Centre for Internet and Society

National IPR Policy Series : RTI Requests to DIPP seeking Details on the IPR Think Tank and the National IPR Policy

nehaa — 2015-04-12T12:48:00Z

In an earlier blog post titled " National IPR Policy Series : The Development of the National IPR Policy", we discussed the formation of an IPR Think Tank to draft the first National IPR Policy. Since many details about the constitution and working of this Think Tank were unavailable, we decided to send out RTI requests to find out more.

According to the press release by the Department of Industrial Policy and Promotion (DIPP) which can be found here, an IPR Think Tank was constituted in order to draft the National Intellectual Property Policy. The Think Tank, chaired by retired Justice Prabha Sridevan, submitted a confidential first draft of the National IPR policy to the DIPP on 19th December, 2014. This document was made publicly available by the DIPP and all stakeholders were requested to provide comments and suggestions to the first draft of the National IPR Policy.

Though the IPR Think Tank has expediently released their first draft of the National IPR policy, there is a lack of information available on the constitution of this IPR Think Tank. There is no data on how the members of this Think Tank were shortlisted and selected or how the Chairperson and Convener of the Think Tank were elected. Further, the suggestions and comments received by the IPR Think Tank before and after publishing the first draft of the policy have not been made publicly available.

In an attempt to obtain more data on the process of the constitution of the Think Tank and it’s working, CIS filed three RTI requests to the Department of Industrial Policy and Promotion date February 2, 2015. A copy of the RTI requests is included below:

RTI Request 1: Information on Constitution of IPR Think Tank

Dear Sir/Ma’am,

Subject: Request for Information under Right to Information Act 2005.

Information Sought:

Please provide the following information:

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.
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, emails, opinions, advices, press releases, circulars, orders, etc. in which the constitution of the aforementioned IPR Think Tank was decided.
If there were multiple meetings held for the same, please provide all necessary documents including the minutes of all such meetings, records, documents, memos, emails, opinions, advices, press releases, circulars, orders etc. for all such meetings held.
If a directive or directives were received by 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 Department of Industrial Policy and Promotion from any Government authority, to constitute such a Think Tank.
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.

In case the information is held by or related to another public authority, the application or such part of it as may be appropriate may be transferred to that other public authority under intimation to the undersigned as per Section 6(3) of RTI Act.

Proof of payment of application fee:

An Indian Postal Order for the amount of Rs.10 dated 2/2/2015 favouring the Public Information Officer, Department of Industrial Policy and Promotion is enclosed as proof of payment of application fee.

I hereby declare that I am a citizen of India. I request you to ensure that the information is furnished before the expiry of the 30 day period after you have received the application.

Details of Applicant:

Ms. Nehaa Chaudhari
Centre for Internet and Society
G-15, Hauz Khas
New Delhi – 110016

Date: 2/2/2015

RTI Request 2: Working of IPR Think Tank while drafting National IPR policy

To,
Ms. Chandni Raina
Central Public Information Officer
Department of Industrial Policy and Promotion (IPR I, II, III, IV, V and VI Sections)
Room No.260
Udyog Bhawan, New Delhi

Dear Sir/Ma’am,

Subject: Request for Information under Right to Information Act 2005.

Information Sought:

Please provide the following information:

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 December 19, 2014.
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, opinions, advices, press releases, circulars, orders, suggestions etc. related to the drafting of such National IPR Policy by the IPR Think Tank chaired by Justice Prabha Sridevan.
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 suggestions etc. for all such meetings held.
Please provide all the suggestions and comments received by the IPR Think Tank from stakeholders after the Department of Industrial Policy and Promotion issued Public Notice No. 10/22/2013-IPR-III dated November 13, 2014 asking for suggestions and comments on or before November 30, 2014.

Proof of payment of application fee:

I hereby declare that I am a citizen of India. I request you to ensure that the information is furnished before the expiry of the 30 day period after you have received the application.

Details of Applicant:

Ms. Nehaa Chaudhari
Centre for Internet and Society
G-15, Hauz Khas
New Delhi – 110016

Date: 2/2/2015

RTI Request 3: Request for suggestions and feedback received by DIPP on the first draft of the National IPR Policy

To,
Ms. Chandni Raina
Central Public Information Officer
Department of Industrial Policy and Promotion (IPR I, II, III, IV, V and VI Sections)
Room No.260
Udyog Bhawan, New Delhi

Dear Sir/Ma’am,

Subject: Request for Information under Right to Information Act 2005.

Please provide the following information:

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.

Proof of payment of application fee:

I hereby declare that I am a citizen of India. I request you to ensure that the information is furnished before the expiry of the 30 day period after you have received the application.

Details of Applicant:

Ms. Nehaa Chaudhari
Centre for Internet and Society
G-15, Hauz Khas
New Delhi – 110016

Date: 2/2/2015

(Many thanks to CIS intern Protyush Choudhury for his assistance with this.)

For more details visit http://editors.cis-india.org/a2k/blogs/rti-requests-dipp-details-on-constitution-and-working-of-ipr-think-tank

National IPR Policy Series : CIS Comments to the First Draft of the National IP Policy

nehaa — 2015-02-09T00:59:10Z

The Department of Industrial Policy and Promotion, Government of India invited comments on the First Draft of India's National IPR Policy. The Centre for Internet & Society (CIS) made this submission. The comments were prepared by Nehaa Chaudhari, Pranesh Prakash and Anubha Sinha. We also thank our intern, Varnika Chawla for her assistance.

The press release from the Department of Industrial Policy and Promotion in which it invited comments is here. The First Draft of India's National IPR Policy is here. Click to view the PDF. Note: In some places there might be references to paragraph/page numbers (of the document) and for that readers should refer to the PDF since the formatting in HTML is slightly different.

Preliminary

This submission presents comments from the Centre for Internet and Society, India ("CIS")¹ on the proposed National Intellectual Property Rights Policy ("the Policy") to the Department of Industrial Policy and Promotion, Ministry of Commerce and Industry, Government of India.("DIPP").
This submission is made in response to the requests and suggestions from stakeholders sought by the DIPP in its Press Release. ²
CIS commends the DIPP for this initiative, and appreciates the opportunity to provide comments on the National IPR Policy. CIS' comments are as stated hereafter.

About CIS

CIS³ is a non-profit research organization that works on among others, issues of intellectual property law reform,⁴ openness,⁵ privacy, freedom of speech and expression and internet governance,⁶ accessibility for persons with disabilities,⁷ and engages in academic research on digital humanities⁸ and digital natives. ⁹
CIS is an accredited Observer¹⁰ at the World Intellectual Property Organization ("WIPO"), enabling us to attend formal meetings of member states and participate in debates and consultations on various issues. CIS has been attending meetings of the WIPO Standing Committee on Copyright and Related Rights since 2010. At these sessions, CIS has actively participated through various interventions, emphasizing the adoption of an approach balancing the rights holders' perspective with public interest. CIS has also attended sessions of some other committees at WIPO, made interventions wherever applicable, produced reports of these meetings, and profiled the work of other non-governmental organizations engaging in similar work on intellectual property law and policy reform. ¹¹
CIS undertakes research in other fields of intellectual property, in addition to WIPO-related work. Over the past five years since our inception, some of our key research has included analyses of intellectual property issues of the proposed Indo-EU Free Trade Agreement¹² and other free trade agreements,¹³ the US Special 301 Report,¹⁴ the (2010) amendment to the Copyright Act, 1957,¹⁵ the (draft) Science, Technology and Innovation Policy,¹⁶ parallel importation, ¹⁷ the (draft) Patent Manual and the subsequent Guidelines for Computer Related Inventions,¹⁸ royalty caps,¹⁹ copyright exceptions and limitations for education, ²⁰ and the preparation of the India Report for the Consumers International IP Watch List.²¹

Structure of this Submission

This submission is divided into 4 parts. The first part gives a preliminary overview of the suggestions submitted by CIS. The second part highlights the principles that should be followed in the formulation of a National IPR Policy, the third part provides detailed comments and recommendations for the National IPR Policy and the last part provides certain concluding remarks.

Principles

The characterization of intellectual property rights may be two-fold - first, at their core, intellectual property rights, are temporary monopolies granted to inter alia, authors and inventors; and second, they are a tool to ensure innovation, social, scientific and cultural progress and further access to knowledge. This dual nature and purpose of intellectual property protection is particularly critical in developing economies such as India. Excessive intellectual property protection could result in stunted innovation and negatively impact various stakeholders.²² It is therefore our submission that the development of the IPR Policy be informed by broader principles of fairness and equity, balancing intellectual property protections with limitations and exceptions/user rights such as those that promote freedom of expression, research, education and access to medicines, cultural rights, data mining, use of governmental works, etc.

Detailed Comments

This section will detail CIS' submissions on various aspects of the National IPR Policy. Submissions have been categorised thematically.

On the Vision

It is submitted that the Vision of the National IPR Policy ("Vision") in encouraging growth for the 'benefit of all' and in accepting the philosophy that knowledge owned 'is transformed into knowledge shared' ²³ is commendable.However, the vision is at odds with the methods proposed in the document. True advancement in science and technology, arts and culture, protection of traditional knowledge as well as bio-diverse resources and the true sharing of knowledge would be impaired by a system centred only around the development and maximization of intellectual property.
An attractive social culture would be one where citizens had access to a cornucopia of ideas and information, thereby fostering an environment of cultural diversity, which would enable individuals to shape themselves. Indeed, this is not just an ideal, but is a right recognized under Article 27(1) of the Universal Declaration of Human Rights, and Article 15 of the .²⁴ However, an IP maximization approach, which the draft stategy seems to embrace, hinders the growth of such a culture, creating a protectionist environment while preventing access to various resources which may be of use for further innovations.
The question of whether IP rights given to innovators are the most effective tools to promote innovation in society has been widely discussed in economics, politics and law, especially in the last four decades.²⁵ Traditional arguments in favour of temporary monopolies incentivising innovation have been effectively questioned as creating monopolies on innovation, contributing to increasing prices and a distorted allocation of resources, inefficiency and a net loss of welfare. ²⁶ It has also been effectively established that most innovation is incremental and cumulative, necessitating the access to pre-existing data and works.²⁷ It would be welcome if the huge amount of academic literature on these matter were taken into consideration by the expert group. While intellectual property rights are not per se antithetical to innovation, creativity, and cultural development, an IP-maximalist policy and law has been shown to harm those very objectives.
CIS therefore submits that the vision of the policy also reflect the commitment to the creation of a holistic and balanced framework of intellectual property rights in the nation with the recognition that an intellectual property-centric system would not necessarily be the best means of promoting creativity, innovation and access, the promotion of which are part of the stated desire of the policy.
Further, we believe that the principles of freedom of expression and of due process of law, both of which are constitutionally-recognized rights in India, should be recognized in the vision as principles that any intellectual property rights regime should respectively seek to promote and respect.

On the Mission

CIS appreciates the commitment to establish a balanced, dynamic and vibrant intellectual property system in India.²⁸ We recommend that the mission of the policy also include a commitment tofoster access to knowledge as well as the commitment to creating asystem of intellectual property rights which serve the public interest by strengthening limitations and exceptions to IP regimes, which are aimed to provide a public interest oriented counterbalance to the monopoly rights granted under IPR laws.
We believe that preventing unreasonable and disproportionate remedies to IPR law violations are an important part of ensuring that these laws serve the public interest rather than subvert them for purely private interests. This important principle ought to find reflection in the policy's mission statement.
It is suggested that in addition to public health, food security and the environment²⁹, other areas of socio-economic and cultural importance, including inter alia,foundational scientific research, education, disability rights, and access to knowledge, be added as additional areas that warrant special protection , in the mission statement.
It is submitted that these commitments are essential to the creation and working of a balanced intellectual property framework that the Policy seeks to achieve.

On Objective 1: IP Awareness and Promotion

The first objective of the Policy lays out a detailed action plan for creating awareness about intellectual property as well as for the promotion of intellectual property. The underlying rationale for this endeavour has been identified on various levels - that there are economic, social and cultural benefits of intellectual property;³⁰ that intellectual property protection accelerates development, promotes entrepreneurship as well as increases competitiveness; ³¹ and that the global regime is one of strongly protected intellectual property rights.³²
It is submitted that the identification of this underlying rationale is not backed by sufficient evidence. These justifications, in their pursuit of a favourable intellectual property regime do not present a balanced picture of all the facts.
Current existing empirical research does not show an unambiguous nexus between the granting of IP rights and an increase in innovation and productivity, as innovation and productivity cannot not identified with the number of patents awarded. ³³ This can be seen in the US economy, where despite an enormous increase in the number of patents, there has been no dramatic acceleration in technological progress. ³⁴ In fact, studies prove the contrary to be true. In the United States, patenting increased drastically over the last few decades, quadrupling from 59,715 patents being issued in 1983, to 244,341 in 2010. However, according to the Bureau of Labour Statistics, annual growth in the total factor productivity reduced from 1.2% in 1970-79 to below 1% in 2000-09, ³⁵ whereas the annual expenditure on research and development saw hardly any change, oscillating in a band of 2.5% of the GDP for over three decades.³⁶ In relatively new industries such as software and biotechnology, still in their nascent stages of development, patenting has been introduced without any positive contributions to innovation. In fact, in their empirical work described in Patent Failure (2008), ³⁷ Bessen and Meurer have argued that increased patenting has resulted in decreased social welfare.
Further, no unambiguous connections have been found between innovation and intellectual property rights in academic studies. In a meta-study conducted in 2006,³⁸ Boldrin and Levine observed that there was weak or no evidence which suggested that strengthening the patent regime led to an increase in innovation. Similarly, it was observed by Jaffe that "despite the significance of policy changes and the wide availability of detailed data relating to patenting, robust conclusions regarding the empirical consequences for technological innovations of changes in patent policy are few. There is widespread unease that the costs of stronger patent protection may exceed the benefits. Both theoretical and, to a lesser extent, empirical research suggest this possibility." ³⁹
In his study of 60 nations over the past 150 years, Josh Lerner concluded that "the impact of patent protection-enhancing on innovation was in fact negative, thereby running counter to assumptions made by economists that incentives affect behavior and that stronger property rights encourage economic growth.⁴⁰
Even in those studies, where support is found for a positive correlation between patents and innovation, it is made clear that this correlation is not applicable to developing and least-developed countries. This, for instance, is the conclusion of the United Nations Industrial Development Organization's meta-study titled "The Role of Intellectual Property Rights in Technology Transfer and Economic Growth: Theory and Evidence". ⁴¹
It is crucial that all policy be based on evidence, and not ideology.
Thus, it is submitted that any program that seeks to create awareness about intellectual property must necessarily be one that presents a balanced view, clearly stating all facts and as many diverse opinions as possible; avoiding the current situation where public interest groups and academics are sidelined in favour of rights-holders groups.
CIS submits that the nation-wide program of promotion on the benefits of intellectual property ⁴² must be based on evidence. Crucially, the importance of the public domain, for which a great deal of evidence exists,⁴³ must highlighted in any such also equally promote the importance the role of limitations and exceptions and clearly identify the issues with the intellectual property system, including the fact that it has not been proven that there is a nexus between intellectual property and innovation. The nation wide program should convey the role of different stakeholders, including libraries and archives, organizations working with persons with disabilities and educational institutions and the negative effects of a rights centric intellectual property system on such important institutions.
It is important that public-funded research organizations should be engaged in neutral - non-industry funded -research, and not campaigns (as identified in the policy).⁴⁴ This will help identify the issues of the present intellectual property system as well as the potential for reform, tailored to the Indian context. We have to ensure that campaigns - as with policymaking and pedagogic material - are based on research rather than faith or ideology. It is further submitted that course materials to be created for educational institutions at all levels as well as for online and distance learning programs ⁴⁵ should include a discussion on the drawbacks of a maximalist intellectual property system, a discussion on limitations and exceptions, alternatives to intellectual property, as well as case studies from different parts of the world highlighting the use of intellectual property as well as alternatives in a socio-economic and culture specific environment. Particularly in the case of education institutions as well as online and distance learning mechanisms, which are often faced with great challenges as a result of rights-holders centric intellectual property laws, the irony in promoting a system that only acts to their detriment would be great.

On Objective 2: Creation of IP

The second objective of the Policy seeks to stimulate the creation and growth of intellectual property through measures that encourage IP generation.⁴⁶ This objective seeks to encourage IP generation and creation across various sectors, including the introduction of the system of 'utility models' in India. There are several problems with this objective, primarily that it assumes IP generation is necessarily a means to innovation, whereas it is submitted that the emphasis should be on innovation holistically, including by incentive mechanisms other than IP.

On the IP-Innovation/ Creativity Nexus

It is submitted that similar to the earlier objective relating to the promotion and the creation of awareness about intellectual property, the underlying rationale behind this objective too seems to be the perception that there is a positive correlation between greater amounts of intellectual property and greater innovation, and the belief that intellectual property protection necesarrily promotes innovation. However, there is relatively little research to back this assumption. Illustratively, the following example may be considered. In a study conducted by Heidi L. Williams,⁴⁷ the sequencing of the human genome was used to provide an empirical context to showcase the deterioration in development due to the presence of IP. It was concluded by Williams that the presence of IP rights in the sequencing of the human genome resulted in reductions in subsequent scientific research and product development by up to 20-30%. ⁴⁸ Williams further observed that "if more socially valuable technologies are more likely to be held with IP, then the welfare costs for the same could be substantial." The presence of intellectual property rights, it is argued, stifles subsequent product development by restricting access to the data or technology required for further development. ⁴⁹
Prof. Petra Moser of Stanford has conducted a large volume of research on economic evidence on the linkages between patents and innovation. Her research, which shows that in the 19th century the majority of inventions happened outside the patent system ⁵⁰ indicates that alternative explanations might explain inventions better, including "the importance of a culture of entrepreneurship,⁵¹ experimentation,⁵² the free exchange of knowledge, ⁵³ and science.⁵⁴ In a paper titled, "How do Patent Laws Influence Innovation", she concludes that "I find no evidence that patent laws increased levels of innovative activity but strong evidence that patent systems influenced the distribution of innovative activity across industries."
Prof. Bryan Mercurio, in a paper written for the World Economic Forum and the International Centre for Trade and Sustainable Development, concludes, "The empirical evidence suggests that increasing levels of patent protection have not resulted in increased innovation. Instead, it has limited competition, and increased the cost of business, to the detriment of the world economy. Innovation has also suffered, as increasing protection has inhibited the ability of many firms to innovate." He further recommends that we "conduct further research on the correlation or causal relationship between patents and innovation, including the indirect benefits for innovation that patent protection may provide". Petra Moser notes, "Patent laws that existed in the mid-nineteenth century had been adopted in a relatively ad-hoc manner, dependent more on legal traditions than economic considerations".⁵⁵
The empirical data collected by scholars, as provided above is goes to show that innovation is not necessarily benefitted by stronger patent regimes. Further, even the literature that asserts a positive correlation between the two acknowledge that this doesn't apply to developing countries. In addition, whilepatents may provide revenue to patent owners, it also makes further innovation more costly, thereby discouraging competitors from entering the arena due to high prices, and due to the large number of pre-existing patents. This effect, known as the
The Supreme Court of Canada, has for instance, has on multiple occasions recognized the importance of the public domain. In "2002, Justice Binne, writing for the majority in Théberge v. Galerie d'Art du Petit Champlain inc., stated: 'Excessive control by holders of copyrights and other forms of intellectual property may unduly limit the ability of the public domain to incorporate and embellish creative innovation in the long-term interests of society as a whole (para.32).' Two years later, in CCH Canadian Ltd. v. Law Society of Upper Canada, Chief Justice McLachlin spoke of the importance that there be 'room for the public domain to flourish as others are able to produce new works by building on the ideas and information contained in the works of others (para. 23).'"⁵⁶
Lastly, there is even evidence that in multiple sectors - including fashion, finance, font design, and software - lesser IP protection in the form of patents, trademarks, and copyright, actual encourages increased innovation.⁵⁷

On Utility Models

On the question of introduction of a new on utility models⁵⁸ CIS observes that DIPP has previously considered developing a framework for granting Utility Models for 'innovations' and invited suggestions on a discussion paper on the subject.⁵⁹ Reports ⁶⁰ suggest that Small, Medium and Micro Enterprises are in favour of the Utility Model Protection system in India because developing countries such as China and Korea have demonstrated a corresponding economic growth attributable to the introduction of the system. However, there is no evidentiary data to support this hypothesis. Studies suggest that there exist only correlations and not causal links between heightened innovative activity and implementation of utility model protection. ⁶¹ Empirical evidence on the role of intellectual property protection in promoting innovation and growth in general remains limited and inconclusive.⁶² Reports also suggest that in China, the abundance of Utility Model has led to lowering of quality of innovation. ⁶³ In Australia, an "innovation patent" - the Australian version of utility model protection - was awarded for a "circular transportation facilitation device", i.e., a wheel. ⁶⁴
It is this submitted that whether the ushering of a 2nd tier of protection model for lower and incremental innovations would have a positive impact on innovation in India is extremely debatable. There have been several criticisms of utility models, inter alia, explosion in litigation of poor quality patents and legal uncertainty - which impact small business the maximum in terms of costs ⁶⁵; the system may be more utilised by foreign companies rather than local firms, in which case there is a possibility that this will lead to an increase in a flow of royalties and licensing fees to overseas producers. Utility model rights can be, and have been, used by companies to cordon off entire areas of research. ⁶⁶
CIS submits that as the policy 'intends to harness the full benefits of creation and innovation in the larger interest of society and citizens' ⁶⁷ the introduction of a law on utility models would be antithetical to this objective.

On Improving IP Output of National Research Laboratories, Universities et al

The Policy seeks to improve the output of national research laboratories, universities and technical institutions, among others.⁶⁸ It is submitted that these institutions are public funded institutions, ⁶⁹ and in effect, this recommendation of the Policy seeks to therefore promote intellectual property creation in public funded institutions.
A significant chunk of research and development occurs at public funded academic and research institutions and, excessive use of IPR as a tool to creating private ownership rights over inventions may preclude use of such innovation by the public. This may also create a barrier to access the best technologies and research- which were funded by taxpayers' money to begin with. CIS supports the principle that IPRs resulting from of publicly funded research should automatically belong to the funder.⁷⁰
Further, it is submitted that there exists a danger of public funded research institutions re-orienting their objectives focus only on areas of commercial value. This may lead to neglect of certain research areas. A stringent policy will create an unfavourable conflict between revenue generation and sharing of public good. The policy must ensure that it is flexible and compensates the inventors whilst permitting public access to research.
CIS submits that there should be no encumbrances over public funded research and inventions. The Policy must also ensure that such proposed IP creation does not prevent or interfere with dissemination of public funded research. ⁷¹
CIS strongly supports the recent steps by government agencies (including the Department of Science and Technology and the Department of Biotechnology⁷² as well as other institutions including the Council of Scientific and Industrial Research⁷³, Indian Council of Agricultural Research⁷⁴ and Institute of Mathematical Sciences ⁷⁵) in making scholarly research openly accessible. The benefits of implementing an open access policy with regard to scientific and scholarly works are manifold. Providing open access to scholarly research will ensure percolation of cutting edge research into the society.
It is thus submitted that the Policy should adopt a more nuanced, cautious and balanced take on the creation of intellectual property, particularly taking into consideration India's economic status as an emerging economy and our international position. The Policy must recognise that there is no inherent societal merit in the mere creation of intellectual property and that innovation flourishes even in the absence of intellectual property protections.

On Objective 3: Legal and Legislative Framework

According to the Policy, the objective sought to be achieved is the creation of strong and effective laws on intellectual property, consistent with national priorities as well as our international obligations, balancing the interest of the rights holders with public interest. ⁷⁶
CIS fully supports the view that the legislative framework on intellectual property must balance the rights of all stakeholders and be in public interest. CIS is also appreciates the importance of national priorities in the framing of India's legislative framework. CIS also notes with appreciation that the discussion in the Policy reiterates that India's laws are in compliance with the TRIPS Agreement ⁷⁷ as well as the stance that India will continue to utilize the flexibilities available in international treaties as well as the TRIPS Agreement⁷⁸ while creating its legal framework.
CIS also supports the acknowledgement of the fact that India's laws need to be updated periodically, depending on various factors.⁷⁹ CIS fully supports the process proposed for amendments to the law, including,inter alia, the conduction of objective and analytical studies and inputs from various stakeholders. ⁸⁰ It is submitted however, that equal weightage must be given to the inputs from all stakeholders and measures must be taken to ensure that the interests and demands of rights-holders do not outweigh the interests and demands of other stakeholders, particularly those at the other end of the spectrum, who greatly rely on the existence and guarantee of flexibilities, limitations and exceptions to intellectual property.

On Utility Models and Intellectual Property in Public Funded Research

The Policy envisages significant changes to India's intellectual property system, including the creation of a law for the protection of utility models as well as introduction of intellectual property in public funded research.
CIS recommends that it would not be advisable to introduce intellectual property in public funded research as well as cautions against the introduction of a law on utility patents. A detailed submission on these issues has been made earlier in this document, in Section 3.4.3. at page 7 for intellectual property in public funded research as well as in Section 3.4.2. at page 6 on utility models.

On the Negotiation of International Treaties and Agreements

CIS commends the recommendation of the Policy that the negotiation of international treaties and agreements will be in consultation with various stakeholders. However, CIS cautions against entering into bilateral or plurilateral international agreements which increase India's IPR obligations beyond our current obligations under multilateral agreements. It was only in 2006 that
It is submitted that FTAs often levy standards which are beyond those found in the TRIPS Agreement, and have thus been criticized. ⁸¹ A central aspect of this criticism is that TRIPS-plus-FTAs reduce policy space for the implementation of TRIPS flexibilities. This also creates the impression that TRIPS only imposes a "minimum level" of protection, which must be available in all national laws of its Member States, without any apparent limitation to a further extension of such protection or intervention which one country may impose on another. The World Health Organization enunciated that "bilateral trade agreements should not seek to incorporate TRIPS-plus protection in ways that may reduce access to medicines in developing countries.⁸² Further, WHO members were urged in the Fifty-Seventh World Health Assembly "to take into account in bilateral trade agreements the flexibilities contained in the Agreement on Trade-related Aspects of Intellectual Property Rights and recognized by the Declaration on the TRIPS Agreement and Public Health adopted by the WTO Ministerial Conference."⁸³
Furthermore, TRIPS-plus initiatives consequent in the dilution into a bilateral forum, as opposed to the plurality provided in multilateral fora, provided by the TRIPS. The imposition of standards by FTAs may ultimately disturb the balance of rights and obligations which are enshrined in the TRIPS Agreement,⁸⁴ and also have the potential to constrain the flexibilities provided to Member States in the TRIPS, particularly in areas which are of extreme significance to developing countries, such as transfer of technology, socio-economic development, promotion of innovation, public health and access to knowledge. Furthermore, they also tend to negate decisions which were taken multilaterally such as the Doha Declaration on the TRIPS Agreement and Public Health.
It is therefore submitted that the Policy must caution against entering into any international agreement that seeks to enforce TRIPS-plus standards, contrary to India's stance (as noted by the Policy itself) that its laws were compliant with international obligations.

On Limitations and Exceptions

It is observed that the Policy recommends that laws be enacted to address national needs, ⁸⁵ but the only mentions limitations and exceptions as an area of study for future policy development.⁸⁶It is submitted that while it is indeed necessary for further research to be undertaken in the area of limitations and exceptions, it is also critical to enact new laws and amend existing ones to foster a rich environment for limitations and exceptions, in order to achieve a holistic and balanced intellectual property framework. It is further submitted that this would also be in consonance with the objective of the negotiation of international treaties and agreements in consultation with stakeholders.
While the granting of exclusive rights over intellectual property is considered to be an incentive for further investments into innovative activities and the production of knowledge, allowing the exercise of the full scope of this exclusion in all circumstances may not meet the end goal of the enhancement of public welfare, using the intellectual property system. Therefore, it is essential that an intellectual property system be flexible allowing for certain limitations and exceptions in order to strike a balance between right holders, the public and third parties. The need for such flexibility in the intellectual property system of a country has also been highlighted by the World Intellectual Property Organization.
It is therefore suggested that the Policy include an additional recommendation for the inclusion, adoption and periodic renewal of limitations and exceptions in India's intellectual property laws, either be enacting new legislations or by amending existing legislations wherever applicable. It is further suggested that this recommendation also inform India's negotiations at the international level, where any agreement that India might potentially sign, not invalidate or narrow in any form any limitations and exceptions and provide for their continued exercise in the broadest possible scope and manner.

On Standard Setting

CIS commends the Policy's focus on standards in technology and standard setting organisations. CIS strongly supports the adoption of open standards as a measure that helps stimulate active competition amongst implementors of various standards, and thereby encourages innovation. The Department of IT finalized its Policy on Open Standards for e-Governance in 2010,⁸⁷ and CIS strongly supports this policy, and would encourage it be adopted by all state governments as well.
CIS strongly recommends developing and supporting the evolution of open standards. The Policy must not encourage use of IPR to limit access to standards, because these are the foundational rules any technology must adhere to enter the market or ensure quality. ⁸⁸ CIS submits that access to these standards must not be limited by making them proprietary through IPR protection. Further, the Policy must support transparent standard setting processes and procedures in national and at international for a for all participants.
CIS further appreciates the endeavor to encourage the development of global standards influenced by technologies developed in India.
CIS submits that it is also important to ensure that India emerges as a global player in the technology sector, not just in the development of indigenous standards, but also in the equally important space of manufacturing using existing standards, particularly in light of the Government's recent "Make In India" and "Digital India" initiatives. It is further submitted however, that in most instances, these standards are protected by patents; where patents essential to a standard would be standard essential patents. CIS suggests that the Policy recommend measures that might be adopted to ensure access to standards essential patents, including, for instance, the establishment of a government aided patent pool. It is submitted that addressing the question of access to standards and not just their development would be a holistic approach that the Policy should adopt.

On Objective 5: Commercialization of IP

CIS appreciates that the Policy seeks to promote licensing and technology transfer for intellectual property, and notes that the Policy also seeks to promote reasonable and non-discriminatory patent pooling to maximise the ability of smaller companies to commercialise IP and bring innovative solutions based on standards to the market.
CIS believes that the government establishing patent pools for digital technologies will promote access to knowledge and stimulate manufacturing in the information technology and electronics sectors in India, in line with the government's "Make In India" and "Digital India" initiatives. CIS has earlier urged the government to enable access to low cost access devices by establishing a government-aided patent pool of essential technologies, without which there is a high likelihood of such devices getting caught up in the 'patent wars' that have happened elsewhere around the world over smartphones.⁸⁹ CIS submits that the creation of government-aided patent pools and facilitation of cross-licensing will also be helpful in resolving issues created by patent thickets and gridlocks by reducing transaction costs for licensees and solving an economic cooperation problem.

Concluding Remarks

Debabrata Saha, the Deputy Permanent Representative of India to the United Nations, while speaking on the introduction of the Development Agenda at the World Intellectual Property Organization, with admirable clarity noted, "Let me start on a positive note by asking: with all the damage that TRIPS has wrought on developing countries could it possibly have a silver lining? Maybe - if we want to be generous. TRIPS, one might argue, did bring intellectual property to the forefront of consciousness of people everywhere, and, over time made them aware of the dangers inherent in a protective regime that takes little account of either public policy, or the state of development of a member country." It is thus imperative that when we fashion our public policy, we take account of the dangers he mentioned. He went on to note, "Intellectual property rights have to be viewed not as a self contained and distinct domain, but rather as an effective policy instrument for wide ranging socio-economic and technological development. The primary objective of this instrument is to maximize public welfare." We wholeheartedly support this position of the Indian government, and would encourage the IPR Think Tank to seek to maximize public welfare and creativity and innovation rather than maximizing IPR alone. Importantly, as Mr. Saha, speaking on behalf of the Indian government noted, IP is not an end in itself, contrary to what the current draft of the National IPR Policy seems to promote.
Flexibility is considered to be an essential characteristic in defining and shaping the intellectual property system of countries around the world. Such flexibility allows scope for further innovations and creations, thereby subserving the common good. As per Article 39 of the Constitution of India, "the State shall in particular, direct its policy towards securing that the ownership and control of the material resources of the community are so distributed as best to subserve the common good." It is therefore submitted that the National IPR Policy of India should be contoured in such a manner that it encourages greater use of exceptions and limitations to the otherwise exclusionary use of intellectual property, encourages the expansion of the public domain, secures proportionality in enforcement of IP rights, promotes alternatives to IP - including open access to scholarly literature, open educational resources, free/open source software, open standards, open data, and aims to create a regime of intellectual property that aims to serve the public interest and not just the narrow interest of private right holders. Such an approach should not be merely rights-based, but look at interests of the general public, especially the poor, as well, in order to further the aim of the nation to create a more egalitarian society, and adopt the Directive Principles in the Constitution.

1 www.cis-india.org (last accessed 30 November, 2014).

2 http://www.dipp.nic.in/English/acts_rules/Press_Release/pressRelease_IPR_Policy_30December2014.pdf.

3 See http://cis-india.org/ (last accessed 18 January, 2015).

4 See http://cis-india.org/a2k (last accessed 18 January, 2015).

5 See http://cis-india.org/openness (last accessed 18 January, 2015).

6 See http://cis-india.org/internet-governance (last accessed 18 January, 2015).

7 See http://cis-india.org/accessibility (last accessed 18 January, 2015).

8 See http://cis-india.org/digital-natives (last accessed 18 January, 2015).

9 See http://cis-india.org/raw (last accessed 18 January, 2015).

10 See http://www.wipo.int/members/en/admission/observers.html (last accessed 18 January, 2015).

11 See http://cis-india.org/a2k/blog/ngo-profile-knowledge-ecology-international (last accessed 18 January, 2015); http://cis-india.org/a2k/blog/ngo-profile-third-world-network (last accessed 18 January, 2015).

12 See illustratively http://cis-india.org/a2k/blog/analysis-copyright-expansion-india-eu-fta (last accessed 18 January, 2015); http://cis-india.org/a2k/blog/india-eu-fta-copyright-issues (last accessed 18 January, 2015); http://cis-india.org/a2k/blog/a-guide-to-the-proposed-india-european-union-free-trade-agreement (last accessed 18 January, 2015).

13 See illustratively http://cis-india.org/news/inet-bangkok-june-8-2013-governance-in-the-age-of-internet-and-fta (last accessed 18 January, 2015).

14 See illustratively http://cis-india.org/a2k/blog/2010-special-301 (last accessed 18 January, 2015).

15 See illustratively http://cis-india.org/a2k/blog/analysis-copyright-amendment-bill-2012 (last accessed 18 January, 2015); http://cis-india.org/a2k/blog/sc-report-on-amendments (last accessed 18 January, 2015); http://cis-india.org/a2k/blog/copyright-bill-parliament (last accessed 18 January, 2015); http://cis-india.org/a2k/blog/tpm-copyright-amendment (last accessed 16 January, 2015); http://cis-india.org/a2k/blog/copyright-privacy (last accessed 16 January, 2015); http://cis-india.org/a2k/blog/copyright-bill-analysis (last accessed 18 January, 2015).

16 See http://cis-india.org/a2k/blog/comments-on-science-technology-and-innovation-policy-draft (last accessed 18 January, 2015).

17 See http://cis-india.org/a2k/blog/exhaustion (last accessed 18 January, 2015); http://cis-india.org/a2k/blog/parallel-importation-of-books (last accessed 18 January, 2015).

18 See http://cis-india.org/a2k/blog/cis-submission-draft-patent-manual-2010 (last accessed 18 January, 2015) and http://cis-india.org/a2k/blog/comments-on-draft-guidelines-for-computer-related-inventions (last accessed 18 January, 2015) respectively.

19 See http://cis-india.org/a2k/blog/lid-on-royalty-outflows (last accessed 18 January, 2015).

20 See http://cis-india.org/a2k/blog/exceptions-and-limitations (last accessed 18 January, 2015).

21 See illustratively http://cis-india.org/a2k/consumers-international-ip-watchlist-report-2012 (last accessed 18 January, 2015); http://cis-india.org/a2k/blog/ip-watch-list-2011 (last accessed 18 January, 2015); http://cis-india.org/a2k/blog/consumers-international-ip-watch-list-2009 (last accessed 18 January, 2015).

22 The Washington Declaration on Intellectual Property and Public Interest concluded after the Global Congress on Intellectual property and Public Interest in August 2011 attended by over 180 experts from 32 countries articulate this position perfectly. Available at: http://infojustice.org/wp-content/uploads/2011/09/Washington-Declaration.pdf (Last Accessed: 29 November, 2014).

23 IPR Think Tank, National IPR Policy (First Draft) at page 5.

24 Article 27(1) of the Universal Declaration of Human Rights states: "Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits."

25 Julia Brüggemann, Paolo Crosetto et al, Intellectual Property Rights Hinder Sequential Innovation - Experimental Evidence, Center for European, Governance and Economic Development Research, Number 227, January 2015.

26 Joseph E. Stiglitz, Economic Foundations of Intellectual Property Rights, Duke Law Journal, 57(6): 1693-1724.

27 Graham M. Dutfield, Uma Suthersanen, The Innovation Dilemma: Intellectual Property and the Historical Legacy of Cumulative Creativity, Intellectual Property Quarterly, 2004 at 379.

28 IPR Think Tank, National IPR Policy (First Draft) at page 5.

29 IPR Think Tank, National IPR Policy (First Draft) at page 5.

30 IPR Think Tank, National IPR Policy (First Draft) at page 6.

31 Id .

32 Id .

33 Michele Boldrin and David K. Levine, The Case Against Patents, Journal of Economic Perspectives, Vol. 27, No.1 - Winter 2013, 3-22.

34 Id .

35 Id .

36 Id .

37 James Bessen and Michael J. Meurer, Patent Failure: How Judges, Bureaucrats and Lawyers Put Innovation at Risk, March 2008.

38 Michele Boldrin and David K. Levine Supra Note 32.

39 B.J. Jaffe, The US Patent System in Transition: Innovation and the Innovation Process, Research Policy, 29, 531-557, 2000.

40 Josh Lerner, The Empirical Impact of Intellectual Property Rights on Innovation: Puzzles and Clues, Intellectual Property Rights and Economic Growth in the Long-Run: A Discover Model (2009).

41 Rod Falvey & Neil Foster, The Role of Intellectual Property Rights in Technology Transfer and Economic Growth: Theory and Evidence (UNIDO Working Paper,

42 ¶ 1.2 IPR Think Tank, National IPR Policy (First Draft) at page 6.

43 See

44 ¶ 1.3 IPR Think Tank, National IPR Policy (First Draft) at page 7.

45 ¶ 1.5 IPR Think Tank, National IPR Policy (First Draft) at page 8.

46 IPR Think Tank, National IPR Policy (First Draft) at page 8.

47 Heidi L. Williams, Intellectual Property Rights and Innovation: Evidence from the Human Genome, National Bureau of Economic Research. Working Paper 16213, July 2010.

48 Id .

49 Id .

50 Petra Moser, Innovations and Patents in Oxford Handbook of Economic History (Cain et al., eds., forthcoming), http://ssrn.com/abstract=2503503.

51 See generally , David. S. Landes, The Unbound Prometheus: Technological Change and Industrial Development in Western Europe from 1750 to the Present (1969).

52 See generally , Joel Mokyr. The Lever of Riches: Technological Creativity and Economic Progress (1990).

53 See generally , Alessandro Nuvolari Collective Invention during the British Industrial Revolution: the Case of the Cornish Pumping Engine, 28 Cambridge J. Econ. 347 (2004). See also, Robert C. Allen, Collective Invention, 4 J. Econ. Behavior & Org. 1 (1983).

54 A. Arora & N. Rosenberg, Chemicals: A US Success Story in Chemicals and Long-Term Economic Growth 71 (Arora et al., eds., 1998); see also, David C. Mowery & Nathan Rosenberg, Paths of Innovation. Technological Change in 20th-century America (1998).

55 Petra Moser, How Do Patent Laws Influence Innovation? Evidence from Nineteenth-Century World Fairs, NBER Working Paper Series 9909, http://www.nber.org/papers/w9909.

56 Meera Nair, A Short-Lived Celebration, Fair Duty (Jan. 8, 2012), https://fairduty.wordpress.com/2012/01/08/a-short-lived-celebration/

57 See generally, Kal Raustiala & Christopher Sprigman, The Knockoff Economy (2012).

58 ¶ 2.10 IPR Think Tank, National IPR Policy (First Draft) at page 10.

59 See FICCI Suggestions on Discussion Paper on Utility Model available at http://www.ficci.com/Sedocument/20179/UM.pdf (last accessed January 28, 2015).

60 See FICCI Suggestions on Discussion Paper on Utility Model available at http://www.ficci.com/Sedocument/20179/UM.pdf (last accessed January 28, 2015).

61 See Utility Model: A Tool for Economic and Technological Development: A Case Study of Japan available at http://www.ipindia.nic.in/research_studies/finalreport_april2007.pdf (last accessed January 28, 2015).

62 U. Suthersanen, Utility Models and Innovation in Developing Countries, International Center for Trade and Sustainable Development (ICTSD), Issue Paper No. 13 (2006), available at http://www.unctad.org/en/docs/iteipc20066_en.pdf , (last accessed January 28, 2015).

63 See China's great leap forward in patents , available at http://www.ipwatchdog.com/2013/04/04/chinas-great-leap-forward-in-patents/id=38625/ (last accessed January 28, 2015).

64 Will Knight, Wheel Patented in Australia, New Scientist (July 3, 2001), http://www.newscientist.com/article/dn965-wheel-patented-in-australia.html .

65 Keith E. Maskus, Beyond the Treaties: A Symposium on Compliance with International Intellectual Property Law, February 6, 2000.

66 U. Suthersanen, Utility Models and Innovation in Developing Countries, International Center for Trade and Sustainable Development (ICTSD), Issue Paper No. 13 (2006), available at http://www.unctad.org/en/docs/iteipc20066_en.pdf , (last accessed January 28, 2015).

67 IPR Think Tank, National IPR Policy (First Draft) at page 1.

68 ¶ 2.3 IPR Think Tank, National IPR Policy (First Draft) at page 10.

69 See http://mhrd.gov.in/technical-education-1 (last accessed 30 January, 2015).

70 See 'Expert Group Report on Role and Strategic Use of IPR (Intellectual Property Rights) in International Research Collaborations' by European Commission 'available at http://ec.europa.eu/research/era/pdf/ipr-eur-20230_en.pdf (last accessed January 28, 2015).

71 See 'Ministry of Science makes Open Access to Research Mandatory ', available at http://cis-india.org/news/down-to-earth-july-16-2014-aparajita-singh-ministry-of-science-makes-open-access-to-research-mandatory (last accessed January 28, 2015).

72 DBT and DST Open Access Policy - Policy on Open Access to DBT and DST Funded Research, Department of Biotechnology and Department of Science and Technology, Ministry of Science and Technology, Government of India.

73 Id.

74 Id.

75 Id.

76 IPR Think Tank, National IPR Policy (First Draft) at page 11.

77 Id .

78 IPR Think Tank, National IPR Policy (First Draft) at pages 10, 11.

79 IPR Think Tank, National IPR Policy (First Draft) at page 12.

80 Id .

81 The Doha Declaration on the TRIPS Agreement and Public Health and the Contradictory Trend in Bilateral and Regional Free Trade Agreements (2004), Available at http://www.quno.org/geneva/pdf/ec onomic/Occasional/TRIPS-Public-Health-FTAs.pdf.

82 World Health Organization, Report of the Commission on Intellectual Property Rights, Innovation and Public Health, Recommendation 4.26 (2006), available at http://www.who.int/intellectualproperty/ documents/thereport/CIPIHReport23032006.pdf [hereinafter WHO].

83 Fifty-Seventh World Health Assembly, May17-22,2004, (May 22, 2004), available at http:// apps.who.int/gb/ebwha/pdf_files/WHA57/A57_R14-en.pdf;

84 Preamble, Articles 7, 8, TRIPS Agreement, 1994.

85 ¶ 3.2 IPR Think Tank, National IPR Policy (First Draft) at page 12.

86 ¶ 3.6 IPR Think Tank, National IPR Policy (First Draft) at page 13.

87 See 'Open Standards Policy' , available at http://cis-india.org/news/open-standards-policy (last accessed January 28, 2015).

88 See 'The BIS, Standards and Copyright' , available at http://spicyip.com/2014/11/the-bis-standards-and-copyright.html (last accessed January 28, 2015).

89 See CIS' Letter for Establishment of Patent Pool for Low-cost Access Devices through Compulsory Licenses , available at http://cis-india.org/a2k/blogs/letter-for-establishment-of-patent-pool-for-low-cost-access-devices (last accessed January 29, 2015).

For more details visit http://editors.cis-india.org/a2k/blogs/national-ipr-policy-series-cis-comments-to-the-first-draft-of-the-national-ip-policy

RTI Responses - MHRD IP Chairs: Details of Funding & Expenditure

nehaa — 2015-02-02T13:28:30Z

In an earlier blog post titled "MHRD IPR Chairs — Underutilization of Funds and Lack of Information Regarding Expenditures", we discussed the lack of information regarding the expenditure by various MHRD Chairs in the country. We sent out RTI requests to find out more. This blog post discusses the responses that we have received so far. (Many thanks to CIS intern Varnika Chawla for her assistance)

See the earlier post on MHRD IPR Chairs — Underutilization of Funds and Lack of Information Regarding Expenditures

A wide variation in the allocation of funds among different Universities was observed. Further, it was noted that no information was available on any platform, regarding the actual utilization of these funds, and therefore, CIS had filed a Right to Information request for the same with the concerned authorities.

A four-pronged Right to Information query (dated 17.11.2014) was filed by CIS with various Universities, seeking the following:

A report on the implementation of the IPERPO Scheme and the MHRD IPR Chair funded under the Scheme at different Universities across India, for the year 2013-14;
Documents on the release of grants to the MHRD IPR Chairs under the IPERPO Scheme at different Universities, for the year 2013-14;
Documents relating to the receipt of utilization certificates and audited expenditures statements and matters related to all financial sanctions with regard to funds granted to the MHRD IPR Chair established under the IPERPO Scheme for the year 2013-14;
Documents regarding all matters related to finance and budget related to the MHRD IPR Chair under the IPERPO Scheme for 2013-14 established across different Universities.

Accordingly, CIS received the following information from Universities:

Name of University	Implementation of IPERPO Scheme	Release of Grants	Utilization Certificates & Exp. Stmts.	Finance & Budget Matters
WBNUJS, Kolkata	Information not yet available	-	-	-
DU, Delhi School of Economics, Tezpur University	Information not yet available	-	-	-
Jawaharlal Nehru University	Information not yet available	-	-	-
IIM, Ahmedabad	No MHRD IPR Chair	-	-	-
IIM, Bangalore	Established a Chair	Rs. 23,50,000	Rs. 23,50,000	Submitted
IIT Delhi	No MHRD IPR Chair	No money has been received	-	-
NLU, Jodhpur	Established a Chair	Rs. 36,00,000	Rs. 18,86,566	Submitted
University of Madras	No MHRD IPR Chair	No money has been received	-	-
Nalsar University of Law, Hyderabad	Established a Chair	Rs. 40,00,000	Rs. 37, 88,349	Submitted
NLSIU, Bangalore	Established a Chair	Rs. 45,00,000	Rs. 45,31,927	-
CUSAT, Kerala	Information not yet available	-	-	-
IIT, Bombay	No IPR Chair for 2013-14	Rs. 35,00,000	Rs. 15,66,179	Submitted

The RTI Requests were returned by NUJS Kolkata as well as IIT, Kanpur, in a response dated 28.11.2014.

IIM Ahmedabad in its response (dated 9.12.2014), informed of the fact that no MHRD IPR Chair has been established under the IPERPO Scheme at the institution.

Details of the activities undertaken by the MHRD IPR Chair, as well as their finance and budget allocation were received from IIM, Bangalore (dated 16.12.2014). It was disclosed that the focus of the IPR Chair is on research on the economic and management dimensions of IPR with special reference to the corporate, SME and agricultural sectors. Since 2011-12, the Chair has focused on creative content management and protection with reference to cinema, electronic media and classical performing arts. Several activities were undertaken by the Chair, including finalization of a Research Monograph; inclusion of IPR Economics into the Core Course in Microeconomics for the Post Graduate Programme in Software Enterprise Management; a National Workshop on “Macro Policy Environment, IPR’s and Competition Policy” was organized; and 2 Research Assistants were appointed under the Chair. Against a request for Rs. 26,10,000, a grant of Rs. 23,50,000 was received, utilized for the payment of the Chair’s salary (Rs. 19,20,000), RA honorarium (Rs. 5,40,000) and Round Table Expenses.

IIT, Delhi, in its response (dated 16.12.2014) informed that no MHRD IPR Chair has been established under the IPERPO Scheme at the University. Further, no grant money has been received by the University under the Scheme.

NLU, Jodhpur submitted a detailed reply (dated 16.12.2014). A number of IPR research and learning initiatives have been undertaken under the MHRD IPR Chair established under the IPERPO Scheme, including IPR Awareness Programmes, formulation and conduction of various undergraduate and postgraduate IPR Courses, research and suggestions on IPR Law Reforms and IPR Policies etc. NLU Jodhpur conducted a training session for researchers and teachers of IPR, a workshop for students on IP Litigation, a conference on “The Impact of IPR on Access to Medicine”, Training, Sensitization and Outreach Programmes as well as lectures and paper presentations. Funding received from the grant was utilized towards payment of the coordinator’s salary (Rs. 5,78,800) RA honorarium (Rs. 6,00,000), Ph.D. fellows’ honorarium (Rs. 3,38,000), travel grants (Rs. 2,00,000) and miscellaneous expenditure. A total of Rs. 17,00,000 was spent on sensitization and outreach programmes, workshops, conferences as well as the IP Depository.

The University of Madras in its response (dated 29.12.2014) submitted that no MHRD IPR Chair has been established under the IPERPO Scheme and no grants were sanctioned to the University.

The requisite documents detailing expenditure incurred (Rs. 37,88,349) as well as the financial budget were made available by NALSAR University of Law (dated 22.12.2014). Expenditure was incurred towards the payment of the Chair Professor’s salary (Rs. 17,50,093), payments to the staff (Rs.7,11,544), the IPR Journal (Rs. 40,000), Travel (Rs.6,45,864), books (Rs. 2,67,740) and other miscellaneous expenditure. A link to an online report, was also made available. However, this is a dead link.

The website established for MHRD IPR Chairs itself is not functioning.

No information has been made available by Jawaharlal Nehru University, Delhi University, Delhi School of Economics and Tezpur University as well as CUSAT, Kerala as of now. Further, IIT, Kharagpur in its reply (dated 17.12.2014), sought exemption from providing the required information under Section 8(1)(d) of the RTI Act, 2005.

IIT Bombay, in its reply (dated 15.01.2015) submitted that having established a MHRD IPR Chair under the IPERPO Scheme, activities such as research, training, academic courses (Introductory Foundation Course at U.G., P.G. Level, Elective Course at P.G. Level), conducting workshops, conferences and outreach programmes and maintaining an IP Depository have been undertaken. Details about budgetary allocation were also made available. From a grant of Rs. 35,00,000, a total amount of Rs. 15,66,179 has been utilized. However, there was no IPR Chair for the year 2013-14. Out of a cumulative grant of Rs. 1,95,00,000 received till March 31, 2014, the institution has spent a total of Rs. 1,62,60,265 on IPR Activities, workshops, honorariums, salaries, conferences etc. from 2007.

Lastly, as per the information received from NLSIU, Bangalore (dated 14.01.2015), an MHRD IPR Chair has been established at the University. Several activities have been organized at NLSIU, including a Workshop on IPR in S.J.R. College of Law, the release of an IP Newsletter publication “March of the IP Law”, a conference on the Advantages of Madrid Protocol, a conference on Patents, Innovation and Trade Secrets for MSMEs in IT/ITES Sectors in Karnataka, research activities such as the Fact-Screening-and-Transforming-Processor Project, the release of a website http://iprlawindia.org which is currently under construction, conducting awareness and outreach programmes etc. The MHRD IPR Chair at NLSIU was awarded a grant of Rs.45,00,000 which was largely spent on the payment of the Chair’s salary (Rs. 24,17,378), RA honorarium (Rs. 5,88,415), workshops and conferences (Rs.1,27,805), creation of a depository of IP books (Rs. 1,00,105), publication of newsletters (Rs.1,00,000) and staff payments.

It is therefore observed that firstly, there was a variation in replies to the RTI queries filed under the same format, with some Universities providing information, some blatantly refusing to do so (IIT Kharagpur), and some delaying the process for what appear to be minor procedural irregularities.

Four Universities have still not sent the requisite information, whereas no MHRD IPR Chair has been established in four of them. Only four replied with some information.

Moreover, for the year 2013-14, MHRD allocated a grant of Rs. 1,79,50,000 among 5 Universities, disproportionately (ranging from Rs.23 lakhs-Rs. 45 lakhs per University). Out of this grant, the Universities have incurred a total expenditure of Rs. 1,41,23,021, largely for the payment of salaries of the IPR Chair (Rs. 66,66,271), honorariums for Research Assistants (24,50,183), and conducting workshops, conferences and travel for the same.

The various responses received to the RTI queries filed reveal a great variation in not just the allocation of funds by the Ministry, but also on the utilization of these funds (if at all), as well as in the range of activities conducted by the Chairs.

We're still tracking this. Watch this space for more, including copies of our RTIs and the responses as well as details from other Universities who are yet to get back to us.

For more details visit http://editors.cis-india.org/a2k/blogs/rti-responses-mhrd-ip-chairs-details-of-funding-and-expenditure

National IPR Policy Series : The Development of the National IPR Policy

nehaa — 2015-01-22T00:48:33Z

This is the first blog post in a series of posts on India's National IPR Policy. In this post, CIS intern, Varnika Chawla traces the evolution of the National IPR Policy.

Significant changes have been implemented in the Intellectual Property regime of India since India's accession to TRIPS in 1995. This post details the timeline of the development of Intellectual Property law in India, highlighting the discourse around the formulation of a National IPR Policy. The author has also looked at the formulation of IP Strategies in different nations across the world, summarized in the infographic, observing that the trend for the same is very recent and has only emerged over the last decade.

"Intellectual Property Right is a private right recognized within the territory of a country and assigned to an individual or individuals for a specified period of time in return for making public, the results of their creativity and innovation." India has a well-established and comprehensive legislative, judicial and administrative framework for intellectual property. The decade of 2010-2020 was declared as the Decade of Innovation, with an objective of expanding the space for dialogue for inclusive growth. With the emergence of globalization, the Indian society has become more knowledge-intensive giving rise to rapid development in the field of information technology and consequently intellectual property, thereby increasing the role of the legislature as well as the judiciary to protect and promote intellectual property rights.

India gained membership of the World Trade Organization in 1995. This membership initiated a new round of revisions resulting in the upheaval of the Indian intellectual property system. All IP legislations were hereby required to comply with the provisions of the TRIPS Agreement by 2000, with the exception of the Patents Act, which had an extended time limit to be compliant till 2005.

The Indian system of intellectual property rights is designed in a manner to ensure the protection of intellectual property while maintaining a balance between rights and obligations. There are several legislations which deal with the protection of intellectual property in India. These include thePatents Act, 1970, the Trade Marks Act, 1999, theGeographical Indications of Goods (Registration and Protection) Act, 1999, the Semiconductor Integrated Circuits Layout Design Act, 2000, the Competition Act, 2002 as well as theBiological Diversity Act, 2002. India is also thefirst country to ratify theMarrakesh Treaty, 2013 for access to copyright works for visually impaired persons. India also recently acceded to the Madrid Protocol in 2013.

National IP Strategy and the Role of WIPO

A National IP strategy has been defined by WIPO as "a vehicle for creating better functional linkages between the national economic objectives, development priorities and resources, and the IP system of the country concerned."[1] It is therefore a set of policy measures undertaken by governments in order to facilitate the proper use of IP as a strategic tool, for economic, social, cultural and technological development.[2] WIPO also gave the framework of the planning process each country should implement, in its efforts to adopt an IP strategy. As per this, the process is divided into four main stages:

Government initiative
Establishment of a National IP Strategy Formulation Committee
Presentation of draft strategy before stakeholders
Government approval of National IP Strategy,[3]

WIPO can assist in the formulation of a National IP Strategy by advising the governments as well as providing technical expertise during the planning process and providing support and assistance as and when required.[4]

India's National IPR Strategy

Realizing the significance of having a strong and well-balanced IP system in the emerging economy of India, several initiatives have been undertaken by the Department of Industrial Policy & Promotion at the policy level to create an environment conducive for the development of intellectual property and technology. Accordingly, a draft for the National IPR Strategy, outlining a set of measures and guidelines to encourage and facilitate the effective creation, protection, management and commercialization of IP for accelerating economic, social, cultural and technological development and for enhancing enterprise competitiveness prepared by the Sectoral Innovation Council on IPR was released by DIPP on September 26, 2012, inviting views from various stakeholders. It was felt that the National IP Strategy needs to be developed in a manner such that it is integrated with the overall national plan for development in order for better cooperation with IP components of specific and targeted national strategies in areas such as trade and investment, education, food and agriculture, science and technology etc.

Subsequently, a revised draft for the National IPR Strategy in India was released on July 21, 2014, detailing a vision statement, objectives and means to achieve the same.

The DIPP constituted an IPR Think Tank , as notified on November 13, 2014, in order to draft the National Intellectual Property Rights Policy and to advise DIPP on IPR-related issues. Finally, a First Draft of the National IPR Policy was submitted by the IPR Think Tank on December 19, 2014 , inviting comments and suggestions from all stakeholders on or before January 30, 2015.

National IP Strategies: Around the World

WIPO Member States adopted 45 recommendations at the 2007 General Assembly, made by the Provisional Committee on Proposals Related to a WIPO Development Agenda. This also included Member States setting up "appropriate national strategies in the field of intellectual property." These recommendations were identified for immediate and effective implementation, resulting in countries beginning to adopt the same, with the objective of promoting and enforcing IP rights. The info-graphic below highlights the formulation of IP Strategies in Member States around the world.

China announced its "National Intellectual Property Strategic Principles" in June, 2008. Japan established its "Intellectual Property Strategy Headquarters" in 2003, and its Intellectual Property Strategic Program in 2004, while USA legislated the " Prioritizing Resources and Organization for Intellectual Property Act" in 2008. Furthermore, the Presidential Advisory Council on Education, Science and Technology in Korea announced the " Strategy for Intellectual Property System Constructing Plan" on June 27, 2006, consisting of three aspects: Creation and Application, Law and Regulation, and Infrastructure. The European Union has adopted a " Strategy for the Enforcement of Intellectual Property Rights in Third Countries", aimed at evaluating the recent major changes that have taken place in the international IP arena, preparing to meet the challenges in an effective manner. Finland adopted " The Government's Resolution on the Strategy Concerning Intellectual Property Rights " on March 26, 2009. Therefore, it is observed that the trend of National IP Strategies has only started recently, in the last decade.

Therefore we see the emerging need of an all-encompassing IP Policy arising in nations around the world, aimed at promoting a holistic environment conducive to the development of Intellectual Property.

[1] WIPO's Contribution to the Elaboration and Implementation of Strategies and National Plans for the Development of IP and Innovation , WTO Strategic Planning Workshop, Geneva, Switzerland, June 13, 2014.

[2] Id .

[3] Id .

[4] Id.

For more details visit http://editors.cis-india.org/a2k/blogs/the-development-of-the-national-ipr-policy

29th Session of the WIPO SCCR: Statement on the Limitations and Exceptions for Education, Teaching, Research Institutions and Persons with Disabilities

nehaa — 2014-12-20T13:40:19Z

At the 29th session of WIPO's SCCR, the Chair, Martin Moscoso, requested NGOs to send in their statements on limitations and exceptions for education, teaching, research institutions and persons with disabilities in writing, to be placed on the record. Nehaa Chaudhari, on behalf of the Centre for Internet and Society (CIS) sent in this written statement.

Thank you very much, Mr. Chair.

As we have always maintained in the past sessions of this Committee, the Centre for Internet and Society strongly believes that everyone, regardless of borders and barriers, either physical, or those created by time, distance and costs should have access to knowledge and education.

To that end, we strongly support the proposal made by India, earlier, on continuing constructive work in this area. We also welcome the suggestion by the Indian delegation on a synthesis of these issues (facilitated by an expert, through the Chair), so that we can have a constructive discussion on these issues.

Mr. Chair, we are very mindful of the fact that there exists a very real, very demonstrable need for limitations and exceptions for education, teaching and research institutions and also for the benefit of persons with disabilities. There is also an equally crucial need to ensure that these limitations and exceptions are open ended and are appropriate for the digital environment; a conversation we believe that is imperative for Member Nations to take forward, definitely more so than one around granting a 'para-copyright' for organizations that already enjoy a great deal of protection under existing treaties, and are far less vulnerable than beneficiaries of these limitations and exceptions.

We thank the United States of America for their document- SCCR/27/8 on the Objectives and Principles for Exceptions and Limitations for Educational, Teaching and Research Institutions. We appreciate the recognition of the copyright system in the dissemination of works of authorship as well as the critical role that it plays in the promotion of educational, teaching and research objectives. We also appreciate the acknowledgement of a balance of rights and exceptions and limitations sustaining the role and activities of educational, teaching and research institutions.

However, we do believe that for a true balance to be achieved between rights and limitations and exceptions, the rights of the users of copyrighted works for the purposes of access to knowledge will have to be treated on par with those of the rights holders themselves. We believe that for this to be possible, measures will have to be taken to ensure international interoperability of limitations and exceptions and international standards suitable to address emerging and present issues of the digital environment will have to be developed. As we have submitted before this Committee earlier, it is our belief that the present international legal framework does not sufficiently address the opportunities presented by these information and communication technologies. Mr. Chair, we reiterate the need for open ended exceptions and limitations in this area, that will facilitate a cross border exchange of books and other learning material.

As a first step towards this end, we urge Member States to collaborate on and engage in substantive discussions building on existing Working Documents presently before this Committee. We look forward to an engaging discussion and providing all our complete support as we move forward on this very important agenda item.

Thank you, Mister Chair.

For more details visit http://editors.cis-india.org/a2k/blogs/cis-statement-on-limitations-and-exceptions-for-education-teaching-research-institutions-and-persons-with-disabilities

29th Session of the WIPO SCCR: CIS Intervention : Questions to Prof. Kenneth Crews on his Updated Study on Limitations and Exceptions for Libraries and Archives

nehaa — 2014-12-14T02:56:46Z

Nehaa Chaudhari on behalf of the Centre for Internet and Society (CIS) on December 11 during one of the sessions in WIPO asked two questions to Prof. Kenneth Crews.

In 2008, WIPO commissioned a study on Limitations and Exceptions for Libraries and Archives.This was prepared by Prof. Kenneth Crews. On December 10-11, 2014, at SCCR 29, Prof. Crews presented an updated (2014) version of this study and addressed comments and questions from Member States and Observers.

CIS Statement:

Thank you, Madam Chair.

Thank you very much, Professor Crews for your presentation yesterday, and for this comprehensive study on Limitations and Exceptions for Libraries and Archives, very timely, and very important to us, from the perspective of access to knowledge and information.

I have two questions:

My first question: Did you find, in your examination, that, in terms of/ or on the question of limitations and exceptions, did you find, that there was an equal or equitable treatment of digital resources in comparison to resources available in more traditional formats? And if not, where do you think that lever of change lies to ensure that fair dealing provisions are extended equitably to the digital environment as well?

My second question, is on the interoperability of Limitations and Exceptions: Given that copyright is a very national thing, and, as your study has also well established, countries have a whole range of very diverse approaches and practices on Limitations and Exceptions; but also given that we live in an increasingly globalized world, we need a system that is interoperable with respect to the trans-boundary movement of works, with as little friction as possible, both- in the physical as well as in the digital environments. So, what did your examination show us of how interoperable- or not- the range of Limitations and Exceptions actually are?

Those are my two questions.

Thank you very much.

Response by Prof. Kenneth Crews:

Thank you very much. On the second question, I'm afraid I might mind myself only repeating some of the concepts that have already said about transborder and really about in the statutes anyway, a lack of recognition of transborder. And the transborder concept, so I will add this piece to the conversation, the transborder concept seldom if ever appears in these library exceptions to the extent that we are going to find it in copyright law or some other part of a national law it may very well be over in the import/export kind -- area of the law. But that also goes to the interoperability which think we have answered a few times just this sort -- the lack of exact harmonization and as others have reminded me I have said before that I may not be a fan of exact precise harmonization and indeed it may not be possible or even desirable. But some degree of harmonization can help with that interoperability. Interesting question, you do -- you did raise a new point about digital. We have talked several times in this conversation about use of digital technologies in the exercise of the rights of use under the exception. However what I think you were asking about is the ability to apply the exception to works that are digital in the first place that are what we call born digital and that's a very interesting question. The statutes do not address that. Sometimes you will see a statute that refers to -- that says it applies to all these different kinds of works but not computer software. That tells you somebody was thinking it shouldn't apply to software but somehow software is different and there are problems with that. We know that software has changed and been incorporated in to many different works. But we generally see a statute almost always see a statute that's about books or archival materials or some other kind of work without specifying the technology. So can it apply to an e-book in addition to the paper book? The statutes don't go there. They don't sort that out. So in my common law tradition I look at that and see that as a question for interpretation. In a civil code system I might look at it and see it a little bit more firmly for lack of a better word about what the scope of that word book, for example, really means.

Really good question. And it is one that the statutes have not picked up on.

Thank you very much.

For more details visit http://editors.cis-india.org/a2k/blogs/cis-intervention-questions-to-prof-kenneth-crews-on-limitations-and-exceptions-for-libraries-and-archives

29th Session of the WIPO SCCR: CIS- 2nd (brief) Intervention on the Broadcast Treaty

nehaa — 2014-12-12T11:56:14Z

On Day 3 (December 10, 2014), the SCCR briefly re-convened at the Plenary. The Chair, Martin Moscoso updated the Committee on the discussions and the developments that had taken place over the course of the past two days in the Informals. The Centre for Internet and Society made a brief pointed intervention on one of the documents being discussed in the Informals.

Note: The documents cannot be made public yet. They were shared with Observers and Member States (even those that did not participate in the Informals) on the condition of maintaining confidentiality.

Nehaa Chaudhari on behalf of CIS made the following statement:

Thank you, chair.

First on the making available these documents, we would like to echo what CCIA and KEI said- we would also like to see the informal papers made public, so that we can have a more informed discussion on these issues.

Second, very briefly, on some of the rights to be granted- in one of the Informal Discussion Papers laid out, in -- in the third column, which are essentially fixation and post fixation rights, just very briefly, that whatever is done in any case after the signal is fixed is already covered by copyright law and we find it frightening and we see little sense in providing two sets of incompatible, and overlapping rights- copyright, that is already existing, and a sort of a para-copyright (that this treaty seeks to create) for the same underlying content.

Thank you, Mr. Chair

For more details visit http://editors.cis-india.org/a2k/blogs/wipo-sccr-29-cis-second-brief-intervention-on-broadcast-treaty

29th Session of the WIPO SCCR: CIS Intervention on the Proposed Treaty for the Protection of Broadcasting Organizations

nehaa — 2014-12-12T11:55:51Z

The Centre for Internet and Society (CIS) made its intervention on the proposed treaty in the ongoing WIPO session on December 9, 2014.

Nehaa Chaudhari on behalf of CIS made the following statement:

Thank you, Mister Chair.

This intervention will be based on the chart detailing the ‘Concepts’ corresponding to the Definitions. We believe that certain elements of these concepts are inconsistent with a broadcast treaty based on a signals based approach; and over the course of the next few minutes, I will briefly discuss these.

First, Mr. Chair in the first column- on broadcasting or cablecasting organizations (in the traditional sense); where communication of the signal has been listed under scope of responsibility. Mr. Chair, ‘communication’ itself is an element of copyright and is distinct from broadcast rights that are related rights. A signal, Mr. Chair, may be broadcast or transmitted. Accordingly, Mr. Chair under the element of Scope of Responsibility, we are of the opinion that it should read Broadcast or Transmission of the signal and not communication of the signal; and the focus should not be at regulating communication to the public.

Second, Mr. Chair, in the second column- on broadcasting and cablecasting transmission- we have three observations. First- under the means of transmission, we believe that transmission over computer networks encompasses IP based transmissions, and should be excluded, in order for the treaty to remain consistent with a signals based approach. Second- on the reception of the broadcast or cablecast transmission, we believe that it should be qualified using the phrase ‘general public’. We are of the opinion that there is a danger that a limited public (say family members) could possibly be covered by the term “public”, but would be excluded from “general public”; which in any case is the targeted audience of a broadcast. Third, Mr. Chair, on whether the transmission would be encrypted or not- which also flows into the third column on the Signal- and whether it is encrypted or not; which then also relates to whether broadcasting organizations will have the right to prevent unauthorized decryption. Mr. Chair, we don’t think that there should be a separate right to prevent unauthorized decryption. Given that signal theft is already a crime, having a specific right to prevent unauthorized decryption might result in an absurdity, where it could even cover decrypting an unauthorized retransmission without authorization from the retransmitter.

This provision might result in an absurdity, where it would cover decrypting an unauthroised retransmission without authorization from the retransmitter, where the retransmission in the first instance was illegal to begin with.

Finally, Mr. Chair, on the third column and the meaning of signal- we submit that our preferred definition would be where the definition of a signal is confined, and it understood as an electronically generated carrier transmitting a broadcast or cablecast and NOT one which has the capability of such a transmission, as stated in the third column in your Chart on concepts.

Thank you, Mr. Chair.

For more details visit http://editors.cis-india.org/a2k/blogs/wipo-sccr-29-cis-intervention-on-proposed-treaty-for-protection-of-broadcasting-organizations

National IPR Policy Series : Comments on the Proposed Intellectual Property Rights Policy to the Department of Industrial Policy and Promotion

nehaa — 2015-04-12T11:39:16Z

On 13 November, 2014, the Department of Industrial Policy and Promotion had released a Call for Suggestions for India's proposed National IPR Policy. This is the Centre for Internet and Society's (CIS) submission for the same.

Submitted by CIS with inputs from Pranesh Prakash, Director, Nehaa Chaudhari, Programme Officer, Anubha Sinha, Programme Officer and Amulya P., Intern. Click to view the PDF.

I. Preliminary

I.1. This submission presents comments from the Centre for Internet and Society ("CIS")[1] on the proposed National Intellectual Property Rights Policy ("National IPR policy") to the Department of Industrial Policy and Promotion, Ministry of Commerce and Industry, Government of India. ("DIPP").

I.2. CIS commends the DIPP for this initiative, and appreciates the opportunity to provide comments on the National IPR Policy. CIS' comments are as stated hereafter.

II. Principles

II.1.1. The characterization of intellectual property rights may be two- fold- first, at their core, intellectual property rights, are temporary monopolies granted to inter alia, authors and inventors; and second, they are a tool to ensure innovation, social, scientific and cultural progress and further access to knowledge. This dual nature and purpose of intellectual property protection is particularly critical in developing economies such as India. Excessive intellectual property protection could result in stunted innovation and negatively impact various stakeholders. [2] It is therefore our submission that the development of the IPR Policy be informed by broader principles of fairness and equity, balancing intellectual property protections with limitations and exceptions/user rights such as those for research, education and access to medicines.

II.1.2. These comments will evaluate the recent developments in the intellectual property regime in India and point out instances for possible reform.

II.1.3. These comments have been divided into five sections, dealing with patents, openness, open access to scholarly works, copyright, and negotiating free trade agreements in that order.

III. Detailed Comments

III.1. Patents

III.1.1. Key Issues Regarding Patents

III.1.1.1. The key issues involving patents in India include compulsory licensing, uncertainty in software patenting, slow pace of examination of patent applications, inter alia.

III.1.1.2. CIS submits that the Indian intellectual property regime contains numerous safeguards to ensure that monopolies of intellectual property are not exercised to the detriment of the public and that the National IPR Policy should continue to reflect these ideals.

III.1.2. Software Patents and Dual Monopoly

III.1.2.1. Presently, software in India may be copyrighted and computer related inventions are patentable. CIS is of the opinion that this results in an ambiguity that could potentially result in a dual monopoly over the same subject matter. This ambiguity around the legality of software patents and the scope of patents on computer related inventions has existed since the Parliament introduced the term "per se" to section 3(k) through the Patent (Amendment) Act, 2002, persisting despite repeated attempts[3] to bring about clarity in the law (the most recent one being the Draft Guidelines on Computer Related Inventions, released in 2013 by the Indian patent office).

III.1.2.2. CIS believes that software is currently adequately protected under copyright, and does not merit patent protection. The software industry in its infancy grew by leaps and bounds in the absence of patents, and imposing twenty year monopolies is stunting the development of software, especially, in an industry where technology changes every two to five years.

III.1.2.3. Therefore, CIS is of the opinion that the National IPR Policy should recognise the danger of software patenting, and encourage the adoption of and development of alternatives to a strict intellectual property regime, for instance, Free/Open Source/Libre Software.

III.1.3. Compulsory Licensing of Patents

III.1.3.1. CIS believes that the current regime allowing for compulsory licensing of patents in India helps achieve a balance between the two concerns of rewarding inventions and making them available to the public during times of need, of the rights of the patent holder with his obligations to ensure availability of products at a reasonable price by allowing third parties who do not own the patent to license the use of the patent during the term of protection.[4] CIS believes that such a balance cannot be arrived at merely by market mechanisms. CIS further believes that achieving such a balance is important for a developing country like India as we have special concerns regarding access to healthcare and access to technologies that will protect our national interest.[5]

III.1.3.2. Therefore CIS submits that the National IPR policy should continue to make positive allowances for government involvement in this space, through the compulsory licensing of patents in certain situations.

III.1.4. Alternative Licensing Mechanisms

III.1.4.1. CIS believes that government participation in the patenting regime ensures that all interests are taken on board and the social costs of patents are kept in mind. CIS is of the opinion that the National IPR policy should be formed after careful consideration of alternative patent licensing mechanisms that could help achieve a balance between the interests of different stakeholders particularly because as a developing economy we have greater needs for access to medicines and technologies to ensure economic development.[6]

III.1.4.2. On patent pools: In the interests of ensuring development of technology and innovation while balancing the social costs of patents, CIS submits that the National IPR Policy should consider alternative licensing mechanisms such as patent pools which present an efficient legal arrangement to the different problems that arise when companies have complementary intellectual property rights and these rights are essential to new technologies being used and employed[7]. Such a licensing could be done with government participation to ensure standard royalty rates and standard agreements.

III.1.4.3. On tailoring patent strengths: Our patent system provides for a one size first all approach to patent terms. CIS believes that the National IPR Policy could suggest the adoption of a more studied approach to differential patent strengths that properly balances out the benefits of the innovation against social costs of patents both in the form of monopoly pricing and threats to subsequent pricing is required to ensure that our patent system is fair equitable and in our national interest.[8]

III.1.4.4. On royalty caps: CIS believes that the National IPR policy could encourage bringing back royalty caps for certain sectors as a means of regulating the market and ensuring that access to technologies is unharmed. CIS believes that this will serve the larger national interest and ensure technological development.[9]

III.2. Openness

III.2.1. Free and Open Source Software

III.2.1.1. Free and Open Source Software ("FOSS") has emerged as a key agent in information technology policy making in India. There has been an increased importance of free and open source software in education, governmental agencies, as recently demonstrated by the Indian Government's decision to shift to open source software, in sync with the Digital India initiative.[10]

III.2.1.2. CIS believes that the IPR policy should encourage free and open software in education, governmental agencies etc. CIS believes that this shift in open source software is necessary to keep our IPR policy in sync with developments in the digital world.

III.3. Open Access to Scholarly Works

III.3.1. Open Access Policies and Scientific and Scholarly Works

III.3.1.1. The benefits of implementing an open access policy with regard to scientific and scholarly works are manifold. Providing open access to scholarly research will ensure percolation of cutting edge research into the society. It has been often argued that restricted access to government funded research is unethical, since scientific research conducted by government agencies is partly, if not entirely, funded by the taxpayers' money.

III.3.1.2. Government Initiatives Towards Open Access

III.3.1.2.1. CIS believes that the steps taken in this regard by the Department of Biotechnology and Department of Science to make scientific research publicly available by developing an open access policy are laudable, especially from the view of increasing access to research undertaken at these institutions.

III.3.1.2.2. There are several other government agencies which have implemented open access policies, namely, the Council of Scientific and Industrial Research, Indian Council of Agricultural Research and Institute of Mathematical Sciences. CIS believes that this is step in the right direction

III.3.1.2.3. Copyright is the key instrument to effect open access policies. CIS believes that the work should be appropriately copyrighted to allow for free and open access to any interested person.

III.4. Copyright

III.4.1. Exceptions for Fair Dealings

III.4.1.1. The 2012, Amendment Act extended fair dealing exceptions in several ways; to sound recordings, videos, to the making of three dimensional works from two dimensional works,[11] to storing of electronic copies at non-commercial public libraries, [12] to rights of commercial rental.[13] While the Act touched upon some of the burning issues with regard to limitations and exceptions to copyright, CIS believes that it did miss out on laying down clear rules for issues like exceptions for educational institutions, libraries and archives which is currently being negotiated at the standing committee of the WIPO as an international instrument,[14] parallel importation of books for non-commercial libraries, and extending the current exceptions for education to distance education and digital education. CIS is of the opinion that while this was a step in the right direction the IPR policy should continue the trend of extending exceptions for fair dealing and should encourage forming general guidelines for fair dealings as it would help achieve goals of education and scientific and cultural progress.

III.4.1.2. CIS believes that it would be beneficial if general guidelines for fair dealing were provided for. These guidelines must not take away from existing fair dealing exceptions under the law, but should act as a framework to understand what constitutes fair dealing. CIS submits that this coupled with support for the International Treaty for Limitations and Exceptions for Libraries and Archives[15] and for International Treaty for Limitations and Exceptions for Educational and Research Institutions [16]would help serve national interest as it would help reduce the freezing effect by reducing the costs of using copyrighted work legitimately and ensure social and cultural progress. CIS submits that the National IPR policy should encourage the international instruments aimed at providing for exceptions and limitations for fair dealings.

III.4.2. Exceptions for Government Produced Works

III.4.2.1. CIS believes that the current exceptions for use of government produced works are far too limited and taxpayers must be free to use the works that they have paid for.[17] CIS submits that the National IPR policy should encourage the broadening of exceptions with regard to government produced works.

III.4.3. Compulsory Licensing

III.4.3.1. The Act allowed for compulsory licensing of foreign works[18] and put in place statutory licenses for broadcasters[19] CIS believes that this was a positive step that will encourage cultural and scientific education in India. CIS submits that compulsory licenses for copyrighted works help achieve goals of education, of scientific and cultural progress. CIS submits that the National IPR policy should encourage compulsory licensing of copyrighted works in certain situations for the promotion of access to knowledge and information.

III.4.4. Protection of Authors/ Performers Rights

III.4.4.1. The Act allowed for protection of author's rights regarding storing of their work in electronic medium[20] and for protection of rights of performers both commercial [21] and moral.[22] CIS believes that while this is in itself a positive step, there is need to ensure that such moral rights are not abused by authors or rights holders to stop discourse or to stop fair use and adequate measures to ensure the same must be put in place to avoid excessive intellectual property rights. CIS submits that the National IPR policy should discuss limitations to moral rights of authors and performers to make room for fair dealings.

III.4.5. Users Rights Regarding Cover Versions Of Songs

III.4.5.1. The Act allows for users to make cover versions of a sound recording required provided they comply with rules regarding notices and royalties. CIS believes that this is potentially problematic as even recording companies have acknowledged that the non-commercial cover versions help in increasing the popularity of the original and therefore help in the growth of the film and music industry and this new law could possibly stop individuals from making such cover versions due to fear of violating the law and therefore harm the film and music industry. Therefore, CIS believes that the National IPR policy should consider measures to provide more rights to the users in order to ensure development of the music and film industry; CIS believes that this is an instance of excessive intellectual property and is harmful to all stakeholders involved.

III.4.6. Relinquishment of Copyright and Creative Commons

III.4.6.1. The amended Section 21 of the Act now only requires a simply public notice from the author to relinquish his copyright as opposed to an application to the registrar of copyrights. CIS believes that this is a positive step as now the requirement under the rules can easily be satisfied by using a Creative Commons Zero license.[23] CIS submits that the National IPR policy should undertake similar steps to encourage the usage of creative commons licenses and thereby facilitate access to knowledge.

III.4.7. Term of Protection of Copyrights

III.4.7.1. The Act provided for an extension of term of copyright for photographs to almost double its earlier duration, [24] CIS believes that this is possibly harmful as it could lead to copyrighted works not entering the public domain for unnecessarily long periods of time and thereby harm progress in science and culture. In this regard CIS further believes that since the term of protections provided under our copyright law for all works extends beyond our international obligations, The National IPR policy should try to ensure that scientific and cultural development are not hindered by excessive terms of protection that go beyond the minimum owed under our international obligations.

III.4.8. Protection Of Rights Management Information

III.4.8.1. The amendment Act provided for protection of rights management information (RMI) and provided for both criminal and civil remedies in instances of unauthorised alteration or removal of RMIs.[25] CIS believes that these provisions are unnecessary as India does not have obligations to do so under international treaties and there is no actual demand for these rights as it is yet unclear how these rights help authors or performers. CIS submits that these provisions increase the costs for users who want to legitimately break these digital locks to obtain accessible formats for the information and that so long as the rights holder does not have an obligation to ensure that their works are accessible, provisions such as these cripple creativity and stunt industry growth.[26] Therefore CIS submits that the National IPR policy should help achieve a balance of concerns of users who want to legitimately break these digital locks on the one hand and the need to prevent digital piracy on the other.

III.4.9. Intermediary Liability

III.4.9.1. CIS submits that due to the IT (Intermediary Guidelines) Rules, 2011, there is a freezing effect on free speech on the internet as these rules are procedurally flawed and go against the principles of natural justice.[27] CIS believes that such a restraint on free speech harms creativity and innovation, to this end CIS submits that the National IPR policy should ensure free speech is not unfairly hindered by rules regarding copyright infringement.

III.4.10. Criminalization of Copyright Infringement

III.4.10.1. Individual non-commercial infringement of copyright is a crime under Section 63A of the Copyright Act [28] and is punishable by imprisonment which can extend to three years or a fine that can extend up to rs. 2,00,000/- CIS believes that this is an instance of excessive intellectual property protection; CIS is of the opinion that the civil remedies available for copyright enforcement are enough for copyright protection and that the criminal remedies under the Copyright Act, 1957 function only to ensure that there are obstacles to free and legitimate use of copyrighted material. CIS believes that such provisions are harmful for innovation within India and impose unnecessary costs on users.[29] Therefore CIS believes the National IPR policy should reconsider the question of criminalisation of copyright infringement and should ensure that any penal consequences are proportional to the act committed.

III.4.11. Concluding Remarks on Copyrights

III.4.11.1. In conclusion while India has what some call the most balanced approach to intellectual property law in the world today, [30] one that balances both the interests of the author and the copyrights holder as well as the end user and the overall public interest, there is room for improvement as far as adapting to the internet age is concerned, especially considering the easy appeal of forming an intellectual property regime that is excessive and in the end harms all the concerned stakeholders.

III.5. Free Trade Agreements (FTAs)

III.5.1. Need for Transparency Regarding FTA Negotiations

III.5.1.1. India has lately been negotiating Free Trade Agreements with several developed nations, these are closed door negotiations and the texts of the meetings are not available to the public. CIS believes that these texts should be made available to the public to ensure transparency and to ensure all stakeholders know of any developments, CIS believes that public knowledge of the positions of various actors in any negotiation process will help ensure that such positions are taken keeping in mind the interests of all stakeholders and will ensure that any outcome from such negotiations will be in national interest.[31] CIS therefore submits that the National IPR policy should encourage transparency with regards to negotiations for free trade agreements.

III.5.2. FTAs with Developed Nations and TRIPS Plus Standards

III.5.2.1. Leaked drafts of the European Union- India FTA negotiations have revealed that provisions on intellectual property protection were extensive and affected the pharmaceuticals sector, these provisions, if agreed upon, could go well beyond India's obligations under the WTO and under the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement. In fact, developed countries including the US [32] and EU[33] have tried time again and again to encourage developing countries to adopt standards of IP protection in bilateral or regional trade investment agreements that go beyond TRIPS [34]

India has repeatedly indicated to the WTO that it was not willing to commit to an agreement beyond TRIPS.[35] These commitments could include data exclusivity protection measures, ever-greening of patents etc. [36]

CIS believes that despite the growing pressure from developed nations regarding various FTAs,[37] India must hold its ground and ensure that concerns about India's national interest and the difference in the development levels of the European Union or other developed countries and developing countries like India are kept in mind while negotiating obligations under international agreements. Therefore CIS believes that the National IPR policy should ensure that TRIPS plus standards are not acceptable to India as they will undermine our national interest and hinder development at the national level.[38]

III.5.3. Shift from Multilateral Forums to Bilateral FTA negotiations

III.5.3.1. CIS believes that the trend of shift in negotiations from a multilateral forum such as the WIPO or the WTO to a bilateral or a regional forum [39] is harmful as certain flexibilities are built into the TRIPS and therefore multilateral negotiations based on TRIPS will help pursue India's interests better. And therefore when possible, India must prefer negotiations at multilateral forums as opposed to bilateral or regional treaties, CIS believes that the National IPR policy should reflect the same preferences. [40]

IV. Concluding observations

IV.1. On patents, CIS submits that the National IPR policy reconsider software patenting, that encourage open source software, continue and strengthen that compulsory licensing and consider and study alternative licensing mechanisms as means to achieve a balancing of the interests of different stakeholders.

IV.2. On openness, CIS submits that the IPR policy should encourage free and open software in education, governmental agencies etc.

IV.3. On open access to scholarly work, CIS commends the work done by government agencies so far and submits that the IPR policy should encourage open access to scholarly works.

IV.4. On copyright, CIS submits that the IPR policy work toward strengthening and extending fair dealings provisions, supporting international instruments that strengthen fair dealing, encourage compulsory licensing. CIS submits that the IPR policy should work towards ensuring that protections for copyright such as terms of protection, intermediary liability, protection of rights management information, criminalisation of copyright infringement etc., do not harm other legitimate interests of users or unnecessarily restrict free speech.

IV.5. On FTAs, CIS submits that the IPR policy encourage transparency with regard to FTA negotiations, ensure that TRIPS plus standards are not accepted as they would harm national interest and to encourage multilateral negotiations over bilateral free trade agreements.

IV.6. CIS welcomes the initiative of the DIPP to form a National IPR policy, CIS believes that it is essential that such an IPR policy avoid excessive intellectual property rights protection and is formed keeping in mind goals of development and national interest.

IV.7. CIS is thankful to the DIPP for the opportunity to provide comments on the National IPR policy and would be privileged to work with the government on this and other matters in these areas.

[1] www.cis-india.org (Last Accessed: 30/11/14).

[2] The Washington Declaration on Intellectual Property and Public Interest concluded after the Global Congress on Intellectual property and Public Interest in August 2011 attended by over 180 experts from 32 countries articulate this position perfectly. Available at: http://infojustice.org/wp-content/uploads/2011/09/Washington-Declaration.pdf (Last Accessed:29/11/14)

[3] Shashank Singh, Guidelines for Examination of Computer Related Inventions: Mapping the Stakeholders' Response, Available at: http://cis-india.org/a2k/blogs/guidelines-for-examination-of-computer-related-inventions (Last Accessed: 30/11/14).

[4] N.S. Gopalakrishnan, Compulsory License Under Indian Patent Law, MPI Studies on Intellectual Property and Competition Law, Vol.22, 2015, pp.11-42.

[5] Raadhika Gupta, Compulsory Licensing under TRIPS: How Far it Addresses Public Health Concerns in Developing Nations, Journal of Intellectual Property Rights, Vol.15, September 2010, pp.357-363. Available at: http://nopr.niscair.res.in/bitstream/123456789/10211/1/JIPR%2015(5)%20357-363.pdf (Last Accessed: 30/11/14).

[6] Id.

[7] Nehaa Chaudhari, Pervasive Technologies: Patent Pools, Available at: http://cis-india.org/a2k/blogs/patent-pools (Last Accessed: 30/11/14).

[8] One of the measures along which we could have differential patent strengths could be the time for the invention to reach the market, see, Benjamin N Roin, The case for Tailoring Patent Awards Based on the Time-to-Market of Inventions, UCLA Law Review, Vol.61, 2013, Available at: http://dash.harvard.edu/bitstream/handle/1/10612849/Case%20for%20Tailoring%20Patent%20Awards%203-15-13.pdf?sequence=1 (Last Accessed: 30/11/14).

[9] Sunil Abraham, Patented Games, Available at: http://cis-india.org/a2k/patented-games (Last Accessed: 30/11/14.

[10] See Nabi Hasan, Issues and Challenges in Open Source Software Environment with Special Reference to India, Available at: http://crl.du.ac.in/ical09/papers/index_files/ical-43_144_317_1_RV.pdf (Last Accessed: 30/11/14).

[11] Section 52(1), the Copyright (Amendment) Act, 2012.

[12] Section 52(1) (n), the Copyright (Amendment) Act, 2012.

[13] Zakir Thomas, Overview of Changes to the Indian Copyright Law, Journal of Intellectual Property Rights, Vo.17, July 2012, pp.324-334.

[14] See conclusions of the chair at the 23^rd session of the Standing Committee on Copyright and Related Rights at the WIPO, Available at: http://www.eifl.net/wipo-sccr23-conclusions (Last Accessed: 30/11/14).

[15] For draft proposal of the treaty see IFLA, Treaty proposal on Limitations and Exceptions for Libraries and Archives, Available at: http://www.wipo.int/edocs/mdocs/copyright/en/sccr_27/sccr_27_2_rev.pdf (Last Accessed: 30/11/14).

[16] See The Draft WIPO Treaty on Exceptions and Limitations for the Persons with Disabilities, Educational and Research Institutions, Libraries and Archives, proposal by the African Group (document SCCR/22/12).Available at: http://www.wipo.int/edocs/mdocs/copyright/en/sccr_22/sccr_22_12.pdf (Last Accessed: 30/11/14).

[17] See Section 52(q) of the Copyright Act, 1957.

[18] Section 31 and 31A, the Copyright (Amendment) Act, 2012.

[19] Section 31D, the Copyright (Amendment) Act, 2012.

[20] Section 14(1), the Copyright (Amendment) Act, 2012.

[21] Id.

[22] Section 38B, the Copyright (Amendment) Act, 2012.

[23] CIS, Comments on Draft Copyright Rules, 2012, available at: http://cis-india.org/a2k/feedback-to-draft-copyright-rules-2012 (Last Accessed: 29/11/14).

[24] See Pranesh Prakash, Analysis of the Copyright (Amendment) Bill, 2012, Available at: http://cis-india.org/a2k/blogs/analysis-copyright-amendment-bill-2012

[25] Section 65B, The Copyright (Amendment) Act, 2012.

[26] Pranesh Prakash, Technological Protection Measures in the Copyright (Amendment) Bill, 2010, Available at: http://cis-india.org/a2k/blogs/tpm-copyright-amendment (Last Accessed: 29/11/14).

[27] Rishabh Dara, Intermediary Liability in India: Chilling Effects on Free Expression on the Internet, 2011, Available at: http://cis-india.org/internet-governance/intermediary-liability-in-india.pdf (Last Accessed: 30/11/14).

[28] Section 63A, Copyright Act 1957.

[29] See Right to Share: Principles on Freedom of Expression and Copyright in the Digital Age, Article19, Available at: http://www.article19.org/resources.php/resource/3716/en/ (Last Accessed: 29/11/14).

[30] V Premanath, S Sivaram, Intellectual Property Systems in India: Progressing towards Greater Maturity and Diversity, Available at: http://iimahd.ernet.in/users/anilg/files/Articles/Emerging%20IPR%20Consciousness,%20vikalpa.pdf (Last Accessed: 29/11/14).

[31] Jan Wouters, Idesbald Goddeeries, Bregt Natens etc, Some Critical Issues in the EU -India Free Trade Agreement Negotiation, Working Paper No.102,KU Leuven Centre for Global Governance Studies, https://ghum.kuleuven.be/ggs/publications/working_papers/new_series/wp101-110/wp102-wouters-goddeeris-natens.pdf , February 2013, p.16.

Monika Ermert, Lack of Transparency in EU-India FTA Talks Spurs Requests for Halt, ip-watch, Available at: http://www.ip-watch.org/2010/09/03/lack-of-transparency-in-eu-india-fta-talks-spurs-requests-for-halt/ .

[32] The current policy of the US Trade Representative is seen to be reflected in the 2002 Trade Act available here: http://www.gpo.gov/fdsys/pkg/BILLS-107hr3009enr/pdf/BILLS-107hr3009enr.pdf See HR3009.

[33] The current trade strategy for the EU can be found here http://trade.ec.europa.eu/doclib/docs/2014/july/tradoc_152643.pdf .

[34] Commission on Intellectual Property Rights, Integrating Intellectual Property Rights and Development Policy, Available at: http://www.iprcommission.org/papers/pdfs/final_report/ciprfullfinal.pdf , p.174.

[35] C. Correa, 'Negotiation of a Free Trade Agreement European Union-India: Will India Accept Trips-Plus

Protection?', (2009) Oxfam Deutschland and Evangelischer Entwicklungsdienst Analysis,

http://www.oxfam.de/files/20090609_negotiationofafreetradeaggrementeuindia_218kb.pdf .

[36] S. Sharma, 'the EU-India FTA: Critical Considerations in a Time of Crisis', (2009) Centad Working Paper.

[37] Asit Ranjan Mishra, India to negotiate FTAs with emerging market nations, Livemint, Available at: http://www.livemint.com/Politics/RlJNxUXovjNVaRzQt9KXmO/India-to-negotiate-FTAs-with-emerging-market-nations.html .

[38] Sisule F Musungu and Graham Dutfield, Commission Multilateral Agreements and a TRIPS -Plus Word: the World Intellectual Property Organisation (WIPO), Available at: http://www.iprsonline.org/ictsd/docs/WIPO_Musungu_Dutfield.pdf.

[39] For Trends, See Beginda Pakpahan, Deadlock in the WTO: What is next? Available at: http://www.wto.org/english/forums_e/public_forum12_e/art_pf12_e/art19.htm .

[40] See Amit Sengupta, Do not trade away our lives, Vo.9, No.2, Indian Journal of Medical Ethics, 2012, Available at: http://www.issuesinmedicalethics.org/index.php/ijme/article/view/88/1047 .

For more details visit http://editors.cis-india.org/a2k/blogs/comments-on-proposed-ip-rights-policy-to-dipp

Access to Medicines: Petition to the US Government to Stop Pressure on India

nehaa — 2014-12-10T13:02:59Z

There is growing pressure on India from the US Government to change its intellectual property system. Bending to US pressure will put medicines out of reach for millions of patients in India and other developing countries.

Medicines are affordable for millions of poor patients across the world, thanks to India’s progressive intellectual property system. Now, transnational pharmaceutical companies and the US Government are putting pressure on the Indian Government to change India’s laws which will make medicines unaffordable. Peoples' groups, patients’ networks and civil society organizations have come together in one voice to ask the US government to stop pressuring India against use of its legitimate rights to protect public health. The Indian Government must hold its ground and not give in to the pressure.

For more details log on to Oxfam India website.

For more details visit http://editors.cis-india.org/a2k/blogs/oxfam-india-november-29-2014-access-to-medicines

PERVASIVE TECHNOLOGIES PROJECT WORKING DOCUMENT SERIES: DOCUMENT 1 - RESEARCH METHODOLOGY FOR A PAPER ON COMPETITION LAW + IPR + ACCESS TO < $100 MOBILE DEVICES

nehaa — 2015-10-04T02:51:06Z

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.

See a subsequent version titled Pervasive Technologies: Working Document Series - Research Questions and a Literature Review on the Actor-Network Theory

Preliminary

The realization of the promise of the sub hundred dollar mobile device as a facilitator of access to knowledge is contingent inter alia 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).

This research paper under the Pervasive Technologies: Access to Knowledge in the Market Place Project ("PT Project") 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: first, that access to sub hundred dollar mobile devices is influenced by their price; second, that the question of access necessitates conversation between the intellectual property regime and several other actors, sites and tools; third, 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 fourth, 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.

Research Questions

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:

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 ex-post regulator, such as the CCI, or is there a need for ex-ante regulation?

Research Objects

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.

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.

Research Method

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 [1]("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.

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.

Research Communication

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.

References

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).
Jyoti Saraswati, Dot. Compradors- Power and Policy in the Development of the Indian Software Industry (2012, Pluto Press)

[1] 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.

For more details visit http://editors.cis-india.org/a2k/blogs/methodology-sub-hundred-dollar-mobile-devices-and-competition-law

MHRD IPR Chairs — Underutilization of Funds and Lack of Information Regarding Expenditures

nehaa — 2014-11-19T15:19:18Z

Funds granted to the IPR Chairs set up by the Ministry of Human Resources and Development are often left underutilized. Details regarding the expenditures that are incurred by the Chairs are also currently unavailable. CIS intern Amulya Purushothama examines this further.

The Ministry of Human Resources and Development, Government of India (MHRD) has so far set up around 20 IPR Chairs under the Intellectual Property Education, Research and Public Outreach (IPERPO) scheme in various universities across the country.

However, as an Evaluation Committee for the Planning Commission observed last year, this scheme is failing to work for many reasons. Some of them the report says are that many of the IPR Chair positions are left vacant as the MHRD cannot find professors who are suitably qualified for the job, that there is no explicit mandate for activities to be undertaken by the chairs either under the IPERPOS scheme or the letters sanctioning the Chairs, that most of the Chairs only organize one or two day workshops and deliver a few lectures, that the research output produced by these Chairs etc. therefore has been very weak as they haven’t yet identified research questions, Therefore, the grant money under the scheme goes underutilized.

There exists an informational vacuum about the allocation of funds, expenditures of and the functioning of the MHRD IPR Chairs. The MHRD IPR Chair portal intended to provide information about the same is mostly incomplete. Out of the 20 universities where a chair has been set up, around four (CUSAT Cochin, IIM Ahmedabad, IIM Calcutta, and recently NUJS Kolkata) have been vacant for the last year (CUSAT Cochin has only recently reinstated their IPR Chair professor) and two only joined the posts in the last year (Delhi University and IIT Madras) . Only three of the professors have provided details about their research team on the portal (Delhi University, NALSAR Hyderabad and IIT Roorkee). Only IIT Roorkee and NALSAR Hyderabad have put up annual reports on the portal and even these reports do not cover expenditure made under the scheme.

The latest information regarding expenditure under the scheme can only be found in pieces and fragments. CUSAT published a self-study report that states that while Rs.50-60 lakhs are allotted every year, only Rs. 31, 49,950 has been received so far, NLSIU published an accounts report for the year 2012-2013 that states that Rs. 30, 00,000 had been received as of march 2013, but keeps quiet on the expenditure of the same.

The latest information on the issue is available in a 2013 report of an Evaluation Committee of the Planning Commission. The report says that the University of Madras last received funds of Rs.9 lakhs in 2001 and utilized most of it; that out of the Rs.100 lakhs released to NLSIU Bangalore so far, only around Rs.70 lakhs has been utilized as of 2013; that University of Delhi last received Rs.10 lakhs in 2001 and utilized only half of that. Further that CUSAT had so far received funds amounting to Rs.316.05 lakhs as of 2013 and has utilized only Rs.191.05 lakhs.

IIT Kanpur last received Rs.25 lakhs in 2006-07 and utilized Rs.17 lakhs from it; IIT Kharagpur also last received funds in 2009-10 of up to Rs.51.42 lakhs and utilized all of it. IIT madras is shown to have received Rs.25 lakhs in 2006-07 but it is unclear whether that has been utilized at all, IIT Delhi also received Rs.25 lakhs in the same year and utilized Rs.2 lakhs from it. IIT Bombay has received Rs.190 lakhs up till 2013 and has utilized only Rs.135 lakhs.

IIM Ahmedabad is yet to receive any funds. IIM Calcutta last received Rs.10 lakhs in 2007-08 but there is no information on whether that was utilized. IIM Bangalore had, as of 2013, received Rs.105.98 lakhs and utilized only Rs.78.98 lakhs of it.

JNU last received Rs.10 lakhs in 2007-08 but there is no word on whether it was utilized, same is the case with Delhi School of Economics.

NALSAR, Hyderabad had received Rs.111.40 lakhs as of 2013, but had utilized Rs.79.4 lakhs until then. NLU Jodhpur had received Rs.105.00 lakhs as of 2013 and utilized a mere Rs.69 lakhs from the bounty, NLIU Bhopal received Rs.100 lakhs as of 2013 and utilized only Rs.75 lakhs. NUJS had received Rs.90 lakhs as of 2012 and only utilized Rs.75 lakhs. IIT Roorkee had received Rs.30 lakhs as per 2012 and had utilized the entire amount; Tezpur University had received Rs.59 lakhs and utilized only Rs.29 lakhs as of 2013.

This wide variation in allocation of funds and in the utilization of funds, the report says, is due to lack of suitable proposals for seminars, workshops, conferences etc., “non-receipt of requests” for setting up of new Chairs, non-receipt of bills for grants that have already been released and a lack of continued attention to the scheme.

The details of how any of these funds were actually utilized are at present unavailable online. Statistics from the last financial year are unavailable anywhere on the internet as well; CIS has filed a Right to Information request for the same with the concerned authorities.

For more details visit http://editors.cis-india.org/a2k/blogs/mhrd-ipr-chairs-underutilization-of-funds-and-lack-of-information-regarding-expenditures

Guidelines for Examination of Computer Related Inventions: Mapping the Stakeholders' Response

nehaa — 2015-01-05T17:01:50Z

The procedure and tests surrounding software patenting in India have remained ambiguous since the Parliament introduced the term “per se” through the Patent (Amendment) Act, 2002. In 2013, the Indian Patent Office released Draft Guidelines for the Examination of Computer Related Inventions, in an effort to clarify some of the ambiguity. Through this post, CIS intern, Shashank Singh, analyses the various responses by the stakeholders to these Guidelines and highlights the various issues put forth in the responses.

I. Introduction

In June, 2013 the Office of Controller General of Patents, Designs and Trademarks ('IPO'), released the Draft Guidelines for Examination of Computer Related Inventions ('Guidelines'). The aim of the Guidelines was to provide some much needed clarity around patentability of Computer Related Inventions ('CRI'). The Guidelines discuss the procedure to be adopted by the examiners while examining CRI patent applications. In response to the Guidelines, several stakeholders submitted their comments to either accept, reject or modify the interpretation provided by the IPO. Most of the comments circled around the phraseology of Section 3(k), Patents Act, 1970 ('Act'). In its current form, Section 3(k) reads as "a mathematical or business method or a computer programme per se or algorithms", and comes under Chapter III of the Act which lists inventions that are not patentable. Simply put, this means that software cannot be patented in India, unless it is embedded/combined in with some hardware. While this is the most widely accepted interpretation of this Section 3(k), there have been contradictory interpretations as well.

In this note, I shall look at the various ambiguities surrounding patent application for CRIs. The note has been divided into five parts. Part II briefly reiterates the legislative history behind Section 3(k) and CRI patenting. Part III would briefly summarize the various parts of the Guidelines where the IPO has given their interpretation and opinion on the various issues surrounding CRI patenting. Part IV would then map the position of the stakeholders on each ambiguous point. Lastly, Part V would give the conclusion.

II. Legislative History

Under the Patent Act, 1970, prior to the 2002 Amendment, there was no specific provision under which software could be patented. Nonetheless, there was no explicit embargo on software patenting either. For an invention to be patentable, under Section 2(1) (j) of the Act, which defines an invention, general criteria of novelty, non-obviousness and usefulness must be applied. Software is generally in the form of a mathematical formula or algorithm, both of which are not patentable under the Act as they do not produce anything tangible. However, if combined or embedded in a machine or a computer, the resultant product can be patented as it would pass the aforementioned criteria.

The Parliament, in 1999, sought to amend the Act to bring it in conformity with the changing technological landscape. Consequently, the Patent (Second Amendment) Bill, 1999 was introduced in the Parliament which was then referred to a Joint Parliamentary Committee ('JPC'). The ensuing Bill proposed Section 3(k) in its current phraseology. It reasoned that:

" In the new proposed clause (k) the words ''per se" have been inserted. This change has been proposed because sometimes the computer programme may include certain other things, ancillary thereto or developed thereon. The intention here is not to reject them for grant of patent if they are inventions. However, the computer programmes as such are not intended to be granted patent. This amendment has been proposed to clarify the purpose. "

The Bill was then enacted as the Patent (Amendment) Act, 2002 and reads in its current form as:

Section 3(k) - "a mathematical or business method or a computer programme per se or algorithm"

This created some ambiguity with respect to the interpretation of the term "per se". It was interpreted to mean that software cannot be patented unless it is combined with some hardware. This combination would then have to comply with all the tests of patentability under the Act.

In December, 2004 the Patent (Amendment) Ordinance, 2004 ('Ordinance') was enacted which amended Section 3(k) to divide it into two parts, namely Section 3(k) and Section 3(ka).

"(k) a computer programme per se other than its technical application to industry or a combination with hardware;

(ka) a mathematical method or a business method or algorithms; ".

In February, 2005 the Ordinance was introduced in the Parliament as the Patent (Amendment) Bill, 2005.This included the amendment to Section 3(k) as under the Ordinance. In the Objects and Reasons it clarified that the intention behind the amendment was to " modify and clarify the provisions relating to patenting of software related inventions when they have technical application to industry or in combination with hardware ". However, the final amending Act did not divide Section 3(k) as proposed by the Ordinance. In the press note, by the Ministry of Commerce and Industry it was noted that:

"It is proposed to omit the clarification relating to patenting of software related inventions introduced by the Ordinance as Section 3(k) and 3 (ka). The clarification was objected to on the ground that this may give rise to monopoly of multinationals."

Later, in the same year the IPO release a Manual of Patent Office Practice and Procedure, 2005. Here, it noted that "a computer readable storage medium having a program recorded thereon…irrespective of the medium of its storage are not patentable". This did nothing to clarify the ambiguity that existed.

Similarly, the Parliamentary Standing Committee on Commerce, 88^th Report on the Patent and Trademark System in India (2008) noted the uncertainty surrounding the term 'per se' and said that there was a need to clarify the same. It did not do anything in furtherance of pointing this out.

The 2011 Manual of Patent Office and Procedure, 2011 tried to elaborately deal with the ambiguity. Nonetheless, substantively it did not change the uncertainty. It stated that:

"If the claimed subject matter in a patent application is only a computer programme, it is considered as a computer programme per se and hence not patentable. Claims directed at computer programme products' are computer programmes per se stored in a computer readable medium and as such are not allowable. Even if the claims, inter alia, contain a subject matter which is not a computer programme, it is examined whether such subject matter is sufficiently disclosed in the specification and forms an essential part of the invention."

III. Draft Guidelines for Examination of Computer Related Inventions, 2013

The Draft Guidelines were released on June 28, 2013, following which stakeholders were invited to give comments.

Terms/ Definitions used while dealing with CRIs

At the outset, the IPO put a caveat to say that the Guidelines do not constitute 'rule making'. Consequently, in case of a conflict between the Guidelines and the Act, the Act shall prevail. After the Introduction and Background, in Part I and Part II respectively, the Guidelines looked at the various definitions/terms that correspond to CRI patent claims in Part III. In all, there were 21 such definitions/terms that were sought to be clarified. These definitions can be branched into three categories.

Category I- Where the definition/term was borrowed from some other Indian stature.
Category II- Where the definition/term was construed according to the plain dictionary meaning. Category III- Where the Guidelines tried to give their interpretation to the term/definition.

Under Category I, there were seven definitions whose meaning was derived from some other stature. The meaning of Computer Network, Computer System, Data, Information and Function were derived from Information Technology Act, 2000 ('IT Act'). The definition of Computer Programme was taken from Copyright Act, 1957. Lastly, the definition of Computer was taken from both Copyright Act and IT Act.

Under Category II, the Guidelines underscored five definitions whose meaning was to be borrowed from the Oxford Dictionary. These were algorithm, software, per se, firm ware and hardware. Importantly, it was noted that these definitions have not been defined anywhere in Indian legislations. Lastly, under Category III the Guidelines tried to interpret certain terms according to their understanding. These terms included, Embedded Systems, Technical Effects, Technical Advancement, Mathematical Methods, Business Methods etc.

Categorization of CRI claims

In Part IV, the Guidelines tried to broadly group the various CRI patent applications under four heads. These categorizations tried to give an insight into what the patent examiners look for while rejecting a patent application.

Method/process:

Without defining what a method or process would entail, the Guidelines stated that any claim carrying a preamble with "method/process for..." shall not be patentable. It clarified that claims relating to mathematical methods, business methods, computer programme per se, algorithm or mental act are cannot be patented as they are prime illustrations of claims under this category. Further, the Guidelines gave specific examples of each of the aforementioned claims.

Apparatus/system

The second category consisted of claims whose preamble stated that the patent application was for an "apparatus/system". Under this, the patent application must not only comply with the standard tests of patentability- novelty, inventive step and industrial applicability, but also define the inventive constructional or hardware feature of the CRI. However, in contradictory statements, the Guidelines try to narrow down the prerequisites for a claim under this category, only to state that such claims cannot be patented.

Computer readable medium

While stating this as a category, the Guidelines do not elaborate on what this exactly means and what types of claims would be rejected being under this category.

Computer program product

This category includes computer programs that are expressed on a computer readable medium (CD, DVD, Signal etc.). Further, infusing ambiguity to the debate, the Guidelines failed to differentiate between Computer Readable Medium and Computer Program Product.

Examination Procedure used by IPO

The examination procedure for CRI patent application in the Guidelines is similar to other patent applications which look at novelty, inventive step and industrial applicability. However, claims relating to determination of specific subject matter under the excluded categories (Method/Process, Computer Readable Medium, Apparatus/system, and Computer Program Product) require specific examination skills from the examiner.

Under the excluded category itself, Method/Process requires subjective judgement by the examiner as to whether such a claim qualifies to be classified under this category or not. For investigating the inventive step involved in the 'method/process', the technical advancement over existing knowledge in the technological field has to be analyzed. Any patent claim from a non-technological field shall not be considered.

The Guidelines then tried to clarify the controversial Section 3(k) which eliminates the patenting of computer programmes per se. While previously stating that the definition of the term 'per se' as borrowed from the Oxford dictionary meant 'by itself', the Guidelines stated that computer programme loaded on a general purpose computer or related device cannot be patented. Nonetheless, while filing patent application for a novel hardware, with a loaded computer programme, the likelihood patenting the combination cannot be ruled out. Further, the stated hardware must be something more than a general purpose machine. Essentially, a patent for a novel computer programme combined with a novel hardware, which must be more than a general purpose machine, may be considered for patenting. It then gave several examples which were followed by flowcharts to further clarify ambiguities surrounding CRI patentability. Interestingly, all these examples and flowcharts only listed the inventions that are not patentable.

IV. Response by Stakeholders

Many and various comments were received from 36 stakeholders that including lawyers, civil society members, law firms, students, global and national trade bodies and industry representatives.

Our compilation (and the first level of analysis) of the Stakeholders' Responses is available here.

While all the stakeholders' applauded the much needed transparency in the IPO, substantively they differed considerably on various issues and highlighted some inconsistencies. In this part, I shall map the responses of the various stakeholders'. While doing so, I shall also try and find specific patterns to the responses corresponding to the following segments:

1. Civil Society

2. Law Firm/Advocates ('law Firms')

3. Industry/ Industry Representatives/Global Trade Body (Industry)

4. Students

These segments have been created on the assumption that each of the aforementioned segment would lobby for similar kind of policy.

Interpretation of Section 3(k)

One of the major points of deviation between the stakeholders was regarding the interpretation of Section 3(k) which encapsulates the term "computer programme per se".

The industry responded by critiquing the current CRI patenting regime in India as being "restrictive" ( FICCI , NASSCOM, US India Business Council and Bosch ). While some industry representatives sought clarifications due to uncertain phraseology, there was no industry representative that favored restricted interpretation to exclude software patenting altogether. While opposing the Guidelines, they sought assistance from the legislative history behind introduction of Section 3(k). It was pointed out that the term 'per se' was included to raise the threshold of patentability to something higher than the previous patentability standard, but it did not explicitly exclude patent protection for software.

The general perception of the stakeholders, keeping in mind the current Guidelines, was that for patenting software it had to be combined with some hardware. This combination would then be scrutinized against the triple test of novelty, inventive step and industrial application.

While the Guidelines noted that the hardware involved must not be general purpose hardware and that the chances of software patentability would increase significantly if novelty resides in the hardware; however, most of the industry and global trade bodies disagreed with this interpretation. They argued that if software in combination of hardware technically advances the existing technology, then such an innovation must be patentable, despite being combined with a general purpose machine (Bosch). Another explanation supporting expanded interpretation was that much of the technological innovation is accomplished through software development as compared to hardware innovation and novel software can achieve technical effect without the hardware developments ( BSA- The Software Alliance ). Consequently, software development that allows a general purpose machine to perform tasks that were once performed by a special machine must be incentivized. Some stakeholders interpreted the Guidelines to reason that hardware must be completely disregarded while examining patentability of software (Majumdar & Co. ).

Most of the responses from the civil society argued for a restricted interpretation of Section 3(k) ( Centre for Internet & Society). They concurred with the interpretation provided by the IPO to exclude software patentability. Most of the stakeholders responded seeking further clarification on the subject (Software Freedom Law Centre , K&S Partners and Xellect IP Solutions).

However, within each segments itself there was difference of opinion on the interpretation of Section 3(k). For instance, out of the five civil society members, four wanted to restrictive interpretation while one of them favoured expansive interpretation to include software patenting. Similarly, 13 law firms sought further clarification on the subject matter, while seven argued for expansive interpretation and one of them argued for restricted interpretation. The most consistent response was from the industry that clearly favoured software patenting and called the Guidelines "restrictive". Seven out of the nine industry representatives supported expansive interpretation and the other two sought further clarifications on the subject.

Section 5.4.6- Hardware

The interpretation of Section 3(k) until the release of the Guidelines was that software in combination with some hardware could be considered for patenting. However, the Guidelines increased the threshold stating that this hardware must be "something more than a general purpose machine". A stakeholder pointed out that increasing this threshold would go against the legislative intent as the requirement of a novel hardware has not been mentioned anywhere in the Act ( Anand & Anand ).

The industry's perspective on this matter was largely uniform. They pointed out the large technological field that would be eliminated from the scope of patentability if the interpretation provided by the Guidelines is adopted ( Bosch). Also, the investigation of novelty in the hardware would disincentives inventors in the field of CRIs ( Kan & Krishme ). Most of the stakeholders, across segments, sought more clarification on the role of hardware under Section 3(k) (Majumdar & Co. Centre for Internet & Society).

Comparative Analysis

Much of the criticism surrounding CRI patenting policy in India is based on the comparative inconsistency with similar laws in other jurisdictions. Comparative analysis on the subject has only been provided by the stakeholders that support software patentability. They point out that most countries like US, UK, Japan and the European Patent Convention allow patenting of software, and India must also do the same in order to comply with its international obligations under the TRIPs Agreement. Paradoxically, stakeholders who supported the current practice chose not to comparatively analyze CRI policy of other jurisdictions. While most of the stakeholders simply jumped to analyze comparative jurisprudence on the subject, only one of them gave a reasonable explanation for such a comparison ( LKS). It was noted that the Supreme Court of India and the Intellectual Property Appellate Board regularly borrow from foreign decisions to either accept or deny patents. Therefore, while formulating any policy on the matter, the position in other jurisdictions must be considered.

It was reasoned that the term 'per se' used in the Act, is similar to the European Patent Convention and UK Patent Act, 1977 where the term 'as such' has been used. Therefore, while juxtaposing both the terms, the interpretation of 'per se' must be similar to 'as such'. Consequently, software patenting must be allowed subject to the tests evolved by the courts. Similarly, the term 'as such' has been used by several Asian countries including China, Taiwan, South Korea and Japan. In these countries, software in concert with a specific hardware that resolves a technical problem thereby achieving a technical result can be patented ( Krishna and Saurastri Associates ).

Likewise, while comparing the jurisprudence of US, the landmark case Diamond vs. Diehr, which marked the beginning of software patenting was cited ( Subhojeet Ghosh and US India Business Council ). Several others argued that India must align their laws with global standards ( Bosch, Phillips Intellectual Property and Standards , Sun Smart IP Services , United Overseas Patent Firm).

Business Method

The Guidelines tried to narrow down the definition of 'Business Method' to clarify that such claims cannot be patented. It was urged that the Guidelines reconsider such a blanket embargo ( Legasis Partners- Advocates and Solicitors, Anand & Anand ). While judging patentability, a patent must not be rejected simply because it mentions business method or business method related terminology. What must be examined is whether the inventive step resides in the technical or non-technical part of the claim ( Legasis Partners- Advocates and Solicitors). A distinction must be made differentiating as to what software implementing business method and a software relating to the technical aspect of the transaction ( Anand & Anand ). While the former can be rejected, the latter must be accepted subject to the triple test of patenting.

It was pointed out that reevaluating a business method claim apart from a method involving financial transaction; monopoly claim over trade and new business strategies; monopoly claim over new types of carrying out business and method of increasing revenue; must be rejected (Law Offices of Mohan Associates , Remfry and Sagar, FICCI ). The more overarching opinion of the stakeholders was there is no objection to the exclusion of business method patents, but what constitutes business methods need more clarity (D. Moses Jeyakaran, Law Firm of Naren Thappeta , Japan Intellectual Property Association ).

Critique of Examples and Flowcharts

The Guidelines provided for several examples and flowcharts to foster a better understanding of the subject matter. However, a notable feature of each of these was that they only gave examples of what claims would be rejected. This was sufficiently pointed out by most of the stakeholders who sought more positive examples (Bosch, BSA- The Software Alliance , K&S Partners , FICCI , Xellect IP Solutions, Japan Intellectual Property Association , In-House Intellectual Property Professional Forum, NASSCOM , Obhan & Associates , Remfry & Sagar, Tata Consultancy Services ). It was pointed out that the examples have not sufficiently elaborated on their relation with Section 3(k) ( FICCI ), and some of them are "weak, obscure and incorrect" ( Software Freedom Law Centre). These examples also fail to elaborate on the tests that have previously been applied by the Patent Office ( LKS). Overall, the general perception was that, the examples were confusing and greater clarity along with positive examples was needed ( LKS, Anand & Anand ).

Interestingly, out of the 25 stakeholders' who commented on the illustrations, 16 sought positive examples. Further, most of the positive examples were sought by industry representatives and law firms who supported software patenting.

V. Conclusion

It has been over a year since IPO released the CRI Guidelines. On release, it invited suggestions in order to revise the Guidelines, but the revised version has still not been released by the IPO. The Guidelines were authored from a patent examiner's perspective; however, while doing so it obscured the matter further. It was argued that in totality the application of the Guidelines would now make the patentability of software stricter. It was also pointed out that the Guidelines have not taken into account the legislative history and the specific rejection of the Ordinance in the 2005 Amendment.

The responses received by IPO gave conflicting opinion on the same issue. In general, it can be concluded that the industry and law firms were in favour of allowing software patenting. They sought removal of the hardware requirement for software patentability. Most of the stakeholder's who favoured software patenting also undertook a comparative study of jurisdictions like US, UK, EU and Japan to point out the difference in the software patenting policy. Further, they also wanted the Guidelines to give positive examples wherein CRIs patenting has previously been allowed.

Admittedly, the Guidelines have no legal standing and much like the Patent Manual, they serve merely to guide the patent applicants and provide transparency patent examination. Overall, the Guidelines failed to explain the previous inconsistencies surrounding the subject matter. In conclusion the Guidelines mention that it would periodically release and update the Guidelines incorporating the stakeholder's comments. Considering the diverse set of opinions received by the IPO, it now needs to be seen which suggestions are accepted until the next round of comments.

For more details visit http://editors.cis-india.org/a2k/blogs/guidelines-for-examination-of-computer-related-inventions

Letter to the Prime Minister on Indo-US Bilateral Relations on Intellectual Property

nehaa — 2014-11-03T14:58:26Z

This is a letter that many organizations sent to the Prime Minister. The Centre for Internet and Society was one of the signatories.

22 October 2014

To,

Shri. Narendra Modi
Hon’ble Prime Minister of India
South Block, Raisina Hill,
New Delhi-110011

Fax: 23019545

SUBJECT: US-India Bilateral Relations on Intellectual Property

Dear Prime Minister Modi ji,

We, the undersigned, wish to share with you some of our concerns on India’s position on intellectual property (IP), particularly in the context of bilateral relations between the United States of America and India. We gather from the US-India Joint Statement dated 30 September 2014 that the Indian Government

(a)greeing on the need to foster innovation in a manner that promotes economic growth and job creation…committed to establish an annual high-level Intellectual Property (IP) Working Group with appropriate decision-making and technical-level meetings as part of the Trade Policy Forum.

The necessity for setting up the joint Indo-US IP Working Group is not entirely clear. As the Department of Industrial Policy & Promotion (DIPP)‘s press release of 3 October 2014 mentions, there is already in operation an Indo-US Trade Policy Forum since 2010. Therefore, we request your Government to kindly make the specific purpose of this joint Working Group publicly known.

We wish to further submit that the grant of decision-making powers to the new joint Working Group could be at the risk of ingression of sovereign policy space. Bilateral arrangements should not have the power to supersede domestic democratic decision-making processes mandated by the Constitution of India. We appreciate that bilateral parleys at the political and diplomatic levels may be necessary in order to address threats of unilateral action by the US administration. But such bilateralism in the area of IP must be approached with an extremely high degree of caution.

We urge that the Government be particularly wary of higher IP standards (benefiting US corporations) that are typically demanded by the US administration and its trade negotiators in bilateral and plurilateral negotiations. The US demands clearly go beyond what the World Trade Organisation (WTO) asks for from its member countries. Several regional trade agreements or bilateral investment treaties either signed by or being negotiated by the US bear evidence to this trend. Any bilateral negotiation on IP between India and the US would definitely witness demands on India to provide for higher standards of IP protection that are not required of us by the WTO’s IP agreement - TRIPS.

It is important to note that the new bilateral arrangement between the United States Government and the Government of India is being undertaken against the backdrop of heightened US political interest in India’s IP regime, which has been spurred on by its business interests. Pharmaceutical and biotechnology MNCs backed by the US are the key actors on that front. India has earned phenomenal interest world over for its generic medicines -- a reputation that must be preserved. US should not decide our IP policies when it is a question of national interest and international solidarity. There have been intensified pressures on India; US putting India on its 2014 ‘Priority Watch List’ and the current Out-of-Cycle Review (OCR) of India’s IP regime being conducted by the US are recent examples of this. We fully support the position taken by Indian authorities to not go along with any such unilateral measures by the US Government. We insist that this stance of the Government of India be relentlessly maintained.

In case there is an intent to craft afresh our position on IP and its different dimensions, it should be pursued by a ‘National Working Group on IP’ working under the oversight of a Standing Committee of the Parliament of India. While formulating India’s positions on IP we trust that the Government of India will continue to withstand external pressures on this front. We urge the Government not to continue with the proposed annual forum on IP with the US, particularly as we do not have a matching domestic process.

The process begun under the DIPP to frame a national IP Policy, first needs to be completed independently along with public consultation. Many more stakeholders from amongst ‘ordinary’ peoples need to be included in the process; these include treatment activists, farmers groups, community organisations, etc. While there is no harm in having a policy statement, the policy should be consistent with the existing laws in our country and mindful of the future challenges, particularly for the generic medicines industry. While framing a national IP Policy afresh, it needs to be kept in mind that our current IP laws are already compliant with existing international laws and allied obligations. We strongly urge you not to amend India's IP statutes to reduce the flexibilities currently available to safeguard the public interest such as affordable medical products, right to food and the access to knowledge.

As you are aware, India’s IP rules and their enforcement also have trans-boundary implications. As an emerging global force, as well as a responsible member of the global community, through its IP strategy India is well positioned to also articulate the concerns of many Low and Middle Income countries. The legitimate space for discussions on global IP standards is the WTO’s TRIPS Council, and it is in this multilateral forum that issues of concern between different countries should be discussed. India ought to reach out to a much larger constituency, even beyond the 160 country governments represented in the WTO, through the promotion of IP-related policies that are humane and which foster people-centred and planet-sensitive ‘development’.

We the undersigned, working in different sectors, would also like to collectively reiterate that higher standards of IP protection will not necessarily translate into ‘economic growth and job creation’ in a country such as India. IP-related policy cannot be dealt with as a mere trade issue. Sectors that entail the provision of basic human needs, such as health, agriculture, biodiversity, education, etc., can be adversely impacted by higher standards of IP protection and the dilution of flexibilities (for example, those in our existing Patent Act). Public policy goals with respect to scientific endeavours, technology development and local innovations that offer more sustainable options for the future – such as climate-adaptive seeds and Indian Systems of Medicine, can also be severely challenged by inappropriate domestic IP strategies.

Given the multiple domestic concerns that our IP Policy must respond to, we press for your Government to kindly view it with a holistic perspective that it warrants, rather than the official approach being subsumed by the relatively narrow confines of trade and economic policy.

We earnestly entreat you to take a personal interest in this important matter.

Thank you.

Sincerely,

CONCERNED CITIZENS/GROUPS:

Shalini Bhutani, Legal Researcher & Policy Analyst
B L Das, Former Ambassador to GATT
Anand Grover, Director, Lawyers Collective
K M Gopakumar, Third World Network
Dinesh Abrol, National Working Group on Patent Laws
Prof. Jayati Ghosh, Jawaharlal Nehru University
Kalyani Menon-Sen, Feminist Activist & Coordinator, Campaign for Affordable Trastuzumab
S. Srinivasan, Low Cost Standard Therapeutics (LOCOST), Gujarat
Amit Sengupta, Jan Swasthya Abhiyan
Mira Shiva, Initiative for Health & Equity in Society and All India Drug Action Network
Biswajit Dhar, Professor CESP/SSS, Jawaharlal Nehru University
Sagari R Ramdas, Food Sovereignty Alliance - India
K. Pandu Dora, Adivasi Aikya Vedika
Kavitha Kuruganti, Alliance for Sustainable & Holistic Agriculture (ASHA)
Vikas Ahuja, President, The Delhi Network of Positive People
Loon Gangte, Regional Coordinator, ITPC-South Asia
Aruna Rodrigues, Sunray Harvesters
Suman Sahai, Gene Campaign
Wilfred Dcosta, Indian Social Action Forum (INSAF)
Surajit Mazumdar, Professor CESP/SSS, Jawaharlal Nehru University
Kanchi Kohli, Campaign for Conservation and Community Control over Biodiversity & Kalpavriksh
Kapil Shah, Jatan Trust, Gujarat & Organic Farming Association of India (OFAI)
S. Ashalatha on behalf of Rythu Swarajya Vedika, Telangana and Andhra Pradesh
Kavita Panjabi, Professor, Jadavpur University
Umendra Dutt, Kheti Virasat Mission, Punjab
Usha S., Thanal, Kerala
Aruna Burte, Feminist Researcher and cancer survivor
Nivedita Menon, Feminist Activist and Professor, Jawaharlal Nehru University
Gabriele Dietrich, National Alliance of People's Movements
Kannamma Raman, Associate Professor, Department of Civics and Politics, University of Mumbai
Jacob Nellithanam, Centre for indigenous Farming Systems, Chhattisgarh & Madhya Pradesh
Rajesh Krishnan, Coalition for a GM Free India
Rachna Arora from Public Awareness on GM Food (PAGMF)
Ashish Gupta, IFOAM Asia
Claude Alvares, Goa Foundation
M R Baiju, Democratic Alliance for Knowledge Freedom (DAKF), Kerala
Madhu Sarin, Forest rights researcher and policy analyst
P V Satheesh, Director, Deccan Development Society
C N Suresh Kumar, Co-Convenor, Millet Network of India (MINI)
C Jayasri, Coordinator, Southern Action on Genetic Engineering (SAGE)
A Giridhar Babu, Alliance for Food Sovereignty in South Asia (AFSSA)
Narsamma Masanagari, Media Coordinator, Community Media Trust
Bharat Mansata, Earthcare Books
T C James, former Director (IPRs), DIPP, Government of India
D. Narasimha Reddy, ICSSR National Fellow, CSD, Hyderabad
Mishi Choudhary, Executive Director, Software Freedom Law Centre (SFLC.IN)
K Ashok Rao, President, National Confederation of Officers Associations (NCOA)
B Ekbal, Kerala Sastra Sahithya Parishad
Gautam Mody, General Secretary New Trade Union Initiative
Sunil Abraham, Centre for Internet and Society (CIS)
Veena Johari, Lawyer and Legal Researcher
Subbiah Arunachalam, Science writer
Vandana Shiva, Director Navdanya Trust.
Manoj Pardeshi, General Secretary, National Coalition of People Living with HIV in India (NCPI+) and NMP+
Malini Aisola, Oxfam India
Manicandan, Forum Against FTAs
Afsar H. Jafri, Focus on the Global South
Forum against FTAs.

Cc:

Hon’ Minister of Agriculture
Hon’ Minister of Commerce and Industry
Hon’ Minister of External affairs
Hon’ Minister of Environment, Forests and Climate Change
Hon’ Minister of Human Resources Development
Hon’ Minister of Communications and Information Technology
Hon’ Minister of Science and Technology
Principal Secretary, PMO
Secretary, Department of Agriculture Research and Education
Secretary, ER& DPA , Ministry of External Affairs
Secretary, Department of Commerce
Secretary, Department of Communication and Information Technology
Secretary, Department of Environment, Forests and Climate Change
Secretary, Department of Higher Education
Secretary, Department of Industry Policy and Promotion
Secretary, Department of Science and Technology

For Further Communications:

Dinesh Abrol, Convener, National Working Group on Patent Laws (NWGPL), J 17, Second Floor, Lajpat Nagar 3, New Delhi 110 02.
Tel: 011-40521773, Email: dinesh.abrol@gmail.com

For more details visit http://editors.cis-india.org/a2k/blogs/letter-to-prime-minister-on-indo-us-bilateral-relations-on-intellectual-property

Karnataka Goondas Act - A note on Legislative Competence

nehaa — 2014-09-06T04:47:33Z

A couple of weeks ago, we had an insightful guest post by Nehaa Chaudhari on amendments to Karnataka's Goondas Act, a draconian legislation which seeks to allow preventive detention for some types of copyright violations. Today, we have a follow up post on that, that argues that the recent amendments are unconstitutional.

This was published in Spicy IP on August 28, 2014. This post is authored by Nehaa Chaudhari and Amulya Purushothama. Nehaa works on intellectual property/openness law and policy and the Centre for Internet and Society, while Amulya is a fifth year law student at Nalsar University of Law, Hyderabad.

The recent amendments to the Karnataka Prevention of Dangerous Activities of Bootleggers, Drug-Offenders, Gamblers, Goondas, Immoral Traffic Offenders and Slum Gamblers Act, 1985 (“the Karnataka Goondas Act”/ “the Act”/ “the Goondas Act”) bring within the ambit of the Act offences under the Indian Copyright Act, 1957 and the Information Technology Act, 2000. Digital offenders and audio and video pirates, can now be punished and can be preventively detained under the new Act seemingly in order to protect public order. [See previous post examining this here]

Without prejudice to other concerns with this legislation including inter alia the use of preventive detention itself, provisions dealing with ‘expulsion from areas’ and the wide range of ‘offences’ that the Act seeks to cover, this article argues that those recent amendments that make audio and video piracy offences under the Act are unconstitutional, for want of legislative competence.

Union and State Lists

Article 246 of the Constitution empowers the Parliament and State Legislatures to legislate. Categories on which the Parliament may legislate have been laid out in List I (Union List) of the Seventh Schedule; on which the State Legislatures may formulate laws have been laid out in List II (State List) of the Seventh Schedule and on which either may legislate have been enumerated in List III (Concurrent List) of the Seventh Schedule. The power of the Parliament to formulate laws on matters in the Union List is exclusive and notwithstanding the powers of the Parliament itself and of the State Legislature with reference to the Concurrent List and of the State Legislature with reference to the State List. This exclusive power of the Parliament was also upheld in the now famous Hoechst Pharma Case.

Public Order is set out as a subject matter upon which the State Legislature can enact laws under Entry 1 of the State List. Entry 49 of the Union List enumerates Patents, Inventions and Designs; Copyright; Trademarks and Merchandise Works as matters upon which the Parliament can exclusively legislate.

Pith and Substance and Incidental Encroachment

The competence of any legislature to formulate laws is adjudged on the basis of what is known as the pith and substance doctrine. In this instance it means checking whether the substance or the essence of the Goondas Act has to deal with maintaining of public order. If this were to be the case, the incidental trenching upon matters beyond its competence as Kartar Singh put it (in this instance provisions dealing with audio and video piracy) is not all together forbidden.

However, this argument doesn’t stand. As required by the Hoechst Pharma Case, the infringement/encroachment has to be necessarily incidental to effective legislation by the state with respect to matters under List II. The newly introduced offences dealing with audio and video pirates are not necessarily incidental to pursuing the intention behind the Goondas Act as a whole (proceeding with the assumption that this intention is justified), which is to maintain public order and to provide for preventive detention of persons (bootleggers, drug offenders, gamblers, goondas, immoral traffic offenders) who are recognized by the Act as antisocial elements, particularly since there is no logical link between these particular offences and the maintenance of public order.

It would be worthwhile here to understand what exactly is meant by public order in the State List. The phrase was properly defined in the case of Indrajit Barua where the Delhi High Court held that for an illegal activity to qualify as threatening the public order, it must affect the community or the public at large. It was held that there was a difference between law and order and public order and that this difference was rooted in the degree and extent of … impact upon society. The Bombay High Court in the Nathwani case held that public order is the absence of public disorder involving breaches of local significance in contradistinction to national upheavals , such as revolution civil war… . The Supreme Court in Ramlila Maidan incident even held that if public order is disturbed it must lead to public disorder… whereas every breach of peace might not always lead to public disorder.

It is therefore, patently clear that offences under the Copyright Act, 1957 do not affect public order as understood in the legal sense simply because these offences while unlawful would not cause public disorder as has been envisioned by the court. Ergo, it follows that the true character of these amendments to the law, is not to preserve public order.

Even if it could somehow be proven that the offences added to the Act were a matter of public order, as held by the cases of Prof. Yashpal and Kerala State Electricity Board, when an entry is in general terms in List II (Entry 1- Public Order) and in more specific terms in List I (Entry 49 Patents, Copyright et al.), the entry in List I takes effect regardless of the entry in List II.

Furthermore, in this instance, the infringement on a matter under the Union List is not merely incidental, as the purpose sought by the Goondas Act, and the methods it adopts (preventive detention), stand in direct contradiction to the purpose of the Copyright Act, 1957. Copyright laws were enacted to incentivize innovation and to protect the intellectual property rights of individuals. In furtherance of this, offences under the Copyright Act, 1957 are punishable with imprisonment up to 3 years, the police have the power to seize infringing copies, the courts have the power to order the destruction of these copies. And there also exist fair-dealing provisions that need to be accounted for. A provision that allows preventive detention for copyright infringement is therefore not only disproportionate, but also incongruous in this context, leading to absurdities defeating the purpose of the legislation. Furthermore, this amendment amounts to an addition to the Copyright Act, 1957 in an indirect manner. Therefore in the guise of an incidental provision, the state legislature has altered the nature of the Act, and therefore engaged in a colourable exercise of power.

Therefore, subject to other reservations that one has with this legislation, due to a lack of legislative competence, at the very least, the amendments dealing with audio and video piracy should be repealed, applying the doctrine of severability expounded in Abdul Quader , R.M.D Chamarbaugwala and KihotoHollohan.

For more details visit http://editors.cis-india.org/a2k/blogs/spicy-ip-nehaa-chaudhari-august-28-2014-karnataka-goondas-act-a-note-on-legislative-competence