Centre for Internet and Society

WIPO SCCR 42: Statement by CIS on the Limitations and Exceptions Agenda Item

sinha — 2022-05-12T08:41:01Z

Anubha Sinha delivered a statement on behalf of CIS, on day 3 of the 42nd WIPO SCCR session on the Limitations and Exceptions Agenda Item.

Thank you, Mr. Chair.

I’m speaking on behalf of the Centre for Internet and Society, India.

The Proposal by the African Group for a Draft work program on Exceptions and Limitations has the potential to address issues faced in the domains of access to information, culture and education, keeping in mind that there have been systemic shifts in the knowledge ecosystem since pandemic, which will endure in the long term as well.

In India, researchers at public and private institutions in both in science and social science disciplines over the period of 2020-2021, submitted to a court of law that they faced serious challenges in remotely accessing research, especially journal articles during the pandemic.In the same vein, a study by the Confederation of Open Access Repositories found that copyright and licensing were an impediment to discovery of, and access to, COVID-19 research outputs, inhibiting research collaborations.

At WIPO, in the past few years, numerous exercises such as action plans and regional seminars implemented by this committee recognised limitations and exceptions for education and research as a priority. Digital Preservation emerged as a consensual solution that could be acted on - as identified in the regional seminar report as well.

We believe that the Proposal by the African Group for a Draft work program on Exceptions and Limitations effectively prioritises these actionable aspects without prejudging the outcome of the negotiations on the limitations and exceptions agenda. Hence, we look forward to member states making progress by constructively considering and acting on the way forward laid in the Proposal.

Thank you.

For more details visit http://editors.cis-india.org/a2k/blogs/wipo-sccr-42-statement-by-cis-on-the-limitations-and-exceptions-agenda-item

WIPO SCCR 42: Statement by CIS on the Protection of Broadcasting Organisations Agenda Item

sinha — 2022-05-10T14:38:48Z

Anubha Sinha delivered a statement on behalf of CIS, on day 2 of the 42nd WIPO SCCR session on the Protection of Broadcasting Organisations Agenda Item.

Thank you, Mr. Chair.

I’m speaking on behalf of the Centre for Internet and Society, India.

Mr. Chair we would like to congratulate you and the vice-chair on your election.

The current draft text of the WIPO Broadcasting Organisations treaty carries a rather weak framework of limitations and exceptions, when we consider the long duration of protection of twenty years that has been proposed.

The limitations and exceptions are not aligned to the ongoing discussions on the L&E agenda, where there is an agreement evolving amongst many member states to revisit and revise limitations and exceptions for purposes of preservation, online and cross-border uses, and research for benefit of education, research, libraries, archives and museums.

The framework does not rise to these standards, and also makes enacting of limitations and exceptions in national law optional.

Seen from this perspective, the draft text of the WIPO Broadcasting Organisations treaty is neither a balanced treaty nor a modern one.

Thank you.

For more details visit http://editors.cis-india.org/a2k/blogs/wipo-sccr-42-statement-by-cis-on-the-protection-of-broadcasting-organisations-agenda-item

Standing Committee's recommendations are at odds with Access to Knowledge

sinha — 2021-07-28T09:31:53Z

The Indian Parliamentary Committee's report weighs on several aspects of the Indian IPR system and issues of protection and enforcement. This blog post summarily notes the observations and recommendations of the Committee on the Copyright Act, 1957 which stand to impact access to knowledge. The primary issue dealt with was the claim that copyright exceptions were affecting the publishing industry and authors. The recommendations include narrowing of copyright exceptions, barring digital storage and copying, promotion of libraries, and adopting the Berne Convention as the benchmark on limitations and exceptions.

Last week, the Rajya Sabha Parliamentary Standing Committee on Commerce (Committee) tabled its review of the IPR regime in India. The Committee had initiated work in October, 2020, and during the process consulted with law firms, industry associations, and government departments.

The Committee agreed with the contention of the stakeholders that limitations and exceptions contained in section 52(1) of the Copyright Act, 1957 were having a detrimental impact on the publishing industry and authors. In addition, the Department of Promotion of Industry and Internal Trade (DPIIT) also presented its “corrective measures” to narrow down section 52(1)(i) of the Copyright Act – the copyright exception that had been the bone of contention in the DU photocopying case. They included 1) permitting only the making of print copies of literary works which are available in libraries at government-owned educational institutions, to “avoid any commercial gains from the work of publishers”; 2) quantitatively restricting the reproduction (in cases of books) to ten percent of the total number of pages of the book; and alarmingly also 3) barring the storage of material in the form of scanned or digital formats.

The Committee further expressed its concerns about the conflict between copyright holders and educational institutions caused by section 52(1) of the Act. Section 52(1) is the provision that contains limitations and exceptions. The Committee suggested that the protection of books and works be balanced against public accessibility of works at an affordable rate. In its recommendation, it directed the DPIIT to amend section 52(1) to ‘facilitate’ a fair and equitable ecosystem of literary culture. The measures suggested are:

Permitting the copying of works only in government-owned educational institutions and storing it in libraries for easy access to students;
Imposing limitations on unrestricted copying of books and literary works and storage of copied works in digital formats;
Promotion of establishing of community libraries and upgrading existing libraries in the country for easy access to works of foreign publishers which are exorbitantly priced and difficult to access;
National Mission on Library, a venture of Central Government to strengthen the library system, should be implemented at the earliest;
DPIIT to undertake a study of the Berne Convention to inform the copyright regime, and the Berne Convention should be referred to in matters of limitations and exceptions in the country.

Separately, the report also makes certain recommendations in respect of registration of copyright societies and treating internet/ digital streaming platforms as broadcasters for purposes of section 31D license.

The recommendations to narrow copyright exceptions and limit digital uses of works are very concerning. It appears that the recommendations shift the financial burden of ensuring access to educational material on public libraries, yet at the same time, restrict the permissible uses of works in libraries.

Since 2020, both government and Parliament have conducted separate consultations on the IPR regime without hearing all stakeholders. In the case of the consultation exercise initiated by DPIIT, details still have not been made public. In the Parliament’s case, it is concerning that key stakeholders and beneficiaries on education and research such as institutions, libraries, teachers, researchers etc. have not been consulted. Neither the substantive part nor the minutes discuss any research or evidence on the issues. As noted by Prof. Scaria, this is hardly a balanced exercise and the report is nowhere close to the level of rigor and depth expected from a Parliamentary Standing Committee.

For more details visit http://editors.cis-india.org/a2k/blogs/standing-committees-recommendations-are-at-odds-with-access-to-knowledge

WIPO SCCR 41: Notes from Day 3 and Day 4

sinha — 2021-07-08T14:51:23Z

Day 3 and 4 saw the presentation of four studies conducted by external experts on music markets in various regions in the world and one study on rights of stage directors of theatrical productions. Day 4 saw member states sharing their positions on a proposal for creation of two rights 1) rights of stage directors of stage productions and 2) public lending right. The Chair also presented the draft summary of the session upon its conclusion, on Day 4. This blog post shares the specific text under the broadcasting and limitations and exceptions agenda items, relevant from an access to knowledge perspective.

1. On the issue of transparency and inclusivity in informal work on the 'protection of broadcasting organisations' agenda item, that emerged on Day 1, the Chair summarised:

" The chair and vice chair and will take the views expressed during the session on the modalities of the informal work into consideration, including the need to uphold the principles of transparency and inclusivity."

2. An 'information session' on impact of COVID was proposed by the Asia-pacific group on Day 2, the Chair summarised:

" The Committee requested the Secretariat to organise 1/2 day information session, footnote 1, the text of the footnote is as follows. The reference to half day is based on a meeting day with two three-hour sessions, in case SCCR/42 has truncated meeting days with single daily meeting sessions of up to three hours, the information session could take place during one entire day.

So, back to the sentence after the footnote. I will repeat, the Committee requested the Secretariat to organise 1/2 day information session on the topic of the impact of COVID-19 on the cultural, creative and educational ecosystem including copyright, related rights and limitations and exceptions during the week of the 42nd session of the Committee. During the session following presentations from experts, member states will have the opportunity to exchange views and experiences. This process will be guided by a holistic and balanced approach. The information session will be separated from the rest of the agenda during the 42nd session."

For more details visit http://editors.cis-india.org/a2k/blogs/wipo-sccr-41-notes-from-day-3-and-day-4-1

WIPO SCCR 41: Notes from Day 2

sinha — 2021-07-08T14:55:30Z

Member states delivered opening statements and deliberated on the scope, direction, and progress of work on the limitations and exceptions agenda. This blog post summarises positions and contentions around: 1) Information Session on impact COVID 2) Creating a binding limitations and exceptions international instrument 3) Work Plan under the L&E agenda 4) Conducting regional consultations as per the report on regional seminars and international conference on limitations and exceptions.

There was a strong consensus on the fact that COVID had adversely affected actors and beneficiaries involved with the copyright system, but there was less consensus on which stakeholders and beneficiaries to focus on as a priority, and which next steps and remedies should be considered. The gamut of stakeholders under the limitations and exceptions agenda item includes authors, publishers, creative cultural industries, educational and research institutions, persons with disabilities, libraries, museums, and archives, licensing societies, and users’ rights advocates.

Agenda Item: Limitations and Exceptions

1. Conducting an Information Session on impact of COVID

Bangladesh (on behalf of Asia-Pacific group) proposed an information session on the copyright framework in the format of presentations from experts and relevant stakeholders as well as exchange of views among them at the next SCCR (SCCR42) to understand the impact on COVID-19, especially as developing countries, with a view of rights, related rights and exceptions and limitations. It noted the lack of international settings that could have enabled a collaborative approach during COVID-19 to handling the impact on education, research, culture and knowledge.

Pakistan, Indonesia, and Iran supported the proposal. South Africa backed both the proposal and the regional consultations along with a preference for completing them in a time bound manner by the next SCCR. Belarus was in support as well.

Georgia (on behalf of the CEBS group) was in favour of an information session for evaluating an all-round impact of the pandemic which was not only from a limitations and exceptions viewpoint. In a similar vein, USA suggested that the information session be holistic in its framing – all parts of the copyright system should be taken into consideration. UK (on behalf of Group B) stated that it would prefer to examine a formal proposal document on such a session first, that should adopt a ‘holistic approach’.

Towards the end, Indonesia questioned whether the idea of a ‘holistic’ information session equally focused on rights and related rights could even be counted or considered as a next step in the limitations and exceptions (“L&E”) agenda item.

2. Working towards a binding international L&E instrument

Georgia (on behalf of the CEBS group) stuck to its position of 1) taking an evidence-based approach on the way forward for the L&E agenda and preference to 2) exchanging national best practices instead of creating a binding treaty. Ecuador was also in favour of exchanging best practices. UK (on behalf of group B) was in favour of providing technical assistance to countries, and the EU and USA maintained their position against an international instrument.

Bangladesh (on behalf of Asia-Pacific group) stated that COVID had forced a rethink of role of copyright in ensuring access to educational and resource materials as well as protecting the rights of the creators of the copyrighted works, in situations such as the pandemic. The absence of an international instrument on limitations and exceptions has been widely felt in this context.

Pakistan stated that a baseline international instrument was necessary and would be useful for looking at one’s own national law. South Africa (on behalf of Asia-Pacific group) Indonesia reminded everyone that work under this agenda item should proceed under the 2012 mandate of developing a legal instrument on limitations and exceptions. Iran also expressed its support for a norm-setting instrument.

3. Work Plan under the L&E agenda

South Africa said that a clear way forward for limitations and exceptions was necessary, and that way forward should not be limited to the views and steps mentioned in the report on the regional seminars and international conference on limitations and exceptions ("report"). It also supported the 2012 mandate on developing an international instrument on limitations and exceptions.

UK (on behalf of group B) stated that access to knowledge should not inhibit the remunerative rights to authors and performers. Ecuador said that it supported narrow limitations and exceptions that comply with the Berne three-step test.

Russia suggested the creation of a set of “general principles” underpinning this agenda item, to set a base standard agreed by everyone and begin work from that point. It noted that it was crucial to resolve the issues of cross-border sharing, legal uncertainty between countries, and digital preservation. It added that the principles could become the guiding principles for national legislation as well.
Pakistan, noting the COVID impact, stated that cross-border cooperation or international norm-setting could be useful. Brazil stated that there was a consensus on preservation and cross-border issues, and room for further discussions on limitations and exceptions for ‘persons with other disabilities’ under this agenda item. Chile added that international guidelines were desirable at least in the area of education, libraries, and archives.

In the end, Indonesia in its statement reminded everyone that there was still no concrete work plan (under this agenda) on the table. This despite the draft report indicating issues such as preservation, online uses, cross-border uses, and safe harbour as feasible for discussion on next steps. The report had also recommended formation of expert groups to study these issues further (para 400 of the report (SCCR42/2)) It added that while it was aligned to the 2012 mandate (of producing a legal instrument), the work plan could include a joint recommendation.

4. Regional Consultations (as per report's recommendation)

China endorsed the regional consultation. EU supported regional consultations, noting that COVID had impacted creative cultural industries as well. Pakistan stated that it was important for the consultations to include beneficiaries of this agenda item.

UK (on behalf of Group B) questioned whether holding regional consultations were necessary during a pandemic, and later added that the regional consultations and information session exercises should not be executed together.

For more details visit http://editors.cis-india.org/a2k/blogs/wipo-sccr-41-notes-from-day-2

WIPO SCCR 41: Statement by CIS on Limitations and Exceptions Agenda Item

sinha — 2021-06-29T13:20:59Z

Anubha Sinha delivered a statement on behalf of CIS, on day 2 of the 41st WIPO SCCR session, on the limitations and exceptions agenda item.

Thank you Mr. Chair.

I’m speaking on behalf of the Centre for Internet and Society, India.

The pandemic has hit the world hard, and developing countries even harder. The committee should urgently lead the way on developing concrete solutions in the domain of limitations and exceptions that are timely and meaningful. Useful suggestions have already been offered by member states in the nature of tools that could enhance cross-border cooperation and international norm setting. This could take the form of guidelines, model laws, and the like.

Further, the regional consultations should have proper representation and give proper weightage to views of beneficiaries of this agenda item. WIPO should also plan to institute measures to enable proper participation, in view of the digital divide

It should further be borne in mind that there exists wide socio-economic disparity in the region, and there has traditionally been a strong reliance by students and researchers on knowledge generated in foreign countries. Thus a lack of international harmonisation of limitations and exceptions disproportionately affects developing countries. These limitations and exceptions need to urgently address cross-border uses, online uses, and digital preservation to create the maximum developmental impact.

Thank you.

For more details visit http://editors.cis-india.org/a2k/blogs/wipo-sccr-41-statement-by-cis-on-limitations-and-exceptions-agenda-item

Update on Publisher’s Copyright Infringement Suit Against Sci-Hub and LibGen in India

sinha — 2021-04-28T17:28:47Z

Anubha Sinha provides a summary of the progress of the copyright infringement suit against Sci-Hub and LibGen in India. This article was first published in InfoJustice on March 8, 2021.

This blog post is an update on the copyright infringement suit filed against Sci-Hub and LibGen in the Delhi High Court by Elsevier Ltd, Wiley India, and American Chemical Society.

In the first hearing in December, while the court ordered Sci-Hub to stop making new unauthorised uploads of the publishers’ content, it allowed the existing links to stay on, noting it was not urgent to remove content relating to decade-long infringing activity. LibGen did not appear before the court.

Indian science and academia realise that their right to research is at stake. In January, several Indian scientists and advocacy organisations applied to intervene in the case, to persuade the court to not issue an interim or permanent injunction for dynamic blocking of the websites.

One of the written submissions (filed by twenty scientists and a public health advocacy organisation) states that the two websites are the only access to educational and research materials for a big community of Indian researchers, scientists, teachers and students. And these have become indispensable during the pandemic.

This submission also highlights the position of leading science academies in the country – who in 2019 had advocated for making public-funded research openly accessible, as well as recognition of the affordability and availability problem in India’s current draft science, innovation, and technology policy. It shares analyses of the monopolistic barriers in academic publishing and extractive pricing, and their crippling impact in the Indian context.

They further argue that since the use of the websites is for research, which expressly falls within the ambit of statutory fair dealing, the charge of copyright infringement is not sustained. Nor have the publishers shown that Sci-Hub or LibGen users exploit the material for commercial gains. Additional legal support has been drawn from the DU photocopying judgment, Article 8(1) of the TRIPS Agreement, and jurisprudence around website-blocking in India.

In the hearing that followed, the judge noted that the issues in the case were ‘a matter of public importance’; hence, the court would hear all interested parties before issuing any new orders. LibGen still remained unrepresented, with the court noting that it had not been served properly yet.

At the time of writing this, Sci-Hub had filed its written statement (not publicly accessible yet). Alexandra Elbakyan has separately shared some thoughts on the case in an interview here.

Given the gamut of contentions, the case judgment will have implications for Indian copyright aspects such as: meaning of the statutory exemption for research and scope of fair dealing, and bar on circumventing technological protection measures – all while having to toe the WIPO Internet treaties, Berne Convention, and the TRIPS Agreement. Hopefully, these will be grounded in reflections on exploitative state of academic publishing system, duties of academic publishers, and distinction between piracy and sharing online.

The judgment will add to the state of our learning and research needs, and how copyright policy can support that, as this is the first time Sci-Hub and LibGen have been taken to court in a developing country.

Note: For an in-depth analysis of the social dimensions of the matter, please read this document prepared by Like-Minded IP Teachers’ Working Group on Intellectual Property and Public Interest.

Access the article on InfoJustice here.

For more details visit http://editors.cis-india.org/a2k/blogs/update-on-publisher2019s-copyright-infringement-suit-against-sci-hub-and-libgen-in-india

The STI Policy Proposes a Transformative Open Access Approach for India

sinha — 2021-04-28T17:22:43Z

Anubha Sinha explains what the draft national Science, Technology and Innovation policy means for open access to scientific literature for Indians. This article was first published in The Wire Science on January 21, 2021.

Indians may soon be able to read scientific papers for free.

Reading scientific papers is currently an expensive affair. Many scientific journals charge a couple of hundred dollars for a single article. Under a proposed ‘One Nation, One Subscription’ plan of India’s fifth (draft) Science, Technology and Innovation (STI) Policy, the government will negotiate with journal publishers to enable access for everyone. The policy also suggests that research produced in Indian publicly funded institutions be made freely accessible to everyone, at the time of publication.

These proposals are a big shift in how we learn and do science, as a country. The previous edition of the policy (2013) did not even recognise affordability or availability of scientific literature as problems. While ‘One Nation, One Subscription’ could alleviate this issue partly, its success will depend largely on how negotiations with publishers materialise. The approach is uncommon: it has been tried in two countries, with limited success, as I discussed here, in an analysis of the idea’s feasibility.

While it is crucial for people to be able to access locked-in research, it is equally important to address the practices that prevent research from being openly accessible in the first place.

The STI policy prescribes a green open access (OA) approach to ensure that research output and data produced with public funds are immediately accessible to the people – as opposed to taxpayers funding the research and paying again to access the results. Under green OA, researchers will be obligated to place their publications and data in online repositories, without any restrictions on how the output may be used.

Individual research and funding agencies, such as the Departments of Science & Technology and of Biotechnology, the Indian Council of Agricultural Research and the Wellcome Trust adopted green OA a while ago. A national STI policy stands to provide an extra impetus to adopt and enforce it.

These promising shifts come at a time when the biggest research publishers have launched a copyright infringement lawsuit in India to block Sci-Hub and LibGen on the Indian web. Sci-Hub and LibGen host copyrighted and paywalled research articles and ebooks. Anyone can download this material for free from their servers. As such, these ‘shadow libraries’ serve a vital function for everyone, and the Delhi high court has already deemed this litigation to be one of public importance. The Indian scientific research community will be intervening as well. While the case will proceed at its own pace, it would definitely be in the public interest for the STI policy to implement green OA as a mandatory requirement.

It is also notable that the policymaking process was a collaborative effort by academics, scientists and policymakers. There were multiple thematic consultative rounds with stakeholders. It has been heartening to see the results of a democratic consultation reflected in our national open access approach.

However, as is the case with high-level policies, bringing meaningful implementation often requires more operational and committed work at all levels. It would be a shame to not capitalise on the direction and vision of OA as described in the policy.

Access this article on The Wire Science here.

For more details visit http://editors.cis-india.org/a2k/blogs/the-sti-policy-proposes-a-transformative-open-access-approach-for-india

Research Publishing: Is ‘One Nation, One Subscription’ Pragmatic Reform for India?

sinha — 2021-04-28T17:09:14Z

Anubha Sinha examines the feasibility of the proposed 'One Nation, One Subscription' approach in the draft national Science, Technology and Innovation Policy (2020) on access to scientific literature. This article was first published in The Wire Science on October 23, 2020.

The story of open access (OA) publishing in India has been a chequered one. While we have had some progress with institutional initiatives, the landscape remains fractured without a national OA mandate. And now some reports suggest that the Indian government is considering striking a ‘one nation, one subscription’ deal with scholarly publishers for access to paywalled research for all of India’s citizens. Only last year, India had decided against joining Plan S. K. VijayRaghavan has been at the helm of these decisions, as the principal scientific advisor to the Government of India.

OA refers to the level of access different people have to a published paper, like a scientific paper. Typically, a researcher submits their manuscript to a journal to consider for publication. If the paper passes peer-review, the journal publishes the paper in its pages, and online. In the ‘conventional’ research publishing model, a reader who wishes to read the paper pays a fee to the journal to do so. In the (gold) OA model, the journal makes its money by having the researcher – or their funder – pay to have their paper published.

While it is heartening to see the momentum towards settling on a suitable OA approach, the ‘one nation, one subscription’ scheme is a curious proposition for India. A consortium of Indian science academies had recommended it last year. The scheme entails the Government of India to negotiate for and purchase a single, unified subscription from a consortium of publishers of scientific books and journals, after which the books and papers will be available to all government-funded institutions as well as all tax-payers.

Around the world, this scheme has been implemented in Uruguay and Egypt, while some European countries have adopted versions of it. Experts around the world have suggested that the model could be a feasible interim solution for developing countries. Note that both Egypt and Uruguay obtained financial assistance from the World Bank to secure their deals.

In Uruguay, since 2009, citizens have enjoyed free access to (otherwise) paywalled scientific and technological journals and platforms via the online platform Portal Timbó. However, some content remains available only to scientific, academic, and educational institutions and researchers. The 2019 budget for Portal Timbó was $2.3 million (Rs 16.94 crore).

Egypt launched its Egyptian Knowledge Bank (EKB) initiative in 2015. EKB provides a population of 92 million people access to journals, e-books and archives from multiple publishers across the sciences, humanities and cultural disciplines, and has certainly benefited society. However, the question remains whether incurring an annual expense of $64 million, in 2017 (Rs 416.47 crore), in subscription costs is justified. In both Egypt and Uruguay, it is not clear if all material is readable immediately upon publication or whether there is a delay.

So what could a ‘one nation, one subscription’ deal look like for India?

Currently, India spends Rs 1,500 crore a year to read research via journal subscriptions (about $205 million). So while a shift to nationwide subscription could yield a low per capita cost of access, our limited ICT infrastructure and digital divide remain barriers to unlocking the full potential of the deal. It is equally crucial to ensure that the deal covers key journals and databases – which may have to be negotiated with publishers with different types of collections across multiple disciplines.

Further, and perhaps more importantly, a nationwide subscription deal will not solve for an uneven OA publishing culture among Indian researchers. A rough calculation suggests India’s annual publishing spend is Rs 985 crore ($134.5 million), including article-processing charges (APCs) for both OA and hybrid-OA journals (which have a mix of OA and ‘conventional’ publishing policies). While a common national subscription could potentially lower the cost of reading research, we don’t know if authors will still have to pay APCs to publish their papers in publications covered by the deal.

Irrespective of how the deal plays out, the Indian research community is currently divided over the issue of paying to publish. Some researchers and disciplines argue that APCs should not be the basis for ruling out publication in a journal – the choice should rather be balanced against the journal’s disciplinary relevance and its ‘prestige’ factor (captured in a controversial metric known as the journal impact factor). In India, publishing charges are typically fronted by government grants and private funders, and it costs Rs 70,000 on average to publish in OA journals.

On the other hand, OA supporters and several institutional initiatives advocate ‘green’ OA – which requires posting the preprint version of papers in an open online repository, often immediately after publication. It remains to be seen whether India will unanimously decide to adopt green OA.

We also need to deliberate further as to what a nationwide subscription would mean for the country’s and the world’s OA movement. While a ‘one national, one subscription’ plan would appear to temporarily alleviate the financial problem of access, how far can it really go towards solving for legal and technical barriers of access? For example, the reader may still not have legal permissions to reuse the article, or reuse may be prevented technically by anti-copy measures. Or should we brush these concerns aside since the deal is somewhat of an incremental reform for India?

The OA movement was conceived to address global inequality in accessing scientific research. Would India’s position and contribution to the movement – as a large consumer and producer of scientific research – get sidelined? It appears that the nationwide subscription deal could feature in India’s upcoming ‘Science, Technology and Innovation Policy’ as well. Then, to address the gaps, it is necessary to add other policy solutions to complement the deal’s impact. The goal for a national science policy should be to create a sustainable, longer term environment that improves the quality of access and production of scientific research, and does so in alignment with the values of OA.

Access this article on The Wire Science here.

For more details visit http://editors.cis-india.org/a2k/blogs/research-publishing-is-2018one-nation-one-subscription2019-pragmatic-reform-for-india

WIPO SCCR 41: Notes from Day 1

sinha — 2021-06-29T13:40:49Z

Member states delivered opening statements and deliberated on the progress, substantive provisions, and method of work on the draft broadcasting treaty text. This blog post summarises positions and contentions that supported: 1) transparency in SCCR work 2) limitations and exceptions 3) addressing the object of protection and overbroad scope of rights in the draft treaty text.

Agenda Item: Protection of Broadcasting Organisations

1. Opacity around informal work on the broadcasting treaty agenda

Indonesia, Pakistan, Iran, South Africa and Chile shared their disappointment on the lack of transparency of informal meetings on the treaty text, and urged for greater openness. The informal meetings were conducted between WIPO and an ad hoc group of countries known as ‘Friends of the (SCCR) Chair’. This group currently includes Argentina, Colombia, the European Union, Finland, Germany, Japan, Kenya, Mexico, the Philippines, Republic of Korea, Russian Federation, and the United States of America. The group met in April and June 2021, but Indonesia questioned whether there was a mandate for it in the first place.

Indonesia and Pakistan requested for further updates on the status of the treaty text from the WIPO SCCR Chair and Vice-Chair, especially as an outcome of the informal work. The two delegations also noted the lack of diversity and imbalance in representation in the ‘Friends of the Chair’ group. Pakistan noted that this agenda item had always had a diversity of viewpoints, and that this new mechanism was reductive and not inclusive.

The WIPO SCCR Chair’s and Vice-Chair’s response was that the ‘Friends of the Chair’ mechanism was adopted to do inter-sessional work (work between two SCCRs), in a flexible and less-time consuming manner. The Chair added that the group was created in 2019 (i.e in the previous Chair's term). However, it should be noted that the group was created only for an “exceptional informal intersessional meeting” with the objective to “brainstorm on possible ways to make progress on the draft treaty on the protection of broadcasting organizations in view of the upcoming WIPO General Assembly and the 40th session of the SCCR which will be held in October.” Indonesia made a request to join this group, which was denied by the Chair. The Chair only assured that the concerns raised will be addressed.

2. Support for adding better limitations and exceptions to the treaty text

South Africa emphasised on the critical role of broadcasting organisations in transmitting information and knowledge, and cautioned that the treaty text should be balanced and not negatively impact access to information, culture and education. Iran (speaking on behalf of Asia-pacific group) highlighted the public interest stakes in the treaty and stated that the way forward was to ensure that no layer of rights is created which might affect the right to access information. Chile also was in favour of a more balanced approach that should include limitations and exceptions. Indonesia and Pakistan added that limitations and exceptions in the current text need to be addressed more properly, as they are essential provisions for digital preservation, online use and research.

3. Alternative legal solutions to address broadcast piracy

Canada highlighted how in its national law it provides signal protection and combats piracy without granting exclusive rights to broadcasters on transmission.

Agenda Item: Limitations and Exceptions

1. Support for Limitations and Exceptions agenda item

India noted the importance of the limitations and exceptions agenda for the benefit of the work of libraries, archives, museums, and educational and research institutions, and shared its support for the agenda item.

For more details visit http://editors.cis-india.org/a2k/blogs/wipo-sccr-41-notes-from-day-1

Global Civil Society Coalition launches website to promote Access to Knowledge

sinha — 2022-10-12T12:05:03Z

CIS is a part of a global civil society coalition that is working to promote access to, and use of, knowledge - the Access to Knowledge or A2K coalition.

Earlier this week, the coalition launched a website articulating its mission and recommendations to reform copyright systems for the benefit of education, research, and cultural heritage.

Copyright systems pose serious obstacles to quality teaching and learning, researchers’ ability to receive and impart information and to share in scientific advancement and its benefits, and preservation and access of cultural and scientific heritage. The website presents evidence and legal solutions, with a focus on the digital and online dimension to the issues. Three global maps also show the (limited) extent to which copyright limitations and exceptions across the world support online education, text and data mining, and preservation, highlighting the need for global legal eform.

The members of the A2K coalition represent a diverse set of voices such as educators, researchers, students, libraries, archives, museums, other knowledge users and creative communities around the globe. In Asia-pacific, we have ourselves and Open Access India as members presently. We invite organizations who share a similar vision of a fair and balanced copyright system to join the coalition.

For more details visit http://editors.cis-india.org/a2k/blogs/global-civil-society-coalition-launches-website-to-promote-access-to-knowledge

Comments on the Draft Copyright (Amendment) Rules, 2019 concerning Statutory Licensing

sinha — 2019-07-11T07:04:35Z

The Centre for Internet & Society gave its comments on the proposed rules 29,30,31 of the Draft Copyright (Amendment) Rules, 2019. The comments were made in response to Notification G.S.R 393(E) published in the Gazette of India on May 30, 2019.

Preliminary

1. This submission presents comments to the Department for Promotion of Industry and Internal Trade (“DPIIT”), Ministry of Commerce and Industry pertaining to the notification G.S.R 393(E) containing the draft Copyright (Amendment) Rules, 2019 issued on 30^th May 2019.

2. We commend DPIIT on the release of the draft Copyright (Amendment) Rules, 2019 (“Draft Rules”) and are thankful for the opportunity to put forth its views via this public consultation.

3. This submission is divided into three main parts. This part, ‘Preliminary’, introduces the document; the second part provides an overview of the organization and its research in the field of intellectual property rights; and the third part contains CIS’ comments on the Draft Rules 29, 30, 31.

4. The third part contains two sections. In the first section, we discuss the legal validity of the Draft Rules 29,30,31. In the second part we discuss the general implications of extending the legal regime of broadcasting rights under the Indian Copyright Act, 1957 (“Act”) to works on the Internet.

About The Centre for Internet and Society

5. The Centre for Internet and Society (“CIS”) is a non-profit organisation that undertakes interdisciplinary research on internet and digital technologies from policy and academic perspectives. The areas of focus in respect of intellectual property rights include research on domestic copyright and patent laws, international trade agreements and treaties pertaining to these subjects, promotion of creators’ and users’ rights with a view to furthering access to knowledge and openness in the public interest. CIS has also been participating at WIPO-SCCR negotiations in the capacity of an Observer since 2009.

6. CIS values the fundamental principles of justice, equality, freedom and economic development. This submission is consistent with CIS' commitment to these values including the safeguarding of general public interest. Accordingly, the comments in this submission aim to further these principles.

Comments

7. Draft Rules 29, 30 and 31 pertain to section 31D of the Indian Copyright Act, 1957. The proposed change in Rule 29 seeks to expand the modes of broadcast for which notice for invoking statutory license under section 31D may be issued - which previously was restricted to only radio and TV modes of broadcasting; and the change in Rule 31 will permit the Appellate Board to determine royalties for all modes of broadcast.

8. In view of current state of technological advancement, it is safe to deduce that the new mode of broadcasting whose inclusion is being contemplated in relation to s. 31D via the changes is “internet broadcasting”. The changes will allow entities that operate over the Internet medium to apply for a statutory license under s. 31D of the Act. In the following part, we submit our specific comments in respect of Draft Rules 29,30,31.

a) Legal validity of the Rules: Vires vis á vis the Parent Act

As per s. 78(2)(cD), the power of the Central Government to make rules in respect of s. 31D expressly exists in respect of “the manner in which prior notice may be given by a broadcasting organisation under sub-section (2) of section 3ID.” Apart from this clause, a general rule-making power is conferred via s. 78(1) only for carrying out the purposes of the Act. We submit that this general power should be exercised within limits of rule-making in the nature of administrative and procedural detail, and should be in consonance with purposes of the Act. In respect of s. 31D especially, the purpose can be inferred from the legislative history of the provision. This was analysed by the Bombay High Court in Tips Industries v. Wynk Music,[1] where the court noted that the concerns raised before the Rajya Sabha Parliamentary Standing Committee (on the Copyright Amendment Bill (2010)) related to radio and television industries only, and in the court’s opinion those two modes specifically were contemplated while introducing s. 31D.[2] Primarily basis this rationale, the court concluded that “internet broadcasters” offering on demand streaming services cannot avail of s. 31D. Further, s.31D(3) expressly permits the Appellate Board to fix royalty rates only in respect of radio broadcasting and television broadcasting.

Hence, we submit that there is no power under s.78 or any other provision in the Act afforded to the Central Government to expand the scope of s.31D, directly or indirectly. In State of Karnataka v. Ganesh Kamath[3] the Supreme Court held that “it is a well settled principle of interpretation of statutes that the conferment of rule-making power by an Act does not enable the rule-making authority to make a rule which travels beyond the scope of the enabling Act or which is inconsistent there with or repugnant thereto”.

Thus, the extent to which the Draft Rules 29,30,31 alter the intent and scope of s.31D clearly leaves them ultra vires the parent Act. Rules that are ultra vires the parent Act for exceeding the limits of subordinate executive power are void.[4] Hence, the proposed Draft Rules 29,30,31 are both ultra vires their parent Act and void.

b) Implications of extending legal regime of broadcasting rights to works on the public Internet

The release of the Draft Rules 29,30,31 is another attempt to extend the statutory licensing to “internet broadcasters”. The first attempt was when the Central Government released an Office Memorandum[5] (dated 5^th September 2016) to extend statutory licensing under s.31D to “internet broadcasting” companies. We submit that this was based on an incorrect statutory construction by the Department of Industrial Policy and Promotion (“DIPP”) and was arbitrary in nature. Noted academics and scholars have highlighted several constitutional infirmities in respect of this memorandum.[6] Unfortunately, the current Draft Rules (29,30,31) raise similar concerns.

Separately, in the context of introducing a broadcasting right for works shared over the Internet – we submit that if the line of argument taken by DIPP that s. 2(dd) read with s. 2(ff) supports the inclusion of “internet broadcasting” is taken to its logical conclusion, any person/ entity communicating to the general public via the public Internet can claim protection of their broadcasters’ reproduction right under our Copyright Act. This “broadcast” will happen via multiple platforms such as YouTube, Facebook Watch, live-streaming platforms, on-demand platforms, etc., and such entities will be entitled to enjoyment of this right. This will lead to a dangerous accumulation of undeserved property rights in Internet giants; unlike traditional broadcasters these companies never put up initial upfront economic investment to distribute works to the public. They were launched on the public internet, and currently thrive primarily off user-generated content. Even in respect of protecting content that is actually created with their investment, copyright law will suffice with its remedies for infringement. Hence, there is currently very little economic and legal basis for extending the legal regime of broadcasting rights for works on the Internet. Thus, we submit that in the domestic approach to modernising our copyright legislation, we must refrain from considering distribution of born-digital/ digitised works over the public Internet equivalent to the function of broadcasting works over cable/ satellite.

9. We are thankful to DPIIT and the Ministry of Commerce and Industry for the opportunity to make these submissions. It would be our pleasure and privilege to discuss these submissions and recommendations in detail with members of DPIIT if the opportunity presents itself.

[1] See Bom (HC) judgment in Case No. NMCD/72/2019

[2] See 227^th Report of the Rajya Sabha Parliamentary Standing Committee on the Copyright Amendment Bill (2010) available at http://164.100.47.5/newcommittee/reports/EnglishCommittees/Committee%20on%20HRD/227.pdf

[3] (1983) 2 SCC 40

[4] See Supreme Court Welfare Association (1989) 4 SCC 187 and State of Karnataka (1983) 2 SCC 402.

[5] See ‘Office Memorandum’ available at https://dipp.gov.in/sites/default/files/OM_CopyrightAct_05September2016.pdf

[6] See Letter to Government on Internet Broadcasts (2016) by Shamnad Basheer available at https://spicyip.com/2016/09/letter-to-government-on-internet-broadcasts.html ; and Licensing of Internet Broadcasts under the Copyright Act: Key Constitutional Issues (2019) available at https://indconlawphil.wordpress.com/2019/01/25/guest-post-licensing-of-internet-broadcasts-under-the-copyright-act-key-constitutional-issues/

For more details visit http://editors.cis-india.org/a2k/blogs/comments-on-the-draft-copyright-amendment-rules-2019-concerning-statutory-licensing

Should India adopt Plan S to realise Open Access to Public-funded Scientific Research?

sinha — 2019-06-05T13:19:28Z

Timely and affordable access to scientific research remains a problem in this digital day and age. Around three decades ago, the radical response that emerged was making public-funded scientific research “open access”, i.e. publishing it on the Web without any legal, technical or financial barriers to access and use such research. Several Indian public research institutions also adopted open access mandates and built self-archiving digital tools, however, the efforts haven’t yielded much. Most countries including India, continue to struggle with implementing open access. The latest international initiative (created in Europe) to remedy this problem is Plan S. Plan S is has been positioned as a strategy to implement immediate open access to scientific publications from 2021 – which India is considering adopting. This article unpacks the disorderly growth of open access in India, and discusses the gap between the Plan's vision and current Indian scenario in some respects.

Note: This blog entry was first published on May 29, 2019, and later updated on June 5, 2019 to accommodate the revisions to Plan S (released on May 31, 2019 after their public feedback exercise).

Introduction

In 2017, scientific researchers in India produced 1.4 lakh pieces of peer-reviewed literature, of which approximately 27,000 were open access publications (SCImago 2018). This means that only 27,000 pieces were available to the public to freely read and share, despite the fact that Indian tax-payers had funded half of the annual expenditure on R&D that year. The remaining items were largely stuck behind expensive paywalls and subscription systems, doing a huge disservice to the scientific ecosystem as well as the public interest.

Open Access is a movement to make both scientific research and data accessible to everyone in society, and a key tenet of Open Science. It emerged in response to rising costs and barriers to timely access and sharing of research, as well as a crisis of epistemic injustice in science. With the advent of the Internet and World Wide Web, it was expected that costs of publishing and disseminating scholarly research would decrease leading to a more equitable research environment. The principal idea was “to make copies of all the papers they published in scholarly journals freely available on the internet.”(Harnad S 1995). Two principal ways of implementing OA that initially emerged were: publishing on online institutional repositories (of the research institute/ funder) and/or paying the journal to make the paper OA online (i.e. author pays upfront instead of public paying subscription charges to read that research).

Since Harnad’s first call, numerous international conventions, mandates, calls have been issued in support of OA. The latest international response to the problem is Plan S. With its origins in Europe, Plan S was initially positioned as a clarion call to provoke a global flip to OA, and then transformed to achieving the goal of "scientific publications that result from research funded by public grants must be published in compliant Open Access journals or platforms" from 2021. Plan S invites research funding organisations to become members of cOAlition S, who in turn are expected to abide by the ten principles articulated under the Plan. Crucially, it holds funders responsible for enforcing OA policies and sanction non-compliance.

The Principal Scientific Advisor (PSA) to the Government of India announced in February 2019 that India will join Plan S. That could make India the second country in the global south to adopt Plan S (Zambia (via National Science and Technology Council of Zambia) was the first one). Although it must be noted that the announcement was made with respect to an earlier version of the current plan. It remains to be confirmed if India will still abide by its commitment. Even so, at first glance the key tenets underlying the plan remain the same to a large extent. Regardless it is a huge step for India, and perhaps bears the promise of pulling together the various strands of a diffused OA movement in India. Presently, cOAlition S is dominated by European entities. Majority of the entities provide marginal funding support to Indian scientific research, with the exception of two members - the UK based biomedical charity Wellcome Trust and the Bill and Melinda Gates Foundation. Wellcome Trust has been a longstanding global advocate of OA, and also played a crucial role in shaping a key institutional OA mandate in India. Apart from the European Commission and European Research Council, China’s largest funding agency has also made strong statements to support Plan S.

Plan S’ principles prescribe that research should be only published in those journals and on platforms which enable authors to publish articles under a Creative Commons Attribution license (CC- BY; alternatively, CC Attribution Share-alike or CC Public Domain licenses); authors should retain copyright in their articles; have a “solid system” in place for peer-review as per the standards in the relevant research discipline; provide subsidies/ waivers in Article Processing Charges (APCs); and do not operate under the hybrid model. More importantly, the Plan prioritises publishing in journals over institutional repositories (IRs) – and requires funding organisations to pay APCs. Further, all kinds of self-archiving platforms (including IRs) should also meet certain registration requirements.

Key aspects of Indian scientific research

Funding of research

Currently, scientific research is significantly funded by both government and private sector in India. During 2017-18, the national investment on R&D activities in scientific research was estimated to be approximately one lakh crores, with majority (45%) being met by central government, and approximately 38% from private sector industries (and 7% from state and 5% from public sector organisations). The highest R&D expenditure is incurred by Defence Research and Development Organisation at INR 13,000 crores, followed by Department of Space at 5000 crores, Department of Atomic Energy at under 4000 crores. Indian Council for Agricultural Research (ICAR), Council of Scientific and Agricultural Research (CSIR), Department of Science and Technology (DST) find themselves in the same bracket of 2000-4000 crores roughly, whereas Department of Biotechnology (DBT) and Indian Council for Medical Research (ICMR) trail with under 1000 crores (Department of Science 2018). Of these institutions, only ICAR, CSIR, DST and DBT have OA mandates.

Indian institutional OA initiatives

The earliest OA efforts in India led to the creation of IRs to support self-archiving in scientific research institutions (Arunachalam 2004). Recommendations presented at the 93^rd Indian Science Congress in 2006 said that an optimal national OA policy should mandate research papers produced either by partial or full government funding to be deposited into IRs immediately upon publication; encouraged such grant holders to retain copyright; and suggested that the government should commit to cover costs for publication in OA journals (i.e. cover APCs). These recommendations found support in a 2007 report by the erstwhile National Knowledge Commission, a high-level advisory body to the Prime Minister of India. The Commission envisaged a national academic OA portal for sharing research articles, and highlighted the need for the government to allocate funds for digitisation of books and periodicals in the public domain (material outside the scope of copyright protection). Additionally, it recognised the digital divide as an impediment to access to scientific knowledge. More importantly, it required the government and research institutions to bear the cost of publishing in OA journals, instead of passing the financial burden to authors/ scientists.

Soon key public-funded institutions such as the Council of Scientific and Agricultural Research (CSIR), Department of Science and Technology and Department of Biotechnology (DST-DBT), Indian Council of Agricultural Research, Institute of Mathematical Sciences adopted OA mandates. However, the thrust of all policies happened to be on IR deposits and not financial support for APCs. The concept of IRs took root to a considerable extent, although many IRs later ran into issues for various reasons and stopped functioning (Das 2014). A few initiatives such as the CSIR-URDIP (which developed a centralised IR to make OA journals discoverable across institutions funded by CSIR and DST-DBT) remain under-populated despite being stably maintained. This is either due to absence of or uneven implementation of OA mandates – for example, only some institutional beneficiaries (approximately 20) have implemented the DST-DBT mandate, and a meagre 3000 papers have been made open thus far in various IRs. Problems cited for under-populating of repositories include disinterest by administrators in implementing the mandates (DST Centre for Policy Research 2018).

Plan S' vision and current Indian scenario

Mandatory copyright retention by authors

If India signs up for Plan S, IRs under Indian OA mandates will be required to publish articles under Creative Commons Attribution License (CC BY; alternatively CC BY SA or CC0, and CC BY ND in exceptional cases), wherein the copyright shall be retained by the author without any restrictions. Unfortunately, “copyright retention by authors” hardly finds support in Indian OA mandates as a fundamental principle. None of the institutions with OA mandates (mentioned previously) provide a clear stance on copyright retention, thereby implicitly leaving it to individual authors to negotiate their own arrangements with publishers. For example, the DST-DBT OA policy states that “It is not the intent of this policy to violate copyright or other agreements entered into by the researcher, institution or funding agency...” Individual arrangements largely take the shape of mandatory copyright transfers in favour of the publishers (with an embargo condition on author’s freedom to re-publish). Mandatory copyright transfers harm the agency of authors to publish/ share their works in other places of their choice. This is the primary reason for legacy works to remain locked up with the publishers until the copyright term expires; and in many cases even after the work has become a part of the public domain, publishers are loathe to release such works.

This happens despite two things: firstly, in most cases in India, authors’/ researchers’ institutional employment contracts require that all IP vests with the institutions; secondly, as per the applicable law - Indian Copyright Act, 1957, copyright in such works in ordinary circumstances vests with the employer. Thus, if public institutions so desired, they should be able to retain the copyright in the work produced under their aegis (and transfer it to the authors).

Removal of embargoes

Both OA and closed access journals routinely impose embargoes averaging a year for peer-reviewed outputs to be made open. Presently, most Indian OA mandates accommodate an embargo of six months to one year, and accept both post-prints and pre-prints (the two terms roughly refer to the version of author’s manuscripts before and after peer-review) for publication in IRs. Such conditions again run contrary to the Plan’s requirement of making the final peer-reviewed published version of articles (post-print version) to be made open immediately upon publication– i.e. without an embargo period.

Addressing the menace of predatory publishing

Separately, another thorn in the side of OA’s reputation has been the rise of predatory journals. Predatory journals are outfits that dress themselves as a genuine OA journal, often charging unsuspecting authors high APCs, but conduct abysmal peer-reviews and provide poor editorial services and exhibit such conduct amounting to fraud. Such outfits have irreparably damaged many researchers’ reputations and careers, especially for vulnerable authors in the global south, with their unchecked manuscripts getting published without requisite quality checks (Sinha 2016). While this is an issue that requires special immediate measures; Plan S can potentially check the growth of such journals since it requires all publication venues to be completely transparent about their editorial policies and editorial board members, and also prohibits them from using APCs as bait to guarantee publication.

Publishing in 'prestigious venues' cannot be a criterion for evaluating scientific merit

The growth of OA has further been hindered due to a misguided tendency amongst authors to publish only in select prestigious journals, many of which are closed access. Such select journals have cultivated a brand of reputability and prestige over decades, they demonstrate as much by their high JIF (Journal Impact Factor) credentials. Traditionally, JIF has been the measure of a journal’s prestige – a proxy for the impact and influence of a journal’s publications. Despite having been discredited as wholly inaccurate (Kiermer 2016), many funding agencies continue to consider a publication’s worth in terms of the JIF of the journal it was published in, in hiring, promotional and other career advancement decisions. So long as we continue to judge the worth of research by the venue of its publication (assuming a uniform high quality of peer review and other checks) and not by its actual contribution to science, OA publishing is bound to be a less favourable option, because most OA journals are new and have not raked up a high impact factor score. Yet Indian funding agencies continue to use and promote JIF metrics, for a lack of awareness or wanton dis-interestedness in improving the system. Another reason for an immediate need to break the religiosity surrounding JIF is that many journals (both OA and closed access) in the global south enjoy good reputations but do not carry a high JIF as they are newer and their citation metric pales in comparison to their more dominant western counterparts. This disparity is starker for fields wholly situated in the global south. In this respect, the Plan clearly requires funders to only evaluate a publication on the basis of its intrinsic merit, and not factor in publication channels, impact factors or the publisher.

Recent steps by Indian government and agencies

Indian agencies’ approach to addressing these issues has been chequered, and does more harm than good. In 2017, the Universities Grants Commission (UGC) released a pre-determined list of journals that researchers should publish in, and linked researchers’ career advancement to publishing in the select listed journals (Pushkar 2016). This approved list contains approximately 39,000 journals that are indexed in Web of Science, SCOPUS and Indian Citation Index (Universities Grant Commission 2018). UGC’s step was seen as an attack on academic freedom with serious doubts about its competence to create a credible exclusionary list of journals in multiple disciplines – and it has indeed been shown that the procedure of making the list is flawed (Patwardhan et al. 2018). Separately, the Ministry of Human Resources and Development notified to National Institutes of Technology (NITs) that papers published in journals levying APCs will not earn career advancement credits (Mukunth 2017). MHRD’s notification dismisses all paid journals irrespective of their quality. This has the effect of placing genuine high-quality OA journals on the same pedestal as predatory journals, and ultimately dents the growth of OA business models looking for modest support via APCs that are helpful in covering operational costs (software platform and an editorial team), and do not come close to unreasonable APCs levied by the biggest commercial players in the field. The reality is that most OA journals charge authors to publish (Bastian 2018).

These steps led to much consternation amongst the Indian research community. Another government central committee has proposed to award cash bonuses for publications (with a higher bonus for publishing in international journals over national journals). This has been criticised by Indian scientists on two grounds: firstly, that the scheme may lead to a spike in predatory or sub-standard journals; secondly, it devalues national journals, and reinforces the prestige factor to favour international journals (Vaidyanathan 2019). A 2011 study has shown that cash incentives appear to encourage submission of research that has low regard for quality (Franzoni et. al 2011). In fact in 2010, UGC introduced APIs (Academic Performance Indicators), which was essentially a system of reward points against number of publications for researchers and faculty members ostensibly to improve scientific publishing. However, this ended up triggering a race to publish poor quality research in fake journals (Pushkar 2016), and the UGC recently changed the scheme to in order to do damage-control.

Government will have to foot APC bill

Crucially, the Plan requires funding organisations to commit to funding APCs, in addition to research grants. The PSA in his announcement on Twitter (relating to Plan S) has said that, “We will negotiate for APCs normalised to India.” The Plan also emphasises on waivers and discounts for low and middle income countries. Studies show that Indian authors spend anywhere between INR 500 to 3 lakhs per article on APCs, and during 2010-14 the estimated payment to open access journals (the immediate OA kind) was INR 16 crores per year, on an average costing INR 76,000 per paper (Madhan et al. 2016). It has been estimated that Plan S will cost India INR 616.46 crores per year (Mukunth 2019). The estimate is more than half of the annual investment in public institutions such as DBT and ICMR.

Imperfect competition in the scholarly publishing market

Does the academic publishing market have any justifications for exorbitant APCs? A European University Association study highlighted the oligopolistic structure in this market sector, which functions with an absolute lack in pricing transparency (through strict confidentiality agreements with institutions), large profiteering through public funds and asymmetry in negotiating power (European Universities Association 2018). In 2015, five companies controlled more than half of the market for academic publishing: RELX (formerly Reed Elsevier, UK), Taylor and Francis (UK), Wiley-Blackwell (UK), Springer Nature (Germany), SAGE (US). Majority of the most important closed-access journals continue to be owned by these publishers (Larivière et. al 2015). It does not help that many of the top OA journals are also owned by the same publishers (who are responsible for charging the highest APCs). It will be interesting to see which journals will change their model to comply with Plan S requirements.

Conclusion

Nonetheless, after many years of piecemeal OA reforms within Indian institutions, the PSA’s announcement indicates a renewed interest in OA. Elimination of copyright transfer agreements and embargoes will give authors surely more control over their works – steps that should have been implemented and strictly enforced by Indian institutions long ago.

However, it makes little sense for developing countries to spend an enormous amount on APCs demanded by a foreign publishing oligopoly. Latin America continues to be opposed to Plan S as a matter of its principled position against APCs. If India signs up for Plan S, it is could be the case that we will find ourselves in a situation where our public institutions will be paying for subscriptions as well as APCs for a long time to come. One of the plan's principles does say that "... When Open Access publication fees are applied, they must be commensurate with the publication services delivered and the structure of such fees must be transparent to inform the market and funders potential standardisation and capping of payments of fees." Since the coalition is currently overwhelmingly Eurocentric, it remains to be seen how a fair and reasonable analysis will be worked out across geographies. In this sense, Plan S is not exactly a breakthrough plan for the global south as it does not sufficiently undercut the market power of the oligopoly.

There is plenty that can be done in the interim to realise the vision of OA, as we continue to ponder and debate the feasibility of Plan S in the global scheme of scientific publishing as well as India. For starters, it would be ideal to conduct a nationwide consultation with the research community in India. Strengthening the infrastructure underlying institutional repositories – in terms of developing more powerful search tools for IRs, linking IRs, making deposited articles more discoverable over the Web are steps that do not require relatively large funds (vis-à-vis APCs), yet stand to contribute to improving visibility of our research. The government must also look out for authors’ interests by actively negotiating stricter terms with publishers, so that authors aren’t coerced into signing away their copyright (or by fait accompli). Transparency of commercial agreements should become a non-negotiable principle in institutions’/ libraries’ dealings with publishers, which is also reiterated as a key principle of the Plan. Such steps may not result in an immediate shift to OA, if implemented strictly and uniformly can perhaps be more radical and fruitful than anything that the Indian research community has seen in decades.

References

Arunachalam, Subbiah (2004): “India’s March Towards Open Access,” SciDevNet, https://www.scidev.net/global/publishing/opinion/indias-march-towards-open-access.html

Bastian Hilda (2018): “A Reality Check on Author Access to Open Access Publishing” https://blogs.plos.org/absolutely-maybe/2018/04/02/a-reality-check-on-author-access-to-open-access-publishing/

Das, Anup Kumar (2014): “Open Access to Scientific Knowledge: Policy Perspectives and National Initiatives,” CSIR –NISTADS (ed): India - Science and Technology, Vol 3, pp. 292-299

Department of Science and Technology (2018): “Annual Report 2017-2018” https://drive.google.com/file/d/1IPKUdbSx0Da2Zi_ufzC4u-T3jCFzPred/view

DST Centre for Policy Research (2018): “Panel Discussion on Equitable Access to Knowledge, https://www.youtube.com/watch?v=iH_kjoFRjAQ

European Universities Association (2018): “The lack of transparency and competition in the academic publishing market in Europe and beyond” https://eua.eu/component/attachments/attachments.html?task=attachment&id=1691

Harnad, Stevan (1995): “Universal FTP Archives for Esoteric Science and Scholarship: A Subversive Proposal”, Scholarly Journal at the Crossroads, Washington DC: Association of Research Libraries

Kiermer, Veronique (2016): “Measuring Up: Impact Factors Do Not Reflect Article Citation Rates,” PLOS Blogs, https://blogs.plos.org/plos/2016/07/impact-factors-do-not-reflect-citation-rates/

Franzoni, Chiara & Scellato, Giuseppe &Stephan, Paula (2011): “Changing Incentives to Publish,” Science, http://www.utstat.utoronto.ca/reid/sta2201s/2012/Science-2011-Franzoni-702-3.pdf

Larivière, Vincent & Haustein, Stefanie & Mongeon, Philippe (2015): “The Oligopoly of Academic Publishers in the Digital Era,” PLoS One. 10 (6), p. 1-15.DOI: https://doi.org/10.1371/journal.pone.0127502

Madhan, Muthu & Kimidi, Siva Shankar & Gunasekaran, Subbiah & Arunachalam, Subbiah (2016): “Should Indian researchers pay to get their work published?,” Current Science http://dst.sciencecentral.in/17/1/Current_Science_Sept2016.pdf

Manupriya (2017): “Helping institutions embrace open access,” IndiaBioscience, https://indiabioscience.org/news/2017/helping-institutions-embrace-open-access

Mukunth, Vasudevan (2017):“Scientists in the Lurch After Imprecise MHRD Notice About 'Paid Journals'”, The Wire, https://thewire.in/education/mhrd-open-access-nit-predatory-journals-career-advancement-impact-factor

Mukunth Vasudevan (2019): “Six Concerns Over India Joining the Plan S Coalition for Science Journals”, The Wire, https://thewire.in/the-sciences/six-concerns-over-india-joining-the-plan-s-coalition-for-science-journals

Patwardhan, Bhushan & Nagarkar, Shubhada & Gadre, Shridhar & Lakhotia, Subhash & Mohan Katoch, Vishwa & Moher, David. (2018): “A Critical Analysis of the ‘UGC-Approved List of Journals’”. Current science. pp 114.

Poynder, Richard (2019): “Plan S: What strategy now for the Global South?” https://richardpoynder.co.uk/Plan_S.pdf

Pushkar (2016): “The UGC Deserves Applause for Trying to Do Something About Research Fraud,” The Wire, https://thewire.in/education/the-ugc-deserves-applause-for-rrying-to-do-something-about-research-fraud

SCImago (2018): “SJR – SCImago Journal and Country Rank” viewed on 2 April 2019 (https://www.scimagojr.com/countrysearch.php?country=in )

Sinha, Anubha (2016): “Why Open Access Has To Look Up For Academic Publishing To Look Up”, The Centre for Internet and Society, https://cis-india.org/openness/the-wire-anubha-sinha-october-12-2016-why-open-access-has-to-look-up-for-academic-publishing-to-look-up

Universities Grants Commission (2018): “Annual Report 2017-2018” https://www.ugc.ac.in/pdfnews/5595965_UGC-ANNUAL-REPORT-English-2017-18.pdf

Vaidyanathan, Gayatri (2019): “Indian payment-for-papers proposal rattles scientists,” Nature India, https://www.natureasia.com/en/nindia/article/10.1038/nindia.2019.18?WT.mc_id=TWT_NatureInd#.XGlrKLpUnPU.twitter

For more details visit http://editors.cis-india.org/a2k/blogs/should-india-adopt-plan-s-to-realise-open-access-to-public-funded-scientific-research

Views on on the proposed WIPO Treaty for the Protection of Broadcasting Organizations at side-event organised by Knowledge Ecology International

sinha — 2018-11-29T10:48:40Z

On November 27, Knowledge Ecology International (KEI) organised a side event during deliberations of the 37th Session of the Standing Committee on Copyright and Related Rights (SCCR) of the World Intellectual Property Organization (WIPO). Centre for Internet & Society (CIS), Electronic Information for Libraries (eiFL.net), Corporacion Innovarte, Creative Commons, and Knowledge Ecology International appraised the current text for the proposed WIPO Treaty for the Protection of Broadcasting Organizations (Revised Consolidated Text on Definitions, Object of Protection, Rights to be Granted and Other Issues, SCCR/36/6). Speakers provided an overview of the treaty, explained the potential risks and problems caused, and proposed solutions to narrow the Treaty’s scope and limit the damage. Below is a transcript of the remarks made by Anubha Sinha who represented CIS at this event.

Good afternoon, everyone.

My presentation will be in reference to the revised consolidated text SCCR 36/6 and the US proposal SCCR 37/7.

In essence, this treaty is trying to create a new set of rights for broadcasters operating in both mediums (first, traditional – satellite, airwaves, cables, and second, the internet), ostensibly to counter signal piracy. We are looking at updating a neighbouring rights or related rights regime to protect signals across both mediums.

The intent of treaty is to exclude entities exclusively delivering their programmes over the internet. I fear that the results would create an unequal playing field between broadcasters and internet streaming entities. This would be the first, immediate impact. To then catch up, perhaps, internet streaming services would look to satisfy the treaty requirements to avail protection. This would involve satisfying the definition of a broadcasting organisation (as in SCCR 36/6), and for their country to have ratified the treaty. The characteristics of a broadcasting organisation can be satisfied by acquiring any traditional broadcasting service, for such an entity, as per the current text of the treaty. This would require serious capital, and most start up innovations in the area would not be in a position to undertake such a step. And then there is the question of asserting the rights and enforcing them in other countries – this will be an extremely expensive affair. The point I’m trying to make is that this treaty seems to be set to protect a narrow slice of broadcasters, with significant market power in their home markets.

My co-panelists will discuss specific harms that this will have on the building of commons, and other damaging effects on global efforts to build an affordable and accessible knowledge system. This is unfortunate, and hence we urgently need text that provides for a mandatory list of limitations and exceptions, and not work with the soft language that is present right now. We have to accept that multilateral norm-setting at the international level sets the tone for countries to enact their own national legislations – indeed, before the Marakkesh treaty there were hardly any developing countries which had an expansive beneficial copyright exception for the visually impaired (except India - that I'm aware of), and look who the first few countries to ratify the treaty were – India, Argentina, El Salvador, Paraguay, Uruguay, etc – all developing countries leading to adopt this international standard.

The US delegation’s proposal, introduced yesterday, pushes the idea of limiting exclusive rights granted under this treaty to broadcasting organisations, so long as the countries provide adequate protection against piracy in other bodies of law. This seems like a promising idea – one that does not upend the legal theories of neighbouring rights and also shrinks the proposed model in the treaty that seeks to grant monopolistic property rights for a long and unclear period of time to powerful organisations – organisations that by their very nature and functions are chroniclers of our times and keepers of valuable cultural heritage.

At a seminar on this very treaty organised last month by KEI, Proffessor Bernt Hugenholtz flagged off the problematic justifications provided for increasing the strength of this neighbouring right. He said that the justifications should indicate a corresponding increase in cost of disseminating content. Should new exclusive rights be created for gradation-like increase in investment? He was not convinced that the costs had gone up significantly, and he also pointed out that this cost should not account for money spent on acquiring the rights to broadcast the content. Further, going back to the US proposal, the proposal recognises the persistent conceptual difficulties of distinguishing between signal protection and content protection. This very difficulty has been raised by many civil society organisations in the past, and more recently it cropped up at a discussion on the treaty in New Delhi, where both civil society organisations and representatives of broadcasters were present. Another practical challenge (that remains) will be to separate the computer network based operations from the non-computer network based operation; however, in this age, is it technically possible to do that?

To conclude, I think that fundamental concepts and terms need to be properly clarified to arrive at an understanding that is shared across all stakeholders; and a corresponding strengthening of limitations and exceptions is urgently needed.

Thank you.

For a complete list of speakers at the event, please click here.

For more details visit http://editors.cis-india.org/a2k/blogs/cis-views-on-on-the-proposed-wipo-treaty-for-the-protection-of-broadcasting-organizations-at-side-event-organised-by-knowledge-ecology-international

37th SCCR: CIS Statement on the Agenda on Limitations and Exceptions

sinha — 2018-11-29T10:20:13Z

Anubha Sinha, attending the 37th Session of the World Intellectual Property Organization (“WIPO”) Standing Committee on Copyright and Related Rights (“SCCR”) at Geneva from November 26, 2018 to November 30, 2018, made this statement on the agenda on limitations and exceptions on behalf of CIS on Day 3, November 28.

Thank you, Mr. Chair.

The Centre for Internet and Society is a civil society organisation based in India working on issues of openness and access to knowledge, amongst others.

India is a diverse country with thriving communities working on and promoting access to research, data, archival material, educational material, and developing material to benefit persons with other disabilities. As such, the regional seminars will be an excellent opportunity for such communities to interact with various stakeholders and government delegates; and help formulate concrete principles that should inform the international legal instrument that we hope is developed and discussed soon.

To enable comprehensive and substantive participation and discussions, I urge member states and WIPO to undertake steps to make the regional seminars as inclusive as possible. I request the secretariat and member states to actively work with civil society to identify and invite such community leaders.

Thank you very much.

For more details visit http://editors.cis-india.org/a2k/blogs/37th-sccr-cis-statement-on-the-agenda-on-limitations-and-exceptions

Centre for Internet and Society

WIPO SCCR 42: Statement by CIS on the Limitations and Exceptions Agenda Item

WIPO SCCR 42: Statement by CIS on the Protection of Broadcasting Organisations Agenda Item

Standing Committee's recommendations are at odds with Access to Knowledge

WIPO SCCR 41: Notes from Day 3 and Day 4

WIPO SCCR 41: Notes from Day 2

Agenda Item: Limitations and Exceptions

1. Conducting an Information Session on impact of COVID

2. Working towards a binding international L&E instrument

3. Work Plan under the L&E agenda

4. Regional Consultations (as per report's recommendation)

WIPO SCCR 41: Statement by CIS on Limitations and Exceptions Agenda Item

Update on Publisher’s Copyright Infringement Suit Against Sci-Hub and LibGen in India

The STI Policy Proposes a Transformative Open Access Approach for India

Research Publishing: Is ‘One Nation, One Subscription’ Pragmatic Reform for India?

WIPO SCCR 41: Notes from Day 1

Agenda Item: Protection of Broadcasting Organisations

1. Opacity around informal work on the broadcasting treaty agenda

2. Support for adding better limitations and exceptions to the treaty text

3. Alternative legal solutions to address broadcast piracy

Agenda Item: Limitations and Exceptions

1. Support for Limitations and Exceptions agenda item

Global Civil Society Coalition launches website to promote Access to Knowledge

Comments on the Draft Copyright (Amendment) Rules, 2019 concerning Statutory Licensing

Preliminary

About The Centre for Internet and Society

Comments

a) Legal validity of the Rules: Vires vis á vis the Parent Act

b) Implications of extending legal regime of broadcasting rights to works on the public Internet

Should India adopt Plan S to realise Open Access to Public-funded Scientific Research?

Introduction

Key aspects of Indian scientific research

Funding of research

Indian institutional OA initiatives

Plan S' vision and current Indian scenario

Mandatory copyright retention by authors

Removal of embargoes

Addressing the menace of predatory publishing

Publishing in 'prestigious venues' cannot be a criterion for evaluating scientific merit

Recent steps by Indian government and agencies

Government will have to foot APC bill

Imperfect competition in the scholarly publishing market

Conclusion

References

Views on on the proposed WIPO Treaty for the Protection of Broadcasting Organizations at side-event organised by Knowledge Ecology International

37th SCCR: CIS Statement on the Agenda on Limitations and Exceptions