The Centre for Internet and Society
http://editors.cis-india.org
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National IPR Policy Series: RTI Requests by CIS to DIPP + DIPP Responses
http://editors.cis-india.org/a2k/blogs/national-ipr-policy-series-rti-requests-by-cis-to-dipp-dipp-responses
<b>In earlier blog posts, we have discussed the development of India’s National IPR Policy (“the Policy”); comments by the Centre for Internet and Society (“CIS”) to the IPR Think Tank before the release of the first draft of the Policy and CIS’ comments to the IPR Think Tank in response to the first draft of the Policy. Continuing our National IPR Policy Series, this article documents our requests to the Department of Industrial Policy and Promotion (“DIPP” / “the Department”) under the Right to Information (“RTI”) Act, 2005 and the responses of the Department.</b>
<p><a href="http://editors.cis-india.org/a2k/blogs/national-ipr-policy-series-dipp-response.pdf" class="external-link">View the PDF here</a>.</p>
<hr />
<h3>Details of RTI Requests Filed by CIS</h3>
<p style="text-align: justify; ">In February, 2015, <a href="http://cis-india.org/a2k/blogs/rti-requests-dipp-details-on-constitution-and-working-of-ipr-think-tank">CIS had filed three RTI requests</a> with the DIPP. <a href="http://editors.cis-india.org/a2k/blogs/cis-rti-request-to-dipp-number-1-february-2015/view">The first request</a> was four-pronged, seeking information related to <i>first,</i> the process followed by the Department in the creation of the IPR Think Tank; <i>second, </i>details and documents of a meeting held to constitute the Think Tank; <i>third, </i>details and documents of all/multiple meetings held to constitute the Think Tank; <i>fourth</i>, details of a directive/directives received from any other Government Ministry/authority directing the constitution of the Think Tank and <i>fifth,</i> the process of shortlisting the members of the Think Tank by the DIPP.</p>
<p style="text-align: justify; "><a href="http://editors.cis-india.org/a2k/blogs/cis-rti-request-to-dipp-number-2-february-2015/view">In our second RTI request,</a> <i>first,</i> we requested details of the process followed by the Think Tank in the formulation of the Policy; <i>second, </i>we requested all documents relating to a meeting held for the formulation of the Policy; <i>third, </i>we requested all documents held for multiple meetings for the creation of the Policy and <i>fourth,</i> we requisitioned all suggestions and comments received by the Think Tank from stakeholders <b>before</b> the release of the Policy, that is, those suggestions/comments received in November, 2014.</p>
<p style="text-align: justify; ">In our <a href="http://editors.cis-india.org/a2k/blogs/cis-request-to-dipp-3.pdf" class="external-link">third RTI request</a>, also filed on also filed in February, 2015, we had asked the DIPP to indicate all suggestions and comments received by the IPR Think Tank from different stakeholders in response to the first draft of the National IPR Policy (to have been submitted on or before January 30, 2015 <a href="http://dipp.nic.in/English/acts_rules/Press_Release/pressRelease_IPR_Policy_30December2014.pdf">as per DIPP’s Public Notice</a>).</p>
<h3 style="text-align: justify; ">Responses by DIPP to CIS' RTI Requests</h3>
<p style="text-align: justify; ">The DIPP replied to our three RTI requests in multiple stages. At first, <a href="http://editors.cis-india.org/a2k/blogs/dipp-response-improper-payment.pdf" class="external-link">in a letter dated 12 February, 2015</a>, we were directed to resubmit our application , seemingly because we hadn’t addressed the Postal Money Order to the correct authority, and were directed to do the same. Funnily enough, we received three other responses – one for each of our RTI requests (the first of these is not dated; the second one is dated 19 February, 2015 and then revised to 26 February, 2015; and the third is also dated 26 February, 2015).</p>
<h3 style="text-align: justify; ">The First Response: On the Constitution of the Think Tank</h3>
<p style="text-align: justify; ">In the <a href="http://editors.cis-india.org/a2k/blogs/dipp-response-1.pdf" class="external-link">first of their responses</a> to these requests, the Department has grouped our queries into five questions and provided a point-wise response to these questions, as under:</p>
<ul>
<li style="text-align: justify; "><b>Please indicate in detail the process followed by the Department of Industrial Policy and Promotion for the constitution for an IPR Think Tank to draft the National Intellectual Property Rights Policy under Public Notice No. 10 (22)/2013 –IPR-III dated November 13, 2014 (sic).</b></li>
</ul>
<p style="text-align: justify; ">In its response the Department notes that it convened an <i>interactive meeting on IPR issues</i> which was chaired by the Minister for Commerce and Industry (Independent Charge), i.e., Ms. Nirmala Sitharaman. As per the Department’s response, this meeting was held on 22 September, 2014 (<b>“the Meeting”</b>) and was aimed at discussing <i>issues related to IPRs, including finalization of the Terms of Reference for IPR Think-Tank proposed to be established </i>(sic.) The Department also notes that <i>representatives from various Ministries/Departments, Member of various Expert Committees constituted by the Department, besides IP experts and other Legal Practitioners</i> (sic) were invited to the meeting. The Department then states that the composition of the Think Tank was decided <i>on the basis of the discussions held in the department after the said interactive Meeting</i> (sic).</p>
<ul>
<li style="text-align: justify; "><b>If there was a meeting held to decide on the same, please include all necessary documents including the minutes of the meeting, records, documents, memos, e-mails, opinion, advices, press releases, circulars, orders etc in which the constitution of the aforesaid mentioned IPR Think Tank was decided (sic).</b></li>
</ul>
<p style="text-align: justify; ">The Department has attached the Minutes of the Meeting held on 22 September, 2014 (<b>“the Minutes”</b>) and states that there were no documents or papers that were circulated at this meeting and that the participants were asked to present their views on various IP issues at this meeting.</p>
<p style="text-align: justify; "><span>Excerpts from the Minutes</span></p>
<p style="text-align: justify; ">The Secretary of the Department (Shri Amitabh Kant) refers to a (then) recent announcement made by the Minister of State for Commerce and Industry (<b>“the Minister”</b>) on the formulation of the National IPR Policy and the establishment of an IPR Think Tank and states that the meeting had been convened to <i>discuss on various IPR issues with IP experts and legal practitioners so that it would provide essential inputs to the policy needs of the department</i> (sic). The Minutes report that Mr. Kant further stated that the objective of the department was to have <i>a world class IP system</i> and that this included a comprehensive National IPR Policy and <i>which takes care of various issues like IP creation, protection, administration and capacity building </i>(sic). He is also reported to have said that such a stakeholder interaction was important for the government to seek inputs.</p>
<p style="text-align: justify; ">The Minister is reported to have said that the purpose of the meeting was to constitute an IP Think Tank that would <i>regularly provide inputs to all IP policy needs of this department as well as advice government in disparate legal aspects (sic). </i>The Minutes also report her to have said that the department would finalize an IP policy within ninety days of the Meeting, based on the inputs of the participants.</p>
<p style="text-align: justify; ">According to the Minutes, various issues emerged from the discussion. <i>Inter alia, </i>these include <i>first,</i> that the proposal to constitute the Think Tank was a welcome measure, along the lines of similar initiatives taken by Australia, South Kora, the United Kingdom and the United States of America; <i>second, </i>that in order to remove misconceptions held by <i>foreign stakeholders</i> about IP enforcement in India, there was a need to highlight judgments of Indian courts that were favorable to <i>foreign stakeholders and MNCs</i>; <i>third, </i>that the national policies on telecom, manufacturing and IP ought to be integrated; <i>fourth</i>, that the focus of the Policy should be <b><i>increase in creation of IP including commercialization of IP and strengthening human capital and IP management</i></b> and <i>fifth</i>, that empirical studies should be conducted to examine the feasibility of Utility Models protection, that there was a need to revise the law on Geographical Indications and that the Policy should include protection for traditional knowledge and guidelines for publicly funded research.</p>
<p style="text-align: justify; ">The Minister is then said to have identified six major areas during the discussion, including <i>IP institution, legislation, implementation, public awareness, international aspects and barriers in IP growth</i> as areas to be covered under the Policy.</p>
<p style="text-align: justify; "><span>Who attended the Meeting?</span></p>
<p style="text-align: justify; ">Attached with the Minutes was also a list of participants who attended the Meeting. Out of the thirty six attendees, <i>I have not been able to locate a single individual or organization representing civil society</i>. Participants include representatives from various government departments and ministries, including <i>inter alia,</i> the DIPP, the Department of Commerce, the Ministry of External Affairs, the Ministry of Information and Broadcasting, the Copyright Division from the Department of Higher Education of the Ministry of Human Resources Development, the Office of the Controller General of Patents, Designs and Trademarks and the Ministry of Culture. The Meeting was also attended by representatives of corporations and industry associations, including FICCI, CII and Cadila Pharmaceuticals; in addition to representatives from law firms including Luthra and Luthra, K&S Partners and Inventure IP and academics including, <i>inter alia,</i> faculty from the Asian School of Business, Trivandrum, Indian Law Institute, Delhi, Tezpur University, Assam, National Law University, Delhi, NALSAR University of Law, Hyderabad, the Indian Institute of Technology, Madras and the National Law School of India University, Bangalore.</p>
<ul>
<li style="text-align: justify; "><b>If there were multiple meetings held for the same please provide all necessary documents including the minutes of all such meetings, records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders etc. for all such meetings held (sic).</b></li>
</ul>
<p style="text-align: justify; ">The Department answered, “No”; which I’m taking to mean that there weren’t other meetings held for the formulation of the Think Tank or the Policy. This is interesting, because the Minutes (referred to earlier) speak of another inter-ministerial meeting <i>including IP experts and legal practitioners</i> slated to be held around the 10<sup>th</sup> of October, 2014, to discuss the framework of the Policy.</p>
<ul style="text-align: justify; ">
<li><b>If a directive or directives were received by the Department of Industrial Policy and Promotion from any other government body to constitute such a think tank, please provide a copy of such a directive received by the DIPP from any Government authority, to constitute such a Think Tank (sic).</b></li>
</ul>
<p style="text-align: justify; ">The Department answered, “No”; which I’m taking to mean that there was no communication received by the Department to constitute this Think Tank.</p>
<ul style="text-align: justify; ">
<li><b>Please indicate in detail the process of shortlisting the members of the IPR Think Tank by the Department of Industrial Policy and Promotion or any other body that was responsible for the same (sic).</b></li>
</ul>
<p style="text-align: justify; ">The Department replied that the answer to this was the same as that to the first question.</p>
<h3 style="text-align: justify; ">The Second Response: The Drafting of the Policy</h3>
<p>The <a href="http://editors.cis-india.org/a2k/blogs/dipp-response-2.pdf/" class="external-link">second of the Department's responses</a> to our requests came in the form of separate responses to each of our four questions, as under:</p>
<ul>
<li><b>Please indicate in detail the process followed by the IPR Think Tank constituted by the Department of Industrial Policy and Promotion via Public Notice No. 10 (22)/2013-IPR-III dated November 13, 2014 while framing the first draft of the National IPR Policy dated Dec. 19, 2014 (sic).</b></li>
</ul>
<p style="text-align: justify; ">The Department stated that the IPR Think Tank conducted its meetings independently without any interference from the Department. The Department then stated that the Think Tank had received comments from stakeholders via a dedicated email id and <i>conducted the interactive meeting with stakeholders while framing the draft on the National IPR Policy.</i></p>
<ul>
<li style="text-align: justify; "><b>If there was a meeting held to decide on the same, please include all necessary documents including the minutes of the meeting, records, documents, memos, e-mails, opinion, advices, press releases, circulars, orders, suggestions etc. related to drafting of such National IPR Policy Think Tank chaired by Justice Prabha Sridevan (sic). </b></li>
</ul>
<p style="text-align: justify; ">The Department replied that since the IPR Think Tank had decided <i>its process by themselves</i> (sic), the Department<i> do not have the minutes of the meeting etc. conducted by the IPR Think Tank </i>(sic). It attached with its reply a copy of the press releases announcing the composition of the Think Tank and asking stakeholders to submit comments to the first draft of the Policy.</p>
<ul>
<li style="text-align: justify; "><b>If there were multiple meetings held for the same, please provide all necessary documents including the minutes of all such meetings, records, documents, memos, e-mails, opinions, advices, press releases, circulars, order suggestions etc. for all such meetings held (sic).</b></li>
</ul>
<p>The Department replied that the response to this was the same as that to the earlier question above.</p>
<ul>
<li style="text-align: justify; "><b>Please provide all the suggestions and comments received by the IPR Think Tank from stakeholders after the DIPP issued Public Notice No. 10/22/2013-IPR-III dated 13.11.2014 asking for suggestions and comments on or before November 30, 2014 (sic).</b></li>
</ul>
<p>The Department replied that the comments and suggestions were received by the Think Tank directly and that therefore, the Department was <i>not in a position to provide the same.</i></p>
<h3>The<i> </i>Third Response: Stakeholder Comments</h3>
<p>In its <a href="http://editors.cis-india.org/a2k/blogs/dipp-response-3.pdf" class="external-link">third and final response</a> to our requests, the DIPP replied to our query as under:</p>
<ul>
<li style="text-align: justify; "><b>Please indicate all the suggestions and comments received by the IPR Think Tank by different stakeholders on or before January 30, 2015 on its first draft of the National Intellectual Property Policy submitted by the IPR Think Tank on December 19, 2014.</b></li>
</ul>
<p>The Department said that <i>the suggestions and comments on the draft on National IPR Policy have been received by the IPR Think Tank directly. As such this Department is not in a position to provide the same (sic.).</i></p>
<h3>Observation on the DIPP's Responses</h3>
<p><i>Prima facie, </i>the responses by the Department are rather curious, leading to a range of oddities and unanswered questions.</p>
<h3>Who Will Watch the IPR Think Tank</h3>
<p style="text-align: justify; ">In its response to our first RTI request, the Department quite clearly stated that it decided the composition of the IPR Think Tank based on discussions in a meeting that it convened, which was also chaired by the Minister of State for Commerce and Industry, the parent ministry of the DIPP. In the same response, the Department also stated that it had not received any directive from any other ministry/government department directing the constitution of the IPR Think Tank, leading to the conclusion that this decision was taken by the DIPP/the Ministry of Commerce and Industry itself. Subsequently however, the Department justified its refusal to furnish us with documents leading to the development of the first draft of the National IPR Policy (contained in our second RTI request) by stating that the IPR Think Tank conducted its business without any interference from the Department, and that the Department did not have access to any of the submissions made to the IPR Think Tank or any of the internal minutes of the meetings etc. that were a part of the process of drafting the IPR Policy.</p>
<p style="text-align: justify; ">Various press releases by the DIPP have stated that it has constituted the IPR Think Tank, and that the purpose of the IPR Think Tank <a href="http://dipp.nic.in/English/acts_rules/Press_Release/ipr_PressRelease_24October2014.pdf">would be to advise the Department on IPR issues.</a> Visibly, the Department intends for the IPR Think Tank to play an active role in shaping India’s IP law and policy, including suggesting amendments to laws wherever necessary. It is concerning therefore that on the question of accountability of the IPR Think Tank, the DIPP remains silent. It may be argued perhaps, that the IPR Think Tank constitutes a ‘public authority’ under Section 2(h)(d) of the <a href="http://righttoinformation.gov.in/rti-act.pdf">Right to Information Act, 2005</a> (<b>“RTI Act”</b>). In that case, the IPR Think Tank would have to fulfill, <i>inter alia,</i> all of the obligations under Section 4 of the RTI Act as well as designate a Public Information Officer. Alternatively, given that the IPR Think Tank has been constituted by the DIPP and performs functions for the DIPP, the Public Information Officer of the DIPP would have to furnish <span>all</span> relevant information under the RTI Act (including the information that we sought in our requests, which was not provided to us).</p>
<h3 style="text-align: justify; ">Who are the Stakeholders</h3>
<p style="text-align: justify; ">Even a preliminary look at the list of participants at the Meeting (based on which the Department constituted the IPR Think Tank) reveals that not all stakeholders have been adequately represented. I haven’t been able to spot any representation from civil society and other organizations that might be interested in a more balanced intellectual property framework that is not rights-heavy. The following chart (based on a total sample size of 36 participants, as stated in the list of participants provided to us by the DIPP) will help put things in perspective.</p>
<table class="listing">
<tbody>
<tr>
<th><img src="http://editors.cis-india.org/home-images/Meeting.png" alt="Meeting" class="image-inline" title="Meeting" /></th>
</tr>
</tbody>
</table>
<h3 style="text-align: justify; ">What Could've Been Done?</h3>
<p style="text-align: justify; ">Setting aside arguments on its necessity, let us for the moment assume that this drafting of the National IPR Policy is an exercise that needed to have been undertaken. We must now examine what might possibly be the best way to go about this.</p>
<p style="text-align: justify; ">In 2014, the World Intellectual Property Organization (<b>“WIPO”</b>) (based on whose approach the Policy seems to have been based- at least in part), produced a detailed <a href="http://www.wipo.int/edocs/pubdocs/en/intproperty/958/wipo_pub_958_1.pdf">Methodology for the Development of National Intellectual Property Strategies</a>, outlining a detailed eight step process before a National IP Policy was implemented in a Member State. While this approach is one to be followed by the WIPO and might not be entirely suited to India’s drafting exercise, specific sections on the national consultation process as well as the drafting and implementation of national intellectual property strategies might prove to be a decent starting point.</p>
<p>(More on this in an upcoming article).d</p>
<h3>Where Do We Go From Here?</h3>
<p style="text-align: justify; ">The DIPP’s responses have left me with more questions, probably the subject of more RTI requests. Is the IPR Think Tank a public authority for the purposes of the Right to Information Act, 2005? To whom should questions of informational accountability of the IPR Think Tank be addressed, if there is no information available on the IPR Think Tank, and the DIPP claims to have no access to it? Do we need to re-examine the draft National IPR Policy given that there has been inadequate representation of all stakeholders? What were the suggestions made by different stakeholders, and (how) have these been reflected in the first draft of the Policy? Was there an evaluation exercise conducted before the first draft of the Policy was released in order to better inform the formulation of the Policy?</p>
<p style="text-align: justify; ">We will be looking at these and other questions as they arise, and sending some of these to the DIPP in the form of RTI requests. (Watch the blog for more).</p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/national-ipr-policy-series-rti-requests-by-cis-to-dipp-dipp-responses'>http://editors.cis-india.org/a2k/blogs/national-ipr-policy-series-rti-requests-by-cis-to-dipp-dipp-responses</a>
</p>
No publishernehaaAccess to KnowledgePervasive TechnologiesDIPPRTINational IPR PolicyAccountabilityFeaturedIPR Think TankHomepage2015-04-26T08:47:00ZBlog EntryConference on Standards Settings Organizations (SSO) and FRAND, NLSIU
http://editors.cis-india.org/a2k/blogs/conference-on-standards-settings-organizations-sso-and-frand-nlsiu
<b>Rohini Lakshané attended the Conference on Standards Settings Organizations (SSO) and FRAND held at NLSIU, Bengaluru on March 21 and 22, 2015. It was organised by the MHRD Chair on Intellectual Property Rights, Centre for Intellectual Property Rights and Advocacy (CIPRA), National Law School of India University, Bengaluru in association with Intel Technology India. This post is a compilation of notes from the conference.</b>
<p><a href="http://editors.cis-india.org/a2k/blogs/conference-on-standards-setting-organizations-frand-schedule" class="external-link">Programme Schedule </a></p>
<table class="grid listing">
<tbody>
<tr>
<th>Significant Takeaways</th>
</tr>
<tr>
<td style="text-align: justify; ">
<ul>
<li>It is anti-competitive to seek to exclude competitors from the market by seeking injunctions on the basis of SEPs, if the licensee is willing to take a license on FRAND terms.</li>
<li>In these circumstances, the seeking of injunctions can distort licensing negotiations and lead to unfair licensing terms, with a negative impact on consumer choice and prices. -- EU Competition Policy Brief, Issue 8, June 2014.</li>
<li>This is a very important issue for India as it thinks about how it can attract foreign investments. India has a unique opportunity to learn from these lessons from around the globe and craft India-specific solutions. India has the intellectual capability and the institutions capable of crafting these solutions, and in doing that we can support Make In India.</li>
<li>India needs to be mindful about what is happening in the [South Asian] region. China has moved aggressively to try to curb FRAND abuse. The People's Court in China ruled in Huawei vs. InterDigital that for 2G, 3G, and 4G patents, the license fees of royalties should not exceed 0.019% of the actual sale price.</li>
<li>Apple also stated that Ericsson was calculating royalties on the sale price of the iPhone or iPad, whereas the royalty should be calculated on the value of the baseband chip that runs this technology in the mobile device. If such litigation occurs in India, what would be India's position? If a building block contains the technology pertaining to a patent, then royalty should be calculated on the smallest possible patent practising unit and not the entire product.</li>
<li>The government of India has adopted a royalty free (RF) approach to licensing open standards.</li>
<li>Non-essential claims are excluded from disclosure. Pending patent applications are not.</li>
<li>Only 16% patents declared as SEPs are actually SEPs, according to a study.</li>
<li>The Delhi High Court has passed interim orders restraining the CCI from deciding these cases. Our appeal to the courts is that these patent infringement lawsuits should not be viewed in isolation. They should not be viewed as merely contractual issues between the licensor and the licensee. They should be seen in the context of their economic effects and their adverse effect on competition. The CCI should be enabled to deal with such cases.</li>
<li>Matheson: The phrase "compulsory license" sends a shiver down every corporate's spine every time it is used. International experience is that the judicial system has been the only forum where we have been able to have due process to enable us to construct cases properly in order to explain to the judge or to the jurors how the system works. That has produced very sensible solutions to this problem. Handing it off to the government to institute a compulsory license wouldn't be fair to the SEP holders.</li>
</ul>
</td>
</tr>
</tbody>
</table>
<hr />
<h3>SSOs and FRAND: Licensing issues</h3>
<h3></h3>
<h3>John Matheson, Director of Legal Policy (Asia Pacific), Intel</h3>
<p><b>The role of licensing policy</b></p>
<ul>
<li>Ensuring market access</li>
<li>Standards often depend on patented technology, which is accessed through the <i>Promise to License </i>on FRAND terms.</li>
<li>It is equally critical to ensure that standards can be implemented without unfair legal games.</li>
<li>It is essential to prevent patent hold-up.</li>
<li>Reasonable compensation</li>
</ul>
<p style="text-align: justify; ">Patent holders remain entitled to fair compensation and benefit from the proliferation of their technologies via standardisation.</p>
<p style="text-align: justify; "><b>Why FRAND?</b></p>
<p style="text-align: justify; ">A FRAND commitment embodies certain fundamental principles that have been recognised widely by the courts and regulators.</p>
<p style="text-align: justify; ">The fundamental purpose of a FRAND commitment is widespread adoption of the standard.</p>
<p style="text-align: justify; ">Because of the peculiar nature of SEPs, the process is open to abuse.</p>
<p style="text-align: justify; ">A FRAND commitment is aimed at preventing patent holders from exploiting a hold-up value and extracting unreasonable royalties and concessions that could otherwise follow from being in a very unique position. Often, the holders of the IP have a single solution to an interoperability or connectivity conundrum that technology is facing.</p>
<p style="text-align: justify; "><b>Why are SEP license negotiations different from Non-SEP ones?</b></p>
<p style="text-align: justify; ">In the context of non-SEPs, one may be negotiating to obtain a license to a patent for a particular feature. If the licensor is being difficult, one can discard the feature to include something else. In a competitive market, this negotiation is focused on the value of the invention to be licensed. Thus one can redesign to avoid a particular claim and, in turn, avoid injunction.</p>
<p style="text-align: justify; ">On the other hand, it is necessary to either obtain a license for or infringe an SEP to manufacture the mobile device. There is no workable alternative or workaround to obtaining a license for the desired technology. With the threat of an injunction looming over the negotiations, the prospective licensee is under pressure to obtain a license. So the market negotiations for SEPs and non-SEPs are very different. One-way negotiations raise the possibility of a patent hold-up, and abuse of the standard implementer.</p>
<p style="text-align: justify; ">IP policies inevitably involve compromise.</p>
<p style="text-align: justify; "><b>Common areas of misunderstanding include:</b></p>
<ul style="text-align: justify; ">
<li>
<p>Valuations or meaning of "reasonable". Valuations of IP under consideration.</p>
</li>
<li>
<p>Injunctive relief or exclusion orders</p>
</li>
<li>
<p>Discrimination or refusal to license</p>
</li>
<li>
<p>Patent transfer (It requires a continuation of the FRAND commitment, and shouldn't get differential treatment in the IP policy.)</p>
</li>
</ul>
<p style="text-align: justify; ">Competition authorities in the US and EU have asked SSOs to reconsider policies to reduce ambiguity in the context of these areas of misunderstanding.</p>
<p style="text-align: justify; ">The ex-ante or the incremental value of the SEPs before the standard is set needs to be understood. The SSOs look at several different ways to solve a connectivity problem. The patent owners bring their patents into the standards body and claim that theirs is the best way to solve that problem. The market and consumers want an uncomplicated solution which works and is as cheap as possible. In many cases, there is one single winner, simply because we need one solution. In exchange for being the winner, the FRAND discipline is quid pro quo.</p>
<p style="text-align: justify; ">European Commission's response to two different patent lawsuits:</p>
<p style="text-align: justify; ">In the Samsung and Motorola cases, the Commission clarifies that in the standardisation context where the SEP holders have committed to:</p>
<ol>
<li>License their SEPs</li>
<li>Do so on FRAND terms</li>
</ol>
<p class="callout" style="text-align: justify; ">It is anti-competitive to seek to exclude competitors from the market by seeking injunctions on the basis of SEPs, if the licensee is willing to take a license on FRAND terms.</p>
<p style="text-align: justify; ">In other words, if there is a bona fide commitment on the part of the licensee to agree to that test, then it is anti-competitive to seek an injunction.</p>
<p class="callout" style="text-align: justify; ">In these circumstances, the seeking of injunctions can distort licensing negotiations and lead to unfair licensing terms, with a negative impact on consumer choice and prices. -- EU Competition Policy Brief, Issue 8, June 2014.</p>
<p style="text-align: justify; ">Anyone who needs access to connectivity or needs interoperability requires to get a SEP license, and if that license is required to be obtained within a time limit, it almost -- by definition -- is not going to work. Patent licenses take years to negotiate, and they're incredibly complex. For example, a patent policy may offer up to 12 months to agree on a license, but that is not the way the market works. So we cannot expect policies that put forth time limits to work in the SEP arena. What we can expect is that the implementers make a bona fide commitment to seek a license.</p>
<p style="text-align: justify; "><b>Motorola vs. Microsoft, Germany:</b></p>
<p style="text-align: justify; ">Motorola sought injunctive relief against Microsoft in Germany. Microsoft moved its distribution centre from Germany to the Netherlands. This resulted in loss of jobs, relocation costs ($11.6 million), and annual increased operating costs of $5 million for Microsoft.</p>
<p style="text-align: justify; "><b>Samsung vs. Apple, Germany</b></p>
<p style="text-align: justify; ">Similarly, on the basis of one patent, a temporary injunction was granted on the sale of the Apple iPad and iPhone. Apple was forced to agree to terms it didn't want to agree to, so that the sale of its products would resume.</p>
<p class="callout" style="text-align: justify; ">This is a very important issue for India as it thinks about how it can attract foreign investments. India has a unique opportunity to learn from these lessons from around the globe and craft India-specific solutions. India has the intellectual capability and the institutions capable of crafting these solutions, and in doing that we can support Make In India.</p>
<p style="text-align: justify; ">SEP holders that make FRAND commitments should not be allowed to obtain injunctions against alleged infringers, except in limited circumstances. This formula has been adopted by the IEEE, which has solved this problem. India has the opportunity to leapfrog a lot of patent litigation by adopting the IEEE test.</p>
<p style="text-align: justify; ">Learn from what happened with Microsoft in Germany. What kind of message do you want to send to the foreign community about investing in India? Do you want to use the scare tactics of injunctions or do you want to adopt a policy that will avoid litigation?</p>
<p class="callout" style="text-align: justify; ">India needs to be mindful about what is happening in the [South Asian] region. China has moved aggressively to try to curb FRAND abuse. The People's Court in China ruled in <i>Huawei vs. InterDigital</i> that for 2G, 3G, and 4G patents, the license fees of royalties should not exceed 0.019% of the actual sale price.</p>
<p style="text-align: justify; "><b>Reasonable Compensation Considerations</b></p>
<ul>
<li>Royalty based on the smallest unit that practices the standard.</li>
<li>Technical value of patented technologies vs. alternatives.</li>
<li>Overall royalty that could reasonably charged for all SEPs.</li>
</ul>
<p style="text-align: justify; "><b>Non-discrimination</b></p>
<p style="text-align: justify; ">A commitment to license every implementer of the relevant standard.</p>
<p style="text-align: justify; "><b>Transfer</b></p>
<p style="text-align: justify; ">FRAND commitments follow the transfer of a patent to subsequent proprietors.</p>
<h3 style="text-align: justify; ">Dr. Krishna Sirohi, Impact Innovator, GISFI, President, I2TB</h3>
<p style="text-align: justify; ">As per the Make in India programme, we have to achieve zero imports by 2020. Product development in India by Indian companies will happen with collaborative research and development and IPR sharing through licenses. We are looking at national capacity building through product development and patent uses.</p>
<p style="text-align: justify; "><b>Global Information and Communication Technology Forum for India (GISFI)</b> is a standards setting body involved with standardisation and research. It is a telecommunications standards development body (TSDO) set up with the approval of the DoT. It has peer relationships with ITU, OMA, TTC and a bunch of other SDOs. Internet of Things (IoT), mobility and security are its three major research programmes.</p>
<p style="text-align: justify; ">GISFI is working towards defining 5G in India. The 5G standardisation theme in India is called WISDOM (Wireless Innovative System for Dynamic Operating Mega Communications). GISFI is considering the perspective of the Indian user, the network capability, the network architecture, network development and the Indian revenue model, strategic and special purpose networks, inclusive growth, and network security.</p>
<p style="text-align: justify; ">However, some India-specific aspects such as illiteracy and lack of basic civic infrastructure need to be considered in the standardisation process.</p>
<p style="text-align: justify; "><b>GISFI plans and stages for 5G definition and adoption</b></p>
<p style="text-align: justify; "><b>Stage 1 (2014-2018): </b> National agenda for strategic research, innovation and experimentation</p>
<p style="text-align: justify; ">Focus on Digital India and Make in India programmes.</p>
<p style="text-align: justify; "><b>Stage 2 (2016-2019): </b> Standardisation</p>
<p style="text-align: justify; "><b>Stage 3 (2017-2021): </b> Product Development</p>
<p style="text-align: justify; "><b>Stage 4 (2019-2023): </b> Early Development</p>
<p style="text-align: justify; "><b>Technical understanding required for IPR issues</b></p>
<ul style="text-align: justify; ">
<li>
<p>Enhancement applicable to general scenarios</p>
<ul>
<li>
<p>Traffic capacity</p>
</li>
<li>
<p>Cell coverage</p>
</li>
<li>
<p>Edge cell performance</p>
</li>
<li>
<p>Intercell interference</p>
</li>
<li>
<p>Network congestion</p>
</li>
<li>
<p>Mobility</p>
</li>
<li>
<p>Energy consumption</p>
</li>
</ul>
</li>
<li>
<p>Enhancements targeting new use cases</p>
<ul>
<li>
<p>machine-type communication</p>
</li>
<li>
<p>national security</p>
</li>
<li>
<p>public safety services</p>
</li>
</ul>
</li>
<li>
<p>Carrier aggregation</p>
<ul>
<li>
<p>Higher throughput owing to intra and inter-band transmission bandwidth of more than 20 MHz.</p>
</li>
<li>
<p>Reduced network congestion owing to load-balancing across multiple carriers.</p>
</li>
<li>
<p>Improvement in mobility and reduction in inter-cell interference.</p>
</li>
</ul>
</li>
<li>
<p>Enhanced MIMO</p>
<ul>
<li>
<p>Improved spatial diversity and multiplexing</p>
</li>
<li>
<p>Improved beam-forming</p>
</li>
<li>
<p>Multiple access with multi-antenna transmission</p>
</li>
</ul>
</li>
<li>
<p>Coordinated Multi-Point Operation (CoMP)</p>
<ul>
<li>
<p>Reduction in intercell interference owing to coordinated scheduling or beamforming (CS/CB)</p>
</li>
<li>
<p>Transmission from multiple distribution points (base stations, RRH) in a coordinated way (Dynamic point selection, and Joint transmission)</p>
</li>
</ul>
</li>
</ul>
<p style="text-align: justify; "><b>What do SSOs handle IPR in different parts of the world and what are the issues they face?</b></p>
<p style="text-align: justify; ">GISFI has adopted ITU's IPR policy.</p>
<p style="text-align: justify; ">In SSOs, the FRAND principle works well only when participating entities have equal or almost equal IPR clout, and can reciprocate with their own patents every time other entities share their patents. It is difficult to create a balance between entities that only own IPR and those that only consume IPR.</p>
<p style="text-align: justify; ">Most of the members of SSOs are IPR owners. The entities that develop [technological] solutions without owning the IPRs are usually not a part of SSOs. However, additional strategies need to be implemented for realising the "Make in India" goal. The goal of zero imports by 2020 can only be achieved if a large number of small companies use these standards to develop products locally. <b>So small manufacturers should be represented even at the highest levels of the standards development body. </b>An IPR policy should be defined/ modified to factor in these needs.</p>
<p style="text-align: justify; "><b>Evaluation of LTE essential patents declared by ETSI </b></p>
<p style="text-align: justify; ">Cyber Creative Institute, June 2013: <a href="http://www.cybersoken.com/research/pdf/lte03EN.pdf">http://www.cybersoken.com/research/pdf/lte03EN.pdf</a></p>
<p style="text-align: justify; ">A large number of LTE patents are held by a handful of companies. There is no Indian owner of any LTE SEP.</p>
<p>Ericsson sued Apple in the US over infringement of its LTE patents. As of January 2015, Apple countersued Ericsson in a federal court in California and claimed that it did not owe any royalties to the latter.</p>
<p class="callout">Apple also stated that Ericsson was calculating royalties on the sale price of the iPhone or iPad, whereas the royalty should be calculated on the value of the baseband chip that runs this technology in the mobile device. If such litigation occurs in India, what would be India's position? If a building block contains the technology pertaining to a patent, then royalty should be calculated on the smallest possible patent practising unit and not the entire product.</p>
<h3 style="text-align: justify; ">Dr. Kumar N. Shivarajan, CTO, Tejas Networks</h3>
<h3></h3>
<p style="text-align: justify; "><b>TSDSI's (Telecommunications Standards Development Society of India)</b> IPR policy states that a member's technology will become a part of a standard as long as the member licenses it on FRAND terms to other members.</p>
<ul>
<li>By 2017, 70% of the global equipment spend will be on LTE.</li>
<li>TD-LTE subscriber base in India has been projected to reach 67 million by 2017.</li>
<li>Most of the data connections in India are still on 2.5G.</li>
<li>Smartphones have become affordable but 3G continues to languish in India; 4G yet to take off.</li>
<li>The number of 3G connections in India grew from 30 million to 33 million from 2013 to 2014.</li>
</ul>
<h3 style="text-align: justify; ">Is 5G the answer to India's access problems?</h3>
<p style="text-align: justify; ">The mobile industry is aiming to go beyond traditional 4G LTE in 2015 and there is increasing focus on adding new bells and whistles to 4G and realise 4G+.</p>
<ul style="text-align: justify; ">
<li>
<p>LTE Licensed-assisted access (formerly LTE-Unlicensed)</p>
</li>
<li>
<p>LTE Direct/ Peer-to-peer</p>
</li>
<li>
<p>LTE-M for machine to machine communication</p>
</li>
<li>
<p>CoMP</p>
</li>
</ul>
<p style="text-align: justify; ">Countries forming 5G groups to take an early lead:</p>
<ul style="text-align: justify; ">
<li>
<p>China: IMT-2020 (5G) Promotion Group</p>
</li>
<li>
<p>Korea: 5G Forum</p>
</li>
<li>
<p>EU: 5G Public Private Partnership (5G-PPP)</p>
</li>
</ul>
<p style="text-align: justify; ">5G in its current form is souped-up 4G.</p>
<p style="text-align: justify; "><b>Key India-specific requirements for 5G standard development</b></p>
<ul style="text-align: justify; ">
<li>
<p>5G must factor in the Indian requirement for DSL-like connectivity: Always ON, low latency, affordable cost</p>
</li>
<li>
<p>To minimise costs, 5G must minimise the use of BTS sites and focus on spectral efficiency.</p>
</li>
<li>
<p>5G should allow virtual network operations enabling multiple operators to use the same physical network infrastructure.</p>
</li>
<li>
<p>5G must work well in Indian propagation environments: concrete buildings blocking signals, dense barriers.</p>
</li>
<li>
<p>5G infrastructure should be green as electricity shortfall is a problem. India has 400,000 cell towers. 10% of them are not connected to the electricity grid. More than 70% experience power outages longer than 8 hours per day, and work on diesel-powered generators. As a result, 25% of the operational costs of telcos are their energy bills. India imports 3 billion litres of diesel annually to run these cell sites.</p>
</li>
</ul>
<p style="text-align: justify; ">India can try to get a headstart in owning the IPR that would eventually go into the 5G standard.</p>
<h3 style="text-align: justify; ">Prof. Ramakrishna, MHRD Chair, NLSIU, Bengaluru</h3>
<p style="text-align: justify; ">The attitude of an SSO towards patented technology determines the objective of its IPR policy. For example, an SSO may want to:</p>
<ul style="text-align: justify; ">
<li>
<p>Promote widespread implementation of a standard without unnecessary IPR implications.</p>
</li>
<li>
<p>Ensure transparency and certainty about the declaration of patents and patents' claims as SEPs.</p>
</li>
<li>
<p>Ensure that every patented technology is available at a reasonable fee, comparable to the value of the technology.</p>
</li>
</ul>
<p style="text-align: justify; ">What happens when IP ownership is transferred to another owner? It continues to be a part of the SSO but things get complicated.</p>
<p style="text-align: justify; ">New owners, third parties, subsidiaries, and affiliates fall under the purview of the IPR policy, by extension.</p>
<p style="text-align: justify; "><b>IP and Disclosure policies of Indian SDOs</b></p>
<ul>
<li><b>BIS</b> (Bureau of Indian Standards) and <b>TEC </b>(Telecommunication Engineering Centre) do not have IP policies of their own. TEC refers to the ISO/IEC IP policies wherever the technology is equivalent or the same.</li>
<li><b>GISFI</b> disclosure requirement: Each member is required to inform GISFI in a timely manner of essential IPRs. But members are not under any obligation to conduct IP searches. GISFI's IPR policy is based on that of ETSI.</li>
<li><b>DOSTI </b> (Development Organization of Standards for Telecommunications in India) is not functional.</li>
</ul>
<p> </p>
<p style="text-align: justify; "><b>IPR policy for open standards in e-governance</b></p>
<p class="callout" style="text-align: justify; ">The government of India has adopted a royalty free (RF) approach to licensing open standards.</p>
<p style="text-align: justify; "><b>Mandatory Characteristics of Open Standards:</b></p>
<ul style="text-align: justify; ">
<li>
<p>The patent claims necessary to implement the standard should be made available royalty free for the lifetime of the standard.</p>
</li>
<li>
<p>The standard shall be adapted and maintained by a not-for-profit organisation.</p>
</li>
<li>
<p>The standard shall have a technology-neutral specification.</p>
</li>
</ul>
<p style="text-align: justify; ">The RF approach and the maintenance by a non-profit may be a disincentive for IP owners.</p>
<p style="text-align: justify; "><b>IEEE patent policy:</b></p>
<p style="text-align: justify; ">IEEE invites participants to disclose patent claims essential to a standard under development. Upon disclosure, the patent holder needs to submit a letter of assurance that states:</p>
<ul style="text-align: justify; ">
<li>
<p>License(s) will be made available without compensation or at a RAND rate.</p>
</li>
<li>
<p>A commitment to enforce the essential patent claims against any entity complying with the standard.</p>
</li>
<li>
<p>Or state its unwillingness or inability to license its essential patent claims.</p>
</li>
</ul>
<p style="text-align: justify; "><b>Common patent policy for ITU-T/ ITU-R/ ISO/ IEC</b></p>
<p style="text-align: justify; ">Recommendations/ deliverables are non-binding -- ensure compatibility of technologies and systems on a worldwide basis.</p>
<p style="text-align: justify; "><b>The "code of practice":</b></p>
<p style="text-align: justify; ">It is desirable that the fullest available information should be disclosed although ITU, ISO or IEC are unable to verify the validity of any such information.</p>
<p style="text-align: justify; "><b>Major types of IPR policies:</b></p>
<ul style="text-align: justify; ">
<li>
<p><b>Participation-based IPR policies</b></p>
</li>
<ul>
<li>
<p>These are common in small, informal bodies such as consortia.</p>
</li>
<li>
<p>Members are bound by the terms of membership to commit to licensing SEPs on RAND or RF terms.</p>
</li>
<li>
<p>SEP holders notify the standards body in case RAND or RF licenses are not available after the draft standard has been published.</p>
</li>
</ul>
</ul>
<ul style="text-align: justify; ">
<li>
<p><b>Commitment-based IPR policies</b></p>
<ul>
<li>
<p>These are commonly followed large, standards setting bodies.</p>
</li>
<li>
<p>These bodies identify SEPs to a draft standard through disclosure and submission of licensing commitment.</p>
</li>
<li>
<p>Parties may seek alternative solutions or work on a withdrawn standard is the the alternative solutions don't work out.</p>
</li>
</ul>
</li>
</ul>
<p style="text-align: justify; "><b>Basic building blocks of commitment-based IPR policies</b></p>
<p style="text-align: justify; "><b>Disclosure policies:</b></p>
<ul style="text-align: justify; ">
<li>
<p>Disclosure is important for</p>
<ul>
<li>
<p>sending requests to SEP holders to make licensing commitments</p>
</li>
<li>
<p>ensuring that experts' groups make informed decisions on inclusion of patented technologies</p>
</li>
<li>
<p>providing information to prospective standards implementers about the SEP owners</p>
</li>
</ul>
</li>
</ul>
<p style="text-align: justify; "><b>Two forms of disclosure:</b></p>
<ul style="text-align: justify; ">
<li>
<p>A call for patents is made at the start of meetings. This is more informational than binding.</p>
</li>
<li>
<p>Later, the member states its intentions regarding licensing the patent on RAND terms.</p>
</li>
</ul>
<p style="text-align: justify; "><b>How disclosure obligations arise (and commitments are binding):</b></p>
<ul style="text-align: justify; ">
<li>
<p>IEEE has by-laws that are binding on members.</p>
</li>
<li>
<p>ITU, IEC, and ISO: It is via a resolution or recommendation.</p>
</li>
</ul>
<p style="text-align: justify; ">(Indicative list)</p>
<p style="text-align: justify; "><b>General disclosure procedure:</b></p>
<p style="text-align: justify; ">The nature of disclosure rules concerning self-owned patents depends on the status or the role of the entity.</p>
<ul style="text-align: justify; ">
<li>
<p>A "submitter" is a participant in the working group making a conscious decision to submit its technology to the SSO for a license or free of royalty.</p>
</li>
<li>
<p>A participant in a working group may submit its technology to the SSO free of royalty, on RAND terms, on RAND terms with the right to charge a fee, or with a refusal to license it. (A working group participant who discloses technology is usually a technology expert. When someone who does not have adequate knowledge of patents discloses technology, it has complicated implications.)</p>
</li>
<li>
<p>A non-working group participant (third-party) may also submit its technology.</p>
</li>
</ul>
<p style="text-align: justify; ">ANSI has left it to the accredited SSO to decide the terms of disclosure for participants of working groups. It has not laid out a policy in this regard. Other organisations have laid out obligations on the submitter to disclose SEPs.</p>
<p style="text-align: justify; "><b>Nature of disclosure terms for patents owned by third-parties:</b></p>
<p style="text-align: justify; ">ETSI: It is obligatory.</p>
<p style="text-align: justify; ">ITU/ ISO: Obligatory only for participants of the working groups.</p>
<p style="text-align: justify; ">IEEE: Entirely voluntary</p>
<p class="callout" style="text-align: justify; ">Non-essential claims are excluded from disclosure. Pending patent applications are not.</p>
<p><b> </b></p>
<p style="text-align: justify; ">Working groups prefer early disclosure so that they may adopt or discard the claim as early as possible in the standard setting process.</p>
<p style="text-align: justify; ">ITU: Disclosure from the outset</p>
<p style="text-align: justify; ">IEEE: During meetings of the working group</p>
<p style="text-align: justify; ">ETSI: "Timely manner"</p>
<p style="text-align: justify; ">AFSI: At a sufficiently mature level</p>
<p style="text-align: justify; ">There is no mandate for updating the disclosure in case a standard evolves.</p>
<p style="text-align: justify; ">Most SSOs make disclosed patents public. Failure to disclose patents may result in accusations of abuse of monopoly or anti-trust/ anti-competitive activities.</p>
<p style="text-align: justify; ">It is difficult to identify all potentially essential patents due to the complexity of specifications.</p>
<p style="text-align: justify; ">Some SSOs don't require IP disclosure at all. The obligations to license on FRAND terms would be sufficient.</p>
<p class="callout" style="text-align: justify; ">Only 16% patents declared as SEPs are actually SEPs, according to a study.</p>
<p>It makes sense for rightsholders to go for blanket disclosures instead of disclosure of specific patents.</p>
<h3 style="text-align: justify; "><a name="docs-internal-guid-5f495392-d5b5-aaaf-afc5-9ebade8e118f"></a> Vinod Dhall, ex-chairperson of the Competition Commission of India (CCI):</h3>
<p style="text-align: justify; ">Our competition law is new, so there aren't any cases pertaining to patent litigation and involving the competition law, which we can treat as precedents. In one of the mobile phone patent litigation cases in India, the implementer has approached the CCI claiming that the licensor has been abusing its dominant position in the market by charging unreasonable royalties.</p>
<p class="callout" style="text-align: justify; ">The Delhi High Court has passed interim orders restraining the CCI from deciding these cases. Our appeal to the courts is that these patent infringement lawsuits should not be viewed in isolation. They should not be viewed as merely contractual issues between the licensor and the licensee. They should be seen in the context of their economic effects and their adverse effect on competition. The CCI should be enabled to deal with such cases.</p>
<h3>Questions-answers round:<b> </b></h3>
<p><b>What are the criteria for declaring a patent an SEP?</b></p>
<ol style="text-align: justify; "> <b> </b></ol>
<p><b> </b></p>
<p style="text-align: justify; "><b>T. Ramakrishnan: </b> SSOs have no role in declaring that a patent is an SEP. The SEP holder declares that their patent is essential to a technical standard. Most of the time, the SEP may turn out to be a non-SEP at a later stage. Statistically, 16 out 100 claimed SEPs are actually SEPs. There is no way for SSOs to tell if a patent is an SEP. IP policies of most SSOs state that they don't search [if a patent is an SEP]. The members of SSOs are under no obligation to search.</p>
<p style="text-align: justify; ">The commitment to license an SEP on FRAND terms is more important to an SSO [than determining if the patent is indeed an SEP].</p>
<ol style="text-align: justify; "> </ol>
<p><b>Can compulsory licensing be implemented with government intervention in India so that the Central Government can fix a royalty and put an end to patent litigation?</b></p>
<ol style="text-align: justify; "> </ol>
<p class="callout" style="text-align: justify; "><b>Matheson: </b> The phrase "compulsory license" sends a shiver down every corporate's spine every time it is used. International experience is that the judicial system has been the only forum where we have been able to have due process to enable us to construct cases properly in order to explain to the judge or to the jurors how the system works. That has produced very sensible solutions to this problem. Handing it off to the government to institute a compulsory license wouldn't be fair to the SEP holders.</p>
<p style="text-align: justify; "><b>With respect to the "safe harbour" approach towards SEP-based injunctions, what does the licensee need to do to prove to the courts that it is a willing licensee, in the event that licensing negotiations fail or take a long time?</b></p>
<ol style="text-align: justify; "> </ol>
<p style="text-align: justify; "><b>Matheson: </b> It gets down to the licensee showing its willingness to negotiate. The licensee cannot make a half-hearted attempt and decline to negotiate or decline the licensor's offer and then disappear. They should physically engage in the negotiation. If and when it gets to a judicial environment, the judges know when people are telling stories and when parties are bona fide. They can tell a ruse when they see one, and I think it is one of the things you observe in practice.</p>
<p style="text-align: justify; "><b>Ramakrishnan: </b> The licensee should be able to demonstrate that it is willing to pay the royalty and should deposit an amount towards royalty. One recommendation from AIPP states that instead of using the terms "willing licensee" and "willing licensor", use "good faith response". For "good faith" we have very well established criteria. The entire licensing process should end within 12 months of starting. If the negotiations fail or if the process takes longer, then they should agree upon an arbitrator to fix FRAND terms. These are indicators that demonstrate the licensee being a "willing licensee" or a "good faith" licensee.</p>
<p style="text-align: justify; "><b>Often technology changes before the legal action can be taken or the lawsuit completed, and the patent over which litigation has happened may no longer be relevant to the technology. How do patent holders deal with this situation?</b></p>
<p style="text-align: justify; "><b>S.K. </b> <b>Murthy, </b> <b>Research Scholar, </b> <b>NLSIU:</b> Even if the technology becomes obsolete, damages can be claimed retrospectively.</p>
<p style="text-align: justify; "><b>Matheson: </b> You have a commitment to a FRAND solution, so that when you enter the protracted negotiation, you know that at the end of it you will get a fair solution. That's not always the case when you are dealing outside the FRAND world. You're dealing with a FRAND incumbent, not with unlicensed patents.</p>
<p style="text-align: justify; "><b>Why is putting a time limit to negotiations not a good idea? Also, IEEE seems to have done well by taking the threat of negotiations out of its way. Is it practical in India, because injunction is still the most potent weapon to protect intellectual property rights in India currently?</b></p>
<p style="text-align: justify; "><b>Matheson:</b> Licensing is incredibly complex. There can be claims to the validity of the patent, there are claim charts to be drawn, there is expert evidence to be put together. Litigation over patents can take 2 to 3 years. To say that there must be a solution [arrived at] within a smaller framework gives the licensor the opportunity to wait around till the end of that period and assert its patents through an injunction. If you're leaving injunction at the table, you will not have a fair solution. The licensee will always be at a major disadvantage. The IEEE solution is a good one because it has taken the time limit away, but at the same time the policies that would adopt that solution need to include the discipline to ensure that the negotiations are bona fide.</p>
<p style="text-align: justify; "><b>What percentage of the sale price should be provisioned by a product developer for royalties? Can a mechanism be drawn up for this purpose?</b></p>
<p style="text-align: justify; "><b>Justice Ratnakala: </b> Definitely. Such a mechanism should be drawn up in the near future.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/conference-on-standards-settings-organizations-sso-and-frand-nlsiu'>http://editors.cis-india.org/a2k/blogs/conference-on-standards-settings-organizations-sso-and-frand-nlsiu</a>
</p>
No publisherrohiniIntellectual Property RightsAccess to KnowledgePervasive Technologies2016-04-02T18:12:41ZBlog EntryCompilation of Mobile Phone Patent Litigation Cases in India
http://editors.cis-india.org/a2k/blogs/compilation-of-mobile-phone-patent-litigation-cases-in-india
<b>This working paper is an attempt to chronicle information about big-ticket lawsuits pertaining to mobile technology patents filed in India. All information presented in this paper has been gathered from publicly available sources. Interns Nayana Dasgupta, Sampada Nayak and Suchisubhra Sarkar (in alphabetical order) provided invaluable research assistance.
This paper was first published as a blog post on the CIS website on March 15, 2015. It was periodically updated till October 31, 2017 to reflect new developments in the different lawsuits at the Delhi High Court and the cases with the Competition Commission of India.</b>
<h3 style="text-align: justify; ">Abstract</h3>
<p style="text-align: justify; ">Nearly three years after litigation over patents and designs associated with big-ticket mobile technology started in the US, the first salvo in the patent wars was fired in India. Sweden-based Ericsson, a provider of communications infrastructure and services, sued home-grown budget smartphone manufacturer Micromax in early 2013. Patent litigation in the arena of mobile phone technology has steadily risen since. Lei Jun, the chairman of China's largest smartphone manufacturer Xiaomi has said that facing a patent lawsuit "can be considered a rite of passage for a company that is coming of age". This paper is an attempt to chronicle lawsuits pertaining to mobile technology patents filed in India. The first part of this paper, “Compilation of lawsuits” is an attempt to chronicle the significant developments in big-ticket lawsuits pertaining to mobile technology patents filed in India. The second part, “Commonalities and differences in the lawsuits” is an attempt to join the dots between the developments that were either remarkably common or notably different. All information presented in this paper has been gathered from publicly available sources and is up-to-date till the time of writing (October 31, 2017). This paper has been published as a part of the Pervasive Technologies project at the Centre for Internet and Society (CIS).</p>
<h3><a class="external-link" href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3120364"><b>View paper on SSRN.</b></a></h3>
<p> </p>
<p><a href="http://editors.cis-india.org/a2k/blogs/court-orders-mobile-phone-patents.rar/view" class="external-link">Access</a> the court orders and other references in the paper.</p>
<hr style="text-align: justify; " />
<p style="text-align: justify; "> </p>
<h3>Edit logs</h3>
<p style="text-align: justify; "><b>Edited, April 2, 2015: </b>To add section "6. Vringo vs. ZTE"</p>
<p style="text-align: justify; "><b>Edited, April 3, 2015: </b>To add section "7. Vringo vs. Asus"</p>
<p style="text-align: justify; "><b>Edited, October 23, 2015:</b> To add sections "8. Ericsson vs. iBall", "9. Ericsson vs. Competition Commission of India", "10. Ericsson vs. Lava". To update "Ericsson vs. Micromax" from <i>“Micromax has challenged……”</i></p>
<p style="text-align: justify; "><b>Edited, April 15, 2016</b><i>: </i>To update "9. Ericsson vs Competition Commission of India... In a judgement dated March 30, 2016, the court dismissed all the writ petitions and applications pertaining to the role of the CCI before it and made these observations..."; "8. Ericsson vs iBall"; "10. Ericsson vs. Lava"; and "6. Vringo vs. ZTE".</p>
<p style="text-align: justify; "><b>Edited, April 29, 2016: </b>To update "Ericsson vs. Xiaomi...On April 22, 2016, the Delhi High Court vacated the interim order passed in December 2014..."</p>
<p style="text-align: justify; "><b>Edited, January 13, 2017: </b>To update "Ericsson vs. Gionee... In July 2014..."</p>
<p style="text-align: justify; "><b>Edited, February 8, 2018: </b>To upload copy of working paper.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/compilation-of-mobile-phone-patent-litigation-cases-in-india'>http://editors.cis-india.org/a2k/blogs/compilation-of-mobile-phone-patent-litigation-cases-in-india</a>
</p>
No publisherrohiniAccess to KnowledgePervasive Technologies2018-02-08T14:41:17ZBlog EntryOpen Letter to Prime Minister Modi
http://editors.cis-india.org/a2k/blogs/open-letter-to-prime-minister-modi
<b>After the government introduced the "Make in India" and "Digital India" programmes, the air is thick with the promise of reduced imports, new jobs, and goods for the domestic market. In light of the patent wars in India, the government can ill-afford to overlook the patent implications in indigenously manufactured mobile phones. CIS proposes that the Government of India initiate the formation of a patent pool of critical mobile technologies and a five percent compulsory license. </b>
<p dir="ltr" id="docs-internal-guid-741ac7e2-c01d-c02c-db3c-4cf2f2fdf6fc" style="text-align: justify; ">The blog post was <a class="external-link" href="http://www.medianama.com/2015/03/223-digital-india-make-in-india-form-a-patent-pool-of-critical-mobile-technologies-cis-india/">re-published by Medianama</a> on March 24, 2015.</p>
<hr />
<p dir="ltr" style="text-align: justify; ">Honourable Prime Minister Shri Narendra Modi,</p>
<p dir="ltr" style="text-align: justify; ">We at the Centre for Internet and Society support the "<a class="external-link" href="http://www.makeinindia.com/">Make in India</a>" and "<a class="external-link" href="http://deity.gov.in/sites/upload_files/dit/files/Digital%20India.pdf">Digital India</a>" initiatives of the Indian government and share your <a class="external-link" href="https://www.youtube.com/watch?v=w8QLIuABSYk/">vision of a digitally empowered India</a> where “1.2 billion connected Indians drive innovation”, where “access to information knows no barriers”, and where knowledge is the citizens’ power. The government’s plan of incentivising the manufacturing of electronics hardware, including that of mobile phones in the 2015 Union Budget is equally encouraging. Towards this important goal of nation building, the Centre for Internet and Society is researching the patent and copyright implications of Internet-enabled mobile devices that are sold in the Indian market for Rs 6,000 or less.</p>
<p dir="ltr" style="text-align: justify; ">Bolstered by Make in India, several mobile phone manufacturers have started or ramped up their manufacturing facilities in India. Homegrown brands — such as <a href="http://articles.economictimes.indiatimes.com/2015-01-28/news/58546839_1_digital-india-spice-group-indian-cellular-association">Spice</a>, <a href="http://articles.economictimes.indiatimes.com/2015-02-04/news/58795672_1_devices-haridwar-april-2015">Maxx Mobile and Lava</a> — and foreign manufacturers alike are making humongous investments in mobile phone plants. Chip manufacturer <a href="http://www.mediatek.com/en/news-events/mediatek-news/mediatek-launches-rd-center-in-bengaluru/">Mediatek</a>; one of the newest entrants in the Indian smartphone market, <a href="http://timesofindia.indiatimes.com/tech/tech-news/Xiaomi-to-set-up-research-development-centre-in-India/articleshow/46043461.cms">Xiaomi</a>; and telecom company Huawei, all different links in the mobile phone manufacturing chain, are setting up research and development units in India having recognised its potential as a significant market. These developments promise to cut or substitute imports, cater to the domestic market, create millions of jobs, and stem the outflow of money from India.</p>
<p style="text-align: justify; ">However, mobile phone manufacturers, big and small, have also been embroiled in litigation in India for the past few years over patents pertaining to crucial technologies. Micromax, one of the several Indian mobile phone manufacturers with original equipment manufacturers in China <a class="external-link" href="http://delhihighcourt.nic.in/dhcqrydisp_o.asp?pn=57850&yr=2013">was ordered by the Delhi High Court late last year to pay a substantial 1.25 to 2 per cent of the selling price of its devices to Ericsson</a>, which has claimed infringement of eight of its standard essential patents. <a class="external-link" href="http://www.medianama.com/2014/04/223-ericsson-sues-intex-patents/">Intex </a>and Lava, two members of Micromax’s ilk, have been similarly sued and claim to have received the short end of the stick in the form of unreasonable and exorbitant compensations and royalty rates. Chinese budget phone manufacturers operating in India — Xiaomi, OnePlus, and Gionee — also have come under the sledgehammer of sudden suspension of the sale of their devices. The bigger companies such as Asus, Samsung and ZTE have faced the heat of patent litigation as well.</p>
<p dir="ltr" style="text-align: justify; ">The fear of litigation over patent infringement could thwart local innovation. Additionally, the expenses incurred due to litigation and compensation could lead to the smaller manufacturers shutting shop or passing on their losses to their consumers, and in turn, driving the price points of Internet-enabled mobile devices out of the reach of many. It could also become a stumbling block to the success of ambitious plans of the government, such as the one to provide free <a href="http://www.firstpost.com/business/modis-big-bang-digital-india-plan-2500-cities-to-get-free-4g-level-wifi-2060449.html">WiFi in 2,500 cities and towns</a> across India.</p>
<p dir="ltr" style="text-align: justify; "><b>We propose that the Government of India initiate the formation of a patent pool of critical mobile technologies and mandate a five percent compulsory license. </b>Such a pool would possibly avert patent disputes by ensuring that the owners' rights are not infringed on, that budget manufacturers are not put out of business owing to patent feuds, and that consumers continue to get access to inexpensive mobile devices. Several countries including the United States regularly issue compulsory licenses on patents in the pharmaceutical, medical, defence, software, and engineering domains for reasons of public policy, or to thwart or correct anti-competitive practices.<a href="#fn1" name="fr1">[1] </a> <a href="#fn2" name="fr2">[2] </a> Unfortunately, we did not receive a response <a href="http://editors.cis-india.org/a2k/blogs/letter-for-establishment-of-patent-pool-for-low-cost-access-devices" class="internal-link" title="Letter for Establishment of Patent Pool for Low-cost Access Devices through Compulsory Licenses">from the previous government to our suggestion</a> of establishing such a patent pool. We believe that our proposal falls in line with your ambitious programmes designed to work towards your vision of India, and we hope that you would consider it.</p>
<p dir="ltr" style="text-align: justify; ">Yours truly,<br />Rohini Lakshané,<br />Programme Officer,<br />The Centre for Internet and Society</p>
<p style="text-align: justify; ">Copies to:</p>
<ol>
<li>Shri Arun Jaitley, Minister for Finance</li>
<li>Shri Rajiv Mehrishi, Secretary to Ministry of Finance</li>
<li>Smt. Smriti Zubin Irani, Minister for Human Resource Development</li>
<li>Shri Satyanarayan Mohanty, Secretary to Ministry of Human Resources Development</li>
<li>Smt. Nirmala Sitharaman, Minister for Commerce and Industry</li>
<li>Shri Amitabh Kant, Secretary to Department of Industrial Policy and Promotion</li>
<li>Shri Ravi Shankar Prasad, Minister for Communication and Information Technology</li>
<li>Shri Rakesh Garg, Secretary to Department of Telecommunications</li>
<li>Shri R. S. Sharma, Secretary for Department of Electronics and Information Technology</li>
</ol>
<p> </p>
<p>Also read: <a class="external-link" href="http://cis-india.org/a2k/blogs/faq-cis-proposal-for-compulsory-licensing-of-critical-mobile-technologies">FAQ: CIS' Proposal for Compulsory Licensing of Critical Mobile Technologies </a></p>
<hr />
<p style="text-align: justify; ">[<a href="#fr1" name="fn1">1</a>]. <span id="docs-internal-guid-58b7fb82-db2b-7be3-83cf-b5045255b88c">James Love, Knowledge Ecology International (KEI) written comments and notice of intent to testify at the Special 301 Public Hearing, Page 6, "US use of compulsory licensing",<a class="moz-txt-link-freetext" href="http://keionline.org/sites/default/files/KEI_2014_Special301_7Feb20014_FRComments.pdf">http://keionline.org/sites/default/files/KEI_2014_Special301_7Feb20014_FRComments.pdf</a>, February 7, 2014, Last accessed February 10, 2015.</span></p>
<p style="text-align: justify; ">[<a href="#fr2" name="fn2">2</a>]. <span id="docs-internal-guid-58b7fb82-db2b-7be3-83cf-b5045255b88c">Colleen Chien, Cheap Drugs at What Price to Innovation, Does the Compulsory Licensing of Pharmaceuticals Hurt Innovation, Berkeley Technology Law Journal, Volume 18, Issue 3, Article 3, Page 862, "Compulsory licensing in the United States", <a class="moz-txt-link-freetext" href="http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1429&context=btlj">http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1429&context=btlj</a>, June 2003, Last accessed February 10, 2015.</span></p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/open-letter-to-prime-minister-modi'>http://editors.cis-india.org/a2k/blogs/open-letter-to-prime-minister-modi</a>
</p>
No publisherrohiniFeaturedHomepageAccess to KnowledgePervasive Technologies2016-02-14T04:39:01ZBlog EntryBeyond Alcohol and Angel Investors: Building Business Models in an Age of Mobile Music Streaming (Conference Learnings)
http://editors.cis-india.org/a2k/blogs/beyond-alcohol-and-angel-investors
<b>This blog post is the first of a series of blogs to document, synthesize, and analyze learnings from attending various music industry trade conferences. This first post introduces the research question, and highlights learnings about the various business models which can be accessible via the mobile, and broadly how the music industry is attempting to respond to monetization challenges.
</b>
<div>
<div><strong>Introduction</strong></div>
<div> </div>
<div>The Pervasive Technologies: Access to Knowledge in the Marketplace project is conducting research on access to the mobile phone hardware, software, and content in the context of the intellectual property regimes in India and China. This chapter focuses on access to music content via the mobile phone in India with a particular focus on copyright law.</div>
<div> </div>
<div>Following preliminary research, it was identified that the copyright organizing institutions in India lacked legitimacy amongst stakeholders within the music industry. For the purposes of this research, these institutions include the Copyright Act, the Copyright Board, and the copyright societies. Collectively, these institutions have received constitutionality petitions, corruption allegations, and critiques of overall ineffectiveness in regulating and balancing music copyright for the maximal benefit to society. This is of particular importance in light of new modes of digital music distribution technologies (such as mobile phones, and music streaming platforms) which have resulted in a tremendous increase in music consumption but simultaneous decrease in revenue. This is in part due to new business models for music streaming services, and the increasing complexity of music copyright and licensing management in the digital content industries.</div>
<div> </div>
<div>1) How have evolving music distribution technologies accessible via the mobile phone impacted business models and licensing practices amongst stakeholders in the digital music industry?</div>
<div> </div>
<div>2) What are the specific copyright challenges for each stakeholder in the digital music distribution chain? How can the copyright institutions provide for a more effective regulation and regulation of music in India?</div>
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<div>The research methodology<a href="#sdfootnote1sym">1</a> includes a series of expert interviews whose participants were identified by attending the following key music industry trade conferences in India, and remotely attending in the relevant conferences abroad:</div>
<div> </div>
<div>1) 6th MixRadio Music Connects Conference in Mumbai ("MRMC")<a href="#sdfootnote2sym">2</a></div>
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<div>2) The Exchange UK Conference ("Exchange")</div>
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<div>3) Indiearth Independent Music, Film, and Media Xchange Conference ("Indiearth XChange")</div>
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<div>4) Future of Music Coalition Policy Summit (remote attendance) ("FMC")<a href="#sdfootnote3sym">3</a></div>
<strong> </strong>
<div> </div>
<div>5) San Francisco Music Tech Summit (remote attendance) ("SFMT")<a href="#sdfootnote4sym">4</a></div>
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<div>This first post will highlight learnings from the above conferences<a href="#sdfootnote5sym">5</a>, primarily to respond to the question: <strong>What business models for digital music distribution exist in the market today</strong>? <strong>How is music production financed today? </strong>The question of how each industry stakeholder is responding to monetization challenges will also be explored. The main findings documented are mainly sourced from the MRMC and IndiEarth Xchange conferences due to their focus on India and its unique, context-specific challenges.</div>
<div> </div>
</div>
<p style="text-align: justify;"> </p>
<blockquote style="text-align: justify;" class="quoted">"<em><strong>India should stop chasing and build business models. We are already ahead... </strong> <strong>being a mobile-first market...</strong> <strong> now must lead </strong> <strong>by learning from our rich cousins - the film and television industry.</strong> <strong>" - </strong> <strong>Sridhar Subramaniam, CEO, Sony Music India<a name="sdfootnote6anc" href="#sdfootnote6sym"><sup>6</sup></a> </strong> </em></blockquote>
<p style="text-align: justify;"> </p>
<div>
<div>
<div>Business models and monetization seemed to be the key buzz words at the 6th annual MixRadio Music Conference held in Mumbai, with industry veteran <strong>Sridhar Subramaniam,</strong> CEO Of Sony Music India giving the opening keynote speech <strong>'How the Industry Stands Today?</strong><em>'</em>. Despite <strong>Vijay Lazarus</strong>, Secretary of the Indian Music Industry preceding the keynote with a welcome speech warning of piracy as the biggest barrier to monetization. Subramaniam seemed much more optimistic, declaring 2016 as the 'year of music' despite a 10% decline in the former year due to decreased subscription in c first aller ring-back tunes <a href="#sdfootnote7sym">7</a>. This was in part due to his belief that India was ahead of the game -- being a mobile-market amidst a global trend of mobile music convergence through streaming-based music consumption. Given India's increasing preference for music access in this form, Subramaniam suggested India "stop chasing and build business models" via learning from the music industry's two rich cousins -- the television and film industry.</div>
<div> </div>
<div>Subramaniam outlined a strategic plan for growing the 200 million dollar music industry up to a billion in 5 years. He explained how the music industry is positioned where the TV industry was 5 years ago - giving content away for free via ad-supported revenues. This is due to the popular "freemium" business model for music streaming, which allows users to listen to music for "free" (data-consuming, supported by advertisements), with an option to upgrade to a paid tier.</div>
<div> </div>
<div>Given recently overlapping ecosystems - standalone music services, device-embedded music services, and operator-supported music services - the question was whether there was enough advertising based revenue to sustain this cluttered industry. In three years, Subramaniam predicted moving from predominantly pirate-consumed music, to ad-supported to a consumer-paid revenue model.</div>
<div> </div>
<div>This transition would be done via learning from the film industry through a technique called <em><strong>windowing.</strong></em> This is when the same content is released through multiple windows - for film, this is done first in a theatre, then via home video, then television, then broadcast TV. For the music industry, monetization could occur via exclusives, recommendations, personalization, quality, or regional restrictions; holding some kind of premium content behind a paid wall. This strategy according to Subramaniam's estimates could reach the billion dollar mark in 3 years with the goal of transitioning the 200 million pirated market, to 75 million ad supported, to 25 million subscribers.</div>
</div>
</div>
<p style="text-align: justify;"> </p>
<blockquote style="text-align: justify;" class="quoted">" <em> <strong> For the first time we have access [to music] from not just one, two, but three ecosystems - standalone music services, device embedded music services, and operator-supported music services." - Sridhar Subramaniam </strong> </em></blockquote>
<div>
<div>
<div>Following the forward thinking strategy for future business models, the rest of MRMC's panels brought the conversation back to current services and ecosystems of standalone, device-embedded, and operator-supported music services. This increasingly crowded space, along with new international entrants makes the mapping of upcoming services extremely difficult. Nevertheless, the diversity of these services were attempted to be represented at MRMC, with "standalones" like streaming services <strong>Gaana, Hungama </strong>Australian-based <strong>Guvera, </strong>and <strong>RDIO </strong>(which acquired former Indian service Dhingana), along with download stores like Indian-based independent platforms <strong>OKListen, Songdew, </strong>and <strong>Insync. </strong>"Device-embedded" services were represented by<strong> Samsung </strong>with its MilkMusic service, and formerly Microsoft/Nokia owned <strong>MixRadio </strong>(which has been recently acquired by LINE messaging app<a href="#sdfootnote8sym">8</a>). Lastly, "operator supported" platforms was represented by <strong>Bharti Airtel </strong>who introduced their new <strong>Wynk </strong>app, only fully accessible for Airtel telecom subscribers. Multinational content aggregator<strong> Believe Digital </strong>also was present, providing insight on how the back-end aggregation of content works. A question from the audience inquiring about how to get ones' music onto the various platforms revealed content aggregators' main value -- providing smaller labels and independent artists the ability to ensure their content is distributed widely across multiple platforms. </div>
<div> </div>
<div>Although the MRMC panel <strong>Streaming: Gathering Momentum</strong> hosted a variety of different streaming services, it seemed that there is increasingly less differentiation. Services like user-tracking playlist curation and recommendation, social media-inspired tagging, mood-based suggestions, friend-based recommendations, temporary offline downloads, and more were all being adopted in various forms. Business models of initial free-to-use/access with premium pricing for ad removal and full-on downloads were also becoming a standard across platforms. Some services prioritized specific stakeholders, like <strong>Guvera </strong>who described their advertiser/brand focused approach through brand play-list curation to target to certain music users.</div>
<div><strong><br /></strong></div>
<div>The <strong>Global Music and Mobile</strong><strong> </strong>panel at the <strong>San Francisco Music Tech Summit ("SFMT")</strong> highlighted challenges for music applications, with <strong>Kathleen McMahon, </strong>Vice-President at <strong>SoundHound</strong> noting the challenge of merely staying relevant in the app store, in part due to the decreasing differentiation with other services. In the streaming ecosystem, a variety of music consumption options are increasingly available through a singular platform (i.e. Hungama enabling on line streaming, download of songs, and purchase of ring-tunes). Given the principle product - the music itself - is the same, the differentiator is marked in part by the user interface, and perhaps more significantly, by price differentiation. </div>
<div> </div>
<div>Panelists also spoke of interesting licensing challenges, one being the complexity of differing rates between web-streaming verses mobile streaming, wifi-data transfer, verses 3G access. This copyright challenge was also exemplified when a panelist lamented on the challenges of licensing in various geographic territories, asking "<strong>Should I be able to listen to my Spotify subscription wherever I go? Is this not possible purely because of rights and not technology? Do borders even make sense anymore?" </strong>These specific challenges will be discussed in an upcoming post highlighting copyright and licensing challenges, but it is worth mentioning here as a barrier to potential technological innovation and ultimately success and survival of these platforms. </div>
</div>
</div>
<blockquote style="text-align: justify;" class="quoted">" <em> <strong> [MCNs are] the new age record label...except far more equitable and less exploitative." - Samir Bhanghra, Managing Director and Co-Founder, Qyuki <a name="sdfootnote9anc" href="#sdfootnote9sym"><sup>9</sup></a> </strong> </em></blockquote>
<p style="text-align: justify;"> </p>
<div>
<div>Despite the increasing competition and services, one particular streaming platform which need not be concerned is the audio-video streaming service <strong>YouTube</strong>, which has a reach of 1 billion consumers, averaging to a viewership of 450billion mins per month <a href="#sdfootnote10sym">10</a>. Framed as the new broadcast company for user-uploaded content, this viewership directly translates into advertising revenue for the platform, with brands sponsoring specific content creators ("YouTubers") themselves. An interesting new stakeholder which is in part facilitating this phenomena are multi-channel networks ("MCNs"), who was represented in the MRMC <strong>Indian MCNs</strong> panel by MCNs <strong>Qyuki, Digital Quotient, Ping Network</strong> and YouTubers <strong>All India Bakchod.</strong> The MCNs described their business model as a relationship-service, which acts as an aggregator and optimizer of various YouTube channels. With back-end analytics and advertising strategies, MCNs aim to optimize monetization opportunities by focusing on maximizing CPM (clicks per impression) and identifying brand sponsors. Despite the seemingly disruptive service, <strong>Tammay Bhat </strong>of<strong> All India Bakchod</strong> was skeptical about the need for such service, asking<strong> "How will an MCN actually help me get more money and sustain? As a creator, brands are coming directly. They are so accessible and it's not that difficult. Perhaps it could help smaller creators but..."</strong></div>
<div> </div>
<div>Smaller creators and independent artists was definitely one of the target clientele for Qyuki. <strong>Samir Bhangra</strong>, co-founder of MCN Qyuki's held workshop <strong><em>They Say You Can Monetize Content Digitally - Really?</em></strong> at the IndiEarth Xchange ("the Xchange") independent music film, and media trade conference. He appealed to the independent artists by illustrating the potential reach of the one billion YouTube viewers, and explained some useful back-end analytics which can allow for more strategic and effective monetization. According to Bhangra, the CPM in India is about 1Rs per view, with the possibility of doubling or tripling this if viewed in the United States. Qyuki in particular sought to optimize monetization through ad-funded support (via CPM and brand sponsorship), payment via the MCN themselves for content creation, and 'forward integration' through increasing demand for live and digital gigs through increasing regular viewers. Bhangra even went as far as hailing Qyuki and MCNs as the "new age record label" which would allow content creators full creative control. </div>
</div>
<p style="text-align: justify;"> </p>
<blockquote style="text-align: justify;" class="quoted">"<em><strong>Well, I support piracy so..." - Sohail Arora, Founder, KRUNK<a name="sdfootnote11anc" href="#sdfootnote11sym"><sup>11</sup></a></strong></em></blockquote>
<p style="text-align: justify;"> </p>
<div><span style="float: none;">For independent artists, social media tools like YouTube, Facebook, and other direct-to-fan digital services are of even greater importance considering the relative lack of accessibility to mass-media marketing power. In the XChange workshop </span><strong>Driving You</strong><strong>r</strong><span style="float: none;"> </span><strong>Career with Social Media</strong><span style="float: none;">, </span><strong>Sohail Arora,</strong><span style="float: none;"> </span><span style="float: none;">founder of</span><span style="float: none;"> </span><span style="float: none;">booking agency and general artist management</span><span style="float: none;"> </span><span style="float: none;">company</span><span style="float: none;"> </span><strong>KRUNK</strong><span style="float: none;"> focused on search-engine optimization strategies for various social media platforms This included tips such as tagging influencers via social media, strategic timings of content posting, unique release and distribution of music, diversity in content posts, suggestions for increased fan engagement, and more. </span><br /><br /><span style="float: none;">The rise of new technologies seem to have brought an increased role and importance to not just social media tools, but also artists managers as well to utilize these services effectively as one of their duties. This new role and its various responsibilities was highlighted by the </span><strong>The Exchange Music Trade Conference ("the Exchange")</strong><span style="float: none;"> in the panel </span><strong>The Role of Artist Management Agencies</strong><span style="float: none;">. Considering the diversity of distribution options available, and the difficulty of controlling content usage once released, I asked artist manager Arora for his thoughts on some musicians' strategies of giving away free music downloads. He responded by stressing that freely giving away music was an </span><em>essential </em><span style="float: none;">marketing tool for his artists. The ability to download and share would in turn translate to an increased number of fans, quantifiable, measurable social media support (via "likes" and "follows"), and subsequently increased ticket sales, attendance for live shows, and brand sponsorship. This perspective resulted in an interesting conversation/debate with the audience, one member of whom was </span><strong>Marti Bharath,</strong><span style="float: none;"> producer/composer of electronic act </span><strong>Sapta</strong><span style="float: none;"> who believed that giving away music for free led to piracy, and a devaluation of music. In response, Arora unashamedly stated that he supported piracy, which temporarily halted that conversation during the time-crunched presentation.</span></div>
<blockquote style="text-align: justify;" class="quoted">" <em> <strong> Independent Music is... anything that is not Bollywood" - Nikhil Udupa - MTV Indies. "If you liked it, good. If you didn't, not my problem" - Verhnon Ibrahim, Consultant<a name="sdfootnote12anc" href="#sdfootnote12sym"><sup>12</sup></a> </strong> </em></blockquote>
<p style="text-align: justify;"> </p>
<div>
<div>
<div>Despite the numerous social media tools and online opportunities available for self-promotion, the reach of mass media and its role as a marketing tool was not forgotten amongst the independent music scene. </div>
</div>
<div>In the <strong>Making Space for Culture </strong>panel, an interesting conversation arose on what it meant to be an "independent" artist. It seems that it boiled down to those who were mostly unconnected to the larger institutional support of the music industry like major labels and traditional media -- radio, newspapers, magazines, and television. On the one hand, there was a sense of ambivalence as to whether or not their work would ever appeal to the tastes of the masses. One panelist had asked - would popularization of a certain artist or music remove the label of being "independent"? <strong>Nikhil Udupa </strong>of <strong>MTV Music </strong>defined independent music in India as anything that was not Bollywood, due to its dominance in the Indian music market and overall appeal to the masses. Music industry veteran Verhnon Ibrahim conveyed the notion of an independent artist by expressing the somewhat indifference to likeability when reflecting on his days while in a heavy metal band: "If you liked it, good. If you didn't, not my problem". He seemed to imply that appeal to the masses was essentially irrelevant, and almost more revered due to a sense of being able to maintain artistic integrity and authenticity.</div>
<div> </div>
<div>The title of the panel itself - <strong>Making Space for</strong> <em><strong>C</strong></em><em><strong>ulture</strong></em> - was interesting, seemingly alluding to the opinion that mass-consumed, popular music was perhaps not as "<em>cultured"</em> . The main grievance and topic of conversation was that independent music, film, and media did not receive adequate airtime space on traditional media - television, radio, and even print. This premise was probably the only agreement during the panel, as conversation soon evolved to heated debates on whether media created trends or merely picked up on them; and whether there was lack of quality independent content for full-time curation of independent channels, a sentiment expressed by <strong>Nikhil Udupa </strong>from <strong>MTV Indies. </strong>This panel's conversation also touched upon a sense of entitlement which independent artists held, in which audience member <strong>Guru Somayji </strong>of Bangalore-venue <strong>CounterCulture </strong>expressed his agreement. This echoed the comment from an audience member earlier in the day who stated <em><strong>"musicians do not deserve to be paid... venue spaces do not deserve to make money. There is no entitlement. You only make money when people are breaking down the door to listen to you."</strong></em></div>
<div> </div>
<div>Amidst a crowd of independent musicians and artists hoping to devote their lives to creating their art in a financially feasible way, there was an understandably ill response from the audience. The main criticism was the lack of broadcasters' efforts in finding quality content, and allowing independents a chance to perform in large venues and mass media channels. <strong>Verhnon Ibrahim, consultant and industry expert</strong> on the <strong>Making Space for Culture Panel</strong> attempted to explain that radio, television, and other traditional forms of media and communication was a mass-market game, whose purpose was to ultimately to sell ads. He cited radio's high cost of royalty payments to explain the need to curate for the majority so advertisers will get the most reach. Ibrahim stressed the need to demonstrate quantifiable forms of "deserving" - number of Facebook likes, YouTube views etc. to demonstrate virality and fan following, so the media would have to pick up on ones' popularity.</div>
</div>
<p style="text-align: justify;"> </p>
<blockquote style="text-align: justify;" class="quoted">"<strong><em>It's public knowledge that </em> <em>vast sums of money in royalties have not been collected... </em> <em>[due to a] </em> <em> situation of buying out rights, but even labels and rights holders say hundreds of thousands of pounds are not making their way back." - Terry Mardi, Managing Director, Asian Music Publishing<a name="sdfootnote13anc" href="#sdfootnote13sym"><sup>13</sup></a> </em> </strong></blockquote>
<p style="text-align: justify;"> </p>
<div>
<div><span style="float: none;">Although several independent musicians raised grievances about the lack of avenues to perform in, and the </span><span style="float: none;">reoccurring</span><span style="float: none;"> problem of being paid on time, there seemed to be a hesitancy when discussing business strategies and the challenges of copyright due to technological innovation. </span><span style="float: none;">In the independent space, this was anecdotally demonstrated by one panelists' response when asked about the impact of technology on the distribution strategies for their art, and on financial returns for their livelihood. He responded:</span><strong> "Those are two separate things... one is about making money and making a living. The other is about making an art form. These are two separate things." </strong><span style="float: none;">Within the larger industry conference MRMC, there seemed to be a </span><span style="float: none;">lack of representation by musicians and content creators. Yet, one particularly vocal audience member, and later panel member of the UK Exchange was </span><strong>Terry Mardi, Managing Director </strong><span style="float: none;">of </span><strong>Asian Music Publishing. </strong><span style="float: none;">Numerous times throughout both conferences, he raised </span><span style="float: none;">the controversial issue of missing royalty payments in India, and the absence of royalty collection and distribution by unregistered copyright societies IPRS and PPL. In MRMC, this issue was ever so briefly touched upon in a panel when Bollywood playback singer </span><strong>Natalie Di Luccio</strong><span style="float: none;"> who's worked closely with A.R. Rahman mentioned that she had never received a contract outlining her rights and her royalty dues. Although there was very little curated conversation about this issue, coffee breaks demonstrated a clear gravitation towards those vocal and concerned about the issue, while many stakeholders, particularly the few musicians in the room seemed to find this a significant gap in voices not heard and expressed in MRMC. At IndiEarth, </span><strong>Vivek Ragpolan,</strong><span style="float: none;"> representative of the </span><strong>Music Composers Association of India</strong><span style="float: none;"> briefly commented as an audience member about the need to take collective action regarding composers and overall musicians' rights, stressing the importance of independent artists also being included within the new provisions of the Copyright Amendment Act. Though this issue of royalty licensing will be reviewed in a future post, this brief mention demonstrates the challenge of monetization and livelihood at multiple levels -- significantly for content creators, but also for the music platforms themselves. </span></div>
</div>
<blockquote style="text-align: justify;" class="quoted">"<em><strong>It seems like the pricing model is wrong... it's the only way to explain the drop in revenue" - Tarun Malik, Apps & Content Strategy, Samsung <a name="sdfootnote14anc" href="#sdfootnote14sym"><sup>14</sup></a> </strong> </em></blockquote>
<p style="text-align: justify;"> </p>
<div>
<div>Across different platforms, panels, conferences, and countries, one particular question seemingly common to all was that of price points band business model viability. <strong>Tarun Malik,</strong> Apps & Content Strategy of <strong>Samsung</strong> in <strong>Biggies Give Their View</strong> commented on the growth of the industry. Despite an increase in overall consumption, he noted - <strong>"It seems like the pricing model is wrong...it is the only way to explain the drop in revenue".</strong> <strong>Atul Charumani,</strong> formerly <strong>Head of Content with</strong> <strong>OnMobile</strong> and currently <strong>Managing Director</strong> of <strong>Turnkey Music</strong> stated that <strong>"in no other industry where the content is produced at such a high cost, is the product given away for free."</strong> In the <strong>Global Mobile and Music Panel</strong> at the <strong>San Francisco Music</strong> <strong>Tech Summit</strong>, the moderator asked a panel of music distribution service providers - <strong>"What is the value of music? Does music have intrinsic value at this point? Or is it just how it is presented?"</strong> In response, <strong>Dean Bolte,</strong> <strong>Managing Director of Omniphone</strong> expressed that the value of music was different for every person, and that some people were willing to pay more for access than others. The priority is to ensure that those who value music more have the opportunity to express through payment, since anything was better than zero. Beyond competition between music service apps, Bolte noted that the competition for funds also occurred across app categories, noting a generation of youth conditioned to acquire music for free through Napster, yet pay for additional levels in games. He closed the panel with the insight that "the product needs to be better than the sword".</div>
<div> </div>
<div>The targeting of youth and young adults was also conveyed by the somewhat surprising pervasiveness of brands, who had a larger than anticipated presence for a music industry conference. The UK Exchange demonstrated the potential of partnerships in its <strong>Brands & Music - When They Combine Forces</strong> panel. MRMC panel <strong>The Brand Sponsor </strong>also invited the Taj hotel (who seem like an unlikely sponsor) an opportunity to express its interest in supporting the discovery of new talent<strong>.</strong> <strong>Aditya Swami</strong> from <strong>MTV & MTV Indies</strong> said that brands can communicate through music, and create conversations with their consumers. Subramaniam, CEO of Sony Music mentioned the importance of funding through brands and advertising in the MRMC keynote <strong>How the Industry Stands Today</strong>, while IndiEarth's <strong>Taking it Live</strong> panel opened the day with a conversation about live venues seeking sponsorship from alcohol, clothing and other 'lifestyle' companies. Even the MCNs in the MRMC <strong>Indian MCNs</strong> panel discussed one of its main services as the securing of brand sponsorship.</div>
</div>
<p style="text-align: justify;"> </p>
<blockquote style="text-align: justify;" class="quoted">"<em><strong>Independent music in India would not exist if it weren't for alcohol sponsorships" - Tej Brar, Artist Manager, Only Much Louder <a name="sdfootnote15anc" href="#sdfootnote15sym"><sup>15</sup></a> </strong> </em></blockquote>
<p style="text-align: justify;"> </p>
<div><span style="float: none;">Music platform </span><strong>MixRadio</strong><span style="float: none;">, the title sponsor of MRMC was an understandably suitable partner, since it closely correlated to the main music product. Yet, particularly in India, it soon became apparent that alcohol brands have a very significant role in financing the music industry. This was highlighted when liquor-brand Bacardi received an award during MRMC for 'excellent brand association'. It was later learned in an interview that liquor and cigarette brands are not legally able to advertise in India, hence the popularity of alcohol sponsorships for live music festivals, venues, and club nights. </span><strong>Tej Brar, EDM Artist Manager</strong><span style="float: none;"> for </span><strong>Only Much Louder</strong><span style="float: none;"> believed that independent music would not exist in India if it weren't for alcohol brands. This is an interesting phenomenon considering just a decade ago, the idea of synchronizing ones' music with a corporate brand would be akin to "selling out". However, in today's increasingly digital world, especially in India where non-film musicians don't have much of a presence, brand sponsorship is one of the main 'monetization strategies' for music production. </span><span style="float: none;">The last important significant financier to mention are investors, showcased in the MRMC panel </span><strong>Of All Things Finance.</strong><span style="float: none;"> These "angel investors" play an instrumental role in backing many of the technology start-ups and other streaming services while experimenting with various business models. Yet whether these investment decisions are one that would reap sustainable returns is still a question to be answered. </span><br /><br /></div>
<div>
<div><strong>Conclusion</strong></div>
<div> </div>
<div>It seems in this mobile first market, India has the opportunity to lead the way in developing business models that grow the industry through multi-tiered windowing of music streaming. Strategically, in an ecosystem still rampant with piracy, moving consumers towards legal access to music can facilitate new sources of revenue. This opportunity has also given rise to new intermediaries like YouTube and multi-channel networks. time will tell whether their contribution will legitimately grow the industry or simply take away more pieces of what seems to be a shrinking profit pie. Independent artists are able to use new direct-to-fan distribution platforms such as YouTube, amongst others to share their works. Yet, it is clear that the sustenance of a livelihood off of digital sales and distribution is extremely difficult. It is interesting to note that the bulk of financing for music seems to be trending towards live shows and brand sponsorship. However, despite increase in digital music consumption, the distribution of the revenue needs to be further studied and understood. Given the ease of replication, this will require a further in-depth understanding of licensing and copyright management in India today.</div>
</div>
<div id="sdfootnote1" style="text-align: justify;">
<p><a name="sdfootnote1sym" href="#sdfootnote1anc">1</a> See the research methodology here: <a href="http://cis-india.org/a2k/blogs/copyright-management-in-age-of-mobile-music"> http://cis-india.org/a2k/blogs/copyright-management-in-age-of-mobile-music </a> last accessed Jan 22, 2015</p>
</div>
<div id="sdfootnote2" style="text-align: justify;">
<p><a name="sdfootnote2sym" href="#sdfootnote2anc">2</a> All of the panels from this conference can be found online here: <a href="http://musicconnects.indiantelevision.com/y2k14/videos.php">http://musicconnects.indiantelevision.com/y2k14/videos.php</a> last accessed Jan 20<sup>th</sup> 2015</p>
</div>
<div id="sdfootnote3" style="text-align: justify;">
<p><a name="sdfootnote3sym" href="#sdfootnote3anc">3</a> See here for the IndiEarth website: <a href="http://www.xchange14.indiearth.com/">http://www.xchange14.indiearth.com/</a> last accessed Jan 20 <sup>th</sup> 2015</p>
</div>
<div id="sdfootnote4" style="text-align: justify;">
<p><a name="sdfootnote4sym" href="#sdfootnote4anc">4</a> Watch and/or listen to the Future of Music Coalition panels here:<a href="https://futureofmusic.org/events/future-music-summit-2014">https://futureofmusic.org/events/future-music-summit-2014</a> last acccesed Jan 19 <sup>th</sup> 2014</p>
</div>
<div id="sdfootnote5" style="text-align: justify;">
<p><a name="sdfootnote5sym" href="#sdfootnote5anc">5</a> All data in this solely from public conference panels; including quotes, etc. Does not include any individual interview data.</p>
</div>
<div id="sdfootnote6" style="text-align: justify;">
<p><a name="sdfootnote6sym" href="#sdfootnote6anc">6</a> As quoted from the MixRadio Music Connects Keynote panel:</p>
</div>
<div id="sdfootnote7" style="text-align: justify;">
<p><a name="sdfootnote7sym" href="#sdfootnote7anc">7</a> Though it was not mentioned in the speech, it is useful to understand the initail demand for CRBTs was not necessarily genuine, for the fall in revenue was due to the crackdown by the Telecom Regulatory Authority of India to prevent false billing by telecom and value-added-service providers.</p>
</div>
<div id="sdfootnote8" style="text-align: justify;">
<p><a name="sdfootnote8sym" href="#sdfootnote8anc">8</a> See <a href="http://blogs.wsj.com/digits/2014/12/19/messaging-app-lines-first-acquisition-music-streaming-service-mixradio/"> http://blogs.wsj.com/digits/2014/12/19/messaging-app-lines-first-acquisition-music-streaming-service-mixradio/ </a></p>
</div>
<div id="sdfootnote9" style="text-align: justify;">
<p><a name="sdfootnote9sym" href="#sdfootnote9anc">9</a> As heard in the MixMusic Radio Connects panel Indian MCNs on Nov 5<sup>th</sup> 2014</p>
</div>
<div id="sdfootnote10" style="text-align: justify;">
<p><a name="sdfootnote10sym" href="#sdfootnote10anc">10</a> According to Samir Bhangra in MixRadio Music Connects' Indian MCNs panel on Nov 5<sup>th</sup> 2014</p>
</div>
<div id="sdfootnote11" style="text-align: justify;">
<p><a name="sdfootnote11sym" href="#sdfootnote11anc">11</a> As heard at the IndiEarth Xchange conference in the Driving Your Career with Social Media panel on Dec 5<sup>th</sup> 2014</p>
</div>
<div id="sdfootnote12" style="text-align: justify;">
<p><a name="sdfootnote12sym" href="#sdfootnote12anc">12</a> Stated at IndiEarth Xchange Conference in the Making Space for Culture panel on Dec 4<sup>th</sup> 2014</p>
</div>
<div id="sdfootnote13" style="text-align: justify;">
<p><a name="sdfootnote13sym" href="#sdfootnote13anc">13</a> As heard at UK The Exchange Submerge conference on Nov 7<sup>th</sup> 2014</p>
</div>
<div id="sdfootnote14" style="text-align: justify;">
<p><a name="sdfootnote14sym" href="#sdfootnote14anc">14</a> As stated on the MixRadio Music Connects panel Crystal Ball Gazing: Bigges Give Their View on Nov 5<sup>th</sup> 2014</p>
</div>
<div id="sdfootnote15" style="text-align: justify;">
<p><a name="sdfootnote15sym" href="#sdfootnote15anc">15</a> In a conversation at the IndiEarth Music Xchange Conference on Dec 5<sup>th</sup>, 2014</p>
</div>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/beyond-alcohol-and-angel-investors'>http://editors.cis-india.org/a2k/blogs/beyond-alcohol-and-angel-investors</a>
</p>
No publishermaggieAccess to KnowledgePervasive Technologies2015-02-23T12:39:36ZBlog EntryIndia at Leisure: Media, Culture and Consumption in the New Economy
http://editors.cis-india.org/a2k/news/india-at-leisure
<b>Maggie Huang attended the event and presented a paper titled “The Future of Music Streaming: Business Practices and Copyright Management in India”. The paper was co-authored by Maggie and Amba Kak. </b>
<p style="text-align: justify; "><span>A striking feature of India's ongoing transformations is the runaway success of one sector of its economy. This is India’s leisure economy, often overlapping with the media economy, which entails a range of pursuits from sports to movies, from texting to TV---all of which forming a significant constituent of the country’s social and economic social life. While various activities within this sector were almost entirely neglected by India’s early planners, fuelled by narrow conceptions of media as an instrument of the state, today they remain little understood by national scholars and international analysts. With this background, a bi-national working group of scholars from India and New Zealand emerged in 2013 to reflect on the dynamics of India’s media economy. To build on this, an international conference is being organized, under the inaugural round of the India New Zealand Education Council programme, to broaden reflections on the dynamics of media industries and practices of media-culture constituting India’s leisure economy.</span></p>
<hr />
<p style="text-align: justify; "><span>For more see the original published by <a class="external-link" href="http://jmi.ac.in/ccmg/ime">Jamia Milla Islamia</a>.<br /></span></p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/news/india-at-leisure'>http://editors.cis-india.org/a2k/news/india-at-leisure</a>
</p>
No publisherpraskrishnaAccess to KnowledgePervasive Technologies2015-03-30T15:34:30ZNews ItemPervasive Technologies Project Working Document Series: Document 2 Literature Review on Competition Law + IPR + Access to < $100 Mobile Devices
http://editors.cis-india.org/a2k/blogs/pervasive-technologies-project-working-document-series-document-2-literature-review-on-competition-law-ipr-access-to-100-mobile-devices-1
<b>This note is the second document in the series of Working Documents that I will be creating for my research under the Pervasive Technologies: Access to Knowledge in the Marketplace (“PT Project”).</b>
<p>View the first document <a href="http://cis-india.org/a2k/blogs/methodology-sub-hundred-dollar-mobile-devices-and-competition-law">here.</a> Note: The research was for this blog post was done by <span>Amulya Purushothama which wasn't acknowledged earlier. <br /></span></p>
<hr />
<h2>Preliminary</h2>
<p style="text-align: justify; ">This note will serve as the literature review for my research paper under this project. This note- to be revised periodically- maps the existing literature around questions of competition law intersecting with intellectual property law on the specific issue of enabling access to sub hundred dollar mobile devices; which might be impaired as a result of intellectual property protections, particularly standard essential patents.</p>
<p class="Standard" style="text-align: justify; ">This note will explore the literature around the relationship between intellectual property and competition law; with a specific focus on the antitrust/competition concerns that arise around the licensing of standard essential patents. This note will study the approach adopted in other jurisdictions in the employment of existing mechanisms in competition law as possible solutions to issues with the licensing of standard essential patents.</p>
<h3><b>Literature Review</b></h3>
<p><b>Smartphones and Access to knowledge.</b></p>
<p style="text-align: justify; ">The Avendus Capital report<a href="#_ftn1" name="_ftnref1">[1]</a> on mobile data usage in India provides important information about mobile internet users in India. Particularly the striking fact that more than half of the internet users in India use it on their low cost mobile phone and that access to these phones therefore becomes a step toward access to the internet. John Harmen Valk and others <a href="#_ftn2" name="_ftnref2">[2]</a> have through their report demonstrated how mobile phones with internet access have been used to further educational outcomes in India and Asia and underscores the idea that access to such technology is important.</p>
<h3><b>Competition Law and Intellectual Property</b></h3>
<p style="text-align: justify; ">Academic writing around the nexus between intellectual property law and competition law presents varied perspectives; particularly on the question of whether they each acted as incentives for innovation, or whether competition law hindered innovation that intellectual property (seemingly) promoted. This narrative does not question a more fundamental concept; of whether intellectual property protections necessarily incentivized innovation; but takes that as the underlying assumption that they do.</p>
<p style="text-align: justify; ">Gitanjali Shankar and Nitika Gupta have noted that antitrust law and intellectual property have in the past seen to diverse and work against each other with different approaches to monopoly and that the two have also been viewed as related to each other in so far as intellectual property has been viewed as one of the tools to regulate competition in the market place. they propose that if the latter approach is taken and the two branches of law are seen to converge, two guidelines must be followed in to balance the various interests and ensure clarity, first that IP laws must only be extended by legislation and not through judicial interpretation, the second that when two interpretations are available during the enforcement of any intellectual property, that interpretation must be chosen which is in line with encourages the free market and promotes fair competition.</p>
<p style="text-align: justify; ">They have argued that both antitrust law and intellectual property have separate operational areas and their functions must be kept independent of each other. They argue that the domain of intellectual property concerns the assignment and defense of intellectual property rights and the domain of antitrust deals with the use and exercise of such rights within the market. They argue that competition law does not call into question that basis of IPRs that it doesn't question the exclusivity of legal rights, merely their abuse which results in unfair trade practices. They argue that the distance between economic and legal monopolies should be maintained and these fall within the domains of antitrust law and intellectual property respectively. They further argue that antitrust law exists to ensure that the IPR owner does not abuse his rights and thus bolsters intellectual property rights. <a href="#_ftn3" name="_ftnref3">[3]</a></p>
<p style="text-align: justify; ">Robert Pitofsky while reviewing a work of Prof. Mark Lemley explains that while anti-trust laws and intellectual property laws have the same long term goals of incentivizing innovation and investment in innovation, they are bound to conflict with each other in the short term as anti-trust law seeks to achieve this goal via limiting the possibilities of a monopoly and further ensuring that monopolies do not abuse the power they enjoy in the market place. Antitrust policies assume that the free market will fairly allocate resources and thereby encourage innovation efficiently. Pitofsky goes on to state that intellectual property on the other hand believes in rewarding innovation and thereby incentivizing investing in innovation, intellectual property is basically a grant of limited monopolies to ensure that costs of innovation are recovered and product quality is maintained. He argues that it is critical to ensure that patents are granted after thorough analysis to ensure a balance between anti-trust policies and intellectual property rights and to ensure that the larger goals of incentivizing innovation are achieved.<a href="#_ftn4" name="_ftnref4">[4]</a></p>
<p style="text-align: justify; ">Katrina Perehudoff and Sophie Bloemen have argued that anti-competitive strategies such as defensive patenting (the creation of weak and frivolous patents around their main patent) and vexatious litigation (the use of litigation as a threat to smaller and medium enterprises who cannot afford costs of litigation) have ensured that the bestselling originators medicine dominates the market for artificially long periods of time ensuring that the company therefore profits at the expense of public interest and obstructs widespread access, it is argued that such practices go against the aims of the patent system which were to ensure that the innovator could recoup costs of invention and in fact hamper incentives to invent. <a href="#_ftn5" name="_ftnref5">[5]</a> It is submitted that while in this instance the discussion of defensive patenting as well as holding out is in the context of healthcare, similar trends have been witnessed in the space of technological patents as well. With standard essential patents for instance, there exists a very real danger of frivolous litigation and hold-outs ensuring market dominance by larger players, forcing out smaller and medium sized enterprises.</p>
<p style="text-align: justify; ">While acknowledging that intellectual property law and competition law might both seek to achieve a common goal of incentivizing innovation, Daniel Ravicher and Shani Dilloff have argued that the scrutiny of intellectual property exploitation from an antitrust perspective lacks economic and political merit. They argue that governments and courts have time and again preferred to enforce antitrust policy at the expense of enforcing intellectual property rights as evidenced by the cases of International Salt Co. v. United States<a href="#_ftn6" name="_ftnref6">[6]</a>, United States v. Lowe's Inc. <a href="#_ftn7" name="_ftnref7">[7]</a>, and Siegel v. Chicken Delight, Inc.<a href="#_ftn8" name="_ftnref8">[8]</a> among others. They argue that the law depends on the flawed assumption that intellectual property confers upon the rights holder some kind of market power through creation of monopolies as evidenced by Jefforson Parish Hospital District No.2 v. Hyde<a href="#_ftn9" name="_ftnref9">[9]</a> and the U.S. Department of Justice Guidelines on licensing of intellectual property<a href="#_ftn10" name="_ftnref10">[10]</a> and is therefore in the wrong.</p>
<p style="text-align: justify; ">They argue that no such power is conferred on the rights holder because intellectual property rights do not confer monopolies so much as they ensure that a certain standard of uniqueness is assured, and that this standard of uniqueness falls short of the uniqueness required to obtain monopoly power within a market. They argue that IPRs do not grant the ability to raise prices above the competitive level and do not grant the right to exclude a rival or to exclude new entrants in the field, they only grant a right to prohibit others from exploiting their creation in an unfair manner and provide for sufficient limitations and exceptions to ensure that fair exploitation of their works is still allowed. And therefore while sound economic theory that ensures free marketplace through government regulation underlies most of antitrust policy, scrutiny of intellectual property through an antitrust point of view is economically flawed.</p>
<p style="text-align: justify; ">In a departure from other perspectives, the authors in this paper also argue that the factors affecting the employment of antitrust policies are not entirely legal; and that this preference is often a reflection of non-meritorious factors such as arguable predictions for the future, difference in financial stability of the competing parties, the political persuasion of the decision maker or the posturing of the parties and the courts being simply hostile to intellectual property rights and is unfair to intellectual property owners. They further argue that this preference is politically indefensible as it undermines the intent of the legislature. They argue that because of these things the case law so far that deals with this conflict is unreliable, unpredictable and not credible. They lastly argue that the solution out this conflict is to ensure economic efficiency by exempting intellectual property rights from scrutiny based on antitrust policies.<a href="#_ftn11" name="_ftnref11">[11]</a></p>
<p style="text-align: justify; ">Robert Anderson argues that IPRs do not inherently confer market power on rights holders and that in many cases restrictions on licensing could encourage competitive behavior and economic efficiency while not losing sight of the fact that IPRs can result in anti-competitive behavior in certain circumstances, particularly in context of network industries and that competition law must respond to these issues. This paper also makes a reference to the Trade Related Agreement on Intellectual Property Rights ("TRIPS Agreement"), and the provision that it makes that allow member countries to curb anticompetitive practices through Article 8.2 and Article 40 and thus catering to the interests of developing nations. The paper also notes that the TRIPS Agreement does not set out a specific list of practices that should be treated as abuses. Further, this paper goes on to analyse intellectual property regimes in the US, Canada, Japan and the EU and concludes that the US has maintained a liberal environment for granting of intellectual property rights while being cautious of abuse of IPRs for anticompetitive purposes, that Canada on the other hand has been suspicious of legislative efforts to curb the proper use of IPRs that the EU has adopted a far stricter approach to the issue to achieve market integration, and that Japan has chosen a somewhat middle path by providing for a case by case evaluation of practices. It is argued that certain restraints on international trade such as the restriction on parallel importation due to IPRs segment markets and is harmful to trade and collective innovation and some mechanism for exhausting of these rights must be considered. <a href="#_ftn12" name="_ftnref12">[12]</a> This cross jurisdictional analysis is particularly useful, and will be examined in detail in my research paper.</p>
<p style="text-align: justify; ">Elieen Mc Dermott, in a discussion on FTC public hearings in December 2008 to discuss the overlap between intellectual property laws and antitrust and competition laws, identifies that Innovation Alliance, an organization that represents technology patent owning companies put forward three principles to govern antitrust policies, the first to define antitrust policy to promote consumer welfare and to limit its role to conduct that has "a demonstrable anticompetitive effect", second to bring on board the diverse range of interests and business models involved and third to ensure that principles behind patent law have evolved before allowing antitrust enforcement agency involvement in patent cases.<a href="#_ftn13" name="_ftnref13">[13]</a> This submission by Innovation Alliance will now be studied in greater detail while attempting a submission on India's stance on competition law issues in the licensing of standard essential patents.</p>
<p style="text-align: justify; ">Herbert Hovenkamp has argued that for most of history, antitrust law and intellectual property law have undermined their own purpose of encouraging innovation by protecting too much, whether it is the shielding of inefficient business from competition or the shielding of IPRs beyond what is necessary to incentivize innovation, in both cases the consumer is harmed and the costs of innovation increases. He argues that while it is good that we have lately come to view patents as a kind of property as opposed to a kind of monopoly, since there is no real proof that patents lead to market power, we haven't extended to patents the same kind of conditions we extend to other kinds of property, like the obligation to define the boundaries of ownership another being the obligation to ensure that notice of the claim to property is rendered in time, neither of these obligations, he says, are imposed upon patent holders. He states that this leads to over protection and wastage of state resources.</p>
<p style="text-align: justify; ">He goes on to offer a few principles for antitrust in innovation intensive markets that involve exercise of patent rights; the first being that the purpose of antitrust must not be to fix defects in other regimes, but only to correct private markets, second that any antitrust or intellectual property intervention is justified only when congress or a tribunal has a reason for thinking that such an intervention is necessary to ensure more competition or more innovation, third is that many IP practices do not conflict with antitrust laws and antitrust policies shouldn't intervene in such cases, fourth that innovation provides society with more gains than simple production and trading under constant technology and therefore, when we have to choose between innovation and competition, we must choose innovation, fifth that innovation is more than what is simply defined under intellectual property law and at times, when practices seem clearly anti-competitive and IP statutes do not provide us with answers, we should consider antitrust policies as guidelines, sixth that IP protections can at times protect competition more efficiently than antitrust legislation, seventh that IP law must constantly examine its roots as antitrust legislation has and ensure that any expansion of IPR is well thought out.<a href="#_ftn14" name="_ftnref14">[14]</a></p>
<p style="text-align: justify; ">John Barton examines antitrust treatment of oligopolies that use IPRs defensively to block new entrants into the market. These oligopolists each have substantial patent portfolios that are infringed by its competitors but never a matter of litigation as there is the fear of counter litigation. Therefore there is an implied licensing of patent portfolios among the oligopolists. It is further argued that under systems like this, while there is an incentive for firms to acquire more patents to build defensive portfolios, there is no incentive to actually carry out new research therefore firms will obtain patents on existing research base and therefore this stunts innovation. Further oligopolists holding cross-infringing patents may put up entry barriers for new entrants and thereby dis-incentivize innovation. Due to all of these reasons, the paper argues for patent law reform and appropriate application of antitrust analysis to ensure that the IP system encourages innovation.<a href="#_ftn15" name="_ftnref15">[15]</a></p>
<h3><b>Essential Facilities Doctrine</b></h3>
<p>This section of the note looks at the literature surrounding the Essential Facilities Doctrine- an aspect of antitrust law that is employed in order to adjudge behavior as anticompetitive or the lack thereof.</p>
<p style="text-align: justify; ">Essential facilities doctrine is an aspect of antitrust law that imposes a duty upon firms that have patents/ copyrights or trade secrets with regard to an essential facility to ensure that they do not put in place a monopoly and make the facility available to their rivals. In the context of IPRs, an essential facilities doctrine functions in a way that is equivalent to compulsory licensing regimes. Different jurisdictions adopt different standards and approaches to the employment of this doctrine. By tracking the literature around this doctrine, these different approaches across jurisdictions will be studied, including landmark cases, and submissions made in the research paper on whether this doctrine may be employed in India - specifically to adjudge whether there was a case to be made out for anti -competitive behavior in the smartphone wars on standard essential patents.</p>
<p style="text-align: justify; ">MCI Communications Corporation v. AT&T<a href="#_ftn16" name="_ftnref16">[16]</a> is the landmark case with regard to the essential facilities doctrine, in this case MCI argued that AT&T's switching equipment was an essential facility and access to such an essential facility was necessary to conduct telemarketing business. The court in this case laid down the necessary elements to establish a claim to essential facilities:</p>
<p>a) Control of an essential facility by a monopolist</p>
<p>b) Competitors inability practically or reasonably to duplicate the essential facility</p>
<p>c) The denial of the use of the facility to a competitor and</p>
<p>d) The feasibility of providing the facility.<a href="#_ftn17" name="_ftnref17">[17]</a></p>
<p style="text-align: justify; ">Richard Gilbert and Carl Shapiro have argued that a unilateral refusal to deal (which is often one of the conditions that needs to be met before the essential facilities doctrine is employed) can be justified in the context of profit-maximizing firms in certain cases such as: cases where the owner of the facility wants to ensure a certain level of service quality with his facility, cases where the owner wants to prevent free riding, prevent new entrants into the market, cases where the owner wants to promote price discrimination in the sale of the final product, and cases where the owner is not adequately compensated for licensing out his essential facility. These justifications it is argued increase economic efficiency in the market, ensure quality of services rendered, increase incentives for investment and innovation etc. It is further argued that in the long run, it is more economically efficient for companies to refuse to deal rather than to set higher prices, simply because in a system where one cannot refuse to deal, the incentive for firms to misrepresent their actual costs to obtain licenses etc., and further that an obligation to license can have negative effects on economic welfare, it can reduce welfare in the short run by forcing inefficient licensing, it can also reduce welfare in the long run by reducing incentives for innovation and investment and creation of intellectual property.<a href="#_ftn18" name="_ftnref18">[18]</a></p>
<p style="text-align: justify; ">Robert Pitofsky, Donna Patterson and Jonathan Hooks on the other hand have argued in support of the essential facilities doctrine and supported the use of this doctrine in cases concerning intellectual property rights, the authors here argued that the harshness of the anticompetitive effects of denial of access take precedence over business justifications, especially when specific animus to injure a rival has been proven. The authors argued that while it was important to ensure that the doctrine was not expanded to include a vague and amorphous set of rights, it was important to ensure that the monopolists arguments against the doctrine should not succeed regardless of the nature of the essential facility, whether it is intellectual property or even if the case did not involve vertically related markets.<a href="#_ftn19" name="_ftnref19">[19]</a></p>
<p style="text-align: justify; ">Paul Maquardt and Mark Leddy in their response to Pitofsky, Patterson and Hooks argued that it is not anticompetitive behavior if the normal enforcement of an intellectual property right results in market power is getting skewed in favor of the rights holder, and the intellectual property rights should not be limited by compulsory licensing. They have argued that the essential facilities doctrine should only apply in cases where the rights holder attempts to leverage his exclusionary rights from the market in which the innovation competes into a related market or in cases of abuse of those rights because in cases where the rival is competing directly with the facility incorporating the intellectual property protection, the rights holder would not be damaging incentives to innovate as he would in cases of abuse or in cases of leveraging the protection to attain profits in a related field. They argue that to force compulsory licensing in other cases where the rival is in direct competition to the right holder would harm incentives to innovate and create intellectual property, a goal that both intellectual property rights and anti-trust laws are supposed to achieve. <a href="#_ftn20" name="_ftnref20">[20]</a></p>
<p style="text-align: justify; ">Martin Cave and Peter Crowther have argued that the European Commission seems to have embraced the essential facilities doctrine quite well despite not properly codifying the criteria used to determine whether a facility is essential and access to this facility should be mandatory. They have found that in the U.S., a) the courts have decided the question of whether or not a facility is "essential" on the basis of whether new entrants to the field would be able to duplicate the facility as evidenced by the cases of MCI Communications Corporation v. AT&T<a href="#_ftn21" name="_ftnref21">[21]</a> and Hecht v. Pro Football Inc It is as yet undecided at what point a refusal to deal in a facility will render the rival without an alternative option. In Camco Inc. v. Providence Fruit & Produce Bldg.<a href="#_ftn22" name="_ftnref22">[22]</a>it was decided that a facility was essential insofar as alternatives were inferior. There is no requirement of a duplication of the facility to be impossible as evidenced from Otter Tail Power Co. v. United States<a href="#_ftn23" name="_ftnref23">[23]</a> . They have also found that as per Aspen Skiing Co. v. Aspen Highlands Skiing Corp. <a href="#_ftn24" name="_ftnref24">[24]</a>, there is no general duty to deal on the monopolists. They have also found that liability under the essential facilities doctrine can be found in the presence of the following conditions: a) control of an essential facility by a monopolist, b) a competitor's inability to duplicate the facility, c) the denial of the use of the facility to the rival, and d) the feasibility of providing the facility</p>
<p style="text-align: justify; ">Under analysis of the law in Australia, they found that section 46 of the Trade Practices Act, 1974 proscribes taking advantage of a substantial degree of market power for the purpose of a) eliminating or substantially damaging a competitor, b) preventing the entry of a person into a market or c) deterring or preventing a person from engaging in competitive conduct in a market. They found two important cases in Australian law, Queensland Wire, the first Australian case to consider adopting the US essential facilities doctrine which ruled that the monopolistic firm couldn't refuse to sell facilities to the smaller firm if had been subject to competition in the supply of that product while not actually mentioning the essential facilities doctrine, the second case of importance would be Pont Data litigation where Pont Data wanted to supply stock exchange information which the Australian Stock Exchange had a monopoly on, the court on appeal held that ASX should be ordered to supply information but "on terms designed to obtain a broad and substantial justice between parties"</p>
<p style="text-align: justify; ">They have further argued that there is even less certainty in respect of the price at which access to an essential facility should be made available. This is evidenced by their study of the laws in New Zealand. They found that in New Zealand the landmark judgment to study would be the Privy Council judgment in Clear Telecommunications Ltd v. Telecom Corporation of New Zealand Ltd. This case arose out of a dispute between the state owned telecom which monopolized the public telecommunication system and Clear a new entrant into the market after Telecomwas privatized. The dispute mainly concerned about the price which Clear should pay Telecom for providing access to the Telecom network, while Clear argued that it should only be required to pay Telecom for the direct costs of providing access, Telecom held that Clear should pay the equivalent of profits which telecom would lose by granting access- the opportunity costs. The Privy Council agreed with Telecom in that insofar as Clear had not proved that it would be forced to pay monopoly prices because it was paying opportunity costs, it had not been proved that there were any entry barriers to the market.</p>
<p style="text-align: justify; ">In their analysis of the European Union, these authors found that Article 86 prohibits the abuse of the dominant position within a common market by under takings that consist in particular of a) directly or indirectly imposing unfair purchase or selling prices or unfair trading conditions, b) limiting production markets… to the prejudice of consumers, c) applying dissimilar conditions to equivalent transactions. The European Court of Justice has already decided that dominance can be assessed by a reference to the dependence of the consumer on the supplier inCommercial Solvents v. Commission. <a href="#_ftn25" name="_ftnref25">[25]</a> And in Hugin v. Commission<a href="#_ftn26" name="_ftnref26">[26]</a> The court first mentioned essential facilities in the United Brands case<a href="#_ftn27" name="_ftnref27">[27]</a> where the ECJ held that the charging of discriminatory prices against and the refusal to supply a longstanding customer and distributor who had taken part in a sales campaign on behalf of a competitor had infringe article 86. Therefore if a firm acts in such a way that it could possibly affect rivals by precluding access to an essential facility, it would be an abuse of intellectual property.<a href="#_ftn28" name="_ftnref28">[28]</a></p>
<p style="text-align: justify; ">Albertina Albors-Llorens has reported on the recent judgment of the ECJ in Oscar Bronner CmbH and Co. KG v.Mediaprint Zeitungs -und Zeitschriftenverlag CmbH & Co. KG and others<a href="#_ftn29" name="_ftnref29">[29]</a>, the ECJ in this case has defined "essential facilities" as a "facility or infrastructure without access to which competitors cannot provide services to their customers"<a href="#_ftn30" name="_ftnref30">[30]</a> under the doctrine, any dominant undertaking that owns or controls an essential facility and refuses without an objective justification <a href="#_ftn31" name="_ftnref31">[31]</a> to make the facility available to its competitors or makes it available under discriminatory terms abuses its position of dominance. The court here distinguished the case from earlier case law including the case of Commercial Solvents and from the Magill case<a href="#_ftn32" name="_ftnref32">[32]</a> where the court held that copyright holders who published guides of television programmes for their channels refused to license an independent company which wanted to publish a comprehensive television program guide had based their position of dominance and prevented a the emergence of a new beneficial product to the consumer and therefore it was not objectively justified and that it was otherwise impossible for Magill to obtain the information that was essential to carry on its business. She reports that the court in Bronner held that this case was distinguished from the precedent as there were less advantageous methods of distribution available and it wasn't impossible forBronner to set up their own home delivery system.<a href="#_ftn33" name="_ftnref33">[33]</a></p>
<p style="text-align: justify; ">Gregory Gundlach and Paul Bloom have analyzed the history of the essential facilities doctrine and cases refusals to deal , they have noted the refusal by Microsoft to deal with firms seeking to provide compatible software products and share its knowledge of its key operating systems for IBM compatible computers and its investigation by the Federal Trace Comission (FTC). They trace back the essential facilities doctrine from the case of United States v. Grinnel Corporation<a href="#_ftn34" name="_ftnref34">[34]</a> which held that monopolization necessarily had to include the possession of monopoly power in the relevant market and the acquisition or maintenance of that power as distinguished from growth or development as a consequence of superior product, business acumen or historic accident. Preventing a rival from accessing an essential facility was held to be evidence suggestive of intent to monopolize and a challenge to the Sherman Act. They argue that this doctrine presents a challenge to marketers as they now have to ensure that they don't compete themselves into antitrust challenges, ensure that rivals don't attempt to free ride on their research and investment, they argue that while forcing firms to enable their rivals to access their essential facilities is at odds with the idea of competitive behavior, prudent application of this doctrine may ensure that welfare is substantially enhance and innovation is encouraged. They propose that the duty to deal be imposed only when commercial viability of the rival is at stake as a measure of protecting the rights of the firms. They also propose that new modes of competition such as strategic alliances, long term partnership be kept in mind before when forming future policy development in the area. <a href="#_ftn35" name="_ftnref35">[35]</a></p>
<p style="text-align: justify; ">Spencer Weber Waller and William Tasch have compared the law in the US with the law in the European Union and several other countries, and argue that there is a growing international consensus that it is sometimes appropriate to require a regime of nondiscriminatory access to infrastructure and related facilities. They have pointed out that common law countries and civil law countries have responded to the issue in different ways, for example, Germany has dealt with the issue by passing the German Act Against Restraints that contains provisions regarding abuse of dominant position in refusal to allow other undertakings access to essential facilities without proper justification. South Africa, they note has adopted a two pronged approach to unilateral refusal to deals, one through the South African Competition act that prohibits refusals to deal and another through the same legislation that prohibits refusal to supply scarce goods to a competitor when supplying those goods is economically feasible. They argue that since the essential facilities doctrine has become an accepted law in most competition jurisdictions, the US must work to harmonize their laws with the rest of the world to ensure better trade practices. <a href="#_ftn36" name="_ftnref36">[36]</a></p>
<p style="text-align: justify; ">Daniel E Troy has argued that post the Hecht v. Pro-Football, Inc. case, jurisprudence in competition law shifted from intent to the actions of the monopolists. He argues that there are no clear rules regarding when the essential facilities doctrine should be invoked or a consensus as to what the doctrine requires once invoked. He proposes that the resulting confusion be resolved by ensuring that the essential facilities doctrine cover all arbitrary refusals to deal when such a refusal threatens the commercial viability of the rival party, or when access to the facility is necessary for entry into the market or when duplication of the facility exceeds the standard cost of entry.<a href="#_ftn37" name="_ftnref37">[37]</a></p>
<p style="text-align: justify; ">Howard Shelanski has argued that unilateral refusal to deal must be susceptible to antitrust scrutiny, he argues that neither economics not IP policy considerations provide a sound basis for exempting refusals to supply IP from antitrust laws on unilateral refusals to deal. He argues that while there may be a case for treating IPRs different on some occasion that should be based on logical links between IP and the considerations that weigh against antitrust mandates to deal in any property: deterrence of innovation, investment or precompetitive conduct.<a href="#_ftn38" name="_ftnref38">[38]</a></p>
<h3><b>Royalty Stacking in Smartphone Industry</b></h3>
<p style="text-align: justify; ">Ann Armstrong, Joseph J Mueller and Timothy D Syrett<a href="#_ftn39" name="_ftnref39">[39]</a> have collected and analysed data on the royalty burdens to be faced by a standard smartphone supplier and the adverse effects royalty stacking might have on competition in the smart phone industry. It is an article rich in detail and carefully explains the costs of each of the components that make up a smartphone, in doing so they also trace the mobile phone Standard Essential Patents (SEP) litigation occurring in United States of America (USA). They conclude that royalties demands on a smartphone could exceed the cost of the devices components, and that due to royalty stacking, costs of patent royalties act as an entry barrier for many suppliers thereby limiting competition in the market. They have argued that in calculating the royalty for a component, licensees, advocates and courts should base their conclusions on the price of the component and not on percentage of sales price of the entire smartphone which is the current practice. They have argued that this valuation is even more important for standardized technologies because patent holders usually only have a small slice of the declared patents for a particular standard and where that standard is just one of the many supported by the device. They present data to prove that when royalties are so vigorously calculated, they turn out to be a fraction of what patent-holders claim. This article was used mostly for background information on how royalty stacks work and how FRAND prices must ideally be calculated, and as a source of information on litigation surrounding royalty stacking in USA.</p>
<p style="text-align: justify; ">Damien Geradin in his articles<a href="#_ftn40" name="_ftnref40">[40]</a> on pricing abuses by SEP holders in SSOs in EU and USA documents the evolution of competition law in these courts and the work of the Federal Trade Commission in this regard. He examines the role of the FTC in quite some detail, and this article provided important background information on the question of the potential role of the CCI.</p>
<p style="text-align: justify; ">Bouthenia Guermazi and David Satola<a href="#_ftn41" name="_ftnref41">[41]</a> have argued that in creating a right enabling environment for the ICT, one of the goals of regulation is to create a stable, open and future-proof environment that encourages access and doesn't limit it.</p>
<h3><b>Tracing Mobile Phone SEP Litifation:Treatment by European Commission and Federal Trade Commission</b></h3>
<p style="text-align: justify; ">Damien Geradin and Miguel Rato<a href="#_ftn42" name="_ftnref42">[42]</a> have inquired into the question of whether SSOs provide for an environment of exploitation and abuse due to royalty stacking, weak enforcement of FRAND terms, and hold-ups. They have identified three criteria for the establishment/adoption of an industry standard - first, that it is a set of technical specifications; second, that these technical specifications provide a common design; and third, that the common design provided may be for a product or a process. These criteria have been used in the paper.</p>
<p style="text-align: justify; ">Michael A Carrier in his article<a href="#_ftn43" name="_ftnref43">[43]</a> focuses on the smartphone industry and the ongoing patent and FRAND licensing litigation wars. He traces court rulings on holdups and injunctions granted on SEPs and discusses EC investigations into Motorola and Samsung in detail. This article was useful in that it provided for a good resource on recent judgments surrounding FRAND Licensing and SEP litigations focusing on the smartphone industry.</p>
<p style="text-align: justify; ">Mark A Lemley and Carl Shapiro<a href="#_ftn44" name="_ftnref44">[44]</a> in their article demonstrate that even a threat to obtain a permanent injunction enhances the patent holders negotiating power, leading to royalty rates that exceed a natural benchmark based on the value of the patented technology and the strength of the patent. They argue that such overcharging occurs more noticeably in the case of weak patents covering a minor feature of the product with a sizeable price/cost margin. They present data to show that these holdup problems are reduced if courts regularly grant stays to permanent injunctions. , that they are magnified in the presence of royalty stacking, and that royalty stacking can become a huge problem especially in a standard setting context. This article was useful in understanding the holdup issues with regard to SEPs and the effect of royalty stacking.</p>
<p style="text-align: justify; ">Lemley and Shapiro in another article<a href="#_ftn45" name="_ftnref45">[45]</a> have argued that one method of efficiently settling FRAND disputes would be to impose an obligation on the SEP owner to entire into a binding final offer decided in arbitration with any willing licensee to determine the royalty rate. This article provided important insights into the holdup problem and possible solutions that could be considered.</p>
<p style="text-align: justify; ">Phillipe Baechtold in his presentation<a href="#_ftn46" name="_ftnref46">[46]</a> makes the argument that the central problem with the approach to solving the issue of ensuring Standard Setting organisations achieve interoperability and allow for licensing on FRAND terms is that a problem with patent laws is being solved in a manner that focuses other legal systems such as competition law, health law etc. He argues that there is a need to address these issues within the patent system itself. This article has been used to understand different solutions to the issue that have been proposed so far.</p>
<p style="text-align: justify; ">Richard Schmalensee<a href="#_ftn47" name="_ftnref47">[47]</a> in his article argues that competition policy should not favour patent holders who would use their patents to stop innovation and that SSOs should determine standards based on lower post-standard royalty rates. The claim of interest in his article is that in the absence of a deceptive act, it would be difficult to prove in a case that a differing standard could have been adopted had there been a full disclosure of patent.</p>
<p style="text-align: justify; ">Gertjan Kuipers<a href="#_ftn48" name="_ftnref48">[48]</a> has provided a useful resource on the Apple v Samsung cases in Netherlands and this has been useful to understand non<ins cite="mailto:AMULYA" datetime="2015-06-25T13:39">-</ins>disclosure of patents as an anti-competitive practice within SSOs. Leon Greenfields article that surveys non-US decisions on SEP disputes also makes for a useful resource in the same regard. <a href="#_ftn49" name="_ftnref49">[49]</a></p>
<p style="text-align: justify; ">In their article, Damien Neven and Miguel de la Mano<a href="#_ftn50" name="_ftnref50">[50]</a> discuss the activities of the Directorate General for Competition at the European Commission during the course of one year and discuss cases and policy developments during that time. It served as a useful resource on cases relating to violation of FRAND Commitments and in understanding the functioning of SSOs.</p>
<p style="text-align: justify; ">Bjorn Lundgvist<a href="#_ftn51" name="_ftnref51">[51]</a> has analysed EU and US antitrust/competition law, and argued that Orange Book Standard case where it was held that abuse of dominant position is a valid claim if a patentee refuses to conclude a license agreement on non discriminatory and non-restrictive terms, is problematic as the potential licensee only has the option of paying the customary royalty rate or accepting the rate that the patentee offers by applying "reasonable excercised discretion" and that this doesn't give much leeway for licensees to question the validity of the rate.</p>
<p style="text-align: justify; ">James Abell<a href="#_ftn52" name="_ftnref52">[52]</a> documents cases in the US federal courts regarding standards development organisations, antitrust law and fraud his analysis of the Broadcom Corp v. Qualcomm Inc., was particularly well done and proved to be useful in tracing SEP litigation in the US. Koren W Wong Ervin <a href="#_ftn53" name="_ftnref53">[53]</a> in her important article traces SEP litigation across the world in various countries. This makes for an important resource on the subject as it serves as a primer on SEP litigation in many jurisdictions including China, Japan, India, EU and the US among others.</p>
<h3><b>Mobile Phone SEP Litigation in India</b></h3>
<p style="text-align: justify; ">Ravikant Bharadwaj in his article<a href="#_ftn54" name="_ftnref54">[54]</a> provides a broad overview of standard setting in India and the competition and IPR issues associated with it. He makes the important argument that once an industry standard has been set, and since the goal is to ensure inter-operability, denial of access to these standards on FRAND terms could become barriers to trade.</p>
<p style="text-align: justify; ">Anubha Sinha<a href="#_ftn55" name="_ftnref55">[55]</a> in her report on Spicy IP traces the Ericsson- Micromax dispute at the Competition Commission of India (CCI), this has been used as a background document to trace the timeline in the dispute while tracing mobile phone SEP litigation in India.</p>
<p style="text-align: justify; ">Prashanth Reddy in his article <a href="#_ftn56" name="_ftnref56">[56]</a> argues against interim injunctions stating that these injunctions should be used as an exception and not as a matter of a rule. He argues that in many cases courts either don't provide reasoning or provide insufficient reasoning behind orders granting injunctions. He argues that protection of IPRs cannot be a convincing reason on its own in this context particularly because patent infringement cases are complicated and can only be decided after a full trial and appreciation of evidence. In this context, he argues that issuing interim injunctions as a matter of course is a harmful practice that must be done away with.Vaibav Choukse makes a very similar argument in his article as well.<a href="#_ftn57" name="_ftnref57">[57]</a></p>
<p style="text-align: justify; ">John E Matheson in his article<a href="#_ftn58" name="_ftnref58">[58]</a> seeks to understand how standards must be developed and what best practices can be followed by India in forming its IPR policy. He specifically argues that the litigation costs that invariably occur during hold ups and reverse hold ups ensure that smaller companies and newer start-ups ultimately give in to patentees who enjoy more market power and can bear the litigation costs for as long as it takes.</p>
<p style="text-align: justify; ">Pankaj Soni and Satyoki Koundinya in their article<a href="#_ftn59" name="_ftnref59">[59]</a> outline the questions at the heart of the mobile phone FRAND disputes and focus on the disputes in India including Ericsson-Micromax, Intex, Vringo and Asus and ZTE disputes providing a fairly comprehensive timelines of the same. They argue that the threat of injunctions often bring licensees to the discussion table which otherwise would not have happened and that disallowing this would disincentivise patentees from disclosing their patents. This article makes important arguments in terms of what would incentivize pro-competitive behavior and how policy surrounding holdups could influence anti-competitive behavior.</p>
<p><b> </b></p>
<h3><b>Abuse of Dominance and Competition Law and Policy in India</b></h3>
<p style="text-align: justify; ">The Competition Commission of India Guide to Abuse of Dominance<a href="#_ftn60" name="_ftnref60">[60]</a> lays out in clear simple terms what constitutes abuse of dominance under competition law in India, while it does not refer to case law on the matter, it does make for a great source for interpreting and understanding Indian competition law and was used for the same purposes.</p>
<p style="text-align: justify; ">Samir Gandhi<a href="#_ftn61" name="_ftnref61">[61]</a> in his article analyses trends in enforcement of competition law in India. He provides data to prove that the CCIs decisions seem to want to establish a greater familiarity with complex tools of assessments like including economic measures etc. He argues that the CCI is eager to make up for lost time and therefore doesn't shy away from issuing judgments quickly and imposing severe penalties. This is useful in understanding whether or not the CCI is the appropriate and competent authority to deal with cases that are likely to come up involving the smartphone industry.</p>
<p style="text-align: justify; ">Pratibha Jain and others<a href="#_ftn62" name="_ftnref62">[62]</a> conduct a fascinating study of how competition law is enforced in the country, in a fairly comprehensive report with individual case studies. They demonstrate quite clearly that the CCI refrains from laying down broad principles and restricts its rulings to the facts of a particular case. It also provides important data on how many cases are dismissed and in how many cases the CCI has found anti-competitive behavior. This data helps understand how effective or otherwise the CCI has been.</p>
<p style="text-align: justify; ">Archana Shanker and Shraddha Singh<a href="#_ftn63" name="_ftnref63">[63]</a> in their article have argued that competition law and IP must both be used in a harmonious manner. In doing so they have analyzed relevant legislation and important cases such as Micromax and Intex, They have analysed how capable the CCI or courts in India are when it comes to determining FRAND terms in the context of SSOs and SEPs. They argue that the CCI has shown a lack of understanding of the IP aspects in these cases and have focused on competition law to their exclusion. While this is a well written and informative article on mobile phone SEP litigation in India, it is important to point out that the article does not deal with how courts in India have failed to appreciate concerns regarding hold-ups while issuing stays or ex-parte orders.</p>
<p style="text-align: justify; ">Kanika Chaudhary<a href="#_ftn64" name="_ftnref64">[64]</a> has written about jurisdictional issues that the CCI might face due to the wording of the Competition Act that states that the act is applicable to anti-competitive behavior notwithstanding other laws and yet another section stating that competition law must be harmonized with existing laws. She argues that there is a need to restructure competition law in this regard to avoid conflicts.</p>
<p style="text-align: justify; ">The CUTS International report on the CCI<a href="#_ftn65" name="_ftnref65">[65]</a> provides for an important resource on comments about the CCI and its judgments and media reactions to the CCI. The report submits that while the CCI is generally seen to be doing well in the media, several academics have argued that the CCI is riddled by legal lacunae, that it lacks teeth and that because most of its orders have been appealed in courts, and it lacks autonomy due to rules of procedure, it is not an effective or efficient forum and needs to be improved by further legislation. The same has been corroborated by a report in the Indian Express that speaks of new bills that were in the offing in 2012 that were aimed at giving the CCI more teeth. <a href="#_ftn66" name="_ftnref66">[66]</a></p>
<p style="text-align: justify; ">Peter Alexiadis<a href="#_ftn67" name="_ftnref67">[67]</a> in his outlines general principles of ex post and ex ante intervention and how the two disciplines come into tension with each other when competition law is involved in a dispute along with any other legal regime such as IPR laws. He explores ways in which these two disciplines must be balanced. This article was used to understand how the ex-post decisions involving competition law inevitably are backward looking and adopt a narrow view of the product, looking largely at its demand side-substitutability. This helps explore the argument that a sector specific regulatory body could better address complex technical and economic questions specific to the industry, as opposed to litigation merely being played out in the courts.</p>
<p style="text-align: justify; ">George Cary and Mark W Nelson<a href="#_ftn68" name="_ftnref68">[68]</a> have delved into the question of the role of antitrust in policing abuse by patent holders with royalty stacks in standard setting organisations. They have argued that it is important for a legal tool to police this abuse because while other areas of law may prove capable of addressing these issues, these disputes are, at their core antitrust disputes. And only antitrust law can ensure that private parties and government enforcement authorities can seek redress where there is harm to competition.</p>
<p style="text-align: justify; ">Suzanne Michael in her article<a href="#_ftn69" name="_ftnref69">[69]</a> argues that SEP holders who have their patent incorporated as a standard stand to gain by increasing royalty rates beyond RAND terms and beyond their actual economic value as they hold a monopoly simply because they own the standard. She argues that this will harm consumer interest and slow innovation. She further argues that an ex-ante approach should therefore be taken in ordering remedies in these cases to protect consumer interest. She also looks into the question of holdups and injunctions in cases involving RAND commitment. But her argument about ex ante remedies in RAND cases is an interesting point relevant to the paper.</p>
<p style="text-align: justify; ">Anne Layne-Farrar, A Jorge Padilla and Richard Schmalensee<a href="#_ftn70" name="_ftnref70">[70]</a> in their article delve into the question of what exactly would constitute FRAND terms in the context of licensing terms for essential IP in a standards setting organization. They have also analyzed the Georgia-Pacific guidelines and extending it to a standard setting organization and the numeric proportionality method proposed by courts in EU. They conclude that the Georgia-Pacific guidelines might work in FRAND disputes, that while this would leave FRAND basically undefined, it would be made an enforceable promise with an SSO and that these guidelines would provide sufficient direction and predictability in litigation. This article has been used to understand what kind of guidelines a regulatory body could be expected to codify for patent remedies in India.</p>
<p style="text-align: justify; ">Rahul Singh in his article<a href="#_ftn71" name="_ftnref71">[71]</a> analyses how due to its nature, the CCI is not sector specific and is supposed to look at "anti-competitive behavior" in all sectors most of whom already have their own sector specific regulator. He argues that unlike sector specific regulators, the CCI can privately enforce orders and pursue claims for damages and that this makes the CCI better situated to deal with consumer welfare areas. He further argues that to reduce transaction costs, enhance legal certainty and predictability, enforcement of such disputes must be left in the hands of the CCI. This argument has been extended to argue that courts enforcing IPRs would be less suited to handle these matters and more likely to cause inefficiencies and unpredictability and a re-imagined, empowered CCI would be the best suited judge of these issues.</p>
<p style="text-align: justify; ">K.D.Raju in his article<a href="#_ftn72" name="_ftnref72">[72]</a> analyses broadly the connection between IP laws and competition law in India. He argues that while the jurisprudence behind IPR and competition law has traditionally been viewed as incompatible with each other, in effect, they seek to further the same goals. He argues that the competition laws as they exist in India currently cannot effectively deal with the nexus with IPR and suggests that the CCI come out with IPR specific guidelines to deal with upcoming litigation in the area.</p>
<p style="text-align: justify; ">Apoorva and Shreeja Sen<a href="#_ftn73" name="_ftnref73">[73]</a> in their report trace the stay orders in courts across India holding up CCI investigations and how this is symptomatic of the fact that courts do not understand concerns regarding hold-ups and reverse hold-ups in IP related cases where time is of the essence.</p>
<p style="text-align: justify; ">Karthik Jayakumar<a href="#_ftn74" name="_ftnref74">[74]</a> has written about the Bhatia International case regarding arbitration, we use this to merely draw parallels with IPR laws in that just as in Bhatia the court held that arbitrations having their seat outside India were still within the jurisdiction of Indian courts and this was overruled in the BALCO case , the role of the CCI also has to be made clear through legislative reform or judicial pronouncement for the regulator to address questions of competition law across different sectors without a threat of stay orders from courts.</p>
<p style="text-align: justify; ">Nick Robinson in his article<a href="#_ftn75" name="_ftnref75">[75]</a> speaks of good governance courts, and of how courts in India have used good governance and right to life to become essentially second governments regulating everything from encouraging the use of natural gas to regulated encroachment on preservation of public forests to guidelines for school safety at the expense of government and independent regulators. While Nick Robinson makes a larger argument about good governance courts, it is used only for the limited purpose of supporting the argument made in the paper about judicial interventions allowing for anti-competitive behavior.</p>
<div>
<hr />
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<p><a href="#_ftnref1" name="_ftn1">[1]</a> Avendus Capital, India's Mobile Internet: The Revolution Has Begun: An Overview of How Mobile Internet Is Touching the Lives of Millions, Avendus Capital Private Limited, September 2013, available at http://www.avendus.com/Files/Fund%20Performance%20PDF/Avendus_Report-India's_Mobile_Internet-2013.pdf (last accessed 14 May, 2015).</p>
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<p><a href="#_ftnref2" name="_ftn2">[2]</a> John-Harmen Valk et.al, Using Mobile Phones to Improve Educational Outcomes: An Analysis of Evidence from Asia, The International Review of Research in Open and Distributed Learning, Vol 11, No 1 (2010), available at http://www.irrodl.org/index.php/irrodl/rt/printerFriendly/794/1487 (last accessed 10 May, 2015);</p>
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<p><a href="#_ftnref3" name="_ftn3">[3]</a> Gitanjali Shankar & Nikita Gupta, Intellectual Property and Competition Law: Divergence, Convergence and Independence, NUJS Law Review, Vol.4, (2011), pp.113-132.</p>
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<p><a href="#_ftnref4" name="_ftn4">[4]</a> Robert Pitofsky, Comments on Lemley: An Introduction to IPR and Antitrust, Southwestern Journal of Law & Trade in the Americas, Vo.13, (2006-07), pp.257-263</p>
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<p><a href="#_ftnref5" name="_ftn5">[5]</a> Katrina Perehudoff & Sophie Bloemen, Anti-Competitive Strategies Hamper Access to Medicines in Europe, Amsterdam Law Forum,Vol.3, 2011, pp 81-87.</p>
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<p><a href="#_ftnref6" name="_ftn6">[6]</a> 332 U.S. 392 (1947)</p>
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<div id="ftn7">
<p><a href="#_ftnref7" name="_ftn7">[7]</a> 371 U.S. 38 (1962)</p>
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<div id="ftn8">
<p><a href="#_ftnref8" name="_ftn8">[8]</a> 448 F.2d 43 (9th Cir. 1971).</p>
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<div id="ftn9">
<p><a href="#_ftnref9" name="_ftn9">[9]</a> 466 U.S. 2 (1984).</p>
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<p><a href="#_ftnref10" name="_ftn10">[10]</a> Antitrust Guidelines for the Licensing of Intellectual Property, U.S. Department of Justice and Federal Trade Commission, Available at: http://www.usdoj.gov/atr.public.guidelines.ipguide.htm (Last Accessed: 1/12/14)</p>
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<p><a href="#_ftnref11" name="_ftn11">[11]</a> Daniel B Raviche & Shani C Dilloff, Antitrust Scrutiny of Intellectual Property Exploitation: It just don't make no kind of sense, Southwester Journal of Law and Trade in the Americas, Vol.8, (2001-02), p.83-158</p>
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<p><a href="#_ftnref12" name="_ftn12">[12]</a> Robert D Anderson, The Interface Between Competition and policy and Intellectual Property in the Context of the International Trading System, Journal of International Economic Law, Vol.1, (1998), pp.655-680.</p>
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<p><a href="#_ftnref13" name="_ftn13">[13]</a> Eileen Mc Dermot, Managing Intellectual Property, No.187, March 2009</p>
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<p><a href="#_ftnref14" name="_ftn14">[14]</a> Howard Hovenkamp, Antitrust and Innovation: Where we are and where we should be going, Antitrust Law Journal, Vol.77, (2010-11), p.749-759</p>
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<p><a href="#_ftnref15" name="_ftn15">[15]</a> John H Barton, Antitrust Treatment of Oligopolies with Mutually Blocking Patent Portfolios , Antitrust Law Journal, Vol. 69, No. 3 (2002), pp. 851-882</p>
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<p><a href="#_ftnref16" name="_ftn16">[16]</a> 708 F.2d 1081(7th Cir.) Cert. Denied. 464 U.S.955 (1983</p>
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<p><a href="#_ftnref17" name="_ftn17">[17]</a> Id.</p>
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<p><a href="#_ftnref18" name="_ftn18">[18]</a> Richard J Gilbert & Carl Shapiro, An Economic Analysis of Unilateral Refusals to License Intellectual Property, Proceedings of The National Academy of Sciences of the United States of America, Vo.93, No.23 (Nov.12, 1996), pp.12749-12755.</p>
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<p style="text-align: justify; "><a href="#_ftnref19" name="_ftn19">[19]</a> Robert Pitofsky, Donna Patterson & Jonathan Hooks, The Essential Facilities Doctrine under U.S. Antitrust Law, Antitrust Law Journal, Vol.70, No.2, (2002), pp.443-462</p>
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<p style="text-align: justify; "><a href="#_ftnref20" name="_ftn20">[20]</a> Paul D Marquardt & Mark Leddy, The Essential Facilities Doctrine and Intellectual Property Rights: A response to Pitofsky, Patterson and Hooks, Antitrust Law Journal, Vol.70, No.3, (2003), pp.847-873</p>
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<p><a href="#_ftnref21" name="_ftn21">[21]</a> 410 U.S. 366 (1973)</p>
</div>
<div id="ftn22">
<p><a href="#_ftnref22" name="_ftn22">[22]</a> 436 U.S. 585 (1985)</p>
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<div id="ftn23">
<p><a href="#_ftnref23" name="_ftn23">[23]</a> 194, F. 2d, 484,487 (1st Cir), cert. denied, 344, U.S. 817 (1952</p>
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<p><a href="#_ftnref24" name="_ftn24">[24]</a> 326 U.S. 1 (1945).</p>
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<div id="ftn25">
<p><a href="#_ftnref25" name="_ftn25">[25]</a> 472, U.S. 585.</p>
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<p><a href="#_ftnref26" name="_ftn26">[26]</a> Ref. Case 6 and 7/1973, Commercial Solvents v. Commission 1974 ECR 223.</p>
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<p><a href="#_ftnref27" name="_ftn27">[27]</a> Case 22/1978 (1979), ECR, 1869.</p>
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<p><a href="#_ftnref28" name="_ftn28">[28]</a> Ref. C. 27/1976, United Brands v. Commission (1978) , ECR 207.</p>
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<p style="text-align: justify; "><a href="#_ftnref29" name="_ftn29">[29]</a> Martin Cave & Peter Crowther, Competition Law Approaches to Regulating Access to Utilities: The Essential Facilities Doctrine, Rivisita Internazionale Di Scienze Sociali, Anno 103, No.1, Interconnection Pricing Workshop (Milan April 7-8 , 1995), pp. 141-157</p>
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<p><a href="#_ftnref30" name="_ftn30">[30]</a> Case C-7/97, (1999) 4 CMLR 112</p>
</div>
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<p><a href="#_ftnref31" name="_ftn31">[31]</a> B&I Line plc. V. Sealink harbors Ltd, a Commission of 11 June 1992, (1992), C.M.L.R 255 at paragraph 4.</p>
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<p style="text-align: justify; "><a href="#_ftnref32" name="_ftn32">[32]</a> Objective justifications such as shortage of the product were accepted in Case77/77 Benezine en Petroleum Handlesmaatschappij BV v. British Petroleum (1978) ECR 1513</p>
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<p style="text-align: justify; "><a href="#_ftnref33" name="_ftn33">[33]</a> Case T-69/89 Radio Telefis Eireaan v. Commission (1991) ECR II-485 on appeal Cases C-241P and 242/91P RTE and ITP v. Commission (1995) ECR I-743.</p>
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<p><a href="#_ftnref34" name="_ftn34">[34]</a> Albertina Albros -Llorens, The Essential Facilities Doctrine in EC Competition Law, the Cambridge Law Journal, Vol.58, No.3 (Nov.,1999) , pp. 490-492.</p>
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<p><a href="#_ftnref35" name="_ftn35">[35]</a> 1966, p. 570-71</p>
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<p><a href="#_ftnref36" name="_ftn36">[36]</a> Gregory T Gundlack & Paul N Bloom, The Essential Facility Doctrine: Legal limits and Antitrust Considerations, Journal of Public Policy and Marketing, Vol.12, No.2 (Fall,1993), pp.156-169.</p>
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<p><a href="#_ftnref37" name="_ftn37">[37]</a> Spencer Weber Waller & William Tasch, Antitrust Law Journal, Vol. 76, No. 3 (201), pp. 741-767.</p>
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<p><a href="#_ftnref38" name="_ftn38">[38]</a> Daniel E Troy, Unclogging the Bottle neck: A New Essential Facility Doctrine, Columbia Law Review, Vol. 83, No.2, (Mar., 1983), pp.441-487.</p>
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<p style="text-align: justify; "><a href="#_ftnref39" name="_ftn39">[39]</a> Ann Armstrong et al., The Smartphone Royalty Stack: Surveying Royalty Demands for the Components Within Smartphones, available at http://www.wilmerhale.com/uploadedFiles/Shared_Content/Editorial/Publications/Documents/The-Smartphone-Royalty-Stack-Armstrong-Mueller-Syrett.pdf (last accessed 15 May, 2015);</p>
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<p style="text-align: justify; "><a href="#_ftnref40" name="_ftn40">[40]</a> Damien Geradin, Pricing Abuses by Essential Patent Holders in A Standard Setting Context: A View from Europe, Antitrust Law Journal, Vol. 76, No. 1 (2009), 329-357; Damien Geradin, Ten Years of DG Competition Effort to Provide Guidance on the Application of Competition Rules to the Licensing of Standard Essential Patents: Where Do We Stand?, http://www.law.northwestern.edu/faculty/programs/searlecenter/workingpapers/documents/Geradin_DG_Competition.pdf (last accessed 19 May, 2015).</p>
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<p style="text-align: justify; "><a href="#_ftnref41" name="_ftn41">[41]</a> Bouthenia Guermazi and David Satola, Creating the "Right" Enabling Environment for ICT, in ROBERT SCHWARE (ED.), E-DEVELOPMENT: FROM EXCITEMENT TO EFFECTIVENESS (2005, World Bank Publications).</p>
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<p style="text-align: justify; "><a href="#_ftnref42" name="_ftn42">[42]</a> Damien Geradin and Miguel Rato, Can Standard-Setting Lead to Exploitative Abuse? A Dissonant View on Patent Hold-up, Royalty-Stacking and the Meaning of FRAND, 3 Eur. Competition J. 101,103 (2007).</p>
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<p style="text-align: justify; "><a href="#_ftnref43" name="_ftn43">[43]</a> Michael A. Carrier, A Roadmap to the Smartphone Patent Wars and FRAND Licensing, Competition Policy International, CPI Antitrust Chronicle April 2012 (2) at 2.</p>
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<p><a href="#_ftnref44" name="_ftn44">[44]</a> Mark A Lemley and Carl Shapiro, Patent Holdup and Royalty Stacking, Texas law Review, Vol.85, 2007, 1991-2050.</p>
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<p><a href="#_ftnref45" name="_ftn45">[45]</a> Mark A Lemley and Carl Shapiro, A Simple Approach to Setting Reasonable Royalties for Standard Essential Patents, Berkeley Technology Law Journal, Vol.28, 2013 at 1136-1137</p>
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<p><a href="#_ftnref46" name="_ftn46">[46]</a> Phillipe Baechtold, IPRs and Standards Setting: Some Issues, available at http://www.wipo.int/edocs/mdocs/sme/en/wipo_smes_ge_07/wipo_smes_ge_07_www_81604.ppt (last accessed 19 May, 2015) at 1</p>
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<p><a href="#_ftnref47" name="_ftn47">[47]</a> Richard Schmalensee, Standard-Setting, Innovation Specialists and Competition Policy, 57(3) THE JOURNAL OF INDUSTRIAL ECONOMICS, 526-552 (September, 2009).</p>
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<p style="text-align: justify; "><a href="#_ftnref48" name="_ftn48">[48]</a> Gertjan Kuipers et.al, A Further Perspective on Apple v. Samsung: How to Successfully Enforce Standard Essential Patents in the Netherlands, Berichten Industriele Eigendon, Aug. 2012, available at http://www.debrauw.com/News/Publications/Documents/artikel1_Kuipers-Groeneveld-Lamme.pdf (last accessed 21 May, 2015) at 222</p>
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<p style="text-align: justify; "><a href="#_ftnref49" name="_ftn49">[49]</a> Leon Greenfield, et al., SEP Enforcement Disputes, Beyond the Water's Edge: A Survey of Recent Non US Decisions, Antitrust, Vol.27, No.3, 2013 at 3.</p>
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<p style="text-align: justify; "><a href="#_ftnref50" name="_ftn50">[50]</a> Damien Neven and Miguel de la Mano, Economics at DG Competition, 2009-2010, 37(4) REVIEW OF INDUSTRIAL ORGANISATION, 309-333 (December, 2010).</p>
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<p><a href="#_ftnref51" name="_ftn51">[51]</a> Björn Lundqvist, Standardisation under EU Competition Rules and US Antitrust Laws, (2014).</p>
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<p style="text-align: justify; "><a href="#_ftnref52" name="_ftn52">[52]</a> James E Abell, Setting the Standard: A Fraud-based approach to Antitrust pleading in standard development, 75(4) UNIVERSITY OF CHICAGO LAW REVIEW 1601-1631 (2008).</p>
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<p style="text-align: justify; "><a href="#_ftnref53" name="_ftn53">[53]</a> Koren W. Wong-Ervin, Standard-Essential Patents: The International Landscape, available at https://www.ftc.gov/system/files/attachments/key-speeches-presentations/standard-essential_patents_the_intl_landscape.pdf (last accessed 22 May, 2015) at 14.</p>
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<p><a href="#_ftnref54" name="_ftn54">[54]</a> Ravikant Bharadwaj, Standard Setting in India: Competition Law and IP Issues, IMJ, Vol.5, 2013 at.1, 2.</p>
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<p style="text-align: justify; "><a href="#_ftnref55" name="_ftn55">[55]</a> Anubha Sinha, Micromax Files Complaint: CCI Orders Investigation into Ericsson's FRANDLY Licensing, SpicyIP, 29 November 2013, available at http://spicyip.com/2013/11/micromax-files-complaint-cci-orders-investigation-into-ericssons-frandly-licensing.html (last accessed 22 May, 2015).</p>
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<p style="text-align: justify; "><a href="#_ftnref56" name="_ftn56">[56]</a> Prashanth T Reddy, Interim Justice: Troubling Trend, Business Standard, 30 March 2013, available at http://www.business-standard.com/article/opinion/interim-justice-troubling-trend-113033000223_1.html (last accessed 23 May, 2015).</p>
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<p><a href="#_ftnref57" name="_ftn57">[57]</a> Vaibhav Choukse, The Debate on Essentials, BUSINESS LINE, (March 29, 2015).</p>
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<p style="text-align: justify; "><a href="#_ftnref58" name="_ftn58">[58]</a> John E Matheson, Patents and Standards, FRAND Challenges for India's ICT Sector, SpicyIP Discussion paper series, Paper no. 201401, 2014, available at: http://spicyip.com/wp-content/uploads/2014/09/FRAND-Challenges-for-Indias-ICT-Sector.pdf (last accessed 21 May, 2015) at 7</p>
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<p style="text-align: justify; "><a href="#_ftnref59" name="_ftn59">[59]</a> Pankaj Soni and Satyoki Koundinya, Taking the FRANDLY Approach, a First Look at FRAND Battles in India, Remfry and Sagar, available at http://www.iam-media.com/Intelligence/IAM-Yearbook/2015/Country-by-country/Taking-the-FRAND-ly-approach-a-first-look-at-FRAND-battles-in-India (last accessed 21 May, 2015).</p>
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<p style="text-align: justify; "><a href="#_ftnref60" name="_ftn60">[60]</a> Competition Commission of India, Guide to Abuse of Dominance, available at http://www.cci.gov.in/images/media/Advocacy/Awareness/Abuse_Dominance.pdf (last accessed 21 May, 2015).</p>
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<p style="text-align: justify; "><a href="#_ftnref61" name="_ftn61">[61]</a> Samir Gandhi et al., Enforcement Trends in India under Competition Act 2002, Practical Law, 1 June 2013, available at http://uk.practicallaw.com/2-532-3777?q=&qp=&qo=&qe=#a456237 (last accessed 11 May, 2015).</p>
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<p style="text-align: justify; "><a href="#_ftnref62" name="_ftn62">[62]</a> Pratibha Jain et.al., Competition Law in India, A Report on Jurisprudential Trends, Nishit Desai and Associates, available at http://www.nishithdesai.com/fileadmin/user_upload/pdfs/Research%20Papers/Competition_Law_in_India.pdf</p>
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<p style="text-align: justify; "><a href="#_ftnref63" name="_ftn63">[63]</a> Archana Shanker and Shraddha Singh Chauhan, How to use Patent and Competition Law Effectively in Tandem, 1 September 2014, Managingip, available at http://www.managingip.com/Article/3382427/How-to-use-patent-and-competition-law-effectively-in-tandem.html (last accessed 20 May, 2015).</p>
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<p style="text-align: justify; "><a href="#_ftnref64" name="_ftn64">[64]</a> Kanika Chaudhary Nayar, India: Jurisdiction of the CCI: Navigating Through Muddy Waters, 28 April 2015, Mondaq, Available at: http://www.mondaq.com/india/x/392738/Antitrust+Competition/Jurisdiction+Of+The+CCI+Navigating+Through+Muddy+Waters</p>
</div>
<div id="ftn65">
<p style="text-align: justify; "><a href="#_ftnref65" name="_ftn65">[65]</a> CUTS International, Competition Commission of India Through the Eyes of the Media: Doing Well!, 17 September 2012, available at http://www.cuts-ccier.org/pdf/Competition_Commission_of_India_through_the_eyes_of_the_media-Doing_well.pdf (last accessed 13 May, 2015) at 13.</p>
</div>
<div id="ftn66">
<p style="text-align: justify; "><a href="#_ftnref66" name="_ftn66">[66]</a> Bureau, Bill Aimed at Giving CCI More Teeth Tabled, Indian Express, 11 December 2012, Available at: http://archive.indianexpress.com/news/bill-aimed-at-giving-cci-more-teeth-tabled/1043320/</p>
</div>
<div id="ftn67">
<p style="text-align: justify; "><a href="#_ftnref67" name="_ftn67">[67]</a> Peter Alexiadis, Balancing the application of ex post and ex ante disciplines under community law in electronic communications markets: square pegs in round holes? RIGHTS AND REMEDIES IN A LIBERALISED AND COMPETITIVE INTERNAL MARKET (2012).</p>
</div>
<div id="ftn68">
<p style="text-align: justify; "><a href="#_ftnref68" name="_ftn68">[68]</a> George S Cary, Mark W Nelson et al, the case for Antitrust law to police the patent holdup problem in standard setting, 77(3) ANTITRUST LAW JOURNAL 913-945 (2011).</p>
</div>
<div id="ftn69">
<p><a href="#_ftnref69" name="_ftn69">[69]</a> Suzanne Michel, Bargaining for RAND Royalties in the Shadow of Patent Remedies Law, 77(3) ANTITRUST LAW JOURNAL 889-911 (2011).</p>
</div>
<div id="ftn70">
<p style="text-align: justify; "><a href="#_ftnref70" name="_ftn70">[70]</a> Anne Layne-Farrar, A Jorge Padilla and Richard Schmalensee, Pricing Patents for Licensing in Standard-Setting Organisations: Making Sense of FRAND Commitments, 74(3) ANTITRUST LAW JOURNAL 671-706 (2007).</p>
</div>
<div id="ftn71">
<p style="text-align: justify; "><a href="#_ftnref71" name="_ftn71">[71]</a> Rahul Singh, The Teeter Totter of Regulation and Competition: Balancing the Indian Competition Commission with Sectoral Regulators, Washungton University Global Studies Law Review, Vol.8, Issue 1, January 2009 at 97-102.</p>
</div>
<div id="ftn72">
<p style="text-align: justify; "><a href="#_ftnref72" name="_ftn72">[72]</a> K D Raju, The Inevitable Connection Between Intellectual Property and Competition Law: Emerging Jurisprudence and Lessons for India, Journal of Intellectual Property Rights, Vol.18, No.2, 2013, at 111-122.</p>
</div>
<div id="ftn73">
<p style="text-align: justify; "><a href="#_ftnref73" name="_ftn73">[73]</a> Apoorva, Shreeja Sen, Multiple Court Stays Hold UP CCI Investigations, Livemint, 28 November 2014, available at http://www.livemint.com/Politics/5Lm7tjIuogbBsm6qRb4exH/Multiple-court-stays-hold-up-CCI-investigations.html (last accessed 23 May, 2015).</p>
</div>
<div id="ftn74">
<p style="text-align: justify; "><a href="#_ftnref74" name="_ftn74">[74]</a> Karthik Jayakumar, Bhatia v. Balco, Who Should Stand?, 18 August 2013, available at http://blog.athirtyeight.com/2013/08/bhatia-v-balco-who-should-stand.html (last accessed 22 May, 2015).</p>
</div>
<div id="ftn75">
<p style="text-align: justify; "><a href="#_ftnref75" name="_ftn75">[75]</a> Nick Robinson, Expanding Judiciaries: India and the Rise of the Good Governance Court, Washington University Global Studies Law Review, Vol.8, Issue 1, January 2009 at 21.</p>
</div>
</div>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/pervasive-technologies-project-working-document-series-document-2-literature-review-on-competition-law-ipr-access-to-100-mobile-devices-1'>http://editors.cis-india.org/a2k/blogs/pervasive-technologies-project-working-document-series-document-2-literature-review-on-competition-law-ipr-access-to-100-mobile-devices-1</a>
</p>
No publisherAmulya Purushothama and Nehaa ChaudhariAccess to KnowledgePervasive Technologies2015-09-03T02:02:51ZBlog EntryGovernment Intervention in the Marketplace: Policies for Access or Politics? (Interviews with Semiconductor Industry – Part 4)
http://editors.cis-india.org/a2k/blogs/interviews-with-semiconductor-industry-part-4
<b>This is the last of a four-part blog series highlighting findings from a small sample of interviews with fabless semiconductor industry professionals in Taiwan. These industry insiders was approached for the intent of understanding expert knowledge on the process of integrated circuit design. However, the conversations resulted in leanings far beyond that scope. This post explores the tension between market forces and governmental intervention in providing access to mobile technology. </b>
<p style="text-align: justify; "><span>Following conversations regarding the trends and changes in computing usage models, process of chip manufacturing, and challenges with the current patent system, CIS wanted to understand these chip manufacturers' thoughts on the smart phone patent wars' implications on access to mobile technology, and how government regulation and intervention could perhaps resolve some the legal battles.</span></p>
<p style="text-align: justify; ">Although it seems there is an overabundance of litigation and patent wars amongst smartphone manufacturers, most recently culminating in India between manufacturers Xiaomi and Ericcsson,<a href="#fn1" name="fr1">[1] </a> it was of one interviewees' perception that these legal battles was simply a natural result of market forces in the technology industry. Although companies do indeed want to protect their intellectual property, the lawsuits are more often motivated by business interests to slow down ones' competitors. Litigation requires a massive investment in time and resources, and ultimately, the courts are just another avenue where market forces are at play. Naturally, with or without patent wars, prices will go down with competition.</p>
<p style="text-align: justify; ">The interviewee provided the example of Microsoft and Intel who had drove the computer industry who were making 75-80% of the products with profits only going to them. But as the market grew, prices slowly went down as more companies came out with new products. This was a "<b>natural, organic development"</b>, and "<b>perhaps if the industry had dropped prices earlier it would have been slightly better for consumers",</b> but one interviewee <b>"doubt it would have made much of a difference."</b></p>
<p style="text-align: justify; ">In the past there have been instances where governments have regulated markets to prevent anti-competitive behavior and predatory pricing, as exemplified by the antitrust claim filed against Microsoft in the United States, <a href="#fn2" name="fr2">[2]</a> or Intel being sued by the European Union for monopoly control.<a href="#fn3" name="fr3">[3] </a></p>
<p style="text-align: justify; ">In China, Qualcomm has been under investigation, and is risk of being fined up to 10% of their most recent annual revenues because the government believes they are monopolizing the market. More recently, there have been talks of a possible investigation by the European Union for the same.<a href="#fn4" name="fr4">[4] </a> However, the interviewee expressed his disagreement that these really resolved the problem of high costs.</p>
<p style="text-align: justify; ">" <b> Everyone always complained about software costs...that Microsoft was too expensive, that PCs were too high. But then with mobile, for years Microsoft was trying to do Windows... but then Google came along and offered Android for next to nothing. Suddenly the market's changed." </b> <br /> <br /> What really resolved the problem of high costs of personal computers according to this interviewee was mobile phones, which merely came with a bit of patience with the market. There seemed to be a general lack of faith in government intervention, and a sentiment that government imposed an overly top-down management of the industry.</p>
<p style="text-align: justify; ">Another example given of poor government intervention was the Aakash tablet in India, which one interviewee noted was a "disaster" because the government initially announced a retail price of USD $60 without accurately taking into actual costs of production. Having been considered as one of the potential suppliers for the tablet, this interviewee noted a later announcement of a retail price of USD $28, which taking into account the physical cost of hardware would have been impossible to manufacture. The interviewees' company was requested to reduce their prices given an anticipated high stock order, but ultimately the partnership never went through as it would have resulted in a significant loss.</p>
<p style="text-align: justify; ">Initially the Aakash tablet was conceived to be 'made-in-India', but our interviewee cited a bit of "naivety" on behalf of the government. At a meeting with the Aakash planners, he explained how the manufacturing of each part - the screen, motherboard, small connectors, supply busts - required billions of dollars in infrastructural investment. <br /> <br /> <b> "Suddenly you're not talking about one factory, you're talking about 30 factories. It's just not going to work. It's too complex. And this is why Shenzhen is going to do very well in the next 10 years. Because they have done this." </b></p>
<p style="text-align: justify; ">Given the Pervasive Technologies project covers the territories of China and India, and attempts to evaluate potential policy levers to enhance access for both geographies, this was a useful insight which led to further questioning about the experiences of working within various jurisdictions. In particular, we were interested in the experiences of these companies operating in different geographic markets, and asked specifically about comparative experiences between the United States and Europe which generally has more stringent enforcement, with our countries of focus - India and China.</p>
<p style="text-align: justify; ">One of the interviewed companies which provided turnkey chip set solutions explained how their reputation in China had evolved since the ease of use facilitated the manufacturing of counterfeit products, particularly at a time when the Chinese government did not seem to care too much about infringement. Although there has been increased enforcement measures, these company's products are still often found in gray markets and in shanzhai technology through unauthorized resellers despite not knowingly selling chip sets to illegal companies.</p>
<p style="text-align: justify; ">Another interviewee perceived that the Chinese and Taiwanese market required much more effort in general for foreign companies to operate in due to lack of transparency and multilingual access, compared with the North American and European market. The indigenous standards China is pushing, like the TD-SDCMA standard within the telecom industry, one interviewee noted that it puts more of a burden on companies to have multiple standards, and felt it was more so a political demonstration of Chinese power.<sup> </sup>Other analyses cite this as a strategic method to set these standards for enhancing development of local research and development, and use indigenous standards as a bargaining tool to reduce royalty rates.<a name="sdfootnote9anc"></a> <a href="file:///C:/Users/len-S210/Desktop/New%20folder/Taiwan%203.docx#sdfootnote9sym"><sup>9</sup></a></p>
<p style="text-align: justify; ">Regardless of the motives, another interviewee noted that the Chinese market was big enough with opportunities worth pursuing that developing products according to China's standards made sense as a business.<sup> </sup>Following the market means pursuing demand, and according to this interviewee, although China requires a bit more investment, it is justified if it is what customers are asking for.</p>
<p style="text-align: justify; ">Despite increased foreign investment in the Chinese manufacturing sector, local smartphone manufacturers from China like Lenovo, Huawei, ZTE, and Xiaomi provide smartphones at an extremely affordable cost - for USD $50-60, or about RMB 300-400. Other marketplaces like Taobao also sell cheap smartphones in the mass market. There are difficulties of operating in India due to lack of reliable infrastructural support, which results in a need for increased investment and risk. However, a development of indigenous Indian tech industry can be done, perhaps developing the hardware first in China, setting up some local manufacturing while focusing on software development in the meantime.</p>
<p style="text-align: justify; ">This small sample of interviewees seemed to express a general perception that less governmental regulation and intervention in the technology industry was better for access. However, it can be reasonably well-argued that the reason China's mobile market is so successful is due to government-imposed standards which prevented reliance on expensive foreign patents. After explaining in brief the proposal of a compulsory licensed patent pool for standard essential patents, the interviewees responded that it may be something the government is trying to do with good intentions, but could have unintended side effects. <br /> <br /> When asked for suggestions on how policy makers could help facilitate access to technology and an overall more innovative market space, answers included increased hardware education through encouraging openness for more sharing and learning within the industry, and outside to hackers and makers which could encourage 'outsourced research and development'. Although other interviewees seemed to disagree that openness would encourage access, the overriding consensus was the need for policy makers to prevent the possibility of behaviour like patent trolling and the unnecessary protection and locking up of innovative technologies from arising in the first place - done via a global standardized restructuring of the patent system.</p>
<div style="text-align: justify; ">
<hr />
<p>[<a href="#fr1" name="fn1">1</a>]. http://indianexpress.com/article/technology/mobile-tabs/xiaomi-vs-ericsson-vs-oneplus-vs-micromax-the-winter-of-smartphone-court-battles/</p>
</div>
<p>[<a href="#fr2" name="fn2">2</a>].https://www.princeton.edu/~achaney/tmve/wiki100k/docs/United_States_Microsoft_antitrust_case.html</p>
<p>[<a href="#fr3" name="fn3">3</a>]. http://curia.europa.eu/jcms/upload/docs/application/pdf/2014-06/cp140082en.pdf</p>
<p>[<a href="#fr4" name="fn4">4</a>]. http://www.forbes.com/sites/greatspeculations/2014/08/29/possible-eu-investigation-add-to-qualcomms-regulatory-problems/</p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/interviews-with-semiconductor-industry-part-4'>http://editors.cis-india.org/a2k/blogs/interviews-with-semiconductor-industry-part-4</a>
</p>
No publishermaggieAccess to KnowledgePervasive Technologies2014-12-26T14:34:26ZBlog Entry“Copyright Management in the Age of Mobile Music” - Living Methodology Document
http://editors.cis-india.org/a2k/blogs/copyright-management-in-age-of-mobile-music
<b>This blog post outlines the research methodology for a chapter in the Pervasive Technologies: Access to the Marketplace project, in which access to the mobile phone hardware, software, and content is assessed within the intellectual property framework in India and China. This chapter focuses on copyright and access to music content in India. </b>
<p style="text-align: justify; "><b>Research Problem: </b></p>
<p style="text-align: justify; ">In light of new music distribution business models accessible via the mobile phone, there has been increasing complexity in music copyright licensing, revenue, and royalty distribution. Despite the intent of the 2012 Copyright Amendment to resolve stakeholder grievances, the copyright institutions in India continue to lack legitimacy amongst relevant stakeholders for the management of music copyright.</p>
<p style="text-align: justify; "><b>Research Objective: </b></p>
<p style="text-align: justify; ">Provide evidence-based policy proposals which may aid industry leaders and policy makers to more effectively manage music copyright in India</p>
<p style="text-align: justify; "><b>Research Questions </b></p>
<ol style="text-align: justify; ">
<li>How have evolving music distribution technologies accessible via the mobile in India impacted business models and licensing practices amongst stakeholders in the digital music industry?</li>
<li>What are the specific copyright challenges for each relevant stakeholder, and how can the copyright institutions provide for more effective management in the industry? </li>
</ol>
<p style="text-align: justify; "><b>Research Objects</b></p>
<p style="text-align: justify; ">Copyright institutions:</p>
<ul style="text-align: justify; ">
<li><span>Copyright Act (and 2012 Amendment)</span></li>
<li><span>Copyright Board</span></li>
<li><span>Copyright societies</span></li>
</ul>
<p style="text-align: justify; ">Modes of mobile music access</p>
<ul style="text-align: justify; ">
<li><span>Value-added-services</span></li>
<li><span>Device- bundled music</span></li>
<li><span>Online download stores</span></li>
<li><span>Online streaming (primary focus due to increasing popularity)</span></li>
</ul>
<p style="text-align: justify; "><b>Methodology</b></p>
<ol style="text-align: justify; ">
<li><b>How have evolving music distribution platforms impacted business models and licensing practices amongst stakeholders in the digital music industry?</b>
<ul>
<li>Map out digital platforms' business models</li>
<li>Identify stakeholders within these ecosystems, and their copyright licensing negotiation process, terms, and revenue distribution </li>
</ul>
</li>
<li><b>What are the specific challenges pertaining to copyright and licensing for each relevant stakeholder? How can the copyright institutions provide for more effective management? </b>
<ul>
<li>Identify and evaluate grievances pre- and post-2012 Copyright Amendment</li>
<li>Identify proposals for improvement of copyright institutions: Copyright Act, Copyright Board, copyright societies. </li>
<li>Compare music copyright institutional structure and process in other jurisdictions </li>
<li>Gather list of policy proposals and evaluate </li>
</ul>
</li>
<li>Methods:
<ul>
<li>Literature review – industry reports, media reports, industry blog posts, academic research, </li>
<li>Expert interviews of stakeholders – handset manufacturers, copyright societies, government, lobby groups, content aggregators, music labels, music publishers, online streaming platforms, online music retailers, venture capital investors, telecom operators, musicians, multi-channel networks, legal practitioners </li>
<li>Stakeholder analysis of policy proposals</li>
</ul>
</li>
</ol>
<p style="text-align: justify; "> </p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/copyright-management-in-age-of-mobile-music'>http://editors.cis-india.org/a2k/blogs/copyright-management-in-age-of-mobile-music</a>
</p>
No publishermaggieAccess to KnowledgePervasive Technologies2014-12-26T13:44:25ZBlog Entry[Open] Innovation and Expertise > Patent Protection & Trolls in a Broken Patent Regime (Interviews with Semiconductor Industry - Part 3)
http://editors.cis-india.org/a2k/blogs/interviews-with-semi-conductor-industry-part-3
<b>This is the third of a four-part blog series1 highlighting findings from a small sample of interviews with fabless semiconductor industry professionals in Taiwan. These industry insiders was approached for the intent of understanding expert knowledge on the process of integrated circuit design. However, the conversations resulted in leanings far beyond that scope. This post explores some of their views on the current intellectual property system.</b>
<p><span>The intellectual property framework is meant to provide a temporary monopoly so those taking the risk to invest time, money, and resources into research and development can reap the returns for that investment without having to worry about others undercutting their price and competing for market share. Registration of patents supposedly encourages the dissemination of ideas and overall greater knowledge contribution for public access and eventual public domain. The interviewees were asked about their thoughts on this system of protection, incentivization, and knowledge-share, resulting in five broad themes:</span></p>
<p>1) Expertise trumps patent ownership</p>
<p style="text-align: justify; ">Particularly today in a digital world where innovative ideas and concepts can be easily shared, the first thing many people think about when discussing innovation, is the need to protect via patents. A vast amount of literature attempts to review the implications of patents' on technological innovation and economic development.</p>
<p style="text-align: justify; ">However, one interviewee noted that this emphasis on patent protection often overshadows what is much vital to the success of a technology business or industry - the <em>people: </em>the expertise and experience of the companies, their engineers, and their management. A lot of knowledge and 'intellectual property' lies in the procedures and processes which have resulted in effective application of standards and high level of performance for ones' products. The value of these skills and intelligence of human resources far outweigh the importance of protecting and owning patents.</p>
<p>2) Broken patent system</p>
<p style="text-align: justify; ">There was a clear consensus that the number one intellectual property concern is the need to revamp the current patent regime, with all interviewees agreeing that "useless patents" were being filed. Some suggestions for improvement included international standardization regarding the definition of a patent, the process of patent applications, and the scope of what a patent should cover. One interviewee believed that currently, the patent system actually prevents technological innovation, because one single patent can cover many ways of achieving something. The Apple patent entitled ' <em>Method for providing human input into computer' </em>which patents nearly every single possible human-computer interaction is an example of this.</p>
<p style="text-align: justify; "><strong> "Patents today are trivial, and don't contain information regarding HOW to make something; there are too many <em>process</em> and <em>design</em> patents, and not enough <em>functional</em> patents...merely competitive differentiations rather than fundamental technological changes" </strong> . <br /> <br /> This quote expressed the perception that only inventions that affect functionality in a fundamental way should be patented. A patent should not be claimed for something you cannot do, or does not show any kind of knowledge for how to solve a problem. One interviewee suggested that if a patent is granted without use for 3 years either by the owner or through licensing, the patent should be considered invalid.</p>
<p style="text-align: justify; ">Another industry expert explained that numerous patent applications are entered into the system without enough resources and competencies in the government to review them well. Albeit suggested in a joking manner, there may be truth to his claim that a knowledgeable intellectual property tech expert would opt to work for the more lucrative law firm over the government. He observed over the years a cycle where patents are easily approved, in which if a lawsuit arose, the patents are assessed more carefully again, resulting in massive inefficiencies for the system.</p>
<p>3. Patent Trolls</p>
<p style="text-align: justify; ">The poor execution of the patent system has resulted in the phenomenon of 'patent trolls', or what is more neutrally termed as non-practicing entities ("NPEs")[<a href="#1">1</a>] or patent assertion entities ("PAEs").[<a href="#2">2</a>] As explained by one interviewee, the business models of these entities often begin by conceiving of future technologies which may be necessary or foreseeable in the near future. Then, they seek to patent those ideas with no intention of actually producing producing or manufacturing the product. The main purpose is to profit through litigation and licensing. An example given of a patent trolling company was "Intellectual Ventures", which describes themselves as an "invention capital company" that "owns some of the world's largest and fastest growing intellectual property portfolios"[<a href="#3">3</a>]</p>
<p style="text-align: justify; ">The difficulty is that patent trolls are virtually indistinguishable from aspiring inventors and engineers, who may seek to manufacture and scale up their products through outsourcing and licensing. In addition, the lack of actual production makes valuation, legislation, and enforcement around this practice extremely difficult.</p>
<p><strong> "The problem is, the guys who have patents think it's worth this much money… and the company that wants to license think it's worth another amount. From a regulatory or legal point of view, it's very difficult to legislate these things… you can't legislate a value right? In the end, it's how much the customer is willing to pay for it. It doesn't matter how many years someone's been working on it, if no one wants to buy it, it's not worth anything." </strong></p>
<p style="text-align: justify; ">Robert L Stoll, former USPTO Commissioner of Patents says the most effective way to reduce predatory behavior is to ensure bad patents don't get issued in the first place, highlighting a legislation in the America Invests Act of 2011 which allows third parties to challenge granted patents on basis of former prior art, and non-technical financial or product patent.[<a href="#4">4</a>] Increased collaboration shown through standards and cross-licensing</p>
<p style="text-align: justify; ">The development of standards is very "fashionable" at the moment, according to one interviewee, who expressed his desire for his own company to be more involved in the process. However, another interviewee stated that more could be done to enhance collaboration within industry so that technologies could be provided free of licensing and ultimately benefit society at large through greater interoperability. Although there are signs of partnerships through cross-licensing agreements, particularly amongst larger firms, there are limitations because not everyone, including small firms, can afford it.</p>
<p style="text-align: justify; ">Most interviewees also expressed the need for greater emphasis on knowledge and research, rather than relying on proprietary technologies, which may actually hinder technological innovation. Examples given for companies doing this were Google and IBM, who both have more of a research background, and potentially have more research and development resources to engage in this kind of work.</p>
<p>5) Need for more openness</p>
<p style="text-align: justify; ">One interviewee who had extensive experience in the hackerspace community was an advocate for openness within the industry, and believed many companies had the option to become more open and effectively 'outsource' their research and development to the larger community.</p>
<p style="text-align: justify; ">Some successful projects he suggested was an open-sourced graphics processing unit ("GPU"), which does not exist even for the largely open Rasberry Pi. Even the development of a lower quality open sourced GPU in the market would result in tremendous demand, in his opinion. The ARM technology, the most popular CPU in the market is also currently semi-closed, and could in his opinion have benefited from more openness.</p>
<p style="text-align: justify; ">One interviewee expressed disappointment that all of the chips in his company was proprietary, even those that were no longer in production due to fear that competitors would be able to anticipate future developments from past projects. He suspected that many things were protected simply because the legal department assumed confidential and proprietary, without necessarily a coordinated long-term vision from head management. It is this normalized culture in industry that is, in his opinion a great hindrance to innovation, development, and accessibility of technology.</p>
<div>
<hr />
<p><a name="1"></a></p>
https://www.patentfreedom.com/about-npes/background/
<p><a name="2"></a></p>
http://www.ftc.gov/policy/studies/patent-assertion-entities-pae-study
<p><a name="3"></a></p>
http://www.intellectualventures.com/about
<p><a name="4"></a></p>
http://www.wipo.int/wipo_magazine/en/2014/02/article_0007.html</div>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/interviews-with-semi-conductor-industry-part-3'>http://editors.cis-india.org/a2k/blogs/interviews-with-semi-conductor-industry-part-3</a>
</p>
No publishermaggieAccess to KnowledgePervasive Technologies2014-12-26T13:19:46ZBlog EntryPERVASIVE TECHNOLOGIES PROJECT WORKING DOCUMENT SERIES: DOCUMENT 1 - RESEARCH METHODOLOGY FOR A PAPER ON COMPETITION LAW + IPR + ACCESS TO < $100 MOBILE DEVICES
http://editors.cis-india.org/a2k/blogs/methodology-sub-hundred-dollar-mobile-devices-and-competition-law
<b>This blog post is the research methodology for my research paper under the Pervasive Technologies Project. This is a work in progress and is likely to be modified from time to time.</b>
<p style="text-align: justify; ">See a subsequent version titled <a class="external-link" href="http://cis-india.org/a2k/blogs/pervasive-technologies-working-document-series-research-questions-and-a-literature-review-on-actor-network-theory">Pervasive Technologies: Working Document Series - Research Questions and a Literature Review on the Actor-Network Theory</a></p>
<hr />
<h2 style="text-align: justify; "></h2>
<h3 style="text-align: justify; "><b>Preliminary</b></h3>
<p style="text-align: justify; ">The realization of the promise of the sub hundred dollar mobile device as a facilitator of access to knowledge is contingent <i>inter alia </i>on its availability in the market place. In turn, the market availability of the sub hundred dollar mobile device is influenced by the existence of an enabling environment for producers to produce, and consumers to consume. From a regulatory perspective, the enabling environment itself is a function of existing laws and policies, and the 'developmental effects' of certain laws and policies (Saraswati, 2012).</p>
<p style="text-align: justify; ">This research paper under the <i>Pervasive Technologies: Access to Knowledge in the Market Place</i> Project (<b>"PT Project"</b>) examines one such legal and policy lever and the role of a regulator in the development of an enabling environment for access to sub hundred dollar mobile devices. This paper is founded on four assumptions: <i>first, </i>that access to sub hundred dollar mobile devices is influenced by their price; <i>second, </i>that the question of access necessitates conversation between the intellectual property regime and several other actors, sites and tools; <i>third</i>, that one of the fundamental goals of regulatory reform is the creation of a 'stable, open and future- proof environment' (Guermazi and Satola, 2005) that encourages access to these devices; and <i>fourth,</i> that there exist public law implications of intellectual property that justify the involvement of State actors and regulators in matters that may arise out of private transactions.</p>
<h3><b>Research Questions</b></h3>
<p style="text-align: justify; ">This research paper will examine whether there is a role to be played by one regulator, that is, the Competition Commission of India (“CCI”), in this narrative of innovation, intellectual property and access to sub hundred dollar mobile devices. Specifically, the following research questions will be addressed:</p>
<p style="text-align: justify; ">First, what is the relationship between intellectual property and competition law? Second, what are the competition law/antitrust concerns that arise around the licensing of intellectual property (standard essential patents)? Third, can existing mechanisms in competition law address concerns around the licensing of standard essential patents on sub hundred dollar devices, and is competition law a viable solution to address this issue? If so, which ones? Fourth, given the frequency of these litigations, is there a role to be played by an <i>ex-post</i> regulator, such as the CCI, or is there a need for <i>ex-ante</i> regulation?</p>
<h3><b>Research Objects</b></h3>
<p style="text-align: justify; ">In an attempt to address these research questions, this paper will examine the role of the Competition Commission of India and the Indian Judiciary. This paper will also examine the role of similarly placed institutions in the United States of America as well as some member states of the European Union.</p>
<p style="text-align: justify; ">This research paper will also examine select tools and sites sought to be used to create an enabling environment to facilitate access to these sub hundred dollar mobile devices: first, principles, legal frameworks and provisions of competition law/antitrust law; second, all relevant judicial decisions.</p>
<h3><b>Research Method</b></h3>
<p style="text-align: justify; ">First , this research paper will begin with establishing the case for the intervention of the regulator and/or the judiciary in the sub hundred dollar mobile device market by undertaking a review of primary and secondary literature<a name="_ftnref1"></a><a href="#_ftn1">[1]</a>("literature"). Second, also through a literature review, the research will be contextualized to India in terms of the market, the actors involved and the legal framework. Third, a cross jurisdictional comparative legal search will be undertaken to understand the potential areas of intervention for the judiciary and the Competition Commission of India based on existing legal disputes in other jurisdictions; and the possible challenges that might ensue. Fourth, in a scenario building exercise, an attempt will be made to outline the role that the judiciary and the regulator might play in India, in order to ensure access to sub hundred dollar mobile devices is not impeded by litigation around standard essential patents.</p>
<p style="text-align: justify; ">Generally, in the writing of this paper, inputs will be sought from experts including MHRD Chair Professors, legal practitioners in India, academics in India and abroad and members of relevant departments of the Indian Government.</p>
<h3><b>Research Communication</b></h3>
<p style="text-align: justify; ">This research will be communicated through a series of blog posts- one every month from December, 2014 to December, 2015. A preliminary draft of a research paper will be produced by December, 2015, tentatively to be presented at the 4th Global Congress on Intellectual Property and the Public Interest, New Delhi. The final output will be a research paper.</p>
<h3><b>References</b></h3>
<ol>
<li>Bouthenia Guermazi and David Satola, Creating the "Right" Enabling Environment for ICT, in Robert Schware (ed.), E-development: From Excitement to Effectiveness (2005, World Bank Publications).</li>
<li>Jyoti Saraswati, Dot. Compradors- Power and Policy in the Development of the Indian Software Industry (2012, Pluto Press)</li>
</ol>
<div style="text-align: justify; ">
<hr align="left" size="1" width="100%" />
</div>
<p style="text-align: justify; "><a name="_ftn1"></a><a href="#_ftnref1">[1]</a> Unless otherwise specified, for the purposes of this document, primary and secondary literature includes academic articles and books, newspaper articles and opinion pieces, blog posts, case law and other legal provisions.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/methodology-sub-hundred-dollar-mobile-devices-and-competition-law'>http://editors.cis-india.org/a2k/blogs/methodology-sub-hundred-dollar-mobile-devices-and-competition-law</a>
</p>
No publishernehaaIntellectual Property RightsAccess to KnowledgePervasive Technologies2015-10-04T02:51:06ZBlog EntryMethodology: Access to Music through the Mobile
http://editors.cis-india.org/a2k/blogs/methodology-access-to-music-through-mobile
<b>Like its predecessors the vinyl, the cassette tape, the CD, and the MP3 player, the mobile phone as the most recent musical carrier have been well documented to be a disruptive technology, one which has made earlier carrier technologies virtually obsolete. The mobile phone has transformed the music industry and its supporting infrastructure — dramatically altering the roles of various intermediaries and stakeholders who enable the creation, distribution, and consumption of musical content. </b>
<h3 style="text-align: justify; ">Context</h3>
<p style="text-align: justify; ">For the first time in 13 years, the music business is growing again, with consumption of musical content at an all time high due to innovations which have provided more affordable and convenient platforms for accessing music than ever before. These include web-based and mobile-based applications which have arisen to compete with piracy through "free", "feels-like-free" and "fermium" business models.<a href="#_ftn1" name="_ftnref1">[1]</a></p>
<p style="text-align: justify; ">Given the pervasiveness of the mobile phone, especially in India where it is the only mode of access for over 50% of the population <a href="#_ftn2" name="_ftnref2">[2]</a>, these innovations along with expanding broadband and data services seems to be a mark of success in bringing access to music and other media content to those formerly priced out, and geographically excluded from the legal market.</p>
<p style="text-align: justify; ">However, Indian web and mobile-based applications such as Gaana and Saavn, and its U.S. counterparts like Spotify and Pandora have continuously operated at a loss, often sustained by venture capitalist funding or a larger corporate backing.<a href="#_ftn3" name="_ftnref3">[3]</a> Although many online platforms, such as the recently shut down Flyte (funded by Flipkart) cite piracy as the official reason for its closure, industry insiders have allegedly noted exorbitant licensing fees demanded by rights holders as the case.<a href="#_ftn4" name="_ftnref4">[4]</a></p>
<h3 style="text-align: justify; ">Research Problems</h3>
<p style="text-align: justify; "><b> </b></p>
<p style="text-align: justify; "><b> </b></p>
<p style="text-align: justify; "><b>1. It is uncertain whether legal access to affordable music through the mobile will remain. </b></p>
<p style="text-align: justify; "><b> </b></p>
<p style="text-align: justify; ">As an access issue, this is problematic due to the potential disappearances of these platforms, which have with varying success provided an alternative to unauthorized file sharing while increasing the ease of consumers' access to a larger volume and variety of legal content. Some of these applications provide a "direct-to-fan" platform for musicians to upload their own music online without having to 'break in' to a relatively closed entertainment industry, particularly in the Indian market where the mass majority of music is dominated by the film industry. Access to increased volume and variety is also not a guarantee, particularly in light of some musicians' indignation over the intermediaries' profits from their content, and the little revenue received in return.</p>
<p style="text-align: justify; "><b> 2. Numerous stakeholders are entering the technologically advancing, digital music industry resulting in uncertainty of optimal business models and increased complexity of revenue and royalty distribution. <br /> </b>Thus, given evolving business models<b> </b>due to the transitioning physical to digital music industry, no consensus has yet been found on which platforms or revenue models offer an optimal solution for access to, and production of music. The potential for monetization in all levels of the value chain - from production, to content aggregation, to content distribution, and consumption -- has resulted in an increase in the number of intermediaries, further complicating the ecosystem.</p>
<p style="text-align: justify; ">All stakeholders fulfill different roles in the industry while expressing the common challenge of 'monetization'.</p>
<p style="text-align: justify; ">Web and mobile based<b> content distributors</b> are attempting to find the right price points at which Indian consumers are willing to pay, particularly in a market whose billing model is largely based on mobile credits and cash-on-delivery since only 1% of the population have access to credit. <a href="#_ftn5" name="_ftnref5">[5]</a> Globally, criticisms for streaming distributors like Spotify are highly publicized, not paying enough royalty to artists despite claims that 70% of their revenue is spent on content licensing.<a href="#_ftn6" name="_ftnref6">[6]</a></p>
<p style="text-align: justify; "><b> Content aggregators </b> are attempting to monetize services such as music fingerprinting, meta-data tagging, and other analytics tracking to identify and capitalize on consumer behavior and consumption trends. Meanwhile, telecom companies and mobile phone manufacturers are attempting to provide integrated services and music bundle packages to increase the interoperability of these platforms for a more frictionless experience for consumers.</p>
<p style="text-align: justify; "><b> Content owners</b> - vast majority being music labels -- are attempting to maintain their relevance in the industry through its powerful artist and repertoire marketing role, amidst criticisms that stakeholders like multi-channel networks and self-publishing content distributors (i.e. SoundCloud, Youtube, etc.) will deem it irrelevant. Many distributors globally note the vast ownership of content leading to the potential abuse of bargaining power, as exemplified by the Competition Commission of India's recent ruling that Super Cassette Industries' (or T-Series, who own 70% of Hindi film music) practiced unfair and discriminatory charging practices for a radio broadcasters due to their demand for minimum guarantees.<a href="#_ftn7" name="_ftnref7">[7]</a></p>
<p style="text-align: justify; ">The <b>content producers</b> -- lyricists, composers, performers, and more are struggling to monetize and finance the production of their music. Down the valuation stream, the contractual agreements between content owners and distributors affect the livelihoods of these artists. India's music industry is particularly unique in that the vast majority of content are film music, which means the common financier of music production are the film industry, rather than music labels or publishing houses. Additionally, given a one-time, work-for-hire agreement was commonplace in the Indian film industry during music production, a contractual agreement stipulating royalty division was slow to materialize.</p>
<p style="text-align: justify; "><b>3. Continued violation of law due to lack of legitimacy of Copyright Board, Copyright societies, and 2012 Copyright Amendment.</b></p>
<p style="text-align: justify; "><b> </b></p>
<p style="text-align: justify; ">The entire music ecosystem is governed by the framework of copyright, which necessitates <b>legal mechanisms </b>to ensure proper regulation and balance between the protection of rights holders and access to content for consumers.</p>
<p style="text-align: justify; ">The 2012 Copyright Amendment attempted to address the imbalance of bargaining power through preventing the first author's transfer of right to royalty, amongst others. This amendment was also passed in response to alleged corruption and collusion between the content owners (music labels), various judiciaries, and the former copyright societies (Indian Performing Rights Societies ("IPRS") and the Indian Phonographic Publishing Limited ("PPL")), resulting in an absence of royalty payments to lyricists and composers for many years.<a href="#_ftn8" name="_ftnref8">[8]</a></p>
<p style="text-align: justify; ">Despite this, the Copyright Amendment have not been as effective in correcting the issues on the ground, and are still allegedly being circumvented via advanced royalties, backdated agreements, and waiver of performance royalty rights.<a href="#_ftn9" name="_ftnref9">[9]</a><b> </b>Other inefficiencies cited have been poor transparency of royalty payments, lack of publicly available analytics on web and mobile-based platforms, and untimely responses by the Copyright Board to conduct investigations into the allegations.</p>
<p style="text-align: justify; ">Amidst these allegations, some industry analysts also claim the Copyright framework itself needs to catch up with the technological potential that the internet, and these new services provide. This may be an alternative perspective to be explored.</p>
<h3 style="text-align: justify; ">*(Tentative) Research Questions and Methodology</h3>
<p style="text-align: justify; "><b> </b>Thus, given uncertainty of the sustainability of affordable, legal access; the increasing complexity of business models and royalty distribution, and the continued violation of Copyright law due to lack of legitimacy, the policy question is: <b><br /> </b><b>How can legal and institutional mechanisms ensure an enabling environment for access to, and production of music for all mobile phone users in India? </b> <b> </b></p>
<p style="text-align: justify; "><b> </b></p>
<ul style="text-align: justify; ">
</ul>
<ul style="text-align: justify; ">
<li>"Legal mechanisms" - Copyright Act, Copyright Board, licensing mechanisms </li>
<li>"Institutional mechanisms" - Copyright societies, music industry norms, corporate policies </li>
<li>"Access" - equitable, fair, easy access to quality and quantity of music
<ul>
<li type="circle">Potential barriers to access (to music, through mobile): </li>
<li type="square">Political: Legal constraints (Goonda Act?), intermediaries prevent copying, licensing bodies </li>
<li type="square">Economic: Lack of availability of older repertoire, access to mobile device </li>
<li type="square">Social: Use or access of materials involving loss of privacy, lack of quality production </li>
<li type="square">Technological: TPMs, compatibility, broadband/data access, payment gateways, geographic barriers, lack of net neutrality </li>
</ul>
</li>
</ul>
<p><b>Access necessitates "production"</b> - ability to create content with little entry barriers; balance right of artists to earn, and consumer access</p>
<ul style="text-align: justify; ">
<li>Barriers to production and distribution:</li>
<li type="circle">Uncertainty of business models in age of digital music </li>
<li type="circle">Ineffectiveness of Copyright regulation: Copyright societies, Copyright board </li>
<li type="circle">Controversy surrounding Copyright Act </li>
<li type="circle">Lack of finance/income -- intermediaries taking share of pie ?? Inefficiencies in music industry? </li>
</ul>
<ul style="text-align: justify; ">
<li>"Mobile phone users in India" - smartphone users able to access web and mobile based platforms</li>
</ul>
<p style="text-align: justify; ">How do the stakeholders in the Indian music industry work together to facilitate access to music via the mobile phone?</p>
<ul style="text-align: justify; ">
<li>Who are the stakeholders of the music industry in India? </li>
<li>What are their roles and their objectives? </li>
<li>How have their roles changed given the digital transition of the music industry?</li>
</ul>
<p style="text-align: justify; "><i>Method: Conduct a stakeholder analysis mapping the physical to digital transition. Secure information via literature review (academic and grey) and expert interviews secured via snowball sampling.</i></p>
<p><b>Content Creation </b></p>
<ul style="text-align: justify; ">
<li type="circle">Lyricists/composers (film, non-film) </li>
<li type="circle">Performers (film, nom-film) </li>
<li type="circle">Film Producer </li>
<li type="circle">Sound Producer </li>
<li type="circle">Publisher </li>
<li type="circle">Self-production (Remix artists, DJs, independents) </li>
</ul>
<ul style="text-align: justify; ">
<li>Content Aggregation and Distribution
<ul>
<li type="circle">Content Aggregation: </li>
</ul>
</li>
</ul>
<ul style="text-align: justify; ">
<li type="square">Music labels (International/film/indie) </li>
<li type="square"> Mobile aggregators (VAS companies) </li>
<li type="square"> Tech aggregators (back-end for digital platforms: meta-data tagging, analytics, etc.) </li>
</ul>
<li style="text-align: justify; " type="circle">Content distribution (digital)</li>
<li style="text-align: justify; " type="square"> Online stores (e.g. iTunes) </li>
<li style="text-align: justify; " type="square"> Mobile/Web-based</li>
<ul style="text-align: justify; ">
<li>Webcast/Radio (e.g. MumbaiOne Radio) </li>
<li>Digital Stores (e.g. Amazon, iTunes, eMusic, Google Play, Flyte, OKListen, etc.) </li>
<li>Interactive streaming (e.g. 8tracks, Gaana, Hungama, Raaga, Rdio, Spotify, etc.) </li>
<li>Bundled telco-music stores (formerly Nokia MixMusic) </li>
</ul>
<ul style="text-align: justify; ">
<li type="square">Copyright Board </li>
<li type="square">Copyright societies (e.g. IPRS (Indian Performing Rights Society), PPL (Phonographics Performance Limited, ISRA (Indian Singers Rights Association)) </li>
<li type="square">Associations (e.g. MCAI (Music Composers Association of India), SIMCA (South Indian Music Companies Association), IMI (Indian Music Industry - ass. of producers), etc.) </li>
</ul>
<ul style="text-align: justify; ">
<li>Financiers:
<ul>
<li type="square">Venture capitalists </li>
<li type="square">Brands/advertisers </li>
<li type="square">Corporate backing </li>
<li type="square">Multi-channel networks
<ul>
<li type="circle">Technical intermediaries
<ul>
<li type="square">Telecom operators </li>
<li type="square">Internet service providers </li>
<li type="square">Data providers </li>
<li type="square">Payment gateway providers</li>
</ul>
</li>
</ul>
</li>
</ul>
</li>
</ul>
<ul style="text-align: justify; ">
<ul>
<ul>
<li type="circle">Mobile phone manufacturers </li>
</ul>
</ul>
</ul>
<ul style="text-align: justify; ">
<li>Consumers</li>
</ul>
<ul style="text-align: justify; ">
<li type="circle">Types of music listeners (Ovum research taxonomy)
<ul>
<li type="square">Active fans (lean forward/niche) </li>
<li type="square">Core enthusiasts (lean forward/mainstream) </li>
<li type="square">Indie followers (lean back/niche) </li>
<li type="square">Lean-back listeners (lean back/mainstream) </li>
</ul>
</li>
<li type="circle">
<p>Class distinction / price sensitivity?</p>
</li>
</ul>
<p style="text-align: justify; ">What are the current business models for web and mobile-based content distributors? How does this impact each stakeholder in the music industry?</p>
<ul style="text-align: justify; ">
<li>What are the new business models of the digital music industry in India?
<ul>
<li type="circle">How are the new intermediaries/stakeholders in the web/mobile targeted music industry impacting business models? </li>
<li type="circle">Literature review (media, industry reports) and expert interviews </li>
</ul>
</li>
</ul>
<ul style="text-align: justify; ">
<li>What is the revenue distribution in the music production value chain for the web/mobile-based platforms in India?
<ul>
<li type="circle">Method: International comparison of new digital music business models worldwide: </li>
<li type="square">Online MOOC Course & lectures (Coursera - West Virginia University ; YouTube - Future of Music Coalition<a href="#fn11" name="fr11">[11] </a>) </li>
<li type="square">Literature review (academic, white, grey, media, industry repots, etc.) </li>
</ul>
<ul>
<li type="circle">Method: Replicate FMC's study for Indian context: Music and How Money Flows<a href="#fn12" name="fr12">[12]</a></li>
</ul>
</li>
</ul>
<p style="text-align: justify; ">Who are the consumers that access music via mobile/web-based platforms in India?</p>
<ul style="text-align: justify; ">
<li>Is there a socio-cultural-economic dimension distinguishing those willing and able to pay? Who actually pays and how much?
<ul>
<li type="circle">Method: Literature review, expert interviews, surveys?? </li>
</ul>
<ul>
<li>Are there different levels of musical engagement which translate to consumer behavior (active fans, core enthusiasts, indie follower, lean back listeners) and subsequent willingness to pay? What percentage of listeners fall in each category in India?
<ul>
<li type="circle">Method: Questionnaire to current users of web/mobile-based music distributors supplemented by expert interviews </li>
</ul>
<ul>
<li>What kind of economic good is digital music in India? Inferior, luxury, normal? Complementary, substitute? Public, merit, private, free?
<ul>
<li type="circle">Method: Literature review, theoretical economic analysis supplemented by user survey and expert interviews</li>
</ul>
</li>
</ul>
</li>
</ul>
</li>
</ul>
<p style="text-align: justify; ">Considering the stakeholders in the digital music industry, consumer behavior in India, how should music copyrights be regulated to provide optimal access of music through the mobile to consumers and fair renumeration to first authors?</p>
<ul style="text-align: justify; ">
<li>What role do legal mechanisms currently play in the distribution of royalty revenue in the music industry (on the ground)?
<ul>
<li type="circle">Method: Mapping of copyright processes and agreements (oral, contractual, or otherwise) between stakeholders in the music industry, noting specifically role of Copyright Board, and (former) Copyright societies; expert interviews </li>
</ul>
</li>
<li>What role do codified laws (2012 Copyright Amendment, case law) stipulate should be the legal mechanisms to distribute royalty in the music industry?
<ul>
<li type="circle">Method: Legal literature review, expert interviews </li>
<li>How have the 2012 Copyright Amendment impacted the stakeholders in the music industry? Are the laws effectively enforced? Has the Copyright Amendment been designed/defined/articulated in an optimal way for all stakeholders? Why or why not? </li>
<li type="circle">Method: Literature review </li>
<li>How should copyright be organized? Who should distribute royalty revenues? What process?
<ul>
<li type="circle">Method: Consider stakeholder analysis, context of India music/film industry, consumer demand and price-sensitivity, and conduct cross-jurisdictional comparison </li>
<li>What industry norms should be set for a more transparent, efficient supply chain to ensure rights holders receive fair compensation?
<ul>
<li type="circle">Method: International comparison of industry norms for copyright organization and distribution </li>
</ul>
</li>
</ul>
</li>
</ul>
</li>
</ul>
<hr />
<p style="text-align: justify; ">[<a href="#fr1" name="fn1">1</a>].Amba Kak, Fighting Free with Free - The Legal Music Market in India as a Response to the Digital Age (Centre for Internet and Society, to be published.)</p>
<p style="text-align: justify; ">[<a href="#fr2" name="fn2">2</a>].Avendus Capital, India’s Mobile Internet: The Revolution Has Begun: An Overview of How Mobile Internet Is Touching the Lives of Millions, Industry (Avendus Capital Private Limited, September 2013), http://www.avendus.com/Files/Fund%20Performance%20PDF/Avendus_Report-India’s_Mobile_Internet-2013.pdf.</p>
<p style="text-align: justify; ">[<a href="#fr3" name="fn3">3</a>].Amba Kak, Fighting Free with Free - The Legal Music Market in India as a Response to the Digital Age (Centre for Internet and Society, to be published.)</p>
<p style="text-align: justify; ">[<a href="#fr4" name="fn4">4</a>].Nikhil Pahwa, “Why Flipkart Shut Down Flyte Music,” News and Analysis of Digital Media in India, MediaNama, (May 29, 2013), http://www.medianama.com/2013/05/223-why-flipkart-shut-flyte-music/.</p>
<p style="text-align: justify; ">[<a href="#fr5" name="fn5">5</a>].Reserve Bank of India, as cited in IFPI, India: Nearing an all-time high http://www.ifpi.org/india.php</p>
<p style="text-align: justify; ">[<a href="#fr6" name="fn6">6</a>].James Duffett-Smith, Music Licensing Study: Notice and Request for Public Comment (United States Copyright Office 2014).</p>
<p style="text-align: justify; ">[<a href="#fr7" name="fn7">7</a>].Ashok Chawla, M.L. Tayal, and S.L. Bunker, HT Media Limited v. Super Cassettes Industries Limited (Competition Commission of India 2014).</p>
<p style="text-align: justify; ">[<a href="#fr8" name="fn8">8</a>].Prashant Reddy, “Did the Big Music Companies on IPRS & PPL Collude to Deny Lyricists and Composers Crores of Rupees in ‘ringtone Royalties’ – An Investigation,” http://spicyip.com/2011/02/did-big-music-companies-on-iprs-ppl.html, SpicyIP, (February 14, 2011)</p>
<p style="text-align: justify; ">[<a href="#fr9" name="fn9">9</a>].Anonymous, “Ghost Post: The myriad ways in which the Copyright Amendment Act, 2012 is being circumvented” http://spicyip.com/2014/01/ghost-post-the-myriad-ways-in-which-the-copyright-amendment-act-2012-is-being-circumvented.html, SpicyIP, (January 18, 2014)</p>
<p style="text-align: justify; ">[<a href="#fr10" name="fn10">10</a>].https://www.coursera.org/course/gpsmusic</p>
<p style="text-align: justify; ">[<a href="#fr11" name="fn11">11</a>]. https://www.youtube.com/playlist?list=PL471E012D03E9BA03</p>
<p style="text-align: justify; ">[<a href="#fr12" name="fn12">12</a>]. https://futureofmusic.org/blog/2013/06/18/music-and-how-money-flows</p>
<div id="_mcePaste"><span><a href="https://www.coursera.org/course/gpsmusic"><i><span><span> </span></span></i></a></span> </div>
<hr />
<p>Click to download the <a href="http://editors.cis-india.org/a2k/blogs/pt-project-access-to-knowledge-through-music.pdf" class="external-link">PDF</a></p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/methodology-access-to-music-through-mobile'>http://editors.cis-india.org/a2k/blogs/methodology-access-to-music-through-mobile</a>
</p>
No publishermaggieAccess to KnowledgePervasive Technologies2014-12-08T16:22:41ZBlog EntryIntellectual Property in Mobile Application Development in India
http://editors.cis-india.org/a2k/blogs/intellectual-property-in-mobile-application-development-in-india-1
<b>A steady rise in smart phone penetration in India has led to a corresponding growth of the mobile application development industry. Mobile application development like all technological implementations is subject to intellectual property issues. However, very little is understood about the effect of existing patent and copyright law on this niche industry. I aim to develop an understanding of the mobile applications industry, and how it is governed by current Indian patent and copyright regime. I will also use this research to inform the optimal ways in which policymakers may ensure the continual emergence of the mobile applications industry. This blog post lays down a document delineating the research methodology and research questions within the Intellectual Property in Mobile Application Development in India chapter under the Pervasive Technologies Project. The document is a work in progress. </b>
<p align="CENTER"><strong><u><br /></u></strong></p>
<p align="CENTER"><strong><u>Introduction
to the “Intellectual Property in Mobile Application Development”
chapte</u>r</strong></p>
<p align="JUSTIFY"> </p>
<p align="JUSTIFY">
Software
companies in India were traditionally operating on the software as a
service (SAAS model). Service contracts signed within this industry
ensured that all IPR developed during a project was owned by the
client. With the advent of the smart-phone, many software developers
left SAAS enterprises in pursuit of developing their own mobile
application products (“mobile apps”). Several developers began to
aggressively acquire or create patent portfolios around their
products.<a class="sdfootnoteanc" name="sdfootnote1anc" href="#sdfootnote1sym"><sup>1</sup></a>
However, it has been observed that mobile apps continue to be
increasingly produced in imitation of other products or services or
by more discrete means of copying source code or content without the
right to do so.</p>
<p align="JUSTIFY"> </p>
<p align="JUSTIFY">
The
overall objective of this chapter is to develop a holistic picture of
the mobile apps development ecosystem in India in order to portray
the decisions developers are making within their practice as a
function of how India's intellectual property regime operates within
this ecosystem. I will also examine whether
existing regimes of intellectual property interact inhibit or
accelerate the growth of the mobile applications development
ecosystem in India, especially in conjunction with market and
cultural forces arising as a result.</p>
<p> </p>
<p align="CENTER"><u><strong>Research
Questions and Methodology</strong></u></p>
<p align="CENTER"> </p>
<p align="JUSTIFY"><strong>1.
What are the decisions developers are making within their practice in
terms of location of their enterprise and clients, scale of audience,
funding, business models and mobile apps marketplace (app stores) ? </strong></p>
<ol>
<p><strong>1.1.
Who is the primary actor in the mobile applications development
cycle in India?</strong><em><strong> <br /></strong></em></p>
<p><em><strong>Method:</strong></em><em>
Analysis of the quantitative research conducted by Samantha Cassar
across 267 mobile applications developers.<a class="sdfootnoteanc" name="sdfootnote2anc" href="#sdfootnote2sym"><sup>2</sup></a></em><em><br /></em></p>
<p><em> Create
a new survey instrument and supplement with relevant external
expert interviews obtained from Samantha Cassar's qualitative
research.</em></p>
<ul>
<ul><li>
<p><em>The interviews shall be conducted with respondents based
out of Mumbai, Pune and Hyderabad</em></p>
</li><li>
<p><em>The exercise targets 10 developers in each city</em></p>
</li></ul>
</ul>
</ol>
<p><br /><em><strong>The analysis of the interviews and results of
Samantha's web survey shall be verified by an expert well-versed
with the analysis of qualitative and quantitative data</strong></em></p>
<ol></ol>
<p><em> </em><strong>1.2
Is the mobile apps marketplace organically developing into a Bazaar
model, or a Cathedral model? </strong></p>
<ul><em><strong> Method: </strong>Literature review<br /><strong><br /></strong></em></ul>
<strong>1.3. What are the contractual terms between the enterprise and the employee? What is the typical nature of agreements in the mobile apps development industry between enterprise-employee and enterprise- client?</strong>
<p> </p>
<strong><em>Method</em>: </strong>Analysis of the quantitative research conducted by Samantha Cassar and supplement with relevent external expert interviews obtained from her qualitative research.
<p> </p>
<ol start="2"><li>
<p>
<strong>What
is the nature of innovation emerging from the mobile app industry?</strong>
<strong>What is the awareness of the mobile applications developer
and its enterprise of rules concerning code, content and design? How
does re-use and sharing of code, content and design occur in the
mobile application developer ecosystem ? What is the perceived
impact of the Indian IPR regime on the aforementioned aspects?
Finally, do the emerging trends in re-use and sharing of code run
afoul of Indian IP law?</strong></p>
<p> <em><strong>Method:</strong> Analysis
of Indian Patent and Copyright regime to assess the legality of
prevailing practices in the ecosystem. <br /></em></p>
</li></ol>
<p><em> Analysis
of the quantitative research conducted by Samantha Cassar and
supplement it with relevant external expert interviews obtained
from Samantha's qualitative research.</em></p>
<p><em><br /></em></p>
<ol start="4">
<p>
<strong>3.
The apps marketplace is extremely important since they are the
gatekeepers enabling access to apps. What is the nature of the apps
marketplace? What are the limitations associated with it ? How do
the existing regulatory models intersect with this relatively new
marketplace? What is the enforcement carried out by these app stores
in terms of IP?</strong></p>
</ol>
<strong><em>Method:</em></strong>
<em>Literature review and analysis of the new survey instrument.</em>
<div id="sdfootnote1">
<p class="sdfootnote"> </p>
<strong> 4. How does Indian Copyright law and patent law apply to the mobile applications development ecosystem, in respect of the various business models operating in the industry?<br /> <br /> <em>Method: </em></strong><em>Literature review</em><br /> </div>
<ul>
<p><strong>4.1.
The patent regime is grounded on a laboratory model of innovation.
What does the niche mobile applications development industry
(working on a micro-creativity model of innovation) require
differently from the patent regime to foster growth? </strong></p>
<em><strong>Method: </strong>Literature review</em><br />
<p> </p>
<p>
<strong>4.2.
Similarly, copyright law has a distinct design for digital objects.
Examine the design and its suitability to regulate a mobile
application.</strong></p>
<p><em><strong>Method: </strong></em>Literature
review to trace the development of copyright law. Copyright was
designed to regulate a physical book publishing industry. By
extending its application to myriad objects, the design has gone
through significant changes. Also, conduct
expert interviews in the field to understand the practice and
gather qualitative data.</p>
</ul>
<div id="sdfootnote1">
<p class="sdfootnote"><a class="sdfootnotesym" name="sdfootnote1sym" href="#sdfootnote1anc">1</a>
See La<em>va aims for 100 mobile apps</em>, available at
http://spicyip.com/2013/01/guest-post-lava-aims-for-100-mobile-app.html</p>
</div>
<div id="sdfootnote2">
<p>
<em><a class="sdfootnotesym" name="sdfootnote2sym" href="#sdfootnote2anc">2</a>
</em>Out of 267 respondents, 93
responded in full and 164 responded partially</p>
</div>
<div id="sdfootnote3">
<p class="sdfootnote"><a class="sdfootnotesym" name="sdfootnote3sym" href="#sdfootnote3anc">3</a>See
Question 1.2 of this document</p>
</div>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/intellectual-property-in-mobile-application-development-in-india-1'>http://editors.cis-india.org/a2k/blogs/intellectual-property-in-mobile-application-development-in-india-1</a>
</p>
No publishersinhaAccess to KnowledgePervasive Technologies2015-08-31T14:33:06ZBlog EntryMethodology: Patent Landscaping in the Indian Mobile Device Market
http://editors.cis-india.org/a2k/blogs/patent-landscaping-in-the-indian-mobile-device-market
<b>Through the patent landscaping exercise, we have identified patents pertaining to Internet-enabled mobile devices sold in India for USD 100 or less. The findings from this exercise are being used to develop legal strategies to reduce patent-based impediments to the widespread and rapid proliferation of this beneficial technology throughout India. The research methodology adopted for the patent landscaping exercise has been delineated here. This document is a work in progress.</b>
<h3 style="text-align: justify; ">1. Research Questions</h3>
<div style="text-align: justify; "><ol>
<li><span>Are there indications of increasing patent filing <span>over time </span>by the mobile device industry in India?</span></li>
<li><span>What patents pertain to capabilities commonly found in networked mobile devices sold in India for USD 100 or less?</span></li>
<li><span>What are the existing patent pools for each of the capabilities identified in question 2? What do we know about these patent pools?</span></li>
<li><span>Would the existing patent pools be sufficient to ensure that:</span></li>
<ol>
<li><span> consumers continue to have access to inexpensive devices?</span></li>
<li><span>manufacturers operating in the budget segment are not snuffed out by patent litigation or do not pass on losses caused by patent litigation to their consumers?</span></li>
<li><span>the rights of patent holders are not infringed upon? If not, why?</span></li>
</ol>
<li><span>Which of these patent pools could go into an India-based mobile device patent "pool of pools" formed possibly through government intervention and having a royalty level supportable by the domestic Indian consumer market for mobile devices?</span></li>
<li><span>What is the design and manufacturing flow of a finished Internet-enabled low-cost mobile phone sold in India? <br /></span></li>
</ol></div>
<h3 style="text-align: justify; "></h3>
<h3 style="text-align: justify; "></h3>
<h3 style="text-align: justify; ">2. Objective</h3>
<p style="text-align: justify; ">The objective of the chapter is to exhaustively determine the number of patents that apply to an Internet-enabled mobile device that costs the equivalent of USD 100 or less in the Indian retail market. The set of patents is restricted to those that apply to technologies which are commonly found in such a device. This set of patents could be included in a patent pool for Indian manufacturers of mobile phones.</p>
<h3 style="text-align: justify; ">3. Object</h3>
<p><i>[2. What patents pertain to capabilities commonly found in networked mobile devices sold in India for USD 100 or less?]</i></p>
<p style="text-align: justify; ">Eight mobile phones [Annexure 1 (<a class="external-link" href="http://cis-india.org/a2k/blogs/annexure-1-mobile-phones-to-study.pdf/view">PDF</a>)] have been procured for identifying the technical standards implemented in them. These are phones manufactured in China and sold in the white or grey market in India either by Indian brands or by Chinese ones. <span>The research object also includes the Indian patent database, documentation published by standard setting organisations, and the practices of Indian manufacturers of Internet-enabled mobile devices in the sub-USD-100 segment.</span></p>
<p style="text-align: justify; "><b>3.1.</b> The phones were used to determine “capabilities commonly found in networked mobile devices sold in India for USD 100 or less” as described in research question 2. These capabilities were identified by (a) examining the physical components of the phone, (b) by running emulators which identified details about the hardware, (c) verifying the findings from (a) and (b) with the users' manual, packaging box, or any other documentation published by the manufacturer.</p>
<div style="text-align: justify; "><b><span>3.2. Criteria for Choosing the Mobile Phones</span></b></div>
<ul style="text-align: justify; ">
<li><span>The handsets cost less than USD 100 (INR 6,000 approximately), connect to the Internet, and are sold in physical Indian markets.</span></li>
<li><span style="text-align: justify; ">Every handset has at least one feature that differentiates it from the rest of the set. For example, in-built support for multiple Indian languages; 50 kilowatt battery (as published on the carton and battery label); camera with CMOS sensor.</span></li>
<li><span style="text-align: justify; ">The universal set for the mobile phones of interest for this research can not be defined as the phones are sold in grey or black markets. Catalogues, online listings, company websites, and other documentation for this universal set are not available. Hence, it is not possible to definitively identify mobile phones that are 'representative' of the handsets of interest. Handsets that help one get a richer sense of the population of the sub-USD-100 mobile phone market in India have been chosen.</span></li>
</ul>
<h3 style="text-align: justify; "></h3>
<h3 style="text-align: justify; "></h3>
<h3 style="text-align: justify; ">4. Rationale</h3>
<p style="text-align: justify; "><span>Though India has not yet witnessed patent litigation of the same scale as developed countries, litigation over standard essential patents in India has already led to injunctions against nine homegrown and Chinese manufacturers<sup><a href="#_ftn1" name="_ftnref1">[1]</a></sup>. The mobile device landscape in India uncovered through this research will be applied to the development of policy recommendations that aim to ensure that consumers continue to have access to inexpensive devices, that manufacturers operating in the budget segment do not end up shutting shop due to patent litigation, and the rights of patent holders are not infringed upon.</span></p>
<h3 style="text-align: justify; ">5. Research Method</h3>
<p><i><i>[1. Are there measurable indications of increasing patent filing by the mobile device industry in India?</i></i></p>
<p><i><i> </i>2. What patents pertain to capabilities commonly found in networked mobile devices sold in India for USD 100 or less?]</i></p>
<p style="text-align: justify; "><span> </span><span style="text-align: justify; ">Fifty Indian and non-Indian companies most likely to hold telecom-related patents in India were identified by CIS. [<a href="http://editors.cis-india.org/a2k/blogs/fifty-companies.pdf" class="external-link">Annexure 4</a>]. Two patent searchs firm were contracted the task of searching the database of the Indian Patent Office by the names of the fifty companies for patents granted and applied for. </span></p>
<p style="text-align: justify; "><span style="text-align: justify; "> </span><span style="text-align: justify; "><b>5.1. Procedure for selecting law firms/ patent attorneys</b></span><span style="text-align: justify; "><b>:</b></span></p>
<ul style="text-align: justify; ">
<li><span>Ten law firms and patent search agencies from different parts of India were identified as potential contractors after preliminary meetings with several patent attorneys and representatives of law firms.</span></li>
<li><span>Price quotations were invited from the ten organisations after holding one or more meetings with each.</span></li>
<li><span>On the basis of the quotation, deliverable time, scope and nature of the results delivered, and quality assurance, the contract was awarded to one firm of patent attorneys (Hourglass Research, Mumbai) and one law firm. The firms offered the best price for a commensurate deliverable time and assured quality of results.</span></li>
</ul>
<p style="text-align: justify; "><b>5.2. Patent Firm 1 (Hourglass Research) Search Strategy:</b></p>
<p style="text-align: justify; "><i>Step 1</i>: A taxonomy that comprehensively covers different technologies implemented in an Internet-enabled mobile phone was drawn up [<a href="http://editors.cis-india.org/a2k/blogs/annexure-5.pdf" class="internal-link">Annexure 5</a>]. The taxonomy was split into categories (Level 1) and sub-categories (Level 2).</p>
<p style="text-align: justify; "><i>Step 2</i>: The Derwent World Patents Index (DWPI) assigns one or more manual codes (MC) to each patent depending on the technology described by the patent. The patent firm matched manual codes pertaining to mobile technology with categories in the taxonomy. Thus, each manual code corresponded to one or more categories in the taxonomy.</p>
<p style="text-align: justify; "><i>Step 3</i>: Subsequently, search strings [<a class="external-link" href="http://cis-india.org/a2k/blogs/annexure-6.pdf">listed in Annexure 6</a>] were used to find published applications as well as granted patents from the Thomson Innovation (TI) database. The search strings comprise permutations and combinations of the manual codes [<a href="http://editors.cis-india.org/a2k/blogs/annexure-7.xls" class="internal-link">Annexure 7</a>], fifty assignees<span style="text-align: justify; "> </span>, keywords, and IPC classes and sub-classes. The search results were extracted on February 23, 2015. Hence, the patents granted or published till then have been included in the landscape. The start date is January 1, 2000 as the Thomson Innovation Database does not contain earlier records from the Indian Patent Office database.</p>
<p style="text-align: justify; "><i>Step 4</i>: Then, manual codes for each patent in the results were extracted. Each patent was assigned a category corresponding to its manual codes. This automated categorisation was manually reviewed and validated by reading the claims, abstract, DWPI use, and DWPI novelty. In instances where the patent could not be categorised based on the information contained in the claims, abstract, DWPI use, and DWPI novelty, the detailed description associated with the patents (i.e., the column entitled "Description" in the dataset) was read.</p>
<p style="text-align: justify; "><i>Step 5</i>: The TI database yields International Patent Documentation (INPADOC) families. In instances where one or more patents from the same family appeared in the search results, granted patents were chosen over non-granted ones as "representative" of the family.</p>
<p style="text-align: justify; "><i>Step 6</i>: The results were deduplicated first on the basis of the publication number and then on the basis of the application number. In five instances, two or more different patents were assigned the same application number. This was resolved by manually reading the patent and determining the most relevant patent.</p>
<p style="text-align: justify; ">4,052 patents and 19,517 patent applications relevant to the mobile phone were found at the end of the patent landscaping exercise.</p>
<p style="text-align: justify; "><b>5.3. Schema for identified patents and patent applications</b>: Name of Assignee -- Patent Number -- Application Number -- Status of application (Granted/ Published) -- Application Date -- Publication Date -- Grant Date -- Database Searched -- Title -- Abstract -- Category (Level 1) -- Sub-category (Level 2) -- Infrastructure/ User Equipment/ both -- Title (DWPI) -- Abstract (DWPI) -- Abstract DWPI Novelty -- Abstract DWPI Use -- Comments/ Remarks</p>
<p><b>5.4. List of IPC classes and sub-classes and DWPI Manual Codes excluded from the patent search:</b> [<a href="http://editors.cis-india.org/a2k/blogs/annexure-8.pdf" class="internal-link">Annexure 8</a>], [<a href="http://editors.cis-india.org/a2k/blogs/rejoinder-to-annexure-8" class="internal-link">Rejoinder to Annexure 8</a>]</p>
<p style="text-align: justify; ">These classes, sub-classes and manual codes were excluded as they were very overarching for the research question. Class H04, for instance, pertains to "electric communication techniques". It is likely to comprise a comparatively large number of patents not pertaining to mobile device technology. Instead, certain sub-classes of H04 that are the most relevant to mobile device have been considered. As another example, the sub-classes of G01 pertain to measurements of physical quantities (length, area, thickness, et al). The number of patents pertaining to mobile technology in these sub-classes will be small compared with the number of patents in the sub-class.</p>
<p style="text-align: justify; "><b>5.5 Patent Search Firm 2</b></p>
<p style="text-align: justify; ">Patent Search Firm 2 used Questel and Questel Orbit databases to search for patents and patent applications filed in India from January 1, 2005 to January 1, 2015. The results delivered by this firm did not fulfill our quality standards. Hence, they were dropped from the research. We intended to compare the results of the two search firms to determine the difference.</p>
<p style="text-align: justify; "><b> </b></p>
<p><b>5.6. Identifying telecom standards implemented in mobile phones:</b></p>
<p><i>[2. What patents pertain to capabilities commonly found in networked mobile devices sold in India for USD 100 or less?]</i></p>
<p>Using documentation available from standards-setting organisations and industry consortia, and from the nine handsets, 322 technical standards [<a href="http://editors.cis-india.org/a2k/blogs/mobile-phone-standards.ods" class="external-link">Annexure 2</a>] implemented in a networked mobile device have been identified by CIS. These technical standards support commonly found capabilities in a networked mobile handset. By dismantling the phones, their components were identified [<a href="http://editors.cis-india.org/a2k/blogs/mobile-phone-hardware.ods" class="external-link">Annexure 3</a>]. The list of components and standards was used to determine the patent pools, standard-setting organisations and standard development organisations of interest for research questions 3 and 4 as well as for the literature survey.</p>
<h3>6. Validation of Results</h3>
<p style="text-align: justify; ">The results of the patent landscaping exercise turned in by the patent search firm were validated by performing the following steps:</p>
<ul style="text-align: justify; ">
<li><span>Checking for duplicate application numbers via MySql</span></li>
<li><span>Checking for duplicate publication numbers via MySql</span></li>
</ul>
<p style="text-align: justify; ">No duplicates were found.</p>
<h3>7. Analysis of Results</h3>
<p><i>[2. What patents pertain to capabilities commonly found in networked mobile devices sold in India for USD 100 or less?]</i></p>
<p><b>7.1. Data Analysis</b>: Breakdown of 23,569 patents and patent applications</p>
<p>Number of patents and patent applications combined in the different Level 1 categories,</p>
<p>Number of patents and patent applications combined in Level 2 categories (i.e., sub-categories).</p>
<p style="text-align: justify; "><b>7.2. Visualisations: </b>Graphical representations of the patent landscape</p>
<p style="text-align: justify; ">1. Number of patents in each Level 1 category<br />2. Number of published patent applications versus granted patents in each Level 1 category <br />3. Number of patents in each sub-category of “Communication”<br />4. Number of patents in each sub-category of “Operational Blocks”<br />5. Number of patents in each sub-category of “Sensors”<br />6. Number of patents in each sub-category of “Energy Storage”<br />7. Number of patents in each sub-category of “Sound, image, and video”<br />8. Number of patents in each sub-category of “Display”<br />9. Number of user equipment patents, infrastructure patents and infrastructure and user equipment patents.<br />10. Number of patents held by each of the fifty assignees<br />11. Number of patent filings by the fifty assignees from the year 2000 to the year 2014 <br />12. Number of patents in each Level 1 category filed over the years (time intervals: 2000-2003, 2004-2007, 2008-2011, 2012-2014) <br />13. Number of patents filed annually from the year 2000 to 2014 for all Level 1 categories combined<br />14. Top 10 assignees in Communication<br />15. Top 10 assignees in Operational Blocks<br />16. Top 10 assignees in Software<br />17. Top 10 assignees in Sensors<br />18. Top 10 assignees in Sound, Image, and Video<br />19. Top 10 assignees in Display<br />20. Number of patents in each Level 1 category held by each assignee in the top 10. (The ten assignees with the most number of patents in the overall dataset of 23,569.)<br />21. Number of patents filed from the year 2000 to 2014 in each sub-category of Communication<br />22. Number of patents filed from the year 2000 to 2014 in each sub-category of Operational Blocks<br />23. Sub-categories (Level 2 categories) with the highest number of filings [Baseband; Bandwidth; Call and data management; Signalling, routing and switching]<br />24. Top 10 assignees in Baseband<br />25. Top 10 assignees in Bandwidth<br />26. Top 10 assignees in Call and data management<br />27. Top 10 assignees in Signalling, routing and switching</p>
<h3>8. Confidential Research and Anonymised Interviews</h3>
<p style="text-align: justify; "><i>[6. What is the design and manufacturing flow of a finished Internet-enabled low-cost mobile phone sold in India?]</i></p>
<p style="text-align: justify; ">CIS conducted and published anonymised <a class="external-link" href="http://cis-india.org/a2k/blogs/interviews-with-semi-conductor-industry-professionals-in-taiwan-1">interviews with semiconductor chip manufacturers in Taiwan</a> in September 2014. A confidential research exercise was conducted with original equipment manufacturers (OEMs) and white-label assembly lines in China in 2014. The two research exercises have contributed to the mapping of the downstream flow of manufacturing a finished, Internet-enabled, low-cost mobile device.</p>
<h3>9. Literature Survey</h3>
<p style="text-align: justify; "><i>[3. What are the existing patent pools for each of the capabilities found in a low-cost networked mobile device? What do we know about these patent pools? </i></p>
<p style="text-align: justify; "><i>4. Would the existing patent pools be sufficient to ensure that consumers continue to have access to inexpensive devices, that manufacturers operating in the budget segment are not snuffed out by patent litigation (or pass on losses caused by patent litigation to their consumers), and the rights of patent holders are not infringed upon. If not, why?]</i></p>
<p style="text-align: justify; ">Research questions 3 and 4 will be answered via a comprehensive<a class="external-link" href="http://cis-india.org/a2k/blogs/literature-survey-patent-landscaping-in-the-indian-marketplace"> literature survey</a>.<sup><br /></sup></p>
<h3>10. Prior Art</h3>
<p style="text-align: justify; ">A list of 2,300 patents from different jurisdictions (US, Japan, India, Korea, Sweden, Taiwan, Europe, China, Finland, France, Norway, UK, Germany, Singapore) searched by keyword/ keystring was compiled in 2013 <sup><a href="#_ftn2" name="_ftnref2">[2]</a></sup>.</p>
<p style="text-align: justify; ">Clairvolex, a market research firm based in Gurgaon conducted a patent landscaping exercise of mobil technologies in India in 2010. The search was based on IPC classes: http://www.clairvolex.com/pdf/communication.pdf</p>
<h3>11. Narrative:</h3>
<p style="text-align: justify; ">The chapter for the book takes the form of a story of an Indian businessperson travelling to Shenzhen in China to procure a consignment of mobile phones for selling them in India. The businessperson puts together a configuration of hardware and software for the mobile phone and sets out to find the royalties he would need to pay for it.</p>
<p style="text-align: justify; ">Numerical data has been presented using visualisations.</p>
<h3>12. Assumptions:</h3>
<p style="text-align: justify; ">The chapter assumes a direct link between the patent regime and the availability of inexpensive Internet-enabled mobile devices, whereas the latter is affected by several other factors outside the scope of this research, for example, trademark infringement litigation.</p>
<h3>13. Limitations:</h3>
<ul>
<li>The patent landscape only encompasses the patents and patent applications filed by 50 major brands in India. It does not take into account patents held by other vendors, universities, and educational institutions. </li>
<li>The patent landscaping exercise was conducted for patents granted and applications filed between January 1, 2000 and February 23, 2015 as earlier data for Indian patents was not available in the Thomson Reuters database. As the lifespan of a patent is 20 years, live patents granted between 1995 and 2000 in India are not present in the landscape.</li>
<li>IPC classes, sub-classes and DWPI manual codes listed in Annexure 8 were not included in the patent landscape as they were very overarching for the research question. Class H04, for instance, pertains to "electric communication techniques". It is likely to comprise a comparatively large number of patents not pertaining to mobile device technology. Instead, certain sub-classes of H04 that are the most relevant to mobile device have been considered. As another example, the sub-classes of G01 pertain to measurements of physical quantities (length, area, thickness, et al). The number of patents pertaining to mobile technology in these sub-classes will be small compared with the number of patents in the sub-class. Owing to the presence of a relatively large number of patents superfluous to the research, these classes were not included in the interest of time, effort, and monetary cost.</li>
</ul>
<p> </p>
<ul>
</ul>
<ul>
</ul>
<ul>
</ul>
<p style="text-align: justify; "><b>Edited, April 8, 2015</b>: To add -- Procedure for selecting law firms/ patent attorneys for this task, Patent database searching by company name, List of companies</p>
<p style="text-align: justify; "><b>Edited April 27, 2015</b>: To update -- <a href="http://editors.cis-india.org/a2k/blogs/mobile-phone-standards.ods" class="external-link">Annexure 2</a>, List of standards and specifications found in sub-USD-100 Internet-enabled mobile phones sold in India.</p>
<p style="text-align: justify; "><b>Edited, May 23, 2015</b>: To remove "Scope: Software patents will not be considered" as software patents granted in India have been found.</p>
<p style="text-align: justify; "><b>Edited, July 25, 2015</b>: To remove steps "Patent database searching by standard" and "patent database searching by keyword" as they would have increased the time and costs needed for the landscaping without adding significant value. Hence, removed the research question, "What degree of standards implemented in the mobile device technology sold within India compared with that in the US is currently covered by patents?"</p>
<p style="text-align: justify; "><b>Edited, November 7, 2015:</b> To edit – Research question 1. Are there measurable indications of increasing patenting activity in the mobile device industry in India?</p>
<p style="text-align: justify; ">2. What patents are absolutely necessary to keep a networked mobile device which costs less than USD 100 in India running?</p>
<p style="text-align: justify; ">3. What are the existing patent pools for each of the standards identified and what do we know about them?</p>
<p style="text-align: justify; ">4. Question trifurcated.</p>
<p style="text-align: justify; ">5. <span>Which of these patent pools could go into an India-based mobile device patent "pool of pools" formed possibly through government intervention and having a royalty level supportable by the domestic Indian mobile device market?</span></p>
<p style="text-align: justify; ">Research Objective: The set of patents is restricted to those that apply to technologies that are absolutely necessary for the functioning of such a device. <br /><br />To add in “Research Object”: The research object was used to determine “ features commonly found in networked mobile devices sold in India that cost less than USD 100” as described in research question 2.<br /><br />To add sections on Analysis of Results, Confidential Research and Anonymised Interviews, and Literature Survey.</p>
<p style="text-align: justify; "><b>Edited, November 17, 2015: </b>To add section on Limitations.<b> <br /></b></p>
<hr />
<h3>Footnotes:</h3>
<p style="text-align: justify; ">[<a href="#fr1" name="fn1">1</a>]. Compilation of Mobile Phone Patent Litigation Cases in India, Rohini Lakshané, March 15, 2015, http://cis-india.org/a2k/blogs/compilation-of-mobile-phone-patent-litigation-cases-in-india, Last accessed November 7, 2015.</p>
<p style="text-align: justify; ">[<a href="#fr2" name="fn2">2</a>]. Mobile Phone Patents: Prior Art Survey, Nehaa Chaudhari, October 23, 2013, http://cis-india.org/a2k/blog/mobile-phone-patents, Last accessed November 7, 2015.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/patent-landscaping-in-the-indian-mobile-device-market'>http://editors.cis-india.org/a2k/blogs/patent-landscaping-in-the-indian-mobile-device-market</a>
</p>
No publisherrohiniAccess to KnowledgePervasive Technologies2017-02-15T14:05:38ZBlog EntryUbiquity, Mobility, Globality: Charting Directions in Mobile Phone Studies
http://editors.cis-india.org/a2k/news/center-for-global-communication-studies-november-6-2014-ubiquity-mobility-globality-charting-directions-in-mobile-phone-studies
<b>Nehaa Chaudhari made a presentation at the Ubiquity, Mobility, Globality : Charting Directions in Mobile Phone Studies Conference. This was organized by the Center for Global Communication Studies at the Annenberg School for Communication, University of Pennsylvania, Philadelphia on November 6 and 7, 2014. Nehaa was on a panel titled Mobile and its Effects on Global Markets and made a presentation on Pervasive Technologies: Access to Knowledge in the Workplace.</b>
<p style="text-align: justify; ">Nehaa Chaudhari's presentation can be <a href="http://editors.cis-india.org/a2k/blogs/pervasive-technologies-a2k-workplace.pdf" class="external-link">downloaded here </a>(PDF, 518 KB). <a class="external-link" href="http://www.global.asc.upenn.edu/app/uploads/2014/11/Program_final.pdf">Click here</a> for the full programme. Download the <a href="http://editors.cis-india.org/a2k/blogs/ubiquity-mobility-globality.pdf/view" class="external-link">agenda here</a>.</p>
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<p style="text-align: justify; ">Mobile phones are tools for activism and civic participation, surveillance and repression, market making and market disruption. In Ithiel de Sola Pool’s memorable phrase, there have been few “technologies of freedom” that match the consequences of these new instruments and the infrastructure that supports them. This conference examines dimensions of the social, political, and economic effects of the global ubiquity of mobile phones:</p>
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<li>What are the affordances and limitations of mobile phones in development?</li>
<li>What is the impact of mobile phones on socio-political change?</li>
<li>How do mobile phones continue to shape our civil liberties?</li>
<li>What are the geo-political consequences of these mobilities?</li>
<li>How does mobile phone adoption challenge and support market innovation?</li>
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<p style="text-align: justify; ">To tackle these questions, this conference brings together voices from the academy, civil society, and industry—all to examine the heterogeneous sources and consequences of mobility’s diffusion. The goal of this conference is to further interdisciplinary and comparative approaches to the understanding of the mobile phenomenon and to chart directions in mobile phone studies. The conference is funded by the Provost’s Global Engagement Fund, the Center for Global Communication Studies, and the Project for Advanced Research in Global Communication and the program reflects the input of several Schools at Penn, including the Annenberg School for Communication, Wharton, Law, and the School of Arts and Sciences.</p>
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For more details visit <a href='http://editors.cis-india.org/a2k/news/center-for-global-communication-studies-november-6-2014-ubiquity-mobility-globality-charting-directions-in-mobile-phone-studies'>http://editors.cis-india.org/a2k/news/center-for-global-communication-studies-november-6-2014-ubiquity-mobility-globality-charting-directions-in-mobile-phone-studies</a>
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No publisherpraskrishnaAccess to KnowledgePervasive Technologies2014-12-04T16:27:26ZNews Item