Centre for Internet and Society

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

USTR elaborates the Two Dozen Digital Rules of Club TPP

sinha — 2016-07-29T08:00:00Z

Members of the recently concluded Trans-Pacific Partnership (TPP) are now scrounging the world to include more countries in its fold. The Digital 2 Dozen(D2D) is a bite-sized document which packs the TPP into 24 key tenets. The D2D, aggressively championed by the US as the path forward for the global digital economy poses some critical questions for India: first, how will India position itself against US pressure in the larger scheme of US-India foreign relations, and how much is it willing to concede its policies in the name of trade; second, how will reduced barriers and establishment of a level field for Indian and foreign IT and internet companies alike, hurt Indian consumers and businesses? This week, the Deputy US Trade Representative Ambassador Robert Holleyman discussed the Digital 2 Dozen document with Ambassador Shyam Saran (Chairman, RIS). The exchange was moderated by Samir Saran (Observer Research Foundation). I attended the discussion and this post is a summary of the key points.

For a background on the data protection and privacy aspects of the Trans-Pacific Partnership agreement and Digital 2 Dozen principles, please read CIS' piece here.

Ambassador Robert Holleyman

Ambassador Holleyman opened with stating that trade agreements are created to build a foundation for national policies. He added that the D2D is not merely a tech D2D, rather it is based on the premise that our economies have digitised to a large extent, and hence, the TPP contains provisions on agriculture as well. The TPP tries to combat barriers to the growth of digital economy, and the D2D provides the most modern and the highest standard of such provisions. The D2D tenets can be divided into three categories:

1. Provisions to ensure the internet is open and safe, and an effective channel for trade and services.

2. Provisions to combat protectionist and restrictive provisions of member nations. The D2D talks about eliminating rules that seek to make foreign companies localise their data by building expensive data centers in every market they seek to serve. Further, TPP also seeks to prevent countries from 'forcing' foreign companies from transferring their technologies and production processes as a pre-condition for doing business there.

3. Provisions on IPRs to 'build a level playing field' in order to 'protect' innovators and creators in the digital space.

“ ...The TPP rules on enforcement of IPRs are strong and balanced and embody the TRIPs standards. For instance, countries are required to to impose criminal penalties on trade-secret violations such as cyberhacking.”

He added:

“We believe these rules are the foundation for next 20 years of the digital economy. To make sure that India does not fall behind we want to work with India (for the adoption of these rules). We're encouraged by the new government's programmes and the PM's engagement with US and silicon valley leaders.

We encourage India to level the playing field. To that end the USTR is working with the Indian Ministries of Communications and IT, and Commerce and Industry to exchange practices for building open markets. We want to work together in eliminating localisation policies given that how a lot of IT companies have established investment heavy R&D centers in India, and they rely heavily on the free flow of cross border data. Imposition of localisation of data would be detrimental in this age of cloud-computing. We're aware that the Indian government is reviewing its policies on cloud-computing and encryption, and we encourage the government to consider the implications of the such policies carefully, for India is also a leader in global IT and would be a potential framework setter at that.”

The D2D also endorses elimination of custom duties on ICT products, and the Ambassador added that the US was very pleased to see India deposit their instrument of accession on the Trade Facilitation Agreement with the WTO. The US has been pleased to see India's ratcheting up its norms for IPR protection. He mentioned that the two countries held a successful copyright workshop earlier this year, and later this year they plan to conduct a workshop on trade secret protection. The D2D also says that conformity assessment procedures are excessive and should be eliminated. This emerges from US' IT industries concerns on the compulsory registration of ICT products that required re-testing in Indian labs.

He made a case for opening up Indian markets by quoting a study which revealed that the Indian market for ICT products is worth 65bn dollars, while the global market stands at 2 trillion dollars. So while India could leverage its exports to meet the demand, the question remains if we want to foster a market based on openness. In his opinion, openness has enabled the IT sector in India to access other markets. However, he observed that countries were erecting barriers to this openness by restricting the cross-border free-flow of data, particularly and this is where the TPP assumes importance. The real challenge now is for the US and India to prepare their own version the the D2D.

On the route of D2D, the Ambassador was largely optimistic:

“The TPP has Obama's backing and the US Congress should ratify the deal before the elections. Other TPP members have already initiated steps to ratify the deal in their countries. For phase II, 13 non-member countries have already approached the US to be a part of TPP since the deal was concluded.”

Ambassador Shyam Saran

He began by stating that the India-US engagement on digital economy would become an area of close cooperation for US-India relationship. A few years ago the US pharma was unhappy with Indian generics, and this tussle left a bad taste between the countries, and also spilled over into the political side. Disagreements on several issues such as IPR, WTO subjects, etc still persist, despite some developments reflecting mutual trust and confidence (for instance the counter-terrorism initiative).

He welcomed potential cooperation in the digital field, because that would dispel the negativity and prevailing perception of India and US not being on the same page. The one area that has been a shaky pillar is the trade and economic relationship. In his frank opinion, the Indian establishment perceives USTR's outlook on trade issues as quite adversarial. He was mindful of a developing India's unique needs and priorities:

“In regard to the differences between India and US on trade and economic issues, it is not surprising because we must also be mindful of the reality- we are a developing country, wheras the US is highly developed and technologically advances - thus, we need different lenses for each. This is something we need to address, (remember how we acknowledged and fixed this in our defence relationship re the nuclear deal). The lesson that I draw is that here is an area critical to both countries' growth, and we need to address this differential aspect...”

According to him, right now India has an ambiguous position on the TPP. Holleyman had mentioned that the deal was based on an open platform, and Shyam pointed out that it was in fact conceived through closed door negotiations. It is common knowledge that rules at TPP were arrived at through complex negotiations between 13 countries, which surely was a process of complex give and takes. At this stage, it was not possible for India to look at one chapter and agree to meet the “gold standards” set in it.

According to him, D2D was important to the US solely in terms of trade benefits for its own businesses. He said that to convince the Indian government, the USTR will have to first convince the Indian IT industry the D2D benefits- which he was skeptical of. The reason was that this 'opportunity' comes across as a clear case of double-standards when the US talks about lowering barriers in India, and on the other hand is increasing barriers on its own shores (several pending bills in the US Congress indicate this). Similarly, immigration troubles for the Indian talent pool have only gone up. The other aspect he raised was on localisation and IPRs. He said that while stands on these issues were being formulated, it should also be expected that the government will take into account concerns of privacy and security. In the US itself, the US treasury has said in regard to banking and financial transactions localisation may be necessary.

He closed by offering an alternative route to the US – one of working with India as a partner in the Digital Economy instead of fixating on barriers and/or nitpicking on Indian legislations. This would be a more sustainable way to capitalise on India's growth potential and align with its digital future.

Samir Saran

Samir responded to the discussants by offering his thoughts (and questions) on D2D and the digital economy, broadly:

“...Can the digital space be a new space for a partnership? Three stories are important in the context of a trade document:
First is dominated by access – India is seeing 6 million new internet users every month and most of them are on low-cost mobile devices. Can a trading normative process allow to continue this phenomenon as it is?
Second is opportunity – India is already responding to investment flows. In terms of privacy and security – if India believes that it can become the digital infrastructure hub, it will need to develop world-class encryption tools. Similarly in terms of free-flow of information, when Obama and PM met they endorsed the same. So it is a step back from localisation, anyway. So you see India changing positions to make the atmosphere more business conducive.
Third is security – How can you make free-flow of data uni-directional? Why is it that you want data to flow unfettered when it creates value, but you are creating barriers for giving data for security purposes?...

...Further, in a phase when the mood worldwide is in favour of de-globalisation, will hyperglobalisation through FTAs work?...”

Finally, Holleyman acknowledged that historically India and US have had differences, but with the digital economy perhaps they can forge some approaches. He accepted that some of the points were written squarely for the US tech sector, but he hoped that the other 11 partners of the TPP will come out with what the D2D means to them.

For more details visit http://editors.cis-india.org/a2k/blogs/ustr-elaborates-the-two-dozen-digital-rules-of-club-tpp

US Copyright law faces constitutional challenge

sinha — 2016-08-11T13:28:13Z

In a major international development, the Electronic Frontier Foundation (EFF) has filed a lawsuit to strike down the provisions on Digital Rights Management(DRM) in the Digital Millennium Copyright Act. In this post, I discuss DRMs, the EFF lawsuit, and then draw upon the differences between the US and Indian copyright regime on DRM protection.

Originally published by Spicy IP on August 5, 2016. You may read EFF’s lawsuit here.

Decoding DRM

If you own a Netflix account and travel a lot, you may have been denied access to some TV shows depending on the country you logged in from. While that restriction can perhaps be gotten around by using VPNs, there exist other technological measures that prevent you from fixing your own automobile to sharing/making copies of an e-book that you supposedly bought. Such technological protection measures are commonly known as Digital Rights Management (DRM). These go back twenty years, and it was in 1996 when the first DRM appeared in the form of geo-access restrictions on DVD play.

Soon thereafter, it became de rigeur for businesses dealing in IP to apply all kinds of DRMs to their products. It was largely an embarrassing and a pointless saga of implementing software embedded restrictions to stem piracy (remember the Sony BMG rootkit fiasco?), given how blatantly they were discovered and circumvented. And now since technology is beginning to dwell even in our shoes, DRMs have been slapped onto these as well. So if you discover a bug causing a miscalculation in your step count, you are not only prohibited under law from probing the code and fixing it yourself, but you also may get jailed for doing so. Imagine such how such prohibition impacts and limits our daily lives and the work of professional researchers.

Clearly, DRM is not just a mere trifle to be brushed aside via smarter code– its ramifications go much farther. DRMs come with the problem of masking vulnerabilities, compromised security of the device and us er-privacy, and trampled consumer rights, fair use and free speech. Further, the poor design of DRMs makes them unable to distinguish between illegal use and fair-use. Progressive cutting down of users’ rights to store, reproduce, distribute media has become especially problematic for developing countries because of our greater dependence on free-er terms for sale, lending and donation. On the other hand, DRMs continue to become more ubiquitous(could be incorporated in the HTML 5 standard soon).

However, in an exciting development, the first major legal battle to kill DRM has begun!

Because finally in an unprecedented move, a constitutional challenge has been lodged in the US against DRM provisions, on the grounds that they restrict free speech and fair-use of copyright materials (the fair-use doctrine allows copyright law to co-exist with the first amendment). The complaint has been filed by EFF on behalf of Matthew Green (a security researcher) and Andrew “bunnie” Huang (a technologist)

The rejection that prompted a legal challenge..

Sections 1201-1205 of the Digital Millennium Copyright Act (DMCA) lay down provisions relating to circumvention of DRM. Uniquely, the DMCA vests power in the Librarian of Congress to periodically enact rules granting exemption from the anti-circumvention provisions to legitimate non-infringing use of works (known as DMCA Rulemaking). It was under this particular instance of rulemaking in 2015, wherein the Librarian failed to grant an exemption for “…speech using clips of motion pictures, for the shifting of lawfully-acquired media to different formats and devices, and for certain forms of security research.” The rejection triggered the challenge against ‘Rulemaking’, ‘anti-circumvention’ and ‘anti-trafficking’ provisions of the DMCA, namely sections 1201(a), 1203, and 1204 . (This exemption was applied for by EFF, which has been seeking (and been granted) exemptions since 2003.)

In fact, universally, DRM provisions pose questions of free speech, consumer rights, privacy and copyright law. In the following section I will examine and compare the US and Indian copyright regime on DRM protection.

WCT and DMCA were used to push DRM protection into Indian Copyright Act

The Indian Copyright Act, 1957 provisions on DRM are based in sections 2(xa), 65A and 65B, which were introduced through the Copyright Amendment Act, 2012. The sections define ‘Rights Management Information’, provide for ‘Protection of technological measures’ and ‘Protection of Rights Management Information’, respectively. It must be noted that the WIPO Copyright Treaty (WCT) was the first instrument to conceive rules on DRM protection (Articles 11, 12). US was the first country to import WCT provisions into its copyright law via DMCA, which even went above the WCT standards. Soon, Hollywood-backed USTR wanted India to follow suit, and the provisions were queued up for an amendment to India’s copyright law. Please note that India is NOT a party to the WCT, and was under no obligation to enact laws on DRMs. Nevertheless, the Indian provisions with some changes and added limitations were loosely lifted from the equivalent WCT articles.

It is worth noting that the Indian DRM provisions have better safeguards than the DMCA provisions:

1) The Indian provisions (s. 65A+ 65B) do not make building and distribution of circumvention tools illegal. Only the act of circumvention attracts criminal liability. However, there is a duty on the person facilitating circumvention for another person to maintain a record of the same, including the purpose for which the facilitation occurred. The purpose should not be expressly prohibited under the Copyright Act, 1957.

Regardless, being criminally liable for circumventing DRM is a major threat to small businesses and developers. In one instance, when some Indian developers had built an open source software “PlayFair” to bypass Apple’s FairPlay DRM, they were threatened with legal action under the US’ DMCA. Despite the DMCA having no jurisdiction in India, the developers shut shop.

2) Clauses 65A(1) and 65A(2)(a) confine violation of technological protection measures to rights enumerated in the act, only. This means that the section does not restrict circumventions which attempt to get access to the underlying work.

While India has not seen major challenges to this provision, in 2013 the Delhi High Court injuncted persons from jailbreaking into Sony Playstations. Amlan analysed the order and questioned it in terms of the Court finding the act of ‘modifying the playstation without Sony’s consent’ illegal. Because, if you read section 65A (emphasis supplied is mine):

65A. Protection of Technological Measures

(1) Any person who circumvents an effective technological measure applied for the purpose of protecting any of the rights conferred by this Act, with the intention of infringing such rights, shall be punishable with imprisonment which may extend to two years and shall also be liable to fine.

(2) Nothing in sub-section (1) shall prevent any person from:

(a) doing anything referred to therein for a purpose not expressly prohibited by this Act:

Provided that any person facilitating circumvention by another person of a technological measure for such a purpose shall maintain a complete record of such other person including his name, address and all relevant particulars necessary to identify him and the purpose for which he has been facilitated; or

(b) doing anything necessary to conduct encryption research using a lawfully obtained encrypted copy; or

(c) conducting any lawful investigation; or

(d) doing anything necessary for the purpose of testing the security of a computer system or a computer network with the authorisation of its owner; or

(e) operator; or [sic]

(f) doing anything necessary to circumvent technological measures intended for identification or surveillance of a user; or

(g) taking measures necessary in the interest of national security.

Clause (1) clearly states that the law is only applicable to such technological protection measures applied to protect any of the rights conferred by the copyright act. Which raises the questions of which rights are affected when OS of the playstation is modified, and how does the modification amount to copyright infringement? One may perhaps draw that the Court in this order placed the ‘consent’ of Sony above the law.

3) S. 65A(2) safeguards certain acts which also exist as exceptions granted in the Copyright Act. These enumerated acts may be performed without attracting liability: for instance, circumventions for purposes of encryption research, security testing, lawful investigation, evading surveillance by DRM are kosher. Note that s. 65A(2)(g) permits circumvention in the interest of national security.

(For a detailed exegesis of these provisions, please read this piece.)

A look at the draconian DMCA provisions

As I mentioned earlier, the DMCA provisions on DRMs are much stricter compared to the Indian copyright act. Both circumvention(s. 1201(a)(1)), and building and distribution of circumvention tools(s. 1201(a)(2)) are illegal and punishable. The DMCA also meticulously defines circumvention, in terms of “circumventing a technological measure” and “circumventing protection afforded by a technological measure.”

More alarmingly, these provisions envisage access controls as well as use controls. So a person decrypting a DVD to gain access to the work would be held liable for infringement (unlike in India where only the act of copying or modifying the work would trigger infringement). It is also worth noting that there is no clause stating that circumvention (and tools) of only those DRMs is illegal when the DRMs protect rights conferred under the DMCA.

While s. 1201(c) states that the section shall not affect “…rights, remedies, limitations or defenses to copyright infringement, including fair-use…” Further, there do exist exemptions to clauses(a)(1) and (2):

Exemption for nonprofit libraries, archives and educational institutions; and
Exemption for the purposes of law enforcement, intelligence and other government activities, reverse engineering (solely for the purposes of achieving interoperability), restricting internet access to minors, protecting personally identifiable information, security testing, encryption research, etc.

While the list seems to permit circumvention for a wide range of purposes and fair-use, the vague and narrow language has failed the implementation of these exemptions. EFF lists a bunch of these instances where the DRM provisions have been not necessarily used against pirates, but also scientists, consumers and legit competitors.

Further, the DMCA left it entirely to the US copyright agencies to carve exemptions for non-infringing uses of works on a triennial basis. This rulemaking procedure has received heavy criticism, and as a result of the 2015 rejection the Library of the Congress finds itself in a legal soup.

Finally, the EFF lawsuit also illustrates the violations of the plaintiffs rights to free speech and fair-use, as a direct result of the provisions and the Rulemaking process. Armed with a strong case, and as Cory Doctorow puts it, we may witness the eradication of DRM in our lifetime. And I will be following the developments closely and keep our readers updated.

For more details visit http://editors.cis-india.org/a2k/blogs/us-copyright-law-faces-constitutional-challenge

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

sinha — 2021-04-28T17:28:47Z

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

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

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

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

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

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

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

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

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

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

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

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

Access the article on InfoJustice here.

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

The STI Policy Proposes a Transformative Open Access Approach for India

sinha — 2021-04-28T17:22:43Z

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

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

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

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

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

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

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

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

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

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

Access this article on The Wire Science here.

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

The new Guidelines for Computer Related Inventions are a big win for FOSS in India!

sinha — 2016-02-24T06:30:37Z

India is one of the few countries which permits patenting of software – a monopolization that has only benefited established corporations and largely throttled innovation in the software industry, worldwide. CIS has consistently advocated against patentablity of software and in a major victory last week, software patenting in India died a little more. This happened via the newly issued Guidelines for the Examination of Computer Related Inventions, which introduces a new test to restrict software patenting – in essence the same legal test that CIS had been proposing since 2010. This post highlights the new test and other noteworthy changes in the Guidelines.

When the Guidelines for examination of Computer Related Inventions(“ 2015 Guidelines”) were released last year, it became obvious that they would have an adverse impact on innovation in the Indian software industry. Further, the 2015 Guidelines were legally defective since they ran counter to the object of Section 3(k) of the Patents Act, 1970, which is to unconditionally exclude mathematical and business methods, computer programs per se, and algorithms from patentable subject matter. To stop and prevent egregious harms, civil society organisations collectively wrote to the Prime Minister's Office flagging off the defects and requested for a recall of the Guidelines. In December 2015, the Indian Patent Office promptly recalled the 2015 Guidelines and held a consultation to discuss the concerns raised in the letter.

Based on submissions by various stakeholders, the Patent Office released a new set of Guidelines(“Guidelines”), which are not only a staggering improvisation from all previous versions, but also introduce a new three step test to determine applicability of section 3(k), an area of Indian patent law that has been notoriously full of uncertainties:

5. Tests/ Indicators to determine Patentability of CRIs (“Computer Related inventions”):

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.

CIS had proposed the exact same test in its earlier submissions(2010) to the Patent Office, albeit worded differently. We submitted:

"We propose a new part to the above test to make the clause clearer. The Manual should specify that “the computer programme portions of any claimed invention should be treated as if it were covered by prior art and patentability should thus be determined with respect to the other features of the invention”. This way, we can ensure that an invention which merely uses or implements a computer programme is not granted patent on the basis of the inventiveness of the computer programme per se."

Further, the Guidelines also recognise that CRIs may fall under sections 3(k), 3(l), 3(m) and 3(n):

2.2. The Patents (Amendment) Act, 2002 also introduced explicit exclusions from patentability under section 3 for CRIs as under:

3(k) a mathematical or business method or a computer programme per se or algorithms;

(l) a literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever including cinematographic works and television productions;

(m) a mere scheme or rule or method of performing mental act or method of playing game;

(n) a presentation of information;

And thus CRIs as such cannot be patentable, if they fall in either of the above mentioned exclusions. Overall, the new Guidelines offer more clarity and stick to the Patents Act, 1970's intention of disqualifying patentability of computer programmes per se. We will soon post a detailed analysis of the Guidelines. In the meantime, you may read CIS' research on the subject in the section below.

CIS' Research and Submissions against Software Patenting

Over the past years, CIS has produced research and consistently made submissions advocating the roll- back of software patenting:

Arguments Against Software Patents in India, 2010

CIS Submission on Draft Patent Manual, 2010

Comments on the Draft Guidelines for Computer Related Inventions, 2013

Guidelines for Examination of Computer Related Inventions: Mapping the Stakeholders' Response, 2014

Comments on the Guidelines for Examination of Computer Related Inventions (CRIs), 2015

CIS' submission to Indian Patent Office on Examples of Excluded Patentable subject-matter under Section 3(k) for incorporation in the yet-to-be-released Guidelines for Computer Related Inventions, 2016

For more details visit http://editors.cis-india.org/a2k/blogs/the-new-guidelines-for-computer-related-inventions-are-a-big-win-for-foss-in-india

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

Summary of CIS Comments to DIPP’s Discussion Paper on SEPs and their availability on FRAND terms

sinha — 2016-04-26T12:07:30Z

This blog post summarises CIS’ responses to DIPP’s Discussion Paper on SEPs and their availability on FRAND terms. The response made specific recommendations regarding adequacy of Indian law to determine SEP litigation, remedies for FRAND assured SEPs, FRAND royalty rates, SSO’s policies, parties’ non-disclosure agreements and transparency, and essentiality of SEPs and their declassification.

On April 22nd, 2016, CIS filed a comment with the Department for Industrial Policy and Promotion (DIPP), regarding Standard Essential Patents(SEPs) in India and their availability on FRAND terms. A TL;DR version of the comment follows.

Whether IPR and antitrust legislations should be amended

CIS submitted that no amendments to either the Patents Act, 1970 or the Competition Act, 2005 may be preferred. The changes that need to be brought forth are the adoption of a balanced National IPR Policy, and a National Competition Policy - both of which have been in the works for a while. Further, we urge the government to not enter into FTAs like the Regional Comprehensive Economic Partnership.

IPR Policies of SSOs, and prescribing Guidelines for their functioning

CIS recommended that, first, Indian SSOs adopt an IPR Policy factoring in “India specific requirements”; second, on TSDSI’s IPR Policy (and DOSTI, GIFSI), certain changes be made to the policy to a) require the members to refrain from seeking injunctive relief b) delete the condition where FRAND negotiations may be subject to a condition of reciprocity; (c) to identify in detail the procedure to be followed in case of patent ‘holdups’ and patent ‘holdouts’; (d) to identify in detail the procedure to be followed in case of refusal to license by TSDSI members, and, nonmembers, both; and, (e) to include a detailed process on the declassification of a standard or technical specification. Further, SSOs may consider recommending the use of royalty-free licenses, in tune with the W3C and Open Mobile Alliance.

The government should prescribe Model Guidelines that may be adopted by Indian SSOs (incorporating the suggestions above), in view of increasing complexity of SEP litigation, and potential abuse of FRAND process. The Model Guidelines may additionally cover (a) the composition of the SSO; (b) the process of admitting members; (c) the process of the determination of a standard or technical specification; (d) the process of declassification of a standard or technical specification; (e) the IPR Policy; (f) resolution of disputes; (g) applicable law.

Royalty Rates

The government should also intervene in the setting of royalties and FRAND terms, in light of severe inadequacies in the SSOs’ IPR policies. CIS suggested that the government should initiate the formation of a patent pool of critical mobile technologies and apply a compulsory license with a five per cent royalty. Also, payment of royalties on SEPs should be capped by fixing a limit by the DIPP.

Further, royalty rates for SEPs should be based on the smallest saleable patent practising component.

Non-Disclosure Agreements and Transparency

On the use of Non-Disclosure Agreements in SEP/FRAND litigation, CIS submitted that . pending a final determination by the CCI (and subsequent appeals) it would be premature to make an absolute claim on whether the use of NDAs results in an abuse of dominant position in all instances.

On making the practices of cross-licensing and patent pooling transparent, CIS strongly urged the DIPP to strictly enforce the compliance of Form 27s by patentees. Availability of Form 27s will critically enable willing licensees to access patent working information in a timely manner. The Form 27 template may be modified to include more details, including patent pool licenses, with an explicit declaration of the names of the licensees and not just the number.

Further, guidelines may be drawn up on whether it was discriminatory to charge no royalties (whether on the SSPPU or on the whole device) for a patent holder in a cross licensing arrangement with another, when it charges royalty on the selling price of the device from a non cross-licensor.

Remedies for FRAND- assured SEPs

CIS recommended that courts adopt a more cautious stance towards granting injunctions in the field of SEP litigation, because a) injunctions may deter willing licensees from agreeing to the FRAND commitment, and also harm them b) accurately proving irreparable damage is difficult to establish in the Indian context for smartphone manufacturers c) there exists ambiguity in Indian jurisprudence to determine the conduct of an unwilling licensee, inter alia.

In CIS’ opinion, there is no need for an independent expert body to determine FRAND terms for SEPs and devising the methodology for such a purpose. The existing legal and regulatory framework is reasonably equipped to determine FRAND terms. Analytical frameworks may be studied in American jurisprudence to determine reasonable royalty rates, and patent damages.

Essentiality of SEPs and their declassification

To determine whether a patent declared as SEP is actually an Essential Patent, CIS submits that various methodologies have been used by studies to analyse the same. Goodman and Myers led a study on the subject in 2005; and additionally, laboratory tests and expert opinions can be taken into account to determine the essentiality.

Lastly, CIS suggested that Indian SSOs maintain a publicly accessible database of SEPs found to be invalid or non-essential in India. Such a record will assist the process of declassifying SEPs timely.

For more details visit http://editors.cis-india.org/a2k/blogs/summary-of-cis-comments-to-dipp2019s-discussion-paper-on-seps-and-their-availability-on-frand-terms

Submitted Comments on the 'Government Open Data Use License - India'

sinha — 2016-07-26T09:23:48Z

The public consultation process of the draft open data license to be used by Government of India has ended yesterday. Here we share the text of the submission by CIS. It was drafted by Anubha Sinha, Pranesh Prakash, and Sumandro Chattapadhyay.

The following comments on the 'Government Open Data Use License - India' was drafted by Anubha Sinha, Pranesh Prakash, and Sumandro Chattapadhyay, and submitted through the MyGov portal on July 25, 2016. The original submission can be found here.

I. Preliminary

This submission presents comments by the Centre for Internet and Society (“CIS”) [1] on the draft Government Open Data Use License - India (“the draft licence”) [2] by the Department of Legal Affairs.
This submission is based on the draft licence released on the MyGov portal on June 27, 2016 [3].
CIS commends the Department of Ministry of Law and Justice, Government of India for its efforts at seeking inputs from various stakeholders prior to finalising its open data licence. CIS is thankful for the opportunity to have been a part of the discussion during the framing of the licence; and to provide this submission, in furtherance of the feedback process continuing from the draft licence.

II. Overview

The Centre for Internet and Society is a non-governmental organisation engaged in research and policy work in the areas of, inter alia, access to knowledge and openness. This clause-by-clause submission is consistent with CIS’ commitment to safeguarding general public interest, and the interests and rights of various stakeholders involved. Accordingly, the comments in this submission aim to further these principles and are limited to those clauses that most directly have an impact on them.

III. Comments and Recommendations

Name of the Licence: CIS recommends naming the licence “Open Data Licence - India” to reflect the nomenclature already established for similar licences in other nations like the UK and Canada. More importantly, the inclusion of the word ‘use’ in the original name “Government Open Data Use License” is misleading, since the licence permits use, sharing, modification and redistribution of open data.
Change Language on Permissible Use of Data: The draft licence uses the terms “Access, use, adapt, and redistribute,” which are used in UNESCO’s definition of open educational resources, whereas, under the Indian Copyright Act [4], it should cover “reproduction, issuing of copies,” etc. To resolve this difference, we suggest the following language be used: “Subject to the provisions of section 7, all users are provided a worldwide, royalty-free, non-exclusive licence to all rights covered by copyright and allied rights, for the duration of existence of such copyright and allied rights over the data or information.”
Add Section on the Scope of Applicability of the Licence: It will be useful to inform the user of the licence on its applicability. The section may be drafted as: “This licence is meant for public use, and especially by all Ministries, Departments, Organizations, Agencies, and autonomous bodies of Government of India, when publicly disclosing, either proactively or reactively, data and information created, generated, collected, and managed using public funds provided by Government of India directly or through authorized agencies.”
Add Sub-Clause Specifying that the Licence is Agnostic of Mode of Access: As part of the section 4 of the draft licence, titled ‘Terms and Conditions of Use of Data,’ a sub-clause should be added that specifies that users may enjoy all the freedom granted under this licence irrespective of their preferred mode of access of the data concerned, say manually downloaded from the website, automatically accessed via an API, collected from a third party involved in re-sharing of this data, accessed in physical/printed form, etc.
Add Sub-Clause on Non-Repudiability and Integrity of the Published Data: To complement the sub-clause 6.e. that notes that data published under this licence should be published permanently and with appropriate versioning (in case of the published data being updated and/or modified), another sub-clause should be added that states that non-repudiability and integrity of published data must be ensured through application of real/digital signature, as applicable, and checksum, as applicable. This is to ensure that an user who has obtained the data, either in physical or digital form, can effectively identify and verify the the agency that has published the data, and if any parts of the data have been lost/modified in the process of distribution and/or transmission (through technological corruption of data, or otherwise).
Combine Section 6 on Exemptions and Section 7 on Termination: Given that the licence cannot reasonably proscribe access to data that has already been published online, it is suggested that it would be better to simply terminate the application of the licence to that data or information that ought not to have been published for grounds provided under section 8 of the RTI Act, or have been inadvertently published. It should also be noted that section 8 of the RTI Act cannot be “violated” (as stated in Section 6.g. of the draft licence), since it only provides permission for the public authority to withhold information, and does not impose an obligation on them (or anyone else) to do so. The combined clause can read: “Upon determination by the data provider that specific data or information should not have been publicly disclosed for the grounds provided under Section 8 of the Right to Information Act, 2005, the data provider may terminate the applicability of the licence for that data or information, and this termination will have the effect of revocation of all rights provided under Section 3 of this licence.”
It will be our pleasure to discuss these submissions with the Department of Legal Affairs in greater detail, supplement these with further submissions if necessary, and offer any other assistance towards the efforts at developing a national open data licence.

[1] See: http://cis-india.org/.

[2] See: https://www.mygov.in/sites/default/files/mygov_1466767582190667.pdf.

[3] See: https://www.mygov.in/group-issue/public-consultation-government-open-data-use-license-india/.

[4] See: http://www.copyright.gov.in/Documents/CopyrightRules1957.pdf.

For more details visit http://editors.cis-india.org/openness/submitted-comments-on-the-government-open-data-use-license-india

Submission to DIPP at Meeting with IP Stakeholders

sinha — 2018-01-01T01:27:28Z

Centre for Internet & Society (CIS) made a submission to the Department of Industrial Planning and Promotion (DIPP) on 7 December 2017.

Centre for Internet and Society, Indiaâ€™s (CIS) Submission to the Department of Industrial Planning and Promotion (DIPP) at Meeting with IP Stakeholders on 07 December, 2017

As the DIPP 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(2) of the Patent Act, 1970 mandates 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 the goal of making unworked patents available for compulsory licensing in India, both to promote economic development and public access to patented products. Penalties for failing to furnish such information (via Form 27) are steep, potentially resulting in fines or imprisonment.
We note that in 2009, 2013 and 2015 the Controller 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.
We commend the efforts of the IPO, however, our empirical research on ICT innovations as well as by Prof. Shamnad Basheer (on ICT and pharmaceutical sector) 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, leavingÂ 1,186 Indian patents for which a Form 27 could have been filed, but was not found. Â For a surprising number of Form 27s (3%) the working status of the relevant patent was not 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.
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 our study of the submissions made to the TRAI Consultation on Promoting Local Telecom Manufacturing:

Two industry associations, namely Telecom Equipment Manufacturers Association of India Â (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 â€“ the name of the Standard Setting Organisation and corresponding standard of which it is a part.
Further, we would like to draw attention to how our study was limited by the technical capabilities of the Indian Patent Officeâ€™s online Form 27 repository, such as:

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. Â Further, http://ipindia.nic.in/patsea.htm returned a 404 error.
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.
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We are thankful to DIPP for the opportunity to make these submissions. It would be our pleasure and privilege to discuss these submissions and recommendations in details with the DIPP. We also offer our assistance on other matters aimed at developing a suitable policy framework for SEPs and FRAND in India, and, working towards sustained innovation, manufacture and availability of mobile technologies in India.

On behalf of the Centre for Internet and Society, 07 December, 2017

Anubha Sinha anubha@cisindia.org

Annexure

Complete Data of CIS' Study

See Contreras, Jorge L. and LakshanÃ©, 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

See Shamnad Basheer, Making Patents Work: Of IP Duties and Deficient Disclosures, 7 QUEEN MARY J. INTELL. PROP. 3, 16-17 (2017).

Supra note 1.

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

See TRAIâ€™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 - â€ŽIndian Patent Office) on 09.09.2017.

For more details visit http://editors.cis-india.org/a2k/blogs/submission-to-dipp-at-meeting-with-ip-stakeholders

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

sinha — 2021-07-28T09:31:53Z

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

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

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

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

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

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

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

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

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

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

Shape of IPRs and Agriculture post the WTO Nairobi Ministerial

sinha — 2016-05-05T07:11:16Z

CIS is running a series of meetups focused on intellectual property to bring folks interested in IP law to discuss developments in access to knowledge, climate change, health, trade, etc. At the first meet-up in February, Prof. Biswajit Dhar delivered a short talk on intellectual property rights and agriculture in a post-Nairobi Ministerial world. This post is a summary of his talk.

Extension of abeyance of Non- violation complaints

At the Nairobi Ministerial, members agreed to extend the non-applicability of non-violation complaints for two years. There are two kinds of disputes which can be initiated at the WTO -first, when the partner country does not fulfill a commitment and such a non-implementation is injures the member country, leading to either nullification or impairment. Second, a country may deem itself to be injured even though the partner country has fulfilled its obligations. For instance, despite India's compulsory license grants complying with TRIPS, the US initiated a dispute against India.

Need for greater negotiating muscle and coalition building at multilateral fora

The Convention on Biological Diversity(CBD) came into force in 1993, followed by the TRIPS agreement in 1995. India became a member of the CBD and gained sovereign rights over its diversity. Before CBD, inventions related to diversity were protected by private rights. The turmeric case, and increasing bio-piracy led to introduction of requirement of disclosing the source. India proposed that along with other details, the source of the biological material should be mandatorily disclosed, including any associated traditional knowledge. Subsequent benefits arising out of use of biological resources had to be shared with the country- it was important to acknowledge that the community had nurtured these resources. The coalition in favour of the disclosure requirement was an interesting one because it was between India, Brazil, sometimes South Africa, Andean countries and Pakistan. This was pushed for in WIPO where the need for a treaty was advocated. The consensus around the disclosure requirement was an example of developing countries forming coalitions to make their interests more pronounced.

Further, greater the evidence, better is a country’s case in negotiations. After the Turmeric case, India realised that it needs written and not oral evidence to produce in the US Courts. That realisation led to the creation of a documentation project for traditional knowledge(Traditional Knowledge Library Database). Since the last decade, India has been sharing this database with patent officers. Since 2009, TKDL has also contested patents in various jurisdictions. At the EPO, India contested 94 patents, while in Canada the number is 25. Although there has been some success in US but major success has been in EU only. However, there is a shortage of manpower to work on the challenges, and as a consequence the efforts have largely failed to push the process of the law. Mounting these challenges also proves to be be exorbitantly expensive. There are indeed very few countries which have effectively done this without succumbing to international political pressure- India is one of them. It is possible to use this democratic space wisely to push back the dominant powers.

Trade is imminent and there will be trade. However, if we do not deal with trade effectively, it will spell doom for us. The Transpacific Partnership(TPP) and Nairobi ministerial should serve as a warning for us. The prevalent fear has been that countries in favour of TPP will be multilateralised. India's steps indicate a roll back of its role at the WTO. Once it moves out of the WTO framework and the Doha agenda fails, TPP signatories will begin to exert pressure on WTO. Granted that there is very little window to move forward, nevertheless, India should try using its influence to fight at the WTO with all resources available. WTO has limitations but such organizations are the only bet we have against multilateral organizations. Currently, India is allowing these organizations to be shaped in an undesirable manner. We have not used the WTO truly well enough, and neither have we been able to influence ongoing negotiations. There is, therefore, a need to rethink our strategy. It is time to step up and engage with lawmakers instead of only engaging with bureaucrats.

Negotiating teams at these multilateral fora are of utmost importance, because of their unique position to influence the law making process at the top-down level. In the long term, they are also a cost saving measure (compared to mounting opposition to patents, etc). Unfortunately, India has kept silent as it watches US and its allies taking over ASEAN. Through TPP, rules are changing and the US-led alliance is taking over countries beyond Pacific Rim, by moving into ASEAN. India is in an isolated position right now and needs a group of its own to collaborate and work as a formidable force against US.

India should have seized the opportunity to group with African nations in the India-Africa forum to consolidate its position. Similarly, Latin countries may also be pursued. These regions are important since India's support at the WTO has been on a sharp decline.

Agriculture

India is also under pressure to remove agricultural subsidies. The subsidy regime was crafted by the EU and US to enable them to exempt their subsidies in an exempt list (green box). Further, US cleverly protected its own export credits so that its own subsidies became exempt. In this manner, even subsidies pertaining to export competition are not totally eliminated. However, other countries like India have raised an issue that in these countries, export subsidy is but one part of total subsidies. The latter has come down and this is problematic because countries like India simply must have potential to safeguard against hunger. The public distribution system is essential for this. India has a system of Minimum Support Price(MSP) and input subsidy. On the other hand, US provides direct income support, arguing that markets should be as close to their pristine form as possible. And input subsidy and MSP do not reconcile with this. According to them, income transfers are better because that does not manipulate prices.

In US and EU, the irony is that, they have farm policies. US has had a farm bill every 4 years since 1933, and EU has a common agricultural policy. India does not have any such policy. The US and EU inform their producers their about expected subsidies for the next 4 years, enabling the producers to plan in advance. In this case, income transfer can work. Therefore, the farmers can take higher risks and can manipulate prices. Their farm rate price is well below the economic cost and international price since they have protection because of the income transfer. The international price is supposed to be efficient (in almost 3 decades, international prices have been same). Since their prices are below international prices, they can dump in the international market. On the other hand, nobody else can enter the US market. Ironically, this income support, which affects international trade so unfairly, is kept out of the scope of WTO deliberations - no questions asked. Further, while the US Farm Bill expenditure has gone up, in contrast, India has a limit on subsidy. Food subsidy is counted in the 10% limit prescribed by the WTO.

The situation is can be summarised as, thus: US's activities eventually escape the WTO, while Indian programmes fall within the scope, more than the usual. Before the Food Security Act, the below poverty line population were the only beneficiaries. And now, the Act benefits two-thirds of the population. As a result, quantum of subsidized food has gone up. If the government decides to give income transfers (instead of subsidies), in order for it to be successful, the tiller has to be the owner of the land, which is problematic in India. Although people want to follow direct benefit transfer for agriculture as well, the question remains that how many workers will actually benefit from it.

It is evident that agriculture is suffering- Mint recently reported on how India is becoming an agro importer. Sugar output has suffered. India might import sugar next year along with pulses, wheat. Productivity is going down. This is will make way for support for genetically modified crops-- which is again what the US wants. If the WTO gets populated by TPP signatories, India cannot continue with providing subsidies because TPP eliminates agricultural subsidies. The only relevant factors are market entry and tariff. This could be agriculture’s deathbed.

Negotiations on agricultural issues have not been effective because of divisions within it. Fragmentations have caused a lack of unity - even a bare common minimum position does not exist. Further, US and allies have used diversionary tactics such as repeatedly asking for evidence, not bringing anything concrete to the table, etc. When the process is frustrated frequently, activist movements also die down.

Loss of bargaining power has led to fatigue within various activist groups in the country. On the other hand, corporations continue prospering. India had put up a strong fight for TRIPS flexibilities, but today elements like TPP are destroying balanced regimes across the world.

Thanks to our intern Aniruddha Majumdar for his assistance on this post.

For more details visit http://editors.cis-india.org/a2k/blogs/shape-of-ip-and-agriculture-post-the-wto-nairobi-ministerial

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

Second Draft of Open Access Policy of the Department of Biotechnology and Department of Science released

sinha — 2014-10-30T00:33:49Z

The Department of Biotechnology and the Department of Science, Ministry of Science and Technology, Government of India drafted an Open Access Policy (“Policy”) in consultation with several open access experts, government officials and CIS. The second draft of the Policy released last week and is open for comments till 17th November, 2014.

The Centre for Internet and Society (“CIS”) commends the efforts of the Ministry of Science and Technology, Government of India to make scientific research publicly available by developing an open access policy. The first and second drafts of the Policy may be accessed here. The following part highlights the changes inserted in the second draft of the Policy.

Second draft of the Department of Biotechnology and the Department of Science Open Access Policy

The second draft has been titled “Policy on open access to DBT and DST funded research.” At the outset, the second draft reflects that the Policy is voluntary and not mandatory in nature. To reiterate this, the Department of Biotechnology and the Department of Science (“DBT-DST”) acknowledge and respect right of researchers to publish their work in a journal of their choice in the Policy. However, the DBT-DST maintains that it will not underwrite article processing charges. In addition, the Policy respects the limitations placed on research outputs under Indian law and intellectual property policies of the respective institutions.

The Policy lays out that the process for making a research output openly accessible will start at the institutional level, and it has been made mandatory for institutions which receive core funding from DBT-DST to set-up an Institutional Repository(“IR”). The DBT-DST will provide adequate assistance to set up institutional repositories. For other institutions, it is strongly suggested that they set up an IR. Meanwhile, institutions can submit their work in the central repository created by the DBT and DST (dbt.sciencecentral.in and dst.sciencecentral.in). The Ministry of Science and Technology will set up a central harvester (www.sciencecentral.in) that will harvest the full text and metadata of these publication.

The recommended deposit period of the works has been extended to two weeks after the acceptance by the journal, and the recommended embargo period is less than a year. Depositing in a suitable repository has been made mandatory for all research outputs. CIS strongly recommended an embargo period of one year, and making deposits in repositories mandatory, regardless of the open access routes ( Gold OA or Green OA) adopted by the scientist.

The draft makes it clear that the Policy does not intend to override the agreements between the researchers and publishers, however, it recommends the authors to bring to the notice of publishers their obligations under the Policy.

In furtherance of creating awareness of open access, the DBT-DST intend to celebrate “Open Access Day” during the International Open Access Week (http://www.openaccessweek.org/) by organizing sensitizing lectures, programmes, workshops and taking new OA initiatives.

The second draft successfully addresses concerns raised by scientists and publishers on the first draft. The comments on the first draft may be accessed here. In the comments, the scientific community requested clarification on the mandatory nature of the policy. It also raised the issue of impeding career advancement in view of limited number of open access journals and the dependence on publications in certain noteworthy journals while hiring. Therefore, the second draft of the Policy makes it voluntary to publish open access, however, depositing in repositories has been made mandatory.

Further, concerns about IRs and central repository have been addressed in the second draft with the DBT-DST committing to assist institutions in setting up IRs.

Some publishers raised concerns about the stipulated embargo period, and suggested it be extended to a variable of 12-24 months, instead of the 12 months period recommended in the Policy. However, the second draft retains the embargo period of one year because scientific research moves at a fast pace, and locking crucial research for more than one year runs the risk of rendering the research outdated.

FAQs on the Policy will be released soon, as requested by several commentators.

About the Policy

CIS has been assisting the DBT-DST on developing the Policy since June 2014. The Policy document was drafted by the Open Access Policy Committee. I blogged about the exercise undertaken to emerge with the first draft which was followed by a round of comments from the public. After releasing the first draft, the Open Access Policy Committee convened a meeting to review the Policy in light of the feedback received. CIS was invited to participate in the meeting and I attended it in furtherance of the submissions made by CIS previously. The second draft is the outcome of the Open Access Policy Committee meeting.

For more details visit http://editors.cis-india.org/openness/second-draft-of-open-access-policy-of-the-department-of-biotechnology-and-department-of-science-released