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Facebook launches India tech scholars programme for law students
http://editors.cis-india.org/internet-governance/news/times-of-india-june-4-2021-facebook-launches-india-tech-scholars-programme-for-law-students
<b>Facebook India on Friday announced a new initiative - the Facebook India Tech Scholars (FITS) programme - for law students in the country.</b>
<p>The article was <a class="external-link" href="https://timesofindia.indiatimes.com/home/education/news/facebook-launches-india-tech-scholars-programme-for-law-students/articleshow/83235723.cms">published in the Times of India</a> on June 4, 2021.</p>
<hr />
<p style="text-align: justify; ">The novel programme aims to provide students from select leading law schools in the country a platform for research and mentorship on topics related to technology law and policy.</p>
<p style="text-align: justify; ">The first edition, the FITS programme 2021-2022, will offer eight law students an opportunity to work on a research project with leading Indian thinktanks who will also extend mentorship support to the students. It will be open to 4th and 5th year students from the National Law School of India University, Bengaluru, the WB National University of Juridical Sciences, Kolkata, the National Law University, Delhi, and the National Law University, Jodhpur.</p>
<p style="text-align: justify; ">"With rapid advancements in technology and the evolution of technology law and policy in India, the programme is designed to encourage students to develop an independent voice on pressing topics that will have a bearing on future policy discussions in this area," the social networking giant said in a statement.</p>
<p style="text-align: justify; ">"We hope to expand the FITS programme to more students in coming years," it added.</p>
<p style="text-align: justify; ">The FITS programme 2021-2022 will see the Centre for Internet and Society, the Observer Research Foundation, the Carnegie Endowment for International Peace India, and the Software Freedom Law Center participating as mentoring institutions. Facebook is also guided by an experienced and expert Advisory Committee for the duration of the programme. Shardul Amarchand Mangaldas & Co. will be a knowledge partner.</p>
<p style="text-align: justify; ">Applications will close on June 20. The FITS programme will run for a period of nine months, commencing in Summer 2021.<br /></p>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/news/times-of-india-june-4-2021-facebook-launches-india-tech-scholars-programme-for-law-students'>http://editors.cis-india.org/internet-governance/news/times-of-india-june-4-2021-facebook-launches-india-tech-scholars-programme-for-law-students</a>
</p>
No publisherpraskrishnaTechnological Protection MeasuresInternet Governance2021-06-26T04:55:39ZNews ItemPandemic Technology takes its Toll on Data Privacy
http://editors.cis-india.org/internet-governance/blog/deccan-herald-aman-nair-and-pallavi-bedi-june-13-2021-pandemic-technology-takes-its-toll-on-data-privacy
<b>The absence of any legal framework has meant these tools are now being used for purposes beyond managing the pandemic.</b>
<p style="text-align: center; ">The article by Aman Nair and Pallavi Bedi was <a class="external-link" href="https://www.deccanherald.com/specials/pandemic-technology-takes-its-toll-on-data-privacy-996870.html">published in the Deccan Herald </a>on June 13, 2021.</p>
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<p style="text-align: center; "><img src="http://editors.cis-india.org/home-images/ArogyaSetuApp.jpg" alt="Arogya Setu App" class="image-inline" title="Arogya Setu App" /></p>
<p style="text-align: center; "><span class="discreet">People show Arogya Setu App installed in their phones while travelling by special New Delhi-Bilaspur train from New Delhi Railway Station. Credit: PTI File Photo<br /></span></p>
<p style="text-align: justify; "> </p>
<p style="text-align: center; "><img src="http://editors.cis-india.org/home-images/CovidCertificate.jpg/@@images/672b385b-d0b0-49af-953d-ae96a42be117.jpeg" alt="Covid Certificate" class="image-inline" title="Covid Certificate" /></p>
<p style="text-align: center; "><span class="discreet">Jabalpur: A beneficiary shows his certificate on his mobile phone after receiving COVID-19 vaccine dose, at Gyan Ganga College in Jabalpur, Saturday, May 15, 2021. (PTI Photo)</span></p>
<p style="text-align: justify; ">At a time when technology is spawning smart solutions to combat Covid-19 worldwide, India’s digital response to the pandemic has stoked concerns that surveillance could pose threats to the privacy of the personal data collected. Be it apps or drones, there is widespread criticism that digital tools are being misused to share information without knowledge or consent. At the other end of the spectrum, the great urban-rural digital divide is hampering the already sluggish vaccination drive, exposing vulnerable populations to a fast-mutating virus.</p>
<p style="text-align: justify; ">Last year, the Centre, states and municipal corporations launched more than 70 apps relating to Covid-19, demonstrating the country’s digital-driven approach to handling the pandemic. Chief among these was the central government’s contact tracing app Aarogya Setu. Launched under the Digital India programme, the app quickly came under scrutiny over data privacy.</p>
<p style="text-align: justify; ">As per its privacy policy, Aarogya Setu collects personal details such as name, age, sex, profession and location. As there is no underlying legislation forming its basis, and in the absence of a personal data protection bill, serious privacy concerns regarding the collection, storage and use of personal data have been raised.</p>
<p style="text-align: justify; ">The government has attempted to mitigate these concerns with reassurances that the data will be used solely in tracing the spread of the virus. However, recent reports from the Kulgam district of Jammu and Kashmir point to the sharing of application data with police. This demonstrates how easy it is to use personal data for purposes other than which it was collected, and presents a serious threat to citizen privacy.</p>
<p style="text-align: justify; ">Though Aarogya Setu was initially launched as ‘consensual’ and ‘voluntary’, it soon became mandatory for individuals to download the app for various purposes such as air and rail travel (this order was subsequently withdrawn) and for government officials. Initially it was also mandatory for the private sector, but this was later watered down to state that employers should, on a ‘best effort basis', ensure that the app is downloaded by all employees having compatible phones. However, the ‘best effort basis’ soon translated into mandatory imposition for certain individuals, especially those working in the ‘gig economy’.</p>
<p style="text-align: justify; ">Several states had also launched apps for various purposes ranging from contact tracing of suspected Covid patients to monitoring the movement of quarantined patients. As a report by the Centre for Internet and Society observed, given the attention on Aarogya Setu, most of the apps launched by the state governments escaped scrutiny and public attention.Most of these apps either did not have a privacy policy or the policy was vague and often did not provide important details such as who was collecting the data, the time period for retaining the data and whether personal data could be shared with other departments, most notably, law enforcement.Apart from contact tracing apps, the pandemic also ushered in a wave of other apps and digital tools by the government. These include systems such as drones to check whether people are following Covid-19 norms and facial recognition cameras to report to the police whether someone has broken quarantine. Similar to Aarogya Setu, these tools have also largely been brought about in the absence of a legal and regulatory framework.<br />The absence of any legal framework has meant these tools are now being used for purposes beyond managing the pandemic.</p>
<p style="text-align: justify; ">The government is now planning to use facial recognition technology along with Aadhaar toauthenticate people before giving them vaccine shots.</p>
<p style="text-align: justify; ">Aarogya Setu is now linked with the vaccination process. Beneficiaries have been provided an option to register through Aarogya Setu. The pandemic has also provided a means for the government to bring in changes to health policies and introduce the National Health Data Management Policy for the creation of a Unique Health Identity Number for citizens.</p>
<h3 style="text-align: justify; ">Vaccination and digital platforms</h3>
<p style="text-align: justify; ">The use of digital technology has extended to the vaccination process through the deployment of the Covid Vaccine Intelligence Network (Co-WIN) platform.During the first phase of inoculation, beneficiaries were required to register on the Co-WIN app while in the subsequent phases, registration was to be done on the Co-WIN website. The beneficiary is required to upload a photo identity proof.</p>
<p style="text-align: justify; ">While Aadhaar has been identified as one of the seven documents that can be uploaded for this, the Health Ministry has clarified that Aadhaar is not mandatory for registration either through Co-WIN or through Aarogya Setu. However, as per media reports, certain vaccination centres still seem to insist on Aadhaar identity even though beneficiaries may have used another identity proof to register on the Co-WIN website.</p>
<p style="text-align: justify; ">It is also pertinent to note that the website did not have a privacy policy till the Delhi High Court issued directions on June 2, 2021. The privacy policy hyperlinked on the Co-WIN app directed the user to the Health Data Policy of the National Health Data Management Policy, 2020.</p>
<p style="text-align: justify; ">The vaccination drive has been used as a means to push the health identity project forward as beneficiaries who have opted to provide Aadhaar identity proof have also been provided with a health identity number on their vaccination certificate. It is interesting to note that Co-WIN’s privacy policy now states that if the beneficiary uses Aadhaar as identity proof, it can 'opt' to get a Unique Health Id.However, as a recent report revealed, health identity numbers have already been generated for certain beneficiaries without obtaining consent from them for the purpose.</p>
<h3 style="text-align: justify; ">Have the apps been successful?</h3>
<p style="text-align: justify; ">One could argue that privacy concerns are a worthwhile tradeoffin order to contain the spread of thepandemic. But it is worth examining how successful these technologies have been. In reality, the use of digital technology at every stage of combating the pandemic has clearly highlighted the extent of our digital divide. As per data from TRAI, there are around 750 million Internet subscribers in India,which is only a little more than half of India’s estimated 1.3 billion citizens — with this gap having a significant impact on the efficacy of the government’s strategies. Aarogya Setu has fallen far short of its goal, of having near universal adoption. It has limited adoption in much of the country. This has severely limited its efficacy in tracing the spread of the virus. Research from Maulana Azad Medical College has cited socio-economic inequalities,educational barriers and the lack of smartphone penetration as being the key causes behind the app’s limited success, pointing back to the digital divide. Moreover, the app has also brought with it a host of associated problems including lateral surveillance and function creep caused by the addition of new features. All of which, along with the previously mentioned privacy concerns, have served to hamper public trust and adoption.</p>
<p style="text-align: justify; ">A similar situation is seen in the case of vaccination and the Centre’s Co-WIN web portal. The need for registration, first on the Co-WIN app and later on the Co-WIN web portal, has disproportionately affected those who either have no or limited digital access. Many of them belong to vulnerable groups such as migrant and informal sector workers (mainly from disadvantaged castes), LGBTQIA + individuals, sex workers and both urban and rural poor. These issues have also been acknowledged by the Supreme Court, which raised serious concerns about the government being able to achieve its stated object of universal vaccination.</p>
<p style="text-align: justify; ">As the inoculation exercise opened up for the 18-45 age group, it increasingly favoured the urban population who possessed the technological and digital literacy to either create or access a host of tools. One need to only look at the wave of automated CO-WIN bots that arose as soon as the vaccination process was expanded to see how these dynamics manifested.</p>
<p style="text-align: justify; ">Ultimately, the digital-driven approach that the governments have adopted has resulted in a number of issues — most notably, data privacy and exclusion. Going forward, government strategies must actively account for these factors and ensure that citize rights are adequately protected.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/blog/deccan-herald-aman-nair-and-pallavi-bedi-june-13-2021-pandemic-technology-takes-its-toll-on-data-privacy'>http://editors.cis-india.org/internet-governance/blog/deccan-herald-aman-nair-and-pallavi-bedi-june-13-2021-pandemic-technology-takes-its-toll-on-data-privacy</a>
</p>
No publisherAman Nair and Pallavi BediHealth TechPrivacyInternet GovernanceTechnological Protection MeasuresCovid19Healthcare2021-06-26T06:52:52ZBlog EntrySoftware Freedom Pledge
http://editors.cis-india.org/openness/software-freedom-pledge-2015
<b>On September 19, 2015, celebrated globally as Software Freedom Day, a number of enthusiasts got together and collectively took a pledge.</b>
<br />
<p>We, who have gathered together for <a href="http://softwarefreedomday.org/">Software Freedom Day 2015</a>, believe that software freedom is both a matter of ethical principle as well as a matter of pragmatism, and is necessary for a democratic, open society.</p>
<p>We believe that it is desirable that all people, but especially governments, use, contribute to, and spread open standards, free/libre/open source software, open APIs, openly-licensed content (including open data, open access, and open education resources), leading to a vibrant public domain, and ensure that all of the above are accessible for all, including persons with disabilities and other marginalised sections of society.</p>
<p>Given that, we pledge to:</p>
<ul>
<li>use and spread free software amongst our family, friends, and neighbours, both in person and virtually.</li>
<li>demand that services we use in turn use open standards and open APIs, and thus be available for all using free/libre/open source software, without the payment of any royalties.</li>
<li>raise the issue of software freedom with our democratic representatives, to seek that they in turn respect and promote these principles.</li>
<li>as far as possible, making our own work openly available, and seek to convince our employers, publishers, producers, and other persons who might be in a position to restrict </li>
<li>work against any laws, policies — corporate or governmental — or technical restrictions that seek to prevent people from full exercise of their rights, and which are contrary to the above principles.</li>
</ul>
<br />
<br />
<p>Signed by:</p>
<p>Abhaya Agarwal <br />
Ananth Subray <br />
Asutosha Sarangi <br />
Chirag Sarthi J <br />
Prakash Hebballi <br />
Pranesh Prakash <br />
Ralph Andrade <br />
Subhashish Panigrahi <br />
Tito Dutta <br />
Veethika Mishra</p>
<p>
For more details visit <a href='http://editors.cis-india.org/openness/software-freedom-pledge-2015'>http://editors.cis-india.org/openness/software-freedom-pledge-2015</a>
</p>
No publisherpraneshOpen StandardsOpen SourceAccess to KnowledgeFLOSSOpen ContentFOSSEventTechnological Protection Measures2015-09-25T12:26:09ZBlog EntryIndia- EU FTA: A Note on the Copyright Issues
http://editors.cis-india.org/a2k/blogs/india-eu-fta-copyright-issues
<b>In this blog post, Nehaa Chaudhari gives us an overview of some of the provisions of the Free Trade Agreement (FTA) and the copyright issues identified therein. </b>
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<p style="text-align: justify; "><a href="http://editors.cis-india.org/a2k/blogs/india-eu-fta-copyright-issues.pdf" class="internal-link">Click to download the India-EU FTA: A Note on Copyright Issues</a> (PDF, 205 Kb)</p>
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<p style="text-align: justify; ">Against the backdrop of ongoing negotiations dating back to 2007, and, more recently, with parties being unable to make substantial progress on the Indo-EU FTA<a href="#fn1" name="fr1">[1]</a> this note presents an overview on some of the provisions of the FTA and the copyright issues identified therein. This note deals with the issues on two levels- first to examine the impact of intellectual property right provisions in FTAs in general and second to apply these generic principles to the Indo- EU FTA specifically.</p>
<h2>Introduction</h2>
<p style="text-align: justify; ">Investment agreements, of which bilateral investment treaties are a part, and investment chapters in various FTAs often result in an increase in the effective levels of intellectual property protection in one of the countries that is a part to the agreement. This can be done either explicitly, where ‘investment’ may be defined to include IP, or implicitly, for instance, through an expropriation provision.<a href="#fn2" name="fr2">[2]</a> This has concurrently witnessed the growing realization that the promotion of these increased IP standards is not suited to the need of developing countries. Therefore, it has been observed<a href="#fn3" name="fr3">[3]</a>that there is now an attempt by the developed countries to use FTAs as a forum to push for higher standards of IP protection in developing countries, and to restrict the scope of the flexibilities offered by TRIPS, most notably in the sectors of protection of plant varieties, patents and access to medicine, farmers rights and access to information.<a href="#fn4" name="fr4">[4]</a>This approach is inherently problematic, because it then infringes on the developing countries’ ability to achieve their developmental objectives.</p>
<h2 style="text-align: justify; ">Dismantling the Arguments In Favour of Increased IP Protection</h2>
<p style="text-align: justify; ">A prevalent view of thought is that in order to increase Foreign Direct Investment (FDI), developing countries would have to increase their IP protection. This section of the paper seeks to argue that this might not necessarily be the case.</p>
<p style="text-align: justify; ">An illustration of the aforesaid proposition may be <i>Heald’s </i>criticism<a href="#fn5" name="fr5">[5]</a> levied on <i>Mansfield’s </i>paper<a href="#fn6" name="fr6">[6]</a> arguing that there was a direct correlation between the level of intellectual property protection in a country and the foreign direct investment into that country. Further, a study<a href="#fn7" name="fr7">[7]</a> conducted under the aegis of the United Nations has suggested that there was a ‘considerable incentive’ for countries to use the flexibilities provided under TRIPS to maximise net benefits for their development; stating that while in countries with a capacity to innovate stronger IPR protection can reap some benefits in terms of greater innovation at home and a greater diffusion of technology, the same cannot be said about nations without such a capacity, and may in fact impose additional costs.<a href="#fn8" name="fr8">[8]</a></p>
<p style="text-align: justify; ">Specifically in the area of copyright, it has been observed that increased copyright protection can hamper the growth and development of knowledge based industries. <i>Sanya Smith </i>argues that those who control copyright have a ‘significant advantage’ in the knowledge based economy, and says that in the current scenario where ownership of copyright is largely in the hands of industrialized nations, this places developing nations, and smaller economies at a significant disadvantage.<a href="#fn9" name="fr9">[9]</a> She also goes on to argue that increasing copyright protection alone does not seem to be sufficient to stimulate industries, and there may other factors involved. Additionally, copyright could also significantly increase the cost of creative industries.<a href="#fn10" name="fr10">[10]</a> More fundamentally however, access to information and knowledge are amongst the most affected areas as a result of tightening of copyright laws, leaving students, academicians, researchers, scientists and persons with print disability significantly disadvantaged.</p>
<h2>Implications of the Copyright Provisions in the Proposed Indo- EU FTA</h2>
<p class="MsoListParagraph" style="text-align: justify; ">Based on the general discussion earlier, this section of the paper seeks to examine the proposed and long debated Indo- EU FTA for the concerns enumerated earlier. As things currently stand, both parties have failed to reach a consensus on various substantial differences, and a ministerial meet originally scheduled for June seems unlikely to take place.<a href="#fn11" name="fr11">[11]</a></p>
<p style="text-align: justify; ">It has been observed<a href="#fn12" name="fr12">[12]</a> that the Indo- EU FTA<a href="#fn13" name="fr13">[13]</a> includes various provisions that preserve the flexibilities offered under the TRIPS framework. This is extremely critical from the perspective of developing countries, given that access to knowledge is an extremely important ideal to be preserved. For instance, as noted by Knowledge Ecology International<a href="#fn14" name="fr14">[14]</a>the proposed FTA includes Articles 7 (Objectives) and 8 (Principles) of the TRIPS<a href="#fn15" name="fr15">[15]</a> by reference. Further, the language of Article 13 under the proposed FTA explicitly recognizes the importance of the Doha Declaration, which is a positive step.<a href="#fn16" name="fr16">[16]</a> It has been said however, that stronger language where the parties ‘affirmed’ their obligations under the Declaration could have been used.<a href="#fn17" name="fr17">[17]</a> However, this does not take away from the fact that many of the provisions of the proposed FTA are extremely problematic, as will be discussed in the forthcoming parts of this paper.</p>
<h3>Problematic Provisions</h3>
<p class="MsoListParagraph" style="text-align: justify; ">The main concern that has emerged from this FTA is the fact that some of its provisions dealing with IPR go beyond the mandate as under the TRIPS Agreement. For instance, as pointed out by Shamnaad Basheer to Intellectual Property Watch, various provisions now provide for intermediary liability, which isn’t present in TRIPS. He also adds however, that if the initial stand of the government that India would not go TRIPS plus continues to hold, the government should indeed adopt a strong stance and not cave in to the said provisions.<a href="#fn18" name="fr18">[18]</a> An overview of some of the problematic provisions has been presented hereafter:</p>
<h4>International Obligations</h4>
<p style="text-align: justify; ">As per the proposed treaty, protection granted by the parties should be in accordance with the Berne Convention, the Rome Convention and the WIPO Copyright and Performance and Phonograms Treaties. Snehashish Ghosh in his blog post<a href="#fn19" name="fr19">[19]</a> writes that the EU stipulates compliance with Articles 1 through 22 of the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (1961), Articles 1 through 14 of the WIPO Copyright Treaty – WCT (Geneva, 1996), Articles 1 through 23 of the WIPO Performance and Phonograms Treaty – WPPT (Geneva, 1996). It is critical to note that the Rome Convention is not in force in India<a href="#fn20" name="fr20">[20]</a>, and that India is not a party to either the WCT<a href="#fn21" name="fr21">[21]</a> or the WPPT<a href="#fn22" name="fr22">[22]</a>, and therefore, this provision would have the effect of substantially surpassing all obligations that India has at the moment under multilateral international agreements.</p>
<h4>Technical Protection Measures (TPMs) and Digital Rights Management (DRM)</h4>
<p style="text-align: justify; ">A TPM, understood simply, is a lock in a digital format, placed on digital material to prevent access to or copying of the material in question. The problem with such measures is that they can prevent even those forms of copying which are legal (for instance, the copying of a movie on which copyright has expired could be prevented), creating a potentially infinite monopoly over the product in question. India, in its negotiations with the EU, has agreed to sweeping language under this provision, where TPMs and DRM measures are broadly defined. The Agreement further provides for limitations on TPM protections only to persons who have “legal access to the protected work or subject matter”.<a href="#fn23" name="fr23">[23]</a></p>
<h4>Copyright Expansion</h4>
<p style="text-align: justify; ">There are various provisions under the proposed FTA that have the effect of copyright expansion. To begin with, the duration of protection for photographic works is not expressly mentioned in the proposed agreement.<a href="#fn24" name="fr24">[24]</a> Snehashish Ghosh concludes that the term of photographic works is unclear in the proposed FTA. He writes that the proposed FTA makes it mandatory for the parties to comply with the Berne Convention, and all literary and artistic work under the proposed FTA is to be construed as the same as the Berne Convention<a href="#fn25" name="fr25">[25]</a>. Photographic works are included under literary and artistic works under the Berne Convention, and the rights of an author in case of photographic works are protected for a minimum period of 25 years. However, the proposed FTA extends the period of protection to beyond that prescribed by the Berne Convention and states that protection is given to literary and artistic works (as defined in the Berne Convention) for a period of the duration of the life of the author plus fifty years after this death. It further states that works for which the period of protection is not calculated from the death of the author, and which have not been lawfully made available to the public within at least 50 years from their creation, the protection shall terminate.<a href="#fn26" name="fr26">[26]</a></p>
<p style="text-align: justify; ">Article 7.6 (proposed by the EU), limits the resale rights of a downstream purchaser. It has been noted by Knowledge Ecology International<a href="#fn27" name="fr27">[27]</a> that this seems to give the author of an original work of art a right in perpetuity, to receive a royalty for the resale of the piece of art, where such right cannot be waived or transferred by the author of the work. Therefore, a situation would arise where each time a person who has purchased the work wants to resell the same, he would have to pay royalties to the original author.<a href="#fn28" name="fr28">[28]</a> The observations further go on to note that royalties are not limited, and the amount has to be determined by national legislation. Further complicating the situation is the fact that the provision does not cease to apply after a given number of re-sales, and continues to the death of the author (but might not into the 50 year protection post the death of the author).<a href="#fn29" name="fr29">[29]</a></p>
<p style="text-align: justify; ">Exceptions and limitations for copyright have been covered under Article 7.9(1) of the proposed FTA, and they may be created “only” in accordance with the three step test, which is essentially that (a) the exceptions and limitations must apply in certain special cases; (b) must not be in conflict with the normal course of exploitation of the subject matter in question and (c) must not unreasonably prejudice the legitimate interests of the right holders.<a href="#fn30" name="fr30">[30]</a> It has been observed that this test is more restrictive than TRIPS, Berne Convention, Rome Convention or the WCT.<a href="#fn31" name="fr31">[31]</a></p>
<p style="text-align: justify; ">On the plus side, temporary copies have been excluded from copyright protection, as per Article 7.9(2) of the proposed FTA, which would ensure the proper functioning of technology.</p>
<h4>Persons with Disabilities</h4>
<p style="text-align: justify; ">There is nothing that deals with the import/export or cross border exchange of files/documents/books etc. for persons with disabilities.</p>
<h4>Cross Border Measures</h4>
<p style="text-align: justify; ">Cross Border Measures have been dealt with under Article 30 of the proposed FTA. It is interesting to note that under this Article the EU has proposed the application of border measures to exports as well. This is contrary to the position laid down in the TRIPS Agreement, which has this requirement only for importing infringing goods.<a href="#fn32" name="fr32">[32]</a> Further, the EU also seeks to expand the applicability of such measures to include those goods which also infringe designs or geographical indications. Additionally, Article 30 also leaves out certain TRIPS safeguards, for instance, one that requires the right holder to provide adequate evidence for a prima facie case of infringement.<a href="#fn33" name="fr33">[33]</a></p>
<h4>Intermediary Liability</h4>
<p style="text-align: justify; ">It has been suggested that the EU, under the garb of protecting intermediate service providers from liability for infringement by users, is purporting to place a greater burden on the providers in question, of policing user activity.<a href="#fn34" name="fr34">[34]</a> For instance under Article 35.1.1 of the proposed FTA, while service providers are not under any general obligation to seek facts or circumstances that could indicate illegal activity, they may be obligated to promptly inform competent authorities of these alleged illegal activities undertaken/information provided by recipients of their service. <a href="#fn35" name="fr35">[35]</a> Otherwise, the providers may also be required to communicate to the authorities, on their request, information that would enable the identification of their service with whom they have storage agreements, as per Article 35.1.2.<a href="#fn36" name="fr36">[36]</a> It has been rightly identified by Glover Wright, that such provisions would only serve to increase tensions between the users and their service providers, with relations dictated by concerns about liability, and barriers in the sending, receiving and storing of information freely. It would be a tricky question for intermediate service providers to check what would constitute ‘knowledge’ and how they were to best safeguard themselves from liability.<a href="#fn37" name="fr37">[37]</a> Therefore, the author is inclined to agree with Wright’s submission that India needs to reject all provisions of liability of intermediate service providers as discussed above.</p>
<h4>IP Enforcement</h4>
<p style="text-align: justify; ">There exist, as regards the enforcement of rights, many problematic provisions in the proposed FTA. For starters, the EU has proposed that interlocutory injunctions may also be issued under the same conditions against an intermediary whose services are being used by a third party to infringe intellectual property rights.<a href="#fn38" name="fr38">[38]</a> This may be found under Article 22.1 of the proposed FTA, and is inherently problematic for being a provision far beyond the mandate as laid down by TRIPS.</p>
<p style="text-align: justify; ">The EU is also pushing for the use of very explicit language as regards seizing movable and immovable property of the alleged infringer as a precautionary measure. This also extends to the blocking of the bank accounts and other assets of the said infringer, and to this end, competent authorities may even order the communication of bank, financial or commercial documents, or access to the said information.<a href="#fn39" name="fr39">[39]</a> It is critical to note that such a provision is greatly problematic as being rather vague in its approach, and very readily compromising privacy for ‘alleged’ acts of infringement.</p>
<p style="text-align: justify; ">It is further critical to note that while Article 20 states that courts should have the power to grant ex parte order to collect evidence that is allegedly infringing, there are no safeguards provided for protection of a bona fide defendant whose premises might have been raided wrongly. It is submitted that provisions that safeguard the interests of defendants are of prime importance, especially in the Indian set up, where courts are as it is rather generous in their granting of ex parte orders.</p>
<h2>Concluding Observations</h2>
<p style="text-align: justify; ">While India may stand to benefit from the proposed FTA with the EU, there remain significant IP related issues that need to be ironed out before India comes to any consensus about the agreement and ratifies the same. On the basis of the discussion over the course of this paper, it may be seen that the provisions on intellectual property rights are problematic on various levels, particularly in the areas of expansion of copyright, the inclusion of TRIPS plus provisions, cross border measures, TPMs, liability of service providers and enforcement mechanisms.</p>
<p style="text-align: justify; ">Discussions in the first half of this paper have demonstrated that increased IP protections do not necessarily translate into increased FDI and may in fact stifle innovation. Further, the warning to developing countries against adopting IPR standards fixed by developed nations has been sounded many times over, and is one that needs to be heeded to very closely for developing nations to achieve their developmental objectives.</p>
<p style="text-align: justify; ">India has over a period of time established an IP regime that is consumer friendly. In adopting the proposed FTA in its current form, she risks endangering this regime that has thus far been instrumental in proliferating emerging technologies in the county.<a href="#fn40" name="fr40">[40]</a> Given that India has already acceded to international standards for IPRs as a result of being a member of the WTO and being TRIPS compliant, there is no cogent reason to be made out that warrants the accession to an FTA with TRIPS plus provisions. India ought to continue to push back strongly on these fronts, bearing in mind that its stance could very well set the tone for other such agreements in South Asia. From the way things stand at the moment, it is indeed a matter of some relief that the ratification of this proposed FTA still appears to be at a considerable distance.</p>
<hr />
<p style="text-align: justify; ">[<a href="#fr1" name="fn1">1</a>].Hereafter referred to as the FTA.</p>
<p style="text-align: justify; ">[<a href="#fr2" name="fn2">2</a>]. <span>Sanya Reid Smith, Intellectual Property in Free Trade Agreements, for the UNDP Regional Trade Workshop (17-18 December, Penang, Malaysia), available at </span><a class="external-link" href="http://bit.ly/11W8dqy">http://bit.ly/11W8dqy</a> <span>(last accessed 04 June, 2013). </span></p>
<p style="text-align: justify; ">[<a href="#fr3" name="fn3">3</a>]. Id.</p>
<p style="text-align: justify; ">[<a href="#fr4" name="fn4">4</a>]. Id at 5.</p>
<p style="text-align: justify; ">[<a href="#fr5" name="fn5">5</a>]. Supra note 2, citing PJ Heald, Information Economics and Policy 16 (2004) 57-65</p>
<p style="text-align: justify; ">[<a href="#fr6" name="fn6">6</a>]. <span>Edwin Mansfield, Intellectual Property Protection, Foreign Direct Investment and Technology Transfer, International Finance Corporation: Discussion Paper No. 19, available at </span><a class="external-link" href="http://bit.ly/18V4D5v">http://bit.ly/18V4D5v</a><span><a href="http://www-wds.worldbank.org/servlet/WDSContentServer/WDSP/IB/1994/02/01/000009265_3970311123634/Rendered/PDF/multi_page.pdf"></a> (last accessed 05 June, 2013)</span></p>
<p style="text-align: justify; ">[<a href="#fr7" name="fn7">7</a>]. See generally- Rod Falvey et. al., The Role of Intellectual Property Rights in Technology Transfer and Economic Growth: Theory and Evidence, United Nations Industrial Development Organization: Discussion Paper (2006), available at <a class="external-link" href="http://bit.ly/11JBR4o">http://bit.ly/11JBR4o</a> <span>(last accessed 05 June, 2013).</span></p>
<p style="text-align: justify; ">[<a href="#fr8" name="fn8">8</a>]. Id.</p>
<p style="text-align: justify; ">[<a href="#fr9" name="fn9">9</a>]. Supra note 2 at 23.</p>
<p style="text-align: justify; ">[<a href="#fr10" name="fn10">10</a>]. Supra note 2 at 23.</p>
<p style="text-align: justify; ">[<a href="#fr11" name="fn11">11</a>]. <span>PTI, India – EU FTA Talks Fail to Bridge Gaps, available at </span>http://bit.ly/19LJaeP <span>(last accessed 05 June, 2013). </span></p>
<p style="text-align: justify; ">[<a href="#fr12" name="fn12">12</a>]. <span>Krista Cox, Quick Reaction to the EU/India (BTIA) Negotiating Text, available at <a href="http://keionline.org/node/1693">http://keionline.org/node/1693</a> (last accessed 04 June, 2013). </span></p>
<p style="text-align: justify; ">[<a href="#fr13" name="fn13">13</a>]. Hereafter referred to as the FTA</p>
<p style="text-align: justify; ">[<a href="#fr14" name="fn14">14</a>]. <span>KEI Staff, More Notes on the India EU FTA (BTIA), available at <a href="http://keionline.org/node/1692">http://keionline.org/node/1692</a> (last accessed 05 June, 2013).</span><span> </span></p>
<p style="text-align: justify; ">[<a href="#fr15" name="fn15">15</a>]. <span>See </span><a class="external-link" href="http://bit.ly/13XhCfZ">http://bit.ly/13XhCfZ</a> <span> for more details, and for the bare text of the Articles. (last accessed 05 June, 2013).</span><span> </span></p>
<p style="text-align: justify; ">[<a href="#fr16" name="fn16">16</a>]. Supra note 14.</p>
<p style="text-align: justify; ">[<a href="#fr17" name="fn17">17</a>]. Supra note 12.</p>
<p style="text-align: justify; ">[<a href="#fr18" name="fn18">18</a>]. <span>Patralekha Chatterjee, Leaked IP Chapter of India- EU FTA Shows TRIPS-PLUS Pitfalls for India, Expert Says, available at </span><a class="external-link" href="http://bit.ly/Y7w70e">http://bit.ly/Y7w70e</a><span> (last accessed 05 June, 2013).</span><span> </span></p>
<p style="text-align: justify; ">[<a href="#fr19" name="fn19">19</a>]. <span>Snehashish Ghosh, Analysis of Copyright Expansion in the India-EU FTA (July 2010), available at </span><a class="external-link" href="http://bit.ly/ysitEC">http://bit.ly/ysitEC</a><span><a href="http://editors.cis-india.org/a2k/blogs/blog/analysis-copyright-expansion-india-eu-fta"></a> (last accessed 03 June, 2013).</span></p>
<p style="text-align: justify; ">[<a href="#fr20" name="fn20">20</a>]. <span>For the status of Contracting Parties, see </span><a class="external-link" href="http://bit.ly/UITpsX">http://bit.ly/UITpsX</a><span> (last accessed 05 June, 2013).</span></p>
<p style="text-align: justify; ">[<a href="#fr21" name="fn21">21</a>]. <span>For the status of Contracting Parties, see </span><a class="external-link" href="http://bit.ly/f92xL2">http://bit.ly/f92xL2</a><span> (last accessed 05 June, 2013).</span></p>
<p style="text-align: justify; ">[<a href="#fr22" name="fn22">22</a>]. For the status of Contracting Parties, see <a class="external-link" href="http://bit.ly/fEsUAF">http://bit.ly/fEsUAF</a> (last accessed 05 June, 2013).</p>
<p style="text-align: justify; ">[<a href="#fr23" name="fn23">23</a>]. Supra note 14.</p>
<p style="text-align: justify; ">[<a href="#fr24" name="fn24">24</a>]. Supra note 19.</p>
<p style="text-align: justify; ">[<a href="#fr25" name="fn25">25</a>]. Supra note 19.</p>
<p style="text-align: justify; ">[<a href="#fr26" name="fn26">26</a>]. Supra note 19.</p>
<p style="text-align: justify; ">[<a href="#fr27" name="fn27">27</a>]. Supra note 12.</p>
<p style="text-align: justify; ">[<a href="#fr28" name="fn28">28</a>]. Supra note 12.</p>
<p style="text-align: justify; ">[<a href="#fr29" name="fn29">29</a>]. Supra note 12.</p>
<p style="text-align: justify; ">[<a href="#fr30" name="fn30">30</a>]. Supra note 12.</p>
<p style="text-align: justify; ">[<a href="#fr31" name="fn31">31</a>]. Supra note 14.</p>
<p style="text-align: justify; ">[<a href="#fr32" name="fn32">32</a>]. Supra note 12.</p>
<p style="text-align: justify; ">[<a href="#fr33" name="fn33">33</a>]. Supra note 12.</p>
<p style="text-align: justify; ">[<a href="#fr34" name="fn34">34</a>]. See Article 35 of the Proposed FTA.</p>
<p style="text-align: justify; ">[<a href="#fr35" name="fn35">35</a>]. <span>Glover Wright, A Guide to the Proposed India-European Union Free Trade Agreement, available at </span><a class="external-link" href="http://bit.ly/16Dfuga">http://bit.ly/16Dfuga</a><span><a href="http://editors.cis-india.org/a2k/blogs/publications/CIS%20Open%20Data%20Case%20Studies%20Proposal.pdf/view"></a> (last accessed 05 June, 2013) at 12- 14.</span><span> </span></p>
<p style="text-align: justify; ">[<a href="#fr36" name="fn36">36</a>]. Id.</p>
<p style="text-align: justify; ">[<a href="#fr37" name="fn37">37</a>]. Id.</p>
<p style="text-align: justify; ">[<a href="#fr38" name="fn38">38</a>]. <span>Thiru, EU-India FTA: EU Pushes for IP Enforcement- IP Chapter Draft Text Under Negotiation (2013), available at <a href="http://keionline.org/node/1681">http://keionline.org/node/1681</a> (last accessed 05 June, 2013).</span></p>
<p style="text-align: justify; ">[<a href="#fr39" name="fn39">39</a>]. See Article 22.3 of the proposed FTA.</p>
<p style="text-align: justify; ">[<a href="#fr40" name="fn40">40</a>]. Supra note 35.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/india-eu-fta-copyright-issues'>http://editors.cis-india.org/a2k/blogs/india-eu-fta-copyright-issues</a>
</p>
No publishernehaaAccess to KnowledgeCopyrightAccessibilityIntermediary LiabilityTechnological Protection Measures2013-07-03T06:47:08ZBlog EntryAnalysis of the Copyright (Amendment) Bill 2012
http://editors.cis-india.org/a2k/blogs/analysis-copyright-amendment-bill-2012
<b>There are some welcome provisions in the Copyright (Amendment) Bill 2012, and some worrisome provisions. Pranesh Prakash examines five positive changes, four negative ones, and notes the several missed opportunities. The larger concern, though, is that many important issues have not been addressed by these amendments, and how copyright policy is made without evidence and often out of touch with contemporary realities of the digital era.</b>
<p>The <a class="external-link" href="http://164.100.24.219/BillsTexts/RSBillTexts/PassedRajyaSabha/copy-E.pdf">Copyright (Amendment) Bill 2012</a> has been passed by both Houses of Parliament, and will become law as soon as the President gives her assent and it is published in the Gazette of India. While we celebrate the passage of some progressive amendments to the Copyright Act, 1957 — including an excellent exception for persons with disabilities — we must keep in mind that there are some regressive amendments as well. In this blog post, I will try to highlight those provisions of the amendment that have not received much public attention (unlike the issue of lyricists’ and composers’ ‘right to royalty’).</p>
<h2>Welcome Changes</h2>
<h3>Provisions for Persons with Disabilities</h3>
<p>India now has amongst the most progressive exception for persons with disabilities, alongside countries like Chile. Under the amendments, sections 51(1)(zb) and 31B carve out exceptions and limitations for persons with disabilities. Earlier s.52(1)(zb) dealt only with formats that were “special designed only for the use of persons suffering from visual, aural, or other disabilities”. Thanks to a campaign mounted by disability rights groups and public interest groups such as CIS, it now covers “any accessible format”. Section 52(1)(zb) allows any person to facilitate access by persons with disabilities to copyrighted works without any payment of compensation to the copyright holder, and any organization working the benefit of persons with disabilities to do so as long as it is done on a non-profit basis and with reasonable steps being taken to prevent entry of reproductions of the copyrighted work into the mainstream. Even for-profit businesses are allowed to do so if they obtain a compulsory licence on a work-by-work basis, and pay the royalties fixed by the Copyright Board. The onerousness of this provision puts its utility into question, and this won’t disappear unless the expression “work” in s.31B is read to include a class of works.</p>
<p>Given that the Delhi High Court has — wrongly and <a class="external-link" href="http://en.wikipedia.org/wiki/Per_incuriam">per incuriam</a>, since it did not refer to s.14(a)(ii) as it was amended in 1994 — held parallel importation to be barred by the Copyright Act, it was important for Parliament to clarify that the Copyright Act in fact follows international exhaustion. Without this, even if any person can facilitate access for persons with disabilities to copyrighted works, those works are restricted to those that are circulated in India. Given that not many books are converted into accessible formats in India (not to mention the costs of doing so), and given the much larger budgets for book conversion in the developed world, this is truly restrictive.</p>
<h3>Extension of Fair Dealing to All Works</h3>
<p>The law earlier dealt with fair dealing rights with regard to “literary, dramatic, musical or artistic works”. Now it covers all works (except software), in effect covering sound recordings and video as well. This will help make personal copies of songs and films, to make copies for research, to use film clips in classrooms, etc.</p>
<h3>Creative Commons, Open Licensing Get a Boost</h3>
<p>The little-known s.21 of the Copyright Act, which deals with the right of authors to relinquish copyright, has been amended. While earlier one could only relinquish parts of one’s copyright by submitting a form to the Registrar of Copyrights, now a simple public notice suffices. Additionally, s.30 of the Act, which required licences to be in writing and signed, now only requires it to be in writing. This puts Creative Commons, the GNU Public Licence, and other open licensing models, on a much surer footing in India.</p>
<h3>Physical Libraries Should Celebrate, Perhaps Virtual Libraries Too</h3>
<p>Everywhere that the word “hire” occurs (except s.51, curiously), the word “commercial rental” has been substituted. This has been done, seemingly, to bring India in conformance with the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT). The welcome side-effect of this is that the legality of lending by non-profit public libraries has been clarified. The amendment states:</p>
<p class="discreet">"2(1)(fa) “commercial rental” does not include the rental, lease or lending of a lawfully acquired copy of a computer programme, sound recording, visual recording or cinematograph film for non-profit purposes by a non-profit library or non-profit educational institution."</p>
<p>Even after this, the overwhelming majority of the ‘video lending libraries’ that you see in Indian cities and towns continue to remain illegal.</p>
<p>Another welcome provision is the amended s.52(1)(n), which now allows “non-commercial public libraries” to store an electronic copy of a work if it already has a physical copy of the work. However, given that this provision says that the storage shall be “for preservation”, it seems limited. However, libraries might be able to use this — in conjunction with the fact that under s.14 of the Copyright Act lending rights of authors is limited to “commercial rental” and s.51(b) only covers lending of “infringing copies” — to argue that they can legally scan and lend electronic copies of works in the same manner that they lend physical copies. Whether this argument would succeed is unclear. Thus, India has not boldly gone where the European Commission is treading with talks of a European Digital Library Project, or where scholars in the US are headed with the Digital Public Library of America. But we might have gone there quietly. Thus, this amendment might help foster an Indian <a class="external-link" href="http://internetarchive.org/">Internet Archive</a>, or help spread the idea of the <a class="external-link" href="http://openlibrary.org/">Open Library</a> in India.</p>
<p>On a final note, different phrases are used to refer to libraries in the amendment. In s.2(1)(fa), it talks about "non-profit library"; in s.52(1)(n) and (o), it refers to "non-commercial public library"; and in s.52(1)(zb), it talks of "library or archives", but s.52(1)(zb) also requires that the works be made available on a "non-profit basis". The differentiation, if any, that is sought to be drawn between these is unclear.</p>
<h3>Limited Protection to Some Internet Intermediaries</h3>
<p>There are two new provisions, s.52(1)(b) and 52(1)(c), which provide some degree of protection to 'transient or incidental' storage of a work or performance. Section 52(1)(b) allows for "the transient or incidental storage of a work or performance purely in the technical process of electronic transmission or communication to the public", hence applying primarily to Internet Service Providers (ISPs), VPN providers, etc. Section 52(1)(c) allows for "transient or incidental storage of a work or performance for the purpose of providing electronic links, access or integration, where such links, access or integration has not been expressly prohibited by the right holder, unless the person responsible is aware or has reasonable grounds for believing that such storage is of an infringing copy". This seems to make it applicable primarily to search engines, with other kinds of online services being covered or not covered depending on one’s interpretation of the word 'incidental'.</p>
<h3>Compulsory Licensing Now Applies to Foreign Works Also</h3>
<p>Sections 31 ("compulsory licence in works withheld from public") and 31A ("compulsory licence in unpublished Indian works") used to apply to Indian works. Now they apply to all works, whether Indian or not (and now s.31A is about "compulsory licence in unpublished or published works", mainly orphan works). This is a welcome amendment, making foreign works capable of being licensed compulsorily in case it is published elsewhere but withheld in India. Given how onerous our compulsory licensing sections are, especially sections 32 and 32A (which deal with translations, and with literary, scientific or artistic works), it is not a surprise that they have not been used even once. However, given the modifications to s.31 and s.31A, we might just see those starting to be used by publishers, and not just radio broadcasters.</p>
<h2>Worrisome Changes</h2>
<h3>Term of Copyright for Photographs Nearly Doubled</h3>
<p>The term of copyright for photographs has now gone from sixty years from publication to sixty years from the death of the photographer. This would mean that copyright in a photograph clicked today (2012) by a 20 year old who dies at the 80 will only expire on January 1, 2133. This applies not only to artistic photographs, to all photographs because copyright is an opt-out system, not an opt-in system. Quite obviously, most photoshopping is illegal under copyright law.</p>
<p>This has two problems. First, there was no case made out for why this term needed to be increased. No socio-economic report was commissioned on the effects of such a term increase. This clause was not even examined by the Parliamentary Standing Committee. While the WCT requires a ‘life + 50′ years term for photographs, we are not signatories to the WCT, and hence have no obligation to enforce this. We are signatories to the Berne Convention and the TRIPS Agreement, which require a copyright term of 25 years for photographs. Instead, we have gone even above the WCT requirement and provide a life + 60 years term.</p>
<p>The second problem is that it is easier to say when a photograph was published than to say who the photographer was and when that photographer died. Even when you are the subject of a photograph, the copyright in the photograph belongs to the photographer. Unless a photograph was made under commission or the photographer assigned copyright to you, you do not own the copyright in the photographs. (Thanks to <a href="http://deviantlight.blogspot.com">Bipin Aspatwar</a>, for pointing out a mistake in an earlier version, with "employment" and "commission" being treated differently.) This will most definitely harm projects like Wikipedia, and other projects that aim at archiving and making historical photographs available publicly, since it is difficult to say whether the copyright in a photograph still persists.</p>
<h3>Cover Versions Made More Difficult: Kolaveri Di Singers Remain Criminals</h3>
<p>The present amendments have brought about the following changes, which make it more difficult to produce cover versions:</p>
<ol>
<li> Time period after which a cover version can be made has increased from 2 years to 5 years.</li>
<li>Requirement of same medium as the original. So if the original is on a cassette, the cover cannot be released on a CD.</li>
<li>Payment has to be made in advance, and for a minimum of 50000 copies. This can be lowered by Copyright Board having regard to unpopular dialects.</li>
<li>While earlier it was prohibited to mislead the public (i.e., pretend the cover was the original, or endorsed by the original artists), now cover versions are not allowed to "contain the name or depict in any way any performer of an earlier sound recording of the same work or any cinematograph film in which such sound recording was incorporated".</li>
<li>All cover versions must state that they are cover versions.</li>
<li>No alterations are allowed from the original song, and alteration is qualified as ‘alteration in the literary or musical work’. So no imaginative covers in which the lyrics are changed or in which the music is reworked are allowed without the copyright owners’ permission. Only note-for-note and word-for-word covers are allowed.</li>
<li>Alterations were allowed if they were "reasonably necessary for the adaptation of the work" now they are only allowed if it is "technically necessary for the purpose of making of the sound recording".</li>
</ol>
<p>This ignores present-day realities. Kolaveri Di was covered numerous times without permission, and each one of those illegal acts helped spread its popularity. The singers and producers of those unlicensed versions could be jailed under the current India Copyright Act, which allows even non-commercial copyright infringers to be put behind bars. Film producers and music companies want both the audience reach that comes from less stringent copyright laws (and things like cover versions), as well as the ability to prosecute that same behaviour at will. It is indeed ironic that T-Series, the company that broke HMV’s stranglehold over the Indian recording market thanks to cover versions, is itself one of the main movers behind ever-more stringent copyright laws.</p>
<h3>Digital Locks Now Provided Legal Protection Without Accountability</h3>
<p>As I have covered the issue of Technological Protection Measures (TPM) and Rights Management Information (RMI), which are ‘digital locks’ also known as Digital Rights Management (DRM), <a href="http://editors.cis-india.org/a2k/blogs/tpm-copyright-amendment" class="external-link">in great detail earlier</a>, I won’t repeat the arguments at length. Very briefly:</p>
<ol>
<li>It is unclear that anyone has been demanding the grant of legal protection to DRMs in India, and We have no obligation under any international treaties to do so. It is not clear how DRM will help authors and artists, but it is clear how it will harm users.</li>
<li>While the TPM and RMI provisions are much more balanced than the equivalent provisions in laws like the US’s Digital Millennium Copyright Act (DMC), that isn’t saying much. Importantly, while users are given certain rights to break the digital locks, they are helpless if they aren’t also provided the technological means of doing so. Simply put: music and movie companies have rights to place digital locks, and under some limited circumstances users have the right to break them. But if the locks are difficult to break, the users have no choice but to live with the lock, despite having a legal right.</li>
</ol>
<h3>Removal of Parallel Importation</h3>
<p>In past blog posts I have covered <a href="http://editors.cis-india.org/a2k/blogs/parallel-importation-of-books" class="external-link">why allowing parallel imports makes sense in India</a>. And as explained above, the Delhi High Court acted per incuriam when holding that the Copyright Act does not allow parallel importation. The Copyright Act only prohibits import of infringing copies of a work, and a copy of a book that has been legally sold in a foreign country is not an “infringing copy”. The government was set to introduce a provision making it clear that parallel importation was allowed. The Parliamentary Standing Committee heard objections to this proposal from a foreign publishers’ association, but decided to recommend the retention of the clause. Still, due to pressure from a few publishing companies whose business relies on monopolies over importation of works into India, the government has decided to delete the provision. However, thankfully, the HRD Minister, Kapil Sibal, has assured both houses of Parliament that he will move a further amendment if an<a class="external-link" href="http://www.ncaer.org/"> NCAER</a> report he has commissioned (which will be out by August or September) recommends the introduction of parallel imports.</p>
<h3>Expansion of Moral Rights Without Safeguards</h3>
<p>Changes have been made to author’s moral rights (and performer’s moral rights have been introduced) but these have been made without adequate safeguards. The changes might allow the legal heir of an author, artist, etc., to object to ‘distortion, mutilation, modification, or other act’ of her ancestors work even when the ancestor might not have. By this amendment, this right continues in perpetuity, even after the original creator dies and even after the work enters into the public domain. It seems Indian policymakers had not heard of <a class="external-link" href="http://en.wikipedia.org/wiki/Stephen_James_Joyce">Stephen Joyce</a>, the grandson of James Joyce, who has “brought numerous lawsuits or threats of legal action against scholars, biographers and artists attempting to quote from Joyce’s literary work or personal correspondence”. Quoting from his Wikipedia page:</p>
<p class="callout">In 2004, Stephen threatened legal action against the Irish government when the Rejoyce Dublin 2004 festival proposed public reading of excerpts of Ulysses on Bloomsday. In 1988 Stephen Joyce burnt a collection of letters written by Lucia Joyce, his aunt. In 1989 he forced Brenda Maddox to delete a postscript concerning Lucia from her biography Nora: The Real Life of Molly Bloom. After 1995 Stephen announced no permissions would be granted to quote from his grandfather’s work. Libraries holding letters by Joyce were unable to show them without permission. Versions of his work online were disallowed. Stephen claimed to be protecting his grandfather’s and families reputation, but would sometimes grant permission to use material in exchange for fees that were often "extortionate".</p>
<p>Because in countries like the UK and Canada the works of James Joyce are now in the public domain, Stephen Joyce can no longer restrict apply such conditions. However now, in India, despite James Joyce’s works being in the public domain, Stephen Joyce’s indefensible demands may well carry legal weight.</p>
<h3>Backdoor Censorship</h3>
<p>As noted above, the provision that safeguard Internet intermediaries (like search engines) is very limited. However, that provision has an extensive removal provision:</p>
<p class="callout">Provided that if the person responsible for the storage of the copy has received a written complaint from the owner of copyright in the work, complaining that such transient or incidental storage is an infringement, such person responsible for the storage shall refrain from facilitating such access for a period of twenty-one days or till he receives an order from the competent court refraining from facilitating access and in case no such order is received before the expiry of such period of twenty-one days, he may continue to provide the facility of such access;</p>
<p>There are two things to be noted here. First, that without proof (or negative consequences for false complaints) the service provider is mandated to prevent access to the copy for 21 day. Second, after the elapsing of 21 days, the service provider may 'put back' the content, but is not mandated to do so. This would allow people to file multiple frivolous complaints against any kind of material, even falsely (since there is no penalty for false compalaints), and keep some material permanently censored.</p>
<h2>Missed Opportunities</h2>
<h3>Fair Dealing Guidelines, Criminal Provisions, Government Works, and Other Missed Opportunities</h3>
<p>The following important changes should have been made by the government, but haven’t. While on some issues the Standing Committee has gone beyond the proposed amendments, it has not touched upon any of the following, which we believe are very important changes that are required to be made.</p>
<ul>
<li> Criminal provisions: Our law still criminalises individual, non-commercial copyright infringement. This has now been extended to the proposal for circumvention of Technological Protection Measures and removal of Rights Management Information also.</li>
<li>Fair dealing guidelines: We would benefit greatly if, apart from the specific exceptions provided for in the Act, more general guidelines were also provided as to what do not constitute infringement. This would not take away from the existing exceptions, but would act as a more general framework for those cases which are not covered by the specific exceptions.</li>
<li>Government works: Taxpayers are still not free to use works that were paid for by them. This goes against the direction that India has elected to march towards with the Right to Information Act. A simple amendment of s.52(1)(q) would suffice. The amended subsection could simply allow for “the reproduction, communication to the public, or publication of any government work” as being non-infringing uses.</li>
<li>Copyright terms: The duration of all copyrights are above the minimum required by our international obligations, thus decreasing the public domain which is crucial for all scientific and cultural progress.</li>
<li>Educational exceptions: The exceptions for education still do not fully embrace distance and digital education.</li>
<li>Communication to the public: No clear definition is given of what constitute a ‘public’, and no distinction is drawn between commercial and non-commercial ‘public’ communication.</li>
<li>Internet intermediaries: More protections are required to be granted to Internet intermediaries to ensure that non-market based peer-production projects such as Wikipedia, and other forms of social media and grassroots innovation are not stifled. Importantly, after the terrible judgment passed by Justice Manmohan Singh of the Delhi High Court in the Super Cassettes v. Myspace case, any website hosting user-generated content is vulnerable to payment of hefty damages even if it removes content speedily on the basis of complaints.</li>
</ul>
<h2>Amendments Not Examined</h2>
<p>For the sake of brevity, I have not examined the major changes that have been made with regard to copyright societies, lyricists and composers, and statutory licensing for broadcasters, all of which have received considerable attention by copyright experts elsewhere, nor have I examined many minor amendments.</p>
<h2>A Note on the Parliamentary Process</h2>
<p>Much of the discussions around the Copyright Act have been around the rights of composers and lyricists vis-à-vis producers. As this has been covered elsewhere, I won’t comment much on it, other than to say that it is quite unfortunate that the trees are lost for the forest. It is indeed a good thing that lyricists and composers are being provided additional protection against producers who are usually in a more advantageous bargaining position. This fact came out well in both houses of Parliament during the debate on the Copyright Bill.<br /><br />However, the mechanism of providing this protection — by preventing assignment of “the right to receive royalties”, though the “right to receive royalties” is never mentioned as a separate right anywhere else in the Copyright Act — was not critically examined by any of the MPs who spoke. What about the unintended consequences of such an amendment? Might this not lead to new contracts where instead of lump-sums, lyricists and music composers might instead be asked to bear the risk of not earning anything at all unless the film is profitable? What about a situation where a producer asks a lyricist to first assign all rights (including royalty rights) to her heirs and then enters into a contract with those heirs? The law, unfortunately at times, revolves around words used by the legislature and not just the intent of the legislature. While one cannot predict which way the amendment will go, one would have expected better discussions around this in Parliament.</p>
<p>Much of the discussion (in both <a class="external-link" href="http://164.100.47.5/newdebate/225/17052012/Fullday.pdf">the Rajya Sabha</a> and <a class="external-link" href="http://164.100.47.132/newdebate/15/10/22052012/Fullday.pdf">the Lok Sabha</a>) was rhetoric about the wonders of famous Indian songwriters and music composers and the abject penury in which some not-so-famous ones live, and there was very little discussion about the actual merits of the content of the Bill in terms of how this problem will be overcome. A few MPs did deal with issues of substance. Some asked the HRD Minister tough questions about the Statement of Objects and Reasons noting that amendments have been brought about to comply with the WCT and WPPT which were “adopted … by consensus”, even though this is false as India is not a signatory to the WCT and WPPT. MP P. Rajeeve further raised the issue of parallel imports and that of there being no public demand for including TPM in the Act, but that being a reaction to the US’s flawed Special 301 reports. Many, however, spoke about issues such as the non-award of the Bharat Ratna to Bhupen Hazarika, about the need to tackle plagiarism, and how the real wealth of a country is not material wealth but intellectual wealth.</p>
<p>This preponderance of rhetoric over content is not new when it comes to copyright policy in India. In 1991, when an amendment was presented to increase term of copyright in all works by ten years (from expiring 50 years from the author’s death to 60 years post-mortem), the vast majority of the Parliamentarians who stood up to speak on the issue waxed eloquent about the greatness of Rabindranath Tagore (whose works were about to lapse into the public domain), and how we must protect his works. Little did they reflect that extending copyright — for all works, whether by Tagore or not — will not help ‘protect’ the great Bengali artist, but would only make his (and all) works costlier for 10 additional years. Good-quality and cheaper editions of Tagore’s works are more easily available post-2001 (when his copyright finally lapsed) than before, since companies like Rupa could produce cheap editions without seeking a licence from Visva Bharati. And last I checked Tagore’s works have not been sullied by them having passed into the public domain in 2001.</p>
<p>Further, one could find outright mistakes in the assertions of Parliamentarians. In both Houses, DMK MPs raised objections with regard to parallel importation being allowed in the Bill — only in the version of the Bill they were debating, parallel importation was not being allowed. One MP stated that “statutory licensing provisions like these are not found anywhere else in the world”. This is incorrect, given that there are extensive statutory licensing provision in countries like the United States, covering a variety of situations, from transmission of sound recordings over Internet radio to secondary transmission of the over-the-air programming.</p>
<p>Unfortunately, though that MP did not raise this issue, there is a larger problem that underlies copyright policymaking in India, and that is the fact that there is no impartial evidence gathered and no proper studies that are done before making of policies. We have no equivalent of the Hargreaves Report or the Gowers Report, or the studies by the Productivity Council in Australia or the New Zealand government study of parallel importation.</p>
<p>There was no economic analysis conducted of the effect of the increase in copyright term for photographs. We have evidence from elsewhere that copyright terms <a class="external-link" href="http://williampatry.blogspot.in/2007/07/statute-of-anne-too-generous-by-half.html">are already</a> <a class="external-link" href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2024588">too long</a>, and all increases in term are what economists refer to as <a class="external-link" href="http://en.wikipedia.org/wiki/Deadweight_loss">deadweight losses</a>. There is no justification whatsoever for increasing term of copyright for photographs, since India is not even a signatory to the WCT (which requires this term increase). In fact, we have lost precious negotiation space internationally since in bilateral trade agreements we have been asked to bring our laws in compliance with the WCT, and we have asked for other conditions in return. By unilaterally bringing ourselves in compliance with WCT, we have lost important bargaining power.</p>
<h2>Users and Smaller Creators Left Out of Discussions</h2>
<p>Thankfully, the Parliamentary Standing Committee went into these minutiae in greater detail. Though, as I have noted elsewhere, the Parliamentary Standing Committee did not invite any non-industry groups for deposition before it, other than the disability rights groups which had campaigned really hard. So while changes that would affect libraries were included, not a single librarian was called by the Standing Committee. Despite comments having been submitted <a href="http://editors.cis-india.org/a2k/publications/copyright-bill-submission" class="external-link">to the Standing Committee on behalf of 22 civil society organizations</a>, none of those organizations were asked to depose. Importantly, non-industry users of copyrighted materials — consumers, historians, teachers, students, documentary film-makers, RTI activists, independent publishers, and people like you and I — are not seen as legitimate interested parties in the copyright debate. This is amply clear from the the fact that only one MP each in the two houses of Parliament raised the issue of users’ rights at all.</p>
<h2>Concluding Thoughts</h2>
<p>What stands out most from this process of amendment of the copyright law, which has been going on since 2006, is how out-of-touch the law is with current cultural practices. Most instances of photoshopping are illegal. Goodbye Lolcats. Cover versions (for which payments have to be made) have to wait for five years. Goodbye Kolaveri Di. Do you own the jokes you e-mail to others, and have you taken licences for quoting older e-mails in your replies? Goodbye e-mail. The strict laws of copyright, with a limited set of exceptions, just do not fit the digital era where everything digital transaction results in a bytes being copied. We need to take a much more thoughtful approach to rationalizing copyright: introduction of general fair dealing guidelines, reduction of copyright term, decriminalization of non-commercial infringement, and other such measures. If we don’t take such measures soon, we will all have to be prepared to be treated as criminals for all our lives. Breaking copyright law shouldn’t be as easy as breathing, yet thanks to outdated laws, it is.</p>
<p><a class="external-link" href="http://infojustice.org/archives/26243">This was reposted in infojustice.org on May 25, 2012</a></p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/analysis-copyright-amendment-bill-2012'>http://editors.cis-india.org/a2k/blogs/analysis-copyright-amendment-bill-2012</a>
</p>
No publisherpraneshAccess to KnowledgeFair DealingsPiracyIntellectual Property RightsEconomicsIntermediary LiabilityFeaturedTechnological Protection Measures2013-11-12T14:13:04ZBlog EntryStatement of CIS, India, on the WIPO Broadcast Treaty at the 22nd SCCR
http://editors.cis-india.org/a2k/blogs/sccr-22-broadcast-cis-statement
<b>The twenty-second session of the Standing Committee on Copyright and Related Rights is being held in Geneva from June 15 to June 24, 2011. Nirmita Narasimhan and Pranesh Prakash are attending the conference. CIS delivered its statement, on the Broadcast Treaty, and made it available in print form as well.</b>
<p>The Centre for Internet and Society would like to associate itself with the comprehensive statement made by the Electronic Frontier Foundation (EFF). We are one of the signatories of the joint statement, which EFF referred to, of the many civil society non-governmental organizations, cable casters and technology companies opposing an intellectual property rights based Broadcasting Treaty.</p>
<p>We believe that the protection that may be afforded to broadcasters under existing international treaties, including <a class="external-link" href="http://www.worldtradelaw.net/uragreements/tripsagreement.pdf">Article 14 of the TRIPS Agreement</a>, are sufficient to safeguard the interests of broadcasters, and that the Broadcast Treaty, which has been under discussion for more than a decade without any progress is, as the WIPO Chair observed in the conclusion to the informal summary prepared after the 16th SCCR (SCCR/17/1/inf), an expenditure of "time, energy and resources to no avail". Without prejudice to that position, we would like to make a few points on the content of the treaty as well.</p>
<p>There has been talk of ensuring a technology-neutral approach. While a technology-neutral approach is useful since technology keeps changing, we believe that that necessarily means the differences between different technologies should be recognized. The capital costs and investments of traditional broadcasters, which are—as has been highlighted in the many statements here today—the basis on which broadcasters' rights are demanded, are not in the least comparable with the capital costs and investments of webcasting.</p>
<p>These differences have not come out adequately in the various regional seminars that WIPO helped organize, since those were mostly with traditional broadcasters and did not cover webcasters.</p>
<p>"Communication to the public", while that is a technologically neutral formulation, is an element of copyright, and is not the same of broadcast rights, which is a related right.</p>
<p>Any departure from a signal-based approach would require the assent of the WIPO General Assembly, which has in 2007 specifically requested for signal-based approach for the treaty.</p>
<p>Specifically, we believe that Paragraph 16 of the WIPO Development Agenda, which relates to preservation of a vibrant public domain, will be endangered by a right being given to webcasters which is separate from the underlying content of the transmission.</p>
<p>In this regard, we strongly support the delegations of South Africa and India, in their strong pronunciation of public interests while looking at such a treaty. We further support the delegation of Canada, for strongly emphasizing the need to allow countries the flexibility to opt-out of the provisions of the treaty for certain forms of broadcasting.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/sccr-22-broadcast-cis-statement'>http://editors.cis-india.org/a2k/blogs/sccr-22-broadcast-cis-statement</a>
</p>
No publisherpraskrishnaAccess to KnowledgeCopyrightIntellectual Property RightsBroadcastingTechnological Protection Measures2011-08-04T04:41:12ZBlog EntryComments to the Ministry on WIPO Broadcast Treaty (March 2011)
http://editors.cis-india.org/a2k/blogs/wipo-broadcast-treaty-comments-march-2011
<b>As a follow up to a stakeholder meeting called by the MHRD on the WIPO Broadcast Treaty, CIS provided written comments on the April 2007 Non-Paper of the WIPO Broadcast Treaty, emphasising the need for a signal-based approach to be taken on the Broadcast Treaty, and making it clear that India should continue to oppose the creation of new rights for webcasters.</b>
<p>On February 22, 2011, the Ministry of Human Resource Development held a meeting to decide on the Indian position on the WIPO Broadcast Treaty. The Ministry asked the participants at the meeting to send in written submissions on four matters. We sent in submissions on those four issues, as well as a few others.</p>
<h2>Comments on the non-paper for the WIPO Broadcast Treaty by the Centre for Internet and Society</h2>
<p>On February 23, 2011, the Ministry of HRD had asked for comments on four matters:</p>
<ol>
<li>
<p>Article 3 of the Non-paper which was circulated earlier</p>
</li>
<li>
<p>Term of protection for signal</p>
</li>
<li>
<p>Nature of limitations and exceptions</p>
</li>
<li>
<p>Protection of signal and retransmission</p>
</li>
</ol>
<p>We have made submissions on those and a few other matters as well. Unless noted otherwise, all comments made in this note pertain to the final non-paper (April 2007) and not the draft non-paper (March 2007).</p>
<h2>Article 3</h2>
<p>Article 3 of the draft non-paper that was circulated (March 2007) for comments from country delegates stated:</p>
<blockquote>
<p>3. Scope of Application</p>
<p>The provisions of this Treaty shall not provide any protection in respect of</p>
<blockquote>
<p>(i) mere retransmissions;</p>
<p>(ii) any transmissions where the time of the transmission and the place of its reception may be individually chosen by members of the public (on-demand transmissions); or</p>
<p>(iii) any transmissions over computer networks (transmissions using the Internet</p>
<p>Protocol, “webcasting”, or “netcasting”).</p>
</blockquote>
</blockquote>
<p>A number of people present at the recent MHRD-organized meeting noted that “mere retransmissions” is a confusing term. In the revised non-paper (April 2007), it has been clarified that protection is not granted to third parties for merely retransmitting another’s signal (Art. 3(4)(i)).</p>
<blockquote>
<p>3. Specific Scope and Object of Protection</p>
<blockquote>
<p>(4) The provisions of this Treaty shall not provide any protection</p>
<blockquote>
<p>(i) to retransmitting third parties in respect of their mere retransmissions by any means of broadcasts by broadcasting organizations;</p>
<p>(ii) to any person for transmissions where the time of the transmission and the place of its reception may be individually chosen by members of the public (on-demand transmissions); or</p>
<p>(iii) to any person for transmissions over computer networks</p>
</blockquote>
</blockquote>
</blockquote>
<p>In addition, Art. 3(4)(iii) is currently ambiguous since it is not clear whether “retransmissions” are subsumed under the word transmission. By allowing for separate rights for retransmission over computer networks, the Treaty allows for the creation of two classes: traditional broadcasters who will have rights over retransmissions over computer networks, and all other persons who will have no rights over transmissions. Thus, if “retransmission” is not subsumed under the word “transmission”, it would be advisable to alter that clause to read “<i>to any person for transmissions or retransmissions over computer networks</i>”.</p>
<p>Lastly, Art. 3(4) should additional prevent protection for persons broadcasting materials for which they have not acquired copyright, or for broadcasting materials in the public domain.</p>
<h2>Term of Protection of Signals</h2>
<p>No term of protection should be provided. As was noted by the US government in its response to the draft non-paper, it is questionable “whether a 20-year term of protection is consistent with a signal-based approach”. The Brazilian delegation also states: “Article 13 should be deleted. A twenty-year term of protection is unnecessary. The agreed “signal-based” approach to the Treaty implies that the objected of protection is the signal, and therefore duration of protection must be linked with the ephemeral life of the signal itself.” Thus, a term is only needed if we stray away from a signal-based approach. As we do not wish to do so, there should be no term of protection.</p>
<h2>Limitations and Exceptions</h2>
<p>The limitations and exceptions (L&E) currently provided for allow for mirroring of copyright L&E limited by a Berne-like three-step test.</p>
<p>However, reasons for providing protection over broadcasting are not the same as those for copyright. For instance, a country may wish to make exceptions to signal protection for cases such as broadcast of a national sport, as India has done with the Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharati) Act.</p>
<p>This might well afoul of the three-step test proposed in Article 10(2). Furthermore, a country may wish to limit the application of broadcasters rights for national broadcasters (whose programming is paid for by taxpayers, and thus should be available to them), but may not be able to do so under the provisions of Article 10(2). Thus, Article 10(2) should be deleted, and Article 10(1) should be expanded to include issues of national interest and for free-to-air broadcast signals.</p>
<h2>Protection of Signal and Retransmission</h2>
<p>It should be a sine qua non condition of India’s that that this be a purely signal-based treaty with no fixation or post-fixation rights. Thus, it should restrict itself to protection of signals, and simultaneous retransmission.</p>
<p>As a result, no separate right to prevent unauthorized “decryption” should be granted, since signal-theft is already a crime. For instance, this provision would also cover decrypting an unauthorized retransmission without authorization from the retransmitter. This provides the unauthorized retransmitter rights, even though s/he has no right to retransmit. This leads to an absurd situation.</p>
<p>As stated by the Brazilian government:</p>
<blockquote>
<p>“[Article 10 of the draft non-paper and Article 9 of the non-paper] is inconsistent with a “signal-based approach”. It creates unwarranted obstacles to technological development, to access to legitimate uses, flexibilities and exceptions and to access to the public domain. It does not focus on securing effective protection against an illicit act, but rather creates new exclusive rights so that they cover areas unrelated with the objective of the treaty, such as control by holder of industrial production of goods, the development and use of encryption technologies, and private uses. The prohibition of mere decryption of encrypted signals, without there having been unauthorized broadcasting activity, is abusive.”</p>
</blockquote>
<h2>Other comments</h2>
<h3>Article 7</h3>
<p>Article 7 of the non-paper provides broadcasters rights post-fixation (“Broadcasting organizations shall enjoy the exclusive right of authorizing … the deferred transmission by any means to the public of their fixed broadcasts. ”). This is contrary to a signal-based approach. A signal-based approach would necessarily mean that it is only signal theft (which happens only via unauthorized simultaneous retransmission) that should be protected. Deferred transmission should implicate the rights of the owner of copyright, but not of the broadcasting organization.</p>
<h3>Article 4</h3>
<p>As suggested by the Brazilian government, Article 4(1) which proposes a non-prejudice clause should be amended to add the words “and access to the public domain” at its end. This is consistent with the WIPO Development Agenda.</p>
<h3>Article 5</h3>
<p>India should re-iterate its suggestion to add the following to the definition of “broadcast” under Art. 5(a): “‘broadcast’ shall not be understood as including transmission of such a set of signals over computer networks. ”</p>
<p>Further, the phrase “general public ” should be retained in Art.5 (as was present in the draft non-paper), and should not be made into “public”. The danger is that a limited public (say family members) could possibly be covered by the term “public”, while they will be excluded from “general public”, which in any case is the target audience of all broadcast.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/wipo-broadcast-treaty-comments-march-2011'>http://editors.cis-india.org/a2k/blogs/wipo-broadcast-treaty-comments-march-2011</a>
</p>
No publisherpraneshAccess to KnowledgeIntellectual Property RightsBroadcastingSubmissionsTechnological Protection Measures2012-12-14T10:29:20ZBlog EntryProblems Remain with Standing Committee's Report on Copyright Amendments
http://editors.cis-india.org/a2k/blogs/sc-report-on-amendments
<b>The Rajya Sabha Standing Committee on Human Resource Development (under which ministry copyright falls) recently tabled their report on the Copyright (Amendment) Bill, 2010 before Parliament. There is much to be applauded in the report, including the progressive stand that the Committee has taken on the issue of providing access by persons with disabilities. This post, however, will concern itself with highlighting some of the problems with that report, along with some very important considerations that got missed out of the entire amendment debate.</b>
<h2 id="internal-source-marker_0.7517305351026772">Fair Dealings and Intermediary Liability</h2>
<p>The
amendments make a number of changes to s.52(1) of the Act, including to
the fair dealing provisions under s.52(1)(a), and introduction of two
new sub-sections (s.52(1)(b) and (c)) with s.52(1)(c) introducing a
modicum of protection for intermediaries involved in "transient and
incidental storage for the purpose of providing electronic links, access
or integration" (but only if the copyright holder has not expressed any
objections, and if the intermediary believes it to be non-infringing).
The provision allows the intermediary to ask the person complaining
against it to provide a court order within 14 days, since the
intermediary is in no position to determine the judicial question of
whether the copyright holder holds copyright and if the third party has
violated that copyright. However this provision was opposed tooth and
nail by the copyright holders' associations that dominated the
representations, while intermediaries and consumers remained woefully
under-represented before the Standing Committee.</p>
<p>Predictably,
the Standing Committee dealt a blow against intermediaries and
consumers by asking the government to review the "viability of the
duration of 14 days... by way of balancing the views of the stakeholders
as well as the legal requirement in the matter". They recommended a
relatively minor change of changing the phrase "transient and
incidental" to "transient or incidental". By doing this, they failed to
address the concerns raised by Yahoo India, Google India, and also
failed to acknowledge the submissions made by 22 civil society
organizations (available here:
http://cis-india.org/advocacy/ipr/upload/copyright-bill-submission).</p>
<p> </p>
<h2>Technological Protection Measures and Rights Management Information Provision</h2>
<p>The
amendments aim to bring about two new criminal provisions, and seek to
make circumvention of technological protection measures (digital locks)
and alteration of rights management information (which are embedded into
digital files and signals) illegal.</p>
<p>The Standing Committee heard a number of organizations on technological protection measures, which <a href="http://editors.cis-india.org/a2k/blogs/tpm-copyright-amendment">we had argued</a>
are harmful as they a) cannot distinguish between fair dealing and
infringement, and b) are harmful even if a legal right to circumvent for
fair dealings is provided because the technological means to circumvent
doesn't necessarily exist. (Imagine a law that says that breaking a
lock using lock-breaking implements isn't a crime if it is done to enter
into your own house. Such a law doesn't help you if you can't get your
hands on the lock-breaking implements in the first place.) The Indian
Broadcasting Federation, the Business Software Alliance, and the Motion
Picture Association (which represents six studios, all American), the
Indian Music Industry, and the Indian Performing Right Society Limited
all felt that this provision did not go far enough. The Motion Picture
Association, for instance, wants not just controls over that which
copyright covers</p>
<p>Yahoo
India and Google India on the other hand thought that provision went
too far. Google made it clear that they thought having criminal
repercussions for circumvention was clearly disproportionate. Thus, a
clearer split is established between old media companies; the old media
companies clutching on to straws that they feel will save them from
adapting their business practices to the digital environment, and online
companies that understand the digital environment better having a
markedly different idea.</p>
<p>Currently
section 65B (read with the definition of "Rights Management
Information" in section 2(xa)) of the proposed amendments ensures that
Rights Management Information cannot be used to spy on users. The Indian
Reprographic Rights Organization however believes that this is wrong:
it believes that copyright owners should have the ability to track users
without their consent. Yahoo India, on the other hand, believes that
this is a harmful provision, and state that "the imposition of criminal
and monetary liability could adversely affect consumers", and cites the
instance of difficulties that would be faced by "entities engaged in
creating copies of any copyright material into a format specially
designed for persons suffering from disability" because of the language
of the provision that requires knowledge instead of intention. The
committee responds to this by summing up with a tautology, stating:</p>
<blockquote>
<p>The
Committee is of the view that the parties responsible for distribution
or broadcasting or communication to the public through authorized
licence from the author or rights holder and who do not remove any
rights management information deliberately for making unauthorized
copies need not worry about this provision as long as their act is as
per the framework of this provision.</p>
</blockquote>
<h2><br /></h2>
<h2>Implications of Standing Committee's Report Unclear</h2>
<p>Many of the comments made by the Standing Committee are unclear. On compulsory licensing, the committee states:</p>
<blockquote>The
Committee also takes note of the proposed amendments in section 31 A
relating to compulsory licence in unpublished Indian works. The
provision of compulsory licence for orphaned works available under this
section is proposed to be extended to published works as well. Like in
the case of section 31, extension of applicability to all foreign works
(including film, DVDs, etc.) could be violative of Berne Convention and
TRIPS Agreement and seem to fall short of the minimum obligations
imposed by such instruments. The Committee is of the view that future
implication of proposed amendment in Section 31A vis-à-vis India's
commitment to international agreement needs to be free from any
ambiguity so as to prevent any negative fallout.<br /></blockquote>
<p>However,
the usage of the phrase "could be violative" leaves it unclear whether
the Standing Committee believes the proposed amendments to be violative
of the TRIPS Agreement or not. All that the Standing Committee says is
that the provision needs to be unambiguous, and that TRIPS compliance
must be ensured. That word of caution does not directly rebut the
government's contention that the proposed amendment is TRIPS-compliant.</p>
<p>Similarly,
the Committee's views on increase of copyright term for cinematograph
films is unclear. While commenting on the clause that introduces the
term increase (as part of the proposal to include the principal director
as an author of the film along with the producer), the Committee
states:</p>
<blockquote>It,
therefore, recommends that the proposal to include principal director
as author of the film along with producer may be dropped altogether.<br /></blockquote>
<p>While
this presumably means that the proposal to increase term is also being
rejected, that is not made clear by the Committee's comments.</p>
<h2><br /></h2>
<h2>Increased Copyright Duration, Expansive Moral Rights and Other Negative Changes</h2>
<p>In
the submission of CIS and twenty-one other civil society organizations
to the Standing Committee, we highlighted all of the below concerns.
However, our submission was not tabled before the Standing Committee
for reasons unknown to us.</p>
<ul><li><strong>WCT
and WPPT compliance</strong>: India has not signed either of these two treaties,
which impose TRIPS-plus copyright protection, but without any
corresponding increase in fair dealing / fair use rights. Given that
the Standing Committee has recommended against some aspects of WCT
compliance (such as the move to change "hire" to "commercial rental")
and that without such changes India cannot be a signatory to the WCT, it
is unclear why other forms of WCT compliance (such as TPMs) should be
implemented.</li><li><strong>Increase
in duration of copyright</strong>: The duration of copyright of photographs and
video recordings is sought to be increased. The term of copyright for photographs is being increased from sixty years from creation to sixty years from death of the photographer. This will
significantly reduce the public domain, which India has been arguing for
internationally, especially through its push for the Development Agenda at the World Intellectual Property Organization.<br /></li><li><strong>Moral
rights</strong>: Changes have been made to author’s moral rights (and
performer’s moral rights have been introduced) but these have been made
without requisite safeguards.</li><li><strong>Version
recordings</strong>: The amendments make cover version much more difficult to
produce, and while the Standing Committee has addressed the concerns of
some in the music industry, it hasn't addressed the concerns of artists
and consumers.</li></ul>
<h2><br /></h2>
<h2>Criminal Provisions, Government Works, and Other Missed Opportunities</h2>
<p>The
following important changes should have been made by the government,
but haven't. While on some issues the Standing Committee has gone
beyond the proposed amendments, it hasn't touched upon any of the
following, which we believe are very important changes that are required
to be made.</p>
<ul><li><strong>Criminal
provisions</strong>: Our law still criminalises individual, non-commercial
copyright infringement. This has now been extended to the proposal for
circumvention of Technological Protection Measures and removal of Rights
Management Information also.</li><li><strong>Government
works:</strong> Taxpayers are still not free to use works that were paid for by
them. This goes against the direction that India has elected to march
towards with the Right to Information Act. A simple amendment of
s.52(1)(q) would suffice. The amended subsection would except "the
reproduction, communication to the public, or publication of any
government work" as being non-infringing uses.</li><li><strong>Copyright
terms</strong>: The duration of all copyrights are above the minimum required by
our international obligations, thus decreasing the public domain which
is crucial for all scientific and cultural progress.</li><li><strong>Educational exceptions</strong>: The exceptions for education still do not fully embrace distance and digital education.</li><li><strong>Communication
to the public</strong>: No clear definition is given of what constitute a
‘public’, and no distinction is drawn between commercial and
non-commercial ‘public’ communication.</li><li><strong>Internet
intermediaries</strong>: More protections are required to be granted to Internet
intermediaries to ensure that non-market based peer-production projects
such as Wikipedia, and other forms of social media and grassroots
innovation are not stifled.</li><li><strong>Fair
dealing and fair use</strong>: We would benefit greatly if, apart from the
specific exceptions provided for in the Act, more general guidelines
were also provided as to what do not constitute infringement. This would
not take away from the existing exceptions.</li></ul>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/sc-report-on-amendments'>http://editors.cis-india.org/a2k/blogs/sc-report-on-amendments</a>
</p>
No publisherpraneshAccess to KnowledgeCopyrightIntellectual Property RightsIntermediary LiabilityTechnological Protection Measures2011-09-06T07:50:12ZBlog EntryAnalysis of the Copyright (Amendment) Bill, 2010
http://editors.cis-india.org/a2k/blogs/copyright-bill-analysis
<b>CIS analyses the Copyright (Amendment) Bill, 2010, from a public interest perspective to sift the good from the bad, and importantly to point out what crucial amendments should be considered but have not been so far.</b>
<p>
The full submission that CIS and 21 other civil society organizations made to the Rajya Sabha Standing Committee on HRD (which is studying the Bill) is <a title="Copyright Bill Analysis" class="internal-link" href="http://www.cis-india.org/advocacy/ipr/upload/copyright-bill-submission">available here</a>. Given below is the summary of our submissions:</p>
<h2 class="western">Existing Copyright Act</h2>
<p align="JUSTIFY">The Indian Copyright
Act, 1957 has been designed from the perspective of a developing
country. It has always attempted a balance between various kinds of
interests. It has always sought to ensure that rights of authors of
creative works is carefully promoted alongside the public interest
served by wide availability and usability of that material. For
instance, our Copyright Act has provisions for: </p>
<ul><li>
<p align="JUSTIFY">compulsory and
statutory licensing: recognizing its importance in making works
available, especially making them available at an affordable rate.</p>
</li><li>
<p align="JUSTIFY">cover versions:
recognizing that more players lead to a more vibrant music industry.</p>
</li><li>
<p align="JUSTIFY">widely-worded
right of fair dealing for private use: recognizing that individual
use and large-scale commercial misuse are different.</p>
</li></ul>
<p align="JUSTIFY">These provisions of
our Act <a class="external-link" href="http://a2knetwork.org/watchlist/report/india">have been lauded</a>,<sup><a class="sdfootnoteanc" name="sdfootnote1anc" href="#sdfootnote1sym"></a></sup>
and India has been rated as <a class="external-link" href="http://a2knetwork.org/summary-report-2010">the most balanced copyright system in a
global survey</a><sup><a class="sdfootnoteanc" name="sdfootnote2anc" href="#sdfootnote2sym"></a></sup>
conducted of over 34 countries by <a class="external-link" href="http://www.consumersinternational.org/">Consumers International</a><sup><a class="sdfootnoteanc" name="sdfootnote3anc" href="#sdfootnote3sym"></a></sup>.</p>
<p align="JUSTIFY">The Indian Parliament
has always sought to be responsive to changing technologies by paying
heed to both the democratisation of access as well as the securing of
the interests of copyright holders. This approach needs to be lauded,
and importantly, needs to be maintained.</p>
<p align="JUSTIFY"><br /></p>
<h2 class="western">Proposed Amendments</h2>
<h3 class="western">Some positive amendments</h3>
<ul><li>
<p align="JUSTIFY"><strong>Fair
Dealings, Parallel Importation, Non-commercial Rental</strong>: All works
(including sound recordings and cinematograph films) are now covered
the fair dealings clause (except computer programmes), and a few
other exceptions; parallel importation is now clearly allowed; and
non-commercial rental has become a limitation in some cases.</p>
</li><li>
<p align="JUSTIFY"><strong>Persons with
disabilities</strong>: There is finally an attempt at addressing the
concerns of persons with disabilities. But the provisions are
completely useless the way they are currently worded.</p>
</li><li>
<p align="JUSTIFY"><strong>Public
Libraries</strong>: They can now make electronic copies of works they
own, and some other beneficial changes relating to public libraries.</p>
</li><li>
<p align="JUSTIFY"><strong>Education</strong>:
Some exceptions related to education have been broadened (scope of
works, & scope of use).</p>
</li><li>
<p align="JUSTIFY"><strong>Statutory and
compulsory licensing</strong>: Some new statutory licensing provisions
(including for radio broadcasting) and some streamlining of existing
compulsory licensing provisions.</p>
</li><li>
<p align="JUSTIFY"><strong>Copyright
societies</strong>: These are now responsible to authors and not owners
of works.</p>
</li><li>
<p align="JUSTIFY"><strong>Open
licences</strong>: Free and Open Source Software and Open Content
licensing is now simpler.</p>
</li><li>
<p align="JUSTIFY"><strong>Partial
exemption of online intermediaries</strong>:
Transient and incidental storage of copyrighted works has
been excepted, mostly for the benefit of online intermediaries.</p>
</li><li>
<p align="JUSTIFY"><strong>Performer’s
rights</strong>: The general, and confusing, exclusive right that
performers had to communicate their performance to the public has
been removed, and instead only the exclusive right to communicate
sound/video recordings remains.</p>
</li><li>
<p align="JUSTIFY"><strong>Enforcement</strong>:
Provisions on border measures have been made better, and less prone
to abuse and prevention of legitimate trade.</p>
</li></ul>
<h3 class="western"><br /></h3>
<h3 class="western">Some negative amendments</h3>
<ul><li>
<p align="JUSTIFY"><strong>WCT and WPPT
compliance</strong>: India has not signed either of these two treaties,
which impose TRIPS-plus copyright protection, but without any
corresponding increase in fair dealing / fair use rights.</p>
</li><li>
<p align="JUSTIFY"><strong>Increase in
duration of copyright</strong>: This will significantly reduce the public
domain, which India has been arguing for internationally.</p>
</li><li>
<p align="JUSTIFY"><strong>Technological
Protection Measures</strong>: TPMs, which have been shown to be
anti-consumer in all countries in which they have been introduced,
are sought to be brought into Indian law.</p>
</li><li>
<p align="JUSTIFY"><strong>Version
recordings</strong>: The amendments make cover version much more
difficult to produce.</p>
</li><li>
<p align="JUSTIFY"><strong>Moral rights</strong>:
Changes have been made to author’s moral rights (and performer’s
moral rights have been introduced) but these have been made without
requisite safeguards.</p>
</li></ul>
<h3 class="western"><br /></h3>
<h3 class="western">Missed opportunities</h3>
<ul><li>
<p align="JUSTIFY"><strong>Government-funded
works</strong>: Taxpayers are still not free to use works that were paid
for by them. This goes against the direction that India has elected
to march towards with the Right to Information Act.</p>
</li><li>
<p align="JUSTIFY"><strong>Copyright
terms</strong>: The duration of all copyrights are above the minimum
required by our international obligations, thus decreasing the
public domain which is crucial for all scientific and cultural
progress.</p>
</li><li>
<p align="JUSTIFY"><strong>Criminal
provisions</strong>: Our law still criminalises individual,
non-commercial copyright infringement.</p>
</li><li>
<p align="JUSTIFY"><strong>Libraries and
archives</strong>: The exceptions for ‘public libraries’ are still
too narrow in what they perceive as ‘public libraries’.</p>
</li><li>
<p align="JUSTIFY"><strong>Educational
exceptions</strong>: The exceptions for education still do not fully
embrace distance and digital education.</p>
</li><li>
<p align="JUSTIFY"><strong>Communication
to the public</strong>: No clear definition is given of what constitute a
‘public’, and no distinction is drawn between commercial and
non-commercial ‘public’ communication.</p>
</li><li>
<p align="JUSTIFY"><strong>Internet
intermediaries</strong>: More protections are required to be granted to
Internet intermediaries to ensure that non-market based
peer-production projects such as Wikipedia, and other forms of
social media and grassroots innovation are not stifled.</p>
</li><li>
<p align="JUSTIFY"><strong>Fair dealing
and fair use</strong>: We would benefit greatly if, apart from the
specific exceptions provided for in the Act, more general guidelines
were also provided as to what do not constitute infringement. This
would not take away from the existing exceptions.</p>
</li></ul>
<p align="JUSTIFY"> </p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/copyright-bill-analysis'>http://editors.cis-india.org/a2k/blogs/copyright-bill-analysis</a>
</p>
No publisherpraneshAccess to KnowledgeConsumer RightsCopyrightFair DealingsPublic AccountabilityIntellectual Property RightsRTIFeaturedBroadcastingPublicationsSubmissionsTechnological Protection Measures2011-09-21T06:01:54ZBlog EntryA Guide to Key IPR Provisions of the Proposed India-European Union Free Trade Agreement
http://editors.cis-india.org/a2k/blogs/a-guide-to-the-proposed-india-european-union-free-trade-agreement
<b>The Centre for Internet and Society presents a guide for policymakers and other stakeholders to the latest draft of the India-European Union Free Trade Agreement, which likely will be concluded by the end of the year and may hold serious ramifications for Indian businesses and consumers. </b>
<div class="visualClear">In its ongoing negotiation for a FTA with the EU, a process that began in 2007 and is expected to end sometime this year, India has won several signicant IP-related concessions. But there remain several IP issues critical to the maintenance of its developing economy, including its robust entrepreneurial environment, that India should contest further before ratifying the treaty. This guide covers the FTA's IP provisions that are within the scope of CIS' policy agenda and on which India has negotiated favorable language, as well as those provisions that it should re-negotiate or oppose.</div>
<div class="visualClear"> </div>
<div class="visualClear">Download the guide <a title="A Guide to the Proposed India-European Union FTA" class="internal-link" href="http://www.cis-india.org/a2k/publications/CIS%20Open%20Data%20Case%20Studies%20Proposal.pdf">here</a>, and please feel free to comment below.</div>
<div class="visualClear"> </div>
<div class="visualClear">You may also download a <a title="India-EU FTA TRIPS Comparison Chart" class="internal-link" href="http://www.cis-india.org/advocacy/ipr/upload/India-EU_FTA_Chart.odt">chart</a> comparing the language proposed by India and the EU respectively with that included in the WTO's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).</div>
<div class="visualClear"> </div>
<div class="visualClear">Following is a summary of CIS' findings:</div>
<div class="visualClear"> </div>
<div class="visualClear">
<div class="visualClear">
<ul><li>India has become a de facto leader of developing countries at the WTO, and an India-EU FTA seems likely to provide a model for FTAs between developed and developing states well into the future.</li><li>The EU has proposed articles on reproduction, communication, and broadcasting rights which could seriously undermine India's authority to regulate the use of works under copyright as currently provided for in the Berne Convention, as well as narrowing exceptions and limitations to rights under copyright.</li><li>The EU asserts that copyright includes "copyright in computer programs and in databases," without indicating whether such copyright exceeds that provided for in the Berne Convention. Moreover, by asserting that copyright "includes copyright in computer programs and in databases," the EU has left open the door for the extension of copyright to non-original databases.</li><li>India should explicitly obligate the EU to promote and encourage technology transfer -- an obligation compatible with and derived from TRIPS -- as well as propose a clear definition of technology transfer.</li><li>The EU has demanded India's accession to the WIPO Internet Treaties, the merits of which are currently under debate as India moves towards amending its Copyright Act, as well as several other international treaties that India either does not explicitly enforce or to which it is not a contracting party.</li><li>In general, the EU's provisions would extend terms of protection for material under copyright, within certain constraints, further endangering India's consumer-friendly copyright regime.</li><li>An agreement to establish arrangements between national organizations charged with collecting and distributing royalty payments may obligate such organizations in India collect royalty payments for EU rights holders on the same basis as they do for Indian rights holders, and vice versa in the EU, but more heavily burden India.</li><li>The EU has proposed a series of radical provisions on the enforcement of IPRs that are tailored almost exclusively to serve the interests of rights holders, at the expense of providing safety mechanisms for those accused of infringing or enabling infringers. </li><li>The EU has proposed, under cover of protecting intermediate service providers from liability for infringement by their users, to increase and/or place the burden on such providers of policing user activity.</li></ul>
</div>
</div>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/a-guide-to-the-proposed-india-european-union-free-trade-agreement'>http://editors.cis-india.org/a2k/blogs/a-guide-to-the-proposed-india-european-union-free-trade-agreement</a>
</p>
No publishergloverDevelopmentConsumer RightsCopyrightAccess to KnowledgeDiscussionEconomicsAnalysisTechnological Protection MeasuresIntermediary LiabilityinnovationIntellectual Property RightsPatentsPublications2011-08-30T13:06:03ZBlog EntryThe 2010 Special 301 Report Is More of the Same, Slightly Less Shrill
http://editors.cis-india.org/a2k/blogs/2010-special-301
<b>Pranesh Prakash examines the numerous flaws in the Special 301 from the Indian perspective, to come to the conclusion that the Indian government should openly refuse to acknowledge such a flawed report. He notes that the Consumers International survey, to which CIS contributed the India report, serves as an effective counter to the Special 301 report.</b>
<h1>Special 301 Report: Unbalanced Hypocrisy</h1>
<p>The United States Trade Representative has put yet another edition of the Special 301 report which details the copyright law and policy wrongdoings of the US's trading partners. Jeremy Malcolm of Consumers International notes that the report this year claims to be "well-balanced assessment of intellectual property protection and enforcement ... taking into account diverse factors", but:</p>
<blockquote>
<p>[I]n fact, the report largely continues to be very one-sided. As in previous editions, it lambasts developing countries for failing to meet unrealistically stringent standards of IP protection that exceed their obligations under international law.</p>
</blockquote>
<p>More the report changes, <a href="http://cis-india.org/advocacy/ipr/blog/consumers-international-ip-watch-list-2009">the more it stays the same</a>. <a href="http://www.michaelgeist.ca/content/view/4684/195/">Despite having wider consultations</a> than just the International Intellectual Property Alliance (IIPA, consisting of US-based IP-maximalist lobbyists like the Motion Picture Association of America, Recording Industry Association of America, National Music Publishers Association, Association of American Publishers, and Business Software Alliance) and the Pharmaceutical Research and Manufacturers of America (PhRMA, consisting of US-based pharma multinationals), things haven't really changed much in terms of the shoddiness of the Special 301 report.</p>
<h1>India and the 2010 Special 301 Report</h1>
<p>The Special 301 report for 2010 contains the following assessment of India:</p>
<blockquote>
<p>India will remain on the Priority Watch List in 2010. India continues to make gradual progress on efforts to improve its legislative, administrative, and enforcement infrastructure for IPR. India has made incremental improvements on enforcement, and its IP offices continued to pursue promising modernization efforts. Among other steps, the United States is encouraged by the Indian government’s consideration of possible trademark law amendments that would facilitate India’s accession to the Madrid Protocol. The United States encourages the continuation of efforts to reduce patent application backlogs and streamline patent opposition proceedings. Some industries report improved engagement and commitment from enforcement officials on key enforcement challenges such as optical disc and book piracy. However, concerns remain over India’s inadequate legal framework and ineffective enforcement. Piracy and counterfeiting, including the counterfeiting of medicines, remains widespread and India’s enforcement regime remains ineffective at addressing this problem. Amendments are needed to bring India’s copyright law in line with international standards, including by implementing the provisions of the WIPO Internet Treaties. Additionally, a law designed to address the unauthorized manufacture and distribution of optical discs remains in draft form and should be enacted in the near term. The United States continues to urge India to improve its IPR regime by providing stronger protection for patents. One concern in this regard is a provision in India’s Patent Law that prohibits patents on certain chemical forms absent a showing of increased efficacy. While the full import of this provision remains unclear, it appears to limit the patentability of potentially beneficial innovations, such as temperature-stable forms of a drug or new means of drug delivery. The United States also encourages India to provide protection against unfair commercial use, as well as unauthorized disclosure, of undisclosed test or other data generated to obtain marketing approval for pharmaceutical and agricultural chemical products. The United States encourages India to improve its criminal enforcement regime by providing for expeditious judicial disposition of IPR infringement cases as well as deterrent sentences, and to change the perception that IPR offenses are low priority crimes. The United States urges India to strengthen its IPR regime and will continue to work with India on these issues in the coming year. </p>
</blockquote>
<p>This short dismissal of the Indian IPR regime, and subsequent classification of India as a "Priority Watch List" country reveals the great many problems with the Special 301.</p>
<h2>On Copyrights</h2>
<ol>
<li>
<p>The report notes that there are "concerns over India's inadequate legal framework and ineffective enforcement". However, nowhere does it bother to point out precisely <em>how</em> India's legal framework is inadequate, and how this is negatively affecting authors and creators, consumers, or even the industry groups (MPAA, RIAA, BSA, etc.) that give input to the USTR via the IPAA. Nor does it acknowledge the well-publicised fact that the statistics put out by these bodies have time and again <a href="http://www.cis-india.org/a2k/blog/fallacies-lies-and-video-pirates">proven to be wrong</a>:</p>
</li>
<li>
<p>Apart from this bald allegation which has not backing, there is a bald statement about India needing to bring its copyright law "in line with international standards" including "the WIPO Internet Treaties". The WIPO Internet Treaties given that more than half the countries of the world are not signatories to either of the WIPO Internet Treaties (namely the WIPO Copyright Treaty and the WIPO Performance and Phonograms Treaty), calling them 'international standards' is suspect. That apart, both those treaties are TRIPS-plus treaties (requiring protections greater than the already-high standards of the TRIPS Agreement). India has not signed either of them. It should not be obligated to do so. Indeed, Ruth Okediji, a noted copyright scholar, <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1433848">states</a>:</p>
</li>
</ol>
<blockquote>
<p>Consistent with their predecessors, the WIPO Internet Treaties marginalize collaborative forms of creative engagement with which citizens in the global South have long identified and continue in the tradition of assuming that copyright’s most enduring cannons are culturally neutral. [...] The Treaties do not provide a meaningful basis for a harmonized approach to encourage new creative forms in much the same way the Berne Convention fell short of embracing diversity in patterns and modes of authorial expression.</p>
</blockquote>
<ol>
<li>
<p>Some of the of the 'problems' noted in the report are actually seen as being beneficial by many researchers and scholars such as Lawrence Liang, Achal Prabhala, Perihan Abou Zeid <a href="https://sites.google.com/site/iipenforcement/bibliography">and others</a>, who argue that <a href="http://www.altlawforum.org/intellectual-property/publications/articles-on-the-social-life-of-media-piracy/reconsidering-the-pirate-nation">lax enforcement has enabled access to knowledge and promotion of innovation</a>. In a panel on 'Access to Knowledge' at the Internet Governance Forum, <a href="http://a2knetwork.org/access-knowledge-internet-governance-forum">Lea Shaver, Jeremy Malcolm and others</a> who have been involved in that Access to Knowledge movement noted that lack of strict enforcement played a positive role in many developing countries. However, they also noted, with a fair bit of trepidation, that this was sought to be changed at the international level through treaties such as the Anti-Counterfeiting Treaty Agreement (ACTA).</p>
</li>
<li>
<p>The scope of an optical disc law are quite different from copyright law. The report condemns "unauthorized manufacture and distribution of optical discs", however it does not make it clear that what it is talking about is not just unlicensed copying of films (which is already prohibited under the Copyright Act) but the manufacture and distribution of blank CDs and DVDs as well. The need for such a law is assumed, but never demonstrated. It is onerous for CD and DVD manufacturers (such as the Indian company Moserbaer), and is an overbearing means of attacking piracy.</p>
</li>
<li>
<p>The report calls for "improve[ment] [of India's] criminal enforcement regime" and for "deterrent" sentences and expeditious judicial disposition of IPR infringement cases. While we agree with the last suggestion, the first two are most unacceptable. Increased criminal enforcement of a what is essentially a private monopoly right is undesirable. Copyright infringment on non-commercial scales should not be criminal offences at all. What would deter people from infringing copyright laws are not "deterrent sentences" but more convenient and affordable access to the copyright work being infringed.</p>
</li>
</ol>
<h2>On Patents</h2>
<p>Thankfully, this year the Special 301 report does not criticise the Indian Patent Act for providing for post-grant opposition to patent filings, as it has in previous years. However, it still criticises section 3(d) of the Patent Act which ensures that 'evergreening' of drug patents is not allowed by requiring for new forms of known substances to be patented only if "the enhancement of the known efficacy of [the known] substance" is shown. Thus, the US wishes India to change its domestic law to enable large pharma companies to patent new forms of known substances that aren't even better ("enhancement of the known efficacy"). For instance, "new means of drug delivery" will not, contrary to the assertions of the Special 301 report and the worries of PhRMA, be deemed unpatentable.</p>
<p>The United States has been going through much turmoil over its patent system. Reform of the patent system is currently underway in the US through administrative means, judicial means, as well as legislative means. One of the main reasons for this crumbling of the patent system has been the low bar for patentability (most notably the 'obviousness' test) in the United States and the subsequent over-patenting. An <a href="http://supreme.justia.com/us/447/303/case.html">American judgment</a> even noted that "anything under the sun that is made by man" is patentable subject matter. It is well-nigh impossible to take American concerns regarding our high patent standards seriously, given this context.</p>
<h2>Miscellanea</h2>
<p>The harms of counterfeit medicine, as <a href="http://www.cis-india.org/a2k/blog/fallacies-lies-and-video-pirates">we have noted earlier</a>, are separate issues that are best dealt under health safety regulations and consumer laws, rather than trademark law.</p>
<p>Data exclusivity has been noted to be harmful to the progress of generics, and seeks to extend proprietary rights over government-mandated test data. It is [clear from the TRIPS Agreement][de-trips] that data exclusivity is not mandatory. There are clear rationale against it, and the Indian pharmaceutical industry [is dead-set against it][de-india]. Still, the United States Trade Representative persists in acting as a corporate shill, calling on countries such as India to implement such detrimental laws.</p>
<h2>Conclusion</h2>
<p>Michael Geist, professor at University of Ottowa <a href="http://www.michaelgeist.ca/content/view/4997/125">astutely notes</a>:</p>
<blockquote>
<p>Looking beyond just Canada, the list [of countries condemned by the Special 301 report] is so large, that it is rendered meaningless. According to the report, approximately 4.3 billion people live in countries without effective intellectual property protection. Since the report does not include any African countries outside of North Africa, the U.S. is effectively saying that only a small percentage of the world meet its standard for IP protection. Canada is not outlier, it's in good company with the fastest growing economies in the world (the BRIC countries are there) and European countries like Norway, Italy, and Spain.
In other words, the embarrassment is not Canadian law. Rather, the embarrassment falls on the U.S. for promoting this bullying exercise and on the Canadian copyright lobby groups who seemingly welcome the chance to criticize their own country. </p>
</blockquote>
<p>His comments apply equally well for India as well.</p>
<h1>IIPA's Recommendation for the Special 301 Report</h1>
<p>Thankfully, this year <a href="http://www.iipa.com/rbc/2010/2010SPEC301INDIA.pdf">IIPA's recommendations</a> have not been directly copied into the Special 301 report. (They couldn't be incorporated, as seen below.) For instance, the IIPA report notes:</p>
<blockquote>
<p>The industry is also concerned about moves by the government to consider mandating the use of open source software and software of only domestic origin. Though such policies have not yet been implemented, IIPA and BSA urge that this area be carefully monitored.</p>
</blockquote>
<p>Breaking that into two bit:</p>
<h2>Open Source</h2>
<p>Firstly, it is curious to see industry object to legal non-pirated software. Secondly, many of BSA's members (if not most) use open source software, and a great many of them also produce open source software. <a href="http://hp.sourceforge.net/">HP</a> and <a href="http://www-03.ibm.com/linux/ossstds/">IBM</a> have been huge supporters of open source software. Even <a href="http://www.microsoft.com/opensource/">Microsoft has an open source software division</a>. [Intel][intel], <a href="http://www.sap.com/usa/about/newsroom/press.epx?pressid=11410">SAP</a>, <a href="http://www.cisco.com/web/about/doing_business/open_source/index.html">Cisco</a>, <a href="http://linux.dell.com/projects.shtml">Dell</a>, <a href="http://www.sybase.com/developer/opensource">Sybase</a>, <a href="http://www.entrust.com/news/index.php?s=43&item=702">Entrust</a>, <a href="http://about.intuit.com/about_intuit/press_room/press_release/articles/2009/IntuitPartnerPlatformAddsOpenSourceCommunity.html">Intuit</a>, <a href="http://www.synopsys.com/community/interoperability/pages/libertylibmodel.aspx">Synopsys</a>, <a href="http://www.apple.com/opensource/">Apple</a>, <a href="http://www.theregister.co.uk/2005/04/22/jbuilder_eclipse/">Borland</a>, <a href="http://w2.cadence.com/webforms/squeak/">Cadence</a>, <a href="http://usa.autodesk.com/adsk/servlet/item?siteID=123112&id=6153839">Autodesk</a>, and <a href="http://news.cnet.com/8301-13505_3-9967593-16.html">Siemens</a> are all members of BSA which support open source software / produce at least some open source software. And <em>all</em> BSA members rely on open source software (as part of their core products, their web-server, their content management system, etc.) to a lesser or greater extent. BSA's left hand doesn't seem to know what its right hand -- its members -- are doing. Indeed, the IIPA does not seem to realise that the United States' government itself uses [open source software], and has been urged to <a href="http://news.bbc.co.uk/2/hi/7841486.stm">look at FOSS very seriously</a> and is doing so, especially under CIO Vivek Kundra. And that may well be the reason why the USTR could not include this cautionary message in the Special 301 report.</p>
<h2>Domestic Software</h2>
<p>As <a href="http://arstechnica.com/tech-policy/news/2010/04/indias-copyright-proposals-are-un-american-and-thats-bad.ars">this insightful article by Nate Anderson in Ars Technica</a> notes:</p>
<blockquote>
<p>Open source is bad enough, but a "buy Indian" law? That would be <a href="http://www.canadainternational.gc.ca/sell2usgov-vendreaugouvusa/procurement-marches/buyamerica.aspx?lang=eng">an outrage</a> and surely something the US government would not itself engage in <a href="http://www.canadainternational.gc.ca/sell2usgov-vendreaugouvusa/procurement-marches/ARRA.aspx?lang=eng">as recently as last year</a>. Err, right?</p>
</blockquote>
<p>Furthermore, the IIPA submission do not provide any reference for their claim that "domestic origin" software is being thought of being made a mandatory requirement in governmental software procurement.<br />
</p>
<h2>WCT, WPPT, Camcording, and Statutory Damages</h2>
<p>The IIPA submission also wish that India would:</p>
<ol>
<li>Adopt a system of statutory damages in civil cases; allow compensation to be awarded in criminal cases;</li>
<li>Adopt an optical disc law;</li>
<li>Enact Copyright Law amendments consistent with the WCT and WPPT;</li>
<li>Adopt an anti-camcording criminal provision.</li>
</ol>
<p>Quick counters:</p>
<ol>
<li>Statutory damages (that is, an amount based on statute rather than actual loss) would result in ridiculousness such as the $1.92 million damages that the jury (based on the statutory damages) slapped on Jammie Thomas. The judge in that case <a href="http://arstechnica.com/tech-policy/news/2010/01/judge-slashes-monstrous-jammie-thomas-p2p-award-by-35x.ars">called the damage award</a> "monstrous and shocking" and said that veered into "the realm of gross injustice."</li>
<li>The reasons against an optical disc law are given above. Quick recap: it is a) unnecessary and b) harmful.</li>
<li>India has not signed the WCT and the WPPT. Indian law satisfies all our international obligations. Thus enacting amendments consistent with the WCT and the WPPT is not required.</li>
<li>Camcording of a film is in any case a violation of the Copyright Act, 1957, and one would be hard-pressed to find a single theatre that allows for / does not prohibit camcorders. Given this, the reason for an additional law is, quite frankly, puzzling. At any rate, IIPA in its submission does not go into such nuances.</li>
</ol>
<h2>Further conclusions</h2>
<p><a href="http://spicyipindia.blogspot.com/2010/05/us-special-301-report-and-not-so.html">Shamnad Basheer</a>, an IP professor at NUJS, offer the following as a response:</p>
<blockquote>
<p>"Dear USA,</p>
<p>India encourages you to mind your own business. We respect your sovereignty to frame IP laws according to your national priorities and suggest that you show us the same courtesy. If your grouse is that we haven't complied with TRIPS, please feel free to take us to the WTO dispute panel. Our guess is that panel members familiar with the English language will ultimately inform you that section 3(d) is perfectly compatible with TRIPS. And that Article 39.3 does not mandate pharmaceutical data exclusivity, as you suggest!
More importantly, at that point, we might even think of hauling you up before the very same body for rampant violations, including your refusal to grant TRIPS mandated copyright protection to our record companies, despite a WTO ruling (Irish music case) against you.</p>
<p>Yours sincerely,</p>
<p>India."</p>
</blockquote>
<p>Basheer's suggestion seems to be in line with that Michael Geist who believes that other countries should join Canada and Israel in openly refusing to acknowledge the validity of the Special 301 Reports because they lack ['reliable and objective analysis'][geist-reliable]. And that thought serves as a good coda.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/2010-special-301'>http://editors.cis-india.org/a2k/blogs/2010-special-301</a>
</p>
No publisherpraneshDevelopmentConsumer RightsAccess to KnowledgeCopyrightPiracyAccess to MedicineIntellectual Property RightsData ProtectionFLOSSTechnological Protection MeasuresPublications2011-10-03T05:37:27ZBlog EntryTechnological Protection Measures in the Copyright (Amendment) Bill, 2010
http://editors.cis-india.org/a2k/blogs/tpm-copyright-amendment
<b>In this post Pranesh Prakash conducts a legal exegesis of section 65A of the Copyright (Amendment) Bill, 2010, which deals with the stuff that enables 'Digital Rights/Restrictions Management', i.e., Technological Protection Measures. He notes that while the provision avoids some mistakes of the American law, it still poses grave problems to consumers, and that there are many uncertainties in it still.</b>
<p><a href="http://www.wipo.int/enforcement/en/faq/technological/faq03.html">Technological Protection Measures</a> are sought to be introduced in India via the Copyright (Amendment) Bill, 2010. This should be quite alarming for consumers for reasons that will be explained in a separate blog post on TPMs that will follow shortly.</p>
<p>In this post, I will restrict myself to a legal exegesis of section 65A of the Bill, which talks of "protection of technological measures". (Section 65B, which talks of Right Management Information will, similarly, be tackled in a later blog post.)</p>
<p>First off, this provision is quite unnecessary. There has been no public demand in India for TPMs to be introduced, and the pressure has come mostly from the United States in the form of the annual "Special 301" report prepared by the United States Trade Representative with input coming (often copied verbatim) from the International Intellectual Property Alliance. India is not a signatory to the WIPO Copyright Treaty (WCT) which requires technological protection measures be safeguarded by law. That provision, interestingly, was pushed for by the United States in 1996 when even it did not give legal sanctity to TPMs via its copyright law (which was amended in 2000 by citing the need to comply with the WCT).</p>
<p>TPMs have been roundly criticised, have been shown to be harmful for consumers, creators, and publishers, and there is also evidence that TPMs do not really decrease copyright infringement (but instead, quite perversely through unintended consequences, end up increasing it). Why then would India wish to introduce it?</p>
<p>Leaving that question aside for now, what does the proposed law itself say?</p>
<blockquote>
<p>65A. Protection of Technological Measures </p>
<p> (1) Any person who circumvents an effective technological measure applied for the purpose of protecting any of the rights conferred by this Act, with the intention of infringing such rights, shall be punishable with imprisonment which may extend to two years and shall also be liable to fine.</p>
<p> (2) Nothing in sub-section (1) shall prevent any person from:</p>
<p> (a) doing anything referred to therein for a purpose not expressly prohibited by this Act:</p>
<p> Provided that any person facilitating circumvention by another person of a technological measure for such a purpose shall maintain a complete record of such other person including his name, address and all relevant particulars necessary to identify him and the purpose for which he has been facilitated; or</p>
<p> (b) doing anything necessary to conduct encryption research using a lawfully obtained encrypted copy; or</p>
<p> (c) conducting any lawful investigation; or</p>
<p> (d) doing anything necessary for the purpose of testing the security of a computer system or a computer network with the authorisation of its owner; or</p>
<p> (e) operator; or [<em>sic</em>]</p>
<p> (f) doing anything necessary to circumvent technological measures intended for identification or surveillance of a user; or</p>
<p> (g) taking measures necessary in the interest of national security.</p>
</blockquote>
<h1>Implications: The Good Part</h1>
<p>This provision clearly takes care of two of the major problems with the way TPMs have been implemented by the Digital Millennium Copyright Act (DMCA) in the United States:</p>
<ul>
<li>
<p>In s.65A(1) it aligns the protection offered by TPMs to that offered by copyright law itself (since it has to be "applied for the purpose of protecting any of the rights conferred by this Act"). Thus, presumably, TPMs could not be used to restrict <em>access</em>, only to restrict copying, communication to the public, and that gamut of rights.</p>
</li>
<li>
<p>In s.65A(1) and 65A(2) it aligns the exceptions granted by copyright law with the exceptions to the TPM provision. Section 65A(1) states that the act of circumvention has to be done "with the intention of infringing ... rights", and s.52(1) clearly states that those exceptions cannot be regarded as infringement of copyright. And s.65A(2)(a) states that circumventing for "a purpose not expressly prohibited by this Act" will be allowed.</p>
</li>
</ul>
<p>A third important difference from the DMCA is that</p>
<ul>
<li>It does not criminalise the manufacture and distribution of circumvention tools (including code, devices, etc.). (More on this below.)</li>
</ul>
<h1>Implications: The Bad Part</h1>
<p>This provision, despite the seeming fair-handed manner in which it has been drafted, still fails to maintain the balance that copyright seeks to promote:</p>
<ul>
<li>
<p>TPM-placers (presumably, just copyright holders, because of point 1. above) have been given the ability to restrict the activities of consumers, but they have not been given any corresponding duties. Thus, copyright holders do not have to do anything to ensure that the Film & Telivision Institute of India professor who wishes to use a video clip from a Blu-Ray disc can actually do so. Or that the blind student who wishes to circumvent TPMs because she has no other way of making it work with her screen reader is actually enabled to take advantage of the leeway the law seeks to provide her through s.52(1)(a) (s.52(1)(zb) is another matter!). Thus, while there are many such exceptions that the law allows for, the technological locks themselves prevent the use of those exceptions. Another way of putting that would be to say:</p>
</li>
<li>
<p>The Bill presumes that every one has access to all circumvention technology. This is simply not true. In fact, Spanish law (in <a href="http://noticias.juridicas.com/base_datos/Admin/rdleg1-1996.l3t5.html">Article 161 of their law</a>) expressly requires that copyright holders facilitate access to works protected by TPM to beneficiaries of limitations of copyright. Thus, copyright holders who employ TPMs should be required to:</p>
<ul>
<li>tell their customers how they can be contacted if the customer wishes to circumvent the TPM for a legitimate purpose</li>
<li>upon being contacted, aid their customer in making use of their rights / the exceptions and limitations in copyright law</li>
</ul>
</li>
<li>
<p>How seriously can you take a Bill that has been introduced in Parliament that includes a provision that states: "Nothing in sub-section (1) shall prevent any person from operator; or" (as s.65A(2)(e), read in its entirety, does)?</p>
</li>
</ul>
<h1>Uncertainties</h1>
<p>As mentioned above, the provisions are not all that clear regarding manufacture and distribution of circumvention tools. Thus, the proviso to s.65A(2)(a) deserves a closer reading. What is clear is that there are no penalties mentioned for manufacture or dissemination of TPMs, and that only those who <em>circumvent</em> are penalised in 65A(1), and not those who produce the circumvention devices. However:</p>
<h2>On "shall maintain" and penalties</h2>
<p>In the proviso to s.65B(2)(a), there is an imperative ("shall maintain") requiring "any person facilitating circumvention" to keep records. It
is unclear what the implications of not maintaining such records are.</p>
<p>The obvious one is that the exemption contained in s.65(1)(a) will not apply if one were facilitated without the facilitator keeping records. Thus, under this interpretation, there is no independent legal (albeit penalty-less) obligation on facilitators. This interpretation runs into
the problem that if this was the intention, then the drafters would have written "Provided that any person facilitating circumvention ... for
such a purpose <em>maintain</em>/<em>maintained</em> a complete record ...". Instead, <em>shall maintain</em> is used, and an independent legal obligation seems,
thus, to be implied. But can a proviso create an independent legal obligation? And is there any way a penalty could <em>possibly</em> be attached
to violation of this proviso despite it not coming within 65A(1)?</p>
<h2>On "facilitating" and remoteness</h2>
<p>The next question is who all can be said to "facilitate", and how remote can the connection be? Is the coder who broke the circumvention a
facilitator? The distributor/trafficker? The website which provided you the software? Or is it (as is more likely) a more direct "the friend who sat at your computer and installed the circumvention software" / "the technician who unlocked your DVD player for you while installing it in your house"?</p>
<p>While such a record-keeping requirement is observable by people those who very directly help you (the last two examples above), it would be more difficult to do so the further up you get on the chain of remoteness. Importantly, such record-keeping is absolutely not possible in decentralized distribution models (such as those employed by most free/open source software), and could seriously harm fair and legitimate circumvention.</p>
<h1>More uncertainties</h1>
<p>It is slightly unclear which exception the bypassing of Sony's dangerous "Rootkit" copy protection technology would fall under if I wish to get rid of it simply because it makes my computer vulnerable to malicious attacks (and not to exercise one of the exceptions under s.52(1)). Will such circumvention come under s.65A(2)(a)? Because it does not quite fall under any of the others, including s.65(2)(b) or (f).</p>
<h2>On "purpose" as a criterion in 65A(2)(a)</h2>
<p>A last point, which is somewhat of an aside is that 65A(2)(a) states:</p>
<blockquote>
<p>Nothing in sub-section (1) shall prevent any person from doing anything referred to therein for a purpose not expressly prohibited by this Act.</p>
</blockquote>
<p>There's something curious about the wording, since the Copyright Act generally does not prohibit any acts based on purposes (i.e., the prohibitions by ss.14 r/w s.51 are not based on <em>why</em> someone reproduces, etc., but on the act of reproduction). In fact, it <em>allows</em> acts based on purposes
(via s.52(1)). The correct way of reading 65A(2)(a) might then be:</p>
<blockquote>
<p>Nothing in sub-section (1) shall prevent any person from doing anything referred to therein for a purpose expressly allowed by this Act.</p>
</blockquote>
<p>But that might make it slightly redundant as s.65A(1) covers that by having the requirement of the circumvention being done "with the intention of infringing such right" (since the s.52(1) exceptions are clearly stated as not being infringements of the rights granted under the Act).</p>
<h1>Conclusion</h1>
<p>It would be interesting to note how leading copyright lawyers understand this provision, and we will be tracking such opinions. But it is clear that TPMs, as a private, non-human enforcement of copyright law, are harmful and that we should not introduce them in India. And we should be especially wary of doing so without introducing additional safeguards, such as duties on copyright holder to aid access to TPM'ed works for legitimate purposes, and remove burdensome record-keeping provisions.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/tpm-copyright-amendment'>http://editors.cis-india.org/a2k/blogs/tpm-copyright-amendment</a>
</p>
No publisherpraneshAccess to KnowledgeCopyrightIntellectual Property RightsFLOSSTechnological Protection MeasuresPublications2012-05-17T16:51:38ZBlog Entry