Centre for Internet and Society

Global Civil Society Coalition launches website to promote Access to Knowledge

sinha — 2022-10-12T12:05:03Z

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

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

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

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

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

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

sinha — 2019-07-11T07:04:35Z

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

Preliminary

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

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

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

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

About The Centre for Internet and Society

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

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

Comments

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

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

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

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

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

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

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

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

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

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

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

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

[3] (1983) 2 SCC 40

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

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

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

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

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

sinha — 2019-06-05T13:19:28Z

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

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

Introduction

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

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

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

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

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

Key aspects of Indian scientific research

Funding of research

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

Indian institutional OA initiatives

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

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

Plan S' vision and current Indian scenario

Mandatory copyright retention by authors

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

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

Removal of embargoes

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

Addressing the menace of predatory publishing

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

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

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

Recent steps by Indian government and agencies

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

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

Government will have to foot APC bill

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

Imperfect competition in the scholarly publishing market

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

Conclusion

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

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

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

References

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

sinha — 2018-11-29T10:48:40Z

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

Good afternoon, everyone.

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

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

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

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

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

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

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

Thank you.

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

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

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

sinha — 2018-11-29T10:20:13Z

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

Thank you, Mr. Chair.

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

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

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

Thank you very much.

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

37th SCCR: CIS Statement on the Proposed Treaty for the Protection of Broadcasting Organizations

sinha — 2018-11-29T10:08:46Z

Anubha Sinha, attending the 37th Session of the World Intellectual Property Organization (“WIPO”) Standing Committee on Copyright and Related Rights (“SCCR”) at Geneva from November 26, 2018 to November 30, 2018, made this statement on the Proposed Treaty for the Protection of Broadcasting Organizations on behalf of CIS on Day 1, November 26.

Thank you, Mr. Chair.

There still remain concerns about the weak language on limitations and exceptions in the proposed treaty.

The proposed treaty is bound to have adverse effects on legally accepted existing practices of sharing and using online works. Libraries, archives, museums, educational and research institutions, public interest organisations such as Creative Commons, organisations and efforts directed at making orphan works available online - all perform critical roles to advance the progress of society. There is a looming threat on the continuation of their ability to access and to provide the public subsequent access to their collections. Thus, there is a dire need to incorporate robust solutions into the treaty text to not have unintended consequences on the society.

We must also make note of developments such as Facebook acquiring rights to stream La Liga matches in the Indian subcontinent and acquisition of Pandora by a broadcaster (Sirius XM). In such an environment, it is becoming impossible to technically eliminate the role of computer networks insofar as creating the signal and transmitting it is concerned. The treaty still envisages to not benefit those transmissions that occur exclusively on computer networks. In light of new business and technological realities, the deficiencies in the Committee's discussions are already apparent. We urge the committee to work to ensure that the resultant treaty is balanced in letter and spirit, both.

Thank you.

For more details visit http://editors.cis-india.org/a2k/blogs/37th-sccr-cis-statement-on-cis-statement-on-the-proposed-treaty-for-the-protection-of-broadcasting-organizations

Maharashtra's Copyright Policy Makes Education Unaffordable

sinha — 2018-06-26T14:22:30Z

In an alarming development for Indian students, Balbharati – the Maharashtra state bureau of textbook production and curriculum research – has issued a copyright policy that forces all publishers, digital educational-content creators, and coaching classes to obtain expensive licenses for developing material directly or indirectly relating to Balbharati’s content.

The article was published in Asia Times on June 20, 2018.

The stated object of the policy is to prevent commercialization of Balbharati’s physical and digital material.

Balbharati is responsible for setting curriculum and content for Classes 1-10, which is followed by Maharashtra state board schools. It is estimated that that around 85,000 schools in Maharashtra follow Balbharati’s prescribed content and syllabus, and the policy is set to affect students’ access to affordable supplementary material in state board schools, especially – most of which belong to the vernacular-rural section of society.

The government faced a backlash from various groups after the policy was released last week.

Parents have expressed serious concerns about the impending increase in the prices of educational material; publisher groups have already declared that the burden will be passed on to students. Some booksellers have stopped selling material altogether until the issue is resolved.

Digital and print publishers, booksellers and coaching classes are the ones directly affected, apart from the students, some of whom have lodged appeals with the state education minister, Vinod Tawde, to roll back the policy. Faced with the ire of multiple groups, the state government released a revised policy with a new license-fee structure. The new structure is based on “Balbharati Specific Turnover” slabs (defined as turnover of an entity from Balbharati related content), which depends on the nature of content produced – physical, digital, or tuition classes content.

A license is required of any person involved in the business of developing educational material such as guides, reference books, questions or tests, chapter summaries, model practice question papers, interactive digital content and software, with fees chargeable on a per subject, per medium, per grade basis.

The revisions to the policy only allow for a reduction in licensing fees, and it is likely that the government is still in ignorance of serious legal defects in it. Drafted with support from global consulting firm KPMG, the policy uses copyright as an instrument to justify the collection of license fees by making two fallacious assumptions: first, that all material produced by Balbharati is copyrightable; and second, that any dealing in Balbharati’s material, directly or indirectly, amounts to copyright infringement.

For example, the English Kumarbharati for Class 10 uses Tagore’s historic poem “Where the mind is held without fear…,” which is a work in the public domain now, and then proceeds to provide certain academic exercises for the reader.

Similarly, for science and mathematics syllabi, where basic facts and fundamental principles are provided and explained, is the Maharashtra government trying to establish copyright over such material, implying that this is creative material that has been developed by Balbharati’s staff?

Much of the content in Balbharati books deals with subjects that have been known to mankind for hundreds of years. Copyright law protects only expression of ideas, and not the ideas per se. Any supplementary material developed by another publisher over Balbharati’s syllabi should not amount to infringement, provided it is not a substantial copy-paste of Balbharati’s own expression in the books – and this is a conservative view of the scenario.

Indian copyright law

In fact, the Indian Supreme Court in the Eastern Book Company vs Modak (2008) case held that, “to establish copyright, the creativity standard applied is not that something must be novel or non-obvious, but some amount of creativity in the work to claim a copyright is required. Selection and arrangement can be viewed as typical and at best result of the labor, skill and investment of capital lacking even minimal creativity, which does not as a whole display sufficient originality so as to amount to an original work of the author.

“To claim copyright, there must be some substantive variation and not just a trivial variation, not the variation of the type where limited ways of expression available and author selects one of them.”

Thus the policy fails to appreciate fundamental developments in Indian law and places a barrier to creation of all kinds of educational material – without distinguishing between various kinds of supplementary material and showing precisely as to what nature and quantum of use as per Balbharati would qualify as infringing.

Interestingly, the previous version of the policy contained an FAQ (frequently asked questions) section that elaborated principles of copyright law. However, this section has been removed in the latest version. In any case, the FAQs presented incomplete explanations of Indian copyright jurisprudence, making references to outdated case law.

As noted earlier, publishers and digital content development companies are already suffering from the ramifications. In places where the quality of classroom teaching and learning is sub-par, it is unacceptable to deprive students access to affordable guides, reference books, digital content, and so on by unreasonably deeming indirect usage of Balbharati’s content as infringing activity.

Given India’s socio-economic conditions, it would be fatal to implement policies that seek to create a self-serving market of educational licenses for the state, very much at the expense of ensuring quality and affordable education. At the very least, the Maharashtra government should have conducted a proper public-consultation exercise before arriving at such a policy that stands to affect students and other stakeholders in the education system adversely.

For more details visit http://editors.cis-india.org/a2k/blogs/asia-times-june-20-anubha-sinha-maharastras-copyright-policy-makes-education-unaffordable

36th SCCR: CIS Statement on Draft Action Plan for Educational and Research Institutions and Persons with Other Disabilities

sinha — 2018-05-31T09:46:45Z

Anubha Sinha, attending the 36th Session of the World Intellectual Property Organization (“WIPO”) Standing Committee on Copyright and Related Rights (“SCCR”) at Geneva from May 28, 2018 to June 1, 2018, made this statement on the Proposed Treaty for the Protection of Broadcasting Organizations on behalf of CIS on Day 4, May 31.

Thank you, Mr. Chair.

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

We have concerns about the plan’s focus on MOOCs and distance learning initiatives. Although they are related to increasing access to education, these initiatives are hardly a substitute for classroom learning – and the primary objective of the treaty should be to improve such classroom teaching, especially for developing countries where ICT penetration remains quite low. Unless the plan also chooses to develop Open Educational Resources as a priority in connection with MOOCs and distance learning initiatives, we suggest that this item in the plan be re-examined in light of other more beneficial action items.

Thank you.

Note: Please find the Draft Action Plan here (SCCR/36/3).

For more details visit http://editors.cis-india.org/a2k/blogs/36th-sccr-cis-statement-on-draft-action-plan-for-educational-and-research-institutions-and-persons-with-other-disabilities

36th SCCR: CIS Statement on the Draft Action Plan for Libraries, Archives and Museums

sinha — 2018-05-31T09:47:15Z

Anubha Sinha, attending the 36th Session of the World Intellectual Property Organization (“WIPO”) Standing Committee on Copyright and Related Rights (“SCCR”) at Geneva from May 28, 2018 to June 1, 2018, made this statement on the Draft Action Plan on advancing limitations and exceptions for libraries, archives and Museums on behalf of CIS on Day 3, May 30.

Thank you, Mr. Chair.

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

Very recently we concluded a qualitative study on archives in India to examine how limitations and exceptions help them in achieving their mission.

We found that the Indian Act goes to the extent of making an exception for preservation for libraries. To make up for unintended gaps in this clause, Indian archives and museums owing to overlapping functions with libraries use this exception within limits – which counts as an ‘implied’ application of the exception, as reported by the ex- registar of the Indian Copyright Office in 2010 to WIPO. Undeniably, an institutional approach has created unintended barriers for other institutions performing the exact same function.

The draft action plan adopts a similar institutional approach in its three different tracks for libraries, archives and museums. As many of the core functions of these institutions overlap, and indeed they may be an archive housed in a library or vice-a-versa, we must change our approach to focus on the functions and not the formal identification of such institutions.

Hence, I submit that the draft action plan be suitably amended to reflect a purposive approach to drafting this treaty, and not create artificial distinctions between institutions that do not reflect reality.

Thank you.

Note: Please find the Draft Action Plan here (SCCR/36/3).

For more details visit http://editors.cis-india.org/a2k/blogs/36th-sccr-cis-statement-on-the-draft-action-plan-for-libraries-archives-and-museums

36th SCCR: CIS Statement on Limitations and Exceptions Agenda

sinha — 2018-05-31T09:43:08Z

Anubha Sinha, attending the 36th Session of the World Intellectual Property Organization (“WIPO”) Standing Committee on Copyright and Related Rights (“SCCR”) at Geneva from May 28, 2018 to June 1, 2018, made this statement on the Limitations and Exceptions agenda on behalf of CIS on Day 3, May 30.

Thank you, Mr. Chair.

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

As we move forward on this agenda, we believe that for a true balance to be realised, the rights of all users of copyrighted works will have to be treated on par with those of the rightholders for purposes of access to knowledge. We are disappointed with the state of the limitations and exceptions in the broadcast treaty, that made some progress yesterday (in terms of increasing rights).

Further, as we have submitted earlier, it is our belief that the present international legal framework does not sufficiently address the opportunities presented by new information and communication technologies. We reiterate the need for open ended exceptions and limitations in this area - which should also facilitate smooth cross border exchange of knowledge.

Thank you.

For more details visit http://editors.cis-india.org/a2k/blogs/36th-sccr-cis-statement-on-limitations-and-exceptions-agenda

NGOs circulate letter at WIPO SCCR/36 raising serious concerns about draft Broadcasting Treaty

sinha — 2018-05-29T10:42:48Z

At the 36th Meeting of the Standing Committee on Copyright and Related Rights (SCCR) at the World Intellectual Property Organisation (WIPO), negotiations on the Broadcasting Treaty continue - this time with a sense of urgency to present results of the 20 year negotiations to the UN General Assembly, scheduled in September this year. There remain long-pending issues within the Treaty, which have largely been ignored or weakly acknowledged by the Committee. In view of the threats that this Treaty poses to Access to Knowledge and the mission of educators, archivists, researchers, libraries and creators, NGOs at WIPO (including CIS) have circulated the letter below.

Joint NGO letter on the proposed WIPO treaty on broadcasting

May 28, 2018

Dear Delegates to WIPO SCCR 36

We are concerned that negotiations on a broadcasting treaty have not clarified a number of important issues, nor addressed core concerns from civil society and copyright holders.

At the outset, we are supportive of measures to address the legitimate concerns of broadcasters as regards piracy of broadcast signals. We are looking forward to seeing appropriate measures to address such challenges, provided they are well defined and limited to solving those problems, and avoid unintended consequences to impede access to and use of works, or harm copyright holders.

Our primary concerns are the following:

Term of protection/post fixation.
Limitations and Exceptions.
Public Domain works or works freely licensed by creators.
Confusion over an ever-expanding definition of beneficiaries.
Streaming on demand.
Works originated on the Internet.
Role of large Internet companies in streaming video.
Non-discriminatory and reasonable licensing terms

Term of protection/post fixation

Chairman Daren Tang’s text (SCCR/35/12) proposes a 50 year term of protection for the rights, which is a proposal backed by some broadcast groups and countries supporting the broadcasters. [1] Clearly, this implies the broadcasters will obtain post fixation rights in works they did not create nor license. A 50 year term of protection makes a mockery of the notion that this is a signal based treaty or is only concerned with signal piracy, as it effectively extends the protection beyond the term of copyright, and is a recipe for disaster as regards orphan works (just as individual countries are in the process of trying to solve the orphan works problem). To protect against signal piracy, a short term of 24 hours would make more sense than 5 decades from the date of every broadcast.

Under no circumstances should post fixation rights apply to every mere re-transmission of a broadcast signal -- a policy that would in practice result in perpetual protection of the signal, and give broadcasters more durable protections than copyright holders.

Limitations and Exceptions

There have been a number of proposals as regard limitations and exceptions, but almost no debate in the SCCR has ensued on this crucial issue. The proposals for exceptions in the Chairman’s text are narrow, and give broadcasters more robust rights than copyright owners or performers themselves.

If the broadcasters’ right does not extend to post fixation rights, or has an extremely short term, the exceptions language may be less important. But since broadcasters are seeking rights that last for half a century, i.e. post fixation rights, the exceptions become extremely important.

For any treaty involving post fixation rights, the exceptions in the broadcast treaty should include both mandatory and permissive exceptions. Mandatory exceptions should include those in Berne (news of the day and quotation), as well as for education and training purposes, personal use and preservation and archiving. The agreement should also permit non-mandatory exceptions that address both specific uses and more general frameworks such as fair dealing or fair use. Compulsory licenses should not be prohibited. If the treaty creates a layer of rights for entities that do not create, own or license the underlying works, this layer should not be used to prevent legitimate reuses of the copyrighted works.

In no event should the exceptions for broadcasting rights be less enabling for users than the exceptions that apply to copyright.

Public Domain works or works freely licensed by creators

In no cases should the treaty give broadcasters post fixation rights in works that are in the public domain, or openly licensed.

Confusion over an ever-expanding definition of beneficiaries

There is confusion over who will be the beneficiaries of the treaty. The General Assembly mandate is to limit the treaty to broadcasting in the traditional sense (see page 57 of WIPO/GA/34/16), yet during the SCCR negotiations, BBC and several Spanish language broadcasters have pressed to include Internet streaming services, under the theory that WIPO would create special rights that television broadcasters would have, even when the context was delivered over the Internet, that other entities using the Internet would not have. This assumption needs to be examined critically, to ensure it is not a naive and unrealistic assumption that a right can be given to one set of businesses and denied to another doing the same thing. And, if the right ends up being given to everyone streaming anything on the Internet, how does this change the evaluation of the costs of managing the rights, and unintended consequences?

Streamed on demand

The BBC, the Spanish language broadcasters and some others have asked that the right extend not only to live broadcasts, but also to material later streamed on demand to individuals. If the treaty extends to materials streamed on demand to individuals, there is no longer a special case for broadcasters. Millions of entities and persons stream content on demand, without a special broadcaster right, often over platforms like YouTube. It’s absurd to create a special right for streaming works on demand over the Internet, just because the company doing the streaming is a broadcast company and the work was once broadcast.

Works originally streamed on the Internet

Even more expansive are the proposals by the same broadcasters to extend the broadcasters’ right to works originally streamed on the Internet, thereby eliminating any distinction between broadcasters and every other Internet user.

Role of large Internet companies in streaming video

While many delegates see this as a treaty that will benefit local broadcasters, that is likely only to be true in the short term. And even in the short term, the more ambitious versions of the treaty are also designed to create economics rights for large foreign corporations that “schedule the content” for cable and satellite channels, such as Disney, Vivendi, and Grupo Globo. In the longer run, the treaty appears to be creating a new legal regime that will create rights for the giant technology firms largely based in the United States, that are creating global platforms for video and sound recording content, including Amazon Prime, Netflix, Hulu, YouTube, Google/YouTube Tv (https://tv.youTube.com/), Hulu tv (https://www.hulu.com/live-tv), Yahoo, Twitter, Sling TV, Facebook (https://www.facebook.com/moviestv/), Spotify (Based in Sweden), Apple Music, Google Play Music, and Pandora, all companies that could qualify as broadcasters by owning a single broadcast station.[2]

The existing content on the YouTube platform is enormous and Google is hardly a struggling company, so it seems odd that WIPO is rushing to create a legal regime that appears to give Google even greater rights over works they never created or licensed that it already has.

Non-discriminatory and reasonable licensing terms

To the extent that a broadcast treaty creates rights of any kind that impact users outside of the robust limitations and exceptions we favor, member states should have the flexibility to require licensing on reasonable and non-discriminatory terms, or remuneration rights regimes, as an alternative to exclusive rights,

Conclusion

The 2007 GA mandate asked the SCCR to consider “convening of a Diplomatic Conference only after agreement on objectives, specific scope and object of protection has been achieved.” The WIPO GA has asked the SCCR to “update the protection of broadcasting and cablecasting organizations in the traditional sense.” At the SCCR, the definition of “in the traditional sense” is now used less and less, and “future proofing” the protection more and more, without any real understanding of how a new WIPO treaty will upset the existing arranges and rights that copyright holders and users now enjoy. In particular, WIPO needs to discuss the role of giant largely U.S. based Internet platforms now delivering video or audio content, and how any new rights for companies that deliver third party owned content will redistribute income between right holders and platforms and between countries, and impede access to works.

Sincerely,

Centre for Internet and Society, India (CIS-India)

Civil Society Coalition (CSC)

COMMUNIA International Association on the Digital Public Domain

Electronic Frontier Foundation (EFF)

Electronic Information for Libraries (EIFL)

Fundación Karisma

Global Expert Network on Copyright User Rights

Innovarte

Instituto Proprietas

International Federation of Library Associations and Institutions (IFLA)

Knowledge Ecology International (KEI)

Le Conseil international des Archives (CIA)/ International Council on Archives (ICA)

Public Knowledge (PK)

Third World Network (TWN)

[1] “The term of protection to be granted to broadcasting [or cablecasting] organizations under this Treaty shall last, at least until the end of a period of 50 years computed from the end of the year in which the programme-carrying signal was transmitted.”

[2] Christopher Harrison, Why Pandora bought an FM radio station, the Hill. June 11, 2013. http://thehill.com/blogs/congress-blog/technology/304763-why-pandora-bought-an-fm-radio-station. Or be acquired by or merge with a broadcast or cable organization, such as Yahoo’s pending acquisition by Verizon.

For more details visit http://editors.cis-india.org/a2k/blogs/ngos-circulate-letter-at-wipo-sccr-36-raising-serious-concerns-about-draft-broadcasting-treaty

36th SCCR: CIS Statement on the Proposed Treaty for the Protection of Broadcasting Organizations

sinha — 2018-05-28T14:04:53Z

Thank you Mr. Chair

We would like to highlight that some of the existing alternatives to the text of the Broadcasting treaty have serious issues.

Some of the points that bear re-emphasizing are problems with watering down of limitations and exceptions, and the contemplation of a fifty year term of protection without any rationale or justifications.

If you look at the history of the Committee’s deliberations, the limitations and exceptions have been significantly diluted over the years. On the other hand, the ask for increased protections in terms of number of rights, scope and term has only increased.

Further, if the protection extends only to the signal and not to the programmes contained therein, it is not clear as to why a 50 year protection is needed for an ephemeral signal.

Reiterating the words of the Asia-Pacific Group - this matter requires proper balancing from a developmental perspective. I submit that in my opinion, it does not appear that we are anywhere close to achieving that.

Thank you.

For more details visit http://editors.cis-india.org/a2k/blogs/36th-sccr-cis-statement-on-the-proposed-treaty-for-the-protection-of-broadcasting-organizations

India's Draft Telecom Policy Needs to Bridge the Gap Between Intent and Execution

sinha — 2018-05-07T16:13:31Z

Earlier this week, India’s department of telecommunications (DoT) released a draft new telecom policy, titled ‘Draft National Digital Communications Policy 2018’.

The article originally published in the Wire on May 6, 2018 can be read here. Access the Draft National Digital Communications Policy 2018 here.

The three pillars of the draft policy are ‘Connect India’, ‘Propel India’ and ‘Secure India’, which primarily seek to improve broadband connectivity, accelerate development of next-generation technologies and services and institute measures for data sovereignty, security and safety, respectively.

Several strategies have been devised under each pillar – few carry on from previous national telecom policies, and some are new proposals.

The document is high on aspirations, a lot of which it seeks to fulfil by 2022. It also proposes several favourable institutional and regulatory changes and simplifies obtaining of permissions.

However, it remains quite open-ended in terms of how the details could evolve. For example, while it endeavours to develop a fair, flexible, simple and transparent method for spectrum assignments and allocations, by pricing spectrum at an ‘optimal price’ and linking spectrum usage charges (SUC) to reflect costs of regulation and administration of spectrum, it cannot be said if these measures will fully rejuvenate a debt-ridden telecom sector.

Ideally, the policy should have explicitly mentioned that revenue maximisation is not a goal for the government anymore, to reassure the industry that licence fees and SUC will not be astronomically priced – especially as it is in no mood to change the model of spectrum allocation from auction to revenue sharing (circa NTP-99). A clear commitment would have helped inspire more confidence in this strained sector. Regardless, these changes will also need approval from the finance ministry, where stiff resistance is expected.

Expanding both wireless and wired broadband is a clear priority of the government. It sets out four initiatives, encouraging public-private partnerships to serve both rural and urban centres (BharatNet, GramNet, NagarNet, JanWiFi), and several additional measures to accelerate laying of optical fibre, mobile towers and increase sharing of infrastructure.

Although the previous telecom policies (NTP-99, NTP-2012 and recommendations in ‘Fixing Broadband Quickly’ (TRAI, 2015)) determined the similar gaps and objectives, little has translated into concrete results so far. In 2017, ITU and UNESCO reported that India was the largest unconnected market, with 49.5% (approx. 660 million) of our population still unconnected. The report further noted that the penetration of mobile broadband was much higher than fixed-line broadband connections – and urban centres were better served than rural areas. One hopes that the new strategies and objectives will be better realised this time around.

The policy also seeks to boost domestic innovation in the field of standards in communications technologies. This is reflected in its aims to strengthen domestic IP portfolios by providing financial incentives for the development of standard-essential patents (SEPs) and promote them at standard setting organisations. It mandates access to critical, mostly foreign-owned SEPs on a fair, reasonable and non-discriminatory basis (FRAND basis). This is an approach to patent licensing that has been endorsed by courts and the Competition Commission of India in the context of mobile phone technologies, as well as in other jurisdictions.

However, it remains to be seen how this mandate will be implemented in TRAI’s forthcoming recommendations on promoting telecom equipment manufacturing in India. This is a real opportunity for the telecom regulator to help the low-cost smartphone manufacturing industry in India to overcome their disadvantage in terms of having to pay exorbitant royalties to foreign-SEP holders and getting sued for infringement in the process. Another strategy that should have found place was the creation of government-controlled patent pools for SEPs, which could have solved the issue of uncertainty for local manufacturers and ensured payments to SEP holders to a great extent.

Additionally, the policy proposes a few consumer-oriented changes such as establishing a ‘Telecom Ombudsman’ and a centralised web-based complaint redressal system. In the third pillar of ‘Secure India’, although the document does not reveal the DoT’s approach to net-neutrality nor data protection and privacy, it does say that the government will be amenable to changing the terms of license to fulfill their core principles.

Curiously, in order to ‘facilitate security and safety of citizens’ it proposes to set up ‘lawful interception agencies with state of the art lawful intercept and analysis systems for implementation of law and order and national security’. This measure did not exist in TRAI’s version of the draft policy.

On next-generation tech in the field of IoT and cloud, it retained TRAI’s suggestion of setting up ‘light-touch’ licensing frameworks. This may prove to be a barrier to innovation in the field.

While the policy is broad and forward-looking, the true intent and meaning of the listed steps will only be understood when complementary legislative and granular policy actions to support these strategies are crystallised. That will make all the difference.

For more details visit http://editors.cis-india.org/telecom/blog/the-wire-anubha-sinha-may-6-2018-india-draft-telecom-policy

CIS' Submission on Statement of Working of Patents

sinha — 2018-04-21T15:32:00Z

The Centre for Internet & Society (CIS) made a submission to the Indian Patent Office on the issue of Statement of Working as per Form 27 under the Patents Act, 1970.

Select stakeholders were invited to the consultation meeting held on April 6, 2018. Anubha Sinha attended it along with a few other public-spirited stakeholders. She made a statement stressing on the requirement of the patent system to serve the welfare-purpose and not create mere non-working/ blocking monopolies; and that the argument of representatives of patentees about non-working of patents being the existing norm, and that they cannot be questioned about this, is absolutely against the central tenets of patent law. All written submissions can be accessed here.

Centre for Internet and Society - India’s (CIS) submission to the Controller General of Patents, Designs and Trademarks (CGPDTM) pertaining to Stakeholders Meeting regarding issues related to Working of patents under the Patents Act, 1970

As the CGPDTM is aware, the Indian mobile device manufacturing industry is mired in issues related to licensing of standard essential patents (SEPs). Disputes have resulted in imposition of heavy interim royalty rates on Indian manufacturers, payable to foreign SEP holders. Section 146 and Rule 131 of the Patents Act, 1970 mandate patentees to provide information on working of patents, which is crucial for willing licensees to access patent working information in a timely manner. This requirement, that the details of patent working be disclosed by patentees supports several policy goals, firstly, of making the Indian population benefit from commercial use of the invention; secondly, prevents patentees from creating blocking monopolies – from obtaining and maintaining patents for the purpose of blocking others from developing technologies in the vicinity of the patented inventions; and thirdly, by showing that reasonable requirements of the public are met (or not), directly impacts the implementation of the compulsory licensing scheme of the Patents Act, 1970.
We note that in 2009, 2013 and 2015 the CGPDTM issued public notices calling on patent owners to comply with their obligations to file statements of working on Form 27. Further, on February 12, 2013, the Indian Patent Office (IPO) announced plans to make Form 27 submissions for the year 2012 available to the public via the IPO website. However, these measures have not yielded any significant progress, as patentees and licensees continue to not comply or defectively comply with the statutory requirements.
CIS’ empirical research on ICT innovations reveals that there are serious lapses as far as compliance and enforcement of statutory provisions mandating filing of Form 27 are concerned. In the past year, we studied data available from 2009- 2016 for the mobile device sector, and could only identify and access 4,916 valid Forms 27, corresponding to 3,126 mobile device patents, leaving 1,186 Indian patents for which a Form 27 could have been filed, but was not found. For a surprising number of Form 27s (3%) the working status of the relevant patent was not even designated.

Even among the Form 27s that had been obtained, almost none contained useful information regarding the working of the subject patents or fully complying with the informational requirements of the Indian Patent Rules. Many patentees simply omitted required descriptive information from their forms without any explanation.

Via our research we also gathered complaints raised by patentees and industry observers regarding the structure of the Form 27 requirement itself. For example, patents covering complex, multi-component products that embody dozens of technical standards and thousands of patents may not necessarily be amenable to the individual-level data requested by Form 27.

Thus, our findings support the arguments and findings made by the petitioners in the ongoing matter of Shamnad Basheer v. Union of India and Ors.
Regardless, we submit that these technical difficulties should not hinder the critical statutory requirement placed on patent holders to diligently comply with Form 27 compliance. In the context of licensing of SEPs, several stakeholders recently suggested solutions as revealed from the submissions made to the TRAI Consultation on Promoting Local Telecom Manufacturing:

Two industry associations, namely Telecom Equipment Manufacturers Association of India (TEMA) and Telecom Equipment & Services Export Promotion Council (TEPC) and a telecommunication enabler Vihan Network Limited recommended that a modified and longer version of Form 27 (Form 27S) may be designed for SEP holders that should apply right at the filing stage. Section 159 of the Patent Act, 1970 empowers the central government to make such modifications to the form, as necessary.

Further, Prof. T Ramakrishna (MHRD Chair on Intellectual Property Rights) at NLSIU, specifically recommended that Form 27 may be amended to include a new column, which may require the patent holder to declare if their patent forms a part of any standard and in case of affirmative answer – the name of the Standard Setting Organisation and corresponding standard of which it is a part.

We recommend that the form may be amended to make it more comprehensive and suitable for obtaining necessary information. The same information should be made publicly accessible, in order to satisfy the Indian citizen that the patent is being properly worked.
Further, we would like to draw attention to our findings on deficient technical capabilities of the Indian Patent Office’s online Form 27 repository:
Some PDFs of the forms comprise scanned image files without OCR of the text. This makes them inaccessible to the visually impaired, and prevents search and discoverability of their content. This also makes them less usable by preventing copying and selection of text.

In some cases, it was difficult to identify which one in the list of documents associated with a patent is Form 27, because of obscure filenames.

For example, for Patent Number 262228, Form 27 was named 68.262228.pdf, as found on IPAIRS.

For Patent number 260603, the filename for Form 27 was "ipindiaonline.gov.in_epatentfiling_online_frmPreview.asp.pdf" on IPAIRS.

Inconsistency in search results found on IPAIRS. Searching for the peripheral documents of the patents, returned the results, "No PDF found" for one full week. The next week, the documents started showing. Some searches returned results for an entirely different patent number.

Sometimes, Form 27 found on InPASS was not found on IPAIRS and vice versa.

Runtime errors occur due to browser caching. IPAIRS returned either a 404 error or Connection Time Out ("site is taking too long to respond") http://ipindiaonline.gov.in/patentsearch/search/index.aspx. In our opinion, it could be redirected to InPASS as it uses the same search engine as InPASS. Further, http://ipindia.nic.in/patsea.htm returned a 404 error.
We are thankful to the Indian Patent Office for the opportunity to make these submissions. It would be our pleasure and privilege to discuss these submissions and recommendations in details at the Stakeholders’ Meeting on 21 March, 2018.

On behalf of the Centre for Internet and Society, March 16, 2018
Anubha Sinha, anubha@cis-india.org

See Trimble, Markela, Patent Working Requirements: Historical and Comparative Perspectives (2016). Available at http://www.law.uci.edu/lawreview/vol6/no3/Trimble.pdf

See Contreras, Jorge L. and Lakshané, Rohini and Lewis, Paxton, Patent Working Requirements and Complex Products (October 1, 2017). NYU Journal of Intellectual Property & Entertainment Law; Available at SSRN: https://ssrn.com/abstract=3004283

Supra note (ii).

Refer to Appendix for a breakdown of compliance of Form 27 by patent holders in the mobile device sector.

See Shamnad Basheer, Making Patents Work: Of IP Duties and Deficient Disclosures, 7 QUEEN MARY J. INTELL. PROP. 3, 6-17 (2017).

Also, see https://spicyip.com/shamnad-basheer-v-union-of-india-ors

See TRAI’s Consultation Paper on Promoting Local Telecom Equipment Manufacturing dated 18.09.2017 and the responses, available here: http://trai.gov.in/consultation-paper-promoting-local-telecom-equipment-manufacturing?page=2

Section 159 of the Patent Act, 1970 empowers the central government to make rules. Accordingly, the Rule 131 of the Patents Rules, 2003 prescribes Form 27 as the manner in which section 146(2) of the Act is to be implemented.

An email by Rohini Lakshane (CIS) compiling these issues was sent to Dr. K.S. Kardam (Senior Joint Controller of Patents and Designs - ‎Indian Patent Office) on 09.09.2017.

Click to download the submission by CIS made on March 16, 2018 here.

For more details visit http://editors.cis-india.org/a2k/blogs/cis-submission-on-statement-of-working-of-patents

CIS Submission on Patents Act

sinha — 2018-04-10T15:48:09Z

For more details visit http://editors.cis-india.org/a2k/files/cis-submission-on-patents-act