Centre for Internet and Society

35th SCCR: CIS Statement on Limitations and Exceptions for Libraries and Archives

sinha — 2017-11-15T13:35:02Z

Anubha Sinha, attending the 35th Session of the World Intellectual Property Organization (“WIPO”) Standing Committee on Copyright and Related Rights (“SCCR”) at Geneva from 13 November, 2017 to 18 November, 2017, made this statement on the agenda for Limitations and Exceptions for Libraries and Archives on behalf of CIS on Day 3, 15 November, 2017.

The Centre for Internet and Society, in agreement among others, believes that an international binding instrument to govern exceptions and limitations for libraries and archives is critical.

In several countries, their set of limitations and exceptions do not serve all intended beneficiaries in a comparably equal manner. For example, for the work of archives in India, there is very little that allows such institutions to do in terms of making copies for preservation and noncommercial dissemination. India, like many other countries here has a rich cultural heritage – and doing any activities with old audiovisual material involves identifying rightholders and clearing rights connected to orphan works and traditional cultural expressions as well. Imagine the onerous task of an archive of clearing all these rights in connection with appropriate agencies, and of course clearing additional permissions from authors and performers. In our research, we discovered that most archives in India miserably fail on this front, causing valuable material being locked in storage rooms for decades.

Needless to say, accessibility to this national wealth of knowledge in archives also supports the mission of libraries, museums and educational institutions and researchers.

So Mr. Chair, we strongly believe that an update to the international copyright system via a binding instrument would serve many countries well. It would empower all countries to fill in such deficiencies in relation to libraries, archives, educational and research institutions, museums and persons with disabilities.

Thank you, Mr. Chair.

For more details visit http://editors.cis-india.org/a2k/blogs/35th-sccr-cis-statement-on-limitations-and-exceptions-for-libraries-and-archives

Course Packs for Education Ruled Legal in India

sinha — 2017-07-14T04:05:00Z

On 9 May 2017, a five year court battle between publishers and universities finally came to an end when the Supreme Court of India dismissed an appeal by the Indian Reprographic Rights Organization (IRRO) challenging an earlier judgment of Delhi High Court that ruled course packs in India legal for educational purposes.

The article was published by EIFL on July 12, 2017.

In a case that gained wide international attention, issues such as the cost of textbooks in India were raised, students agitated for fair access to educational materials, and the jurisprudence on copyright in India has taken a leap forward. In this guest blog, Anubha Sinha, Programme Officer on Openness and Access to Knowledge at the Centre for Internet and Society India, discusses the judgment in the case known as the ‘Delhi University photocopy’ case, and what it means for access to educational materials in India.

The facts of the case

In 2012, three academic publishers, Oxford University Press (OUP), Cambridge University Press (CUP) and Taylor & Francis, sued the University of Delhi (DU) and Rameshwari Photocopy Service (based at the university) for copyright infringement for photocopying parts of their textbooks and distributing them in course packs - collections of assigned reading materials – exclusively to students for a fee.

The publishers sought to compel Delhi University to enter into a licensing agreement with the Indian Reprographic Rights Organization (IRRO), that manages certain rights on behalf publishers and other rightsholders in India.

The course packs in question comprised excerpts from textbooks on course syllabi at Delhi School of Economics (part of the University of Delhi). The court analyzed the content of four packs that included works such as Transforming India: Social and Political Dynamics of Democracy (OUP), New Cambridge History of India (CUP) and Political Philosophy (Routledge/Taylor & Francis).

The court found that on average 8.8% of the textbooks, that each cost on average 39 USD (2,500 INR), were used in the course packs. Students and faculty were charged a nominal fee of one US cent (40 paise) per page to buy the course pack.

The court’s judgment – no infringement, no licence required

In an interim order in 2012, the court issued a temporary injunction restraining the sale of course packs by Rameshwari. However, the order was overturned when in subsequent judgments (in September 2016 and an appeal judgment in December 2016) the court ruled in favour of the University.

On whether the making of the course packs was a copyright infringement, the court found no infringement because the activities fell under the education exception in Indian copyright law (specifically section 52(1)(i)).

Section 52(1)(i) of the Indian Copyright Act (1957) allows any work to be reproduced by a teacher or pupil for the purposes of instruction. In a liberal interpretation of the provision, the court held that the reproduction of a work is not limited to reproduction by an individual teacher or pupil, it also extends to the action of multiple teachers and students. Further, the court held that the phrase ‘course of instruction’ embraces any instruction for the duration of an entire course or teaching programme, it is not limited only to teaching in the classroom.

On whether the university must obtain a licence to photocopy from IRRO, the court held that no licence is required because the activities are covered by Section 52(1)(i).

The court also found there to be no commercial exploitation of copyright in the works.

During the case, the publishers tried to impute a profit motive on the part of the defendants. They argued that by selling chapters of the books, the defendants were in direct competition with publishers thereby creating an adverse effect on the publishers’ market.

The court rejected the argument holding that students are hardly potential customers for multiple books used in the course packs. For example, post-graduate students might have 35-40 reading assignments per subject.

Without the course packs, students would simply look elsewhere for the material, including the university library. In fact, the court noted that increased access to education has the potential to expand the customer base for such books in the future.

Primacy of purpose

Importantly, the court said fairness of use is to be judged only by its intended purpose i.e. education, and not from any qualitative or quantitative uses (such as which parts of the text are used or the number of copies made).

The court’s judgment on appeal, that references case law from Canada, the USA the UK and New Zealand, emphasizes that the determination of ‘fairness’ of a use rests solely on the “touchstone of the purpose of the use and/or other limitations expressly built in each of these clauses”. Thus there is no requirement to introduce other tests or factors when applying Section 52(1)(i) and so a general fair use principle is to be read into all such provisions in the law.

The case concludes

The High Court remained undecided on two points of fact: whether the works included in the course packs were necessary for educational instruction, and whether the photocopying of entire books is allowed under Indian law. It decided to refer these issues for determination to a trial court.

However, the trial court hearing never proceeded because in March 2017 the publishers decided to withdraw from the case, in a move that surprised observers. A joint statement issued by OUP, CUP and Taylor & Francis acknowledged the important role that course packs play in education, and looked forward to working “even more closely with academic institutions, teachers and students to understand and address their needs”.

In a further twist in April 2017, the Indian Reprographic Rights Organization (IRRO) filed an appeal to the Supreme Court challenging the High Court’s judgment.

On 9 May 2017, the Supreme Court summarily dismissed IRRO’s appeal.

Impact of the Delhi University case

The ruling in the Delhi University case is a huge triumph for access to educational materials in India over the interests of private copyright holders.

The case shone a light on the socio-economic context of university level education in India, in particular the cost of textbooks. Students became advocates for access to knowledge, and the law on access to educational materials in India has been advanced.

Book prices in India are an issue

A study submitted to the court showed that consumers in the global South often have to commit significantly higher proportions of their income to buy books because absolute book prices are far higher than in the global North. For example, if consumers in the US had to pay the same proportion of their income to purchase the Oxford English Dictionary, it would cost a ludicrous 941.20 USD!

Not even university libraries can afford these prices. While libraries do purchase multiple copies of textbooks, they cannot cater for the entire student population that can ran into hundreds of students enrolled on an individual course.

In addition, the latest editions are not always available to purchase in India. So the absence of course packs would seriously compromise access to education.

“While foreign publishers claim that almost all educational titles have lower priced Indian editions, our empirical research shows this to be false. The vast majority of legal and social science titles that we surveyed had no equivalent Indian editions, and had to be purchased at prices equivalent to or higher than in the West. The lower priced Indian editions were often older and outdated.” - Shamnad Basheer, writing in SpicyIP, one of India’s leading blogs/repositories on intellectual property (IP) and innovation law/policy.

Students, faculty and authors mobilized

The case resonated strongly with the student and academic communities. Two new groups were formed, the Association of Students for Equitable Access to Knowledge (ASEAK) and the Society for Promotion of Equitable Access to Knowledge (SPEAK). Both groups were admitted as interveners in the case in support of the defendants.

Student engagement has continued, increasing awareness among the next generation for fair access to knowledge.

In addition, over three hundred academics from all over the world, including 33 authors whose works were listed in court documents as being included in the course packs, wrote to the three publishers asking them to withdraw the lawsuit. The letter was submitted to the court in pleadings by the defendant.

Copyright jurisprudence advanced

The case has advanced copyright jurisprudence in India.

The making of course packs for educational purposes is allowed by law.

The court’s reasoning in the judgments was based on the socio-economic context of India, the realities of the education system, and the progress afforded by modern technology. These are welcome developments that will enable the law to adapt to new situations and current needs of Indian society.

Timeline

August 2012: Oxford University Press (OUP), Cambridge University Press (CUP) and Taylor & Francis issue legal proceedings against Delhi University and Rameshwari Photocopy Service

October 2012: Interim injunction issued against Rameshwari Photocopy Service restraining sale of course packs.

March 2013: 33 authors of works cited in court documents write to publishers asking them to withdraw the case.

September 2016: judgment issued by Justice Rajiv Sahai Endlaw, Delhi High Court; injunction on Rameshwari Photocopy Service lifted.

October 2016: Publishers file appeal against Justice Endlaw’s decision.

December 2016: Appeal rejected by Delhi High Court Division Bench Justices Pradeep Nandrajog and Yogesh Khanna.

January 2017: Oxford students and academics urge OUP not to appeal to the Supreme Court.

March 2017: Publishers announce their withdrawal from the case.

April 2017: Indian Reprographic Rights Organization (IRRO) (that intervened in the lower case) files appeal to the Supreme Court.

May 2017: IRRO appeal dismissed by the Supreme Court.

For more details visit http://editors.cis-india.org/a2k/blogs/eifl-anubha-sinha-july-12-2017-course-packs-for-education-ruled-legal-in-india

Indian Patent Office updates Guidelines for Examination of Computer Related Inventions, yet again

sinha — 2017-07-05T07:42:44Z

By discarding a test brought into force last year, the updated Guidelines take no concrete position to help clarify the ambiguity around patentability of software inventions in India.

The Office of the Controller General of Patents, Designs and Trademarks (CGPDTM) issued new Guidelines on Examination of Computer Related Inventions (CRIs) on 30^th June, making it easier to obtain a software patent in India (as compared to standards set in the 2016 Guidelines).

New Changes

The most important change is removal of a test notified in 2016 which made CRIs patent eligible provided there was a novel hardware component in the patent application. Accordingly, references in the guidelines which aided interpretation of the 2016 test have been deleted. Additionally, the new guidelines exclude the layout of integrated circuits as patentable subject matter in CRIs.

The CGPDTM has refrained from prescribing a new test to determine patentability of CRIs.

In the absence of specific guidance, it is likely that examiners will heavily rely on section 3(k) of the Patents Act, 1970, the Manual of Patent Practice and Procedure, and the views expressed by the Joint Parliamentary Committee in respect of "per se":

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

Policymaking re Guidelines on Examination of CRIs

After years of deliberation, the Indian Patent Office first proposed a test in 2015 which was met with disapproval as it lowered the bar for patentability of CRIs. After a stakeholder consultation, the IPO revised the test in 2016, raising the bar of patent eligibility of CRIs, which was favorable to the growth of small and medium enterprises in the Indian IT industry. The present 2017 guidelines are a result of streamlining stakeholder consultations conducted in response to the 2016 guidelines as per a circular by the IPO.

In the following table, I list the substantive changes made in the new guidelines (in comparison to the 2016 Guidelines) and make some preliminary remarks:

Type of Change

Change

Remarks

Inserted in 2.1, Legal Provisions relating to CRIs and Deleted in 4.1, Novelty

Section 2 (1)(l) defines “new invention” in The Indian Patents Act, 1970 as follows: "New invention" means any invention or technology which has not been anticipated by publication in any document or used in the country or elsewhere in the world before the date of filing of patent application with complete specification, i.e. the subject matter has not fallen in public domain or that it does not form part of the state of the art

Added in 2.2, List of explicit exclusions from patentability under section 3 for CRIs

Section 3(o) topography of integrated circuits

Contemplates layout of integrated circuits as subject matter relating to CRIs

Parts deleted in 4.3, Industrial Applicability

Industry herein is to be understood broadly having any useful and practical activity while excluding intellectual or aesthetic activity. Claims relating to “Method of playing games” and “computer programming languages” are not considered to be industrially applicable. A method for effecting introductions with a view to making friends is not industrially applicable even though it could be carried out by a commercial enterprise. The determination of industrial applicability in case of CRIs is very crucial since applications relating to CRIs may contain only abstract theories, lacking in industrial application.

Only an explanation of industrial applicability in the general context of patent law remains.

Deleted in 4.4, Sufficiency of Disclosure (strikethrough indicates deleted part)

4.4.1 Fully and particularly (What): 1. If the patent application relates to apparatus/system/device i.e hardware based inventions, each and every feature of the invention shall be described with suitable illustrative drawings. If these system/device/apparatus claims are worded in such a way that they merely and only comprise of a memory which stores instructions to execute the previously claimed method and a processor to execute these instructions, then this set of claims claiming a system/device /apparatus may be deemed as conventional and may not fulfil the eligibility criteria of patentability. If, however, the invention relates to ‘method’, the necessary sequence of steps should clearly be described so as to distinguish the invention from the prior art with the help of the flowcharts and other information required to perform the invention together with their modes/means of implementation. […]

Loosened the disclosure requirement

Deleted in 4.4, Sufficiency of Disclosure (strikethrough indicates deleted part)

4.4.4 Form and substance: […] Even when the issue is related to hardware/software relation, ~~(e.g., when the claims recite ‘processor is programmed to… or ‘apparatus comprising a processor and configured / programmed to…..)~~ the expression of the functionality as a ‘method’, is judged on its substance. It is well established that, in patentability cases, the focus should be on the underlying substance of the invention, not the particular form in which it is claimed. The Patents Act clearly excludes computer programmes per se and the exclusion should not be allowed to be avoided merely by camouflaging the substance of the claim by wording ~~(e.g. different subroutines are performed in different physical locations such as processors will not suffice).~~

Removed illustrations

Replaced in 4.4, Sufficiency of Disclosure (strikethrough indicates deleted part)

4.4.5 Means Plus Function:

Further, if the specification supports ~~implementation~~ of the invention solely by the computer program then in that case means plus function claims shall be rejected as these means are nothing but computer programme per se.

Where no structural features of those means are disclosed in the specification and specification supports ~~implementation~~ of the invention solely by the software then in that case means in the “means plus function” claims are nothing but software.

Replaced both struck out words by performing the invention

Added in 4.5, Determination of excluded subject matter relating to CRIs

[…] Hence, along with determining the merit of invention as envisaged under Sections 2(1) (j), (ja) and (ac), the examiner should also determine whether or not they are patentable inventions under Section 3 of the Act.

Parts deleted in 4.5.1. Claims directed as “Mathematical Method”:

[…] Some examples which will attract exclusion: acts of mental skill. e.g. A method of calculation, formulation of equations, finding square roots, cube roots and all other methods directly involving mathematical methods like solving advanced equations of mathematics. merely manipulates abstract idea or solves a purely mathematical problem without specifying a practical application.

Added in in 4.5.1. Claims directed as “Mathematical Method” (emphasis supplied)

4.5.1. Claims directed as “Mathematical Method”: Mathematical methods are a particular example of the principle that purely abstract or intellectual methods are not patentable. Mathematical methods like method of calculation, formulation of equations, finding square roots, cube roots and all other similar acts of mental skill are therefore, not patentable. Similarly mere manipulations of abstract idea or solving purely mathematical problem/equations without specifying a practical application also attract the exclusion under this category. However, mere presence of a mathematical formula in a claim, to clearly specify the scope of protection being sought in an invention, may not necessarily render it to be a “mathematical method” claim. Also, such exclusions may not apply to inventions that include mathematical formulae and resulting in systems for encoding, reducing noise in communications/ electrical/electronic systems or encrypting/ decrypting electronic communications.

Illustrations added to show that CRIs that include mathematical formulae and result in systems for encoding, reducing noise in communications/ electrical/electronic systems or encrypting/ decrypting electronic communications, will not be ineligible merely by virtue of presence of mathematical formulae. They will not necessarily construe a claim on mathematical method.

Part deleted in 4.5.4, Claims directed as “Computer Programme per se”

The computer programme per se is excluded from patentability under section 3(k) apart from mathematical or business method and algorithm

Inserted in 4.5, Determination of excluded subject matter relating to CRIs (emphasis supplied)

4.5.8. Topography of integrated circuits The above criterion is to be judged as per the procedures as laid out in chapter 08.03.05.14 of the Manual

Contemplates layout of integrated circuits as subject matter relating to CRIs

Parts deleted in 5, Tests/Indicators to determine Patentability of CRIs

5. Tests/Indicators to determine Patentability of CRIs: Examiners may rely on the following three stage test in examining CRI applications: (1) Properly construe the claim and identify the actual contribution; (2) If the contribution lies only in mathematical method, business method or algorithm, deny the claim; (3) If the contribution lies in the field of computer programme, check whether it is claimed in conjunction with a novel hardware and proceed to other steps to determine patentability with respect to the invention. The computer programme in itself is never patentable. If the contribution lies solely in the computer programme, deny the claim. If the contribution lies in both the computer programme as well as hardware, proceed to other steps of patentability.

Implication is that this test is no longer in force for examination of patentability of CRIs

Deleted 6, Illustrative examples of Claims which are not patentable

Refer to 2016 Guidelines

Note: This post has been updated to reflect the change in point 4.4.5, which was previously missed by the author.

For more details visit http://editors.cis-india.org/a2k/blogs/indian-patent-office-issues-updated-guidelines-for-computer-related-inventions-yet-again

34th SCCR: A Summary Report

sinha — 2017-05-30T13:55:22Z

The 34th session of the Standing Committee on Copyright and Related Rights (SCCR) was held from 1st- 5th May 2017 at Geneva, Switzerland. Anubha Sinha attended the session and provides an update on the status of discussions and noteworthy emerging/unsolved debates in the Committee.

Agenda items at this SCCR included 1) Reaching consensus on text of Broadcasting Treaty 2) Discussion on limitations and exceptions for libraries and archives, and educational and research institutions and persons with other disabilities 3) Discussion on artist's resale right 4) Discussion on proposal for analysis of copyright related to the digital environment. The Asia-Pacific group was represented by the Indonesian delegation - a break from Indian leadership. In comparison to previous SCCRs, the Indian delegation was less vocal, especially reflected in negotiations around the Broadcasting treaty.

Broadcasting Treaty

The delegations and secretariat (headed by newly appointed Chair, Darren Tang) began discussions in the earnest, keen on presenting a consensus to the UN General Assembly. Two days were spent in hammering out a feeble consensus on Consolidated text on Definitions, Object of Protection, Rights to be Granted and Other Issues. This was done entirely in the informals.[1] There was a high degree of divergence between positions, so much that the draft text ended up with additional language even on issues that had achieved a certain degree of stability. The most intractable issue emerged to be the definition (and inclusion) of deferred transmission.

Observers were not offered an opportunity to present statements, which was alarmingly unfortunate. Delegations are expected to mull over the fresh additions/modifications back home, and will again attempt to streamline the text at the next SCCR (November, 2017).

Limitations and Exceptions on Libraries and Archives

The Committee has been trying to come up with a legally binding instrument on this agenda. No draft text exists, only an informal chart on limitations and exceptions (prepared by the Chair) was used as a framework for discussions.

While African, Asia-Pacific, GRULAC, China and were keen on constructively moving towards a legally binding treaty, other groups/countries were less so.

The Central Europe and Baltic group (CEBS group) expressed that the agenda was best left for member states to legislate at the domestic level; they were willing to go only as far as "exchanging best practices" at this forum and adopting alternative approaches. Anything but a legally binding instrument, basically. EU, similarly positioned, suggested that the Committee should rather explore how existing limitations and exceptions under international treaties could function efficiently.

Argentina pointed out that issues such as cross-border works could not be addressed by the states themselves. Further, Russia said that existing treaties (Berne Convention, Rome Convention, WIPO Internet treaties) did not allow the introduction of the desired limitations and exceptions; and that it would be useful to merge limitations and exceptions on libraries and archives, and research and educational institutions.

Finally, Chile and Nigeria suggested that the Chair's informal chart could perhaps be adopted by the Committee as a working document, which was not met with much enthusiasm. Most states appreciated Dr. Crews' study and indicated that an update on the work would be useful for the Committee.

Limitations and Exceptions on Educational and Research Institutions and for Persons with other Disabilities

Professor Blake Reid and Professor Caroline Ncube and team made a presentation on their scoping study on limitations and exceptions for persons with disabilities (Link here). On the issue of limitations and exceptions for educational and research institutions the delegations looked forward to Prof. Daniel Seng's final study (in a future session). Rest of the discussion was split in a similar fashion as the previous session on libraries and archives.

Notably, the Indian delegation supported the discussions on limitations and exceptions with a view to produce an international instrument.

Artists Resale Right

The discussion around this agenda is in a preliminary stage and Dr. Graddy (Economist, Brandeis International Business School) presented an overview of the same basis a consultation with experts and stakeholders. Artists resale rights provide an artist with the right to receive a royalty based on the resale of an original work of art. Theoretically, resale rights may hurt market competition as they could potentially prompt buyers and sellers to transact in other countries which do not provision for resale royalties, to avoid bearing the cost. Further, buyers may potentially pay less as they may have to pay up when they sell next - as a result the resale right could hurt younger artists more than the older ones. However, a 2008 study of the UK market after the introduction of this resale right revealed no such adverse effects. Dr. Graddy attributed this to the fact that resale royalties were limited to 2% of the sales price or a ceiling of (~500 eur), and in comparison to the auctioneer's commission (15-20%) were not a major cost in the entire transaction.

This proposal was moved by Senegal and Congo (in a previous session), and has been strongly supported by African nations. Most observers were in support as well. Further, resale rights already exist in the European Union and certain other states. USA was vocal about not endorsing a normative instrument on this topic.

Discussion on Proposal for Analysis of Copyright related to the Digital Environment

This proposal, tabled by GRULAC (at a previous session) stressed on the importance of transparency in remuneration for performers in the digital environment. Several delegations commented on the wide breadth of the proposal and suggested it be narrowed down. USA made a distinction between copyright policy, and marketplace issues such as remuneration of artists and performers and bargaining power - making it clear that the SCCR should touch upon the former only. A presentation of a study-in-progress followed. The study will examine the national copyright laws relating to digital technology including limitations and exceptions (passed in the last decade or so), and how they govern intermediaries. The final study will be presented in the next session.

CIS' Participation

I made statements on agenda item limitations and exceptions for libraries and archives, and GRULAC proposal for analysis of copyright related to the digital environment.

In addition, I participated in a panel discussion on Fixing Copyright for Education alongside Chichi Umesi, First Secretary, Mission Of Nigeria to the United Nations in Geneva; Sean Flynn, PIJIP; Teresa Nobre, Communia; and Delia Browne, Creative Commons Australia / Director, National Copyright Unit (Schools and TAFEs) Australia. The panel covered obstacles to educational uses of works in Europe and the need for opening up related user rights, the ongoing Australian copyright reform debate and the recent interpretation by Indian courts of the reproduction exception for educational purposes in the DU photocopying case (Link to panel discussion material here).

Observer Statements:

A summary by the Chair is available here.

[1] Informals are a different kind of negotiation-setting than the plenary and happen privately between delegates and the chair. Observers are provided with an audio feed of the discussion but cannot report anything that is said.

For more details visit http://editors.cis-india.org/a2k/blogs/34th-sccr-a-summary-report

34th SCCR: Observer Statements on Limitations and Exceptions for Libraries and Archives

sinha — 2017-05-30T05:55:43Z

Observers made the following statements on the agenda of limitations and exceptions for libraries and archives on 3rd May 2017.

International Federation of Library Associations and Institutions (IFLA):
Thank you, Mr. Chair. We congratulate you as leaders of body and looks forward to working with you to achieve the goals of the in the interests of the national copyright system. We thank the Secretariat for their hard work and IFLA is proud to have attended sessions of the SCCR for many years and gratified that Member States understand and support the role of libraries, archives and museums in promoting knowledge and the understanding of diverse cultures.

As the U.S. states and its principles document SCCR/26/8, exceptions and limitations facilitate the public service role of libraries and are executives maintaining the balance between the rights of authors and larger public interest, particularly education, research, and access to information that is essential in today's society. But that balance has eroded over time as rights holders have promoted fell ashes notion that copyright is primarily or only about protection of rights not the public good. In a world where information is increasingly borderless, as borderless as broadcast signals, the idea that issues related to access to information are local as one delegate astonishingly stated earlier this week is really incomprehensible and misguided. This is not to say, however, that local or national action is not needed as one element in the equation of access to information. In this limited sense, we agree that the exchange of national experiences in this body over the past several years has been helpful as have been the studies commissioned by WIPO from Professor Kenneth Crews which demonstrated the wide variation in exceptions and limitations existing in SCCR's Member States, including their absence in numerous countries. We applaud WIPO for commissioning these studies and urge that the Secretariat build on the studies produced by professor cruise to develop a regularly updated searchable database of exceptions and limitations for libraries, archives and museums to be accessible across borders so that legislators and citizens who do not attend these sessions can easily learn from other's experience on an ongoing basis. We further recommend that SCCR capitalize on the past sharing of Member States' national experiences and the suggested approaches in the Chair's chart of SCCR/33 by creating a draft law on exceptions and limitations for libraries, archives and museums in collaboration with all stakeholders so that there will be practical outcomes for recent discussions in this body. Such a draft law would draw on the committee's past discussions on the subject but not be binding or prejudice in any way the outcome of the committee's own work. IFLA stands ready to work with its colleagues in the archival and museum communities as well as with rights holders delegates to SCCR and the Secretariat to achieve this objective. As for our recommendations or reactions to the Chair's final chart from SCCR/33, IFLA supports this and we urge the Chair's chart be upped as a working document and certainly to the qua as an outcome of SCCR35. Finally in response to the proposal by the Delegation of Argentina, SCCR/33/4, we hope that the committee will request the Secretariat to prepare a study on issues related to limitations and exceptions for libraries, archives and museums and a cross-border context including digital uses. We are grateful to the Member States that have placed and maintained limitations and exceptions for libraries and archives on the SCCR agenda and look forward to continuing these discussions. These outcomes will affect access to information and knowledge for people throughout the world. Thank you, Mr. Chair.

Society of American Archivists:
Thank you, Mr. Chair, I will try to be brief. The Society of American Archivists, North America's largest professional archival organisation looks forward to working with you and your Vice Chairs. Our members manage billions of primary source works from across the global. SAA believes in the importance of WIPO's work because copyright is central to the mission of archivists. Archivists collect and preserve all types of creative works for one reason only, use. Most archived works, however, have never been in commerce, but people globally need them to maintain their culture, identity, protect Human Rights and support innovation through new creative works. If such works cannot be made available digitally, however, and across borders, they might as well not exist. Archivists and librarians are conscientious about copyright, but sometimes strict adherence to the law conflicts with our collections and our mission. For example, a 1970's collection of over 120 interviews of legendary jazz musicians are available for on site study in the archives of the U.S. research library, but, their general usefulness has been hobbled by unbalanced copyright law because the original copyright assignment mentioned neither derivative works nor the yet to be invented Internet. As a result, risk averse librarians and lawyers were unwilling to allow zing tall accessibility of the interviews. Although jazz cannot thrive without taking risks, an archivist's obligation to the future requires that we minimize risk. That's why we need reasonable exceptions to deal with the streams ambiguity inherent in our collections. Copyright is already perceived to be under attack. Can WIPO afford to torn away allies such as archivists? We have a very positive public approval rating from the very people that you need to reach. To keep archivists on board the development of exceptions for archives must remain on SCCR's agenda. To this end the committee's work should continue based on the previous Chair's chart and that chart should become a working document for the committee. Thank you.

Centre for Internet and Society:
Thank you, Mr. Chair. CIS works on issues of access to knowledge and other digital rights in India. I would like to share with you my experience which highlights the difficulty of building digital archives in India. Mr. Chair, earlier last year the government of India embarked upon the important project of digitizing the cultural audiovisual material stored in government and private collections to store material for preservation purposes, and set up a virtual network of these repositories to offer online access. My organization has been assisting them in this crucial public service mission. These works are oral traditions, dance, music, theatrical practices, cultural practices – all of which lie largely inaccessible and languishing in several small and large collections in India. Since, the Indian copyright Act does not contain an exception for the purposes of preservation by an archive; the entire project has suffered high costs in terms of money and time. Money, because the project had to get expensive legal assistance to set up processes to obtain rights clearance from all the performers who were a part of the works and copyright holders- some of which are orphan works, thereby compounding the problem. Further, partnering organizations also expressed legitimate fears of supplying their works, in case of a potential copyright and related rights violation that could implicate them with civil/criminal liability.

In such a scenario, for the benefit of other states to update their standards corresponding to this international legal instrument as well, it would indeed be useful to adopt the proposals mentioned in the document SCCR/26/3 that address these issues, and others. Thank you.

International Council of Archives:
Thank you very much, Mr. Chair. And the ICA congratulates you on your election and that of your Vice Chairs and we look forward to working with you. Archival institutions exist throughout the world. Governments, organisations and individuals create records to provide evidence of their actions to document their rights and obligations and to preserve their heritage. Archives acquire and preserve these documents and make them available for all to use as the raw materials for cultural, academic, social and scientific research. The nature of archival material presents a particular problem. Archives hold billions of copyright works that were not created or intended for commercial purposes. Because they were never published, the rights holders for such works cannot be located. For these reasons, collective licensing is not a workable solution. The archival mission to make their holdings available for research is ham strung by a web of inconsistent copyright laws that have failed to keep up with social and technological development. In this body systemic discussion of the eleven topics, archivists provided a rich array of real life examples that clearly demonstrate the need for exceptions, for mutual recognition by Member States of exceptions and limitations to copyright that would permit archives everywhere to serve an international audience. The results of that excellent work was summarized in the Chair's informal chart on limitations, exceptions for libraries and archives. Every creator benefits from the work of his or her predecessors. Knowledge of that earlier work comes largely from libraries and archives. Many of the rights holders represented in this room could not have created their works without us. Why would creators not wholeheartedly support exceptions for archives and libraries that would only benefit their work. Regrettably, we continue to hear assertions from some groups that national solutions are suffer. It should be abundantly clear by now that national solutions are far from sufficient. We need solutions that apply in a global network environment. And in that regard, Mr. Chair, the Chair's informal chart on limitations and exceptions for libraries and archives prepared at the end of SCCR33 refined and clarified the topics to be addressed and provides a practical approach to continue to move this initiative forward. We would support our IFLA colleagues called to have it adopted as a working document of the committee, and we would also support IFLA's call for a study of cross-border issues. Thank you, Mr. Chairperson.

German Library Association:
I congratulate you on your election as a Chair and I speak on behalf of German Library Association representing 10,000 libraries in Germany. Libraries and archives face a problem. There is a high level of the international copyright protection, on the other hand, there is no such uniformity in limitations. Limitations like the ones fixed in the already mentioned Chair's informal chart, for example, for preservation, lending, document delivery, are the basis of library services. But limitations and exceptions are like a patchwork of different national legislations. For every library service crossing borders that means to act legally library staff has to know about the limitations and exceptions not only in their own country, country of origin but also in the country of destination of that service. Respective to the German library index and university libraries in 2016 around 60% of the acquisitions were electronic in technical universities the portion of electronic acquisitions is even much higher. These numbers in international comparison are even low. We can assert that research libraries are digital more than they are paper based. In the electronic world, the problem is resources usually are only available after agreement on license stipulations formulated by the rights holders mostly. That means contracts are concluded. Contracts eventually can override the limitations and exceptions. This committee might agree on in one form or the other. The objective of facilitating cross-border library teaching and research services could be achieved by introducing an international mandatory instrument on limitations and exceptions. Another track to facilitate cross-border use could be the introduction of principles of harmonizations combined with a rule of mutual recognitions like proposed in the document of the Delegation of Argentina. Thank you, Mr. Chairman.

International Federation of Journalists:
The International Federation of Journalists congratulates, again, the Chair and Vice Chairs on their election and the members of the Secretariat for their diligent work. We represent about 600,000 journalists in 140 countries worldwide north and south. The International Federation of Journalists, of course, understands ts essential role of libraries and archives specifically we fully support them having the freedom to have copies for preservation. The International Federation of Journalists has repeatedly called for libraries and archives to have proper direct funding to do this themselves and not to be forced to subcontract digital archiving to commercial operations. The honorable representative of Brazil referred earlier this morning to the potential to extend the outreach of libraries and archives in unprecedents ways.. Of course, this, the making of works available on the Internet, for example, and on its successes is an important supplement to the vital role of libraries and archives in the education and training of many including journalists. But when it comes to libraries and are executives making copies of works available off the premises, that is is it not, a publishing operation? The International Federation of Journalists believes that the solution to this issue is collective licensing and necessarily capacity building to insure that efficient Democratically controlled collective licensing is available in all Member States and can deal with cross-border issues as the collective licenses that already exist already do. Many of those 600,000 journalists particularly those who focus on international reporting are poorly paid. Where there is such collective licensing it makes important contribution to their economic survival as independent professionals with their own essential contribution to make to the recording and preservation of our culture from within our cultures and not relying on foreign reporting. Thank you.

Knowledge Ecology International:
Thank you, Mr. Chairman and congratulations for your election. And for your Co-Chairs'. One thing I just wanted to mention as related to libraries is in addition to the excellent studies that have been done by Kenneth Crews and other people that have looked at library exceptions, I thought it might be interesting to have the chief economist or other people involved, but certainly the chief economist to look at the economics of the library industry. I think that we look at libraries as part of the research and development infrastructure for a country, not only as places people go to read novels, but an essential part of the competitiveness and ability for a country to have a strong high tech sector but also play an important role in the development. And it would be interesting to know what the assessment is because we hear it from other industries all of the time. They talk about the number of jobs in the film industry or the number of jobs. It would be interesting to know how many people are employed in different countries in the library sector, but also what contributions the library sector makes to the economic development of the country, and what challenges they face on pricing. The last point I wanted to make is that clearly there is a set of issues that it's really hard to reach on census on, and there is other areas where it's easier, I would think, to reach consensus on. This discussion of the archiving and the preservation of documents is a pretty good case. Certainly the making available of what's put into, what's archived and preserved in terms of documents, it's more challenging to reach consensus on that than it is to insure that people have adequate exceptions to merely do archiving and preservations. And I think that it would be unfortunate if in looking at their wide range of issues that are facing libraries, recognizing that there is a very inadequate set of exceptions in many countries according to the studies that have already been done, that people don't move forward in areas where consensus could be reached such as preservation and archiving because there are other areas that are more controversial. Thank you.

Electronic Information for Libraries:
Thank you, Chairman. I'm speaking on behalf of the Electronic Information for Libraries and I would like to thank you for giving me the floor and congratulate you upon your election to Chair this committee. I would also like to congratulate your Vice Chairs. We would like to thank the African Group, GRULAC, Asia-Pacific Group and the other delegates for having spoken of the interrelationship between the Sustainable Development Goals and the establishment of access to libraries and archives because emphasis is placed on access to information. Ladies and gentlemen, the Internet is global, but legislation on copyright stops at borders and that is why we are here today. Digital technology has changed the world, which people have access to information. Today the way we study and learn in fact means that people do not have full access. We believe that copyright is important, and that limitations and exceptions are crucial for a modern information infrastructure as well as for open access and other licensin wills. We are very pleased that other countries have modified proposals on copyright.. We are pleased that some countries have expanded their exceptions or introduced new ones. However, some countries who are updating their law are not enough to resolve a broader problem, the demand for cross-border access to information for research and culture. And the need to insure that nobody is left behind in access to knowledge means that there is say need for this aspect to be taken into account. There are specific issues which were compiled in a document and submitted to this committee and I would like to invite you to read it. There are printed copies available, but it can also be found on line. It begins with the Internet is global. We also support IFLA's and ICAS interventions and we hope that progress will be made swiftly in the SCCR in this issue. We thank you very much for your attention.

International Council of museums (ICOM):
Thank you, Mr. Chair, for this opportunity to address this important agenda item.. The international Council of museums represents important 36,000 museum professionals world wide. We are here, Mr. Chair, to give our voice to museum professionals for this important agenda item. After consultation with the international museum community and in keeping with the results of the WIPO study on exceptions and limitations on copyright for museums ICOM joined forces with our library and archive colleagues to pursue exceptions to copyright for the benefit of libraries, archives and museums as enumerated in the Chair's informal chart that provide for exceptions for all three. This pursuit is not intended to disrupt markets, but instead is targeted to instances where museums and indeed libraries and archives are unable to carry out their often shared mission. ICOM was very pleased that the Canadian delegation called for a museum study in 2013 while at the 26th session of the Standing Committee on copyright and related rights. The study on exceptions first draft was distributed and presented at the 30th session of the SCCR in 2015. The study distributed business WIPO provides a broad basis of understanding of the status of exceptions for museums within WIPO Member States and provides for the basis for ICOM's continued advocacy of exceptions for museums. The purpose of our intervention today is to signal that ICOM is committed to the belief that a harmonized approach towards libraries, archives and museums is both possible and necessary to achieve the overall objective of obtaining operational exceptions for materials and cultural heritage collections at the international level. [..] there are many instances where museums, libraries and archives cross mandates given the nature of distinctive collections. Libraries hold collections that include artifacts more traditionally aligned with museum collections or have accessioned collections that include unpublished materials often found in archives. Museums hold archival collections, have libraries within museums, and include study collections as part of their overall collections. Museums like archives nay oftentimes include a vast array of artifacts in their collections and include materials that have often been published and unpublished. At the same time, libraries, archives and museums face the same obstacles created by copyright law in trying to fulfill their respective missions being education, public interest, access to collections and communication of scholarship. This is particularly true when museums are examined not simply as stewards of art collections but as stewards of historic scientific and natural collections as well. The similarities are in fact magnified when we examine the collections we face with our 20th century collections. Museums, libraries and archives face similar challenges in preserving, exhibiting and providing access and communicating about art collections. Thank you, Mr. Chair for the opportunity to address this important issue.

European Bureau of library, information and documentation associations:
Mr. Chair, we congratulate you and the Vice Chairs on your elections to office, and thank you for inviting the European Bureau of library information and documentation associations which is the voice of libraries in Europe to take the floor. The consolidated libraries and archives studies in the SCCR30 and the museum study both from 2015 reveal that the national frontier-based approach to copyright with regard to libraries, archives and museums now in disarray, too disparate and stuck in the pre-Internet era. In the E.U. this has been the justification of proposal of mandatory cross-border exceptions to copyright. Yet in face of the ever expanding world wide web. National copyright laws are in need of constant modernization to allow institutions to function optimally in an international cross-border online environment. Now that the detailed discussion of the topic has been summarized by the previous Chair's SCCR/33 document. We offer practical suggestions for moving forward. First, we suggest that this committee establishes the principles to inclusion in the note for overarching international copyright framework for copyright exceptions and limitations affecting libraries, archives and museums. The proposals made by the US delegation in 26/8 offer useful guidance that can shape the content of the committee's work. A comprehensive and effective solution for libraries should set standard for and protect national copyright exceptions that impact on the functions of these institutions, including preservation of materials and content, copying for document delivery in any format including cross-borders. Lending of works including remotely. Protecting limitations and exceptions for override by contract terms and by holding partially inaccessible can due to legal protections of TPMs. Making orphan works available on line to the public, text and data mining of legally accessed coven tent. Acquiring work including by importation and protecting libraries, archives and museums and staff accounting for them in good faith for criminal or civil liability for unintended copyright infringement. There are various ways in which the committee can support work. And could be usefully adopted by this committee. Secondly, in line with the EU's call for guidance to Member States, we would welcome efforts from the Secretariat to further inform our discussions. In line with the Poe proposal from Argentina which correctly addresses the need for minimum set of exceptions and limitations nationally and the solution for cross-border issues this what the E.U. itself is seeking to do domestically. We would welcome a study on cross-border issue as a basis for further discussion. In order to provide further guidance to Member States, this committee could request the Secretariat to convene an expert group first and foremost of library archive and museum copyright experts as well as copyright academics, lawyers and relevant stakeholders to support the commissioning and tasking of an agreed expert to develop modern WIPO draft law for libraries, archives and museums. Finally this committee might wish to request that the Secretariat provides a useful tool to assist its work by creating online publicly accessible database of copyright exceptions and limitations. Additionally since the pace of change in copyright law affecting the library, archive and museum sector is to fast moving the committee might request an annual report from the Secretariat of changes to nationals and practices in copyright and related rights. Thank you for your attention.

Innovarte Corporacion:
Thank you very much, Chairman. We would like to congratulate you upon your election. We would like to thank the excellent work on studies on libraries and archives. The proposal to work with the aim of a treaty on exceptions and limitations to copyright to protect the balance and legitimacy of the system for copyright and related rights with regard to libraries and people with disabilities is something we have been discussing in this committee since 2004 starting from a proposal which came from Chile. As discussions of the Marrakesh Treaty has shown that provisions on copyright to protect categories of people who are threatened or under mined by a lack of exceptions is not only possible but good and it shows a means to protect libraries, archives and possibly also museums. In this regard, we would like to request the members of the committee in good faith to consolidate all of the work done based on the text which has already been considered, the informal summary of the Chair of the committee as we have seen it's based on textual proposals either for treaty or another form of instrument which was proposed by various delegations including Brazil, India, the United States and many others. We propose that the committee would adopt this text without any prejudice to what form the work might take in the future. We believe on another point that the proposal from Argentina is particularly useful since it seeks to come up with a solution to the obstacle, namely, the lack of harmonization of rules on libraries and archives at international level. We believe it is a compliment to what has already been worked on by the committee with regard to principles and topics which are necessary for exceptions other than a national level. It should be subject to greater analysis by this committee, thank you very much.

Electronic Frontier Foundation:
Thank you Mr. Chair. The EFF work supports the work of libraries and archives which have become more relevant in the digital age and which are more challenging now. The updating of exceptions and limitations are an important way to insure that libraries and archives are equipped to meet these two challenges of fulfilling missions in the digital age. In an ideal world EFF sees norm setting as the only way to ensure that WIPO members provide a basic level of modernized limitations and exceptions for libraries, however, we recognize that members do not have the appetite for norm setting in this area at this point in time for various reasons. In that light, we do support the proposal IFLA has made for a draft law and searchable database on library limitations and exceptions. This strikes us as a workable compromise that does not commit members to hard norm setting but which would be a useful interim step towards the harmonization of limitations and exceptions for libraries worldwide. Finally and on a different topic, I would like to express EFF's hope that in the next SCCR session time will also be made available for NGOs to make statements about the broadcast treaty. Thank you very much.

Note: Source of the statement texts are WIPO's realtime transcription service.

For more details visit http://editors.cis-india.org/a2k/blogs/34th-sccr-observer-statements-on-limitations-and-exceptions-for-libraries-and-archives

34th SCCR: Observer Statements on Limitations and Exceptions for Educational and Research Institutions

sinha — 2017-05-30T05:51:42Z

Observers made the following statements on discussion around limitations and exceptions for educational and research institutions on 3rd May 2017.

Communia:

Thank you, Mr. Chair, for the opportunity to address for the limitations and exceptions for educational purposes. I would like to give a brief statement that by saying Professor Seng's studies, national countries had exceptions narrowly in various ways the copyright works of educational activities. These narrow exceptions prevent certain educational practices such as the quotation of entire image in a school presentation. When it comes to modern educational practices, namely those that occur in digital and online teaching environments, the legal standing is even more problematic. Indeed, certain acts which teachers are allowed to perform in face-to-face teaching may not be permitted in digital and online contexts. For instance, in the Netherlands, the law is clear that a teacher can show a movie from a DVD in class, but if the same teacher wants to show a video from a free publicly accessible website, it seems that you'll need to be -- you will not be able to do it. This is due either to inappropriate legislative techniques or to domestic policy decisions. In any case, what is certain is cross-border educational uses are compromised at the outset due to the current national copyright laws, including within regions that enjoy a high level of harmonization, such as the European Union. Therefore, continue to discuss this issue in the forum which we will lead toward from an internationally binding instrument as mandated by the General Assembly 2017 seems essential. Thank you.

International Federation of Journalists:

Good afternoon. We've already introduced ourselves. All these works are and remain one of the key raw materials for education. The international federation of journalists deeply regrets the educational and research institutions underfunded. No one is proposing, however, as far as I'm aware, that schools and colleges should get free electricity or free phone calls. Here, most clearly of all, the solution is collective licensing through collective management organizations that are democratically controlled by the rights holders they represent. There is a wealth of misunderstanding of the issues. I take as one example the very first statement on a pro education site and the magic of Internet indexing may enable you to identify it, are which demonstrates how ill thought out the costs of education can be, not withstanding the previous. This is addressed to the European Union. It says, quotes, we want you to have the freedom to teach without breaking the law. Good. Quotes, before teaching her students about how representations of Shakespeare's Romeo and Juliet have changed through the ages, a teacher may have to ask permission from the rights holders of every movie she wants to screen in class, unquote. It says, this is -- we want to relieve educators from this impossible task, but I'm aware of nowhere in the European Union and few countries in the -- what we're pleased to call the more advanced economies where this is an impossible task. The school just pays for a license from a collecting society and goes ahead with no further administration. In my home country, United Kingdom, the collecting societies are working successfully on streamlining the system of licensing and making it more efficient in time and cash. Personally, I do recognize that some categories of textbooks are overpriced...(Speaker went over time and was asked to stop).

International Authors Federation:

Thank you very much. As this is the first time the International Office Forum has taken the floor this session, we'd like to congratulate you, Chair, and your vice chairs on your election and thank the Secretariat on their work. The international authors forum represents authors from the text, screenwriting, and visual arts sectors and their interests in copyright, as members of 60 organizations representing well over 600,000 authors worldwide. In ran increasingly homogenized world, cultural diversity is important, authors maintain that in digital arts, literatures, language, and music. It is the authors works being considered in the proposals being discussed at WIPO. There are individual authors whose rights are involved in all countries. Those rights must be given primary consideration. They need fair remuneration if they are to continue the work everybody wants access to. Without payment, they will not be able to continue to create. The diversity and quality of content will suffer and the quantity of works produce produced will be limited. We believe that there are already international copyright provisions in place that work well to enable the development of licensing frameworks, which enable access, including cross-border access provision through educational institutions and ensure fair payment. Authors believe that these existing provisions contain sufficient flexibility for countries represented at WIPO to continue to work towards national solutions, such as licensing frameworks, which can be developed according to local needs. Thank you for your time.

Corporacion Innovarte:

Thank you, Mr. Chair. The study of exceptions for educational limitations in current legislation shows that there is a fragmentation, that it's not appropriate to the countries, and very often this is an insolvable problem for international and learning cooperation in the area of communication. In order to overcome these, we think it's ins dispensable to have an international agreement which will enable us to have a minimum of common exceptions and limitations which will make it possible to have compatible roles for cross-border use of educational resources. Thank you, Mr. Chairman.

Programme on Information Justice and IP:

Thank you, Chair. You and I are from countries that have educational exceptions that are open to the use of any work, for any education related activity or purpose, and by any user — subject to a fairness test that takes into account the rights of authors and rights holders. This openness in the exceptions environment enables innovations that promote access to learning materials, including through new technologies and over the internet. Tomorrow at a side meeting over lunch, Communia and American University will be presenting the outcomes of different research projects that examine the operation of user rights in practice. That research shows that wealthy countries are developing openness in these factors much more quickly and thoroughly than poorer countries currently. But the research also shows that this is not a developing country problem alone. Many wealthy countries as well lack exceptions that allow such basic practices as showing a movie, streaming a video or performing a play in a classroom setting. These problems are compounded when we deliver educational products across borders through distance learning. A lack of harmonization on these issues will produce a race to the bottom where teachers like myself are forced to not deliver the best materials possible for our students because of the lack of rights to do so in some countries.I would encourage the process going forward to focus on the value of educational exceptions that
cover all:

Works,
Apply to all users, and that
Extend to a full range of activities

Thank you.

Note: Source of the statement texts are WIPO's realtime transcription service.

For more details visit http://editors.cis-india.org/a2k/blogs/34th-sccr-observer-statements-on-limitations-and-exceptions-for-educational-and-research-institutions-and-persons-with-other-disabilities

34th SCCR: Observer Statements on Proposal for Analysis of Copyright related to the Digital Environment

sinha — 2017-05-30T05:39:22Z

Observers made the following statements on GRULAC's proposal on analysis of copyright related to the digital environment on 5th May 2017. CISAC:

Thank you, Chairman. I'd like to thank the WIPO Secretariat for this initiative because I think it can contribute to a constructive discussion in this committee on a number of issues raised in the document proposed by GRULAC. CISAC would like to thank the two professors on their presentations on the work done in April, and we look forward in great interest to the presentation of the conclusions at the next meeting of SCCR in November. (CISAC) we have a number of -- I'd like to refer to the need to the transfer of values. The greatest challenge -- which is the greatest challenge facing creators, and then there's the changing role of Internet service providers. As very often the authors are marginalized by the digital economy and the value chain. And then the comments about the need to interpret WIPO treaties in the most faithful way possible to the original spirit and also prudence in implementing exceptions and limitations using other alternatives where possible, such as licenses. Thank you.

FILE:
Thank you, Chairman, and I congratulate you and your vice chairs on your guidance at this meeting, and I associate myself with these statements made by -- the statements made by states such as the USA, E.U.. I'd also like to congratulate GRULAC on this proposal and recommend the committee, in the face of all these studies, which are very interesting, that we performers believe there are priorities, including, for example, the very low or zero remuneration being paid to authors for our works and our performances on Internet in the digital environment, and so we would, therefore, recommend that mainly this study should focus on that and the GRULAC proposal should be a permanent item on the agenda, and as regards the discussion of the legal systems used -- so this should be included and also the three conclusions reached by the professor should be included on the agenda of this committee. And in all this, the market is developing so rapidly, so we should invent our norms as quickly as possible so that we can compete on an equal footing, on a level playing field in this market. Thank you.

Knowledge Ecology International:
Thank you very much. I was -- like others, we'd like to take a harder look at the study. One observation I would make is in the original GRULAC proposal, looming large were issues about economics, concentration of ownership in the area of distributing works, questions about the fairness of the distribution of revenue between creative people and distributors of works. I think in some ways that what was described as the study, although it looked very competent and a great cast of characters in terms of the researchers, I would -- I think you may want to examine whether there's more economics or economists that can be brought in to shed more light on the issues raised in the initial paper. And the last thing I wanted to say is we're -- and we've talked to some Delegates about this, or actually, I should say they've talked to us about it and we agree, that the issue of metadata as it relates to digital works is really a new topic that has come about because of the digitalization of works and the development of the Internet. We often feel that the metadata's managed on behalf of right owners but not necessarily on behalf of either the creative individuals or the audiences or the readers or the listeners, and so I think this is a -- related to the GRULAC proposal. It may be a subset, but I also think it's a topic that we would like to see explored more. Thank you very much.

PAAIG:
Thank you, Chair. I would like to focus on the role of limitations and exceptions in the digital environment for the priority of the committee at this time. There's things called non expressive uses, uses that are necessary for technological processes but do not compete with the copyright owner necessary to offer the services and Internet offer over it. We have been doing research on this topic and have been doing studies that suggest the presence of such exceptions is related to investment in growth of local digital technologies. We cannot have streaming without buffering, we can't have artificial intelligence, machine learning, text and data mining, Internet-based translation services without the right to use whole works for purposes that do not compete with the original, but only a small number of countries around the world provide these clear limitations and exceptions, and the lack of those limitations and exceptions is reducing local investment and local innovation in this area. As the experts note, the E.U. has taken a step in the right direction in this regard, creating a mandatory exception for certain technological processes in the directive. That model's not perfect. Many of these digital innovations that I mention actually require permanent copies. Nonetheless, the concept that we need a mandatory exception in this regard that can facilitate cross-border digital trade and local production and innovation should guide this committee. Thank you.

Corporacion Innovarte:
Thank you very much, Mr. Chairman. We're grateful for the work done by the Secretariat on this topic, as also the explanations from the professors that gave us their opinions. We think that the issue of guaranteeing fair remuneration for creators is extremely important. This item should be considered as a standing item on the committee's agenda. However, we also wanted to hearken back to what El Salvador said; in other words, there should be more participation and transparency in the work done in the group of experts in order to guarantee that all of the concerns and issues are covered that are related to this work. Finally, as to the checklists on contracts, this should include not just intermediary platforms such as YouTube, but also contracts between authors and producers or collective entities which also should be a subject of interest for this committee. Thank you.

Latin Artists:
Thank you very much, Mr. Chairman. Latin artists represents associations of actors and other performers in the audiovisual field. We are grateful for looking at the precarious situation of artists and other creators in connection with the use of their performances in the digital era. This was described, effectively, by GRULAC in its proposal. This affects not only musical work but audiovisual works as clarified by the Delegation of Brazil at the last session of this committee, and despite the fact that the same Delegation has referred exclusively today to music. In this situation, we think that the solution is not just exploratory studies, as we heard this morning. We also need to bear in mind that this scope exceeds the specific problems indicated in the GRULAC proposal, more particularly in the need to find appropriate formulas to guarantee that artists and other creators can benefit from the economic content of their performances in the digital era; in other words, formulas that guarantee that artists and authors can have fair remuneration in online use of their interpretation and performance and works. From this viewpoint, we think in the framework of the study we have to look not just at computers or databases. This can simply distract us from the questions we have before us, something that seems to be of concern to certain Delegations, as was expressed this very morning. In fact, ultimately, sir, if the debate that took place at the last session of this committee focused on the proposal of GRULAC, the study should focus exclusively on the problems identified in that proposal. That is all. At any rate, we are attentive to the conclusions which we hope will be reached and presented at the next session of this committee, and we hope that they will foster a debate that can no longer be delayed. Artists and authors need solutions. With all due respect, we cannot allow this time wastage to take place. We need an equitable sharing and the economic benefits derived from the digital use of their interpretations and works. Lastly, Latin artists understands that this question should be a standing independent item on the agenda of the committee. Thank you very much.

LCA:
Thank you, Mr. Chairman. I'd like to echo the statement of El Salvador and the United States that it will be very helpful to have written conclusions of the experts in advance so that we can react to them intelligently. Also, I would like to agree with the United States that the committee should focus on copyright issues and not more abstract market issues. If we start focusing on issues like the value gap, we also need to consider the value to authors of the free global distribution provided by Internet platforms. Thank you.

AADI:
Thank you very much, Mr. Chairman. On behalf of the general association of performers and collective management of related rights of musical performers in the Republic of Argentina, I should like to congratulate you on your appointment as Chairman of this committee as also your new vice chairs. We wish them every success in their work with the cooperation of the Secretariat and the Delegations of the countries making up this committee. I have no doubt that you will have a successful outcome. Also, I'd like to congratulate professors to thank them for both of their presentations and also the Secretariat for its necessary and positive work to bring information to us. Since the first time that the GRULAC brought a document forward has welcomed this discussion. This was an informed document made available in December 2015 by the Delegation of Brazil. At that time and today, apart from a legal solution for each country, that has found four questions on this item, the document is 31/4, which plays a major role placing on the agenda the issue of performers' rights in a digital era to make the possible damage visible to them that are suffered by performers and artists as also to make it obvious who has caused this damage; in other words, major musical production companies. We have made this public and we have fought for obligatory reflective remuneration for artists and performers in my country. I would like to point out today we are not the only ones to have this stance. We have the extraordinary of Filia, which is a Latin America company of artists and performers, which stated at its annual meeting in October 2016, it is important for document SCCR/31/4, which proposes an analysis of copyright in the digital age to be made visible and to make obvious the various difficulties encountered as also to enable our artists to consolidate their work. I do not wish to dwell on these matters further, but I must say that on a daily basis, I see how major corporations make huge profits at the expense of performers. Is this some kind of a joke? But what we need is actions from whatever quarter can prevent their action and promote our action as performers in the digital era. Thank you.

Centre for Internet and Society:
Thank you Mr. Chair. On behalf of CIS, it is my submission that the study can additionally focus on all the key actors along the entire supply and value chain involved in content dissemination in the digital environment, complementing the study of the legal environments. This would shed considerable light on national legal frameworks and also provide us evidence of transparency, or the lack thereof in the businesses involved and the extent of low proportions of copyright and related rights payment to the creators and their unfair treatment. Thank you.

Electronic Information for Libraries:

Thank you, Mr. Chair. There were very many proposals on the interest of libraries, including the management of copyright limitations and exceptions in the digital environment, digital exhaustion, licenses, territoriality, and the interpretation of the three-step test. I'd like to thank the two professors for their presentations. We'd be very interested in the findings with regard to the review of copyright laws for digital uses that was dealt with at the start of the presentation. When we looked at data from the Crews study on limitations and exceptions for libraries and archives, we found that in countries that have amended their copyright laws in the last five years, digital copying is expressly barred in over 1/3 of them, even for preservation reasons. My question is are you also considering in the work the evidence and examples of problems experienced by beneficiaries of certain exceptions, such as the library and archive community, when working in the digital environment, as presented to this committee by the community over the last number of years? That would help to further inform the discussion and the possible conclusions. Thank you.

Program on Information Justice and Intellectual Property:
I would like to support that aspect of the GRUAC proposal that focuses on the role of limitations and exceptions in the digital environment as a top priority for this committee.
There is an increasing recognition that so-called non-expressive uses – uses necessary for technological processes that do not compete with the copyright owner – are necessary to enable the internet and the services that are offered over it.
We at American university have been doing studies that suggest that the presence of open exceptions for technological processes isrelated to investment and growth of local digital technologies. Countries with more open exceptions do better at attracting investments in fields such as software engineering. We cannot have local streaming services without local buffering rights. We cannot have local search, artificial intelligence, machine learning, text and data mining, and internet based translation services without local rights to use whole works for purposes that do not compete with the original.
Only a small number of countries around the world provide the clear limitations and exceptions in these areas. And only a small number of countries have robust industries in related fields. But all these services are international by nature, and therefore the lack of harmonization of enabling rights is increasingly perceived as a barrier to trade.
As the experts note, the EU has taken a step in the right direction that can serve as a model in this regard – creating a mandatory exception for certain technological uses in the INFOSOC directive.
That model is not perfect. Many digital innovations I have mentioned use entire works on a basis that might not be viewed as temporary. Nonetheless, the concept that we need a mandatory exception in this regard to facilitate cross border digital trade is salient, and should guide this committee.
Thank you.

Note: Source of the statement texts are WIPO's realtime transcription service.

For more details visit http://editors.cis-india.org/a2k/blogs/34th-sccr-observer-statements-on-proposal-for-analysis-of-copyright-related-to-the-digital-environment

34th SCCR: CIS Statement on the Proposal for Analysis of Copyright Related to the Digital Environment

sinha — 2017-05-15T10:42:28Z

Anubha Sinha, attending the 34th Session of the World Intellectual Property Organization (“WIPO”) Standing Committee on Copyright and Related Rights (“SCCR”) at Geneva from 1 May, 2017 to 5 May, 2017, made this statement during the discussion on the Proposal for Analysis of Copyright Related to the Digital Environment.

Thank you Mr. Chair.

On behalf of CIS, it is my submission that the study can additionally focus on all the key actors along the entire supply and value chain involved in content dissemination in the digital environment, complementing the study of the legal environments. This would shed considerable light on national legal frameworks and also provide us evidence of transparency, or the lack thereof in the businesses involved and the extent of low proportions of copyright and related rights payment to the creators and their unfair treatment.

Thank you.

For more details visit http://editors.cis-india.org/a2k/blogs/34th-sccr-cis-statement-on-the-proposal-for-analysis-of-copyright-related-to-the-digital-environment

34th SCCR: CIS Statement on the Discussion on Limitations and Exceptions for Libraries and Archives

sinha — 2017-05-15T10:35:36Z

Anubha Sinha, attending the 34th Session of the World Intellectual Property Organization (“WIPO”) Standing Committee on Copyright and Related Rights (“SCCR”) at Geneva from 1 May, 2017 to 5 May, 2017, made this statement during the discussion on limitations and exceptions for libraries and archives.

Thank you, Mr. Chair.

CIS works on issues of access to knowledge and other digital rights in India.

I would like to share with you my experience which highlights the difficulty of building digital archives in India. Mr. Chair, earlier last year the government of India embarked upon the important project of digitizing the cultural audiovisual material stored in government and private collections to store material for preservation purposes, and set up a virtual network of these repositories to offer online access. My organization has been assisting them in this crucial public service mission. These works are oral traditions, dance, music, theatrical practices, cultural practices – all of which lie largely inaccessible and languishing in several small and large collections in India. Since, the Indian copyright Act does not contain an exception for the purposes of preservation by an archive; the entire project has suffered high costs in terms of money and time. Money, because the project had to get expensive legal assistance to set up processes to obtain rights clearance from all the performers who were a part of the works and copyright holders- some of which are orphan works, thereby compounding the problem. Further, partnering organizations also expressed legitimate fears of supplying their works, in case of a potential copyright and related rights violation that could implicate them with civil/criminal liability.

Thank you.

For more details visit http://editors.cis-india.org/a2k/blogs/34th-sccr-cis-statement-on-the-discussion-on-limitations-and-exceptions-for-libraries-and-archives

Seminar on Rethinking Copyright and Licensing for Digital Publishing Today (Delhi, January 23)

sinha — 2017-01-21T14:51:56Z

Against the backdrop of a growing global and domestic digital publishing industry on one hand and the recent judgment by the Delhi High Court that upheld the education exception to reproduction of academic and literary works, Pro Helvetia - Swiss Arts Council, Goethe-Institut Max Mueller Bhavan New Delhi, and the Centre for Internet and Society (CIS) are organising a seminar to discuss and reflect on the relevance and functions of copyright and licensing within the transforming market practices and legal structures of the publishing industry today.

Poster: Download (PNG)

The two speakers at the seminar will be Dr. Philipp Theisohn, Professor of Modern German Literary Studies, Zurich University, and Ms. Kerstin Schuster, Droemer Knaur publishing group. The session will be chaired by Mr. Zakir Thomas, Additional Director General (Risk Assessment), Directorate of Income Tax, Government of India.

Dr. Theisohn will address the question of whether the digital age requires a new approach to copyright thinking, and Ms. Schuster will discuss the dynamics of the international market for licenses in the contemporary publishing world.

Please join us at the CIS Delhi office on Monday, January 23, at 11:00 for the seminar. The seminar will include the presentations by the speakers followed by an open moderated discussion.

Further, it is our great pleasure to inform you that in a recent judgement on the Super Cassettes v. MySpace case, the Delhi High has strengthened the safe harbor immunity enjoyed by internet intermediaries in India. As CIS was one of the intervenors in the case, and has been duly acknowledged in the judgment, we would like to invite you for an informal discussion about the case over lunch. This will take place after the seminar.

A brief analysis of the judgement can be found here.

Please RSVP by sending an email to Nisha Kumar at nisha@cis-india.org.

Address: The Centre for Internet and Society, first floor, B 1/8, Hauz Khas, near G block market, after Crunch, New Delhi, 110016.

Location on Google Map: http://j.mp/cis-delhi.

Philipp Theisohn

Philipp Theisohn, who was born in 1974, studied Modern German Literature, Medieval Studies and Philosophy in Tübingen and Zürich. He gained his doctorate in Jerusalem and Tübingen and, since 2013, has been Professor of Modern German Literary Studies at Zurich University. He has produced numerous publications on German and European literary history from the 13th to the 21st century, in particular on “literary future knowledge“, the perception of literary property, and Jewish Cultural Poetics.

The focal points of his work and research are the literature of Switzerland, literary property/plagiarism as a literary historical phenomenon, science fiction and futurology, realism, Franz Kafka and Early Modern Poetics of Knowledge.

Theisohn is intensely involved in the transmission of literature far beyond the academic environment. He is a member of the jury for the “Swiss Book Prize“ of the Publishers‘ Association, an expert for inter-disciplinary and literary projects for the Swiss Arts Council Pro Helvetia; he curates literary exhibitions, is active in a broad range of journalistic work, among other things for the Neue Zürcher Zeitung, and is in charge of the blog and website of the “Schweizer Buchjahr” which contributes significantly to contemporary literary discourse.

Among his most important book publications are: "Die Zukunft der Dichtung. Geschichte des literarischen Orakels 1450-2050" (“The Future of Poetry. The History of the Literary Oracle 1450-2050”); “Plagiat. Eine unoriginelle Literaturgeschichte”( “Plagiarism. An Unoriginal Literary History”) and “Literarisches Eigentum. Zur Ethik geistiger Arbeit im digitalen Zeitalter” (“Literary Property. On the Ethics of Intellectual Work in the Digital Age”).

Kerstin Schuster

Having obtained a university degree in Romance Studies and Political Science, Kerstin Schuster worked in the bookselling trade. Since 1993 she is trading licenses for the international market. She has worked till 2001 for the literary agency Dr. Ray-Güde Martin, from 2001 until 2013 for the publishing house S. Fischer Verlag in Frankfurt, and since 2014 for the Droemer Knaur publishing group.

For many years now, Kerstin Schuster is also facilitating seminars on how to successfully offer and sell licenses in the international market.

Zakir Thomas

Mr. Thomas is an expert in the field of intellectual property. He has served as a former Registrar of Copyright for the Government of India, and as a project director of the Open Source Drug Discovery Initiative under the Council of Scientific & Industrial Research (a premier R&D org). His expertise spans across copyright, open source innovation, neglected diseases and innovation ecosystem in science and technology in India.

For more details visit http://editors.cis-india.org/a2k/events/seminar-on-rethinking-copyright-and-licensing-for-digital-publishing-today-delhi-jan-23-2017

Super Cassettes v. MySpace (Redux)

sinha — 2017-01-18T14:31:25Z

The latest judgment in the matter of Super Cassettes v. MySpace is a landmark and progressive ruling, which strengthens the safe harbor immunity enjoyed by Internet intermediaries in India. It interprets the provisions of the IT Act, 2000 and the Copyright Act, 1957 to restore safe harbor immunity to intermediaries even in the case of copyright claims. It also relieves MySpace from pre-screening user-uploaded content, endeavouring to strike a balance between free speech and censorship. CIS was one of the intervenors in the case, and has been duly acknowledged in the judgment.

On 23rd December 2016, Justice Ravindra Bhat and Justice Deepa Sharma of the Delhi High Court delivered a decision overturning the 2012 order in the matter of Super Cassettes Industries Limited v. MySpace. The 2012 order was heavily criticized, for it was agnostic to the technological complexities of regulating speech on the Internet and cast unfathomable burdens on MySpace. In the following post I summarise the decision of the Division Bench. Click here to read the judgment.

Brief Facts

In 2007, Super Cassettes Industries Limited (SCIL) filed a suit against MySpace, a social networking platform, alleging copyright infringement against MySpace. The platform allowed users to upload and share media files, inter alia, and it was discovered that users were sharing SCIL’s copyrighted works sans authorisation. SCIL promptly proceeded to file a civil suit against MySpace for primary infringement under section 51(a)(i) of the Copyright Act as well as secondary infringement under section 51(a)(ii).

The 2012 order was extremely worrisome as it had turned the clock several decades back on concepts of internet intermediary liability. The court had held MySpace liable for copyright infringement despite it having shown no knowledge about specific instances of infringement; that it removed infringing content upon complaints; and that Super Cassettes had failed to submit songs to MySpace's song ID database. The most impractical burden of duty that the court pronounced was that MySpace was required to pre-screen content, rather than relying on post-infringement measures to remove infringing content. This was a result of interpreting due diligence to include pre-screening.

The court injuncted MySpace from permitting any uploads of SCIL's copyrighted content, and directed to expeditiously execute content removal requests. To read CIS' analysis of the Single Judge's interim order, click here.

In the instant judgment, the bench limited their examination to MySpace’s liability for secondary infringement, and left the direct infringement determination to the Single Judge at the subsequent trial stage. In doing so, the court answered the following three questions:

1) Whether MySpace could be said to have knowledge of infringement so as to attract liability for secondary infringement under Section 51(a)(ii)?

No. According to the Court, in the case of internet intermediaries, section 51(a)(ii) contemplates actual knowledge and not general awareness.

Elaborating re the circumstances of the case, the Court held that to attract liability for secondary infringement, MySpace should have had actual knowledge and not mere awareness of the infringement. Appreciating the difference between virtual and physical worlds, the judgment stated “the nature of internet media is such that the interpretation of knowledge cannot be the same as that is used for a physical premise.”

As per the court, the following facts only amounted to a general awareness, which was not sufficient to establish secondary liability:

Existence of user agreement terms which prohibited users from unauthorised uploading of content;
Operation of post-infringement mechanisms instituted by MySpace to identify and remove content;
SCIL sharing a voluminous catalogue of 100,000 copyrighted songs with MySpace, expecting the latter to monitor and quell any infringement;
Modifying videos to insert ads in them: SCIL contended that MySpace invited users to share and upload content which it would use to insert ads and make revenues – and this amounted to knowledge. The Court found that video modification for ad insertion only changed the format of the video and not the content; further, it was a pure automated process and there was no human intervention.

Additionally, no constructive knowledge could be attributed to MySpace to demonstrate reasonable ground for believing that infringement had occurred. A reasonable belief could emerge only after MySpace had perused all the content uploaded and shared on its platform – a task that was impossible to perform due to the voluminous catalogue handed to it and existing technological limitations.

The Court imposed a duty on SCIL to specify the works in which it owned copyright and being shared without authorisation on MySpace. It held that merely giving names of all content it owned without expressly pointing out the infringing works was contrary to the established principles of copyright law. Further, MySpace contended and the judge agreed, that in many instances the works were legally shared by distributors and performers – and often users created remixed works which only bore semblance to the title of the copyright work.

In such cases it becomes even more important for a plaintiff such as MySpace to provide specific titles, because while an intermediary may remove the content fearing liability and damages, an authorized individual’s license and right to fair use will suffer or stand negated. (Para 38 in decision)

Thus, where as MySpace undoubtedly permitted a place of profit for communication of infringing works uploaded by users, it did not have specific knowledge, nor reasonable belief of the infringement.

2) Does proviso to Section 81 override the "safe harbor" granted to intermediaries under Section 79 of the IT Act, 2000?

and

3) Whether it was possible to harmoniously read and interpret Sections 79 and 81 of the IT Act, and Section 51 of the Copyright Act?

No, the proviso does not override the safe harbor, i.e. the safe harbor defence cannot be denied to the intermediary in the case of copyright actions.The three sections have to be read harmoniously, indeed.

The judgment referred to the Parliamentary Standing Committee report as a relevant tool in interpreting the two provisions, declaring that the rights conferred under the IT Act, 2000 are supplementary and not in derogation of the Patents Act or the Copyright Act. The proviso was inserted only to permit copyright owners to demand action against intermediaries who may themselves post infringing content – the safe harbor only existed for circumstances when content was third party/user generated.

Given the supplementary nature of the provisions- one where infringement is defined and traditional copyrights are guaranteed and the other where digital economy and newer technologies have been kept in mind, the only logical and harmonious manner to interpret the law would be to read them together. Not doing so would lead to an undesirable situation where intermediaries would be held liable irrespective of their due diligence. (Para 49 in decision)

Regarding section 79, the court reiterated that the section only granted a limited immunity to intermediaries by granting a measured privilege to an intermediary, which was in the nature of an affirmative defence and not a blanket immunity to avoid liability. The very purpose of section 79 was to regulate and limit this liability; where as the Copyright Act granted and controlled rights of a copyright owner.

The Court found Judge Whyte’s decision in Religious Technology Centre v. Netcom Online Communication Services (1995), to be particularly relevant to the instant case, and agreed with its observations. To recall, Netcom was the landmark US ruling which established that when a subscriber was responsible for direct infringement, and the service providers did nothing more than setting up and operating tech systems which were necessary for the functioning of the Internet, it was illogical to impute liability on the service provider.

On MySpace Complying with Safe Harbor Requirements under Section 79 of the IT Act, 2000 (and Intermediary Rules, 2011)

The court held that MySpace's operations were in compliance with section 79(2)(b). The content transmission was initiated at the behest of the users, the recipients were not chosen by MySpace, neither was there modification of content. On the issue of modification, the court reasoned that since modification was an automated process (MySpace was inserting ads) which changed the format only, without MySpace's tacit or expressed control or knowledge, it was in compliance of the legislative requirement.

Despite several safeguard tools and notice and take down regimes, infringed videos find their way. The remedy here is not to target intermediaries but to ensure that infringing material is removed in an orderly and reasonable manner. A further balancing act is required which is that of freedom of speech and privatized censorship. If an intermediary is tasked with the responsibility of identifying infringing content from non-infringing one, it could have a chilling effect on free speech; an unspecified or incomplete list may do that. (Para 62 in decision)

On the second aspect of due-diligence, the court held that Mypace complied with the due diligence procedure specified in the Rules - it published rules, regulations, privacy policy and user agreement for access of usage. Reading Rule 3(4) with section 79(2)(c), the court held that it due diligence required MySpace to remove content within 36 hours of gaining actual knowledge or receiving knowledge by another person of the infringing content. If MySpace failed to take infringing content down accordingly, then only will safe harbour be denied to MySpace.

This liberal interpretation of due diligence is a big win for internet intermediaries in India.

Additional Issues Considered by the Court

MySpace also tried to defend its activities by claiming the shield of the fair dealing section of the Indian Copyright Act. However, the Court refused, stating that the fair dealing defence was inapplicable to the case as the provisions protected transient and incidental storage. Whereas, in the instant circumstances, the content in question was stored/hosted permanently.

MySpace also contended that the Single Judge's injunction order was vague and general and had foisted unimplementable duties on MySpace, disregarding the way the Internet functioned. If MySpace had to strictly comply with the order, it would have to shut its business in India. The Court said that the Single Judge's order, if enforced, would create a system of unwarranted private censorship, running contrary to the principles of a free speech regime, devoid of considerations of peculiarities of the internet intermediary industry. Private censorship would also invite upon the ISP the legal risk of wrongfully terminating a user account.

Finally, the Court urged MySpace to explore and innovate techniques to protect the interests of traditional copyright holders in a more efficient manner.

Relief Granted

Setting aside the Single Judge's order aside, the Court directed SCIL to provide a specific catalogue of infringing works which also pointed to the URL of the files. Upon receiving such specific knowledge, MySpace has been directed to remove the content within 36 hours of the issued notice. MySpace will also keep an account of the removals, and the revenues earned from ads placed for calculating damages at the trial stage.

For more details visit http://editors.cis-india.org/a2k/blogs/super-cassettes-v-myspace

33rd SCCR: CIS Statement on the GRULAC Proposal for Analysis of Copyright in the Digital Environment

sinha — 2016-11-18T15:28:21Z

Anubha Sinha, attending the 33rd Session of the World Intellectual Property Organization (“WIPO”) Standing Committee on Copyright and Related Rights (“SCCR”) at Geneva from 14 November, 2016 to 19 November, 2016, made this statement on the GRULAC Proposal for Analysis of Copyright in the Digital Environment on behalf of CIS on Day 5, 18 November, 2016.

Thank you, Mr. Chair.

The Centre for Internet and Society is a non-profit organisation in India that undertakes research on internet and digital technologies from an academic and policy perspective.

In an environment of monopolies controlling the distribution of software and digital services, which connect users and developers, such a comprehensive study assumes significant importance.

Such a study/or a parallel study after the scoping exercise must encompass the methods in which such digital corporations are enforcing their own IP rules on creators worldwide, and if there are fair systems in place to address violations, and restoration of works unfairly taken down from their platforms. It must be noted that there is a serious lack of transparency as far as the conduct of such corporations go, and often actions are taken without appropriate justification/explanation. Back in India, I have met several creators who have suffered as a result of such unilateral actions. In this, regard it will be useful to know how creators in developing countries are impacted by rules enforced by platforms largely situated in developed countries, which can help us build a framework for the benefit of all, equally.

I welcome the proposal.

Thank you, Mr. Chairman.

Access the proposal here.

For more details visit http://editors.cis-india.org/a2k/33rd-sccr-cis-statement-on-the-grulac-proposal-for-analysis-of-copyright-in-the-digital-environment

33rd SCCR: CIS Statement on the Proposed Treaty for the Protection of Broadcasting Organizations

sinha — 2016-11-16T13:37:41Z

Anubha Sinha, attending the 33rd Session of the World Intellectual Property Organization (“WIPO”) Standing Committee on Copyright and Related Rights (“SCCR”) at Geneva from 14 November, 2016 to 19 November, 2016, made this statement on the Proposed Treaty for the Protection of Broadcasting Organizations on behalf of CIS on Day 3, 16 November, 2016.

Thank you, Mr. Chair.

The Centre for Internet and Society is a civil society organisation from India. We would like to associate ourselves with the statements made by KEI and Karisma Foundation.

First, Mr. Chair, on SCCR/33/5 Note on the Draft Treaty to Protect Broadcasting Organizations which is a document presented by the delegations of Argentina, Colombia and Mexico – which was flagged off as relevant for SCCR/33/3. Mr. Chair, this document is problematic as it in essence, tries to extend the scope of the treaty to apply to internet-originated content, and thus by extension internet transmissions. This manifested in the push for protection of on-demand material and catch-up services as well in the discussions over the past two days.

Mr. Chair, I’d like to reeiterate that the mandate of the General Assembly was confined to broadcasting and cablecasting organizations in the traditional sense; the definition of broadcasting, protected by the scope of the Treaty, should as such be limited to the type of transmission exploited by traditional broadcasters – as stated by the delegation of Iran.

Further, Mr. Chair where as EU, China, Argentina, Colombia and Mexico continue to speak of technological advancements to justify expansion of rights under the treaty, there has still been no discussion on the inadequacy of existing international legal instruments to address these technological advancements, to justify the broadcasters’ ask of an additional layer.

Finally, reiterating the Asia-pacific group, the canvassing of this treaty should be balanced: it should take into account commercial interests in copyright and right holders, and equally important, it should also take into account other competing interests in copyright, including the public interest in scientific, cultural, social progress and promoting competition.

Thank you.

For more details visit http://editors.cis-india.org/a2k/33rd-sccr-cis-statement-on-the-proposed-treaty-for-the-protection-of-broadcasting-organizations

33rd SCCR: Opening Statement by India on behalf of the Asia and the Pacific Group

sinha — 2016-11-14T11:04:27Z

Dr. Sumit Seth(Economic Affairs) of the Permanent Mission of India in Geneva delivered the Opening Statement on behalf of the Asia and the Pacific Group at 33rd Session of the of the Standing Committee on Copyright and Related Rights on 14th November 2016.

Mr. Chair,
India has the honor to deliver the Opening Statement on behalf of the Asia and the Pacific Group in this 33rd Session of the Standing Committee on Copyright and Related Rights.
Asia & the Pacific Group would like to express its confidence in your experience and your leadership skills. We are confident that your hard work and diligence will yield desired results and help this committee reach a mutual understanding on all outstanding issues. Our group would also like to thank the WIPO Secretariat for the preparation of this meeting.

Mr. Chair,
The SCCR is an important committee of WIPO dealing with three issues of critical importance to member states, namely protection of broadcasting organizations; limitations and exceptions for libraries and archives; and limitations and exceptions for educational and research institutions and for persons with other disabilities.
These three issues are of great importance to our group. Going by the discussions in this committee since its 27th session, it would not be wrong to say that we are facing difficulty in finding agreement on how to continue our work on each of the three important agenda items. We believe, in order to further our work, we have to refer to the 2012 General Assembly guidance to the SCCR on the work plan on the three issues.

Mr. Chair,
Our group believes that these issues have not received the equal level of commitment and understanding proportionate to their importance based on the differential socio-economic development of the Member States.
In this spirit of multilateralism, Asia and the Pacific Group reaffirms its commitment to engage constructively in negotiating a mutually acceptable outcome on all three issues before the committee. Our group would like to put on record its support for the proposed program of work.

Mr. Chair,
Determining whether and how intellectual property rights should apply with respect to broadcasting is a developmental issue that requires careful balancing. Members of the group would like to see the finalization of a balanced treaty on the protection of broadcasting organizations, based on the mandate of the 2007 WIPO General Assembly to provide protection on the signal based approach for cablecasting and broadcasting organizations in the traditional sense.

Mr. Chair,
For our Group, exceptions and limitations are of critical importance. Application of copyright system should be balanced, it should take into account commercial interests in copyright and right holders, and equally important, it should also take into account other competing interests in copyright, including the public interest in scientific, cultural, social progress and promoting competition.
Exceptions and limitations have an important role to play in the attainment of the right to education and the access to knowledge, actualization of which in many developing countries is hampered due to lack of access to relevant educational and research material.
However, there is no denying the fact that some divergence on how exceptions and limitations should be approached exists among member states.
It is unfortunate that absence of adequate will to discuss and develop the two exceptions and limitations before this committee has resulted in a stalemate on the work of this committee.
We hope that all member states shall engage constructively in this session on these two issues based on previous discussions and new inputs so that we are able to develop a mature text to discuss and work on

Mr. Chair,
Asia and the Pacific Group has taken note of the proposal submitted by the GRULAC in the 31st session to discuss the current digital environment and copyright interface. Members of my group will make interventions in their national capacity under this agenda item and will proactively participate in the discussion on this contemporary topic.

Mr. Chair,
This is the same committee which has given us the Beijing and the Marrakesh Treaties. My group is optimistic that with the noble intentions and the right will we can pave the path for the development of appropriate international instruments on all three issues.
We look forward to productive results and tangible progress in this session
I thank you once again Mr. Chair for the opportunity.

For more details visit http://editors.cis-india.org/a2k/blogs/33rd-sccr-opening-statement-by-india-on-behalf-of-the-asia-and-the-pacific-group

Why Open Access Has To Look Up For Academic Publishing To Look Up

sinha — 2016-10-12T16:22:10Z

In an important development, the US Federal Trade Commission has filed a complaint against the India-based OMICS group for harassing authors to publish in its journals.

The article was published in the Wire on October 12, 2016.

“…if you are a member of the knowledge elite, then there is free access, but for the rest of the world, not so much … Publisher restrictions do not achieve the objective of enlightenment, but rather the reality of ‘elite-nment.” Lawrence Lessig

In 2011, speaking impassionately to an audience at CERN – one of the world’s largest institutions for nuclear physics research, headquartered in Geneva – Lessig, a professor of law at Harvard Law School and a political activist, highlighted the crisis of access to scientific scholarship. Indeed, over the last six decades, public access to scholarly works has diminished. Works that can be freely searched and read represent only a sliver of the entire wealth of human knowledge.

With the emergence of academic journals in the seventeenth century, the practice of exchanging manuscripts for review and comments became popular, leading to the establishment of the peer-review system. In fact, until the eighteenth century, there existed a strong belief in the intellectual commons and traditions of sharing knowledge between scholars. These traditions dated back to scholarship flourishing in ancient Greece. Open access was the default, and not the exception to the norm.

However, by the nineteenth century, there occurred a game-changing shift in the approach to knowledge production. It was theorised that the commons approach was inefficient and that knowledge needed to be exclusively owned to spur further production. This was in line with the incentive theory of copyright law, which was an added justification to the commoditisation of knowledge. In such circumstances, all scholarly works increasingly came to be fortified within the expensive walls of academic journals. Journals left no stone unturned to capitalise on scholars vying to get published in prestigious titles (Nature, Lancet, Cell, etc.).

The business model rarely rewarded authors or peer reviewers. On the contrary, some journals required authors to pay a considerable fee to publish their work. Subscription charges to such research, a large part of which was funded by the government (i.e. taxpayers), hit the roof and could be afforded only by elite institutions. And with the advent of the digital age, the fortresses moved online.

However, before the internet arrived, there had been efforts to counter the entrenchment of scholarly works. They were mostly in the nature of social movements, located broadly within the philosophical umbrella of openness. The nineties marked a significant increase in the modes of access, through devices connected to the internet. Previously a fringe movement, openness was now entering the realms of publishing, software, standards development, education and data. It manifested in Linux, Wikipedia, open web standards, open educational resources, open government data, Creative Commons and, particularly, open access publishing. Just last month, a UN report called for open access to research to improve public health.

Open access publishing was a breakaway from the traditional scholarly publishing model. It offered a different model of online research publication informed by the principles of transparency, free access and unrestricted access. Three key definitions exist, and the Budapest Open Access Initiative (2002) provides a good overview of it:

There are many degrees and kinds of wider and easier access to this literature. By ‘open access’ to this literature, we mean its free availability on the public internet, permitting any users to read, download, copy, distribute, print, search, or link to the full texts of these articles, crawl them for indexing, pass them as data to software, or use them for any other lawful purpose, without financial, legal, or technical barriers other than those inseparable from gaining access to the internet itself. The only constraint on reproduction and distribution, and the only role for copyright in this domain, should be to give authors control over the integrity of their work and the right to be properly acknowledged and cited.

Further, open access is compatible with copyright, peer review, revenue (even profit), print, preservation, prestige, quality, career-advancement, indexing, and other features and supportive services associated with conventional scholarly literature (as Peter Suber wrote in 2004). The model broadly offers two routes: gold and green. Gold open access involves publication in an open access journal. The journal provides for peer-review, retention of copyright by the author and in most cases requires author-side fees. Green open access involves publishing a work in an online repository, with/without peer-review. The models have several variations, and adoption often depends on their suitability for a particular discipline. Many institutions now have an Open Access Mandate policy.

Latest challenges to open access publishing

For a 15-year-old movement (formally), open access publishing is making a serious dent in the market for scholarly publications. It has emerged as a formidable competitor to the traditional model. How else do you explain the unfortunate acquisition of SSRN – one of the largest online open access repositories – by the largest publisher of academic journals, Elsevier, earlier this year? Where, within a few days of Elsevier gaining control, users began to notice problematic takedowns of articles on SSRN.

The acquisition was a severe blow to open access publishing. To be fair, there remain certain issues intrinsic to open access publishing models that need urgent resolution. For instance, while some open access journals provide high quality services at levels comparable to that of paywalled journals, a large majority has been unable to reach reasonable standards of publication.

Further, as it has emerged lately, many are yet to crack the business model while a few are driven by malicious attempts to con authors. Most commercial open access publishers have resorted to a system of levying from the authors an article-processing charge (APC). These publishers include large players such as the Public Library of Science journals and BioMed Central. APCs are justified as necessary costs for publication. Thus, sometimes they are reasonably applied only to peer-reviewed submissions. However, sometimes they are blatantly misused by publishers who quote exorbitant APCs. As a result, APCs have become a serious concern for the academic community, with the reentry of an undesirable price barrier which has shifted the burden from the reader to the author.

In one noteworthy development, the US Federal Trade Commission (FTC) has filed a complaint against the OMICS group for deceiving authors and misrepresenting its editorial quality. The OMICS group has its roots in Hyderabad and runs a multitude of open access journals. It carried a notorious reputation for soliciting articles profusely, and then holding the articles hostage unless the authors paid hefty fees for their publication. It apparently charged the fees for conducting peer-review, which as this harrowing account of an author reveals, was an utter sham. It also seems that the group targeted unsuspecting scholars from developing countries, where there was a higher concentration of early-career researchers eager to get their works published.

Holding articles hostage and releasing unchecked versions must have already caused irreparable damage to several researchers’ reputations. In this day of web-caching and -indexing facilities, one wonders if the researchers will ever be able to obliterate linkages to their unchecked manuscripts. Further, in the long run, this phenomenon will ruin or suppress promising careers – especially from developing countries. As a result, the present lack of diversity in top-rung academia may not be eliminated for a long time.

Such harmful, predatory practices have not escaped the FTC’s notice, and it has stated that it will pursue cases of similar nature to protect authors and consumers. This is the first time in the world when a governmental authority has taken cognisance of predatory practices in OA publishing. This will hopefully lead to an appropriate cleansing effect of the players in this field, and enhance the credibility of open access journals.

Thus, self-regulation and standard-setting remains an area for improvisation in the open access publishing community. At the cusp of the movement, proposed structures were mired in legal and economic arguments. It is yet to overcome the challenge of economic sustainability and mature into a stable as well as replicable business model. The movement will be celebrating the Open Access Week for the ninth year later this month. It has gifted scholars immeasurably and lent itself to the progress of science and arts. Here’s hoping the community will iron out the remaining challenges to further strengthen the movement soon.

For more details visit http://editors.cis-india.org/openness/the-wire-anubha-sinha-october-12-2016-why-open-access-has-to-look-up-for-academic-publishing-to-look-up