both! Beneath these immediate responses, however, many repeated patterns, as well as contradictions, are revealed. Conversations that followed within these interviewed entailed the opportunity to hear from personal experiences and opinions on different areas within their practice intersecting IPR.[19]

Across interviews conducted, one particular observation entailed the tendency for developers to have worked in the past for corporate employers that have dealt with cases of infringement or have acquired IP protection. Almost half of those interviewed shared the fact that they worked for a corporate employer and became better familiar with different notions of intellectual property through that experience. It may not be too far-fetched to suggest, then, that for the developer the idea of acquiring IPR protection is one that may be reinforced from previous employers or other successful development companies with IPR of their own.[20]

Impact of law & reasons for IPR Protection

One would assume that if a startup was bootstrapped with minimal cash flow, then it would place a low priority on getting IP protection for its products. Aravind Krishnaswamy of startup, Levitum, also stated that “the concept of securing IP was relatively new within the Indian context.” [21]

Yet, many developers who were interviewed did express an interest in IPR. The main concerns developers believed IP protection would address, were proving ownership over their work or preventing problems in the future. One developer's commented on how the mobile app market is a “new and potentially volatile area for software development.” For this reason, it was imperative that he and his team attempted to avoid trouble in the future, and ensure that they going about mobile app development the right and moral way.[22]

Within another interview, developer, John Paul of mobile app SME, Plackal, explained his motives for seeking to acquire patent protection, the application for which back then was pending in India and the US: "For us, applying for a patent is primarily defensive. And if it does get infringed upon, it would give us a good opportunity to generate revenue from it." For the company's trademark, they sought to be able to enforce their ownership over their product's brand: “As a precautionary, we've trademarked the app so that should there be a situation where the app is pirated, we can claim ownership for that app.”[23]

Do the emerging trends run afoul of Indian law?

Yes. This was evident from the legal practices of mobile app developers and the resulting cases of infringement.

Some instances of infringement (limited to Mobile app content (i.e. logos, pictures, etc.)) are[24]:

• Pirated apps in app stores

• “Dummy apps” or imitations of another's app

• Breaching app stores user agreement

• Violation of License agreements of code created by another

• Violation of Open source licenses

• Breaching of terms of agreement for by commissioning clients

• Breaching of terms of agreement for by those hired

Some of the developers indicated that they weren't a fish big enough to be pursued for infringement. “The big companies do not go after small developers; it depends on how much money they're making.” said a developer. He added,“Patent lawsuits can cost something like millions of dollars, so unless they're going to get more back, they wouldn't go through the trouble of doing so... but that is true even in the US.”

Some added that others who may have been apparently copying you, may have been working on the same content independently. Corporate players are in non-compliance knowingly than not, whereas more SMEs infringe upon others without being aware that they are. Just as well, the degree to which infringement takes place may differ between the two types of industry players: “At the corporate level, where they know they are not in compliance, the degree of non-compliance might be very small or specific, but it still exists.” On the other hand, for startup developers, a substantial amount of their code may not comply with the licenses and agreements they are obliged to—something that could pose problems for them later down the road if left unfixed. [25]

3. The apps marketplace is extremely important since they are the gatekeepers enabling access to apps. What is the nature of the apps marketplace? What are the limitations associated with it ? How do the existing regulatory models intersect with this relatively new marketplace? What is the enforcement carried out by these app stores in terms of IP?

“The app platform is a gatekeeper which provides the consumer and developer a virtual space to buy and sell products (mobile apps). What is the nature of the app platform? What are the limitations associated with it?

An app dealing in pirated content or infringing intellectual property faces the risk of getting barred by the app platform. What is the enforcement carried out by app platforms to protect intellectual property?”

Firstly, what is an app platform?

Iansteti and Levien[26] state that at the core of each innovation network is a focal organization known as platform owner (or keystone) that provides the platform to facilitate contribution by other members in the network.

Hagiu[27] defines a platform as a product, service or technology that provides a foundation for other parties to develop complementary products.

Specifically, I Kouris[28] defines an app platform as a special kind of electronic market which enable software developers to distribute their software applications(apps) among users of mobile devices like smartphones or tablets. An app platform owner dictates the entire infrastructure(like user interface, server space, etc.) and determines the rules for the interaction between the developers and users. They usually provide information about apps and developers and serve as a trusted third party by controlling app quality. Fransman M[29] characterised the app platform as an 'innovation ecosystem incorporating app developers effectively.'

Innovation can happen within the enterprise, or can take a more open route and benefit from external innovation. In order to gain the benefit of external innovation, platform owners must open their platforms up beyond their internal base of developers and provide resources to third party developers.[30]

What is the platform concept in software?

Broadly, Noori[31], discusses the issues about the platform concept in software and attempts to address the subject of platform strategy. Tsai, Phal & Robert[32] further the discussion by stating principles for an effective platform strategy.

In mobile ecosystems building a developer community is one of the niches to attract the developers to join the ecosystem. However, health can mean differing things for different ecosystem members. In order to stimulate innovation[33] the keystone company is often forced to relinquish much of their control over the platform to the development community. This involves a careful balancing act in relinquishing enough control to create a healthy environment for developers, and not stifling innovation while retaining a necessary and desired degree of control.[34]

Baskin[35] examines the problems concerning software patent under the mobile applications platform environment. The scope of the analysis is limited to two mobile applications platforms: Apple's iOS and Google's Android. The analysis throws light on the problems of innovation in software systems like iOS and Android. The note also proposes several changes to both antitrust and patent laws that will make it more difficult for established market players to prevent new competitors from entering high tech markets, thereby promoting greater openness and innovation. The part on software patents discusses the effects of enforcement of patent rights on open and closed systems. The note observes that the US Federal Circuit's decisions (Fonar Corp. v. Gen. Elec. Co., io7 F.3d 1543, 1549 (Fed. Cir. 1997)) have severely curtailed both the enablement and best mode requirements for successful software patents., thereby limiting the disclosure and preventing many of the invention's useful elements from reaching the public domain. Patentability issues have affected open systems such as Android more than Apple, owing to a greater dependency on third parties to run android systems, leading to more patent infringement issues. It recommends, that, intellectual property law should promote open systems above patent protection in high tech fields, allow reverse engineering of software and introduce an 'independent invention' defence in the law for innovators.

A certain paper addresses rejection of apps in the AppStore on three grounds: rejection on content grounds (including some competition-driven restrictions), rejection on development grounds, and the regulation of transactions.

Apple's and Google's foray into building a mobile development platform

Coming from the music and personal computer industry, Apple disrupted the mobile industry by making its mobile development platform available to third party developers and eliminating the barriers between those developers and customers. The main goal of Apple in the mobile world is to increase the cross-sales of its high-margin products by providing a continuous experience roaming (iPhone, iPad, Mac, and Apple TV) using complements such as mobile applications, content, services, and accessories.[36] Google, on the other hand, is an online advertising company which provides an open source mobile operating system, in the shape of Android, on which mobile handset manufacturers can develop smartphones without paying software licensing fees. By commoditizing mobile device production under its unique governance structure and building a large developer community, Google secured a means of reducing the barriers to new users accessing their advertising through smartphones. Microsoft through its Windows Phone is the most recent addition to the leading mobile platform providers. Its motivations lie in trying to protect its core business of software licensing which has been disrupted by falling PC sales linked to the emergence of mobile technology and free cloud technology services provided by companies such as Google which have impacted respectively on its licensing fees for Windows OS and Microsoft Office[37].

Luis H Hestres[38] analyzes Apple’s guidelines and approval process on the App Store, discusses content-based rejections of apps, and outlines the consequences of this process for developers’ and consumers’ freedom of expression. It outlines a set of principles to ensure “app-neutrality” whilie ensuring device quality and safety. The article illustrates challenges faced by app developers working on the iOS platform. Criticisms have come forth about Apple's arbitrary and opaque review process. Apple has a rejection rate of 30% of the 26,000 apps submitted to the app store each week[39]. Van Grove[40] comments that the ambiguity, opaqueness, and susceptibility to outside pressures that seems to characterize Apple’s approval process do a disservice to a democratic online culture. With more than 400 million iOS devices sold worldwide since 2007[41], Apple’s devices and app store have become important online intermediaries for Internet users. The article proposes a few basic guidelines, anchored on widely accepted international laws and treaties, such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.

Statistics

A Report[42] presents us with some important insights into the growth of Google Play. Following are the highlights of the report: There are now well over 1 million apps available on Google Play App downloads and revenue from Google Play increased dramatically over the past year; Markets such as Brazil, Russia, Mexico, Turkey and Indonesia are driving growth in app downloads from Google Play; Google Play is experiencing rapid expansion of monetization in established markets such as Japan, the United States and South Korea; Games played a major role in the acceleration of Google Play revenue growth, but almost all app categories experienced expansion and accounted for almost 90% of revenue in Q1 2014; The freemium business model advanced its domination of Google Play app revenue, and represents a growing proportion of downloads; Asian markets lead the way in generating freemium revenue. Another report8 reiterates the explosion of gaming apps.

4. How does Indian copyright law and patent law apply to the mobile applications development ecosystem, in respect of the various business models operating in the industry?

4.1. The patent regime is grounded on a laboratory model of innovation. What does the niche mobile applications development industry (working on a micro-creativity model of innovation) require differently from the patent regime to foster growth?

4.2. Similarly, copyright law has a distinct design for digital objects. Examine the design and its suitability to regulate a mobile application.

A. The interviews reveal a dichotomy existing in the mobile app developer space. While some developers argued for strong IPR protections, several of app developers opposed strict IPR protection (patents, especially) and advocated use of open source software.[43]

Open source for future protection (Applicable as literature to Research question 2)

Sometimes developers license for community values primarily, however, the assumption is that dominant reason is to retain the ability to use their own work across clients. A designer from a services enterprise gave a different reason for doing so: to guarantee their ability to use their work again. “Since we use a bunch of templates and things like that, those we license using a non-exclusive license, because we reuse those elements on different bits of code in different projects,” he explains, “so there are bits of it which is used over multiple projects and there are stuff that is built exclusively for the client.”[44]

Here one can gather some insight, that perhaps developers do not necessarily license for community values primarily, but for the ability to use their own work across clients. That being said, we begin to wonder what the possibility that open source code may serve as a loophole for work-for-hire contracts, which require the developer to assign all written intellectual property to whoever is commissioning the project. If the code happened to “already be available by open source,” a developer may still be honouring any restrictive agreements with clients, and ensuring their ability to use their code in this future again.[45]

As a developer suggests, that startups should first and foremost protect themselves by making wiser choices related to code in order to prevent being litigated against by others—such as using an open source equivalent to a piece of code that one does not have the rights to, or instead putting the extra time in to develop it from scratch.[46]

Of those who expressed an interest in the open source movement, not all had said that their products were to be open licensed as well. One developer explicitly stated: “I like the idea of open source, and building upon others' work...but our app is not open source, it's proprietary.” It may be a given, then, that all or most developers within our interview sample rely on open source code within their practice, but not all may contribute their resulting product's source code back.[47]

Vivek Durai, from Humble Paper said that despite the fact that “open source has really taken route... on the smaller levels, people will come to a point when philosophies begin to change the moment you start seeing commercial.”[48]

B. A certain paper[49] examines from various angles the complex relationship between intellectual-property rights and technological innovation. Following are the conclusions:

1) Intellectual property rights are most likely to foster innovation when the following conditions converge in a particular industry: (a) high research-and-development costs; (b) a high degree of uncertainty concerning whether specific lines of research will prove fruitful; (c) the content of technological advances can be ascertained easily by competitors through “reverse engineering”; and (d) technological advances can be mimicked by competitors rapidly and inexpensively.

2) The likelihood that intellectual-property rights will impede more than stimulate innovation increases as more and more of the following factors obtain in a particular field: (a) trade-secret protection or lead-time advantages reduce the ability of competitors to take advantage of technological advances; (b) innovation in the field tends to be highly cumulative; (c) researchers in the field are motivated primarily by non-monetary incentives; (d) the field is characterized by strong network externalities. The last three of these circumstances were all present during the development of the technical infrastructure of the Internet; it is thus not surprising that that development proceeded rapidly and effectively with little reliance upon intellectual-property systems.

3) The following techniques may be employed to mitigate the economic side-effects of intellectual-property systems: (a) compulsory licenses; (b) facilitation of price discrimination; (c) strict enforcement of the “utility” requirement; (d) encouragement of appropriate cross-licensing agreements (provided that cartel behavior can be simultaneously discouraged); (e) narrow interpretations of “similarity”; (f) strict enforcement of “enablement” and “best-mode” requirements; and (g) the affirmative defenses of patent and copyright misuse.

4) In contexts in which reliance upon these mitigating devices is not feasible, the following alternative ways of solving the public-goods problem may be superior to intellectual-property rights as ways of stimulating innovation:government research; government funding for private research; or post-hoc government rewards for private technological advances.

C. In a paper[50], the authors study the determinants of patent quality and volume of patent applications when inventors care about perceived patent quality. They analyze the effects of various policy reforms, specifically, a proposal to establish a two‐tiered patent system. In the two‐tiered system, applicants can choose between a regular patent and a more costly, possibly more thoroughly examined, ‘gold‐plate’ patent. Introducing a second patent‐tier can reduce patent applications, reduce the incidence of bad patents, and sometimes increase social welfare. The gold‐plate tier attracts inventors with high ex‐ante probability of validity, but not necessarily applicants with innovations of high economic value.

D. Copyrights related to apps are still being hashed out in the courts. Oracle, for example, sued Google[51] for copyright infringement regarding the structure of Java APIs in its Android operating system[52], and the case was decided by the U.S. Supreme Court.

E. Policy Levers in Patent Law[53]

The paper argues that some industries should be the subject of patent tailoring – which can make them illustrative of certain policy levers. Use of obviousness and disclosure doctrines to modulate the scope and frequency of patents, as might be necessary where anti-commons to patent thicket theories are applicable.

Nature of software vis-a-vis biological/chemical inventions

Software inventions tend to have a quick, cheap, and fairly straightforward post- invention development cycle. Most of the work in software development occurs in the initial coding, not in development or production. The lead time to market in the software industry tends to be short. Because innovation is less uncertain in software than in industries like biotechnology, Merges’ economic framework suggests that the non-obviousness bar should be rather high.

Implementing a rational software policy obviously requires some significant changes to existing case law. A number of policy levers might be brought to bear on this problem. First, obviousness doctrine needs to be reformed, preferably by way of a more informed application of the level of skill in the art or alternatively by application of new secondary considerations of non-obviousness.

Poor handling of software patents by the Federal Circuit

The paper argued that broad software patents were indeed what the existing Federal Circuit jurisprudence will likely produce. By relaxing the enablement requirement and permitting software inventions defined in broad terms, supported by very little in the way of detailed disclosure, the Federal Circuit has encouraged software patents to be drafted broadly and to be applied to allegedly infringing devices that are far removed from the original patented invention.

By implication, the Federal Circuit’s standard also seems to suggest that many narrower software patents on low- level incremental improvements will be invalid for obviousness in view of earlier, more general disclosures. They may also be invalidated under the on- sale bar, because the Supreme Court’s view that a software invention is “ready for patenting” when it is the subject of a commercial order and when the inventor has described its broad functions, even if it is not clear how the code will be written or that it will work for its intended purpose, means that any patentee who waits until the code is written to file a patent application risks being time-barred for not filing earlier. Unfortunately, the Federal Circuit’s current standard seems to be precisely backwards. Software is an industry characterized by at least to a limited extent by competition theory and to a greater extent by cumulative innovation. Cumulative innovation theory suggests that patent protection for incremental software inventions should be relatively easy to acquire in order to reward incremental improvements, implying a somewhat lower obviousness threshold. It also suggests that the resulting patents should be narrow and, in particular, that they should not generally extend across several product generations for fear of stifling subsequent incremental improvements. This suggests that software patents should be limited in scope.

Second, a higher disclosure requirement and restrictions on the doctrine of equivalents will help reduce patent scope. Additionally, the authors think software patents are the ideal candidate for a new policy lever: reverse engineering. Many commentators have explained the importance of permitting competitors to reverse engineer a product in order to see how it works and to figure out ways to design around it. In the case of copyright, courts have adapted the doctrine of fair use, together sometimes with copyright misuse, to allow competitors to engage in reverse engineering of computer software. Patent law includes no express provision allowing reverse engineering, nor is there any judicially developed exception akin to copyright’s fair use doctrine that might permit it. Indeed, patent law generally lacks provisions akin to fair use or other exceptions that might readily be pressed into the service of reverse engineering, although commentators have suggested that patent law may need such exceptions for precisely this reason.

This does not mean that reverse engineering a patented product is necessarily illegal patent law. Some inventions, such as the paper clip, are readily apparent once embodied in a product. Improvers do not need to reverse engineer the paper clip and figure out how it works in order to improve it; they just need to look at it. Additionally, in many cases, the patentee has done all the work necessary for reverse engineering patented inventions by virtue of disclosing how to make and use the claimed invention in the patent specification. In theory, an express provision authorizing reverse engineering would be superfluous if the enabling disclosures required to secure a patent were sufficiently strong – someone who wanted to learn how a patented device worked would only need to read the patent specification. Patentable inventions in software, however, generally do not have these characteristics. Software devices typically cannot be readily understood by casual inspection, and particularly not without access to human-readable source code or other documentation. Examination of the patent itself is unlikely to yield information equivalent to a reverse engineered inspection because the Federal Circuit does not require would-be patentees of software inventions to disclose the implementing source code or, for that matter, very much at all about their inventions. Accordingly, software patents present unique obstacles to consummation of the patent law’s traditional rights-for-disclosure bargain with the public. The specific reverse engineering techniques commonly used for software, in turn, may raise some infringement problems that are unique to software. The definition of infringement in the patent statute is extremely broad, encompassing anyone who “makes, uses, offers to sell, ... sells..., or imports” a patented product. Reverse engineering a patented computer program by decompiling it likely fits within this broad category of prohibited conduct, at least where the program itself is claimed as an apparatus. Reverse engineering clearly constitutes a “use” of the patented software, though owners of a particular copy of the program surely have the right to use it. More significantly, decompilation may also constitute “making” the patented program by generating a temporary yet functional copy of it in RAM memory and, in certain instances, a longer-term (though still “intermediate”) copy in more permanent memory. Those copies probably constitute patent infringement unless protected by some defense. The result of all of this is that the nominally neutral patent law rule – no defense for reverse engineering – affects software more than other industries.

The need for a reverse engineering exception in patent law militates in favor of adapting the existing doctrines of exhaustion or experimental use to that end. Patent misuse might also be adapted, as it has been in the copyright arena, to prevent patent holders from deterring or prohibiting reverse engineering related to their inventions. The exception might even be created out of whole cloth by reinterpreting the infringement provisions of section 271(a). The resulting patent doctrine would constitute a macro policy lever. As Cohen and Lemley observe, in most industries there is either no need to reverse engineer an invention or reverse engineering can be done without infringing the patent.

The paper concludes by stating, “Only in software is there a need for a particular doctrine to protect the right to reverse engineer —and therefore the ability of improvers to innovate. Thus, a judicially created reverse engineering defense would make sense across the board in software cases but not in other patent cases.”

[1]Samantha Cassar, "App Developers Series: Products-Services Dichotomy & IP (Part I)”, last accessed July 21, 2015

[2]IAMAI, “An inquiry into the impact of India's App economy”, 2015

[3]DoT has set up a 1000 crore app development centre called Application Development Infrastructure and 700 crores under the National E-Governance Plan have been allocated for mobile technology ventures

[4]Supra note 1

[5]Supra note 2

[6]Hippel, Eric von, and Georg von Krogh. "Open source software and the “private-collective” innovation model: Issues for organization science." Organization science 14.2 (2003): 209-223.

[7]Supra note 1

[8]Ibid

[9] Samantha Cassar, “Mobile App Developer Series: Terms of Agreement – Part IV”, last accessed July 21

[10]Ibid

[11]Ibid

[12]Ibid

[13]Ibid

[14]Gartner Data

[15]Supra note 1

[16]Ibid

[17]Samantha Cassar, “Interviews with App Developers: [dis]regard towards IPR vs. Patent Hype – Part II”, last accesed July 21, 2015

[18]Ibid

[19]Ibid

[20]Ibid

[21]Ibid

[22]Ibid

[23]Ibid

[24]Samantha Cassar, “Interviews with App Developers: Name of the Game (Part IV)”, last accessed July 21, 2015

[25]Ibid

[26]"Strategy as Ecology," Harvard Business Review, Vol. 82, No. 3, March 2004.

[27] Evans, D. S., A. Hagiu and R. Schmalensee, 2006, Invisible Engines: How Software Platforms

Drive Innovation and Transform Industries, Cambridge, MA: The MIT Press.

[28]Kouris, Iana and Kleer, Rob, "BUSINESS MODELS IN TWO-SIDED MARKETS: AN ASSESSMENT OF STRATEGIES FOR APP PLATFORMS" (2012). 2012 International Conference on Mobile Business. Paper 22.
http://aisel.aisnet.org/icmb2012/22

[29]Fransman, M. (2014) Models of Innovation in Global ICT Firms: The Emerging Global Innovation Ecosystems. JRC Scientific and Policy Reports –EUR 26774 EN. Seville: JRC-IPTS

[30] Deniz and Kehoe, Factors that attract and retain third party developers in mobile ecosystems, June 2013

[31]Nadea Saad Noori (2009) Managing External Innovation: The case of platform extension, available at http://www3.carleton.ca/tim/theses/2009/Noori2009.pdf

[32]Tsai, Phal & Robert, Industry Platform Construction and Development in a changing environment: Evidence from the ICT Industry, available at http://druid8.sit.aau.dk/acc_papers/6s5aqckmne7ggybu0vfxryrynuog.pdf

[33] Supra note 9

[34] Ibid.

[35]John Baskin, Competitive Regulation of Mobile Software Systems: Promoting Innovation Through Reform of Antitrust and Patent Laws (2013)

[36] Constantinou, 2012b

[37]Ibid.

[38]Luis H Hestres (2013) App Neutrality: Apple’s App Store and Freedom of Expression Online , American University , International Journal of Communication 7 (2013), 1265–1280

[39]Supra note 9

[40]Ibid.

[41] Supra note 9

[42]App Annie Data

[43]Supra note 1

[44]Samantha Cassar, “Interviews with App Developers: Open Source, Community, and Contradictions – Part III”, last accessed July 21

[45]Ibid

[46]Ibid

[47]Ibid

[48]Ibid

[49] William Fisher, INTELLECTUAL PROPERTY AND INNOVATION: THEORETICAL, EMPIRICAL, AND HISTORICAL PERSPECTIVES

[50]Patent Quality and a Two‐Tiered Patent System (Vidya Atal and Talia Brar, 2014)

[51]http://copyrightalliance.org/2014/05/federal_circuit_releases_decision_oracle_v_google

[52]http://copyrightalliance.org/2014/05/federal_circuit_releases_decision_oracle_v_google#.VYf0i9Z5MxB

[53]http://escholarship.org/uc/item/4qr081sg

For more details visit https://cis-india.org/a2k/blogs/pervasive-technologies-project-working-document-series-literature-review-on-ipr-in-mobile-app-development

Announcing the dates, theme and tentative tracks for the Global Congress on Intellectual Property and the Public Interest 2015

sinha — 2015-03-19T06:34:53Z

We are pleased to announce that the Global Congress will be held from 15th-17 December 2015. The theme of the 2015 Global Congress is Three Decades of Openness; Two Decades of TRIPS. The four tentative tracks include Openness, User Rights, Access to Medicines, and Intellectual Property and Development.

Save the date: 15th (Tuesday) to 17th (Thursday) December, 2015 (both dates inclusive) [and 18th (Friday) December, 2015]

This year's Congress will be held over three days, from the 15th to the 17th of December, 2015 (both dates inclusive). Additionally, the venue will be reserved for an extra day (18th Dec, 2015) to accommodate non-scheduled follow up discussions, spillovers and allow for individually organized meetings/discussion sessions.

Theme

The theme for the Global Congress is Three Decades of Openness; Two Decades of TRIPS. Discussions in all tracks, as well as cross track conversations will be tailored around this theme.

Tentative Agenda

Day 1 of the Congress (15th December, 2015) will be open to all interested participants, including representation from the government, the judiciary, industry, academia, research/advocacy/policy organizations and any others. However, Days 2 and 3 of the Congress (16th and 17th December, 2015, respectively) shall comprise closed-door sessions, open only to participants registered/invited for the Congress. An additional day (Day 4 - 18th of December, 2015) has been set aside for smaller meetings and discussions on existing or potential collaborations between participants; to continue conversations begun on Days 1, 2 and 3; or to have meetings/presentations/discussions which we might not be able to strictly accommodate within the agenda.

Tracks and the 'Room of Scholars'

Proposed tracks include the following:

1. Openness
2. User Rights
3. Access to Medicines
4. Intellectual Property and Development.

These may be modified based on funding and logistics. We shall put out more updates on funding, proposed agenda for each track and track leaders as soon as possible.

This year's Congress will also feature an additional 'Room of Scholars'. As in the past three editions of the Congress, since discussions in track sessions might be tailored towards evidence based policy making, a need was felt to create a space for academic conversation as well. 'The Room of Scholars' has been conceptualized as that cross-cutting space, not restricted to a particular track. but as running along side them. The 'Room of Scholars' will be an opportunity for the presentation of longer, more detailed academic research papers.

Venue - National Law University, Delhi.

National Law University, Delhi (http://www.nludelhi.ac.in/) shall be the venue for this year's Congress. Google Map Location - https://www.google.co.in/maps/place/National+Law+University/@28.599374,77.023701,15z/data=!4m2!3m1!1s0x0:0x14217e8eec6152fa

Accommodation

We're negotiating discounted rates with various accommodation options close to the venue. We shall inform you as and when we have more updates.

About the Global Congress on Intellectual Property and the Public Interest

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

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

CIS Global Congress Planning Team

Swaraj Paul Barooah- swaraj,barooah@gmail.com
Nehaa Chaudhari- nehaa@cis-india.org
Anubha Sinha- anubha@cis-india.org
M.P. Nagaraj- nagaraj@cis-india.org
Maggie Huang- maggie@cis-india.org
Pranesh Prakash- pranesh@cis-india.org
Rohini Lakshane- rohini@cis-india.org
Sunil Abraham- sunil@cis-india.org

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

Academia and Civil Society submit critical comments to DIPP on draft National IPR Policy

sinha — 2015-03-08T11:27:05Z

As our readers may be aware, the DIPP had initiated public consultation on the drafting of India’s first National IPR policy in November 2014.

These were published as two separate blog posts on Spicy IP (Part I and Part II).

The second round of consultation on the National IPR Draft Policy (draft policy) ended on January 31, 2015. Last week, we brought to you a guest post by Raghul Sudheesh who presented criticisms submitted by Prof. NS Gopalakrishnan, Director and Dr. TG Agitha, Associate Professor at Inter University Centre for Intellectual Property Rights Studies (IUCIPRS at CUSAT).

This two part post highlights two more submissions: first, made by Prof. Srividhya Ragavan (University of Oklahoma), Prof. Brook Baker (Northeastern University), Prof. Sean Flynn(American University) (click here); and second, by Centre for Internet and Society, Bangalore (CIS). In November 2014, the professors also made submissions to the Office of United States Trade Representative (USTR) objecting to US’ threats of unilateral trade sanctions, and argued in support of India’s current IPR regime.

The following sections discuss the submission made by Prof. Srividhya Ragavan, Prof. Brook Baker and Prof. Sean Flynn. The authors have shared with us a draft version of the submission as well (authored by Prof. Raghavan and Prof Baker) and you may access it here. The two submissions are substantially similar, and therefore, I have discussed the points made in the final submission only.

Broad observations and caveats

According to the authors, the policy begins with a noble objective to maintain a balance between rights and obligations (protections, limitations and exceptions) as a means to serve constitutionally recognized ends of developing scientific and creative capacities of Indian society. However, the objective soon loses steam when one comes across clauses disturbing the balance in favour of rights holders (highlighted in subsequent sections).

The document also erroneously treats IP as an end in itself, rather than a means to higher social goals and functions; and fails to mention that there exist non-IP centric policies, which are equally, possibly better suited to meet such goals. The document depicts IP as a magic tool to disperse greater creativity and innovation. In view of such dubious characterisation of IP, the authors are quick to add that the policy would be more aptly titled “Views on the Future of Creativity and Innovation in India”! To fix this muddled projection of IP, the authors at the very outset recommend that the policy imbibe the following norms, broadly:

Firstly, intellectual property systems are means to the greater ends of society, not ends in themselves.
Secondly, the ends that IP is meant to serve include to promote both production of and access to fruits of science and creativity.
Thirdly, in order to achieve the production and access promoting ends of there is a need for context-specific tailoring of protections and exceptions and limitations to achieve a proper balance of rights and obligations.

Further, the policy recommends India becoming more active in negotiations at the international level, and in this regard the authors suggest India to actively resist and reject any TRIPS plus provisions. They express concern about the policy’s intent on commercializing IP, and warn about not going overboard with the commercialization, lest it interferes or diminishes access to medicines, and state that this is where the policy should have mentioned flexibilities in Indian IP law. While addressing specific clauses, the authors warn that steps to introduce a trade secret legislation should be mulled over more, and the proposed law should reconcile with protection of traditional knowledge. Reviewing legislations and their implementation is a welcome step, but law makers need to be extremely cautious before adding more protections to the IP mix. The authors also raise their doubts about the competence and expertise of the think-tank constituted to draft the policy.

What the policy should have done instead (as per the submission)

Articulated the limited role of IP in fostering innovation, creativity and societal goals more accurately – the policy goes as far as to deem copyright and patents as ‘intellectual creations’ on page one! The policy should also have highlighted literature which indicated that IP promises are grossly overemphasized particularly with respect to low- and lower-middle income countries.
Not glorified IP as a magic tool at the altar of other instruments (effective instruments include capacity building, technology transfer, and investment strategies) to increase economic growth. For instance, the IP Hall of Fame section proposes to celebrate only ‘IP innovators &creators’ and ignores other innovators/creators.
Stressed on the importance of limitations and exceptions – the policy calls for case studies of “successful use of IPRs” but not of limitations and exceptions to intellectual property rights, nor of open access tools like Creative Commons licensing or of any other knowledge governance policies. By neglecting the role of limitations and exceptions and focusing on IPRs only, the policy also takes two steps backwards by ignoring amendments to patent and design laws – changes which facilitated the introduction of flexibilities into India’s IPR law. The policy should have also defended India’s compulsory licensing decisions and produced evidence to support the same.
Held back on its enthusiasm to increase the infrastructure for IP specialist courts. In a country where the poor is struggling with access to justice, it is unjustified to put such matters on the backburner and focus on IP adjudication.

In the end, the authors draw up a list of core IP debates that the policy should address, inter alia: clarification of patent eligibility threshold on controversial subject matters; reexamination of the policy on exhaustion of IP rights; calibration and defining the impact of competition law on the exercise of IP exclusive rights; deciding whether India will continue to improve the compulsory and government use licensing regime to broaden permissible grounds for such licenses; articulating India’s position on counter IP overreach of other countries on IP and trade such as USTR’s unilateral Special 301 Watch List and US International Trade Commission investigations; increasing collaboration with developing countries to take a coordinated stand on common IP and trade issues; clarifying and broadening standards for fair use and affordable access to copyright protected works and translation of the same, especially with respect to educational and scientific resources, etc.

Public consultation on the first draft of the National IPR Policy concluded this month. The DIPP received many submissions on the draft policy and also held stakeholder meetings. We’ve discussed two other submissions on SpicyIP (here and here), and this post discusses the submission made by Centre for Internet and Society, India. For our readers’ information, Centre for Internet and Society (CIS) is a non-profit research organisation that works in the areas of issues of intellectual property law reform, openness, privacy, freedom of speech and expression and Internet governance, accessibility for persons with disabilities, and engages in academic research on digital humanities and digital natives.

Like the other two submissions, CIS’ submission also reiterates that a National IPR Policy is not something to be rushed into without adequate evidence and consultation. The submission highlights certain principles that should be followed in the the formulation of a National IPR Policy, and also provides comments and recommendations for the draft policy. To begin with, the submission claims that the vision and mission are at odds with the methods suggested by the draft Policy. While the vision encourages growth for the ‘benefit of all’ and embraces the philosophy that knowledge owned (should be) ‘transformed into knowledge shared’ and, the mission expresses a commitment to establish a balanced, dynamic and vibrant intellectual property system in India, both sections leave much to be desired. The policy should also have envisioned (and set a mission) towards:

The creation of a balanced IP framework and committing to do so by including adequate limitations and exceptions; duly acknowledged that IP is not necessarily the best and the only solution to promoting creativity, innovation and access; and prevent unreasonable and disproportionate remedies to IPR law violations; and
Recognized that upholding freedom of expression and due process of law are essential pillars of any IP regime.

One of the (many) assumptions made by the policy is that increased IP will lead to a corresponding growth in innovation. The submission flags this and cites evidence to prove that there exists no established nexus between intellectual property and innovation, and there are reports which suggest that an increase in patents is not directly proportional to an increase in innovation and productivity. Many academic papers have concluded that the connection between patents and innovation/productivity is at best, unambiguous, and there are no positive correlations in the developing countries.

The submission also warns against introduction of a utility model protection system and mentions a couple of drawbacks- explosion in litigation of poor quality patents and legal uncertainty – which impact small business the maximum in terms of costs; risk of the system being used by foreign companies more than local firms. Utility model rights can be, and have been, used by companies to cordon off entire areas of research. Reports also suggest that in China, the abundance of utility models has led to lowering of quality of innovation. Creation of a second-tier patent protection system would lead to a deluge of low quality patents, and the impact of such a system remains debatable, especially in a developing country like India.

The policy also makes an unequivocal commitment to increase IP output at national research labs and universities. The submission cautions against use of excessive IP to cordon off timely access to valuable research produced at public funded institutions and points out that the commitment is at odds with its vision of ‘knowledge sharing’. Any IP resulting from of publicly funded research should automatically belong to the funder. Further, a focus on maximising IP will lead to research being conducted only in areas of commercial value. The objective of the section goes against the recent steps by the government to make research openly accessible in Department of Science and Technology and the Department of Biotechnology as well as other institutions. On a similar note, the submission recommends that the government develop and support the evolution of open standards. The Policy must not encourage use of IP to limit access to standards, because these are the foundational rules any technology must adhere to enter the market or ensure quality. To make the government’s ‘Digital India’ and ‘Make in India’ initiatives a success, it is imperative that standards are openly accessible – not just for the technology sector, but also India’s manufacturing sector. It would also help to establish reasonable and non-discriminatory patent pools, so that even small scale entities can commercialise their inventions based on standards with relative ease. For instance, CIS has earlier proposed that the establishment of a a government-aided patent pool of standard essential technologies in mobile phones will facilitate cross-licensing. This may potentially help avoid a patent thicket and patent licensing war in India, the kind that has erupted internationally.

On the issue of negotiating international treaties and agreement, the submission recommends that the policy state that such negotiations shall be conducted in consultation with various stakeholders, and in a transparent manner. Regional FTAs should not override nor dilute TRIPS’ flexibilities.

Lastly, it strongly pushes the policy to not just ‘study the role of limitations and exceptions’ as future policy development, but also commit to include, adopt and periodically renew of limitations and exceptions in India’s intellectual property laws.

In conclusion, the submission seeks the creation of a policy which 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.

For more details visit https://cis-india.org/a2k/blogs/academia-and-civil-society-submit-critical-comments-to-dipp-on-draft-national-ipr-policy

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

sinha — 2015-01-07T13:34:51Z

We are pleased to announce that National Law University, Delhi will be hosting the fourth edition of the Global Congress on Intellectual Property and the Public Interest in December 2015.

About National Law University, Delhi

National Law University, Delhi ("NLU-D") is a premier law school located in Dwarka, Delhi. NLU-D aspires to be a University producing stellar research and has already undertaken steps in that direction. The excellent infrastructure offered to its students is in sync with progress on the academic front. The University regularly plays host to international and national events.

About the Global Congress on Intellectual Property and the Public Interest

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

Global Congress, December 2015: Save the date

We will soon announce the exact dates for the Global Congress to be hosted in December 2015. Please share with us funding proposals for conferences/events and details of potential funders, or help out with funding, if possible.

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

CIS Global Congress Planning Team

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

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

Department of Science and Technology & Department of Biotechnology adopt Open Access Policy

sinha — 2014-12-29T10:17:52Z

This post discusses the newly adopted Open Access Policy of the Department of Science and Technology & the Department of Biotechnology.

The Ministry of Science and Technology and Earth Sciences approved the Policy on Open Access to Department of Biotechnology(“DBT”) and the Department of Science (“DST”) funded research last week. The DBT and DST Open Access Policy(“Policy”) is a laudable step towards implementing open access to publicly funded research and is also in sync with other open access initiatives by Government funded institutions such as the Council of Scientific and Industrial Research(“CSIR”), Indian Council of Agricultural Research(“ICAR”) and Institute of Mathematical Sciences(“IMSc”).

You may access the approved policy here.

CIS participated in developing the policy and made various submissions with the goal of formulating a stringent open access policy. The drafting committee comprised of members of the DST and DBT. The drafting began in June 2014 and subsequently underwent two rounds of public consultation. You may access and read about the first draft here. I blogged about CIS' comments and the resultant draft policy here and here.

While the CSIR and ICAR present outlines of their open access policies, the IMSc provides access to a digital repository containing digital theses/dissertations, matscience reports and other publications of institute members. CIS also sent comments to the ICAR upon release of ICAR’s draft policy.

Key insertions and amendments to the final draft of the Policy

The initial draft of the Policy did not mandate depositing literature in a repository. The approved Policy requires researchers to compulsorily archive their research and provides access to the same. Requests for embargoed papers deposited in a repository may be forwarded to the authors by use of a Request Button made available in the repository software. To ensure timely dissemination of research the embargo period has been further shortened and the Policy now recommends “.. the embargo should be no longer than 6 months for Science, Technology and Medicine (STM) disciplines and 12 months for Arts, Humanities and Social Sciences.” CIS strongly recommended an embargo period of one year, and making deposits in repositories mandatory, regardless of the open access routes ( Gold OA or Green OA) adopted by the researcher.

To encourage making publications open access, the Policy also states that extrinsic metrics such as Journal Impact Factors should not be the criteria to assess a researcher's work. Thus, the Policy seeks to create a level playing field for assessment of quality of publications by making the title of the journal irrelevant. However, to this end, some concerns remain. The Policy does not address the legal position of copyright vesting with the government and the latter retaining rights to reproduction of the work in order to issue free copies of the work to the public. The Policy apparently relinquishes the its rightful ownership of the Government in the research by stating that it does not intend to override the agreements between the researchers and publishers, however, it recommends the authors to bring to the notice of publishers their obligations under the Policy. This is a cause for grave concern because the bargaining power still rests in the hands of the publishers, who may impose unfair terms on researchers to make the publication open access. Furthermore, the Policy fails to establish a time period for compliance and setting up of required infrastructure, thereby leaving obligations and duties of various stakeholders undefined.

Nonetheless, the policy is a welcome step in the field of Indian scientific research. It stands to impact approximately 18,000 papers published since 2013 under the aegis of the DBT and DST. As pointed out earlier, in the recent past many scientific research institutions have implemented open access policies. It is hoped that the move shall be emulated across all disciplines, including arts, humanities and social sciences.

For more details visit https://cis-india.org/openness/blog-old/department-of-science-and-technology-department-of-biotechnology-adopt-open-access-policy

Intellectual Property in Mobile Application Development in India

sinha — 2015-08-31T14:33:06Z

A steady rise in smart phone penetration in India has led to a corresponding growth of the mobile application development industry. Mobile application development like all technological implementations is subject to intellectual property issues. However, very little is understood about the effect of existing patent and copyright law on this niche industry. I aim to develop an understanding of the mobile applications industry, and how it is governed by current Indian patent and copyright regime. I will also use this research to inform the optimal ways in which policymakers may ensure the continual emergence of the mobile applications industry. This blog post lays down a document delineating the research methodology and research questions within the Intellectual Property in Mobile Application Development in India chapter under the Pervasive Technologies Project. The document is a work in progress.

Introduction to the “Intellectual Property in Mobile Application Development” chapter

Software companies in India were traditionally operating on the software as a service (SAAS model). Service contracts signed within this industry ensured that all IPR developed during a project was owned by the client. With the advent of the smart-phone, many software developers left SAAS enterprises in pursuit of developing their own mobile application products (“mobile apps”). Several developers began to aggressively acquire or create patent portfolios around their products.¹ However, it has been observed that mobile apps continue to be increasingly produced in imitation of other products or services or by more discrete means of copying source code or content without the right to do so.

The overall objective of this chapter is to develop a holistic picture of the mobile apps development ecosystem in India in order to portray the decisions developers are making within their practice as a function of how India's intellectual property regime operates within this ecosystem. I will also examine whether existing regimes of intellectual property interact inhibit or accelerate the growth of the mobile applications development ecosystem in India, especially in conjunction with market and cultural forces arising as a result.

Research Questions and Methodology

1.1. Who is the primary actor in the mobile applications development cycle in India?

Method: Analysis of the quantitative research conducted by Samantha Cassar across 267 mobile applications developers.²

Create a new survey instrument and supplement with relevant external expert interviews obtained from Samantha Cassar's qualitative research.

The interviews shall be conducted with respondents based out of Mumbai, Pune and Hyderabad
The exercise targets 10 developers in each city

The analysis of the interviews and results of Samantha's web survey shall be verified by an expert well-versed with the analysis of qualitative and quantitative data

1.2 Is the mobile apps marketplace organically developing into a Bazaar model, or a Cathedral model?

Method: Literature review

1.3. What are the contractual terms between the enterprise and the employee? What is the typical nature of agreements in the mobile apps development industry between enterprise-employee and enterprise- client?

Method: Analysis of the quantitative research conducted by Samantha Cassar and supplement with relevent external expert interviews obtained from her qualitative research.

What is the nature of innovation emerging from the mobile app industry? What is the awareness of the mobile applications developer and its enterprise of rules concerning code, content and design? How does re-use and sharing of code, content and design occur in the mobile application developer ecosystem ? What is the perceived impact of the Indian IPR regime on the aforementioned aspects? Finally, do the emerging trends in re-use and sharing of code run afoul of Indian IP law?

Method: Analysis of Indian Patent and Copyright regime to assess the legality of prevailing practices in the ecosystem.

Analysis of the quantitative research conducted by Samantha Cassar and supplement it with relevant external expert interviews obtained from Samantha's qualitative research.

Method: Literature review and analysis of the new survey instrument.

   4. How does Indian Copyright law and patent law apply to the mobile applications development ecosystem, in respect of the various business models operating in the industry?

       Method: Literature review

Method: Literature review

4.2. Similarly, copyright law has a distinct design for digital objects. Examine the design and its suitability to regulate a mobile application.

Method: Literature review to trace the development of copyright law. Copyright was designed to regulate a physical book publishing industry. By extending its application to myriad objects, the design has gone through significant changes. Also, conduct expert interviews in the field to understand the practice and gather qualitative data.

1 See Lava aims for 100 mobile apps, available at http://spicyip.com/2013/01/guest-post-lava-aims-for-100-mobile-app.html

2 Out of 267 respondents, 93 responded in full and 164 responded partially

3See Question 1.2 of this document

For more details visit https://cis-india.org/a2k/blogs/intellectual-property-in-mobile-application-development-in-india-1

Methodology: Intellectual Property in Mobile Application Development in India

sinha — 2015-08-10T15:20:09Z

Introduction to the “Intellectual Property in Mobile Application Development in India” chapter

Software companies in India were traditionally operating on the software as a service (SAAS model). Service contracts signed within this industry ensured that all IPR developed during a project was owned by the client. With the advent of the smart-phone, many software developers left SAAS enterprises in pursuit of developing their own mobile application products (“mobile apps”). Several developers began to aggressively acquire or create patent portfolios around their products.[1] However, it has been observed that mobile apps continue to be increasingly produced in imitation of other products or services or by more discrete means of copying source code or content without the right to do so.

Research Questions and Methodology

1.1. Who is the primary actor in the mobile applications development cycle in India?

Method:

1. Analysis of the quantitative research conducted by Samantha Cassar across 267 mobile applications developers.[2]

2. Create a new interview instrument and supplement with relevant external expert interviews obtained from Samantha Cassar's qualitative research.

◦ The interviews shall be conducted with respondents based out of Mumbai, Pune and Hyderabad

◦ The exercise targets 10 developers in each city

The analysis of the interviews and results of Samantha's web survey shall be verified by an expert well-versed with the analysis of qualitative and quantitative data

1.2 Is the mobile apps marketplace organically developing into a Bazaar model, or a Cathedral model?

Method: Literature review

Method: Analysis of the quantitative research conducted by Samantha Cassar and supplement with relevent external expert interviews obtained from her qualitative research.

2. What is the nature of innovation emerging from the mobile app industry? What is the awareness of the mobile applications developer and its enterprise of rules concerning code, content and design? How does re-use and sharing of code, content and design occur in the mobile application developer ecosystem ? What is the perceived impact of the Indian IPR regime on the aforementioned aspects? Finally, do the emerging trends in re-use and sharing of code run afoul of Indian IP law?

Method: Analysis of Indian Patent and Copyright regime to assess the legality of prevailing practices in the ecosystem.

Analysis of the quantitative research conducted by Samantha Cassar and supplement it with relevant external expert interviews obtained from Samantha's qualitative research.

Method: Literature review and analysis of the new survey instrument.

4. How does Indian Copyright law and patent law apply to the mobile applications development ecosystem, in respect of the various business models operating in the industry?

Method: Literature review

Method: Literature review

4.2. Similarly, copyright law has a distinct design for digital objects. Examine the design and its suitability to regulate a mobile application.

Method: Literature review to trace the development of copyright law. Copyright was designed to regulate a physical book publishing industry. By extending its application to myriad objects, the design has gone through significant changes. Also, conduct expert interviews in the field to understand the practice and gather qualitative data.

[1]See Lava aims for 100 mobile apps, available at http://spicyip.com/2013/01/guest-post-lava-aims-for-100-mobile-app.html

[2]Out of 267 respondents, 93 responded in full and 164 responded partially

For more details visit https://cis-india.org/a2k/blogs/methodology-intellectual-property-in-mobile-application-development-in-india

Second Draft of Open Access Policy of the Department of Biotechnology and Department of Science released

sinha — 2014-10-30T00:33:49Z

The Department of Biotechnology and the Department of Science, Ministry of Science and Technology, Government of India drafted an Open Access Policy (“Policy”) in consultation with several open access experts, government officials and CIS. The second draft of the Policy released last week and is open for comments till 17th November, 2014.

The Centre for Internet and Society (“CIS”) commends the efforts of the Ministry of Science and Technology, Government of India to make scientific research publicly available by developing an open access policy. The first and second drafts of the Policy may be accessed here. The following part highlights the changes inserted in the second draft of the Policy.

Second draft of the Department of Biotechnology and the Department of Science Open Access Policy

The second draft has been titled “Policy on open access to DBT and DST funded research.” At the outset, the second draft reflects that the Policy is voluntary and not mandatory in nature. To reiterate this, the Department of Biotechnology and the Department of Science (“DBT-DST”) acknowledge and respect right of researchers to publish their work in a journal of their choice in the Policy. However, the DBT-DST maintains that it will not underwrite article processing charges. In addition, the Policy respects the limitations placed on research outputs under Indian law and intellectual property policies of the respective institutions.

The Policy lays out that the process for making a research output openly accessible will start at the institutional level, and it has been made mandatory for institutions which receive core funding from DBT-DST to set-up an Institutional Repository(“IR”). The DBT-DST will provide adequate assistance to set up institutional repositories. For other institutions, it is strongly suggested that they set up an IR. Meanwhile, institutions can submit their work in the central repository created by the DBT and DST (dbt.sciencecentral.in and dst.sciencecentral.in). The Ministry of Science and Technology will set up a central harvester (www.sciencecentral.in) that will harvest the full text and metadata of these publication.

The recommended deposit period of the works has been extended to two weeks after the acceptance by the journal, and the recommended embargo period is less than a year. Depositing in a suitable repository has been made mandatory for all research outputs. CIS strongly recommended an embargo period of one year, and making deposits in repositories mandatory, regardless of the open access routes ( Gold OA or Green OA) adopted by the scientist.

The draft makes it clear that the Policy does not intend to override the agreements between the researchers and publishers, however, it recommends the authors to bring to the notice of publishers their obligations under the Policy.

In furtherance of creating awareness of open access, the DBT-DST intend to celebrate “Open Access Day” during the International Open Access Week (http://www.openaccessweek.org/) by organizing sensitizing lectures, programmes, workshops and taking new OA initiatives.

The second draft successfully addresses concerns raised by scientists and publishers on the first draft. The comments on the first draft may be accessed here. In the comments, the scientific community requested clarification on the mandatory nature of the policy. It also raised the issue of impeding career advancement in view of limited number of open access journals and the dependence on publications in certain noteworthy journals while hiring. Therefore, the second draft of the Policy makes it voluntary to publish open access, however, depositing in repositories has been made mandatory.

Further, concerns about IRs and central repository have been addressed in the second draft with the DBT-DST committing to assist institutions in setting up IRs.

Some publishers raised concerns about the stipulated embargo period, and suggested it be extended to a variable of 12-24 months, instead of the 12 months period recommended in the Policy. However, the second draft retains the embargo period of one year because scientific research moves at a fast pace, and locking crucial research for more than one year runs the risk of rendering the research outdated.

FAQs on the Policy will be released soon, as requested by several commentators.

About the Policy

CIS has been assisting the DBT-DST on developing the Policy since June 2014. The Policy document was drafted by the Open Access Policy Committee. I blogged about the exercise undertaken to emerge with the first draft which was followed by a round of comments from the public. After releasing the first draft, the Open Access Policy Committee convened a meeting to review the Policy in light of the feedback received. CIS was invited to participate in the meeting and I attended it in furtherance of the submissions made by CIS previously. The second draft is the outcome of the Open Access Policy Committee meeting.

For more details visit https://cis-india.org/openness/second-draft-of-open-access-policy-of-the-department-of-biotechnology-and-department-of-science-released

CIS' Comments on the Department of Biotechnology and Department of Science Open Access Policy

sinha — 2014-08-22T15:46:45Z

In July 2014, the Department of Biotechnology and the Department of Science, Ministry of Science and Technology, Government of India released a draft Open Access Policy. CIS participated in discussions along with experts brought on board by the Drafting Committee to develop and review the open access policy. As a follow-up, CIS prepared comments to the draft Policy. This post makes available CIS' comments to the draft Policy.

The Policy was drafted after multiple rounds of consultation with Ministry officials, eminent academics and experts with prior experience of drafting open-access policies, and CIS. Prof. Subbiah Arunachalam along with the Open Access Policy Committee led the discussions. The draft Policy may be accessed here. You may access CIS' detailed post on its previous work on the draft Policy here. The comments provided by CIS follow.

Click here to download a pdf version of the comments.

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COMMENTS ON THE

PROPOSED OPEN ACCESS POLICY OF THE DEPARTMENT OF BIOTECHNOLOGY AND DEPARTMENT OF SCIENCE

THE CENTRE FOR INTERNET AND SOCIETY, INDIA

I. PRELIMINARY

1. This submission presents preliminary clause-by-clause comments by the Centre for Internet and Society (“CIS”) on the Proposed Open Access Policy (“the Policy”) of the Department of Biotechnology (“DBT”) and Department of Science (“DST”).

2. This submission is based on the draft document for an open access policy by the DBT/DST. The draft document may be accessed on the website of the DBT.^¹

3. CIS commends the Ministry of Science and Technology, Government of India for its efforts at seeking inputs from various stakeholders prior to the release of its open access policy. CIS is thankful for the opportunity to have been a part of the discussion during the framing of the Policy; and to provide this clause-by-clause submission, in furtherance of the feedback process continuing from the aforesaid draft Policy.

II. OVERVIEW

4. The Centre for Internet and Society is a non-governmental organization engaged in research and policy work in the areas of, inter alia, access to knowledge and openness.^² This clause-by-clause submission is consistent with CIS’ commitment to safeguarding general public interest, and the interests and rights of various stakeholders involved. Accordingly, the comments in this submission aim to further these principles and are limited to those clauses that most directly have an impact on them.

III. CLAUSE-BY-CLAUSE COMMENTS AND ANALYSIS

5. “An important function of DBT/DST is to support basic, translational and applied scientific research through the creation of suitable infrastructure, by providing funding to individual scientists, institutions and start-ups, and through any other means deemed necessary.”

5.1. CIS has observed the superior standard of scientific research and development performed at DST/DBT^³, and the steps taken to create high quality infrastructure by providing direct and indirect funding to several individual scientists, institutions and start-ups.

5.2. CIS strongly supports DBT/DST’s endeavour to extend the benefits of scientific research to the public produced by the persons in the foregoing comment by creating an open access policy.

5.3. CIS believes that the creation of an open access policy will advance the “creation of suitable infrastructure” by DBT/DST. Further, academic literature argues that open access works have a greater impact than works that are not freely available^⁴ and the public ought to benefit from research funded by the taxpayers’ money.^⁵

6. “Since all funds disbursed by DBT/DST are public funds, it is important that the information and knowledge generated through the use of these funds are made publicly available as soon as possible.”

6.1. The Policy proposes usage of the phrase “made publicly available.”

6.2. It is submitted that the phrase “made publicly available” does not sufficiently convey or establish the specific rights of the public with regard to the use of the information and knowledge generated at DBT/DST.

6.3. Under Indian Copyright law^⁶, the Government is the first owner of research “made or published under the control or direction” of any of its department or public undertaking in the absence of a contract to the contrary. Therefore, the Government is the owner of the knowledge and information generated at DBT/DST.^⁷ The author by virtue of section 57 of the Indian Copyright Act, 1957, however, retains the following rights in the publication:

a. Identification right or attribution right;

b. Right to maintain integrity in the work; and

c. Right to prevent destruction of the work.

These rights are collectively known as the author’s moral rights. They remain with the author even after assignment of the copyright or first ownership vesting with the Government. Whereas, the Policy permits unfettered access to research, there are limitations on further use of the work placed on third parties by virtue of the aforementioned rights.

6.4. CIS, therefore, in support of maintaining precision of the Policy recommends use of the phrase “made publicly available as soon as possible, subject to limitations prescribed under Indian law.”

6.5. CIS strongly supports the Policy’s rationale to make all knowledge openly accessible because it is produced by public funding. The rationale also aligns with academic literature advocating that the public ought to benefit from research funded by the taxpayers’ money.^⁸

7. “Research funded by DBT/DST results in new ideas and knowledge. However, DBT/DST will not underwrite article processing charges levied by some journals.”

7.1. CIS observes that while a majority of open access publications may not charge subscription or other access fees, they usually cover their operating expenses through other sources by levying processing fees paid by or on behalf of authors for submission to or publication in the journal.^⁹

7.2. CIS believes that the Policy should not cause detriment to persons performing research under DBT/DST, safeguard each person’s interest and career advancement. DBT/DST must create suitable infrastructure to accommodate prevalent practices and ensure the best support for its researchers.

7.3. CIS, therefore, suggests the need to establish a durable mechanism for underwriting reasonable publication charges for articles written by its faculty and published in fee-based open-access journals and for which other institutions would not be expected to provide funds.^¹⁰

7.4. The following methods may be elected to further the aforementioned comment:

a. DST/DBT may insert a provision to factor Article Processing Charges into the researcher’s grant; or

b. DST/DBT may establish an OA Publishing Fund. Funding may emerge from potential sources such as the institution al research division responsible with tracking and managing grant funding.

c. DST/DBT may purchase an institutional membership with OA publishers. Several major OA publishers discount their processing charges if an author is affiliated with an institution that has a membership.^¹¹

8. “The DBT/DST affirms the principle that the intrinsic merit of the work, and not the title of the journal in which an author’s work is published, should be considered in making future funding decisions. DBT/DST does not recommend the use of journal impact factors, as a surrogate measure of the quality of individual research articles, to assess an individual scientist’s contributions, or in hiring, promotion, or funding decisions.”

8.1. CIS strongly believes that the policy successfully creates a level playing field for assessment of quality of publications by making the title of the journal irrelevant.

8.2. CIS observes that the particular clause uses “title of the journal” to imply that the title is irrelevant as a factor to judge the merit of the work; whereas in the following sentence uses “DBT/DST does not recommend the use of journal impact factors” as a factor to assess quality of the work. The synonymous use creates an impression that “journal impact factor” is similar to “title of the journal”, which is a specious representation.

8.3. CIS submits that “journal impact factor” is a measure reflecting the average number of citations to recent articles published in the journal, and is only one of the many methods of calculating quality of a publication.^¹²

8.4. CIS suggests that the clause may be amended as follows, insofar as the preceding comments are concerned:

“The DBT/DST affirms the principle that the intrinsic merit of the work, and not the title of the journal in which an author’s work is published, should be considered in making future funding decisions. DBT/DST does not recommend the use of journal impact factors either, as a surrogate measure of the quality of individual research articles, to assess an individual scientist’s contributions, or in hiring, promotion, or funding decisions.”

8.5. Further, CIS submits that open access is in a nascent stage in Indian academia, and a person performing research under DBT/DST may lose external benefits by adhering to this clause. In reality, open access journals are yet to cultivate the high quality readership that certain subscription based journals enjoy. The clause prematurely puts a burden on researchers to not publish in subscription based journals enjoying a stellar reputation. Further, mere posting in online repositories will not ensure that the research will be successfully read and critiqued by other members of the academia.

8.6. CIS believes that DBT/DST should provide sufficient infrastructure and freedom to allow researchers to publish by a method of their choice, and not put unnecessary restrictions on the same.

9. “The DBT/DST believe/s that maximizing the distribution of these publications by providing free online access by depositing them in a gratis open access repository is the most effective way of ensuring that the research it funds can be accessed, read and built upon. This, in turn, will foster a richer research culture.”

9.1. CIS strongly agrees with DBT/DST’s method of disseminating research. The method is in harmony with the principles of open access since it provides free online access by depositing manuscripts in an open access repository.

9.2. CIS submits that the clause may include depositing full-text, metadata and supplementary materials in addition to the paper, in consonance with Clause 12 of this submission.

10. “Grantees can make their papers open-access by publishing in an open-access journal or, if they choose to publish in a subscription journal, by posting the final accepted manuscript to an online repository.”

10.1. The clause indicates that papers may be made open access via two routes, firstly, publishing the paper in an open-access journal, and secondly, publishing the paper in a subscription journal. Publishing the paper in a subscription journal entails the grantee to also post the final manuscript to an online repository.

10.2. CIS strongly supports the Policy’s direction to grantees to deposit “the final accepted manuscript to an online repository” upon adoption of the second route.

10.3. However, CIS believes that to ensure that ends of open access completely meet; the papers should be mandatorily deposited in online repositories which are freely accessible to the public i.e. following the Green OA route completely.

10.4. To strengthen foregoing comment, CIS strongly suggests establishment of a central online repository under the aegis of DST/DBT. This will guarantee open access to the manuscript in the unfortunate case of the institutional repository failing or delaying in tying up with other institutional repositories and the central repository.

10.4. It is submitted that the clause may be accordingly amended as follows^¹³:

“Grantees can make their papers open-access by publishing in an open-access journal and posting the final manuscript to a central online repository, or by publishing in a subscription journal and posting the final accepted manuscript i.e. the pre-print version to the central online repository. A preprint is any version of the paper prior to peer-review and publication, usually the version submitted to a journal.”

What should be deposited?

11. “The final accepted manuscript (after refereeing, revision, etc.) resulting from research projects fully or partially funded by DBT/DST or performed using infrastructure built with the support of DBT/DST and to appear in peer-reviewed professional journals. This also includes review articles, both invited and author initiated, for those who received funding from DBT/DST during that period.”

11.1. It is submitted that the clause fails to declare the applicability of the Policy to non-peer reviewed works, inter alia, doctoral dissertations.

11.2. CIS observed that the DBT offers post-graduate programs, including the DBT Postdoctoral Fellowship (DBT- PDF) programme and Post-Graduate programs, inter alia.^¹⁴

11.3. CIS supports the extension of the policy to works produced under all programs at DBT/DST (mentioned in the foregoing comment) to increase the efficacy of the Policy and to fulfil greatest dissemination of public funded research.

12. “The full-text of the paper and metadata should be deposited. Supplementary materials should be made available along with the publication. At the end of the full-text the acknowledgement should carry the grant number.”

12.1. CIS strongly supports the deposit of metadata, full-text of the paper to be made available along with other supplementary materials.

12.2. This clause rightly seeks supplementary material to ensure holistic access to the research.

12.3. CIS believes that DST/DBT should ensure that the aforementioned material is deposited in a machine readable format thereby permitting accurate search across the open access infrastructure and supporting interoperability. This will lead to a high degree of openness and foster a more rigorous academic culture.

12.4. In furtherance of the preceding comment, CIS submits that DBT/DST may use Digital Object Identifiers (“DOI”) to create persistent citations of publications available online. DOI ensures interoperability across systems and accurate linking of all material in relation to a publication. OECD has successfully implemented the system in its library system, namely, the OECD iLibrary.^¹⁵

12.4. CIS encourages DBT/DST to develop a more detailed policy on issues affecting the infrastructure required to successfully implement open access at it.

13. “Papers resulting from funds received from the fiscal year 2012-13 onwards are required to be deposited. Authors are strongly urged to also deposit final accepted manuscripts from funding received in earlier years.”

13.1. CIS strongly agrees with the scheme of depositing papers.

13.2. It is submitted that this clause will dispel ambiguity for requirement of depositing papers published prior to 2012.

Where to deposit?

14. “The manuscript should be deposited in the grantee’s own institution’s interoperable institutional repository (IR). If the institution does not yet have an IR of its own, then the paper should be deposited in the central repository, which will be created by DBT/DST.”

14.1. CIS strongly supports depositing papers in the aforementioned repositories.

14.2. It is submitted that the manuscript may be mandatorily be deposited in a central online repository (as suggested in the preceding comments), in addition to the grantee’s own institution’s interoperable institutional repository.^¹⁶ This will guarantee open access to the manuscript in the unfortunate case of the institutional repository failing or delaying in tying up with other institutional repositories and the central online repository.

When to deposit?

15. “Deposits should be made within one week of acceptance by the journal. However, if the journal insists on an embargo, the material should still be deposited, but the repository will keep the deposited papers non-OA and only make it fully OA at the end of the embargo period.²Suggest that the period of embargo not be greater than one year.”

15.1. CIS strongly supports the time-frame provided for depositing the paper, and the subsequent clause for keeping the paper “dark OA” in the case of an embargo placed on the paper by the publisher.

15.2. CIS suggests that the sentence “Suggest that the period of embargo not be greater than one year” be re-framed to reflect a conclusive position of the DST/DBT.

15.3. CIS submits that the clause may be amended as follows:

“Deposits should be made within one week of acceptance by the journal. However, if the journal insists on an embargo, the material should still be deposited, but the repository will keep the deposited papers non-OA and only make it fully OA at the end of the embargo period. The embargo should operate for a maximum period of one year.”

Who should deposit?

16. “This policy applies to individual scientists/institutions who have directly received ad-hoc funding or other support/benefits/infrastructure from DBT/DST as well as to scientists working at DBT/DST-aided autonomous institutions who benefit directly or indirectly from the infrastructure and core funding provided by DBT/DST.”

16.1. CIS strongly supports the inclusion of scientists and researchers into the scope of the Policy.

16.2. It is submitted that extending the scope of the Policy to apply to direct beneficiaries as well as indirect beneficiaries of DBT/DST funding/infrastructure shall ensure open access to a large amount of invaluable research.

16.3. The clause may be amended as follows:

“This policy applies to individual scientists/researchers/institutions who have directly received ad-hoc funding or other support/benefits/infrastructure from DBT/DST as well as to scientists/researchers working at DBT/DST-aided autonomous institutions who benefit directly or indirectly from the infrastructure and core funding provided by DBT/DST.”

17. “The principal investigator (PI) or someone authorized by the PI, or anyone authorized by the head of the institution where the work is carried out (such as the librarian), can deposit the papers. Both the PI and the head of the institution will be responsible for timely deposit of the paper.”

17.1. CIS supports the process chalked out to deposit the papers.

17.2. It is submitted that a formal procedure shall ensure efficient and timely deposit of the papers.

Depositing in a repository is mandatory

18. “Unless the deposit ID is quoted in the project report as well as in future proposals for funding, the proposals will not be considered.

Unless the deposit ID is quoted in the project report as well as in future proposals for funding, the proposals will not be considered.

In the rare case where the PI or head of the institution has some valid reasons for not complying with these requirements they should give a suitable explanation in the final report.

For research carried out in institutions under the administrative control of DBT/DST:

Authors of papers that will have no such deposit ID shall not be considered for promotion/appointment/ award/Fellowship/Research Grant.”

18.1. CIS supports the procedure to ensure mandatory deposits in a repository.

18.2. It is submitted that creating unique deposit IDs shall ensure that the PI or head of the institution oversees the process of making a paper open access more efficiently. Further, the clause incentivises authors to gain a deposit ID by depositing their papers in a repository, thereby maximizing open access.

How to deposit?

19. “In case of IRs, the IR administrator (and his/her team) will deposit the material on behalf of the authors. If one wants to deposit the material in the central repository, the author (or one of the authors in case of many) should forward the material to the administrator of the central repository. Those who want to self-archive in an IR may obtain the credentials from the administrators.”

19.1. The clause prescribes the methods prescribed in the Policy to deposit a paper.

19.2. However, CIS believes that depositing papers in the Central repository should be mandatory, since tie-ups with the institutional repositories may fail or get delayed. The Policy should aim at reducing administrative barriers in interest of making papers open access in the least amount of time.

Copyright

20. “In case the scientist produces research as part of her employment with a government body, the copyright vests in the government body, unless otherwise agreed upon to the contrary. Therefore, if the copyright continues to vest in the Government, transfer of rights would have to be by the Government, or by the scientist after prior permission from the Government. If the research has been produced by the scientist in the course of her employment with any institution, copyrights vests in the institution concerned, unless otherwise agreed upon to the contrary. The institution should retain the right to make the articles freely available gratis, whether the journal is open- access or subscription-based.”

20.1. CIS strongly supports the Policy in regard to informing the author about their ownership rights in the research.

20.2. CIS strongly supports a legal arrangement whereby the author is transferred complete copyright in his/her work; and the Government retains a non-exclusive, irrevocable and perpetual licence to disseminate the work publicly for the purposes of this Policy.

20.3. In furtherance of the preceding comment, the clause may be amended as follows:

“In case the scientist/researcher produces research as part of her employment with a government body, the copyright legally vests in the government body, unless otherwise agreed upon to the contrary. In the interest of the authors, the Government will transfer copyright in the work to the author, subject to reservation of certain rights. The Government should retain the right to reproduction of works, to issue copies of the works freely available gratis, whether the journal is open- access or subscription-based.”

21. “The DBT/DST recommend/s that all authors receiving funds from DBT/DST should, at the time of returning the copyright transfer form, inform the publisher that they would retain the right to place the full-text of the final author version in the institution’s IR and DBT/DST Central. This can be achieved by attaching to the copyright transfer agreement the DBT/DST author addendum.”

21.1. CIS strongly supports the pre-condition to be placed by the authors before the publisher before permitting publication of their papers.

21.2. It is submitted that retaining the right to deposit papers in the appropriate repositories shall ensure open access to research produced by the authors, and place a legal obligation on the publisher to honour the principle of open access by virtue of the copyright transfer agreement.

IV. CONCLUDING OBSERVATIONS

22. The Centre for Internet and Society welcomes the opportunity to comment on the proposed Open Access Policy of the Department of Biotechnology and Department of Science and commends the Ministry of Science and Technology, Government of India for its initiative in seeking inputs from the stakeholders.

23. To that end, reiterating its commitment to the values of access to knowledge, openness, freedom of information, protection of general public interest and safeguarding various stakeholders’ interests and rights, the Centre for Internet and Society presents the following concluding observations:

a. That the Policy uses the phrase “made publicly available as soon as possible, subject to limitations prescribed under Indian laws” to adequately convey its purposes.

b. That the Policy may create various mechanisms for underwriting reasonable publication charges for articles written by its faculty and published in fee-based open-access journals and for which the respective institutions would not be expected to provide funds. The mechanisms are as follows:

(i) DST/DBT may insert a provision to factor Article Processing Charges into the researcher’s grant; or

(ii) DST/DBT may establish an OA Publishing Fund. Funding may emerge from potential sources such as the institutional research division responsible with tracking and managing grant funding.

(iii) DST/DBT may purchase an institutional membership with OA publishers.

c. That the Policy should clearly distinguish between journal impact factors and title of the journal in respect of assessing the quality of the publication

d. That to ensure that ends of open access completely meet; the papers should be mandatorily deposited in a central online repository (established by DBT/DST) which is freely accessible to the public i.e. following the Green OA route in toto.

e. That non- peer reviewed works produced at DBT/DST, in addition to peer reviewed works also be deposited by the authors and therefore be included in the appropriate clause.

f. That to ensure that the full-text, meta data and supplementary material is deposited in a machine readable format thereby permitting accurate search across the open access infrastructure; The policy may develop a more rigorous plan for creating adequate infrastructure to ensure interoperability.

g. That the Policy may consider using DOI to establish a robust infrastructure.

h. That the manuscript may be mandatorily deposited a central online repository, in addition to the grantee’s own institution’s interoperable institutional repository to ensure that ends of open access are met.

i. That the copyright should vest with the author and the Government may retain rights to reproduction of the work in order to issue free copies of the work to the public.

j. That certain sentences be suitably modified, as discussed in the preceding sections of these comments.

k. That the Policy fails to establish a target timeline to achieve the objectives and setting up of required infrastructure, thereby rendering the collaborative obligations and duties of various stakeholders undefined. The Policy may insert a clause for the same as follows:

“Targets of the DST-DBT Open Access Policy Implementation (broadly):

Conclude the final terms and conditions of the Policy by <insert date>.
Create a central online repository for authors to submit their material by <insert date>.¹⁷
Encourage institutions to create respective institutional repositories.
Create a website with a user-friendly interface to enable access to the public by <insert date>”

That the Policy fails to address the remedies for non-compliance of its terms and condtitions by any party i.e Government, institution, researcher/scientist. A clause may be inserted as follows:

“Compliance

Researcher/scientist

1. In the event of the researcher/scientist entering into an agreement with a journal publisher, which stipulates unreasonable conditions on the accessiblity, thereby being incompatible with the Policy, the terms of the Policy shall have an overriding effect with regard to making the material publicly accessible.

Institution

2. The insititution shall faciliate and assist the author in depositing the required material in the central online repository.

Government

3. The Government shall enter into a copyright transfer agreement with the author contemporaneously alongwith the conclusion of the employment agreement, and agree to transfer the copyright to the author whilst reserving a non-exclusive, irrevocable and perputal right of reproduction and dissemination of the material deposited. In the absence/violation of a copyright transfer agreement, the Policy grants the researcher/scientist the copyright in the material so authored.”

24. The Centre for Internet and Society would be willing discuss these submissions with the Ministry of Science and Technology, Government of India; and supplement these with further submissions if necessary, and offer any other assistance towards the efforts at developing an open access policy for the DBT/DST.

On behalf of the Centre for Internet and Society

Nehaa Chaudhari

Anubha Sinha

August 19, 2014

1See “DBT-DST Open Access Policy” available at <http://dbt india.nic.in/docs/DBT-DST_Open_Access_Policy.pdf> (last accessed August 11, 2014).

2See www.cis-india.org (last accessed August 11, 2014) for details about CIS’ work.

3See “Annual Report 2012-13”, Ministry of Science and Technology, available at http://www.dst.gov.in/about_us/ar12-13/annual-report-2012-13.pdf (last accessed August 11, 2014).

4See ‘Do Open access articles have a greater research impact?’, Kristine Antelman available at <http://eprints.rclis.org/5463/1/do_open_access_CRL.pdf> (last accessed August 5, 2014).

5 See “Academic knowledge, Open access and Democracy”, available at http://www.arcadiafund.org.uk/media/5454/open-access.pdf (last accessed August 11, 2014)

6Copyright Act, 1957.

7Section 2(k) of the Copyright Act, 1957 read with Section 17 of the Copyright Act, 1957.

8See “Academic knowledge, Open access and Democracy”, available at http://www.arcadiafund.org.uk/media/5454/open-access.pdf (last accessed August 11, 2014)

9See “Compact for Open access publishing Equity”, available at <http://www.oacompact.org/compact/>(last accessed August 10,2014)

10ibid.

11See “Funding open access journal publishing”, Christine Fruin, Fred Rascoe, available at <http://crln.acrl.org/content/75/5/240> (last accessed August 10, 2014)

12 See “Impact factors: arbiter of excellence?”, Martin Frank, available at < http://www.ncbi.nlm.nih.gov/pmc/articles/PMC141180/#n102> (last accessed August 14, 2014)

13 See “Open Access Overview”, Peter Suber, available at <http://legacy.earlham.edu/~peters/fos/overview.htm> (last accessed August 14, 2014).

14See “Human Resource Development: Program”, available at <http://dbtindia.nic.in/uniquepage.asp?id_pk=16> (last accessed August 11, 2014).

15 See "We Need Publishing Standards for Datasets and Data Tables", Green T, available at < http://www.unece.org/fileadmin/DAM/stats/documents/ece/ces/ge.40/2010/wp.8.e.pdf> (last accessed August 11, 2014).

16See “CORE: Three Access Levels to Underpin Open Access”, available at <http://www.dlib.org/dli b/november12/knoth/11knoth.html> (last accessed August 11, 2014).

17See “Streamlined Manual Deposit Progress” available at <https://wiki.library.ucsf.edu/display/OAPI/Streamlined+Manual+Deposit+Progress> (last accessed August 4, 2014)

For more details visit https://cis-india.org/openness/cis-comments-to-the-department-of-biotechnology-and-department-of-science-open-access-policy

CIS Comments to the Department of Biotechnology and Department of Science Open Access Policy

sinha — 2014-08-22T11:05:45Z

For more details visit https://cis-india.org/openness/blog-old/cis-comments-to-the-department-of-biotechnology-and-department-of-science-open-access-policy

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

sinha — 2014-08-22T09:47:27Z

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

The five tracks at the Global Congress 2015 will be:

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

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

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

CIS Global Congress Planning Team

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

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

Analysing Alice Corporation Pty Ltd v CLS Bank International Et Al

sinha — 2014-08-01T19:09:05Z

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

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

Background

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

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

Facts of the case

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

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

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

Determination of patent-worthiness of the subject matter

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

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

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

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

Observations and Implications

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

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

This instruction has had twofold implications –

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

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

· Fundamental economic practices;

· Certain methods of organizing human activities;

· An idea of itself; and,

· Mathematical relationships / formulas.

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

· Improvements to another technology or technical fields;

· Improvements to the functioning of the computer itself; and

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

What can you patent after Alice Corporation v CLS Bank?

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

Timeline of US Court decisions on software patents

2014

Alice Corporation v CLS Bank [13]

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

2012

Mayo Medical Laboratories v Prometheus Laboratories [16]

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

2010

Bilski v Kappos [17]

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

2008

In re Bilski [18]

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

1998

State Street Bank v. Signature Financial Group [19]

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

1995

In Re Beauregard [21]

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

1980s

Diamond v. Diehr [22] (1981)

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

1970s

Parker v. Flook [23] (1978)

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

Gottschalk v. Benson [24] (1972)

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

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

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

[3] ibid.

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

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

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

[7] ibid.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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