The Centre for Internet and Society
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Seminar on Software Patent and the Commons
http://editors.cis-india.org/a2k/blogs/softtware-patents-and-the-commons
<b>A pre-grant opposition has been filed against a software patent application filed in the patent office by Certicom, a wholly owned subsidiary of Research in Motion (RIM), manufacturers of Blackberry. The opposition was filed on August 31, 2010 by the Software Freedom Law Centre which has recently expanded its operations to India. This exciting development was announced by Mishi Choudhary from SFLC on the lines of the seminar on “Software Patents and the Commons” organised on 1 September 2010 in Delhi jointly by SFLC, the Centre for Internet and Society, the Society for Knowledge Commons and Red Hat. Filing more such oppositions to software patents in India was in the pipeline and this is just the beginning of a movement to take on monopolisation of knowledge and ideas through patenting software, the organisers said.</b>
<p>Software patent opposition is still in its nascent stage in India while several oppositions have been filed against software patents in the US and the EU. The harmful effects of software patents are little known to the Indian public, especially from the context of its danger to development in small and medium size enterprises, as pointed out by Pranesh Prakash from the Centre for Internet and Society who spoke about why software patents are bad for innovation and development in society and also in the software industry, in particular.</p>
<p>In the same context, Venkatesh Hariharan from Red Hat as also Mr. T.C. James, Director of the National Intellectual Property Organisation spoke about the growing importance of free and open source software in education, governmental agencies and as a key agent in information technology policy making in India. “Out of 500 super computers in the world, 446 are running on Linux”, he said, talking about how open source software makes computing highly accessible and affordable while allowing for improvements to be made to the software by any user and releasing it back to benefit the whole community. Dr. Anshu Bhardwaj involved in the Open Source Drug Discovery project undertaken by CSIR, spoke at length about the project as a live demonstration of the power of open source software in impacting drug access and development and health care reform across communities at highly economical rates.</p>
<p>Prof. Eben Moglen, Executive Director of Software Freedom Law Centre in New York who was the keynote speaker at the conference spoke about the growth of the free software and open source movement based on the principle of equating knowledge with commons – that is, a good to be commonly shared by all members of the public – resulting in access to and sharing of knowledge and distribution of information in society for greater innovation, creation of new ideas, communication and development. Dr. Abhijit Sen, member of the Planning Commission was the other keynote speaker who stressed on the role of the government and the policy making bodies to ensure that knowledge and education is accessible and shared without restrictions in such a way that it is not misused by the members of the society.</p>
<p>Other notable speakers in the event included Prabir Purkayastha from the Society for Knowledge Commons, Pradyut Bora, Chief Convenor of BJP's information and technology cell, Jaijit Bhattacharjee from Hewlett Packard and Sudhir Krishnaswamy, Professor, National University of Juridical Sciences. The event also witnessed the participants discuss the various strategies to be used from the perspective of legal analysis as well as policy reform, for opposing software patents filed or granted in India. Indian patent law clearly declares computer programmes per se or software patents to be unpatentable. Prabir Purkayastha pointed out that the most important and major scientific discoveries in history have not been patented and that this has, in no way prevented new ideas from being created and has in fact fostered such innovation. In spite of such a clear legal restriction on grant of software patents, around 1000 software patents have been filed in the patent offices in India in the last year. This trend is extremely disturbing since it poses a serious threat to access to knowledge and distribution of information in society in addition to stifling innovation and development in the software industry.</p>
<p>The seminar was attended by people from diverse backgrounds including the IT industry, civil society organisations, and groups working in pharma patent advocacy, media persons and government officials.</p>
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For more details visit <a href='http://editors.cis-india.org/a2k/blogs/softtware-patents-and-the-commons'>http://editors.cis-india.org/a2k/blogs/softtware-patents-and-the-commons</a>
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No publisherpraskrishnaIntellectual Property RightsSoftware PatentsAccess to Knowledge2011-10-23T14:22:15ZBlog EntryAugust 2010 Bulletin
http://editors.cis-india.org/about/newsletters/august-2010-bulletin
<b>Greetings from the Centre for Internet and Society. We bring you news and media coverage, research and event updates for the month of August 2010</b>
<h3>News Updates</h3>
<p style="text-align: justify; "><b>RIM Offered Security Fixes<br /> </b>In India Talks, BlackBerry Maker Said It Could Share Metadata, Notes Show<br /> <a href="http://bit.ly/ahT7jD" target="_blank">http://bit.ly/ahT7jD</a><br /> <br /> <b>New Project to Assess Potential of Creating Open Government Data</b> <b>Initiatives in Chile, Ghana and Turkey</b><br /> Steve Bratt, CEO of the World Wide Web Foundation (founded in 2009 by Tim Berners-Lee) has made an announcement on moving forward with a project to assess the potential of creating open government data<br /> initiatives in Chile, Ghana, and Turkey - the first step of what we hope to be a global initiative focusing on low- and middle-income countries.<br /> <a href="http://bit.ly/d337Ex" target="_blank">http://bit.ly/d337Ex</a></p>
<p style="text-align: justify; "><b>Govt and BlackBerry firm wait for the other to hang up</b><br />Sunil Abraham speaks to Archna Shukla on the stand-off between the Government of India and RIM. The news was published in expressindia.com.<br /> <a href="http://bit.ly/cGeipL" target="_blank">http://bit.ly/cGeipL</a><br /> <br /><b>Call, text, email complaint against rogue auto driver</b><br /> Harassed by an auto driver? Helplines give you no relief? Here's the people's way to help you out. Just report your issue online, call or even SMS sitting in a noisy restaurant, and be heard.<br /> <a href="http://bit.ly/atiiGW" target="_blank">http://bit.ly/atiiGW</a><br /> <br /> <b>Call to increase awareness of intellectual property rights<br /> </b>We need more knowledge on IPR itself, says IT Secretary<br /> <a href="http://bit.ly/avxY16" target="_blank">http://bit.ly/avxY16</a><br /> <br /> <b>Civil Society groups urge State Judicial Academy to restructure agenda for Judges' Roundtable meet</b><br /> Some of the Civil Society groups in the country have urged the Maharashtra State Judicial Academy to restructure the agenda for the 'Judges Roundtable on Intellectual Property Rights Adjudication' being held in Mumbai on July 24 and 25 to promote public interest and a deeper understanding of intellectual property amongst judicial officers. FICCI is the joint organiser of the event.<br /> <a href="http://bit.ly/dCDZl0" target="_blank">http://bit.ly/dCDZl0</a><br /> <br /> <b>More Debate on UID Project Needed<br /> </b>A press conference on UID was held at the Press Club in Bangalore on 26 July, 2010. It was co-organised by Citizen's Action Forum, Alternate Law Forum and the Centre for Internet and Society. Mathew Thomas and Vinay Baindur spoke about the UID. Proceedings from the conference was covered in the Hindu on 27 July, 2010.<br /> <a href="http://bit.ly/cSEsaP" target="_blank">http://bit.ly/cSEsaP</a><br /> <br /> <b>UID coverage in Udayavani</b><br /> A press conference was held at the Press Club in Bangalore on 26 July, 2010. It was co-organised by Citizen's Action Forum, Alternate Law Forum and the Centre for Internet and Society. Mathew Thomas and Vinay Baindur were the speakers. Leading Kannada newspaper Udayavani covered this event.<br /> <a href="http://bit.ly/c3AU5s" target="_blank">http://bit.ly/c3AU5s</a></p>
<p style="text-align: justify; "><b>Open is the Future<br /> </b>The third Open World Forum will gather together decision-makers from the open digital world, in Paris. 1,500 participants from 40 countries will come together to analyze the technological, economic and social impact of Open Source, the invisible engine behind the digital revolution. The aim: to interpret future trends and cross-fertilize initiatives.<a href="http://bit.ly/amY9Qc" target="_blank"><br />http://bit.ly/amY9Qc</a></p>
<h3 style="text-align: justify; "><a href="http://bit.ly/amY9Qc" target="_blank">
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</a>Upcoming Events</h3>
<p style="text-align: justify; "><b>No UID till Complete Transparency, Accountability and People's Participation: A Public Campaign <br /></b>An interactive meeting on UID's lack of a feasibility study, cost involved and dangers of abuse is being held in New Delhi at the Constitution Club Auditorium, Rafi Marg on 25 August, 2010. The meeting is jointly organised by INSAF, PEACE, Citizens' Action Forum, People's Union for Civil Liberties - Karnataka, Slum Janandolana - Karnataka, Alternate Law Forum, The Centre for Internet and Society and concerned individuals.<br /> <a href="http://bit.ly/8YsBIJ" target="_blank">http://bit.ly/8YsBIJ</a></p>
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<p style="text-align: justify; "><b>Internet Governance and Human Rights: Strategies and Collaborations for Empowerment</b><br />Leading up to the 2010 IGF, The Association for Progressive Communications (APC), Global Partners, the Centre for Internet and Society (CIS) and the Dynamic Coalition on Internet Rights and Principles are hosting, on 13 September 2010 in Vilnius, an event on 'Internet Governance and Human Rights: Strategies and Collaborations for Empowerment'.<br /> <a href="http://bit.ly/aoOkPR" target="_blank">http://bit.ly/aoOkPR</a><br /> <br /> <b>Freedom of Expression or Access to Knowledge: Are We Taking the Necessary Steps Towards an Open and Inclusive Internet?</b><br /> The Centre for Internet and Society is co-organising a workshop on Freedom of Expression or Access to Knowledge: Are We Taking the Necessary Steps towards an Open and Inclusive Internet? at the Internet<br /> Governance Forum on 14 September, 2010.<br /> <a href="http://bit.ly/dl1WRL" target="_blank">http://bit.ly/dl1WRL</a></p>
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<p style="text-align: justify; "><b>Sexual Rights, Openness and Regulatory Systems</b><br />The Centre for Internet and Society is co-organising a workshop on Sexual Rights, Openness and Regulatory Systems at the Internet Governance Forum on 14 September, 2010.<br /> <a href="http://bit.ly/dl1WRL" target="_blank">http://bit.ly/dl1WRL</a><br /> <br /> <b>Data in the Cloud: Where Do Open Standards Fit In?<br /> </b>The Centre for Internet and Society is co-organising a workshop on Data in the Cloud: Where do Open Standards Fit In? on 16 September, 2010 at the Internet Governance Forum.<br /> <a href="http://bit.ly/94AF4h" target="_blank">http://bit.ly/94AF4h</a><br /> <br /> <b>International Conference on Enabling Access to Education through ICT<br /> </b>The Centre for Internet and Society (CIS), Bangalore in cooperation with the Global Initiative for Inclusive ICT (G3ICT), a flagship advocacy organization of the UN Global Alliance on ICT and Development (UN-GAID), the International Telecommunications Union (ITU), UNESCO, Digital Empowerment Foundation, Society for Promotion of Alternative Computing and Employment and the Deafway Foundation is organizing an international conference, Enabling Access to Education through ICT in New Delhi from<br /> 27th to 29th October, 2010....Registrations to begin soon!<br /> <a href="http://bit.ly/9flyEK" target="_blank">http://bit.ly/9flyEK</a></p>
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<h3 style="text-align: justify; ">Research</h3>
<p style="text-align: justify; "><b>Political is as Political does<br /> </b>The Talking Back workshop has been an extraordinary experience for me. The questions that I posed for others attending the workshop have hounded me as they went through the course of discussion, analysis and dissection. Strange nuances have emerged, certain presumptions have been questioned, new legacies have been discovered, novel ideas are still playing ping-pong in my mind, and a strange restless excitement – the kind that keeps me awake till dawning morn – has taken over me, as I try and figure out the wherefore and howfore of things. I began the research project on Digital Natives in a condition of not knowing, almost two years ago. Since then, I have taken many detours, rambled on strange paths, discovered unknown territories and reached a mile-stone where I still don’t know, but don’t know what I don’t know, and that is a good beginning.<br /> <a href="http://bit.ly/9hY9sR" target="_blank">http://bit.ly/9hY9sR</a><br /> <br /> <b>Digital Natives: Talking Back<br /> </b>One of the most significant transitions in the landscape of social and political movements, is how younger users of technology, in their interaction with new and innovative technologised platforms have taken up responsibility to respond to crises in their local and immediate environments, relying upon their digital networks, virtual communities and platforms. In the last decade or so, the digital natives, in universities as well as in work spaces, as they experimented with the potentials of internet technologies, have launched successful socio-political campaigns which have worked unexpectedly and often without precedent, in the way they mobilised local contexts and global outreach to address issues of deep political and social concern. But what do we really know about this Digital Natives revolution?<br /> <a href="http://bit.ly/bZNoSX" target="_blank">http://bit.ly/bZNoSX</a></p>
<p style="text-align: justify; "><b>Beyond the Digital: Understanding Digital Natives with a Cause</b><br />Digital Natives with a cause: the future of activism or slacktivism? Maesy Angelina argues that the debate is premature given the obscured understanding on youth digital activism and contends that an effort to<br /> understand this from the contextualized perspectives of the digital natives themselves is a crucial first step to make. This is the first out of a series of posts on her journey to explore new insights to understand youth digital activism through a research with The Blank Noise Project under the Hivos-CIS Digital Natives Knowledge Programme.<br /> <a href="http://bit.ly/b1GS7F" target="_blank">http://bit.ly/b1GS7F</a></p>
<h3 style="text-align: justify; ">Accessibility</h3>
<p style="text-align: justify; "><b>Access to Knowledge: Barriers and Solutions for Persons with Disabilities in India</b><br /> Consumers International, Kuala Lumpur and Consumers Association of India in association with Madras Library Association organised a seminar on Access to Knowledge on 31st July, 2010 at the Tamil Nadu Pollution Control Auditorium in Guindy, Chennai. The Principal Secretary to the Government of Tamil Nadu Department of Information Technology was the chief guest. Former Central Vigilance Commissioner N. Vittal gave the keynote address. Prof Subbiah Arunachalam, Nirmita Narasimhan and Pranesh Prakash participated in the seminar. Nirmita and Pranesh made presentations on access to knowledge.<br /> <a href="http://bit.ly/cJXSX8" target="_blank">http://bit.ly/cJXSX8</a></p>
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<h3 style="text-align: justify; ">Intellectual Property</h3>
<p style="text-align: justify; "><b>Privacy and the Indian Copyright Act, 1857 as Amended in 2010 <br /></b>In this post the author examines the issue of privacy in light of the Indian Copyright Act, 1857 as amended by the Copyright Amendment Bill in 2010. Four key questions are examined in detail and the author gives<br /> suitable recommendations for each of the questions that arise.<br /> <a href="http://bit.ly/cJXSX8" target="_blank">http://bit.ly/cJXSX8</a></p>
<h3 style="text-align: justify; ">Internet Governance</h3>
<p style="text-align: justify; "><b>Does the Government want to enter our homes?</b><br />When rogue politicians and bureaucrats are granted unrestricted access to information then the very future of democracy and free media will be in jeopardy. In an article published in the Pune Mirror on 10 August,<br /> 2010, Sunil Abraham examines this in light of the BlackBerry-to-BlackBerry messenger service that the Government of India plans to block if its makers do not allow the monitoring of messages. He says that civil society should rather resist and insist on suitable checks and balances like governmental transparency and a fair judicial oversight instead of allowing the government to intrude into the privacy<br /> and civil liberties of its citizens.<br /> <a href="http://bit.ly/dkVHoS" target="_blank">http://bit.ly/dkVHoS</a></p>
<p style="text-align: justify; "><b>UID Project in India - Some Possible Ramifications</b><br />Having a standard for decentralized ID verification rather than a centralized database that would more often than not be misused by various authorities will solve ID problems, writes Liliyan in this blog entry. These blog posts to be published in a series will voice the expert opinions of researchers and critics on the UID project and present its unique shortcomings to the reader.<br /> <a href="http://bit.ly/bOyBS8" target="_blank">http://bit.ly/bOyBS8</a></p>
<p style="text-align: justify; "><b>Civil Liberties and the amended Information Technology Act, 2000</b><br />This post examines certain limitations of the Information Technology Act, 2000 (as amended in 2008). Malavika Jayaram points out the fact that when most countries of the world are adopting plain English instead of the conventional legal terminology for better understanding, India seems to be stuck in the old-fashioned method thereby, struggling to maintain a balance between clarity and flexibility in drafting its laws. The present Act, she says, is although an improvement over the old Act and seeks to address and improve on certain areas in the right direction but still comes up short in making necessary changes when it comes to fundamental rights and personal liberties. The new Act retains elements from the previous one making it an abnormal document and this could have been averted if there had been some attention to detail.<br /> <a href="http://bit.ly/croc9T" target="_blank">http://bit.ly/croc9T</a><br /> <br /> <b>Feedback to the NIA Bill<br /></b>Malavika Jayaram and Elonnai Hickok introduce the formal submission of CIS to the proposed National Identification Authority of India (NIA) Bill, 2010, which would give every resident a unique identity. The submissions contain the detailed comments on the draft bill and the high level summary of concerns with the NIA Bill submitted to the UIDAI on 13 July, 2010.<br /> <a href="http://bit.ly/bhinUB" target="_blank">http://bit.ly/bhinUB</a></p>
<h3 style="text-align: justify; ">Openness</h3>
<p style="text-align: justify; ">Open Access to Science and Scholarship - Why and What Should We Do? The National Institute of Advanced Studies held the eighth NIAS-DST training programme on “Multidisciplinary Perspectives on Science, Technology and Society” from 26 July to 7 August, 2010. The theme of the project was ‘Knowledge Management’. Dr. MG Narasimhan and Dr. Sharada Srinivasan were the coordinators for the event. Professor Subbiah Arunachalam made a presentation on Open Access to Science and Scholarship.<br /> <a href="http://bit.ly/ciohYy" target="_blank">http://bit.ly/ciohYy</a><br /> <br /> <b>Civic Hacking Workshop<br /> </b>CIS, with the UK Government's Foreign Office and the Cabinet Office Team for Digital Engagement, and Google India, is organizing a workshop on open data (or the lack thereof) and 'civic hacking'.<br /> <a href="http://bit.ly/c3TF2t" target="_blank">http://bit.ly/c3TF2t</a></p>
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<h3 style="text-align: justify; ">Telecom</h3>
<p style="text-align: justify; "><b>'Containing Inflation' - A myth</b><br /> We need problem-solving, not confused rhetoric or misguided action, says Shyam Ponappa. The article was published in Business Standard on 7 August, 2008.<br /> <a href="http://bit.ly/9frC8q" target="_blank">http://bit.ly/9frC8q</a></p>
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For more details visit <a href='http://editors.cis-india.org/about/newsletters/august-2010-bulletin'>http://editors.cis-india.org/about/newsletters/august-2010-bulletin</a>
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No publisherpraskrishnaAccess to KnowledgeDigital NativesTelecomAccessibilityInternet GovernanceCISRAWOpenness2012-08-10T10:40:34ZPageFirst Post-Bilski Decision - Software Patent Rejected
http://editors.cis-india.org/a2k/blogs/post-bilski
<b>In the first decision post-Bilski, the Board of Patents Appeals and Interferences (BPAI) rejected a software patent claimed by Hewlett-Packard. The ruling in this case has buttressed the fact that the Bilski decision furthered the cause of narrowing the patentability of software even though the Supreme Court of the United States totally avoided mentioning software patents or the applicability of the machine or transformation test for software patents in its decision.</b>
<p>As eagerly as it was awaited, the United States Supreme Court’s decision in Bilski v. Kappos (2010) was a dampener as far as its impact (or the lack of it) on patentability of software was concerned. The Supreme Court totally avoided even mentioning software patents or the applicability of the machine or transformation test for software patents in its decision and while many claimed that it was status quo maintained, a few of us found a silver lining in the Court’s ruling of abstract ideas as unpatentable and its admission of an argument that patents do not necessarily promote innovation and may, sometimes result in limiting competition and stifling innovation. Our hope that the Bilski case furthered the cause of narrowing the patentability of software was not misplaced is evident from the first decision post-Bilski, of the BPAI, which rejected a software patent claimed by Hewlett-Packard. The BPAI, in In Re Proudler, rejected a patent claim for software made by Hewlett Packard on the ground that software, being an abstract idea, is not patentable. The BPAI relied on, among others, the Supreme Court’s decision in Bilski v. Kappos in holding that an abstract idea was not patentable.</p>
<p>The case before the BPAI was on appeal from the decision of the patent examiner who refused patent for the claim on the ground that it was obvious (on basis of prior art analysis) and therefore, “barred at the threshold” for patentability under US patent law. The patent was claimed for “a method of controlling the processing of data” comprising “defining security controls for a plurality of data items, and applying individualised security rules to each of the data items based on a measurement of integrity of a computing entity to which the data items are to be made available”. It was essentially a claim for software facilitation data processing and involving security controls for several data items. The BPAI refused patent for the claim but differed from the patent examiner in its reasoning. The BPAI held that all claims related to non-patentable subject matter and hence, could not be granted patent.</p>
<p>In coming to this conclusion, the BPAI relied on previous decisions including In Re Nuijten which held that Section 35 of the US Code of Patents which allows patents for a machine, a manufacture, a process or a composition of matter constitutes “the exclusive reach of patentable subject matter”. In ruling that HP’s claim was not patentable, BPAI also held that software, being an abstract idea, was not patentable. The line of argument relied on by the BPAI was something like this – “[A] machine, a manufacture, a process or a composition of matter” constitutes the exclusive reach of patentable subject matter. Thus, laws of nature, abstract ideas, and natural phenomena are excluded from patent protection as held in the well known case of Diamond v. Diehr. The Federal Circuit in its decision in In re Warmerdam has held that an abstraction is not a patentable subject matter. In other words, a claim that recites no more than software, logic or a data structure (that is, an abstraction) does not fall within any statutory category. It has been held in Microsoft Corp. v. AT & T Corp. that an abstract software code is an idea without physical embodiment. Finally, and most significantly, the Bilski case has put the nail in the coffin by ruling that abstract ideas are not patentable. Against the background of these precedents, BPAI has confirmed the unpatentability of software on the ground that it is an abstract idea.</p>
<p>It is interesting that the BPAI also mentioned that “no true hardware structure is recited” in the claims to buttress its conclusion that the idea claimed was an abstract one. This means that the BPAI took note of the fact that although a hardware structure may have been essential to implement the abstract idea forming the claim such structure itself was not claimed for patent. The innovation claimed lay in the software alone and not in the hardware and therefore, did not merit patent protection. Thus, a claimed invention which is a combination of hardware (required to implement the software) and software may not be patentable as long as there is no ingenuity in the hardware as software alone, being a mere algorithm and an abstraction, falls outside the scope of patentable subject matter.</p>
<p>The first post-Bilski decision gives us more than one reason to cheer about –</p>
<ul><li>It refused patent for software on the ground that it was an abstract idea and hence, did not fall under patentable subject matter. Acceptance of software as merely an abstract idea is catching up and is thus, good news for those who challenge the patentability of software.</li><li>The BPAI, in ruling software as an abstraction and thus, unpatentable relied directly on the Bilski decision and therefore, provided a clear, much-needed guideline for conclusively interpreting the Bilski decision as one restricting the patentability of software.</li><li>The decision supported the argument that any combination of hardware and software, to be patentable, must demonstrate ingenuity in the hardware component. As long as there is no claim for hardware, the software itself, being an abstraction, cannot be patented. This brings about greater clarity in the definition of software to be limited to an algorithm (and thus, abstract) and to be looked at in isolation from a hardware component which is solely used to implement the software and no more.<br /></li></ul>
<p>It will be interesting to follow the developments in this case and in other future claims for software which may rely on the Bilski decision. In Re Proudler is certainly encouraging for limiting software patents especially in the aftermath of Bilski. As far as patentability of software is concerned, the Bilski decision may not be that insignificant after all.</p>
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For more details visit <a href='http://editors.cis-india.org/a2k/blogs/post-bilski'>http://editors.cis-india.org/a2k/blogs/post-bilski</a>
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No publisherpraskrishnaIntellectual Property RightsAccess to Knowledge2011-08-23T03:24:25ZBlog EntryThe Bilski Case - Impact on Software Patents
http://editors.cis-india.org/a2k/blogs/bilski-case
<b>The Supreme Court of the United States gave its decision in Bilski v Kappos on 28 June, 2010. In this case the petitioners’ patent application sought protection for a claimed invention that explains how commodities buyers and sellers in the energy market can protect, or hedge, against the risk of price changes. The Court in affirming the rejection by the Court of Appeals for the Federal Circuit also held that the machine- or-transformation test is not necessarily the sole test of patentability. The Court’s ruling of abstract ideas as unpatentable and its admission that patents do not necessarily promote innovation and may sometimes limit competition and stifle innovation have provided a ray of hope. In the light of the developments, the Bilski decision as far as patentability of software is concerned may not be totally insignificant, says Krithika Dutta Narayana.</b>
<p>The United States Supreme Court’s much awaited decision of last month in <em>Bilski v. Kappos</em> (2010) (Bilski), a case that was touted as a potential watershed in the debate surrounding patentability of software, was disappointing, even though it was not without any impact. While the Supreme Court affirmed the rejection by the Court of Appeals for the Federal Circuit (CAFC) of a patent claim for a business method, it failed to define with clarity, any test for patentability which might have constituted a precedent for future cases involving patentability of software or business method. At the same time, it held that the “machine- or- transformation” test which was the test followed by the CAFC in rejecting the claim, was not the sole test to determine patentability, thus effectively providing no guideline to determine patentability of software or business methods in future cases.</p>
<p>The Supreme Court in Bilski, affirmed the rejection by the CAFC in <em>In</em> <em>re Bilski</em> (2008) of a patent claim involving a method of providing insurance against fluctuating energy prices due to changes in weather. The applicants, Bernard L. Bilski and Rand Warsaw filed a patent application for such a method of hedging risks – essentially a claim for a business method – under Section 101 of US Patent Act before the United States Patent and Trademark Office (USPTO). The examiner at the USPTO rejected the claim on the ground that the claim was not for patentable subject matter and that “the invention is not implemented on a specific apparatus and merely manipulates (an) abstract idea and solves a purely mathematical problem without any limitation to a practical application, therefore, the invention is not directed to the technological arts”. The Board of Patent Appeals and Interferences (BPAI) took a re-look at the examiner’s decision and held that the “machine or apparatus” test was in itself insufficient to determine patentability since a claim that included transformation of a physical object from one state to another would also be patent eligible subject matter. The BPAI also struck down the requirement of the invention to be a “technological art”. Thus, it rejected the Bilski claim on the ground that it did not cause transformation of a physical object from one state to another, since transformation of financial liabilities and risks does not constitute transformation of physical matter.</p>
<p>In its decision on October 30, 2008, the CAFC affirmed the ruling of the BPAI and laid down the machine or transformation test for patentability and held that Bilski’s claim was neither tied to any machine or apparatus to derive the result nor did it cause transformation of any physical object from one state to another and is hence, unpatentable subject matter. The Court reasoned that the “machine or transformation” test was crucial for determining patentability as it ensured that the claim based on a fundamental principle did not preempt all other uses of the principle. This test was the first test since the US Supreme Court’s decision in Diamond v. Diehr (1981) – which held that laws of nature, mathematical formulae and algorithms are not patentable – that had a huge potential for laying down definitive rules for patentability including declaring software and business methods to be outside the realm of patentable subject matter. If this test was upheld in the Supreme Court, that would effectively put an end to the rise of software patents since software, in most cases, did not cause transformation of physical object from one state to another. Thus, the decision of the Supreme Court had huge stakes for both sides of the software patent debate.</p>
<p>In light of the same, the Supreme Court’s ruling holding that the machine or transformation test is not the sole test for determining patentability and at the same time, failing to provide any other test on which to determine patentability, was a sore disappointment. Though, it affirmed the rejection of Bilski’s patent claim on the ground that the subject matter claimed was abstract and thus not a patentable “process” under section 101, its core decision was only limited to this particular claim and it did not lay down a concrete and definitive guideline for future claims. However, one must not be too quick to dismiss this decision as either going against the interests of open society and free software or as a completely inconsequential case that simply maintains status quo. There are important takeaways for the patentability of software in the Bilski decision – The Court did not totally reject the machine or transformation test relied on by the CAFC. It only held that the machine or transformation test is not the sole test on basis of which the patentability of a subject matter of a claim can be decided. The Court, in fact, held that the “machine or transformation test” was a “useful and important clue, an investigative tool for determining whether some claimed inventions are processes under section 101.” This leaves open the possibility of using the test to determine patentability in future cases and this is good news for opponents of software patents since software (an algorithm designed to be operated upon by a computer) is merely an abstract idea which, in most cases, does not involve transformation of a physical object from one state to another.</p>
<p>Bilski’s claim was essentially interpreted to be a patent for a business method. The Supreme Court was completely silent on the issue of patentability of software in its decision and stuck to only the narrow issue in hand – that of the patentability of a particular business method. This means that the “machine or transformation test”, whose applicability was ruled out in this particular case, may still be applicable for software patents. Nothing in this case precludes an opponent of a software patent from urging the courts to use the “machine or transformation test” to rule on patentability. Thus, the very fact that the Supreme Court only dealt with the narrow issue in hand ensures that the “machine or transformation test” is not altogether dismissed.</p>
<p>The main ground on which Bilski’s claim was rejected was that the patent claim was for an overly abstract idea which was not patent-eligible. The Court held that the basic concept on which the claim was based – the concept of hedging risks against risk is an unpatentable abstract idea. Further, some of the claims are constituted by equations and are purely mathematical in nature and are abstract and thus not patentable. This means that basic concepts and use of mathematical formulae constitute abstract ideas which are unpatentable. This test can strike down many software patents as these are simply algorithms executed by a computer and incorporate very fundamental and basic concepts which are abstract in nature and are thus, not patentable. This test for determining patentability on the basis of the claim being abstract as laid down in Bilski reaffirms the patentability test laid down in Diamond v. Deihr which kept laws of nature, mathematical formulae and algorithms outside the scope of patentable subject matter. This may serve as an important test to determine and especially, limit the patentability of software in coming years.</p>
<p>Notwithstanding the fact that Bilski’s claim has been interpreted to be one of a business method patent, when examined in detail, the claims indicate that the ‘method’ cannot be implemented without a computer. Certain claims for calculating probability (and risk), although mathematical or algorithmic in nature, have too many variables to be executed in any way other than by using a computer.<strong>1</strong> Such algorithms which can be executed only by a computer fall under the category of software and the patent is thus, also, a software patent. That being said, the ruling of the Court that the claim is for an overly abstract idea and thus not patentable lends credence and indicates that software patents can be validly claimed to be abstract ideas not falling under the scope of patentable subject matter.</p>
<p>Another important outcome of the Supreme Court’s ruling was the invalidation of the 1998 CAFC decision in <em>State Street Bank v. Signature Financial Group</em><strong>2</strong> which opened the floodgates for software patents by holding that a practical application of an algorithm or formula to produce “useful, concrete and tangible result” was sufficient to constitute patentable subject matter. The State Street test was too broad and afforded an opportunity for many frivolous patent applications to be admitted. In fact, Justice Stevens, in his concurring opinion, has stated that it would be a “grave mistake” to follow the test. By clearly striking down and dismissing such a test to determine patentable subject matter, the Court in Bilski has precluded future software patent claims for taking recourse to this test and has effectively, to an extent, made it that much harder for a software to be granted patent. The test in <em>State Street Bank</em> which opened the floodgates for software patents was definitively dismissed.</p>
<p>The Court in the 1978 case of <em>Parker v. Flook</em>, had rejected patent for a mathematical algorithm on the ground that an algorithm was a law of nature although its use was limited to a specific field in this case (the “field of use” test) and added an insignificant post solution activity (“post solution activity” test). The test laid down in Flook had been subsequently questioned and thus, subtly dismissed by the Court in <em>Diehr </em>in 1991. The Court in Bilski emphasized on the test for patentability laid down in <em>Flook</em> and opined that the two tests may well come in handy in future challenges or oppositions to a patent claim while determining if the claim pertained to an idea that was abstract and hence, not patentable. Thus, this test can be used in future for invalidating software patents which are characterized by broad claims adding insignificant post solution activity.</p>
<p>It is heartening to note that the Court looked at the importance of patent law while recognizing that patents are not always necessary to encourage innovation. It noted that patents could also limit competition and stifle innovation. They can have ill effects such as increasing prices while slowing progress and could actually be deterrent to free flow of information within society. By recognizing and validating this, the ruling not only helped increase awareness about the debate surrounding software patents but also showed that the Courts are open to such an approach to patent law in future. This can only be good news for busting software patents.</p>
<p>For <a class="external-link" href="http://www.supremecourt.gov/opinions/09pdf/08-964.pdf">further reading</a></p>
<ol><li>
<p class="discreet">Claim 4 of Bliski's claims is as follows - “perform a Monte Carlo simulation across all deals at all locations ... over the last 20 years of weather patterns and establish the payoffs from each deal under each historical weather pattern “ Such a simulation would involve multiple parameters such as deals, locations, weather patterns, to establish a payoff.</p>
</li><li>
<p class="discreet">149 F.3d. 1368.</p>
</li></ol>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/bilski-case'>http://editors.cis-india.org/a2k/blogs/bilski-case</a>
</p>
No publisherpraskrishnaIntellectual Property RightsAccess to Knowledge2011-08-23T03:24:31ZBlog EntryJuly 2010 Bulletin
http://editors.cis-india.org/about/newsletters/july-2010-bulletin
<b>Greetings from the Centre for Internet & Society. We bring you updates of our research, news and media coverage, information on our events and other updates for the month of July 2010.</b>
<h2><b>News Updates</b></h2>
<p style="text-align: justify; "><b>Call for Case Studies on ICT</b><br /> CIS invites organisations to participate in a study focusing on best practices in the use of ICTs in education for persons with disabilities.<br /> <a href="http://bit.ly/d03jS0">http://bit.ly/d03jS0</a></p>
<p style="text-align: justify; "><b>Networking? Not working</b><br /> Concerns about privacy, wastage of time and trivialized communication are some reasons ‘refuseniks’ are going off sites such as Facebook and MySpace, writes Shreya Ray in Livemint.<br /> <a href="http://bit.ly/dpdKhX">http://bit.ly/dpdKhX</a></p>
<p style="text-align: justify; "><b>Digital them about yourself?</b><br /> If you’re on Facebook or have a blog, you could be a digital native, says Akhila Seetharaman.<br /> <a href="http://bit.ly/ahA6Ts">http://bit.ly/ahA6Ts</a></p>
<p style="text-align: justify; "><b>Next CPOV Conference in Leipzig</b><br /> Two CPOV conferences have been held so far. The first one in Bangalore and the second one in Amsterdam, the third is to be held in Leipzig.<br /> <a href="http://bit.ly/cLN8XE">http://bit.ly/cLN8XE</a></p>
<p style="text-align: justify; ">CIS featured in the <span class="visualHighlight">Report on Research and Funding Landscape within the Arts and Humanities in India</span><br /> Centre for Internet and Society has been listed as an area of excellence and innovative research in this report.<br /> <a href="http://bit.ly/9GJsJ7">http://bit.ly/9GJsJ7</a></p>
<p><b>UID Act may be released for debate, may be introduced in monsoon session</b><br /> An article by Karen Leigh & Surabhi Agarwal in livemint on June 30, 2010.<br /> <a href="http://bit.ly/9Hq5dg">http://bit.ly/9Hq5dg</a></p>
<p style="text-align: justify; "><b>A New Age in News</b><br /> Citizen journalism and online piracy were key topics during the opening day of the Mekong Information and Communication Technology conference. The 2010 Mekong ICT conference in Chang Mai, Thailand, has brought together an experienced crowd of experts from all over the globe. They have gathered to discuss the status, trends and the current situation of the ICT world.<br /> <a href="http://bit.ly/bdGzbQ">http://bit.ly/bdGzbQ</a></p>
<p style="text-align: justify; "><b>Activists welcome privacy Bill, but point out concerns</b><br /> Experts have welcomed the government's move to bring in a law for protecting individual privacy, amid concerns about the potential misuse of personal data it is collecting to execute social welfare and security schemes.<br /> <a href="http://bit.ly/bnddaJ">http://bit.ly/bnddaJ</a></p>
<hr />
<h2><b>Upcoming Events</b></h2>
<p style="text-align: justify; "><b>Locating Gender Politics in the New Techno-Industrial Complex: A Lecture by Dr. Lisa McLaughlin</b><br /> The Centre for the Study of Culture and Society (CSCS), IT for Change and the Centre for Internet and Society (CIS) are hosting a lecture by Dr. Lisa McLaughlin, Associate Professor in Media Studies and Women's Studies, Miami University, Ohio, USA at CIS, Bangalore on 23 July, 2010.<br /> <a href="http://bit.ly/9zy2Fa">http://bit.ly/9zy2Fa</a></p>
<p style="text-align: justify; "><b>Promoting Education through ICT</b><br /> ICT workshop in New Delhi from 27th to 29th October, 2010...Registrations to begin soon!<br /> <a href="http://bit.ly/9flyEK">http://bit.ly/9flyEK</a></p>
<h2><b>Research</b></h2>
<p style="text-align: justify; "><b>The Attention Economy - A Brief Introduction</b><br /> This post examines attention economy as a brief prelude to a paper and monograph to be published on it. It examines the current theses on attention economy and a few approaches to reading attention economy in gaming besides foregrounding the attention economy and its functions and influence in MMORPGs.<br /> <a href="http://bit.ly/OP7QFl">http://bit.ly/OP7QFl</a></p>
<p style="text-align: justify; "><b>The Making of an Asian City</b><br /> Nishant Shah attended the conference on 'Pluralism in Asia: Asserting Transnational Identities, Politics, and Perspectives' organised by the Asia Scholarship Foundation, in Bangkok, where he presented the final paper based on his work in Shanghai. The paper, titled 'The Making of an Asian City', consolidates the different case studies and stories collected in this blog, in order to make a larger analyses about questions of cultural production, political interventions and the invisible processes that are a part of the IT Cities.<br /> <a href="http://bit.ly/MXxyXP">http://bit.ly/MXxyXP</a></p>
<p style="text-align: justify; "><b>Internet, Society and Space in Indian City: First Report</b><br /> This is the first report on the progress of the research on Internet, Society and Space in Indian City. The post is a collection of some of the initial focus of these studies. I have started simultaneously exploring and testing various arguments and have listed some key observations from the ones that are nearing completion.<br /> <a href="http://bit.ly/Ndmday">http://bit.ly/Ndmday</a></p>
<p style="text-align: justify; "><b>Digital Natives Workshop in Taipei: Only a Few Seats Left!!!</b><br /> The Centre for Internet and Society in collaboration with the Frontier Foundation is holding a three day Digital Natives workshop in Taipei from 16 to 18 August, 2010. The three day workshop will serve as an ideal platform for the young users of technology to share their knowledge and experience of the digital and Internet world and help them learn from each other’s individual experiences.<br /> <a href="http://bit.ly/P4mCKv">http://bit.ly/P4mCKv</a></p>
<hr />
<h2><b>Accessibility</b></h2>
<p style="text-align: justify; "><b>NMEICT Funds Book Conversion Project for the Print Disabled</b><br /> IIT, Kharagpur, Daisy Forum of India, Inclusive Planet and the Centre for Internet and Society have joined hands to undertake a project for the print disabled. The National Mission on Education through Information and Communication Technology (NMEICT) is funding this project.<br /> <a href="http://bit.ly/bWHi00">http://bit.ly/bWHi00</a></p>
<p style="text-align: justify; "><b>Right to Read: Campaign Updates</b><br /> A nationwide campaign on Right to Read was co-organised by CIS along with the Daisy Forum of India and Inclusive planet to highlight the lack of content in accessible formats and accelerate change in the provisions of the Indian Copyright Act, 1957, which presently does not permit the conversion of books in accessible formats for the benefits the blind, visually impaired and other reading disabled persons. The campaign is affiliated with the global R2R campaign started by the World Blind Union in April 2008.<br /> <a href="http://bit.ly/akoaSj">http://bit.ly/akoaSj</a></p>
<hr />
<h2><b>Intellectual Property</b></h2>
<p style="text-align: justify; "><b>Analysis of the Copyright (Amendment) Bill, 2010</b><br /> 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.<br /> <a href="http://bit.ly/KLBQDx">http://bit.ly/KLBQDx</a></p>
<p style="text-align: justify; "><b>A Guide to Key IPR Provisions of the Proposed India-European Union Free Trade Agreement</b><br /> 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.<br /> <a href="http://bit.ly/Rw7whN">http://bit.ly/Rw7whN</a></p>
<hr />
<h2><b>Openness</b></h2>
<p style="text-align: justify; "><b>Open Access to International Agricultural Research</b><br /> Open access advocates have urged the top management of the Consultative Group on International Agricultural Research to give open access to its research publications. A report by Subbiah Arunachalam on 3 June, 2010 was also circulated to all the signatories of the letter.<br /> <a href="http://bit.ly/cspMYY">http://bit.ly/cspMYY</a></p>
<hr />
<h2><b>Telecom</b></h2>
<p style="text-align: justify; "><b>Catching up on broadband</b><br /> The govt can invest some of the Rs 1,00,000 crore from the spectrum auctions to help India catch up on broadband, says Shyam Ponappa in his latest article published in the Business Standard on July 1, 2010.<br /> <a href="http://bit.ly/ag67TU">http://bit.ly/ag67TU</a></p>
<p>
For more details visit <a href='http://editors.cis-india.org/about/newsletters/july-2010-bulletin'>http://editors.cis-india.org/about/newsletters/july-2010-bulletin</a>
</p>
No publisherpraskrishnaAccess to KnowledgeDigital NativesTelecomAccessibilityInternet GovernanceCISRAWOpenness2012-08-10T09:41:01ZPagePrivacy and the Indian Copyright Act, 1857 as Amended in 2010
http://editors.cis-india.org/a2k/blogs/copyright-privacy
<b>In this post the author examines the issue of privacy in light of the Indian Copyright Act, 1857 as amended by the Copyright Amendment Bill in 2010. Four key questions are examined in detail and the author gives suitable recommendations for each of the questions that arise.</b>
<p>India's Copyright Act was established in 1857 and was most recently amended in 2010. Although India at present is not a member of WIPO, the provisions in the proposed Bill will work to make the Act WIPO compliant. When looking at privacy in the context of copyright, four key questions arise:</p>
<h2>How do DRM technologies undermine privacy and what safeguards are present in the Indian Law to protect citizens’ right to privacy?</h2>
<p>Technologies such as digital rights management technologies were developed to be used by hardware manufacturers, publishers, copyright holders and individuals to impose limitations on the usage of digital content and devices. DRM technologies pose as a privacy threat, because in their ability to monitor what is happening to a copyrighted work, they are also able to collect personal information and send it back to a host without knowledge of the user. The host is then able to use that data for marketing or commercial purposes. In the Copyright Act, 1957 there are no current provisions against DRM circumvention. In the proposed Copyright Bill 2010 there are two proposed provisions to prevent anti circumvention of DMR technologies, and one provision that clarifies what is a DMR technology. </p>
<h3>Proposed Legislation</h3>
<p><em>Section 2 (xa)</em>: Defines Rights Management information. <br /><em>Section 65A</em> : Protection of Technological Measures - Any person who knowingly makes or has in his possession any plate for the purpose of making infringing copies of any work in which copyright subsists shall be punishable with imprisonment which may extend to two years. The section includes that any person facilitating circumvention by another person of a technological measure, shall maintain a complete record of such other persons including his name, address and all relevant particulars necessary to identify him. <br />Section 65B: Protection of Rights Management Information – Any person who removes or distributes, copies or broadcasts any rights management information without authority shall be by punishable with imprisonment. </p>
<h3>Recommendation</h3>
<p>We find that in this provision the privacy of an individual is brought into question, because there are no safeguards against the commercialization of information, and no formal process of redress if an individual discovers that his information is being used without his consent/prior knowledge. We would recommend that it be clearly articulated in the provision that the collection and commercialization of information and personal data is prohibited by DRM technologies and host companies, and a method of redress be put in place. </p>
<h2>Under the present copyright does a person have the ability to expose privacy infringement?</h2>
<p>Because DRM technologies often employ the use of spy-ware, it is important that an individual has the ability to know if spy-ware is being used on their computer systems. Currently reverse engineering is permitted under provision 52 (ac). The amended version of provision 52 is less clear on if reverse engineering would be allowed. </p>
<h3>Current Legislation</h3>
<p><em>Provision 52 (ac)</em>: Certain acts not to be in infringement of copyright include the observation, study or test of functioning of the computer programs in order to determine the ideas and principles which underlie any elements of the program while performing such acts necessary for the functions for which the computer program was supplied. The following acts shall not constitute in infringement of copyright, namely:</p>
<h3>Proposed</h3>
<p>The proposed amendment reads:</p>
<p class="discreet"> 52 (1) The following acts shall not constitute an infringement of copyrights, namely: </p>
<p class="discreet">(i) (a) a fair dealing with a literary, dramatic, musical or artistic work not being a computer program for the purposes of:</p>
<p class="discreet">(ii) private use, including research</p>
<p class="discreet">(iii) Criticism or review, whether of that work or of any other work.</p>
<p>The exclusion of computer program in the proposed bill makes it unclear under what circumstances reverse engineering would be allowed.</p>
<h3>Recommendation</h3>
<p>We would recommend that for clarity purposes a specific clause be added to the act that details under what circumstances a person is allowed to reverse engineer a product for protection of their own privacy. </p>
<h2>How does the proposed exception for the disabled undermine privacy? <br /></h2>
<p>In India under the current Copyright Act, 1957 there are no provisions for the benefit of disabled persons, thus currently permission from copyright holders needs to be exclusively sought every time the visually challenged person requires access. Under the Constitution of India and the Berne Convention, India has committed to enshrining the rights of the disabled. </p>
<h3>Proposed Legislation</h3>
<p>The proposed amendment of the Act will grant compulsory license in respect of publication of any copyrighted works not covered by the exception under section 52 (1) (zb).</p>
<p>The Bill also proposes a board that would establish the credentials of the applicant and satisfy itself that the application has been made in good faith. This compromises the anonymity that most individuals enjoy when a disabled person tries to access a digital library.</p>
<h3>Recommendation<br /></h3>
<p>We recommend that the proposed Bill limits the authentication process a disabled person must go through when accessing digital libraries, etc, and the extent to which records are to be kept of transaction This will serve to protect the anonymity and privacy of disabled persons.</p>
<h2>What is On the horizon?</h2>
<p>As copyright and IP is a constantly evolving issue, countries are consistently amending and changing their laws. With the flow of peoples across borders increasing, Indians will be affected by different international policies that could pose to infringe upon their privacy, for example, cross border checks or three strike regimes. </p>
<h3>Examples of Proposed Legislation: The Anti- Counterfeiting Trade Agreement</h3>
<p>ACTA is a proposed legislation with the objective to combat counterfeiting and piracy. Partners in the negotiations include the United States, Australia, Canada, the European Union, Japan, Mexico, Morocco, New Zealand, Singapore, South Korea and Switzerland. The treaty will oblige each Contracting Party to adopt, in accordance with its legal system, the measures necessary to ensure the application of the treaty. Though ACTA has not been enacted, many worry that ACTA would facilitate privacy violations by trademark and copyright holders against private citizens suspected of infringement activities without any sort of legal due process. The Act would allow for random searches of laptops, MP3 players, and cellular phones for illegally downloaded or ripped music and movies. </p>
<h3>Recommendation</h3>
<p>We find that copyright infringement does not appear to justify a three strike regime or cross border searches. ACTA and other international treaties raise the question that if India became compliant with certain international standards, the standards would be too stringent without safeguards, and pose as a risk to a person’s privacy.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/copyright-privacy'>http://editors.cis-india.org/a2k/blogs/copyright-privacy</a>
</p>
No publisherpraskrishnaIntellectual Property RightsCopyrightAccess to Knowledge2011-08-23T03:25:02ZBlog EntryJune 2010 Bulletin
http://editors.cis-india.org/about/newsletters/june-2010-bulletin
<b>Greetings from the Centre for Internet & Society. We bring you updates of our research, news and media coverage, information on events for the month of June 2010.</b>
<h3><b>News Updates </b></h3>
<p><b>Dont hang up on this one</b><span><br /> </span>Is 3G the next twist in the mobile phone growth story?<br /> <a href="http://bit.ly/9NkaVP" target="_blank">http://bit.ly/9NkaVP</a></p>
<p><b>Peeping Toms In Your Inbox </b><span><br /> </span>Nothing’s safe any more—not your mobile number, nor your e-mail—as they’re put on offer for the benefit of telemarketers, writes Namrata Joshi and Neha Bhatt in an article published in the Outlook.<br /> <a href="http://bit.ly/ckmRRH" target="_blank">http://bit.ly/ckmRRH</a></p>
<p style="text-align: justify; "><b>I don't want my fingerprints taken</b><br /> Through this article published in Down to Earth, Nishant Shah looks at the role of the state as arbiter of our privacy.<span><br /> </span><a href="http://bit.ly/aYdMia" target="_blank">http://bit.ly/aYdMia</a></p>
<p style="text-align: justify; "><b>An artist's hunt for lost stepwells</b><span><br /> </span>As part of the Maps for Making Change project, Kakoli Sen has brought to light some facts which she stumbled upon while mapping the stepwells in Vadodara. She mapped these and also discovered 14 such architectural heritage structures. The news was covered in the Times of India.<br /> <a href="http://bit.ly/dxtwJU" target="_blank">http://bit.ly/dxtwJU</a></p>
<p style="text-align: justify; "><b>Facebook, privacy and India </b><span><br /> </span>Does Facebook's decision to open out user information and data to third party websites amount to an invasion of privacy and should users' seriously consider getting out of the site? Sunil Abraham doesn't think so.<br /> <a href="http://bit.ly/a2HzhT" target="_blank">http://bit.ly/a2HzhT</a></p>
<p style="text-align: justify; "><b>APC starts research into spectrum regulation in Brazil, India, Kenya, Morocco, Nigeria and South Africa</b><span><br /> </span>Communication infrastructure is the foundation of the knowledge-based economy and while there has been a boom in the construction of undersea cables bringing potentially terabits of capacity to the African continent, the ability to deliver broadband to consumers is hampered by inefficient telecommunications markets and policies. Wireless connectivity offers tremendous potential to deliver affordable broadband to developing countries but inefficient spectrum policy and regulation means the opportunity to seize the advantages brought about by improvements in wireless broadband technologies are extremely limited.<br /> <a href="http://bit.ly/a67ut8" target="_blank">http://bit.ly/a67ut8</a></p>
<p style="text-align: justify; "><b>WIPO Proposals Would Open Cross-Border Access To Materials For Print Disabled</b><span><br /> </span>The print disabled feel that the possible UN recommendations being negotiated upon may come up short, reports Kaitlin Mara in this article.<br /> <a href="http://bit.ly/99kbS0" target="_blank">http://bit.ly/99kbS0</a></p>
<p style="text-align: justify; "><b>The Potential of Open Development for Canada and Abroad </b><span><br /> </span>IDRC held a panel discussion on 'The Potential of Open Development for Canada and Abroad' on May 5, 2010 in Ottawa.<br /> <a href="http://bit.ly/aSp8J3" target="_blank">http://bit.ly/aSp8J3</a></p>
<p style="text-align: justify; "><b>A letter to CGIAR in support of Open Access </b><span><br /> </span>Professor Subbiah Arunachalam wrote a letter to CGIAR apprising them of the need for, and advantages of making their research output Open Access. <br /> <a href="http://bit.ly/doJmAe" target="_blank">http://bit.ly/doJmAe</a></p>
<hr />
<h3><b>Upcoming Event</b></h3>
<p style="text-align: justify; "><b>The Internet, Culture, and Society - Looking at Past, Present, and Future Worldwide</b><br /> It is now well known that with 4.5 billion mobile phone owners in the world and increased Internet penetration, global cultures and communities have experienced shifts in their economic, political, and social well-being due to the digital revolution. As a scholar and consultant who works worldwide, Prof Ramesh Srinivasan will illustrate how new media technologies have been used creatively to enable political movements in Kyrgyzstan, literacy and educational reform in India, and economic development across the developing world. In addition to this, he will discuss some of digital culture's biggest challenges, including considering how the Web can start to empower different types of cultural perspectives and knowledges.<br /> <a href="http://bit.ly/c9cIvc" target="_blank">http://bit.ly/c9cIvc</a></p>
<hr />
<h3><b>Research</b></h3>
<p style="text-align: justify; "><b>Survey: Digital Natives with a cause?</b><span><br /> </span>This survey seeks to consolidate information about how young people who have grown up with networked technologies use and experience online platforms and tools. It is also one of the first steps we have taken to interact with Digital Natives from around the world — especially in emerging information societies — to learn, understand and explore the possibilities of change via technology that lie before the Digital Natives. The findings from the survey will be presented at a multi-stakeholder conference later this year in The Netherlands.<br /> <a href="http://bit.ly/cUtKhV" target="_blank">http://bit.ly/cUtKhV</a></p>
<p style="text-align: justify; "><b>Queer Histories of the Internet: An Introduction</b><span><br /> </span>Nitya Vasudevan and Nithin Manayath introduce the Queer Histories of the Internet through this blog post discussing broadly the relationship between queer identity and technology.<br /> <a href="http://bit.ly/9xdYRv" target="_blank">http://bit.ly/9xdYRv</a></p>
<p style="text-align: justify; "><b>Separating the 'Symbiotic Twins'</b><span><br /> </span>This post tries to undo the comfortable linking that has come to exist in the ‘radical’ figure of the cyber-queer. And this is so not because of a nostalgic sense of the older ways of performing queerness, or the world of the Internet is fake or unreal in comparison to bodily experience, and ‘real’ politics lies elsewhere. This is so as it is a necessary step towards studying the relationship between technology and sexuality.<br /> <a href="http://bit.ly/9PV9YW" target="_blank">http://bit.ly/9PV9YW</a></p>
<p style="text-align: justify; "><b>The power of the next click...</b><span><br /> </span>P2P cameras and microphones hooked up to form a network of people who don't know each other, and probably don't care; a series of people in different states of undress, peering at the each other, hands poised on the 'Next' button to search for something more. Chatroulette, the next big fad on the Internet, is here in a grand way, making vouyers out of us all. This post examines the aesthetics, politics and potentials of this wonderful platform beyond the surface hype of penises and pornography that surrounds this platform.<br /> <a href="http://bit.ly/95twmz" target="_blank">http://bit.ly/95twmz</a></p>
<hr />
<h3><b>Telecom</b></h3>
<p style="text-align: justify; "><b>India's sorry spectrum story </b><span><br /> </span>In this article published in the Business Standard on June 3, 2010, Shyam Ponappa analyses the spectrum story in India. He says that the approach to spectrum management is an object lesson in how not to use information and communications technology for development. <br /> <a href="http://bit.ly/cojFFT" target="_blank">http://bit.ly/cojFFT</a></p>
<p>
For more details visit <a href='http://editors.cis-india.org/about/newsletters/june-2010-bulletin'>http://editors.cis-india.org/about/newsletters/june-2010-bulletin</a>
</p>
No publisherpraskrishnaAccess to KnowledgeDigital NativesTelecomAccessibilityInternet GovernanceCISRAWOpenness2012-08-10T09:38:46ZPageAnalysis 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 EntryMay 2010 Bulletin
http://editors.cis-india.org/about/newsletters/may-2010-bulletin
<b>Greetings from the Centre for Internet & Society. We bring you updates of our research, news and media coverage and information on our events in this bulletin of May 2010</b>
<h3><b>News Updates</b></h3>
<ul>
<li style="text-align: justify; ">India slowly gets to grips with ecommerce<br />Growth in computer use and Internet penetration will help e-commerce.<a href="http://editors.cis-india.org/news/India-gets-to-grips-with-ecommerce" target="_blank"><br />http://cis-india.org/news/India-gets-to-grips-with-ecommerce</a></li>
<li style="text-align: justify; ">World Wide Web Consortium for All<br />Indian web designers have long ignored needs of people with different disabilities but a new dedicated wiki aspires to change that, writes Malvika Tegta<a href="http://editors.cis-india.org/news/www-for-all" target="_blank"><br />http://cis-india.org/news/www-for-all</a></li>
<li style="text-align: justify; ">Biometry Is Watching<br />In its first steps, the UID drive encounters practical problems, raises ethical questions, reports Sugata Srinivasaraju in Outlook.<a href="http://editors.cis-india.org/news/biometry-is-watching" target="_blank"><br />http://cis-india.org/news/biometry-is-watching</a></li>
<li style="text-align: justify; ">What Women Want: The ability debates<br />In this article published in the Hindu, Deepa Alexander argues that the proposed amendments to the Copyright Act (1957) are restrictive and discriminatory.<a href="http://editors.cis-india.org/news/what-women-want" target="_blank"><br />http://cis-india.org/news/what-women-want</a></li>
<li>CIS – Internet is neither good nor bad<br />This post is also available in: French, Spanish, Portuguese (Brazil)<a href="http://editors.cis-india.org/news/Internet-not-good-not-bad" target="_blank"><br />http://cis-india.org/news/Internet-not-good-not-bad</a></li>
<li style="text-align: justify; ">Right to Read event in Brussels<br />A 'Right to Read' event is being held at the European Parliament, Brussels on 4 May 2010.<a href="http://editors.cis-india.org/news/right-to-read-brussels" target="_blank"><br />http://cis-india.org/news/right-to-read-brussels</a></li>
<li style="text-align: justify; ">Mapping the things that affect us<br />'Map for making change' is a project using geographical mapping techniques to support struggles for social justice in India<a href="http://editors.cis-india.org/news/mapping-the-things" target="_blank"><br />http://cis-india.org/news/mapping-the-things</a></li>
<li style="text-align: justify; ">'UID is being forced'<br />CIS feels that the UID project is forced on the citizens.<a href="http://editors.cis-india.org/news/UID-is-forced" target="_blank"><br />http://cis-india.org/news/UID-is-forced</a></li>
<li style="text-align: justify; ">ID programme faces first challenge over privacy, data<br />The government is looking to the ID programme to help ensure that various welfare programmes reach the poor<a href="http://editors.cis-india.org/news/id-programe-faces-challenge" target="_blank"><br />http://cis-india.org/news/id-programe-faces-challenge</a></li>
<li style="text-align: justify; ">Their India has no borders<br />Bangalore felt far for them, they would mark it outside the country. India, for migrant labourers, is different from the India we know<a href="http://editors.cis-india.org/news/their-india-has-no-borders" target="_blank"><br />http://cis-india.org/news/their-india-has-no-borders</a></li>
<li style="text-align: justify; ">Scrap UID project, say people's organisations<br />The unique identification number project is executed without any legislative or parliamentary sanction.<a href="http://editors.cis-india.org/news/Scrap-UID-project" target="_blank"><br />http://cis-india.org/news/Scrap-UID-project</a></li>
<li style="text-align: justify; ">UID info can be misused<br />Public organisations, NGOs and concerned citizens feel UID may become an easy database for anti-social elements.<a href="http://editors.cis-india.org/news/uid-info-can-be-misused" target="_blank"><br />http://cis-india.org/news/uid-info-can-be-misused</a></li>
<li style="text-align: justify; ">UID project draws flak from civil rights activists<br />The unique identification project is drawing a flak from civil rights activists.<a href="http://editors.cis-india.org/news/UID-project-draws-flak" target="_blank"><br />http://cis-india.org/news/UID-project-draws-flak</a></li>
<li style="text-align: justify; ">Citizens' forums want UID project scrapped<br />Citizens' forums and groups have stepped up their attack on the Unique Identification Project calling for the complete scrapping of the project.<a href="http://editors.cis-india.org/news/citizens-forums-want-UID-scrapped" target="_blank"><br />http://cis-india.org/news/citizens-forums-want-UID-scrapped</a></li>
<li style="text-align: justify; ">Disability rights groups oppose changes to Copyright Act<br />Disability rights groups are up in arms against a Bill proposing an amendment to the Copyright Act, 1952, reports Aarti Dhar in an article published in the Hindu on April 23, 2010.<a href="http://editors.cis-india.org/news/disability-groups-oppose-copyright-amendments" target="_blank"><br />http://cis-india.org/news/disability-groups-oppose-copyright-amendments</a></li>
<li style="text-align: justify; ">Centre for Study of Culture and Society seeks Programme Associate<br />The Higher Education Cell, Centre for Study of Culture and Society is looking for a Programme Associate to help develop e-content and conduct training programmes for projects under its Social Justice and Networked Higher Education Initiatives.<a href="http://editors.cis-india.org/news/position-announcement" target="_blank"><br />http://cis-india.org/news/position-announcement</a></li>
</ul>
<hr />
<h3><b>Research</b></h3>
<ul>
<li style="text-align: justify; ">Digital Natives at Republica 2010<br />Nishant Shah from the Centre for Internet and Society, made a presentation at the Re:Publica 2010, in Berlin, about its collaborative project (with Hivos, Netherlands) "Digital Natives with a Cause?" The video for the presentation, along with an extensive abstract is online.<a href="http://editors.cis-india.org/research/dn/dnrepub" target="_blank"><br />http://cis-india.org/research/dn/dnrepub</a></li>
</ul>
<hr />
<h3><b>Accessibility</b></h3>
<p style="text-align: justify; "><b>Right to Read in the European Parliament: A Report</b><br />The European Blind Union and the Transatlantic Consumer Dialogue supported an event sponsored by seven MEPs in the European Parliament to discuss the way forward for EU to support the Treaty for the Blind, Visually Impaired and Other Reading Disabled which has been proposed at the World Intellectual Property Organisation by Brazil, Mexico, Ecuador and Paraguay.<a href="http://editors.cis-india.org/advocacy/accessibility/blog/right-to-read-europe" target="_blank"><br />http://cis-india.org/advocacy/accessibility/blog/right-to-read-europe</a></p>
<hr />
<h3 style="text-align: justify; ">Intellectual Property</h3>
<p style="text-align: justify; ">The 2010 Special 301 Report Is More of the Same, Slightly Less Shrill 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.<a href="http://editors.cis-india.org/advocacy/ipr/blog/2010-special-301" target="_blank"><br />http://cis-india.org/advocacy/ipr/blog/2010-special-301</a></p>
<p style="text-align: justify; "><b>Exceptions and Limitations in Indian Copyright Law for Education: An Assessment<br /></b>This paper examines the nature of exceptions and limitations in copyright law for the purposes of the use of copyrighted materials for education. It looks at the existing national and international regime, and argues for why there is a need for greater exceptions and limitations to address the needs of developing countries. The paper contextualizes the debate by looking at the high costs of learning materials and the impediment caused to e-learning and distance education by strong copyright regimes.<a href="http://editors.cis-india.org/advocacy/ipr/blog/exceptions-and-limitations" target="_blank"><br />http://cis-india.org/advocacy/ipr/blog/exceptions-and-limitations</a></p>
<p style="text-align: justify; "><b>Technological Protection Measures in the Copyright (Amendment) Bill, 2010<br /></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.<a href="http://editors.cis-india.org/advocacy/ipr/blog/tpm-copyright-amendment" target="_blank"><br />http://cis-india.org/advocacy/ipr/blog/tpm-copyright-amendment</a></p>
<hr />
<h3>Telecom</h3>
<p style="text-align: justify; "><b>China Club instead of Bombay Club?<br /></b>Emulate China's coordinated policies for strategic sectors, and we'll rely less on commodity exports, says Shyam Ponappa in his article in the Business Standard on May 13, 2010.<a href="http://editors.cis-india.org/advocacy/telecom/blog/China-club-Bombay-club" target="_blank"><br />http://cis-india.org/advocacy/telecom/blog/China-club-Bombay-club</a></p>
<p>
For more details visit <a href='http://editors.cis-india.org/about/newsletters/may-2010-bulletin'>http://editors.cis-india.org/about/newsletters/may-2010-bulletin</a>
</p>
No publisherpraskrishnaAccess to KnowledgeDigital NativesTelecomAccessibilityInternet GovernanceCISRAWOpenness2012-08-10T10:00:54ZPageThe 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 EntryApril 2010 Bulletin
http://editors.cis-india.org/about/newsletters/april-2010-bulletin
<b>Greetings from the Centre for Internet and Society! We bring you updates of our research, events and news for the month of April 2010.</b>
<h2><b>News Updates </b></h2>
<p class="ecxdocumentdescription"><b>Worries voiced over ID Project</b><span style="text-decoration: underline;"><br /> </span>The Government of India's Unique Identification (UID) Project came under flak at a workshop organised jointly by the Citizen Action Forum (CAF), the People's Union of Civil Liberties - Karnataka, the Alternative Law Forum and the Centre for Internet and Society - An article in The Hindu - 17th April.<br /> <a href="http://editors.cis-india.org/news/worries-voiced-over-id-project" target="_blank">http://cis-india.org/news/worries-voiced-over-id-project</a></p>
<p class="ecxdocumentdescription"><b>UID: A debate on the Fundamental Rights</b><span style="text-decoration: underline;"><br /> </span>UID: A debate on the Fundamental Rights - was jointly organized by the Citizen Action Forum, People's Union for Civil Liberties - Karnataka, Alternative Law Forum and the Centre for Internet and Society on April 16th at IAT, Queens Road, Bangalore - An article in the Prajavani news paper - April 17th. <br /> <a href="http://editors.cis-india.org/news/uid-a-debate-on-fundamental-rights" target="_blank">http://cis-india.org/news/uid-a-debate-on-fundamental-rights</a></p>
<p class="ecxdocumentdescription"><b>UID is an invasion of Privacy: Experts</b><br /> The Nandan Nilekani headed Unique Identification Authority of India (UIDAI) came in for much criricism at the first of a series of debates on the issue organised in the city on Friday - Deccan Chronicle, April 17th.<br /> <a href="http://editors.cis-india.org/news/uid-is-an-invasion-of-privacy-experts" target="_blank">http://cis-india.org/news/uid-is-an-invasion-of-privacy-experts</a></p>
<p class="ecxmsonormal"><b>Experts debate on UID and rights </b><span style="text-decoration: underline;"><br /> </span>Bangalore, Apr 16, DHNS: A debate on ‘UID and Fundamental Rights’ organised by several city-based organisations, discussed the social, ethical issues, economic and legal issues that accompanies the UID. <br /> <a href="http://editors.cis-india.org/news/experts-debate-on-uid-and-rights" target="_blank">http://cis-india.org/news/experts-debate-on-uid-and-rights</a></p>
<p class="ecxmsonormal"><b>Amendment to Copyright Act opposed </b><span style="text-decoration: underline;"><br /> </span>A report on the press conference held on 15th April, at the Press Club, Bangalore: The Hindu <br /> <a href="http://editors.cis-india.org/news/amendment-to-copyright-act-opposed" target="_blank">http://cis-india.org/news/amendment-to-copyright-act-opposed</a></p>
<p class="ecxmsonormal"><b>They fight for the visually challenged </b><span style="text-decoration: underline;"><br /> </span>Times News Network - A report on the press conference held at the Press Club, Bangalore on 15th April, 2010. <br /> <a href="http://editors.cis-india.org/news/they-fight-for-the-visually-challenged" target="_blank">http://cis-india.org/news/they-fight-for-the-visually-challenged</a></p>
<p class="ecxmsonormal"><b>Digital Natives Research Project Coordinator </b><span style="text-decoration: underline;"><br /> </span>The Centre for Internet and Society, Bangalore, in collaboration with Hivos Netherlands, is looking for a Research Project Coordinator to help develop a knowledge network and coordinate international workshops for the project "Digital Natives with a Cause?" <br /> <a href="http://editors.cis-india.org/news/research-coordinator" target="_blank">http://cis-india.org/news/research-coordinator</a></p>
<p class="ecxmsonormal"><b>Expel or not? That is the question </b><span style="text-decoration: underline;"><br /> </span>The decision of an international school to expel 14 students for their alleged ‘promiscuous’ behaviour has led to much debate and discussion. <br /> <a href="http://editors.cis-india.org/news/expel-or-not" target="_blank">http://cis-india.org/news/expel-or-not</a></p>
<p class="ecxmsonormal"><b>Nokia eyes GeNext to tap mobile email mkt </b><span style="text-decoration: underline;"><br /> </span>Finnish handset giant banks on youth to be in the technology race <br /> <a href="http://editors.cis-india.org/news/nokia-eyes-genNext" target="_blank">http://cis-india.org/news/nokia-eyes-genNext</a></p>
<h3><b>Research</b></h3>
<p class="ecxmsonormal" style="text-align: justify; "><b>Critical Point of View: Videos </b><span style="text-decoration: underline;"><br /> </span>The Second event for the Critical Point of View reader on Wikipedia was held in Amsterdam, by the Institute of Network Cultures and the Centre for Internet and Society. A wide range of scholars, academics, researchers, practitioners, artists and users came together to discuss questions on design, analytics, access, education, theory, art, history and processes of knowledge production. The videos for the full event are now available for free viewing and dissemination.</p>
<p class="ecxmsonormal" style="text-align: justify; "><b>Colour Me Political </b><br /> What are the tools that Digital Natives use to mobilise groups towards a particular cause? How do they engage with crises in their immediate environments? Are they using their popular social networking sites and web 2.0 applications for merely entertainment? Or are these tools actually helping them to re-articulate the realm of the political? Nishant Shah looks at the recent Facebook Colour Meme to see how new forms of political participation and engagement are being initiated by young people across the world.<br /> <a href="http://editors.cis-india.org/research/dn/dn2" target="_blank">http://cis-india.org/research/dn/dn2</a></p>
<p class="ecxmsonormal" style="text-align: justify; "><b>Meet the Web 2.0 Suicide Machine</b><br />Digital Natives live their lives differently. But sometimes, they also die their lives differently! What happens when we die online? Can the digital avatar die? What is digital life? The Web 2.0 Suicide machine that has now popularly been called the 'anti-social-networking' application brings some of these questions to the fore. As a part of the Hivos-CIS "Digital Natives with a Cause?" research programme, Nishant Shah writes about how Life on the Screen is much more than just a series of games. <br /> <a href="http://editors.cis-india.org/research/dn/dn1" target="_blank">http://cis-india.org/research/dn/dn1</a></p>
<p class="ecxmsonormal" style="text-align: justify; "><b>Digital Natives with a Cause? </b><span style="text-decoration: underline;"><br /> </span>Digital Natives With A Cause? - a product of the Hivos-CIS collaboration charts the scholarship and practice of youth and technology with a specific attention for developing countries to create a framework that consolidates existing paradigms and informs further research and intervention within diverse contexts and cultures. <br /> <a href="http://editors.cis-india.org/research/dn/dnrep" target="_blank">http://cis-india.org/research/dn/dnrep</a></p>
<h2><b>Advocacy</b></h2>
<h3><b>Accessibility</b></h3>
<p class="ecxmsonormal"><b>e-Accessibility: A Wiki Project </b><span style="text-decoration: underline;"><br /> </span>Envisaged and funded by the National Internet Exchange of India, and executed by the Centre for Internet and Society, a Wiki site pertaining to issues of disability and e-accessibility has recently been launched. <br /> <a href="http://editors.cis-india.org/advocacy/accessibility/blog/e-accessibility-a-wiki-project" target="_blank">http://cis-india.org/advocacy/accessibility/blog/e-accessibility-a-wiki-project</a></p>
<p class="ecxmsonormal"><b>Copyright Law as a tool for Inclusion </b><span style="text-decoration: underline;"><br /> </span>Can Copyright Law be used as a tool for Inclusion? Rahul Cherian examines this in his blog on copyright. <br /> <a href="http://editors.cis-india.org/advocacy/accessibility/blog/copyright-law-as-tool-for-inclusion" target="_blank">http://cis-india.org/advocacy/accessibility/blog/copyright-law-as-tool-for-inclusion</a></p>
<p class="ecxmsonormal"><b>Web Accessibility as a Government Mandate?</b><span style="text-decoration: underline;"><b> </b><br /> </span>Is Web accessibility just a Government Mandate? Should private sites be ignored? Wesolowski examines this in light of the steps taken by ictQATAR to make its website accessible to W3C standards, and hopes that Qatar and eventually all other Arab nations will follow suit and make Web accessibility much more of a mandate. <br /> <a href="http://editors.cis-india.org/advocacy/accessibility/blog/web-accessibility-government-mandate" target="_blank">http://cis-india.org/advocacy/accessibility/blog/web-accessibility-government-mandate</a></p>
<h3><b>Intellectual Property</b></h3>
<p class="ecxdocumentdescription"><b>When Copyright Goes Bad </b><span style="text-decoration: underline;"><br /> </span>A part of the Access to Knowledge Project, this short film by Consumers International is available on DVD and online at A2Knetwork.org/film. <br /> <a href="http://editors.cis-india.org/advocacy/ipr/blog/when-copyright-goes-bad" target="_blank">http://cis-india.org/advocacy/ipr/blog/when-copyright-goes-bad</a></p>
<h3><b>Openness</b></h3>
<p class="ecxdocumentdescription" style="text-align: justify; "><b>Research Project on Open Video in India </b><span style="text-decoration: underline;"><br /> </span>Open Video Alliance and the Centre for Internet and Society are calling for researchers for a project on open video in India, its potentials, limitations, and recommendations on policy interventions. <br /> <a href="http://editors.cis-india.org/advocacy/openness/blog/open-video-research" target="_blank">http://cis-india.org/advocacy/openness/blog/open-video-research</a></p>
<p class="ecxmsonormal" style="text-align: justify; "><b>Does the Social Web need a Googopoly?</b><br />While the utility of the new social tool Buzz is still under question, the bold move into social space taken last week by the Google Buzz team has Gmail users questioning privacy implications of the new feature. In this post, I posit that Buzz highlights two privacy challenges of the social web. First, the application has sidestepped the consensual and contextual qualities desirable of social spaces. Secondly, Google’s move highlights the increasingly competitive and convergent nature of the social media landscape. <br /> <a href="http://editors.cis-india.org/advocacy/openness/blog/does-the-social-web-need-a-googopoly" target="_blank">http://cis-india.org/advocacy/openness/blog/does-the-social-web-need-a-googopoly</a></p>
<p class="ecxmsonormal" style="text-align: justify; "><b>The (in)Visible Subject: Power, Privacy and Social Networking </b><span style="text-decoration: underline;"><br /> </span>In this entry, I will argue that the interplay between privacy and power on social network sites works ultimately to subject individuals to the gaze of others, or to alternatively render them invisible. Individual choices concerning privacy preferences must, therefore, be informed by the intrinsic relationship which exists between publicness/privateness and subjectivity/obscurity. <br /> <a href="http://editors.cis-india.org/advocacy/openness/blog/the-in-visible-subject-power-privacy-and-social-networking" target="_blank">http://cis-india.org/advocacy/openness/blog/the-in-visible-subject-power-privacy-and-social-networking</a></p>
<h3><b>Internet Governance</b></h3>
<p class="ecxdocumentdescription" style="text-align: justify; "><b>Does the Safe-Harbor Program Adequately Address Third Parties Online? </b><span style="text-decoration: underline;"><br /> </span>While many citizens outside of the US and EU benefit from the data privacy provisions the Safe Harbor Program, it remains unclear how successfully the program can govern privacy practices when third-parties continue to gain more rights over personal data. Using Facebook as a site of analysis, I will attempt to shed light on the deficiencies of the framework for addressing the complexity of data flows in the online ecosystem. <br /> <a href="http://editors.cis-india.org/advocacy/igov/blog/does-the-safe-harbor-program-adequately-address-third-parties-online" target="_blank">http://cis-india.org/advocacy/igov/blog/does-the-safe-harbor-program-adequately-address-third-parties-online</a></p>
<p class="ecxmsonormal" style="text-align: justify; "><b>Sense and censorship </b><span style="text-decoration: underline;"><br /> </span>Sunil Abraham examines Google's crusade against censorship in China in wake of the attacks on its servers in this article published in the Indian Express. <br /> <a href="http://editors.cis-india.org/advocacy/igov/blog/sense-and-censorship" target="_blank">http://cis-india.org/advocacy/igov/blog/sense-and-censorship</a></p>
<p class="ecxmsonormal" style="text-align: justify; "><b>Report on the Fourth Internet Governance Forum for Commonwealth IGF </b><span style="text-decoration: underline;"><br /> </span>This report by Pranesh Prakash reflects on the question of how useful is the IGF in the light of meetings on the themes of intellectual property, freedom of speech and privacy. <br /> <a href="http://editors.cis-india.org/advocacy/igov/blog/report-on-fourth-IGF" target="_blank">http://cis-india.org/advocacy/igov/blog/report-on-fourth-IGF</a></p>
<h3><b>Telecom</b></h3>
<p class="ecxdocumentdescription" style="text-align: justify; "><b>The Right Ring Tone </b><span style="text-decoration: underline;"><br /> </span>Focus on improving service quality with a strong partner, and not on one-shot stake sales, says Shyam Ponappa in his article published in the Business Standard on April 1, 2010. <span style="text-decoration: underline;"><br /> </span><a href="http://editors.cis-india.org/advocacy/telecom/blog/ring-tone" target="_blank">http://cis-india.org/advocacy/telecom/blog/ring-tone</a></p>
<h2><b>Other Advocacy</b></h2>
<p class="ecxdocumentdescription" style="text-align: justify; "><b>Maps for Making Change Wiki Now Open to the Public </b><br /> Since December 2009, CIS has been coordinating and nurturing the Maps for Making Change project, organised in collaboration with Tactical Tech. During the past four months, participants have been on a challenging yet fertile and inspiring journey that is now slowly coming to an end. Would you like to know more about what has happened in the time that has passed? The Maps for Making Change wiki is a good place to start. <br /> <a href="http://editors.cis-india.org/advocacy/others/maps-for-making-change-wiki-now-open-to-the-public" target="_blank">http://cis-india.org/advocacy/others/maps-for-making-change-wiki-now-open-to-the-public</a></p>
<p>
For more details visit <a href='http://editors.cis-india.org/about/newsletters/april-2010-bulletin'>http://editors.cis-india.org/about/newsletters/april-2010-bulletin</a>
</p>
No publisherpraskrishnaAccess to KnowledgeDigital NativesTelecomIntellectual Property RightsAccessibilityInternet GovernanceCISRAW2012-08-13T04:51:19ZPageMarch 2010 Bulletin
http://editors.cis-india.org/about/newsletters/march-2010-bulletin
<b>Greetings from the Centre for Internet and Society! We bring you updates of our research, news, and events for the month of March 2010 in this bulletin.</b>
<h3><b>News Updates</b></h3>
<p class="ecxmsonormal" style="text-align: justify; "><b>An Open Answer to Office</b><span style="text-decoration: underline;"><br /> </span>OpenOffice with its new features is giving Microsoft Word tough competition, says Deepa Kurup in this article published in The Hindu.<br /> <a href="http://editors.cis-india.org/news/open-office" target="_blank">http://cis-india.org/news/open-office</a></p>
<h3><b>Upcoming Events</b></h3>
<p class="ecxmsonormal" style="text-align: justify; "><b>CPOV: Wikipedia Research Initiative</b><span style="text-decoration: underline;"><br /> </span>The second WikiWars conference will be held in Amsterdam from 26 to 27 March 2010<br /> <a href="http://editors.cis-india.org/research/conferences/conference-blogs/cpov" target="_blank">http://cis-india.org/research/conferences/conference-blogs/cpov</a></p>
<p class="ecxmsonormal" style="text-align: justify; "><b>CI Global Meeting on A2K</b><span style="text-decoration: underline;"><br /> </span>CIS is a co-sponsor of the Consumers International Meeting on A2K to be held in Kuala Lumpur, Malaysia on April 21 and 22, 2010.<br /> <a href="http://editors.cis-india.org/events/ci-global-meeting-a2k" target="_blank">http://cis-india.org/events/ci-global-meeting-a2k</a></p>
<h3><b>Research</b></h3>
<p class="ecxmsonormal" style="text-align: justify; "><b>India Game Developer Summit Bangalore 2010</b><span style="text-decoration: underline;"><br /> </span>The India Game Developer Conference held at Nimhans Convention Centre on the 27th of February, 2010 was attended by Arun Menon who is working on The Gaming and Gold Project at The Centre for Internet and Society. The Developer forum brought together game developers from different sectors of the Game Production Cycle, with hardware manufacturers like Nvidia demonstrating their latest 3d technology and Software developers like Crytek and Adobe demonstrating the latest in developer tools for creating and editing games on multiple platforms.<br /> <a href="http://editors.cis-india.org/research/cis-raw/histories/gaming/india-game-developer-summit-in-bangalore-2010" target="_blank">http://cis-india.org/research/cis-raw/histories/gaming/india-game-developer-summit-in-bangalore-2010</a><br /> <br /> <b>10 Legendary Obscene Beasts</b><br /> Nishant Shah analyses a peculiar event of vandalism which has now become the core of free speech and anti-censorship debates in mainland China. Looking at the structure of user generated knowledge websites and the specific event on the Chinese language encyclopaedia, 'Baidu Baike', he shows how, in cities where spaces of political spectacle and public protest are quickly diminishing, the Internet has become a tool for producing new public spaces of demonstration and protest.<br /> <a href="http://editors.cis-india.org/research/grants/ISShanghai/itcity4" target="_blank">http://cis-india.org/research/grants/ISShanghai/itcity4</a></p>
<p class="ecxmsonormal"><b>WikiWars - A report</b><br /> In this blog, Nishant Shah analyses about the WikiWars, the first of the three events held in Bangalore on January 12 and 13.<br /> <a href="http://editors.cis-india.org/research/conferences/conference-blogs/wwrep" target="_blank">http://cis-india.org/research/conferences/conference-blogs/wwrep</a></p>
<h3><b>Telecom</b></h3>
<p class="ecxmsonormal"><b>Understanding Spectrum</b><span style="text-decoration: underline;"><b><br /> </b></span>What is spectrum and how do government and commercial decisions on this scientific phenomenon affect public facilities and costs? Shyam Ponappa examines this in his latest blog published in the Business Standard on March 4, 2010.<b><br /> </b><a href="http://editors.cis-india.org/advocacy/telecom/blog/understanding-spectrum%0c" target="_blank">http://cis-india.org/advocacy/telecom/blog/understanding-spectrum</a></p>
<p>
For more details visit <a href='http://editors.cis-india.org/about/newsletters/march-2010-bulletin'>http://editors.cis-india.org/about/newsletters/march-2010-bulletin</a>
</p>
No publisherpraskrishnaAccess to KnowledgeDigital NativesTelecomIntellectual Property RightsAccessibilityInternet GovernanceCISRAWOpenness2012-08-13T05:02:42ZPageArguments Against Software Patents in India
http://editors.cis-india.org/a2k/blogs/arguments-against-software-patents
<b>CIS believes that software patents are harmful for the software industry and for consumers. In this post, Pranesh Prakash looks at the philosophical, legal and practical reasons for holding such a position in India. This is a slightly modified version of a presentation made by Pranesh Prakash at the iTechLaw conference in Bangalore on February 5, 2010, as part of a panel discussing software patents in India, the United States, and the European Union.</b>
<p>This blog post is based on a presentation made at the <a href="http://www.itechlaw-india.com/">iTechLaw conference</a> held on February 5, 2010. The audience consisted of lawyers from various corporations and corporate law firms. As is their wont, most lawyers when dealing with software patents get straight to an analysis of law governing the patenting of computer programmes in India and elsewhere, and seeing whether any loopholes exist and can be exploited to patent software. It was refreshing to see at least some lawyers actually going into questions of the need for patents to cover computer programs. In my presentation, I made a multi-pronged case against software patents: (1) philosophical justification against software patents based on the nature of software; (2) legal case against software patents; (3) practical reasons against software patents.</p>
<h2>Preamble</h2>
<p>Through these arguments, it is sought to be shown that patentability of software is not some arcane, technical question of law, but is a real issue that affect the continued production of new software and the everyday life of the coder/hacker/software programmer/engineer as well as consumers of software (which is, I may remind you, everywhere from your pacemaker to your phone). A preamble to the arguments would note that the main question to ask is: <strong>why should we allow for patenting of software</strong>? Answering this question will lead us to ask: <strong>who benefits from patenting of software</strong>. The conclusion that I come to is that patenting of software helps three categories of people: (1) those large software corporations that already have a large number of software patents; (2) those corporations that do not create software, but only trade in patents / sue on the basis of patents ("patent trolls"); (3) patent lawyers. How they don't help small and medium enterprises nor society at large (since they deter, rather than further invention) will be borne out by the rest of these arguments, especially the section on practical reasons against software patents.</p>
<h2>What are Patents?</h2>
<p>Patents are a twenty-year monopoly granted by the State on any invention. An invention has to have at least four characteristics: (0) patentable subject matter; (1) novelty (it has to be new); (2) inventive step / non-obviousness (even if new, it should not be obvious); (3) application to industry. A monopoly over that invention, thus means that if person X has invented something, then I may not use the core parts of that invention ("the essential claims") in my own invention. This prohibition applies even if I have come upon my invention without having known about X's invention. (Thus, independent creation is not a defence to patent infringement. This distinguishes it, for instance, from copyright law in which two people who created the same work independently of each other can both assert copyright.) Patents cover non-abstract ideas/functionality while copyright covers specific expressions of ideas. To clarify: imagine I make a drawing of a particular machine and describe the procedure of making it. Under patent law, no one else can make that particular machine, while under copyright law, no one can copy that drawing.</p>
<h2>Philosophical Justification Against Software Patents</h2>
<p>Even without going into the case against patents <em>per se</em> (lack of independent creation as a defence; lack of 'harm' as a criterion leading to internalization of all positive externalities; lack of effective disclosure and publication; etc.), which has been done much more ably by others like <a href="http://www.researchoninnovation.org/">Bessen & Meurer</a> (especially in their book <a href="http://researchoninnovation.org/dopatentswork/">Patent Failure</a>) and <a href="http://www.againstmonopoly.org/">Boldrin & Levine</a> (in their book <a href="http://levine.sscnet.ucla.edu/general/intellectual/againstnew.htm">Against Intellectual Monopoly</a>, the full text of which is available online).</p>
<p>But there is one essentially philosophical argument against software as subject matter of a patent. Software/computer programs ("instructions for a computer"), as any software engineer would tell you, are merely <a href="http://en.wikipedia.org/wiki/Algorithm">algorithms</a> ("an effective method for solving a problem using a finite sequence of instructions") that are meant to be understood by a computer or a human who knows how to read that code.</p>
<p>Algorithms are not patentable subject matter, as they are mere expressions of abstract ideas, and not inventions in themselves. Computer programs, similarly, are abstract ideas. They only stop being abstract ideas when embodied in a machine or a process in which it is the machine/process that is the essential claim and not the software. That machine or process being patented would not grant protection to the software itself, but to the whole machine or process. Thus the abstract part of that machine/process (i.e., the computer program) could be used in any other machine/process, as it it is not the subject matter of the patent. Importantly, just because software is required to operate some machine would then not mean that the machine itself is not patentable, just that the software cannot be patented in guise of patenting a machine.</p>
<h2>Legal Case Against Software Patents</h2>
<p>In India, section 3(k) of the Patent Act reads:</p>
<blockquote class="webkit-indent-blockquote">
<p>(3) The following are not inventions within the meaning of this Act: (k) a mathematical or business method or computer programme (<em>sic</em>) <em>per se</em> or algorithms.</p>
</blockquote>
<p>As one can see, computer programs are place in the same category as "mathematical methods", "algorithms", and "business methods", hence giving legal validity to the idea propounded in the previous section that computer programs are a kind of algorithms (just as algorithms are a kind of mathematical method).</p>
<p>Be that as it may, the best legal minds in India have had to work hard at understanding what exactly "computer programme <em>per se</em>" means. They have cited U.S. case law, U.K. case law, E.U. precedents, and sought to arrive at an understanding of how <em>per se</em> should be understood. While understanding what <em>per se</em> means might be a difficult job, it is much easier to see what it does <em>not</em> mean. For that, we can look at the 2004 Patent Ordinance that Parliament rejected in 2005. In that ordinance, sections 3(k) and (ka) read as follows:</p>
<blockquote class="webkit-indent-blockquote">
<p>(3) The following are not inventions within the meaning of this Act: (k) a computer programme <em>per se</em> other than its technical application to industry or a combination with hardware; (ka) a mathematical method or a business method or algorithms.</p>
</blockquote>
<p>Thus, it is clear that the interpretation that "computer programme <em>per se</em>" excludes "a computer programme that has technical application to industry" and "a computer programme in combination with hardware" is wrong. By rejecting the 2004 Ordinance wording, Parliament has clearly shown that "technical application to industry" and "combination with hardware" do not make a computer programme patentable subject matter.</p>
<p>Indeed, what exactly is "technical application to industry"? <a href="http://wordnetweb.princeton.edu/perl/webwn?s=technical">"Technical"</a> has various definitions, and a perusal through those definitions would show that barely any computer program can be said not to relate to a technique, not involve "specialized knowledge of applied arts and sciences" (it is code, after all; not everyone can write good algorithms), or not relate to "a practical subject that is organized according to scientific principles" or is "technological". Similarly, all software is, <a href="http://wordnetweb.princeton.edu/perl/webwn?s=software">by definition</a>, meant to be used in combination with hardware. Thus, it being used in combination with hardware must not, as argued above, give rise to patentability of otherwise unpatentable subject matter category.</p>
<p>In 2008, the Patent Office published a new 'Draft Manual Of Patent Practice And Procedure' in which it sought to allow patenting of certain method claims for software inventions (while earlier the Patent Office objected to method claims, allowing only device claims with hardware components). This Draft Manual was withdrawn from circulation, with Shri N.N. Prasad (then Joint Secretary of DIPP, the department administering the Patent Office) noting that the parts of the Manual on sections 3(d) and 3(k) had generated a lot of controversy, and were <em>ultra vires</em> the scope of the Manual (which could not override the Patent Act). He promised that those parts would be dropped and the Manual would be re-written. A revised draft of the Manual has not yet been released. Thus the interpretation provided in the Draft Manual (which was based heavily on the interpretation of the U.K. courts) cannot not be relied upon as a basis for arguments in favour of the patentability of software in India.</p>
<p>In October 2008, CIS helped organize a <a href="http://editors.cis-india.org/advocacy/openness/blog/the-national-public-meeting-on-software-patents">National Public Meeting on Software Patents</a> in which Indian academics, industry, scientists, and FOSS enthusiasts all came to the conclusion that software patents are harmful for <a href="http://editors.cis-india.org/openness/software-patents/software-patenting-will-harm-industry-consumer">both the industry as well as consumers</a>.</p>
<h2>Practical Reasons Against Software Patents</h2>
<p>This is going to be an attempt at distilling and simplifying some of the main practical arguments against patenting of software.</p>
<p>There are traditionally <a href="http://www.patenthawk.com/blog/2005/04/patent_economics_part_4_incent.html">four incentives that the patent system caters to</a>: (1) incentive to invent; (2) incentive to disclose; (3) incentive to commercialize; and (4) incentive to invent substitutes. Apart from the last, patenting of software does not really aid any of them.</p>
<ol>
<li>
<h3>Patent Landmines / Submarine Patents / Patent Gridlocks / No Exception for Independent Creation</h3>
<p>Given that computer programs are algorithms, having monopolies over such abstract ideas is detrimental to innovation. Just the metaphors say a lot about software patents: landmines (they cannot be seen/predicted); submarines (they surface out of the blue); gridlocks (because there are so many software patents around the same area of computing, they prevent further innovation in that area, since no program can be written without violating one patent or the other).</p>
<p>Imagine the madness that would have ensued had patents been granted when computer programming was in its infancy. Imagine different methods of sorting (quick sort, bubble sort) that are part of Computer Science 101 had been patented. While those particular instances aren't, similar algorithms, such as data compression algorithms (including the infamous <a href="http://en.wikipedia.org/wiki/LZW">LZW compression method</a>), have been granted patents. Most importantly, even if one codes certain functionality into software independently of the patent holder, that is still violative of the patent. Computer programs being granted patents makes it extremely difficult to create other computer programs that are based on the same abstract ideas. Thus incentives # (1) and (3) are not fulfilled, and indeed, they are harmed. There is no incentive to invent, as one would always be violating one patent or the other. Given that, there is no incentive to commercialize what one has invented, because of fear of patent infringement suits.</p>
<p>An apt illustration of this is the current difficulty of choosing a royalty-free video format for HTML 5, as it shows, in practical terms, how difficult it is to create a video format without violating one patent or the other. While the PNG image format was created to side-step the patent over the LZW compression method used in the GIF image format, bringing Ogg Theora or Dirac (both patent-free video format) to surpass the levels of H.264/MPEG-4 AVC or VC-1 will be very difficult without infringing dozens if not hundreds of software patents. Chris DiBona of Google, while talking about <a href="http://www.mail-archive.com/whatwg@lists.whatwg.org/msg15476.html">improving Ogg Theora</a> as part of its inclusion in HTML 5 specifications said, "Here’s the challenge: Can Theora move forward without infringing on the other video compression patents?" Just <a href="http://74.125.153.132/search?q=cache:jRnXmHcZCMsJ:www.mpegla.com/Lists/MPEG%2520LA%2520News%2520List/Attachments/140/n_03-11-17_avc.html+http://www.mpegla.com/news/n_03-11-17_avc.html&cd=2&hl=en&ct=clnk&gl=in">the number of companies and organization that hold patents over H.264</a> is astounding, and includes: Columbia University, Electronics and Telecommunications Research Institute of Korea (ETRI), France Télécom, Fujitsu, LG Electronics, Matsushita, Mitsubishi, Microsoft, Motorola, Nokia, Philips, Robert Bosch GmbH, Samsung, Sharp, Sony, Toshiba, and Victor Company of Japan (JVC). As is the amount of royalties to be paid ("[t]he maximum royalty for these rights payable by an Enterprise (company and greater than 50% owned subsidiaries) is $3.5 million per year in 2005-2006, $4.25 million per year in 2007-08 and $5 million per year in 2009-10"; with royalty per unit of a decoder-encoder costing upto USD 0.20.)</p>
<p>Indeed, even the most diligent companies cannot guard themselves against software patents. FFII estimates that a very simple online shopping website <a href="http://webshop.ffii.org">would violate twenty different patents at the very least</a>. Microsoft recently lost a case against i4i when i4i surfaced with a patent covering custom XML as implemented in MS Office 2003 and MS Office 2007. As a result Microsoft had to ship patches to its millions of customers, to disable the functionality and bypass that patent. The manufacturers of BlackBerry, the Canadian company Research in Motion, had to shell out <a href="http://en.wikipedia.org/wiki/NTP,_Inc.#RIM_patent_infringement_litigation">USD 617 million as settlement</a> to NTP over wireless push e-mail, as it was otherwise faced with the possibility of the court shutting down the BlackBerry service in the U.S. This happened despite there being a well-known method of doing so pre-dating the NTP patents. NTP has also filed cases against AT&T, Sprint Nextel, T-Mobile, Verizon Wireless, and Palm Inc. <a href="http://copyfight.corante.com/archives/2005/12/15/rimntp_mud_splashes_microsoft.php">Microsoft was also hit by Visto Corporation</a> over those same NTP patents, which had been licensed to Visto (a startup).</p>
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<h4>Don't These Cases Show How Software Patents Help Small Companies?</h4>
<p>The astute reader might be tempted to ask: are not all of these examples of small companies getting their dues from larger companies? Doesn't all of this show that software patents actually help small and medium enterprises (SMEs)? The answer to that is: no. To see why, we need to note the common thread binding i4i, NTP, and Visto. None of them were, at the time of their lawsuits, actually creating new software, and NTP was an out-and-out "non-practising entity"/"patent holding company" AKA, patent troll. i4i was in the process of closing shop, and Visto had just started up. None of these were actually practising the patent. None of these were producing any other software. Thus, none of these companies had anything to lose by going after big companies. In other words, the likes of Microsoft, RIM, Verizon, AT&T, etc., could not file counter-suits of patent infringement, which is normally what happens when SMEs try to assert patent rights against larger corporations. For every patent that the large corporation violates of the smaller corporation, the smaler corporation would be violating at least ten of the larger corporation's. Software patents are more helpful for software companies as a tool for cross-licensing rather than as a way of earning royalties. Even this does not work as a strategy against patent trolls.</p>
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<p>Thus, the assertion that was made at the beginning is borne out: software patents help only patent trolls, large corporations that already have large software patent portfolios, and the lawyers who draft these patents and later argue them out in court.</p>
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<h3>Term of Patents</h3>
<p>Twenty years of monopoly rights is outright ludicrous in an industry where the rate of turnover of technology is much faster -- anywhere between two years and five months.</p>
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<h3>Software Industry Progressed Greatly Without Patents</h3>
<p>In India, software patents have never been asserted in courts (even though many have been <a href="http://editors.cis-india.org/advocacy/openness/blog/the-national-public-meeting-on-software-patents">illegally granted</a>), yet the software industry in India is growing in leaps and bounds. Similarly, most of the big (American) giants of the software industry today grew to their stature by using copyright to "protect" their software, and not patents.</p>
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<h3>Copyright Exists for Software</h3>
<p>As noted above, the code/expression of any software is internationally protected by copyright law. There is no reason to protect the ideas/functionality of that software as well.</p>
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<h3>Insufficient Disclosure</h3>
<p>When ordinary computer programmers cannot understand what a particular software patent covers (which is the overwhelming case), then the patent is of no use. One of the main incentives of the patent system is to encourage gifted inventors to share their genius with the world. It is not about gifted inventors paying equally gifted lawyers to obfuscate their inventions into gobbledygook so that other gifted inventors can at best hazard a guess as to precisely what is and is not covered by that patent. Thus, this incentive (#2) is not fulfilled by the current system of patents either -- not unless there is a major overhaul of the system. This ties in with the impossibility of ensuring that one is not violating a software patent. If a reasonably smart software developer (who are often working as individuals, and as part of SMEs) cannot quickly ascertain whether one is violating patents, then there is a huge disincentive against developing software in that area at all.</p>
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<h3>Software Patents Work Against Free/Libre/Open Source Software</h3>
<p>Software patents hinder the development of software and FOSS licences, as the licensee is not allowed to restrict the rights of the sub-licensees over and above the restrictions that the licensee has to observe. Thus, all patent clearances obtained by the licensee must be passed on to the sub-licensees. Thus, patented software, though most countries around the world do not recognize them, are generally not included in the default builds of many FOSS operating systems. This inhabits the general adoption of FOSS, since many of the software patents, even though not enforceable in India, are paid heed to by the software that Indians download, and the MP3 and DivX formats are not enabled by default in standard installations of a Linux OS such as Ubuntu.</p>
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<h2>Conclusion</h2>
<p>Currently, the U.S. patent system is being reviewed at the administrative level, the legislative level, as well as the judicial level. At the judicial level, the question of business method patents (and, by extension, software patents) is before the Supreme Court of the United States of America in the form of <a href="http://en.wikipedia.org/wiki/Bilski_v._Kappos"><em>Bilski v. Kappos</em></a>. Judge Mayer of the Court of Appeals for the Federal Circuit (CAFC, which heard <em>In re Bilksi</em>) noted that "the patent system has run amok". The Free Software Foundation submitted a most extensive <a href="http://endsoftpatents.org/amicus-bilski-2009"><em>amicus curiae</em> brief</a> to the U.S. Supreme Court, filled with brilliant analysis of software patents and arguments against the patentability of software that is well worth a read.</p>
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For more details visit <a href='http://editors.cis-india.org/a2k/blogs/arguments-against-software-patents'>http://editors.cis-india.org/a2k/blogs/arguments-against-software-patents</a>
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No publisherpraneshOpen StandardsAccess to KnowledgeSoftware PatentsIntellectual Property RightsPublicationsPatents2012-03-13T10:43:12ZBlog Entry