Centre for Internet and Society

Signing and Ratification of the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired, or Otherwise Print Disabled

nehaa — 2014-05-06T08:32:58Z

The Centre for Internet and Society sent the following letter to the Secretary, Ministry of Human Resource Development on March 14, 2014.

14 March 2014
Shri Ashok Thakur
Secretary, Ministry of Human Resource Development
Government of India
New Delhi

Dear Sir,

Subject: Signing and Ratification of the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired, or Otherwise Print Disabled

I write to you on behalf of The Centre for Internet and Society, Bangalore, India (“CIS”). CIS is actively involved in work on accessibility[1] and access to knowledge[2]
The Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired or Otherwise Print Disabled (“Marrakesh Treaty”) was signed on June 28, 2013 at Marrakesh, Morocco. Reportedly, the Marrakesh Treaty was signed by over fifty countries on the final day of the Diplomatic Conference held to finalize this treaty, in late June, last year.
We are given to understand that reportedly[3] the Union Cabinet had in its meeting held at the end of last year cleared the Marrakesh Treaty for both, signature and ratification.
We write this letter to enquire about the status of India’s signing of the Marrakesh Treaty.
We strongly believe that the signing and ratification of the Marrakesh Treaty would be in India’s best interests, and in consonance with the amendments made to India’s copyright law in 2012, as reflected in India’s Closing Statement at Marrakesh on the Marrakesh Treaty.[4]
In light of this we request you to take the necessary steps for the signature and ratification of the Marrakesh Treaty as a consolidation of India’s long standing commitment to providing access to books and printed material to the blind, visually impaired and persons with other print disabilities.
We would be deeply obliged to provide you with any assistance necessary.

[1]. See http://cis-india.org/accessibility (last accessed 14 March, 2014).

[2]. See http://cis-india.org/a2k (last accessed 14 March, 2014).

[3]. Email correspondence from Dr. Sam Taraporevala, available here- https://groups.google.com/forum/#!topic/daisyforumofindia/tksq9kAdD0Q (last accessed 13 March, 2014). and here- http://lists.keionline.org/pipermail/marrakesh_lists.keionline.org/2013-November/000240.html (last accessed 13 March, 2014).; Email correspondence from Shamnad Basheer, available here- https://groups.google.com/forum/#!topic/spicyip/DupESMX2lkg (last accessed 13 March, 2014). See also http://spicyip.com/2013/12/marrakesh-blind-treaty-okayed-for-signature-and-ratification.html (last accessed 13 March, 2014).

[4]. See http://cis-india.org/a2k/blog/india-closing-statement-marrakesh-treaty-for-the-blind (last accessed 13 March, 2014).

For more details visit http://editors.cis-india.org/a2k/blogs/signing-and-ratification-of-marrakesh-treaty-to-facilitate-access-to-published-works-for-persons-blind-visually-impaired-print-disabled

WIPO Standing Committee on Copyright and Related Rights (SCCR) 26th Session- Consolidated Notes (Part 3 of 3)

nehaa — 2014-04-01T09:48:59Z

From December 16 to 20, 2013, the Standing Committee on Copyright and Related Rights (SCCR) of the World Intellectual Property Organization (WIPO) met for the 26th session. This blog post (Part 3 of 3) summarizes Day 4 of the proceedings of the 26th SCCR, based on my notes of the session and WIPO's transcripts.

Many thanks to Varun Baliga for putting this together, and to Alexandra Bhattacharya of the Third World Network for her notes and inputs.

Day 5 – 26th SCCR

The agenda for the final day of the 26th SCCR was set as limitations and exceptions for educational and research institutions and for persons with other disabilities.

Trinidad and Tobago, speaking on behalf of the GRULAC group of nations, supported the idea of an international convention on this agenda. It was of the opinion that such an instrument would work for the benefit of the economic development and socioeconomic enablement of millions of people in the GRULAC region. Algeria, speaking on behalf of the African Group, emphasized the digitalization of education, research and living across the world and the impact that this has on the right of peoples of all nations to access knowledge. Responding directly to sustained opinion from the developed world of the absence of a need for an international convention, Algeria spoke about the need for balance and uniformity in regulations. This balance between the right to access knowledge and to protect intellectual property is often achieved through the concept of limitations and exceptions. This balance also requires uniformity because conflicting cross-border norms in our digitally borderless world would render the ameliorative effects of limitations and exceptions moot. Further, the Berne Convention has proved to be of minimal help since interpretations have emerged of its dissonance with the tools needed for distance education. Therefore, in order to cover the digital dimension of limitations and exceptions, an international treaty is critical. In the words of the Algerian delegate, “We know that the balance between Intellectual Property rights and public interest are generally translated by exceptions and limitations. Unfortunately in the area of education and scientific research, national legislation does not seek this balance in a uniform and comprehensive manner.”

The delegate also responded to concerns about the text proposed by the African Group. The proposal, he said, was a text-oriented tool to find an apt balance. Further, it was also imbibed with a certain degree of flexibility to allow for its adaption to the needs of development as understood by nations, various kinds of copyright protections and various treaties in literary and artistic property. Furthermore, the African Group wished for this text, if adopted, to move on the principle of consensus and expressed a willingness to incorporate any constructive concerns that delegates may have in order to stay true to the ideal of consensus-based diplomacy.

A number of developing and developed countries supported the need for greater discussion at the international paradigm on the topic of limitations and exceptions, and also the swift adoption of an international instrument in this respect. Kenya and the Islamic Republic of Iran put their weight behind the African Group, emphasizing similar values of digitalization of information and communication, right to access knowledge, public interest and need for an international instrument. Tunisia also supported the notion that an international instrument would lead to the harmonization of standards and benefit the international community. China came out in strong support of further negotiations. Russia noted that it was in support of a single document for limitations and exceptions that covers within its ambit the entire gamut of protections discussed at this forum. Further, it also supported the contention of the Japanese delegation that the international instrument should not include contentious issues such as instance liability.

It is also pertinent to note that Japan, on behalf of Group B, came out against the idea of a treaty based approach to the negotiations, much preferring “constructive work on principles and updating of studies by the Secretariat”. The European Union submitted that the extant international copyright framework was both adequate and ideal for the needs of both the digital and analog world of education, research and needs of persons with other disabilities. The EU proceeds to draw a distinction between the needs of educational and research institutions and persons with other disabilities vis-à-vis needs of persons with visual and print impairment. In drawing this distinction, it seeks to achieve principled coherence across its support for the Marrakech Treaty and its opposition to any treaty on limitations and exceptions. It expressed concern that the working document was not an accurate reflection of the views of those countries that were of the opinion that present negotiations should be confined to the sharing of national experiences. Given the diversity in domestic regulations, any international treaty should seek to achieve domestic regulatory harmony and then proceed, assuming that the need argument fails to hold water.

The Indian delegate submitted that the discussions were in furtherance of earlier deliberation on limitations and exceptions for libraries and archives. There was a dire need to understand libraries and education not in a parochial, institutional sense but in a broad and enabling manner to meet the needs of developing and least developed nations. Both the material and transmission should be covered in order for distance learning to be enabled in any meaningful manner. Further, it was also of the opinion that an expansion of ISP liability is needed, citing the IT Act in support of this.

At this point, the developing nations made their voice heard in opposition to the fundamental premise of the ongoing negotiations – that an international treaty is a worthwhile goal to work towards. Poland, on behalf of the CEBS Group, commecnced his statement by taking cognizance of the importance of educational and research institutions and activities in our society and economy. The delegate recognized the existence of the knowledge triangle of education, research and innovation. Proceedings from this premise, it was the view of the CEBS Group that the best way to hone this innovation is by establishing a robust and strong system of intellectual property. Further, it went on to draw the link between the critical activities of distance learning, collaborative research with the activities of publishing and other aspects of the creative sector. Copyright policies therefore have to also take into the account the economic and social effects of not enabling access to research. The CEBS Group argued for a balanced copyright approach. It went on to support the idea of each WIPO member incorporating enabling limitations and exceptions within their domestic copyright regimes through a mutual sharing of best practices and national experience using multilateral for a such as this one. It was of the belief that modern copyright systems should provide for efficacious licensing mechanisms that are flexible, supportive and enabling to education, research and teaching activities as well as the needs of persons with other disabilities. Supporting the values emphasized by the developing world does not necessarily require the adoption of a binding international instrument. It concluded that the need to develop a comprehensive understanding of limitations and exceptions should not come at the flexibility that is conventionally afforded to WIPO member states to determine their own educational, research and teaching policies and norms to enable the lived experience of persons with disabilities.

The United States started by submitting their own document – SCCR/23/4 – on objectives and principle for limitations and exceptions for libraries and archives. The US chose to further the CEBS submission by underscoring the potency of the extant copyright regime – Berne Convention 1886 and WIPO Copyright Treaty 1996. Both have a balance between copyright and education and have the promotion of education, research and teaching as their stated goals. Therefore, notwithstanding the contention that they are anachronistic given the digitalization of information and communication, it is possible to accommodate contemporary needs within existing regimes. The US stated that it was of the opinion that finding common ground on principles and an examination of the diverse national treatment of the issue of limitations and exceptions would render a more productive, positive solution than foisting a treaty or international legal instrument on the domestic regimes of WIPO members. It was of the opinion that this would “permit progress by promoting steps forward on shared goals and principles while enhancing international understanding and maintaining flexibility at the national level. We do not support work towards a treaty.” It also went on to voice concerns about the inclusion of controversial and broad areas of protection within the rubric of the treaty – topics such as public health and ISP liability were causing much consternation to the delegate of the United States. A plethora of reasons were advanced by the US that articulated its layered opposition to this entire process. There was a concern that given fundamental differences of opinion, inclusion of contentious protection would be pernicious to the negotiation itself. It was also of the opinion that a lot of the provisions had only incidental relevance to the central question of education and rights of persons with other disabilities would distract the nations from the purpose of the proposed international instrument. This proliferation of protections would in turn harm the considerable economic, social and political capital invested in the negotiation process.

Senegal affirmed the idea of an international agreement on limitations and exceptions. It believed that the contemporary is far removed from the world in which the Berne Convention and extant international copyright regime was conceptualized. Therefore, Senegal was in favour of a flexible international instrument that responded to digitalization and was proactive rather than reflexive. Sudan also threw its weight behind the African Group proposal and offered a scathing critique of the exclusivist tendencies of the contemporary copyright regime. It called for “efforts to break the current situation faced by certain countries in communication or in building the infrastructure and bridging the digital gap.

Columbia, on the other hand, spoke about the need to understand if there is a lacuna in the present international copyright regime and understand the implications of adding to existing corpus of limitations and exceptions.

At this juncture, the Chair opened the floor for contributions from civil society representatives. Knowledge Ecology International focussed its submissions on three foci – specific exceptions, three-step test and the corporate system. KEI acknowledged the raft of protections for limitations and exceptions within existing copyright structures but articulated the need for specific exceptions. Further, it reasoned out the incompatibility of the Berne three-step test with the needs of contemporary knowledge creation, research and access. Transplanting the Berne Convention to this context would render it moot and have far-reaching pernicious consequences on the international community’s reactions to dire questions of access particularly in the developing and developed world. KEI acknowledged the underlying premise of US/EU/Group B objections to an international instrument by pointing out the difference in national treatment of limitations and exceptions. As a response to this legitimate concern, it suggested that complimentary confidence building measures such as a multi-stakeholder platform work alongside the treaty negotiations so as to ensure that it is an inclusive process that alienates no stakeholder.

IFRRO came out in strong support of the position against an international treaty. It stated that in pursuit of limitations and exceptions, one must not lose sight of the legitimate rights that creators have over their work. Diluting that principle would do harm to the idea of copyright and by extension creative and innovative thought. In support of this contention, studies were cited that showed a causal link between IP protection and income of authors.

The Centre for Internet and Society underscored the value of universal access to education and knowledge. Information and communication technology in the contemporary carry the tantalizing prospect of the realization of this ideal without excessive expenditure. It is also critical for this access question to be all-inclusive, for “formal and informal institutions and for environments and in digital and non-digital formats”. The experience of developing and least developed nations is a feeling of exclusion from the silos of knowledge in the west and it falls upon the international community to disrupt these silos to ensure equitable access to knowledge and, as a consequence, power. Individuals in these countries not only have to spend more on each book but have to spend a higher proportion of household income on it vis-à-vis Western households. The present international copyright framework lacks the ability to facilitate the realization of this ideal for three reasons. First, the myopic and complex compulsory licensing provisions in the Berne Convention. Second, the incompatibility of the three step test to contemporary limitations and exceptions. And finally, the need for harmonization of national practices and facilitation of cross-border exchange of information and knowledge.

On being called on by the United States, Ecuador and Egypt, it was decided that the Secretariat would study the possibility of a study on the ambit of copyright and related rights as also limitations and exceptions for persons with disability and from the perspective of learning concerns. It was also decided that the Secretariat would update regional studies on limitations and exceptions for educational, research and teaching institutions.

The next session, SCCR 27, would focus on a discussion on exceptions and limitations with a focus on libraries and archives.

Draft Conclusions

The draft conclusions to this year’s SCCR was put up by the Chair for comments by all members. Belarus and CEBS fully supported the text and praised it for its balanced approach. The United States also supported it but requested an edit to Paragraph 6 Line 4 – a ‘to be defined’ in parenthesis after the words ‘on demand transmissions’. India expressed gratitude that everyone’s views were taken into account in the draft conclusions and asked for two edits. It stated that parts of the discussion on Article 9 were absent from the text. Further, the words beneficiaries in the draft conclusions was included when it had no definition in the document. Finally, it suggested that the word last line in paragraph 5 be changed to might or may. The Chair responded to India’s concerns on paragraph 5 by directing attention to the word ‘if’ in the text. Ecuador and Brazil both supported India’s opinion that the word should be may or might and not should. India submitted that this is not simply an editorial or cosmetic change but one that reflected a substantive issue. Ecuador also stated that countries might in the future want to include internet transmissions and the word should conditions the negotiations, lending it a restrictive air. Brazil also stated that it was crucial for the text to be both balanced and reflective of every stakeholder’s concerns. India stated that this was a demand from two or three groups. The lack of consensus on this point implies that the word should be may and not should. The EU, US, Japan, Switzerland and Poland (on behalf of the CEBS) supported the text in toto- a tacit snub to India’s suggestion. Italy stated that the word ‘if’ in the text provides the kind of flexibility that India is seeking and that altering the word should to may would rob the provision of meaning and be grammatically grotesque. Looking for alternatives, India also requested that the words ‘at least’ be deleted in order for some aspect of its concerns to be taken into account. Belarus characterized the text as entirely factual and accurate portrayal of the negotiations that took place-gave its support to the entire text. The Chair then offered an explanation of the terminology and showed how the wording allowed for both possibilities of inclusion and exclusion of transmission over the internet.

Indian then turned attention to the lack of a definition to the word beneficiaries. The Chair acknowledged India’s concerns and accepted the US suggestion to add the words ‘to be defined’ after both beneficiaries and on demand transmissions. Brazil also suggested traditional broadcasting/cablecasting or broadcasting/cablecasting organizations in the traditional sense as possible ways to word the text. The EU requested the Chair for some language suggestions on how best to resolve this. The proposals (and not issues, after a request from India) on Articles 5,6,7,9 and 12 were added to the annex. After the incorporation of all these concerns and compromises, the Chair approved this section.

Libraries and Archives

On the limitations and exceptions for libraries and archives, the United States made two suggestions. First, that the word may be removed from paragraph 18 as it detracta from the nature of the deliberation on that point. Second, the inclusion of the phrase “other proposals submitted” in paragraph 21. Brazil stated that it stood for the draft conclusions to be a clear picture of the positions adopted by WIPO members. In this light, it called for the inclusion of the names of member states that wished to discuss national laws in paragraph instead of the nebulous phrase ‘some member states’. He also requested a clarification on the last line of paragraph 16. Trinidad and Taboga indicated that it was adopting a flexible approach; it supported the suggestions by the US and Brazil but were also willing to work with the text.

The European Union wanted the word ‘also’ to be removed from paragraph 14. It also suggested that the final sentence of paragraph 16 be “these studies will serve as information and work resources for the committee”. Ecuador agreed with the US working document. It was of the opinion that the document should better reflect a spirit of compromise. On limitations and exceptions for museums, given the study reflected in the plenary for persons with other disabilities – there was a discrepancy between the discussions and the text. One was with the understanding that it was subject to the availability of resources while the other implied that it was mandatory in nature. The EU wanted licensing to be included in the text. The US thanked Ecuador for working out a compromise on the language and accepted it. Algeria expressed its desire to stick to the language proposed by the Chair on paragraph 13.

The Brazilian delegate called for flexibility on paragraph 14 in light of the proposal by the EU delegation on the point of discussion on national laws. The United States responded that it didn’t quite follow the position being adopted by the Brazilian delegate on paragraph 14 and much preferred a return to the text originally adopted by the Chair. Egypt pointed out the possible confusion that could emerge between paragraph 16 and 21, and in light of this expressed a willingness to engage in a full scale discussion on proposals from Canada and the EU. The EU responded directly to paragraph 14 in particular. It spoke out against the idea of listing the WIPO members that asked for a discussion on national laws as this would be against WIPO practice both in other parts of the same document as well as in other deliberations. EU stated that it saw no need to list out WIPO members and stood firmly against it. Brazil responded with a modicum of alarm at the opposition to the simple proposal to introduce the elements of precision in a document that is meant to be factual. It is far better for readers to understand the precise picture rather than having a general understanding of issues. Italy, Belarus and Greece threw their collective weight behind the EU opposition to this. All stated that this would be highly inappropriate and would amount to the singling out of the EU and other nations that took a stance, something that they didn’t see a need for. The US proposed a compromise where instead of naming the member states, ‘some member states’ would be used. Brazil said that this term was not just nebulous but could give the wrong impression to future delegates of the precise number of states that wished for discussion on national laws. Ecuador played the role of the voice of reason and stated that the progress of negotiations shouldn’t be hampered because of such a cosmetic set of differences. There was no need for the level of precision that was exemplified by the naming of WIPO members. Instead, it stated that it advocated for a general references to nations that asked for a discussion on national laws. This general reference was supported by Algeria and finally adopted by the Chair as a compromise between the opposing factions. On paragraph 16, the Chair called for the part on limitations and exceptions on museums to be deleted with the understanding that there would be an update by Professor Kenneth Cruz that would include all aspects of this issue. On paragraph 14, the Chair was in favour of the compromise suggested by the United States. It stated that in using the word ‘some’ no particular number or indication thereof was intended and that caveat was always there; instead what was only meant through the word ‘some’ was that the number of was more than one. Asked for Brazil to show some flexibility in this situation. Egypt raised the important issue of not conflating the fundamental disagreement on the nature of the proposed instrument and the desire to have discussions on national laws. It stated that in case both were being included, they be mentioned in separate paragraphs because a conflation would lead to misplaced conclusions being drawn.

Deliberations on paragraph 16 ensued and the Chair clarified that on paragraph 16, the first and third sentence were being retained while the second was done away with. Ecuador asked for thereto be no confusion between studies on limitations and exceptions and those on museums. Its objection does not extend to the latter. The Chair suggested that all references to museums be deleted. Algeria wanted the words on preparation not being delayed to be retained and applied to all studies being proposed. US agreed with the Chair’s proposal but added that perhaps a separate study on limitations and exceptions on museums be included. Algeria insisted that this principle be applicable to all studies and not just studies on museums. The Chair stated that a separate study on limitations and exceptions for museums be included with the understanding that this would not delay general discussions on limitations and exceptions. The last sentence was also retained. With this, deliberations on this topic were closed.

Limitations and Exceptions For Educational and Research Institutions and for Persons with Other Disabilities

The European Union delegate stated that it was in support of the inclusion of the point on licensing as an appropriate point in the text. Sharing Algeria’s concern, it also called for the deletion of the word ‘understood’ in paragraph 23. Algeria had earlier raised a problem with the use of the word ‘understood’, preferring the phrase ‘agreed on’. The EU also called for the text to be accurate reflection of the negotiations. Brazil responded to the concerns of the EU delegate by stating that he would not be in support of a suggestion that this document not be the basis for future work on this topic. Ecuador supported Brazil’s point on this being a text-based negotiations and that this should be the basis for future deliberations. Brazil also expressed a bewilderment at the EU insistence of the inclusion of the point on licensing. It asked for its relevance in an agreement on educational institutions; a clarification was sought from the EU. The EU responded that it was of the opinion that we’re dealing with related subjects that deserve equal treatment. In this context, since licensing was included in the previous agreement, it must also be reflected in these conclusions.

Egypt supported the Chair’s language in paragraph 23. Further, it went on to attempt a compromise by suggesting that this text be not the basis for future text-based work but a basis. This would lend the issue a degree of much-needed flexibility. The US, on the side, supported the EU on including licensing schemes. The EU responded favourably to the compromise suggested by Egypt and said that a text where the word the is replaced by a is one that is agreeable to the EU.

The Chair outlined the three issues as

The word ‘the’ in Item 27
The inclusion of the point on licensing and the tussle between the EU (arguing for inclusion, supported by the US) and Brazil (against the inclusion).
The point of this being the basis for future text-based negotiations and the compromise suggested by Egypt and accepted by the EU.

A compromise was worked out on licensing where the words “but other delegations do not see it that way” be included as a rider. Differences on points 1 and 3 were also ironed out as the Egyptian compromise was accepted. On this point, the third section was approved and deliberations came to an end.

Other Matters

It was announced that the reports of the Stakeholders’ Platform – SCCR/26/5 and SCCR/26/7 – be put up on the web page. Finally, suggestions were wielded and discussed for future meetings of the SCCR.

It was agreed that SCCR 27 would be dedicated to the protection of broadcasting organizations (two-and-half days), limitations and exceptions (two days) and conclusions and discussions on future work (half a day).

Additional Links

For more details visit http://editors.cis-india.org/a2k/blogs/wipo-sccr-26-session-consolidated-notes-part-3

Broadcast Treaty: An Overview

nehaa — 2014-03-20T09:55:45Z

In this blog post, CIS intern Varun Baliga, a third year law student at NALSAR University of Law, Hyderabad, presents an overview of the Treaty for the Protection of Broadcasting Organizations, currently being deliberated by nations at the World Intellectual Property Organization (WIPO) Standing Committee on Copyright and Related Rights (SCCR).

Negotiations on the Treaty for the Protection of Broadcasting Organizations (“Broadcast Treaty”) (draft circulated for discussion at the 26^th SCCR available here- http://www.wipo.int/edocs/mdocs/copyright/en/sccr_26/sccr_26_6.pdf) were initiated for the purpose of protecting such organizations from signal piracy. For a broadcasting organization, their signal is the prime source of revenue. Therefore, state intervention at the international level was required to quell the transnational issue of signal piracy. Moves by a majority of nations indicated that the mood was in favour of drafting a treaty that would codify certain protections for broadcasting organizations in the form of rights. The obvious concerns that arose were the nature and scope of those rights. Overbroad rights often posed significant obstacles to the free flow of information. A number of developing nations were concerned that the latest move was a further entrenchment of the colonization of information and knowledge. It was in the common interest to balance the dire need to combat signal piracy in order to maintain the integrity of the business of broadcasting organizations while at the same time ensuring that it doesn’t come at the cost of the access to the information itself.

From the perspective of the Global South, the focus of the text was Article that protected possible action that states may take in the public interest. The South was interested in elevating the status of the public interest to that of an aspiration that states must seek to live up to. So, public interest must continue to guide even negotiations that seek to protect the interests of multinational corporations. The Broadcast Treaty also protects against the restriction of free flow of technology and access to the same in Article 4. One of the sticking points of negotiations has been the nature and scope of the protection that is to be offered to broadcasting organizations. India, among other countries, has advocated for a strict signal-based approach to the protection. It opines that protection should be offered to the signal alone and not the subject matter that is carried by the signal. Many nations of the developed world look at this as a distinction without a difference. There has also been a strong push from the South to limit protection only to transmission and not cover the retransmission of signals within the aegis of the treaty. Another cleavage of opinion has been on definitional concerns that have plagued the negotiations ever since they commenced. Institutions such as Knowledge Ecology International among others have noted with caution the wide meanings conferred on beneficiaries of protection. Understanding broadcasting organizations and cablecasting organizations in an all-encompassing way would result in not just the proliferation of rights, thereby harming the sanctity associated with the concept, but would also lead to the manifestation of those rights on contexts that harm free speech and access to information. For example, the protection of the rights of broadcasting organizations on the internet could play out in a pernicious fashion, particularly since the internet space has long been one of open and free access.

Many countries, including India, Brazil and South Africa, have questioned the need for the treaty in the first place. Adopting this position doesn’t mean a devaluation of the harms of signal piracy. On the other hand, questions have been raised as to whether the creation of rights is the most effective, or even the right, solution. The harms of this problem-solution mismatch mean that the stakes are high; therefore, subjecting this treaty to critical scrutiny assumes great importance.

India, South Africa and the entire bloc has also argued against the inclusion of webcasts and netcasts in the spectrum of rights being conferred on broadcasting organizations. Broadcasting and webcasting work on completely different investment models and don’t work on the same kind of infrastructure. For that and other speech and access reasons, protection should be given, it was argued, only for traditional transmission of the signal. Consensus was ultimately achieved with the US agreeing that the focus of the treaty should be “true signal piracy, real-time transmission of the signal to the public without authorization".[1]

The Centre for Internet and Society has expressed its reservations about the treaty in no uncertain terms in the past. The underlying philosophy has consistently been a robust signal-based approach to the treaty. A consequence of this would be no term of protection for signals since the rights would exist only for infinitesimal amount of time that the signal does. The absence of a term of protection would also preclude concerns about harm to free flow of information from creeping up. CIS noted that there was a need for greater clarity on the meaning of ‘mere retransmissions’ which would not be granted any rights in the April 2007 Non-Paper circulated for the delegates. When the transmission is over a computer networks, there should be inkling of doubt as to the exclusion of both transmission and retransmission from the ambit of protection. Finally, it has called for a different structure of limitations and exceptions to be conceptualized for the treaty. A simplistic transplantation of the Berne Convention provisions would be ignorant of the particular needs of broadcasting. It is critical that the limitations and exceptions be actualized in a manner that is enabling and empowering for the most vulnerable stakeholders.

[1]. http://keionline.org/node/1701

For more details visit http://editors.cis-india.org/a2k/blogs/broadcast-treaty-an-overview

WIPO Standing Committee on Copyright and Related Rights (SCCR) 26th Session- Consolidated Notes (Part 2 of 3)

nehaa — 2014-03-20T04:52:53Z

From December 16 to 20, 2013, the Standing Committee on Copyright and Related Rights (SCCR) of the World Intellectual Property Organization (WIPO) met for the 26th session. This blog post (Part 2 of 3) summarizes Days 3 and 4 of the proceedings of the 26th SCCR, based on my notes of the session and WIPO's transcripts.

Many thanks to Varun Baliga for putting this together, and to Alexandra Bhattacharya of the Third World Network for her notes and inputs.

26th SCCR – Consolidated Notes

Day 3

The Chair commenced proceedings by noting the need to take stock of the work done over the course of the first two days of proceedings. He stated that we needed to see the points of agreement as well as sticking points that persisted in order to chart a path towards resolution. There was an urgent need for clarity.

The floor was opened to Delegations and Regional Groups. The document before the countries is the one on draft conclusions for the discussions surrounding the Broadcast Treaty.

Belarus starts by expressing its support for the document before it and is ready to engage with any proposals that nations might have on it. Poland wanted the wording changed to broadcasting an cablecasting organizations in the traditional sense, but expressed its support for the document otherwise. A few other delegations, such as the one from Trinidad and Tobago, also expressed unease at the terminology of ‘traditional broadcasting organizations” in the document and much preferred broadcasting and cablecasting organizations in the traditional sense. Notwithstanding these concerns, there was considerable support for the draft conclusions.

The EU wants its discussions on transmissions over the internet to also be included as a part of the draft conclusions.

Libraries and Archives

Trinidad and Tobago expressed its full support for the exceptions and limitations for libraries and archives. They were keen to “close this gap to strengthen the copyright system as well as the human and collective rights for the benefit of creators and users alike”. It stated that the progress made in this regard was entirely consistentwith the Millennium Development Goals and the Development Agenda of WIPO. The CEBS group also came out in support of this framework. Further, it added that it would benefit greatly from the sharing of national experiences in this matter. It was stated that the modern copyright system should have a licensing system that is supportive of libraries, archives and other every day research. CEBS was sceptical however of the need to enter into any sort of international treaty in this regard. The delegate from Bangladesh pointed out the acute need for this limitation and exception particularly from the perspective of a developing nation in dire need of free flow of information. In this context, the Indian delegate was invited to make comments. The EU put on record its opposition to any sort of binding international instrument in this regard, and they wished to see this desire reflected in the title of the document. Iran called for the commencement of text-based negotiation since it was fairly clear that there was a need for an international instrument in this matter. Colombia concluded by stating that access to knowledge should be the guiding principle for the exceptions and limitations. It was very important for the libraries to fulfil the public interest for there to be copyright protection to its activities. It stresses however the need to continue to provide incentive and legitimate copyright protection even within this framework.

Day 4

Discussions continued on the first topic of preservation as found in the SCCR/26/3 which focusses on exceptions and limitations enabling libraries and archives. For this session, the Chair outlined the issue up for comments as the right of reproduction and safeguarding copies.

Azerbaijan, speaking for the first time, stated that it took cognizance of the importance of exceptions and limitations and supported an international instrument on it. The purpose of limitations and exceptions should be to allow librarians and archives to preserve the documents. The documents protected should be used solely for research purposes and must be in accordance with fair practice. Australia clarified the role of preservation to be the continuing availability of physical and digital works already held in the collections of a library or archive for the benefit of present or past users. Critical to be very specific when talking about preservation in order to prevent the proliferation of rights. It stated that it was yet to be convinced of the need for an international instrument. Belarus noted that it supported the need for an international legislation. It supported the formulation of rules in this regard on the basis of the three step test, in order to maintain the balance of interests at play. It is imperative that strict rules of interpretation are employed while introducing this into domestic legislation in order to avoid ambiguous approaches that will lead to the abuse of the freedoms codified. The non-commercial and non-profit making nature of libraries and archives were emphasized. In explaining the merits of the three step test that would facilitate the entry of this international document into domestic law, Poland shared its national experiences in this regard with the group. Brazil suggested that the concern of proliferation of works voiced by many countries could be resolved by engaging in deliberations that result in clear definitions. It suggested that the intervention made by Canada be made into an annex as a subject that can discussed in the text in the future. Russia noted that the Berne Convention is the bedrock of international intellectual property and copyright law and coupled with reference to national legislation would help in reaching a common understanding on preservation. Morocco was in support of an international legislation since dealing with the problem nationally would be woeful piecemeal approach. Senegal pointed out definitional issues that were plaguing the discussion. If there was no common ground on the idea of a library and an archive, then the discussions on exceptions and limitations would not break any new ground. Therefore, the discussions appeared to be proceeding on two tracks – nature and scope of the exceptions and limitations for libraries and archives and the need for an international instrument that went beyond national legislation. The Chair opened comments on the latter track since that is foundational. The United States reiterated its opposition to any agreement that transcended national legislation. It also wished to introduce a bit of complexity in its discussions by pointing out that its domestic copyright law had no understanding of a library or archive. Therefore, it was going to be difficult to come to an understanding at the international level when national legislations themselves have not reached that point in their trajectory. Both El Salvador and Ecuador tacitly stated that they were in favour of an international legislation by continuing the discussion on merits. El Salvador opined that there was some degree of good faith involved and that was unavoidable in the pursuit of the desire to facilitate the sharing of knowledge. Greece stated that limitations and exceptions should only be applicable when an additional copy is not available in the market. Significantly, it stated that libraries and archives could enter into agreements with the rights holders by themselves. A flexible international framework was what Greece was aiming at, not an international legislation that went beyond national legislation. Both Greece and the EU suggested using the EU Copyright Directive as a starting point for defining libraries and archives. It asked for the flexibility it already had within the EU framework to be respected. Italy stated that it saw no international interest in a transnational agreement on exceptions and limitations. India emphasized the point that there was an international interest in preserving the culture of countries. The international dimension was in the context of cross-border cultural exchange. Congo came out in support of an international agreement as well. There was some degree of opposition from Greece that questioned India on why either manuscripts on cross-border cultural exchange had anything to do with preservation. In its opinion, those two goals could be achieved even without the formation of an international agreement on exceptions and limitations. India responded by clarifying that it did not use the example about ancient manuscripts in the context of copyright but the existence of an international interest in the matter of preservation. The issue of preservation of works within a library are for present and future use. This use, in today’s globalized world, is not just for the citizens of that country but for researchers the world over. In order to allow for thus cultural exchange, it was imperative that the copyright of the work not come in the way. Hence, there was the need for an international, and not merely national, legislation on the issue.

On France’s concern about Ecuador’s vague understanding of fair use, Ecuador clarified that this would be the same as in the Berne Convention and the three step test would apply. Finland, Jordan and Senegal then shared their countries’ national experience in this regard.

The Chair concluded the discussion on the first topic by articulating what he saw as a principle that is in the common agreement of all. In order to ensure that libraries and archives can develop their public service of the preservation of works in order to preserve knowledge and heritage, we need exceptions and limitations. Certain circumstances and guarantees are yet to be discussed and disagreements persist but none that threaten the need for a discussion.

Topic 2 – Right of Reproduction and Safeguarding of Copies

The Secretariat noted that there were proposals from the African Group, Brazil, Ecuador, India and the United States.

The EU opened the discussion with the suggestion that the title of this topic should only be focussed on the right to reproduction. This was in light of the nature of the proposals made by the various groups and nations. Ecuador situated the debate on the right to reproduction within the broader framework of limitations and exceptions for libraries and archives. It was imperative, it stated, that a right for libraries be carved out in order to facilitate the important social role they discharge. France added to the concern voiced by the EU in stating that it felt that safeguarding was already covered within the ambit of the previous topic. Brazil responded to this by drawing a clear cut distinction between the first and second topics. The right of reproduction was applicable to libraries while safeguarding was for archives. Both the role of the library and that of the archive merit discussion, it was emphasized, and both should equally be included in the second topic. Senegal supported the idea of an inclusive topic that mentions both the right of reproduction and safeguarding of copies. It stated that a distinct right of safeguarding was crucial at a time when vital cultural artefacts are vulnerable to destruction. The example of the museum in Timbuktu that was ravaged by militants leading to the irreparable loss of invaluable manuscripts was cited in support.

Italy voiced a two-pronged opposition to the very idea of articulating a right to reproduction. First, it stated that allowing for reproduction, even in University libraries, would open the floodgates to copyright violations. It was afraid that copyrighted material would be reproduced within the library which would then lead to that material appearing on for a not envisaged within the rubric of the treaty. Second, it was against the extension of the idea of research to private research. The transmission of the reproduced material to third parties would lead to a loss of revenue to the rights holder in question. To Italy, the latter was even more egregious since the former at least allowed for the possibility of, via the money paid for the reproduction, monetary compensation of the rights holder. The latter however had no room for this to be effected.

Belarus supported the EU position on the exclusion of safeguarding from the present discussions. Further, Belarus stressed that it wanted a caveat to the exception for scientific and educational research. It wanted the kind of material that would fall under the exception to be limited to “just articles or short works or excerpts from books” since “the student or researcher probably doesn’t need the whole book”.

Brazil assuaged the concerns of the right holders by pointing out that its proposal in paragraph 2 makes national legislation the focus. Fuether, it added that with respect to the international dimension to the rights, the GA had already stated that there would be an “international legal instrument”. Therefore, the multilateral nature of both the subject matter and scope of the negotiations is beyond the pale of doubt.

The representative from the International Council of Museums noted that all of the rights were equally applicable to museums as well. Very often, museums suffered from a lack of uniformity and harmonization of rules across multiple jurisdictions. This was the need it saw for an international treaty on the issue.

The Chair summed up the discussions. Despite the emergence of any sort of consensus, most countries had agreed for a need to have exceptions and limitations for libraries and archives. Further, a right to reproduction of works for libraries was recognized to facilitate the reproduction of certain works under certain conditions for the purposes of research. The scope of none of these terms have been agreed upon by states nor has there been much agreement on whether this extends to distribution of the material and to what extent. The EU and the USA mentioned that they did not think there was a need for an international agreement on this and the GA wording was not binding in any sense.

Topic 3 – Legal Deposit

The Secretariat noted that there were proposals from the African Group and India on this. This was not received very warmly by the delegates. Most thought it was out of the place in the current discussions. The US opposed the need for any discussion at the international level since the issues in question were codified in domestic law to varying degrees. Therefore, it could not be said that it was “ripe for harmonization”. Colombia found the concept of legal deposit “strange” in a document on exceptions and limitations.

Topic 4 – Library Lending

The Secretariat noted that there were proposals from the African Group, India, Brazil, Ecuador and Uruguay.

Ecuador explained in great detail that the reason behind this was to allow for libraries to lend copyrighted works to its users or to another library. Very often, research necessitates the movement of the physical copy of a particular work. In other instances, the presence of a particular copyrighted work in a specific library has great symbolic and cultural value, apart from its patent value for research activities. In furtherance of its earlier objections, Italy explained that lending could also lead to egregious copyright violations. Along these lines, it objected to the idea of digital lending since it went against the grain of lending because returning a digital copy was not possible or meaningful. The International Federation of Libraries, representative from civil society, pointed out that there were technological tools that would prevent the unintended and harmful proliferation of lent digital copies. Digital lending could take place by passing along a password encrypted digital copy that would expire after a set period of time.

Greece furthered the harm that this would have on copyrighted works by asking why anybody would want to get the original if lending is applied to the realm of films via digital transmission. Responding to the African Group proposal, it asked how this was in conformity with the three step test. The US responded by drawing a positive causal link between lending and commercial purchase of the product. Again, the Chair summed up by stating that agreement was that exceptions and limitations must extend to library lending but agreement on the scope and nature of this extension evaded consensus.

Additional Links

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WIPO Standing Committee on Copyright and Related Rights (SCCR) 26th Session- Consolidated Notes (Part 1 of 3)

nehaa — 2014-03-20T04:49:55Z

From December 16 to 20, 2013, the Standing Committee on Copyright and Related Rights (SCCR) of the World Intellectual Property Organization (WIPO) met for the 26th Session. This blog post (Part 1 of 3) summarizes Days 1 and 2 of the proceedings of the 26th SCCR, based on my notes of the session and WIPO's transcripts.

Many thanks to Varun Baliga for putting this together, and to Alexandra Bhattacharya of the Third World Network for her notes and inputs.

26th SCCR – Consolidated Notes of the Proceedings

Day 1
There are three salient issues outlined as part of the agenda – i) work towards a treaty for the protection of broadcasting organizations, ii) exceptions and limitations for libraries and archives and for iii) educational and research institutions and for persons with other disabilities. [1] The number of days to be spent deliberating on each issue was also outlined – two days each on the first two issues and one day on the last issue i.e. exceptions and limitations for educational and research institutions.

The Chair of the SCCR was elected to be Mr. Martin Moscoso, head of copyright for Peru and Chair of the Drafting Group for the Marrakeech Treaty.

Opening Statements by Regional Coordinators
Trinidad and Tobago
The representative commenced his speech by pledging the commitment of the Latin American and Caribbean group of states to work on limitations and exceptions for libraries and archives, educational and research institutions and for persons with other disabilities. It emphasized the need for coherence between the activities of this group and the Millennium Development Goals of the UN and the Development Agenda of WIPO. Effecting the vision articulated by the agenda of this SCCR will help bring about this coherence. Finally, he added that the Group wished to discuss the broadcasting treaty on the basis of the mandate offered by the 2007 General Assembly. This mandate was to pursue a “signal-based approach” to the drafting process of any new treaty.

Poland
On behalf of the Central European and Baltic states, the representative reaffirmed the group’s support for establishing standards for the protection of broadcasting organizations in the form of a binding treaty. To this end, the Group put forth its proposal for a Diplomatic Conference in 2015 to the end of negotiating and implementing such a treaty. Finally, best practices were also emphasized and, pertinently, the Group indicated that it understood that the digitalized and globalized business and information economy of the contemporary necessitated a licensing of rights that was adequately reflective of its needs.

Japan
On behalf of Group B, Japan emphasized the importance the Group placed on text based discussions to the developing treaty mechanism for the protection of broadcasting organizations. It noted that any further understanding or future negotiations must rest on a common understanding of critical foundational issues such as definitions, scope of application of the instruments and the spectrum of rights or protections to be granted. Finally, an offer to share experience for the optimum functioning of limitations and exceptions was made. It was the opinion of Group B that the extant copyright framework enabled the limitations and exceptions to play out both in the digital and analogue world.

Bangladesh
On behalf of the Pacific Group, Bangladesh underscored the importance of situating all countries’ concerns and deliberations on the bedrock of the social and economic development needs of the Pacific Group nations. It identified the responsibility of countries to ensure that the limitations and exceptions were articulated in a manner that copyrighted works were made available to individuals in need. Thus, its vision was for an inclusive and comprehensive framework that catered to the needs of all stakeholders, particularly the most vulnerable and needy. To this end, it saw new international legal instruments as the means.

Russia
The Russian representative supported the 2015 Diplomatic Conference time frame and emphasized the value of transparency throughout the course of the proceedings.

Algeria
On behalf of the African Group, the signal-based approach was affirmed as the basis for any treaty. The needs of the developing countries were also given special importance. While the exchange if best practices and experience is helpful, the Group does not see it as a substitute for tangible, binding treaty provisions.

European Union
Representative called for the provisions of the Marrakeesh Treaty to be implemented. The existing treaty framework was understood to be sufficient for the full realization of the limitations and exceptions in the various realms envisaged by the outlined agenda. It was necessary, it opined, for copyright to continue to remain a key incentive for creative processes. In light of this, no further international legal instruments were necessary. Finally, the licensing of rights was also within the scope of this body.

Protection by Broadcasting Organizations
The working document for the treaty for the protection of broadcasting organizations[2] was declared to be the basis for any future text-based deliberation.

Proposal by Japan – SCCR/26/6[3]
The Representative outlined the purpose behind the proposal at the very outset as a step forward from the common understanding regarding the privacy of the broadcasting towards establishing the contours of the scope of application. The proposal was for the introduction of Article 6bis that included two things – first, that signal transmitted over computer networks be included within the aegis of the treaty with an exception carved out for on demand transmission signal and second, flexibility for states in deciding to afford protection for transmission signals over networks by the broadcasting organizations; in other words, the idea of national treatment in the realm of transmission signals.

While welcoming the Japanese proposal, the US Representative noted that the text was still open to changes. Given limited time for deliberations on this, he culled out three points of focus that would aid a streamlined approach to the text: beneficiaries of protection, objects of protection and the scope of the rights.

The EU had two questions directed at the Japanese proposal: whether the two alternatives proposed by Japan (simultaneous and unchanged transmission) have a different or same meaning and whether the nature of the protection is an entirely optional one or at least partially mandatory? Japan later clarified that if the former alternative had webcasting as subject to the protection of the treaty and the latter used the scope of application of this treaty.

Iran highlighted the issue of conflict of treaty protections with the legitimate interests of other stakeholders and urged that this conflict situation should never arise. Further, it added that the definition of broadcasting should not be an anachronistic one and should adapt to the needs of today’s broadcasting organizations and should, in no way, hinder free access to knowledge and information by society.

Venezuela adopted a diametrically opposite stance to most other countries on the issue. It was not of the opinion that broadcasting organizations are entities worthy of rights protection. It stated that the treaty seemed to be more for the benefit of multi-national organizations rather than member states and its citizens.

Day 2
The Chair outlined the agenda of the meeting as comments on Articles 6 and 7 which is to do with the scope of the treaty and beneficiaries respectively. Further, it was also put forth that the session would attempt to resolve and break common ground on the various discussions had in the regional groups in the previous day. Finally, deliberations would be focussed on Article 5 followed by Article 9.

The Japanese delegate outlined the conclusions of his groups’ deliberations. They want both beneficiaries and broadcasting to be included within the scope of the treaty. The country is of the view that all obligations should be made optional rather than obligatory. There is also general consensus, subject to final wording and definition of on demand, for an exceptions to be culled out for on demand transmission. Belarus expressed its wish for the scope of the treaty to be extended to both broadcasting and cablecasting organizations. It states in no uncertain terms that the signal should be protected. The proposal was to use the terminology broadcasting organizations and rights holding organization. Signals transmitted over satellite must also be protected in the model envisaged by this Group. Its application to the internet was also affirmed; pertinent, since this is a sticking point between the views of the nations and that of important third party stakeholders to this deliberative process. It did mention a clear caveat that these rights should, in no way, affect the rights of the author of the work or that of the users. Responding, in some sense directly to the words of the Venezuelan delegate’s comments the previous day, the Belarusian delegate stressed that his Group does support the idea of conferring rights on broadcasting organizations.

India reminded the nations present that the 2007 mandate, on the basis of which this meeting was being conducted, was for work towards a treaty for the protection of broadcasting and cablecasting organizations using a signal-based approach. A question was raised as to whether the current discussion transcended the limits of this mandate. Chair noted this observation and asked for the views of other states’ on the matter of mandate. The response of the delegate from Trinidad and Tobago on behalf of the group of Latin American and Caribbean states was non-committal in his answer as he briefed the chair about the difference of opinion on this matter within his group.

Moving on to the scope of the application of this treaty and the beneficiaries, it was the view of the CEBS Group, as articulated by the Polish delegate, that the protection afforded by the treaty should be effective, contemporary and technology neutral, else its purpose would be defeated by its obsoleteness. It reiterated that the transmission via the internet must also be included within the scope of the treaty, because that is a major route of circumvention that could be used to undermine the raison d’etre of the treaty. It was also of the opinion that the difference of opinion on webcasting could be overcome using the opt-in system envisaged by the Japanese proposal. CEBS was also of the firm view that, notwithstanding any foundational disagreements, those on demand transmissions that are based on multiple transmissions at the same time should be included within the scope of the protection. On behalf of the African Group, Senegal concerned about questions of mandate. It said that the strict, textual or broad, liberal interpretation of the words of 2007 mandate should be a sine qua non to any further deliberations. The Chair noted this concern and said that the floor was open to this issue as well. The EU stated that simulcasting should be the basic minimum and obligatory minimum, of any protection. It stated that it was open to discussing the extension of the protections to other transmission as its saw merit in such extension. Finally, it clarified that since current discussions were on transmissions and the scope of protection they were well within the 2007 mandate – protection of broadcasting and cablecasting organizations in the traditional sense.

The Chair then turned over the floor for comments by individual countries. Senegal commenced by posing a question to Belarus on the nature of reservations that it envisaged in light of its proposal to protect transmissions, no matter what its nature. Belarus responded that the protection definitely extends to transmissions over the internet but that does not preclude a discussion on deferred retransmissions. Reservations should ideally be outlined be provided for in the treaty itself. However, they can also be in the form of national legislation but it made it clear that such a stance would be a compromise for its Group and would be considered only if nations thought it necessary.

The floor was yielded to Canada. It noted that it is encouraged by the deliberations it had witnessed so far surrounding the various proposals received. It emphasized the value of the optional approach envisioned by Japan, as it embodied the critical component of successful negotiations – the embracing and incorporation of difference of opinion. Russia underscored its support for the unified approach of Belarus. Russia also wished to implement the kind of model that was in the Audiovisual Treaty and the Marrakeech Treaty. It wanted a reservation in the treaty itself that would establish a minimum standard of protection for cablecasting organizations as per national legislation. This would balance out the views of those in favour of an optional system against those who prefer an entirely mandatory one. Mexico welcomes the Japanese proposal and seemed to be generally in favour of it. Australia outlined three distinct issues. It was in favour of protection of transmission over the internet and saw simulcasting as a minimum obligatory protection. Its support for the Japanese proposal would depend on the definition of on demand services. Finally, Australia underlined that this entire discussion should be careful in how it understood the idea of traditional broadcasters and cablecasters. Keen to introduce an air of pragmatism to talk about the 2007 mandate, Kenya pointed out that the concept of transmission has undergone a change since 2007 and since the mandate was one that was conferred by the countries present at this discussion, there was no need to be very rigid about it. It wanted a technology neutral approach. Kenya was also keen on clarity on whether this international treaty was meant to build in existing international protections or was intended to be a stand-alone replacement for any protections that may exist for certain or all countries. It welcomes the flexibility that the Japanese proposal offered. The discussion veered in the direction of mandate yet again as India noted that any change to the mandate must be done by the GA alone. Else, the reinterpretation could be in such a manner as to allow for a treaty to emerge under the rubric of this mandate with countries reserving the freedom to enter into another treaty on the same matter in the future. It spelled out that it was crucial to remain within the confines of the GA mandate through the course of these proceedings.

The US delegate opined that the proceedings were completely in conformity with the mandate of the 2007 General Assembly. It reiterated its 2007 desire to have a clear common definition of a broadcasting and cablecasting organization. Notwithstanding that, simply because of a different mode of transmission, internet and webcasting do not fall outside the ambit of protection. As far as the signal based approach is concerned, the US interpreted that to mean the signal itself and nothing to do with the content – an issue the nations are grappling with at present.

Further, the delegate suggested a refocus on the prime problem facing broadcasters i.e. signal piracy. The suggestion is to give the broadcasters control of the retransmission. This would avoid protection for the content being broadcast and would not fall into the trap of post-fixation rights. An argument was also made for retransmission over any medium in a technologically neutral system. Such retransmission would be limited to simultaneous or near simultaneous (a term that needs definition) only to the extent necessary where the delay is meet technical requirements of delivery or to account for time differences. This would also include prebroadcast signal. There are clear advantages to this approach, as noted by the delegate

Short and simple.
Avoids a proliferation of superfluous rights.
Dos not overlap with the rights in content and does not create additional, unnecessarily layers of protection and authorization.
Affirms and codifies the kind of protection that broadcasters require to fortify against signal piracy.
Greater range of rights that could also be codified at the domestic level.
Could avoid the need for any defined term whatsoever.
The potential impact on consumer or private use also covered.

Japan adopted a self-confessed cautious approach to obligatory protection for transmission across computer networks due to the absence of a unified domestic viewpoint on the matter. South Africa was also of the opinion that the protection should not go beyond broadcasters and cablecasters. Colombia, however, was of the opinion that the protection should cover both traditional and non-traditional signals due to the advance in technology in the future that the treaty must anticipate. A broad and flexible approach was therefore preferred by this delegate. India expressed a desire to introduce an alternative.

Afternoon Session

Inclusion of transmission over the internet within the scope of the treaty
Whether or not simulcasting is within the mandate of this meeting
Inclusion of transmission of original programming by webcasting in the treaty
Deferred and unchanged transmission of broadcasting programmes within transmission over the internet

These four topics have witnessed some form of input or discussion thus far.

Comments on Article 9
Article 9 relates to protection of broadcasting organization and embodies two alternatives – A and B. Alternative A provides for a short list of exclusive rights, a limited right to authorize including retransmission of signal to the public by any means. Alternative B provides for a broader list of exclusive rights, including post-fixation rights and the exclusive right of fix and right of retransmission by any means and making available to the public.

In response to the US proposal articulated earlier, India put forth an alternative.

On the table for comments at this juncture are the US Proposal, the Indian alternative and the alternatives A and B to Article 9.

The EU stated that its position would fall closer to Alternative B than A. It was important for the EU to have broad rights of retransmission of broadcasts on all platforms. Retransmissions should be both simultaneous and based on fixations. They also wanted fixed broadcasts – the right of retransmission where the recipient pf the transmission chooses the place and the time of such transmission – to be included within the treaty. With respect to performance of broadcast signals ij places accessible to the public, the EU stressed that it should be limited to places accessible to the public on payment of an entrance fee as envisioned by the Rome Convention. Protection for prebroadcast signals was also sought, thereby covering a comprehensive list of protections.

The EU wanted to know whether the near to simultaneous transmission would be included within the US proposal. It thought the US proposal was based on a single right and was narrow vis-à-vis the EU one, but it expressed a willingness to engage. On the Indian proposal, the EU wished to enquire whether computer retransmissions would be protected against, given its ease.

Ecuador stated that it wished to add “and cablecasting” to India’s proposal Article 9(1)(i) after the mention of traditional broadcasters. India indicated that this addition was agreeable.

Japan mentioned that Alternative B was preferable to it since it had flexibility built into it thereby allowing for better harmonization and incorporation in the domestic law. Further, it stated that signal piracy had three major classifications – unauthorized access or useof prebroadcast signal, programming carrying signals and fixed broadcast. Finally, it clarified that simultaneous and near simultaneous transmission are protected under the Japanese proposal.

South Africa had two quick comments – that it was interested in the US proposal and preferred Alternative B. The EU also noted with interest the Indian proposal and expressed keen interested to engage with the same.

Both Senegal and Poland affirmed their preference for Alternative B in the deliberations on Article 9.

Iran steps in and articulates the stance that India has taken in a cogent manner. It noted the concern that if the content owner does not grant the right to broadcast over a computer or internet, then piracy could result in the absence of protection for the broadcasting organization. It is important to understand that a broadcasting organization is the owner of the signal. Therefore, if the broadcasting organization is not allowed to rebroadcast or retransmit over certain networks due to the contract then this would defeat the purpose of the treaty. Critically, this point is to do with the need for affirming the right of the broadcaster to prevent his own signal from getting used elsewhere without authorization.

India then went to make two critical clarifications on definitions. Broadcast means the transmission of a set of electronically generated signals by wireless and carrying a specific programme for conception of the general public and it should not include the transmission of signals over computer networks. Broadcasting organization means the legal entity taking the interior of packaging, assembling, scheduling of the programme and converting of the signals with the authorization of the owner of the copyright and related rights for broadcast for the reception of the public. Article 5 of the Indian proposal was distributed to all members and comments were invited. The meeting was adjourned to give time to the regional coordinators.

[1]. http://www.wipo.int/edocs/mdocs/copyright/en/sccr_26/sccr_26_1_prov.pdf

[2]. http://www.wipo.int/edocs/mdocs/copyright/en/sccr_24/sccr_24_10_corr.pdf

[3]. http://www.wipo.int/edocs/mdocs/copyright/en/sccr_26/sccr_26_6.pdf

Meeting Documents for the 26th SCCR are available at this link.

Videos/Webcast of the 26th SCCR can be seen here.
CIS Statement on Limitations and Exceptions for Education, Teaching and Research Institutions and Persons with Other Disabilities here.
CIS Statement on the proposed treaty for Limitations and Exceptions for Libraries and Archives here.

For more details visit http://editors.cis-india.org/a2k/blogs/wipo-sccr-consolidated-26-session-consolidated-notes-part-1

004: A License to Share

nehaa — 2014-03-20T05:38:34Z

In this blogpost Devika Agarwal, a 4th year student at Dr. Ram Manohar Lohiya National Law University, Lucknow, takes a first look at the Creative Commons 4.0 Licence.

With the increasing amount of information being uploaded online every day, it becomes imperative to facilitate the sharing of this information legally. Creative Commons (CC) license is a tool developed especially with the objective of allowing widespread dissemination of information in a manner so as not to infringe the copyright of a person over the work.

A CC license is a valid license. It is ‘non-exclusive’ in nature; this means that the author of a work is free to enter into a different licensing agreement with anybody he wishes despite holding a CC license (the different licensing contracts must also be ‘non-exclusive’ in nature). Simply put, licensees of a CC license will be governed by the terms of the CC license unless they have a different agreement with the license holder.

In India, works licensed under the CC license include digital copies of educational material by NCERT.

With the first version of the license being published in 2002, Creative Commons has witnessed a number of changes to help serve the needs of internet users better. Version 4.0 of the Creative Commons License was released on November 25, 2013.

A more global license

What sets the latest version of the Creative Commons license apart from its precursors is the fact that CC license 4.0 is an ‘international license’. The earlier versions of CC license required the license to be “ported” to the different jurisdictions; ‘porting’ was a process which involved the translation and legal adaptation of CC’s core license suite (also known as ‘generic’ license suite’ ) to conform to the languages and copyright laws of individual jurisdictions). This means that earlier one had to obtain a CC license ported to one’s country; the “ported version of the license” was a modification of the generic CC license, suited to meet the copyright requirements of a particular country.

The CC license 4.0, on the other hand, is an international license, i.e., the 4.0 license is ‘jurisdiction neutral’ in nature and a single version of the license exists for all persons.

Sui generis database rights:

The CC license 4.0 also provides explicitly for protection to sui generis databases in jurisdictions which recognize copyright related to sui generis databases. Sui generis databases were not expressly covered by the earlier versions of the CC license. (India does not extend copyright protection to sui generis databases).

Non-attribution

The one element common to all the CC licenses is ‘attribution’ or acknowledgement of the licensor as the author of the work by “giving appropriate credit and providing a link to the license. Where the earlier licenses provided that a licensor may request a licensee to remove attribution from adaptations of the work (in order to preserve anonymity), the 4.0 license extends the right of ‘non-attribution’ of a licensor to works which have not been adapted.

This right of attribution is recognized under section 57 (1) (a) of The Copyright Act, 1957 in India which states that “even after the assignment either wholly or partially of the said copyright, the author of a work shall have the right to claim authorship of the work.”

30-day period to remedy breach of CC license terms

A significant change in the CC 4.0 version is that unlike the earlier licenses which terminated the CC license in case of failure to comply with the license terms, the 4.0 licenses allow a 30-day period to the licensees to remedy the breach, after which the license shall resume.

The terms incorporated in the 4.0 license are aimed at making the license more compatible with the copyright laws of various jurisdictions and at the same time ensure that information can be shared with more freely, thus preserving the spirit of Access to Knowledge.

(Creative Commons re-launched its India chapter in November last year.)

Similarly, right of ‘non-attribution’ is recognized under section 21 of The Copyright Act, 1957 which provides for relinquishment of copyright by the author. This may be done “by giving notice in the prescribed form to the Registrar of Copyrights or by way of public notice.” A CC license where attribution has been removed at the instance of the licensor will serve as a ‘public notice’.

For more details visit http://editors.cis-india.org/a2k/blogs/a-license-to-share

CIS Statement on Limitations and Exceptions for Education, Teaching and Research Institutions and Persons with Other Disabilities

nehaa — 2013-12-30T06:17:50Z

Nehaa Chaudhari on behalf of the Centre for Internet and Society (CIS) made this statement at the WIPO-SCCR on December 20, 2013.

The Centre for Internet and Society believes in the universal access to knowledge/education for all, without the barriers of time, distance and costs. We believe that information and communication technologies provide us with the opportunities to achieve this universality for ALL learners, both, through formal and informal institutions and learning environments, in both, digital and non digital formats.

The adoption of limitations and exceptions for education and research is particularly significant from the perspective of developing and least developed nations, where prices of books and other learning material are high not just in absolute terms, but where consumers often have to commit higher proportions of their income to have access to these materials.

We are in agreement with some of the delegations before us, among others with Ecuador, Kenya and the African Group in our belief that the present international legal framework, does not sufficiently address the opportunities presented by these information and communication technologies. The compulsory licensing provisions in the Berne Appendix are complex, narrow, unworkable and of little value to developing nations.

We believe, therefore, Mr. Chair, that there is a need to adopt open ended exceptions for education, teaching and research compatible with the digital environment. In our opinion, Mister Chair, a narrow construction and application of the three step test to these limitations and exceptions would not be the ideal way forward especially for developing and least developed countries. We believe Mr. Chair, that these limitations and exceptions should be those that harmonize national practices; prescribe an international standard, facilitate a cross border exchange of books and other learning material.

Thank you, Mister Chair.

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

CIS Statement on the proposed treaty for Limitations and Exceptions for Libraries and Archives

nehaa — 2013-12-30T06:46:28Z

Nehaa Chaudhari on behalf of the Centre for Internet and Society (CIS) made the statement at the WIPO-SCCR on December 18, 2013.

CIS would like to congratulate the Chair and the Vice Chairs on their election; and thank the Secretariat and the entire Committee for the hard work being put in this week at the SCCR.

The Centre for Internet and Society, in agreement among others, with the GRULAC, the African Group, Tunisia, Senegal, Sudan and India, believes that an international instrument to govern exceptions and limitations for libraries and archives is critical, especially from the perspective of developing and least developed countries, to ensure the development of an international copyright system that balances rights of both the right holders and the users.

We believe that such an international instrument would serve a two fold purpose- one, of protecting copyrighted works, two, of providing greater access to these materials, and the dissemination of knowledge, culture and information; and would be in furtherance of WIPO’s Development Agenda.

On the question of these exceptions being a part of national legislations alone; our submission in three fold:

First, as stated by the delegation of Tunisia, that national legislations lack uniformity on the issue of exceptions and limitations for libraries and archives- and in this context, the development of this international instrument that we are discussing today, is particularly important. Second, as stated by the African Group, such an international instrument would also foster a system for cross border exchange; with limitations and exceptions operating at the international level. Third, as mentioned by KEI in their statement, discussions here are likely to influence law making, specifically the development of limitations and exceptions for libraries and archives at the national level.

Specifically, Mister Chairman, the Centre for Internet and Society would like to address three specific issues from the Working Document SCCR/26/3 before us today.

First, On the three step test. We believe that in order to truly facilitate access to knowledge and information, libraries and archives should have the benefit of any and all flexibilities. Therefore, a narrow interpretation of the three step test should NOT be adopted.

Second we believe that the protection of works in digital form as well as online libraries and archives is critical from an access to information and education perspective, as was noted by the delegation from Senegal. We believe therefore that the transmission of works in in a digital form as well as any internet service providers engaged in facilitating access to materials under this proposed instrument should also be granted protection.

Third, libraries, archives, educational, research and teaching institutions should be allowed to import and export copyrighted works and parallel trade in these works should be allowed.

Thank you, Mister Chair.

Video

Videos of the WIPO's proceedings from December 16 to 20 are available online. CIS' statement is in the video titled SCCR/26- Wed18 - English - Afternoon session. The length of the video is 02:51:05. The statement is available in this video from 22 minutes, 56 seconds- when the Chair recognizes CIS.

For more details visit http://editors.cis-india.org/a2k/blogs/cis-statement-treaty-for-limitations-and-exceptions-for-libraries-and-archives

WIPO Broadcast Treaty- SCCR 26 : Proposals Introduced

nehaa — 2013-12-30T15:48:59Z

India and the United States introduced proposals for discussion at the ongoing session of the SCCR.

At the ongoing session of the 26th SCCR, India and the United States have introduced proposals for discussion:

India introduced this proposal for Article 5 (Definitions)
India introduced this proposal for Article 6 (Scope of Application)
Japan introduced this proposal as Article 6 bis
India introduced this proposal for Article 7 (Beneficiaries of Protection)
India introduced this proposal for Article 9 (Protection for Broadcasting Organizations)
The United States introduced a Proposal for Discussion for Article 9 (Protection for Broadcasting Organizations). The delegation was keen to clarify that this was not a “US Proposal”; but merely a “Proposal for Discussion”

For more details visit http://editors.cis-india.org/a2k/blogs/wipo-broadcast-treaty-sccr-proposals-introduced

CIS Comments to the Ministry of Human Resource Development on the Proposed WIPO Treaty for the Protection of Broadcasting Organizations

nehaa — 2013-12-07T07:57:50Z

As a follow up to a stakeholder meeting called by the MHRD on the WIPO Broadcast Treaty, CIS provided written comments on the Working Document for a Treaty on the Protection of Broadcasting Organizations adopted by the Standing Committee on Copyright and Related Rights (SCCR) at its twenty-fourth session, Geneva, July 16 to 25, 2012.

On the November 27, 2013, the Ministry of Human Resource Development, Government of India conducted a Stakeholders Meeting on the proposed WIPO treaty on the Protection of Broadcasting Organizations at New Delhi. Nehaa Chaudhari represented CIS and commented inter alia on the need for a Broadcast Treaty, the necessity to confine the treaty to a signals based approach, the term of protection for broadcasting organizations, and the protection of the general public interest. At this meeting, with representation from the government, academia, industry bodies and civil society, there was a general consensus on the adoption of a treaty that would most further India’s national interest, and on the treaty being limited to a signals based approach, in consonance with the 2007 mandate of the WIPO General Assembly.

In furtherance of the feedback process initiated at the aforesaid meeting, CIS presents this detailed clause-by-clause submission in response to the proposed WIPO Broadcast Treaty. This submission was prepared by Nehaa Chaudhari, on behalf of CIS.

Many thanks to Pranesh Prakash, Snehashish Ghosh and Bhairav Acharya for their inputs and discussions, and to Varun Baliga for his research.

Please click (here) for CIS’ comments. For the Working Document referred to in the Submissions, please "click here".

For more details visit http://editors.cis-india.org/a2k/blogs/comments-to-hrd-ministry-on-wipo-treaty-for-protection-of-broadcasting-organizations

Feedback on the Framework on OSS Adoption in E-Governance Systems

nehaa — 2013-10-28T10:35:04Z

CIS gave its feedback to the Department of Electronics and Information Technology (DeitY) on the Framework on Open Source Software Adoption in E-Governance Systems on October 26, 2013.

In September, 2013, the DeitY invited comments on the Framework on the proposed adoption of Open Source Software in E-Governance Systems (available at https://egovstandards.gov.in/Public_review_Framework_on_oss).

The Framework, published in September, 2013, provides a set of recommendations and procedures to encourage, manage and increase the adoption of Open Source Software in E-Governance systems. Further, the Framework goes on to discuss various important issues, including the deployment of unified software for all major devices, with the utilization of a standards based web browser, the integration of OSS with other on-going initiatives, and the development of an eco-system consisting of institutions, industry, academia and other key stakeholders to promote and adopt OSS. The envisaged Centre of Excellence on OSS to realize this Framework is noteworthy.

CIS commends the DeitY for this initiative, and appreciates the opportunity to provide feedback on the Framework.

The text of CIS Feedback is reproduced below:

PRELIMINARY

This submission presents comments from the Centre for Internet and Society[1] on the Framework on Open Source Software Adoption in ‘E-Governance’ (“Framework”), published by the Department of Electronics and Information Technology, Ministry of Communications and Information Technology, Government of India (DeitY).[2]

The Framework, published in September, 2013, provides a set of recommendations and procedures to encourage, manage and increase the adoption of Open Source Software in E-Governance systems.[3] Further, the Framework goes on to discuss various important issues, including the deployment of unified software for all major devices, with the utilization of a standards based web browser, the integration of OSS with other on-going initiatives, and the development of an eco-system consisting of institutions, industry, academia and other key stakeholders to promote and adopt OSS. The envisaged Centre of Excellence on OSS to realize this Framework is noteworthy.

CIS commends the DeitY for this initiative, and appreciates the opportunity to provide feedback on the Framework. CIS’ comments are as stated hereafter.

COMMENTS

Scope and Applicability

In the section pertaining to Scope and Applicability, the Recommendation proposed is to give priority to preferred areas for the adoption of this Framework.[4]

It is suggested that the preferred areas alluded to aforesaid be identified and disclosed. It is further suggested that the Framework identify a timeline for operationalization of all of the proposed recommendations, including the identification of the preferred areas and the adoption of the Framework in these areas. It is also suggested that a time frame be provided for the implementation of the Framework to all other areas, besides the preferred ones.

Preamble

In the section titled Preamble, the Recommendation proposed is to consider OSS along with Closed Source Software.[5] considering the socio- economic and strategic benefits provided by OSS.[6]

CIS appreciates the welcome measure in considering OSS alternatives along with CSS. While viewing this as indeed the first step in the right direction, CIS would suggest the development of a mechanism and the adoption of further measures in order to migrate entirely to an entirely OSS based system; with preference being given to OSS between OSS and CSS.

Factors Influencing the Adoption of OSS in Government

In the section dealing with Factors Influencing the Adoption of OSS in Government, the Framework states that the influencing factors are to be prioritized on the basis of feedback from managers/users.[7]

CIS proposes that it may be clarified who the managers/users being spoken of are, and what is the type and manner of feedback expected for the evaluation of influencing factors. CIS suggests that feedback also be sought in a more inclusive and holistic manner, after seeking consultation from other stakeholders as well.

Device Drivers

Under the section dealing with Device Drivers, the onus to ensure availability of device drivers for GNU Linux Operating Systems has been placed on the users.[8]

CIS strongly suggests that this be modified to state that the availability of device drivers for GNU Linux Operating Systems must be assured by vendors as a part of procurement requirements.

Procurement Guidelines

Under the section dealing with Procurement Guidelines, it has been recommended that vendors must provide justifications for excluding OSS in their response to proposals.[9]

CIS suggests that vendors be given a time frame within which to ensure compliance with the Framework, and thereafter be required to include OSS in their response to proposals, post which justifications ought not to be considered, as a matter of policy, but could be on an exceptional case to case basis.

CONCLUDING OBSERVATIONS

CIS welcomes the initiative of the DeitY towards the adoption of OSS in E-Governance Systems. This Framework, while indeed addressing the important issues associated towards the end of adoption of OSS in E- Governance, would be further strengthened by addressing the concerns enumerated above.
CIS is thankful to the DeitY for the opportunity to provide feedback on this Framework. As a non-governmental research organization working in the areas of Openness[10] and Access to Knowledge.[11] CIS appreciates this effort by the DeitY, and would be privileged to work with the Government on this and other matters in these areas.

[1]. See www.cis-india.org (last accessed 26 October, 2013).

[2]. See https://egovstandards.gov.in/system/files/PublicReviewDocument/Framework_on_OSS_Ver0.8.pdf (last accessed 26 October, 2013).

[3]. Hereafter referred to as OSS.

[4]. See Page 9 of the Framework.

[5]. Hereafter referred to as CSS.

[6].See Page 12 of the Framework.

[7].See Page 16 of the Framework.

[8].See Page 20 of the Framework.

[9].See Page 22 of the Framework.

[10].See http://cis-india.org/openness (last accessed 26 October, 2013)

[11].See http://cis-india.org/a2k (last accessed 26 October, 2013).See http://cis-india.org/a2k (last accessed 26 October, 2013).

This submission was prepared on behalf of CIS by Nehaa Chaudhari. Click to download the submission file here. For specific section wise review comments, click here.

For more details visit http://editors.cis-india.org/openness/blog-old/feedback-on-framework-on-oss-adoption-in-e-governance-systems

Mobile Phone Patents: Prior Art Survey

nehaa — 2013-10-24T10:33:36Z

In this blog post, Nehaa Chaudhari discusses a study on a portion of the patent landscape around mobile phone patents, commissioned by CIS earlier this year. This prior art search was undertaken by Rohan George of Samvad Partners, who worked as a Consultant with CIS.

This research was not directly funded by an external agency. The author and CIS bear no responsibility for the accuracy of the research.

The researcher wishes to disclose as under:

As you are no doubt aware, the mobile computing related innovation is probably one of the fastest growing fields over the past 15 years. As a result, a considerable number of applications are being granted across jurisdictions on a daily basis. Therefore, it is entirely possible that, once we have completed a search over a certain topic, new patents would have been granted that cover the same topic to some extent or the other.
It is common for some patent agents to invest significant effort into ensuring that the language of the specification (particularly that of the abstract and the title, the being the first point of search ) should reveal as little about the proposed invention as is statutorily possible. This is encouraged by the fact that there are no strict rules regulating the precise manner of presentation and clarity of abstract and title. Accordingly, certain patents may have been missed due to the choice of language used in the drafting of the specification.

For the above reasons, amongst others, this survey should not be considered to be a comprehensive exposition on the field of mobile computing and mobile telecommunication related patents, but should instead be considered as a survey of patents governing the field.

This study employs among others (and other associated keywords), the following criteria as keywords/search terms for the patent searches: SIM; Micro SD; Camera Phone; Imaging Device, Phone; Image Capture, Phone; Disc Drive, Phone; Flash Memory, Phone; USB, Phone; Liquid Crystal Display, Phone; LCD, Phone; Touch Screen; Wireless Fidelity; Wireless Local Area Network, Phone; Bluetooth, Phone; GPS, Phone; GPRS, Phone; Enhanced General Packet Radio Service; EDGE, Phone; First Generation Phone; 1G, Phone; Second Generation, Phone; 2G, Phone; Third Generation, Phone; 3G, Phone; 3GPP; USB Tethering; WAP, Phone; Wireless Application Protocol; Server Push; MMS, Phone; Qwerty, Phone; Vibration, Phone.

For the list of completed searches, please click here.

For the document containing the details of the prior art search, please click here.

For more details visit http://editors.cis-india.org/a2k/blogs/mobile-phone-patents

The Indian Council of Agricultural Research Adopts an Open Access Policy

nehaa — 2013-09-30T15:03:04Z

In this blogpost, Nehaa Chaudhari discusses the newly adopted Open Access Policy of the Indian Council of Agricultural Research.

Earlier this month, the Indian Council of Agricultural Research (ICAR) adopted an Open Access Policy. Inter alia, this policy requires each ICAR institute to set up an Open Access Institutional Repository (OAIR), with the ICAR to set up a central harvester to harvest the meta data and full text of all the records from the Open Access (OA) repositories so set up. What is interesting from the IPR perspective is that the meta-data and other information of these repositories is copyrighted with the ICAR and has been licensed for research and academic purposes, for using, re-using and sharing. Commercial and other reuse would require the written permission of the ICAR. In a nod to the increasing importance of social media, ICAR’s Open Access Policy encourages its institutes to share their works on public repositories and social networking sites, besides adopting the mandate to have all publications, including its journals placed under Open Access. What might be harder to realize, however, is the publication of their research by scientists and other researchers across ICAR institutes or elsewhere, with publishers that allow self archiving Open Access Institutional Repositories. The ICAR Open Access Policy is available here.

In May, earlier this year, the ICAR had released a draft version of this policy, inviting comments. CIS’ comments had lauded the Policy as being comprehensive, detailed, and as being a positive step in the right direction, and had suggested some possible changes to the same.

It is observed that the adopted Open Access Policy (OAP) differs from the Draft Policy (DP) in certain respects, some of which are a cause for concern, whereas a few others expand the scope of the OAP. First, while the OAP requires that Institutional Repositories be established; the requirement contained in the DP to use Free and Open Source Software which was OAI-MHP compliant has been removed. Given that this is an endeavour to foster openness, requiring the use of Open Source Software was definitely a welcome step sought to be adopted by the ICAR, and its elimination renders the OAP lacking in the spirit of openness to its greatest realizable extent. Further, compliance with OAI-MHP would have ensured interoperability, as noted by us in our comments to the DP, and a failure to utilize this would reduce the accessibility and impact of archived materials. Second, the OAP requires that authors of scholarly articles deposit both, preprints and post-prints of their papers accepted for publication in the OAIR. This is a departure from the position in the DP, which required only preprints be deposited. Given that there is likely to be a difference in content and form of the article between the preprints and post-prints (which are after peer review), the inclusion of both preprints and post-prints in the OAIR is seen to be a beneficial move. Third, the period of embargo while signing copyright agreements with publishers had been envisaged to be six months in the DP, whereas the OAP extends the same to twelve months. It is felt that scientific writing is likely to be time sensitive, and twelve months might be an inordinate delay for its availability in the public domain, possibly reducing its applicability and relevance. Therefore, it is suggested that the earlier embargo period of six months might be the better alternative between the two. Fourth, the OAP incorporates an End Note, that was absent in the DP, which stipulates the time period of three years for compliance with the Open Access initiative, and recognizes the OAP as the first stage of a larger process. Both, the time period for compliance, and the recognition that the adoption of the OAP is but the first stage, are appreciated.

In sum, the OAP of the ICAR, while addressing some of the issues associated openness does leave room for desirability. Besides the suggestions that we had made earlier, other concerns include those reflected in this blog post, particularly regarding the departure from the DP in certain specific instances. Nonetheless, the adoption of the OAP by the ICAR is a welcome move- one that would hopefully be followed by other Government agencies such as the Department of Atomic Energy, the University Grants Commission, the Department of Biotechnology, etc.

For more details visit http://editors.cis-india.org/openness/blog-old/icar-adopts-open-access-policy

The ASSOCHAM International Conference on the "Interface between Intellectual Property and Competition Law"

nehaa — 2013-07-22T05:54:01Z

An international conference on interface between intellectual property and competition law was organized by ASSOCHAM on July 12, 2013 in New Delhi. In this post, Nehaa Chaudhari shares select notes from the conference.

All views expressed are only of the participants and cannot be taken to be those of any organization or the like that they may represent.

D.S. RAWAT- SECRETARY GENERAL- ASSOCHAM- WELCOME ADDRESS

IPR and competition laws in conflict or have provisions (in existing law) that already take care of this possible conflict?
What happens if an IP right holder acquires a ‘dominant position’ by virtue of these rights?
- Abuse of dominant position provisions get attracted if rights are beyond the boundaries of IPRs.
Anti-competitive agreements (and beyond the objective of preventing infringement)- then what happens?

V. LAKSHMI KUMARAN- MANAGING PARTNER, LAKSHMI KUMARAN AND SRIDHARAN- THEME ADDRESS

Trans-border transactions are normally of two types:
(a) trade (in goods and services) - WTO mandate is free trade of goods and services between nations;
(b) investment.
“Free” trade should also be “fair” trade.
Competition law will not question the grant of the IP rights. It will question how you use them, especially when/if you use in a way that is detrimental to competition.
Patent law places many restrictions on what you can and cannot do- these ‘can’t do actions’- if you perform them, you will be scrutinized under competition law.
Cases in US/Europe- challenging patents were withdrawn by ‘compromise’ but agreements really spoke of ‘something more’ promised by the patent holder if the challenging suit was withdrawn- scrutinized by competition law.

NUNO PIRES DE CARVALHO- DIRECTOR, IP AND COMPETITION POLICY DIVISION, WIPO, GENEVA- SPECIAL ADDRESS (nuno.carvalho@wipo.int)

2007- Agenda for Development at WIPO- Committee on Development and IP (CDIP) to supervise implementation of the AD and coordinate with other Committees.
WIPO- as of now, member states do not want to embark on negotiating processes on IP and Competition but rather want to better understand it.
WIPO- 2011-2012- Project on IP and Competition Law.
WIPO Goal- to establish WIPO as a global forum on IP and Competition policy.
Rationale (WIPO)- same as the 3 DA (2007) recommendations.

CHAITANYA PRASAD- IAS, CONTROLLER GENERAL OF PATENTS, DESIGNS AND TRADEMARKS- KEYNOTE ADDRESS

Monopoly- genesis of both IP and Competition Law (IPRs= regulated monopoly= not bad- IPRs= carefully granted essential monopolies regulated by State).
Competition Law and IP have common goals- better technology etc., and also economic growth and better quality of life for consumers.
IPRs- (a) industrial IPRs- GIs, patents, TMs, IDs, etc and (b) non industrial IPRs- copyright and related rights.
Patent Law- grant of Compulsory licences in some situations- Doctrine of Exhaustion of IPRs- domestic or international?- international committee divided on this.
READ- Adams v. Burke- 1873 SCOTUS.
DB- Delhi HC- parallel imports- allowed under Trademark Law?
New York Times- 06/06/13- generic drug market v. patent holder- anti competitive markets- SCOTUS decision.

Standards- especially in communication networks- generally have higher royalties- disclose existence of IPRs and agree to license at reasonable rates- REQUIREMENT.
IP Law- in built mechanisms to address abuse and these are furthered by competition law.
IP + CL- hand in hand for welfare of market and growth of economy.

ASHOK CHAWLA- CHAIRPERSON, CCI- INAUGURAL ADDRESS

“Very rightly” WIPO is not seeking to harmonize regime across nations- this has to be a domestic process of laws/jurisprudence.
Similarities/intersection of IP and competition law:
- IP + competition law- both put a premium on innovation – IP does this directly and competition law because there is a need to do better than other firms.
- Lead to technical and economic innovation.
- Goals – greater good for consumer and society.
Merger Control- crystal gazing on post merger scenario is required. Competition law authorities required to take nuanced approach in fast growing and tech. sectors- ex ante analysis- need to be upfront to scrutinize kind of restrictions being imposed under the deal- need to balance protection of knowledge of the mind with protecting the interests of the stakeholders as well.- this is the CCI approach.

The aforesaid balancing act is also going to be a critical area over the next twenty years- especially for policy makers.
Wider dissemination of advocacy is required.
Question to Chawla- ‘pay for delay’ agreements/reverses payments- our generic companies (what happens to them?)- what happens to the consumers? Is there going to be a study on this by the CCI?- Chawla said that in the generic drugs sector we are already strong- he said that this is going to be an issue Indian manufacturers will have to grapple with eventually (internationally)- but we will take care when it comes here.- Carvalho intervened and pointed out that ‘pay for delay’ agreements and reverse payments were different things.
Question to Chawla- IPR section on the CCI website does not have any content anymore- Chawla said that they will rectify this and understand that the section would be very useful in terms of clarifying the CCI’s stance on this intersection between Competition Law and IPRs.

Technical Session 1- “Balancing IPRs against Fare Practice”- Moderator- Hitesh S. Barot- Senior Intellectual Property Counsel, GE India.
NUNO PIRES DE CARVALHO- DIRECTOR, IP AND COMPETITION POLICY DIVISION, WIPO, GENEVA- THE INTERFACE BETWEEN IP/COMPETITION IN WIPO DEVELOPMENT AGENDA (nuno.carvalho@wipo.int)

Balanced IP- the Foundation of economic democracy.
Trade name- reputation- basis for survival in the market. Trade secret- sets you apart from competitors- IP not all about reputation- IP protects and promotes intangible differences that businesses introduce in their products/services- that is, differentiation. This could be of origin, quality, invention, creation, location, reputation, price etc. this differentiation is behind every IP asset.
What is balanced IP?
- IP in the right dosage- (not too much- examples of too much- IP for unmodified genes/functional signs/or common terms as trademarks.)- (not too little- example of too little- lack of protection for sound/smell designs, tolerance for counterfeit goods and piracy, no protection for new and inventive traditional knowledge etc).
- IP that is not abused.
- IP that is not distorted by external circumstances- regulation distorts competition and therefore distorts IP. Since IP is about differentiation, before innovation it promotes social, cultural and economic freedom. IP is the foundation of any free market economy based on consumers’ and entrepreneurs’ freedom.

PARTHASARATHY R., SENIOR PARTNER, LAKSHMI KUMARAN AND SRIDHARAN- THE INTERFACE BETWEEN IP/COMPETITION IN THE PHARMACEUTICAL SECTOR (partha@lakshmisri.com)

Patents Act- Section 140- certain prohibitions.
Section 107A of the Patents Act appears to provide for international exhaustion.- Delhi HC (2012)- Kapil Wadhwa v. Samsung International extended international exhaustion to trademarks also.
Areas of concern- ‘pay for delay’ agreements- will Section 3(5) of the Competition Act apply?
US- a granted patent is presumed to be valid. India does not envisage such a framework.
Getting a patent and getting the right to practice a patent are very different in patent law.
Acquiring patents by fraud attracts section 4 of the Competition Act.
Unfair pricing- not an offence to have excessive pricing in the US.
Standards- when you develop patents here, you AGREE to compulsory license on a FRAND basis. Only issue then is what are FRAND terms- won’t get injunctions on this issue here in India, since you can prove damages are enough of a remedy- so it all comes down to negotiations.

MIHIR RALE- AVP- LEGAL AND REGULATORY, STAR INDIA PRIVATE LIMITED - THE INTERFACE BETWEEN IP AND COMPETITION LAW IN THE BROADCASTING SECTOR

Overregulation leads to lack of innovation- this is his conclusion.
Content costs rise constantly- recouping them is very hard since channel prices have remained static for about eleven years now- supposed to have been an interim measure by the SC but TRAI is allowing it to continue.
Question by Barot- who decides how to price is going to be something interesting to debate.
(Sort of answering the ,above> question)- Mandatory Sharing Act- share feed w/ Prasar Bharathi- feed here refers to sporting events of national importance- the purpose is to give access to those who have terrestrial network (not cable/DTH)- but provision in the Cable Act says operators HAVE to carry two DD channels- so.. now operators don’t want to carry other (sports) channels, since Team India is available on DD anyway.

HEMANT KUMAR- GROUP GENERAL COUNSEL, ESSAR GROUP- ANTI COMPETITION AND IPR- DIFFERENT MEANS TO THE SAME END?

Can of course recover costs of innovation- (under IP license agreements)- but only up to a reasonable limit.

SANJEEV GEMAWAT- SENIOR VICE PRESIDENT- LEGAL AND SECRETARIAL, DLF RENTCO GROUP- IPR AND COMPETITION LAW- INDUSTRY PERSPECTIVE

The challenge is not competition, but protecting IPRs, given the size of the economy.
How will authorities interpret limits= challenges?
Challenge- threshold limits under Section 5 of the Competition Act- considering size of the economy.
Barot’s comment- soft convergence is emerging as a solution.

Technical Session 2- “Innovation and Competition”- Moderator- Geeta Gouri- Member, Competition Commission of India
BALAZS GARGYA- FIRST SECRETARY, EUROPEAN UNION DELEGATION TO INDIA – INNOVATION AND IPR

Indo EU FTA
- Agreement will recognize India’s access to medicines policies.
- Both sides have shown flexibility.
- All our flexibilities will be untouched.
- Right to compulsory licenses maintained and recognised.
- Agreement not going beyond existing obligations.

J.L.N. MURTHY- GENERAL COUNSEL- ASIA PACIFIC, RED BULL- RECENT CHANGES ON MADRID PROTOCOL

Anand Sharma recently deposited the instrument of India’s accession to the Madrid Protocol.

This is w.e.f. 08/07/2013 in India.

Accession strengthens march towards excellence in IP recognition.

MUNESH MAHTANI- GLOBAL COMPETITION COUNSEL, GOOGLE, U.K.- COMPETITION LAW ENFORCEMENT IN THE HIGH-TECH SECTOR

Challenges for competition authorities:
- Defining markets and assessing market power- increasing market shares may not indicate market power (e.g.- Microsoft/skype)- need to look at actual competitive dynamics.
- Identify abusive conduct.
- Important to distinguish between harm to competitors and harm to consumers.
Existing antitrust laws can deal with high tech. sectors.

MANAS KUMAR CHAUDHURI- CO-CHAIRPERSON, ASSOCHAM NATIONAL COUNCIL FOR COMPETITION LAW AND PARTNER, KHAITAN AND CO., MONOPOLISTIC BEHAVIOURS IN HORIZONTAL AGREEMENTS AND VERTICAL AGREEMENTS

Monopolistic behaviours in horizontal agreements and vertical agreements.
GI agreements- falling foul of Competition Law?
Assignment agreements- terms anti competitive (if any)- then principle of severability of contract will apply.
Function of patents- to reward innovative work of inventor and NOT to protect public from defects. (ECJ decision 15/74).
The beginning of competition law assessment lies where IPR enters the market.

SAMIR GANDHI- PARTNER, AZB & PARTNERS, RELATIONSHIP BETWEEN IPR, MONOPOLIES AND DOMINANCE

IPR and Competition Law are two sides of a coin aimed at furthering innovation.

Under Section 4 of the Competition Act, 2002, you cannot take the defence of “doing so to protect my IPRs’ stance for your actions.

CCI has not yet had an IPR+ competition law ‘meaty’ case yet.

Refusal to license IPRs- competition law cannot say that you HAVE to license, but MAY be construed as anti-competitive if not backed up by sound objective claims.

At what stage are you required to license?

For more details visit http://editors.cis-india.org/a2k/blogs/the-assocham-international-conference-on-the-interface-between-intellectual-property-and-competition-law

Letter for Establishment of Patent Pool for Low-cost Access Devices through Compulsory Licenses

nehaa — 2013-06-27T08:06:50Z

On June 27, 2013, CIS sent a letter for establishment of a patent pool for low cost access devices through compulsory licenses.

M. Mangapati Pallam Raju
Minister for Human Resource Development
Shastri Bhavan
New Delhi 110 001

27 June 2013

Dear Dr. Pallam Raju,

Subject: Establishment of a Patent Pool for Low-Cost Access Devices through Compulsory Licences

We at the Centre for Internet and Society would like to commend you for the progressive stand you have adopted that while the government is committed to low-cost access devices, students should be able to decide “on which device, whether it is a mobile phone or iPad or Aakash or regular com-puter, they access the content”. It is imperative, though, that low-cost access devices (LCAD) be available to students, and thus the Mehta Committee report rightly acknowledges the importance of the Aakash project as central to the National Mission on Education through Information and Com-munications Technology (NMEICT). We propose a solution that would ensure both easy access to affordable devices for students to enable the NMEICT mission, as well as ensure that the MHRD focus more on educational content than devices.

We would urge you to enable access to LCADs by establishing a patent pool of essential technolo-gies (the ‘Aakash patent pool’) through the issue of compulsory licences. There are, at present in-ternationally, thousands of granted patents and tens of thousands of other intellectual property claims in respect of mobile and tablet technologies. The multiplicity of claims and cross-claims makes it impossible to manufacture, without exposure to adverse claims, generic and affordable tab-let devices. As you know, the assertion of multiple adverse and competing intellectual property claims is one of the main reasons that the Aakash tablet project is stalled. Already the multi-billion dollar patent wars in the US and Europe between Apple, Samsung, and other device manufacturers, are coming to India with Ericsson suing Micromax, India’s second-largest seller of phones and tab-lets, for Rs. 100 crore just a few weeks ago.

The establishment of a patent pool of essential technologies will redress this imminent failure and will enable the manufacturing of affordable tablet devices in compliance with the NMEICT. To es-tablish such a patent pool, the current patents applicable to mobile and tablet devices must be com-pulsorily licensed to a common pool and manufacturers who wish to sell their devices at an afford-able price would be allowed, at uniform terms and conditions, to utlise these patented technologies. This will simultaneously ensure that all patent-holders will benefit from royalty payments and that all manufacturers will gain access to the requisite patented technologies in a fair manner without adverse claims. The manufacturers who benefit from the pool could be required to give the Indian government credit by displaying the Aakash logo on their devices.

In order to establish such a patent pool, it is necessary to, firstly, identify the relevant technologies, and all patent-holders of such technologies, and secondly, compulsorily licence the patents in re-spect of the identified relevant technologies to the patent pool for fair and uniform consideration. Once the patent pool is established, rules may be issued to govern access to the pooled patents, regulate the manufacturing process and prevent misuse. The Patent Act, 1970 contains provisions to permit compulsory licensing of patents by the Controller of Patents on an application made in this behalf. Section 84(1)(b) read with section 84(4) of the Patents Act, 1970 enables the issue of a com-pulsory licence in respect of a patented invention if it “is not available to the public at a reasonably affordable price”.[1]

The establishment of a patent pool will directly promote public interest by advancing and deepening education in India and will also facilitate the realisation of the NMEICT.[2]

Establishing a patent pool for tablet technologies will also stimulate manufacturing in the informa-tion technology and electronics sectors in India. The National Manufacturing Policy, 2011 identifies information technology hardware and electronics and telecommunication equipment as industries of strategic significance that demand special encouragement. The Policy calls for “sector-specific pol-icy interventions” in special focus sectors where India enjoys the benefit of cost competitiveness. It is possible that, if implemented, the patent pool and the Aakash project will become global symbols of India's technological ability. While the farsightedness of the Indian Patent Act and policymakers has resulted in India becoming the “pharmacy of the world”, similar farsightedness may now result in India becoming the “electronics hub of the world”.

Forming such a patent pool for affordable access devices will prove to be a huge opportunity for education, and the credit for that would go to the Indian government and to the MHRD in particular. Further, some of the most important patent pools of the past have only come into existence after government intervention, such as the avionics patent pool proposed by the Secretary of the U.S. Navy during World War I and the radio patent pool, also created as a result of intervention by the U.S. Government. For these and other reasons, we urge you to consider establishing a patent pool for technologies relevant to the manufacture of affordable tablets and other similar devices. We will be happy to meet you, at your convenience, to talk about the legal and other issues involved in such a project.

Thank you.

Yours sincerely,

Sunil Abraham
Executive Director

Copies to:

Dr. Shashi Tharoor, Hon’ble Minister of State for Human Resource Development;
Shri Jitin Prasada, Hon’ble Minister of State for Human Resource Development;
Shri Ashok Thakur, Secretary;
Smt. Amita Sharma, Additional Secretary;
Shri Amit Khare, Joint Secretary.

[1].Compulsory licensing has long been favoured in India to enable public access to essential technologies. The Report on the Revision of the Patent Law, 1959 by a Committee headed by Justice N. Rajagopala Ayyangar advocated a strong compulsory licensing regime that formed the basis for the unamended Patents Act, 1970. The recent decision of the Supreme Court of India in the matter of Novartis v. Union of India (CA 2706-2716 of 2009) creates a judicially enforceable precedent in respect of enabling affordable access to patented technologies in the public interest.

[2]. In addition, the decision of the Controller of Patents, Mumbai, in NATCO Pharma and Bayer Corporation (CL Application 1 of 2011) that upheld the issue of a compulsory licence in respect of a particular pharmaceutical promotes the principle of affordable access to essential technologies. The issuance of a compulsory licence to establish a patent pool will not violate India's commitments under the Agreement on Trade-Related Intellectual Property Rights (TRIPS Agreement) of the World Trade Organisation.

For more details visit http://editors.cis-india.org/a2k/blogs/letter-for-establishment-of-patent-pool-for-low-cost-access-devices