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The US 301 Report – A Myopic View of IP Rights
http://editors.cis-india.org/a2k/blogs/us-301-report-a-myopic-view-of-ip-rights
<b>Varun Baliga and Nehaa Chaudhari discuss the 2015 US 301 Report, focussing on its narrow and convenient understanding of IP rights. A farrago of contradictions, it supports a rightsholder-centric view but not when the right, Geographical Indicator, is not to their liking. Similarly, the emphasis on the rights themselves gives short shrift to critical exceptions and limitations that also enhance and incentivize innovation, the ostensible purpose of IP.</b>
<p style="text-align: justify; ">The US Trade Representative ["USTR"] is the office in charge of the United States Special 301 Report ["301 Report"] - an annual report on the state of intellectual property rights in countries around the world. The Executive Summary of the 2015 Report states that it is conducted "pursuant to Section 182 of the Trade Act of 1974, as amended by the Omnibus Trade and Competitiveness Act of 1988 and the Uruguay Round Agreements Act (19 U.S.C. § 2242)". <a href="#_ftn1" name="_ftnref1">[1]</a> The relevant excerpt of the provision states:</p>
<p style="text-align: justify; ">" <i> The Trade Representative shall, by not later than the date by which countries are identified under subsection (a) of this section, transmit to the Committee on Ways and Means of the House of Representatives and the Committee on Finance of the Senate, a report on actions taken under this section during the 12 months preceding such report, and the reasons for such actions, including a description of progress made in achieving improved intellectual property protection and market access for persons relying on intellectual property rights </i> ."</p>
<p style="text-align: justify; ">The 2015 301 Report, much like its predecessors, prioritizes the existence of institutional mechanisms for the protection of intellectual property rights over the purported end goals of those rights, as argued by Shamnad Basheer.<a href="#_ftn2" name="_ftnref2">[2]</a> The purported link between intellectual property and innovation, a key element of the <a href="http://cis-india.org/a2k/blogs/national-ipr-policy-series-cis-comments-to-the-first-draft-of-the-national-ip-policy"> CIS comment on the National IPR Policy </a> , is not studied by the Report but simply assumed as a truism. In the usual criticism of India's laws, the Report notes that "IPR protection and enforcement challenges continue, and there are serious questions regarding the future of the innovative climate in India", operating on the assumption that IPR is the sole driving force of innovation. Instead, the Report is guided by the 'business climate' in a country as facilitated by its IP laws. To borrow from the EFF's incisive critique of this annual exercise, the 301 Report pressurizes India to criminalize the act of camcording in a cinema hall despite domestic copyright law that prohibits it subject to statutory exceptions.<a href="#_ftn3" name="_ftnref3">[3]</a> Further, the Report finds India's compliance with the Berne Convention to be insufficient since 'business climate' favours as comprehensive an intellectual property regime as possible directed at the expansion of rights and the narrowing of exceptions critical to education and openness of knowledge.</p>
<p style="text-align: justify; ">International law on intellectual property is interpreted instrumentally by the drafters of the report. What this means is that IP is being viewed solely through the prism of national interest. A particularly egregious implication is being witnessed in the shift of preferred fora to discuss IP from bodies like the WIPO to trade-oriented platforms, a theme that is discussed later on in this piece. Further, Italy's notice and takedown regime is praised in the 2015 Report notwithstanding its procedure of obtaining an order of removal not from the courts but the Communications Regulatory Authority, against the Manila Principles of Intermediary Liability, an important albeit non-binding piece of state practice.<a href="#_ftn4" name="_ftnref4">[4]</a></p>
<p style="text-align: justify; ">Furthermore, the emphasis on the interests of rightsholders themselves coupled with enforcement seldom happens in a comparative context, in the Report. This means that the Report privileges the interests of rightsholders to the exclusion of any interest that the exceptions to copyright, for fair use and education for instance, may hold. The 2015 Report, for instance, notes positive developments in IP law as exclusively including the strengthening of the regulatory framework weighted in favour of rights. It fails to note the ratification of the Accessible Books Consortium or the <a href="http://spicyip.com/2015/03/un-special-rapporteur-on-impact-of-intellectual-property-regimes-on-the-enjoyment-of-right-to-science-and-culture.html"> Report of the UN Special Rapporteur Farida Shaheed </a> on copyright policy,<a href="#_ftn5" name="_ftnref5">[5]</a> implicitly signalling that the US does not consider these developments favourable. This is problematic at two level.</p>
<p style="text-align: justify; "><i>First, </i> competing interests of free speech, open access to knowledge, education, public health are either downplayed or outright ignored. For example, the Report entirely ignores the work of WIPO on exceptions and limitations, and the Marrakesh Treat among the multilateral and plurilateral initiatives of note. Switzerland, for instance, is censured for the 2010 Swiss Federal Court decision that erred on the side of privacy by prohibiting Logistep from tracking IP addresses of entities accused of file-sharing.<a href="#_ftn6" name="_ftnref6">[6]</a> Even in the emphasis on rightsholders, the 301 Report reeks of hypocrisy and doublespeak. Gabriel J. Michael notes that the 301 Report criticized the European Union for having <i>too much</i> protection of IP through geographical indicators (GI). So, IP protection appears to be an unreserved good as long as it's the <i>right</i> kind of IP as determined by the United States.</p>
<p style="text-align: justify; ">" <i> For example, by any reasonably objective standard, the European Union offers very high levels of IP protection. Yet as recently as 2006, Special 301 listed the European Union on its watch list, citing "concerns" about the EU's geographical indication (GI) regime. Given that GIs are a form of intellectual property, USTR essentially placed the EU on its watch list for offering </i> <i> </i> <i>too much</i> <i> </i> <i> IP-or, if you prefer, the wrong kind of IP. Interestingly, this is a tacit admission by the U.S. that at least some kinds of IP can act as trade barriers </i> ."<a href="#_ftn7" name="_ftnref7">[7]</a></p>
<p style="text-align: justify; "><i>Second, </i> the 301 Report operates on the assumption that intellectual property is a right <i>in rem</i>. It does not even attempt to engage with the notion of IP as a public right. This is a direct implication of the methodology of the Report that privileges the simple existence of IP frameworks and enforcement mechanisms over a more substantive examination of the causal nexus between IP and its purported <i>raison d'etre</i>. Therefore, the interpretive approach of the 301 Report towards intellectual property law construes it not as a means to ends but as an end in itself.</p>
<p style="text-align: justify; "><b>What Does This Mean?</b></p>
<p style="text-align: justify; ">Finally, there are two implications of this approach to IP rights. The first is on the Report's words on India this year. Credit is given to India for establishing the High Level Working Group on Intellectual Property ["IPR Working Group"]. The purpose of the Working Group is said to be to "enable India to achieve its important domestic policy goals of increasing investment and stimulating innovation through, not at the expense of, IPR protection and enforcement". The façade of public interest behind which the 301 Report attempted to operate is finally off, one might say. IP exists, it seems, to facilitate not broader goals of public interest but investment and innovation within the myopic interests of 'rightsholders'. Paradoxically, however, the Report does call for more consultation on the First Draft of India's National IPR Policy - a noteworthy development, although inconsistent with the tenor of the rest of the Report. Second, the 301 Report as a reflection of American foreign policy goals is now being understood through the lens of ongoing trade negotiations. This steady shift in the preferable forum for IP negotiations from inclusive and democratic platforms, such as WIPO, towards restrictive and secretive ones, such as the WTO, is driven by regressive notions of IP as reflected in the 301 Report. Signalling a move towards a state-centric approach heralded by the United States, critical non-state actors from civil society find it increasingly difficult to exercise agency in these negotiations. While WIPO provides space for non-state actors such as non-governmental organizations to represent their positions and aid states with research, trade negotiations shunt civil society. The cloak and daggers approach of the United States Government towards the Trans-Pacific Partnership Treaty,<a href="#_ftn8" name="_ftnref8">[8]</a> brought to some light with recent votes in the US Congress, negotiations contrasted with the democratic and open nature of the negotiations surrounding the Marrakech treaty underscores the important difference in approach.<a href="#_ftn9" name="_ftnref9">[9]</a></p>
<p style="text-align: justify; ">As a result, the civil society finds itself unable to counterbalance the power hierarchies entrenched in international relations as it has done, for example, with the attempted imposition of TRIPS-plus standards through bilateral and multilateral agreements. A state-centric approach makes it easier for larger economies to coerce smaller and dependent countries to draft laws with little regard for limitations and flexibilities that are key for innovation and standard of life in large swathes of Global South - peoples who cannot afford the costs of IP protected-innovation. Further, issues of IP and trade are not pertinent solely to states but are increasingly driven by and relevant to a raft of non-state actors. Any policy that does not actively seek to include these stakeholders in the decision making process is destined to fail. Therefore, on both principled and consequentialist grounds, the Special 301 Report deserves very little attention from the international community.</p>
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<p><a href="#_ftnref1" name="_ftn1">[1]</a> Full text of the provision available at <a href="https://www.law.cornell.edu/uscode/text/19/2242">https://www.law.cornell.edu/uscode/text/19/2242</a>.</p>
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<p><a href="#_ftnref2" name="_ftn2">[2]</a> http://indianexpress.com/article/opinion/columns/these-rancid-rankings/99/</p>
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<p><a href="#_ftnref3" name="_ftn3">[3]</a> https://www.eff.org/deeplinks/2015/04/special-301-balance-not-found</p>
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<p><a href="#_ftnref4" name="_ftn4">[4]</a> <a href="https://www.eff.org/deeplinks/2015/04/special-301-balance-not-found"> https://www.eff.org/deeplinks/2015/04/special-301-balance-not-found </a> ; https://www.manilaprinciples.org/</p>
</div>
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<p><a href="#_ftnref5" name="_ftn5">[5]</a> <a href="http://www.un.org/ga/search/view_doc.asp?symbol=A/HRC/28/57">http://www.un.org/ga/search/view_doc.asp?symbol=A/HRC/28/57</a> .</p>
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<div id="ftn6">
<p><a href="#_ftnref6" name="_ftn6">[6]</a> http://arstechnica.com/tech-policy/2010/09/switzerland-gathering-ip-addresses-from-bittorrent-sites-illegal/</p>
</div>
<div id="ftn7">
<p><a href="#_ftnref7" name="_ftn7">[7]</a> <a href="https://topromotetheprogress.wordpress.com/2014/06/05/special-301-is-it-effective/"> https://topromotetheprogress.wordpress.com/2014/06/05/special-301-is-it-effective/ </a> ;</p>
<p>https://www.techdirt.com/articles/20140612/17435227561/ustrs-special-301-list-naughty-countries-without-strong-enough-patent-copyright-laws-is-complete-joke.shtml</p>
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<p><a href="#_ftnref8" name="_ftn8">[8]</a> <a href="http://www.politico.com/magazine/story/2015/05/tpp-elizabeth-warren-labor-118068.html#.VWvcMk-qqko"> http://www.politico.com/magazine/story/2015/05/tpp-elizabeth-warren-labor-118068.html#.VWvcMk-qqko </a> ; http://www.ip-watch.org/2015/04/23/divide-and-conquer-the-new-us-strategy-to-disentangle-the-tpp-negotiations/</p>
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<p><a href="#_ftnref9" name="_ftn9">[9]</a> http://www.ip-watch.org/2013/12/19/wipo-delegates-hear-concerns-of-ngos-on-exceptions-for-libraries/</p>
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<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/us-301-report-a-myopic-view-of-ip-rights'>http://editors.cis-india.org/a2k/blogs/us-301-report-a-myopic-view-of-ip-rights</a>
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No publishernehaaIntellectual Property RightsAccess to Knowledge2015-06-24T15:35:29ZBlog EntryNational IPR Policy Series : India's National IPR Policy - What Would WIPO Think?
http://editors.cis-india.org/a2k/blogs/national-ipr-policy-series-indias-national-ipr-policy-what-would-wipo-think
<b>As part of the National IPR Policy Series, CIS is evaluating how India's National IPR Policy framework and process holds up to WIPO's suggestions. In this note, Varun Baliga and Nehaa Chaudhari examine in particular, the functioning of the IPR Think Tank and the first draft of the National Policy in light of the WIPO framework and the principles it encapsulates. </b>
<p style="text-align: justify; "><i> </i></p>
<p style="text-align: justify; "><i> </i></p>
<p style="text-align: justify; ">This note is a brief overview of the approach set out by the World Intellectual Property Organization ("WIPO") <a href="http://www.wipo.int/ipstrategies/en/">for the development of National IPR Strategies by various countries</a>. This note also compares WIPO's approach to the approach adopted by the IPR Think Tank ("Think Tank") in the formulation of India's National IPR Policy This note is only an academic exercise and is not to be construed as a recommendation of the procedure set out by WIPO for the development of National IPR Policies/Strategies.</p>
<p style="text-align: justify; "><b> </b></p>
<h3><b>An Overview of WIPO's Approach</b></h3>
<p style="text-align: justify; ">WIPO's suggested model of a National IPR Policy operates at three levels - The Process, Baseline Questionnaire and Benchmarking Indicators. <a href="#_ftn1" name="_ftnref1">[1]</a> On process, WIPO suggests an 8-step procedure in developing a National IP Strategy that lays clear emphasis on both continuous consultation and methodological rigour in data collection. The initial 'Assessment Mission' is aimed at preparing the ground for the formulation of the policy, and includes meetings with stakeholders so as to involve interested entities from the very beginning. <a href="#_ftn2" name="_ftnref2">[2]</a> Given that an IPR policy is necessarily a political exercise, WIPO recommends that the mission be used to secure the political capital and commitment that would be necessary to see the exercise through. Then, a 'project (national) team' is constituted for an IP audit and develop an understanding of the economic, social and political infrastructure as context for the formulation of the policy. It is also stated that, in most instances, the team will include an international consultant. This is further complemented by 'Desk Research' and 'Data Collection' using the 'Baseline Survey Questionnaire', an integrated data collection tool developed by WIPO. The desk research is an assessment of the existing IP policies coupled with the country's broader goals - developmental, economic and social, so as to conceptualize a policy that is in conformity with the goals.</p>
<p style="text-align: justify; ">The data collection through the Baseline Survey Questionnaire is meant to complement the IP audit to understand the "weaknesses, strengths and potential" of "the current IP situation in the country". This audit and data collection drive is then buttressed with 'National Consultations' to validate the data and conclusions reached thus far. WIPO is unambiguous that the aim of these consultations is to enable a wide range of parties to exercise meaningful ownership and agency over the process of conceptualizing a national IPR policy. With the inputs received from the process so far, WIPO recommends that the drafting of the strategy commence on the basis of the "suggestions, opinions and recommendations received during the national consultation process". The drafting should operate at the level of each sector and the country as a whole. This is followed by a 'second round of stakeholder consultations'. These serve a dual purpose: to validate the findings of the first draft and to verify whether the first round of inputs are reflected in the draft itself. Finally, an 'implementation framework' including "implementation structures, a resource mobilization strategy, and monitoring and evaluation mechanisms".</p>
<h3><b>Assessing the First Draft of India's National IPR Policy:</b></h3>
<p style="text-align: justify; ">Now, we look at the National IPR Policy in India in light of the WIPO framework outlined above. First we look at the Assessment Mission or process followed prior to the announcement of any IPR policy. Then, we look at what assessment was undertaken of the existing IP laws in the country. Finally, the stakeholders meetings conducted so far are analysed in comparison to the purpose of such consultations that WIPO envisages.</p>
<p style="text-align: justify; "><b> </b></p>
<ol>
<li style="text-align: justify; "><b>Assessment Mission</b>: There are no reports of an initial meeting having been held to explain the scope and methodology of the process. However, the IPR Think Tank invited comments before the release of the draft national policy in order to seek suggestions on the tentative policy. It should be noted that these comments have not been published.</li>
<li style="text-align: justify; "><b>Assessment of existing IP framework</b>: The overview of the existing IP system in the draft policy covers just the various IP legislations and the relevant government departments. It then proceeds to underscore elements in Indian law that enhance and incentivize stricter standards for IP protection. For example, it illustrated the future challenge in copyright law as being enforcement on digital platforms. It identifies a need for concerted action to increase patent filings by Indians as over "75% of patent filings are by foreign entities". Further, even when it mentions India's ratification of the 2013 Marrakesh Treaty ensuring access to copyrighted works for persons with visual impairment, it is in the context of further reinforcement of copyright.Therefore, it is clear that the perspective of the draft policy towards India's existing framework downplays provisions ensuring access and protecting the public interest and focusses on more expansive IP protection, narrower exceptions and an overall priority for IP rights over the public interest in accessing knowledge. The purpose of the IP audit and desk research, "to obtain a clear picture of the current IP situation…, its weaknesses, strengths and potential.", has not been done justice by this audit weighted in favour of rightsholders. Finally, the Baseline Survey Questionnaire -an integrated tool for extensive data collection - has no mention in the draft policy. There is no indication that it has been utilized for the purpose of data collection, if any.</li>
<li style="text-align: justify; "><b>On stakeholder meetings</b>: The Draft National IP Policy was released on 24 December 2014. A DIPP Press Release called for comments and suggestions to the First Draft to be sent in by January 30<sup>th</sup>, 2015.<a href="#_ftn3" name="_ftnref3">[3]</a> The first set of stakeholder meetings were only held on February 5<sup>th</sup> and 6<sup>th</sup>, 2015.<a href="#_ftn4" name="_ftnref4">[4]</a> This is at odds with what the WIPO recommends. The very first step in the WIPO framework is the 'Assessment Mission' which involves meetings with stakeholders that explains the scope and methodology of the process, presumably to elicit views. There is no publicly available information that suggests that this has taken place. Second, the national consultation <i>precedes </i>the drafting of the strategy with the explicit goal of validating the IP audit findings and eliciting views on the drafting of the strategy. This is not intended to be a merely formalistic exercise but meaningful involvement of stakeholders in the whole process of conceptualizing a national IPR policy. Now, the DIPP has solicited comments prior to the publication of the first draft. However, mere solicitation of comments without meaningful consultation is a mere shadow of the objective of the WIPO recommendation of national consultations - "..to actively participate in the validation of the IP audit findings and the formulation of the National IP Strategy..to enhance a wide a range of IP stakeholders' ownership of the process of developing and eventually implementing a national IP strategy." Therefore, the principled objective of the consultation process as outlined by WIPO - enabling stakeholders to exercise a sense of agency over the policy document and drafting process - was severely undermined. Furthermore, WIPO suggests that the drafting of the policy should be based on the findings and suggestions submitted by the stakeholders. Given that comments have been solicited before the policy was drafted, it is incumbent upon the Think Tank to make comments submitted public. <a href="#_ftn5" name="_ftnref5">[5]</a></li>
</ol>
<p style="text-align: justify; ">The following table summarizes the comparison in the WIPO approach to that of the IPR Think Tank. Apart from the procedure outlined thus far, the table touches upon other points of comparison that are sure to inform the continued functioning of the Think Tank in the road towards a National IPR Policy.</p>
<div style="text-align: justify; ">
<table class="vertical listing">
<tbody>
<tr>
<td>
<p><b>WIPO Suggestion</b></p>
</td>
<td>
<p><b>India's National IP Policy Framework - Comparison</b></p>
</td>
</tr>
<tr>
<td>
<p style="text-align: justify; ">WIPO has also suggested a number of justifications that may be advanced for the development of a national IP strategy. <a href="#_ftn6" name="_ftnref6">[6]</a> These justifications will help in grounding the policy in a clear, lucid set of objectives. These are:</p>
<ol>
<li>Need to consolidate sectoral policies</li>
<li>National long-term development agenda</li>
<li>Benchmarking and best practices</li>
<li>International trade obligations</li>
<li>Strengthening the national IP office</li>
</ol></td>
<td>
<p>India's Draft National IP Policy provides for the following objectives:<a href="#_ftn7" name="_ftnref7">[7]</a></p>
<ol>
<li>Create awareness of the economic, social and cultural benefits of IP (<b>IP Awareness and Promotion</b>)</li>
<li>Stimulate the creation and growth of IP (<b>Creation of IP</b>)</li>
<li style="text-align: justify; ">Strong and effective laws that protect IP rights in a manner consistent with national priorities and intl obligations and that balance the interests of the rights owners and the public (<b>Legal and Legislative Framework</b>)</li>
<li style="text-align: justify; ">Strengthen IP administration and management of IP rights (<b>IP Administration and Management</b>)</li>
<li style="text-align: justify; ">Augment Commercialization of IP rights; valuation, licensing and technology transfer (<b>Commercialization of IP</b>)</li>
<li style="text-align: justify; ">Strengthen enforcement and adjudicatory mechanisms to protect and combat against IP rights violations ( <b>Enforcement and Adjudication</b>)</li>
<li style="text-align: justify; "><b>Human Capital Development in IP</b></li>
</ol></td>
</tr>
<tr>
<td>
<p>The second prong of WIPO's suggestions is devoted entirely to the Baseline Survey Questionnaire. There are seven clusters identified:</p>
<ol>
<li>IP Administration and Management</li>
<li style="text-align: justify; ">Generation of IP by universities, research organizations, business, industry, SMEs and individuals</li>
<li style="text-align: justify; ">Commercialization of IP and technology transfer by universities, research organization, business, industry, SMEs and individuals</li>
<li>Copyright and copyright industries</li>
<li>Plan breeders; rights (plant variety protection)</li>
<li>Enforcement of IP rights</li>
<li>IP and public policy</li>
</ol></td>
<td>
<p style="text-align: justify; ">While there are elements of these clusters in the draft policy, there is no mention of them in the context of the method of a Baseline Survey Questionnaire. This means that the data collection was not undertaken in compliance with WIPO's recommendations and means that there was either no data collected or the results are undermined.</p>
</td>
</tr>
<tr>
<td>
<p style="text-align: justify; ">Finally, the WIPO framework places great emphasis on the implementation of the policy.<a href="#_ftn8" name="_ftnref8">[8]</a> It has elements of this in all three prongs. It requires the policy to have an effective framework for its implementation that includes resource mobilization and monitoring and evaluation mechanisms.<a href="#_ftn9" name="_ftnref9">[9]</a></p>
</td>
<td>
<p>The issue of implementation is covered by the draft policy at two levels:</p>
<p>1. <b>Implementation of IP rights</b> - This includes</p>
<p style="text-align: justify; ">a) Placing the burden on individuals to protect their IP rights as IP is an "essentially private rights [sic]". <a href="#_ftn10" name="_ftnref10">[10]</a> The state merely plays the role of the facilitator for protection.</p>
<p style="text-align: justify; ">b) Enacting rules and setting up institutions. Examples include the Intellectual Property Rights (Imported Goods) Enforcement Rules 2007 framed to implement border control measures as well as the Copyright Enforcement Advisory Council. <a href="#_ftn11" name="_ftnref11">[11]</a> Further, strengthening enforcement mechanisms includes the establishment of a centralized 'Multi-Agency Task Force' for coordination between the raft of agencies that India has. <a href="#_ftn12" name="_ftnref12">[12]</a></p>
<p style="text-align: justify; ">c) Facilitate IP dispute resolution through the designation of a specialized patent bench in select High Courts. It also calls for the creation of regional benches of the IPAB in all five regions where IPOs are located as well as an increase in the powers of the IPAB. <a href="#_ftn13" name="_ftnref13">[13]</a></p>
<p>2. <b>Implementation of the Policy itself</b> -<a href="#_ftn14" name="_ftnref14">[14]</a></p>
<p style="text-align: justify; ">a) It suggests that the integration of the policy with stated government programmes such as 'Make in India' and 'Digital India' would enable its implementation.</p>
<p style="text-align: justify; ">b) The establishment of IP Promotion and Development Council (IPPDC) which will open IP Promotion and Development Units (IPPDU) for promoting IP awareness, protection and utlilization.</p>
<p>c) IP support to MSMEs.</p>
<p>d) Technology Acquisition and Development Fund under the Manufacturing Policy for licensing or procuring patented technologies.</p>
<p>e) Manufacturing units will be encouraged to set up IP cells in their own units and make IP a part of their corporate strategy.</p>
<p>f) Integrate with government initiatives.</p>
</td>
</tr>
</tbody>
</table>
</div>
<h3><b>Conclusion: Testing Times Ahead</b></h3>
<p style="text-align: justify; ">The IPR Think Tank has not been consistent with WIPO's recommendations on drafting a National IPR Policy. In terms of data analysis, the Think Tank has not displayed an iota of the analytical rigour and data collection that WIPO believes is necessary to understand both the state of IP in the country and devise effective means of responding to lacunae. Further, while consultations have been held with civil society, these have been lacking in two respects. They have not followed the timelines prescribed by WIPO insofar as consultations have happened only after the release of the first draft. As a result, the Think Tank has failed in actualizing the <i>raison d'etre</i> behind national consultations - "enhance a wide range of IP stakeholders' ownership of the process of developing and eventually implementing a national IP strategy". Finally, this piece is not an endorsement of WIPO or its recommendations but a mere acknowledgement of the role WIPO has played in this exercise. In the final analysis, India has fallen short of adhering to the principles reflected in the WIPO framework.</p>
<div style="text-align: justify; ">
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<p><a href="#_ftnref1" name="_ftn1">[1]</a> http://www.wipo.int/ipstrategies/en/methodology/</p>
</div>
<div id="ftn2">
<p><a href="#_ftnref2" name="_ftn2">[2]</a> The stakeholders that WIPO mentions are "..inter alia, the national IP office(s), relevant government departments, universities and research institutes, SMEs, inventors, creators, legal practitioners, non-governmental organizations (NGOs)".</p>
</div>
<div id="ftn3">
<p><a href="#_ftnref3" name="_ftn3">[3]</a> http://www.dipp.nic.in/English/acts_rules/Press_Release/pressRelease_IPR_Policy_30December2014.pdf</p>
</div>
<div id="ftn4">
<p><a href="#_ftnref4" name="_ftn4">[4]</a> http://spicyip.com/2015/01/examining-the-draft-national-ip-policy-stakeholder-meetings-to-be-held.html</p>
</div>
<div id="ftn5">
<p><a href="#_ftnref5" name="_ftn5">[5]</a> http://cis-india.org/a2k/blogs/national-ipr-policy-series-cis-comments-to-the-first-draft-of-the-national-ip-policy</p>
</div>
<div id="ftn6">
<p><a href="#_ftnref6" name="_ftn6">[6]</a> Methodology for the Development of National Intellectual Property Strategies, Tool 1: The Process, p. 11.</p>
</div>
<div id="ftn7">
<p><a href="#_ftnref7" name="_ftn7">[7]</a> National IPR Policy (First Draft), p. 6-23.</p>
</div>
<div id="ftn8">
<p><a href="#_ftnref8" name="_ftn8">[8]</a> Methodology for the Development of National Intellectual Property Strategies, Tool 1: The Process, p. 9.</p>
</div>
<div id="ftn9">
<p><a href="#_ftnref9" name="_ftn9">[9]</a> <i>Ibid</i> .</p>
</div>
<div id="ftn10">
<p><a href="#_ftnref10" name="_ftn10">[10]</a> <i>Ibid</i> , p. 20.</p>
</div>
<div id="ftn11">
<p><a href="#_ftnref11" name="_ftn11">[11]</a> <i>Ibid</i> , p. 20.</p>
</div>
<div id="ftn12">
<p><a href="#_ftnref12" name="_ftn12">[12]</a> <i>Ibid</i> , p. 21.</p>
</div>
<div id="ftn13">
<p><a href="#_ftnref13" name="_ftn13">[13]</a> <i>Ibid</i> , p. 22.</p>
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<div id="ftn14">
<p><a href="#_ftnref14" name="_ftn14">[14]</a> <i>Ibid</i> , p. 25-26.</p>
</div>
</div>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/national-ipr-policy-series-indias-national-ipr-policy-what-would-wipo-think'>http://editors.cis-india.org/a2k/blogs/national-ipr-policy-series-indias-national-ipr-policy-what-would-wipo-think</a>
</p>
No publishernehaaIntellectual Property RightsAccess to KnowledgeWIPO2015-07-02T17:47:58ZBlog EntryReport: Global Intellectual Property Convention 2015
http://editors.cis-india.org/a2k/blogs/report-global-intellectual-property-convention-2015
<b>The Global Intellectual Property Convention was held in January 2015 in Mumbai. Interns Anna Liz Thomas and Nayana Dasgupta assisted with the making of this report.</b>
<p style="text-align: justify; "><b><a href="http://editors.cis-india.org/a2k/blogs/global-intellectual-property-conference-2015.pdf">Conference Schedule [PDF]</a></b></p>
<p style="text-align: justify; "><b><a class="external-link" href="http://iprconference.com/admin/uploads/GIPC%202015%20-%20IPR%20Policy%20Recommendations.pdf">National IPR Policy Recommendations [PDF]</a></b></p>
<p style="text-align: justify; "><b>Harshvardhan Lale, Price Waterhouse Coopers (PWC)</b></p>
<h3 style="text-align: justify; ">Digital piracy in India</h3>
<div style="text-align: justify; ">
<p><b>Special 301 Report:</b></p>
<p>India is second among 10 countries on the Priority Watch List of the United States Trade Representatives (USTR), according to the Special 301 Report published in May 2014. Once every two years, the US, through its trade representatives releases the Special 301 Report, which deals with piracy across the globe, especially in the places where US business interests lie. Though the police conduct at least 25 raids every week across India, it has made no difference to the rate of piracy in the country. When a couple of software publishers entered India, they were very confident that none of their products, in any shape and form, could be pirated in India. I took one of the heads of Compliance to the [pirated goods] market where we got a product worth Rs. 5 crores for Rs. 100.</p>
<p>The Special 301 Report also suggests that none of the previous governments or government bodies in India have taken any initiative whatsoever to ensure that even the products used in the government offices are not pirated. According to US government agencies (2013), there were serious difficulties in attaining constructive engagement on IPR issues with the UPA government.</p>
<p><b>Video piracy:</b></p>
<p>India is rated as one of the countries with the highest incidence of video piracy by MPDA, well above Bulgaria, Costa Rica, Greece, and Peru. We [supporters of stricter IP] are now trying to get the digital rights management provision in the [Indian] Copyright Law [redacted], but that is still in the future.</p>
<p><b>Broadcast piracy:</b></p>
<p>A few Indian television channels are facing this problem because of demand [to view their content] from Indians living abroad.</p>
<p><b>Online piracy: </b></p>
<p>The Internet has been an enabler for the movie and music industry. Many cinema and music publishers have their own channels, say, on YouTube. Although content cannot be directly downloaded from YouTube, "YouTube grabber" software enables piracy.</p>
<p>Surreptitious recording of public performances on mobile phones and recording of cinema screenings using camcorders are other instances of piracy. These recordings are later circulated on the Internet.</p>
<p><b>Software piracy: </b></p>
<p>Recently, one automobile manufacturer had to recall a set of its vehicles from the Indian market. Investigations revealed that one of the automobile components, which was procured from a supplier, was created using pirated software. There is a fair chance that a pirated product won't provide all the functionalities that you might otherwise get, or that some APIs (Application Programming Interface) may be missing, which may lead to erroneous or inaccurate design.</p>
<p>Counterfeiting, online piracy, end user piracy, client overuse, and hard disk loadings [sideloading] amount to most of the software piracy in India. One of the software companies for whom we [PWC] are doing an audit - it happens to be one of the leading information technology companies in India - we identified a gap of 20 million [US] dollars for one software publisher in their India operations. Whether this was deliberate or not can be debated, but it is a serious problem.</p>
<p>A survey on software piracy conducted across the globe by Business Software Alliance indicates that India has improved from bring ranked tenth to twelveth. Estimated use of unlicensed software stands at 43% globally; India is at 60% [as per the latest figures]. In 2010, India was at 64%, in 2011 at 63%. There is a recent case of a patent getting rejected because the organisation that had applied for it had used unlicensed software for designing the product. Another serious impact with regard to RnD and patents is on privacy. [Pirated software could contain] malware with the potential of stealing information].</p>
<p>Some of the major problems are that organisations are not aware of the implications of using pirated software and media, leading to potential non-compliances. [Owing to] lack of knowledge of licensing, the different software licenses, software publishers not using a standard format of licensing, the end consumer does not understand what licensing is. In the license terms, there is a "Right to Audit", which gives every software publisher the right to evaluate your organisation at any time.</p>
<p>Corporates are trying to align themselves with consultants like us [PWC] to support the industry in curbing piracy. The Make in India program has a dedicated section on intellectual property (IP). There is a special focus on intellectual property rights (IPR) for the manufacturing sector, which is directly affected by digitalisation. We hope that with the new government, some change will happen in the software piracy space.</p>
<p><b>Omesh Puri, Senior Associate, LexOrbis</b></p>
<p><b>Effective Copyright Enforcement in the Digital Era: Relevance of John Doe Orders</b></p>
<p><b>Copyright enforcement challenges in the digital world:</b></p>
<p>Rapid growth in digital technology presents enormous opportunities for copyright owners as it expands their customer base, reduces distribution costs, and makes territorial boundaries almost a nullity. The disadvantage is that, unless regulated properly, it exposes copyrighted work to threat of blatant infringement spread across different media including the Internet. The main problem before copyright owners is ever-growing online piracy. The Internet grants anonymity to copyright infringers. There can be a number of occasions where copyright owners are not able to ascertain the infringer's identity even after spending considerable time or money. In such cases, a John Doe order comes as an effective enforcement tool.</p>
<p>The name John Doe is used to identify unknown and nameless infringers or defendants who have allegedly committed some wrong, but whose identity is unknown to the plaintiff. To avoid delay and injustice, the court names the defendant John Doe, until such time as the defendant is identified. The orders passed by courts in such cases are known as John Doe orders, and is an internationally accepted practice to enforce IPR, especially with respect to copyright and trademark. This is prevalent in various jurisdictions including the US, Canada, Australia and New Zealand. This order has also been formalised in the statutory provision of these countries. It is an ex-parte interim injunction with the added benefit that the plaintiff is given the liberty to add to the array of parties who would be identified after the filing of the suit. These orders are an exception to the general rule which requires the defendant to be identified prior to the filing of the suit. The ex-parte interim injunction then applies even against the later defendants. It is also against the defendants whose identities are unknown during the filing of the suit. The orders enjoin unknown defendants from engaging in any infringing activity.</p>
<p><b>Why are John Doe orders so popular?</b></p>
<p>These orders allow for immediate action in case any instance of infringement comes to light. As the copyright owners only need to serve a copy of the order to the erring parties instead of filing of a new suit. By filing a single action, and after obtaining a single John Doe order, the plaintiff would be able to cover all alleged and even potential infringements and violators, which would ultimately save a lot of time and costs. The plaintiff would not be required to file separate court actions before different courts in India. Once they obtain this order, it will block all unknown defendants and infringers. It is also able to reduce online piracy by mandating that internet service providers block access to infringing websites.</p>
<p><b>Some of the important John Does copyright injunctions passed</b> <b>in India:</b></p>
<p>The first John Doe order was passed in the famous case of Ten Sports entitled Taj Television v. Rajan Mandal. The plaintiff, Taj Television, a Dubai-based company, owned and operated an exclusive sports channel by the name Ten Sports. They had acquired the exclusive rights to broadcast the 2002 FIFA World Cup. They entered into agreements with various cable operators for transmission of the channel. However, many unlicensed cable operators started displaying Ten Sports without any permission or authorisation from Taj Television, which then instituted a suit against named and unnamed cable operators. In 2002, the Delhi High Court passed a pathbreaking order which stopped the unauthorised broadcast of FIFA World Cup matches.</p>
<p>The Indian Court has specifically held that such orders may be enforced against persons whose identities are unknown at the time of instituting the suit.</p>
<p><b>Whose identities fall within the scope of action?</b></p>
<p>So long as the litigating finger is directed at an unknown person, the inability to identify him by name is a mere misnomer. The principle of litigating finger was affirmed in this case. After this there have been a series of John Doe orders. However it is only in recent times that the Indian Judiciary has started granting these orders on a regular basis, especially for blocking websites. In another case in 2014, Star India Pvt. Ltd. vs. Haneeth Ujwal, the plaintiff was one of the leading broadcasters in India. They had acquired the exclusive broadcasting rights, which includes television, mobile, Internet or on-demand rights with respect to the 2014 India vs. England Test Series. Star India filed the suit against websites, many of which were unidentifiable in nature or the owners could not be located. They were showing these cricket matches live without the permission of Star India. The websites' viewers could either view the ad-supported free version or the video-on-demand or pay-per-view subscription-enabled version. The availability of this content is supported by advertisements found on these websites.</p>
<p><b>How could the exclusive rights of the plaintiff be protected, and what can be the appropriate remedy?</b></p>
<p>Should the websites be blocked completely or only the specific URL providing access to the infringing content? The court held that both known and unknown defendants were liable for infringement as there was no remedy available to the plaintiff other than blocking the entire website. Blocking URLs was considered to be insufficient remedy by the court because, in its opinion, the website owners could easily change the specified URL by merely one character to circumvent the John Doe order passed by the Court.</p>
<p><b>Challenges: </b></p>
<p>While it has become routine to seek John Doe copyright injunctions before every big movie release or any major sporting event, many claim that they have largely remained unsuccessful in checking and controlling small street pirates. Lack of police cooperation may also render these orders unenforceable. There is another dispute going on whether these orders should be limited to entire websites or specific URLs. The Delhi HC has previously granted orders to extend the inclusion of these orders on the entire website. However, there is another opinion by Madras HC which said that these orders would be limited to specific URLs. In the absence of specific judicial guidelines, there is no clarity on the scope of these orders or under what circumstances these may be granted. There is a risk of misuse and improper implementation of these orders.</p>
<p><b><br /></b></p>
<p><b>James Martin, Director, Fieldfisher</b></p>
<p><b>Online Infringement In the European Union</b></p>
<p><b>(Recent Court Rulings in the European Union Regarding Online Copyright Infringement and Database Rights)</b></p>
<p><b>The Svensson case:</b></p>
<p>The Court of Justice of the European Union (CJEU) ruled that the owner of a website may use hyperlinks to redirect Internet users to protected works available on other websites without the authorisation of the copyright holder of the linked website, provided that the linked website is freely available, that is, it can be accessed by anyone on the Internet.</p>
<p>The Retriever Sverige website operated to provide clickable links to articles published by other websites on the internet. The claimants were journalists who wrote articles for the Goteborgs-Posten website, and those articles were being linked by the Retriever Sverige website. The claimants argued that the Retriever Sverige hyperlink constituted an infringement of the claimant's copyright by making a communication to the public without the author's permission and they alleged that this was contrary to Article 3 of the Information Society Services Directive, commonly known as the InfoSoc Directive, which is the European Directive that harmonises copyrights across the 28 member states of the EU within the Information Society. The case made its way to the Swedish Court of Appeal which stayed the proceedings pending references to four questions to the CJEU.</p>
<p>1. If anyone other than the holder of copyright in a certain work supplies a clickable link to the work on his website, does that constitute communication to the public within the meaning of Article 3(1) of the InfoSoc Directive?</p>
<p>2. Is the assessment under Q1 affected if the work which the link refers is on a website on the Internet, which can be accessed by anyone without restrictions or if access is restricted in some way?</p>
<p>3. When making the assessment under Q1, should any distinction be drawn between a case where the work, after the user has clicked on the link, is shown on another website and one where the work, after the user has clicked on the link, is shown in such a way as to give the impression that the content is appearing on the same website, in other words, framing the content.</p>
<p>4. Is is possible for a [an EU] Member State to give wider protection to the author's exclusive rights by enabling communication to the public to cover a greater range of acts than provided for in Art. 3(1) of the Info Soc Directive?</p>
<p>In answer to the first question, the Court of Justice determined that "communication to the public " requires both a "communication" and a "public". The hyperlinks were determined to be making available, and therefore, they were an act of communication. However, there is a sting in the tail, because the Court of Justice held that the public must be a new public, and the communication must be directed to a new public. A public that wasn't taken into account by the copyright holders when they first authorised their initial communication to the public. In the second stanza for Svensson, the public targeted by the journalists' original articles consisted of all potential visitors to the Goteborgs-Posten website, which was unrestricted. Therefore they could be freely used and read by any Internet user. Consequently the links provided by the Retriever Sverige website were not to a new public and there was no need to obtain the author's consent.</p>
<p>In response to the second question, the situation would be different if the link allowed users to bypass restrictions designed to limit access to the public such as a paywall as can be found on The Times London websites, the Wall Street Journal websites and many others. Such users were not taken into account by the original copyright holders when the initial communication was authorised. So those people would constitute a new public.</p>
<p>Regarding the third question, the framing, the Court of Justice unusually held that it was irrelevant. The Internet user who clicks on a hyperlink is given the impression that the link is appearing on the site that contains the link, in other words, framing somebody else's content that is already freely available on the internet on your own website is absolutely fine, and there are obviously issues that arise out of that concerning advertising revenue streams that some people have on their websites where they are effectively making money by putting content freely on the internet by having advertising revenue surrounding their content. But of course if somebody can freely embed that content on their website, those adverts aren't necessarily seen. But as far as the European Court of Justice is concerned in the context of copyright, this is perfectly acceptable, and this applies across all 28 EU Member States.</p>
<p>In answering the fourth question, the CJEU held that member states do not have the right to give wider protection to copyright holders by widening the concept of "communication to the public" from that which is given in the InfoSoc Directive, as this would otherwise give rise to legislative differences between member states contrary to the purposes of the directive.</p>
<p><b>Bestwater ruling:</b></p>
<p>The Bestwater case reconfirmed the liberal approach that the Court of Justice takes towards embedding copyright material on a third party website. The judgement has been stayed pending the outcome of the decision handed down in the Svensonn case. And the CJEU has ruled that unless an original publisher uses technical access restrictions, then embedded content does not reach a new public. The effect of this judgement, combined with the Svensonn judgement is likely to lead to more restrictive publishing practices within the EU. Copyright holders will seek to avoid free riders taking advantage of the loophole that the court seems to have legitimised. So to provide background,</p>
<p>The Bestwater case was referred to the Court of Justice by the German Federal Court of Justice. It deals with a promotional video about water pollution that was produced by Bestwater International, a company that makes water filters. The film was originally published by Bestwater on its own company website and later uploaded to YouTube, allegedly without the permission or knowledge of Bestwater. The defendants were competitors of Bestwater, and they embedded the video on their websites, with the frames pointing to the YouTube copy. Now Bestwater objected to this use and sought an injunction against the two representatives of the rival company from the German Court. Bestwater's position was that the video was protected by copyright and that the exclusive rights to use the film belonged to Bestwater. So the German court referred the case to the CJEU asking whether the embedding of content of a third-party website on one's own website constitutes a communication to the public within the meaning of Article 3(1) of the InfoSoc Directive.</p>
<p>After the Svensonn decision, the Court of Justice felt that it had already put an end to the debate regarding content on the Internet and it reverted to the German Court suggesting that the latter should withdraw its submission. In other words, saying that they did not want give an answer, saying that they had already answered it. The German Court insisted on a decision, one of the main reasons apparently being that in the Bestwater case, the YouTube video which the defendants were linking to and embedding on their website was itself a copyright violation. Nevertheless, in delivering its decision the CJEU followed the same rationale as in Svensonn and held that embedding content from another website does not amount to communication to the public if the uploader did not restrict access to the content and communicated it to the entire web community. There was no new public accessing the Bestwater video when it was embedded on the defendant's website, because when the video was uploaded on YouTube, whether lawfully or unlawfully, it was intended to be accessed by all who have access to the Internet. So this ruling somewhat cast doubt on the technical and economic understanding of modern media publication because the CJEU's position seems to be that the Internet is a medium rather than a mere technology. In other words, by analogy, a website does not compare to a particular magazine, newspaper, or a particular TV channel, but print media, TV in general, i.e, the relevant audience being all those who have access to magazines and newspapers rather than access to a particular newspaper, and all those who have access to TVs rather than a specific channel. So from a purely economic perspective these decisions raise concerns as they open up numerous possibilities to take advantage of copyright holders and content of other parties on the Internet. Based on these decisions, it's now possible to use written content, images or other videos that are hosted on another website for one's own website simply by embedding them. Apart from using somebody else's Internet bandwidth (which wasn't addressed by the CJEU at all), the CJEU in these copyright cases haven't taken account that the embedded content is actually taken out of its original context, and the advertisements displayed on the original website alongside the uploaded content may not appear on the embedded website, and the embedder may therefore spoil an important source of revenue for the copyright owner and use third-party copyright content for its own economic benefit. The most obvious response to these decisions will be that copyright owners will need to protect their content by implementing paywalls or other restrictive measures from the outset.</p>
<p>Another decision that the ECJ handed down involved the low-cost European Airline, RyanAir. This has been a long running dispute with various third parties, but one third party in particular, which accessed content on the RyanAir website to enable the sale of RyanAir flights and details about RyanAir time tables and schedules available on that third-party website, and interestingly, one thing that the Court of Justice raised in that decision is that it may be possible for owners of content to bind third parties in contract, but obviously you need to ensure that you are binding that third party in contract by accessing the website so that even if you cannot sue them for copyright infringement, you may be able to sue them for breach of contract for accessing your content and placing it on their website.</p>
<p><b>Database rights (AutoTrack v. GasPedaal)</b></p>
<p>The Court of Justice ruled in 2014 that the use of a meta-search engine can, in certain circumstances, constitute re-utilisation of the contents of the database in the meaning of Article 7(2)(b) of the Database Directive.</p>
<p>Database rights is an unusual concept, very newly come into the EU, and they provide protection above and beyond copyright protection. You don't necessarily need to have original content in a database, it's really protecting the investment an individual makes in actually producing the database, and that investment can be assessed on a qualitative or quantitative basis.</p>
<p>The Database Directive introduced the bespoke new form of legal protection. It is commonly referred to as the sui generis right . Article 7(1) in particular provides a "right for the maker of a database which shows that there has been qualitatively and/ or quantitatively a substantial investment in either obtaining, verification or presentation of the content to prevent extraction and/or re-utilisation of the whole or of a substantial part, evaluated quantitatively and/or qualitatively, of the contents of that database". Now for this purpose, Article 7(2)(b) provides that "re-utilisation means any form of making available to the public of all or a substantial part of the contents of a database by the distribution of copies, by renting, by online, or other forms of transmission". Article 7(5) provides that "the repeated and systematic extraction and/or re-utilisation of insubstantial parts of the contents of the database implying acts which conflict with a normal exploitation of that database or which unreasonably prejudice the legitimate interests of the maker of the database shall not be permitted."</p>
<p>The recitals to the Directive also back this up. So recital 42 of the Directive provides for "The right to prevent extraction and/or re-utilization related to acts by the user which go beyond his legitimate rights and thereby harm the investment". "The right to prohibit extraction and or re-utilization of all or a substantial part of the contents of a database relates not only to the manufacture of a parasitical competing product but also to any user who, through his acts, causes significant qualitative or quantitative detriment to the investment".</p>
<p>Turning to the facts of this case, Wegener operated a website called AutoTrack which carried car sale advertisements updated daily of to a 190,000 to 200,000 second hand cars of which around 40,000 were to be found on the AutoTrack website. Now Innoweb operated an online car advertisement website called GasPedaal. Rather than having its own database, it used a dedicated meta-search engine which then searched third party websites including AutoTrack's, using those websites to obtain results. So when a user typed in search terms on the GasPedaal website, the site's search engine would translate the relevant command into a language that could be understood by the AutoTrack web search engine. The AutoTrack search engine would then find any relevant advertisements and make them available on the GasPedaal search engine, which would then sort and collate those results from other dedicated search engines on other websites as well. The GasPedaal search engine would then note where more than one site produced the same advertisement and then made a single search result of those, presenting the user with links to the multiple sources. For each search performed, the GasPedaal search engine only returned results representing a small number of the advertisements on the AutoTrack site, but that is because it was only returning results that matched the relevant search terms given by the Internet user. Now Wegener successfully sued Innoweb for infringement of its database right. Innoweb appealed and the Hague Court of Appeal stayed the proceedings pending reference to the CJEU for a ruling on nine questions. The Court of Justice did not consider it necessary to consider all the nine questions. It ruled that it would be an infringement to the database right to use the meta-search engine in circumstances such as that involved in such proceedings. Under Article 7(1), an operator who makes available on the internet a dedicated meta-search engine such as GasPedaal re-utilises the whole or substantial part of the contents of a protected database, when that database's meta-search engine:</p>
<p>1) provides the end user with a search form which essentially offers the same range of functionality as the search form on the original database site.</p>
<p>2) where it translates queries from end users into the search engine for the database site in real time so that all the information on that database is searched through.</p>
<p>3) where it presents the results to the end user using a format of the website grouping duplications together into a single block item in an order that reflects the criteria comparable to those used by the search engine of the database site concerned for presenting results.</p>
<p>A dedicated meta-search engine is different from a general search engine based on an algorithm (like Google), primarily because a meta-search engine does not have its own data itself. It makes use of search engines of third party websites by transferring the queries from its users to the other search engines having first translated them into the relevant format required. It therefore offers the public a service where it searches the entire contents of the third-party databases or part of them in real time.</p>
<p>So Article 7(2)(b) has been broadly drafted to include "any other form of making available". The EUCJ attributed a broad meaning to the concept of reutilisation in its case law focusing on the objective of the database right which is to stimulate investment in data storage and processing systems. So in light of this objective, the re-utilisation has been construed as referring to any unauthorised act of making available to the public the results of the database maker's investment. Accordingly, in this case, it included any distribution to the public of the contents of the database regardless of the nature and form of the process used. When a website operator makes a dedicated meta-search engine available on the Internet, it does more than just point out the third-party databases that exist that a user can go to and consult. It gives the end user the means of searching all that data in most third-party databases without even visiting those third party databases' websites and akin to the Svensson and Bestwater case, this might mean that advertisers might stop advertising on the original third-party's site and might start placing advertisements on the meta-search engine's site. Now in this case we are looking at database rights, the EUCJ considered this dedicated meta-search engine to be close to a parasitical competing product. But it made a reference to the fact that this wording exists in Recital 42 of the Preamble of the Database Directive. The legislation is different, so this is why it has reached a different result, but still, it leads to a conflicting approach. So the Court of Justice held that the meta-search engine sites are close to being parasitical competing products and they've gone on to explain the fact that they resemble databases even though they themselves do not contain databases. And therefore in this case, and in similar cases, operators of such search engines would be making available to contents of third party websites within the meaning of Article 7(2)(b).</p>
<p><b>What are the effects of this judgement?</b></p>
<p>By bypassing the homepage and most other pages of the site that actually contain the database, meta-search engines can divert hits, and potentially advertising revenues. Operators of websites that scrape data from third parties and enable those third party sites to be searched, and by doing so thereby risks diverting advertising revenue may therefore need to review their technical business model in light of this judgement.</p>
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<p style="text-align: justify; "> </p>
<div style="text-align: justify; ">
<p><b>Chaitanya Prasad, Controller General of Patents, Designs & Trade Marks, India</b></p>
<p>In India, patents, trademarks, designs, and geographical indications are administered by the Controller General of Patents, Designs and Trademarks. We have offices in New Delhi, Mumbai, Chennai, Kolkata and Ahmedabad. We have a Geographical Indications Registry located in Chennai as well as an Institute of Intellectual Property Management in Nagpur.</p>
<p>There are other IPR laws administered by different ministries. The Ministry of Human Resource Development looks after the Copyright laws. The Department of Information Technology looks after the Semiconductors, Integrated Circuits, and Layouts and Designs Act.</p>
<p>The number of patents in force in India in 2013 was 41,103 out of which 82 per cent were owned by non-resident Indians. The average age of patents in force in India is around 11.6 years, incidentally the second- highest in the world. The reason could be that India is a large market and companies want to exploit these patents and keep them in force.</p>
<p><b>National IP Trends</b></p>
<p>The filing of patents in India has gone up from around 35,000 to around 43,000 from 2007 to 2014, and the resident filing has gone up from 17% to 25%. In the year 2011-12, 11,000 patent applications were examined while in 2013-14, the number was 18,000. On a comparative basis, in India one patent examiner examined 140 patent applications in 2014 against 50 and 70 in the US and EU respectively. Therefore, it is the lack of human resources that is creating a backlog in the processing of patents in India vis-a-vis other countries.</p>
<p><b>Initiatives of the Indian Patent Office aimed at creating easy access to patents offices, and at Improving Its Quality and Services:</b></p>
<p>Comprehensive e-filing has been introduced where every document and form can be filed online, with regard to patent and trademarks. A payment gateway was launched in 2014, wherein Internet banking facilities of more than 70 banks can be used in addition to debit cards and credit cards for filing any patent or trademark. There is complete electronic processing in the patent and trademark office. Every paper that comes in is scanned, digitised and uploaded. Every paper that is issued from or received by the office is made available on the website.</p>
<p>An entry in the national phase can be done by filing Form 1 and the last page of the specification as we are directly streaming specifications from the WIPO patents scope. Incentives are being given for online filing. There is a 10% cost differential between online and offline filing since February 2014. One month after the incentive was introduced, online filing went up from 30% to 75%.</p>
<p>A new category has been introduced for Medium and Small Enterprises (MSMEs) in patents and designs. MSMEs get 50% discount for filing.</p>
<p>Quality management teams have been hired and skill development of personnel has been undertaken. Measures to introduce more transparency have been sought and efforts have been made to disseminate information with regard to IPRs. Real-time status of IP applications is available within tier file wrappers and e-registers.</p>
<p>The Indian Patent Office does weekly publication of online journals. We have a free public search facility. We have started instant email communications to applicants in trademarks specifically for filing purposes. We have started QR-coded communications for smartphones.</p>
<p>We have introduced a number of dynamic utilities where one can avail of information in real-time. Using the "stock and flow utility" one can find the stock of applications as well as the flow of applications from one process to another. From this, one can drill down to the office, the field, and the application itself and go to the file in the file wrapper and see the entire office thrown open to the world. One of the utilities counts and publicly displays the number of lapsed and expired patents in real-time. Because the patents have either lapsed or expired, these can be searched through fields of technology through any patent application that was not renewed or has expired. These applications are available on the website with the specification and search facility on a real-time basis. A number of other dynamic utilities for examinations, show-cause hearings, publications, registrations, et cetera have been made available online in real-time. We have started working as an international searching authority and have started giving high quality reports. These are currently available to all Indians.</p>
<p>We are shortly going to provide a searchable patent database. We are also bringing in an integrated search engine and are augmenting our human resources. The new government has approved 1,033 new posts in the patent and trademark offices, and with the training and skill of the increased human resources, we will stand on par with the best in the world with regard to the examination and disposal of both patent and trademark applications. We are completely overhauling our hardware and processing software. We will soon introduce new guidelines - one on computer-related inventions and another on search and examination generally.</p>
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<p><b><br /></b></p>
<p><b>Dr. Stefan V. Steinbrener, Consultant, Bardehle Pagenberg</b></p>
<p><b>Patentability of Computer-Implemented Inventions at the EPO</b></p>
<p>"Computer-implemented invention" (CII) is defined in the guidelines of the European Patents Office as an expression intended to cover claims which involve computers, computer networks, or other programmable apparatus, whereby prima facie one or more of the features of the claimed invention are realised by means of a programme or programs. Such a claim directed at computer-implemented inventions may take the form of a method of implementing said apparatus, apparatus set up to execute the method, or following the computer programme itself or as well as the physical media carrying the programme, computer programme product claims such as data carrier, storage medium, computer readable medium, or signal.</p>
<p>One can assume that an important part of all applications will fall under this definition. In 2010, the EPO granted 60,000 patents out of which 20,000 were covered by the said definition.</p>
<p>The core regulation is Article 52 of the EPC: European patents shall be granted for inventions in all fields of technology provided that they involve an inventive step and are susceptible for industrial application. Further, there is a list of non-inventions which include discoveries, scientific theories, mathematical methods, schemes, rules and methods for performing mental acts, playing games, doing business, programmes for computers, and presentations for information. This will include or exclude patentability only to the extent to which the European patent application or patent related to such subject matter or activity.</p>
<p>The nature and language of such a regulation mandate the identification of a criterion delimiting excluded items from non-excluded ones. On the one hand, we have no definition of statutory subject matter apart from stipulation that inventions arise from all fields of technology. On the other hand we have a definition of a non-exhaustive list of exceptions, which are not patentable or have non-patentable subject matter. This regulation is, however, contrasting with respect to US regulations. In paragraph 101 in the US, the definitions of statutory subject matter can be found and the non-patentable subject matter is determined through findings of the Supreme Court, abstract ideas, laws of nature and natural phenomena.</p>
<p>Thus from a legal aspect, there are two hurdles for patent eligibility. The first is the patent eligibility of the subject matter. If this is in the affirmative, then the next hurdle is whether the elements of a patent are satisfied, namely, novelty, innovativeness, and industrial applicability.</p>
<p>According to European standards, an invention may not be innovative but may be patent eligible so long as the subject matter is patentable. The judicial issues that are to be addressed are the development of a coherent method of identifying the patentability of a subject matter and subsequently dealing with the grey areas in technicality by sifting through individual cases in order to arrive at certain guidelines for approaching individual cases of patent eligibility.</p>
<p>The finding of the case law upon the first issue is that an invention is such if the claimed subject matter has some technical matter. A subject matter is said to have technical character if it relates to a technical device, product or relates to technical means. "Technical means" has been liberally construed such that in a particular matter a method of storing information using paper and a pencil is patent eligible subject matter because the method employs technical means such as paper and pencil. However, the same would not be patented as the implementation of the same is trivial. The answer to the same question of patentability would be no if it is among the excluded subject matter or is similar to another invention. The barrier to patent eligibility will not disappear but the threshold is much lower. It is only when a subject matter is completely devoid of technical means can it be not called can invention. Barriers also come into play when the idea is abstract or even if there is a possibility of the use of technical means to some extent but claims for the same are not made.</p>
<p><b>Are computer-implemented innovations patent eligible under the EPC?</b></p>
<p>The answer would be yes, if explicitly tied to technical means.</p>
<p>When determining whether the invention has the required qualities of a patent, the answer would be in the affirmative if those of the technical features that contribute to the technical character are noble, inventive and industrially applicable. Thus only features of a technical character are taken into consideration while the others making no such contribution are ignored. For example, there have been a lot of patent applications for business methods from the United States, after the State's Street Bank Decision. These applications may have about forty pages of description of the business innovation with a disclaimer note at the end stating that the implementation of the same can be achieved through basic hardware that are already in use. Such applications lack an inventive step and can therefore cannot be patented. Thus, the basic test of patent eligibility with regard to the definition of an invention is the determination of whether there is a technical solution to a technical problem.</p>
<p>Some of the excluded subject matter may contribute towards technical character. Mathematical methods, for example, in the case of cryptography, wherein a mathematical algorithm may assist in the implementation of the same; then such a mathematical method may be patentable.</p>
<p>Further, "technical" should be understood to mean technological. But generally, it is difficult to define the term "technical", even through case laws. The meaning of the same in the core area is however undisputed while the semantics which lack definition are only at the fringes which may be identified in individual cases. We thus work with a dynamic concept of technology.</p>
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<p><b><br /></b></p>
<p><b>Ravi Bhola, Partner, KnS Partners</b></p>
<p><b>Patent Valuation and its Interplay with FRAND Terms </b></p>
<p>There are two broad methodologies for the valuation of patents. One is quantitative valuation by taking into consideration the income, the cost, and the market. However, the more relevant method is the qualitative analysis wherein one can look into the scope of the claims, geographical coverage, et cetera. Patent valuation is sometimes speculative. However, in an observation made by a court in the Federal Circuit, a judge directed a re-trial stating that in the study by the patentee, which was an SEP holder, the damages were predicted on speculation and unrealistic assertions. Thus one can ponder about whether there is a requirement to take into consideration a greater number of tools, software, or parameters for the valuation of intellectual property.</p>
<p>In order to strike a balance with society, SEP holders are obligated to licence their patents on FRAND terms to interested parties. The observed trend is that because SEPs are more important, they are valued higher than regular patents. Therefore, the question arises: <b>Are SEPs are over- valued?</b> For this purpose, reference must be made to four ongoing cases concerning SEPs.</p>
<p><b>Ericsson v. Micromax:</b></p>
<p>While the adjudication had commenced, it was observed that Ericsson has prior license agreements on FRAND terms of its 8 SEPs (under litigation in this case) with players in the West and other parts of the world. The court thus called forth these agreements for perusal.</p>
<p>Therefore, the first contentious concern is the manner or methodology adopted by the courts to arrive at the unrealistic rates of royalties. However, it is evident in this case that the court, by referring to prior agreements with the same set of SEPs, are trying to bring down the rates of royalty to more realistic values, even at the interim stage.</p>
<p>A similar situation has been observed in the case between <b>Ericsson and Xiaomi</b>, which is pending in the Delhi High Court. Here the court arrived at the amount of Rs. 100 as an interim arrangement, till the adjudication of the matter has been completed. It was again speculated here as to whether the amount was inflated.</p>
<p>The trend observed in the patent litigation at the Delhi High Court where most of such matters are adjudicated, is that unlike the pharmaceuticals sphere, there is a greater tendency in the telecommunication patent litigation to grant a temporary injunction, modify or even vacate the same while determining royalties payable, even at this stage.</p>
<p><b>How has the West handled these matters with regard to SEP valuation? </b></p>
<p>Motorola sued Microsoft in the US over the infringement of some of its SEPs. The former sought 2.25% royalty, but the court set a lower rate, such that the royalty amount fell from 4 million USD to about 1.8 million USD. The question which arises is with regard to the manner of determination of such royalties and whether sufficient parameters are in existence [to determine royalties].</p>
<p>Another example is of a European case wherein Apple was found to be infringing SEPS owned by Motorola Mobility. Apple's claim before the European Commission was that as an interested and willing licensee, it had made efforts to obtain a license for the said patents under FRAND terms which Motorola Mobility deterred vehemently. The European Commission upon investigation found that Motorola was exploiting its dominant position in the market and it intentionally sought to oust Apple from the usage of technology protected by means of the SEPs. Damages were accordingly awarded in this case.</p>
<p>Therefore, there is uniformity in the notion that there is an obligation on SEP holders to license their patents to interested licensees on FRAND terms.</p>
<p><b>What constitutes reasonableness?</b></p>
<p>The presumption with subjective issues such as these is that the courts will define the same through case laws. While FRAND terms have been dealt with by the courts and even the European Commission, it is pertinent to note whether there have been any anti-trust or competition matters pertaining to the ongoing litigation in telecommunication patent infringement. The Competition law comes into picture while determining the checks and balances to ensure that the SEP holder acts in a reasonable manner.</p>
<p>In Micromax v. Ericsson and Intex v. Ericsson placed before the Competition Commission of India (CCI), Micromax and Ericsson claimed that they had approached Ericsson as licensees but the immense royalty rates put forth by Ericsson deterred them. The CCI after investigation affirmed the claims of Micromax and Intex, with the finding that Ericsson has indeed abused its dominant position. However, the Delhi High Court has directed the CCI to abstain from passing the final order as long as the case is sub-judice.</p>
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<p style="text-align: justify; "><b><br /></b></p>
<p style="text-align: justify; "><b>Daniel R. Bereskin</b> <b>, Q.C. Founding Partner, Bereskin & Parr LLP</b></p>
<p style="text-align: justify; "><b>Patents as Catalysts to Economic Growth</b></p>
<p style="text-align: justify; ">The more I studied WIPO data and other sources, the more I came to the conclusion that patent numbers, whether in terms of filing or grants are a pretty poor indicator of the level of innovation in a country. Many commentators have taken the view that the patent system throughout the world is in crisis and there are many reasons for this. Far too many patents are granted for very trivial innovative steps, if they are even innovative at all. They are tiny sideways steps, even backwards steps.</p>
<p style="text-align: justify; ">When I started in 1965, in order to get a patent, you had to have an invention that was new, "unobvious" and useful. Now we see many thousands of patents granted annually for inventions that are of very dubious merit. Not only does this not encourage economic growth, it tends to retard economic growth. Think of small and medium-sized enterprises, for example. When they are confronted with many thousands of patents that are far too expensive for them to properly evaluate, covering very trivial or insignificant steps.</p>
<p style="text-align: justify; ">It is really up to the government to a large extent to encourage innovation and they do that in many countries in different ways such as through research and development tax incentives. The trouble is that if a government spends money in encouraging research and development, it tends to be invisible to the ordinary member of the public whereas building roads and doing other things that are much more concrete in nature are easier and better from the short-term political view. At the same time, if a country is to grow economically, and to prosper in the future, it is absolutely crucial that governments make an investment. I think a rough rule of thumb is for governments to devote up to about 2% of their GDP to encouraging R&D, and that money is significant, but it has to be spent wisely.</p>
<p style="text-align: justify; ">Now India has come up for criticism by the US Chamber of Commerce for not adequately protecting IP rights. The International Trade Commission is conducting a survey right now of US firms to understand how the policies of India discriminate against US exports and investment. Canada is also on the watch-list, although it is the US's greatest trading partner and is in close proximity to the US. I find these comments to be very ironic because the US has a history of discriminating against foreigners when it comes to protecting its own citizens. In fact Prof. Jane Ginsburg who is a prominent teacher and writer called the US in the 19th century a pirate nation, and the reason why she said that is because the US refused to grant copyright to works of foreign authors and that did not change till 1891. The reason for that was that Americans liked to read British authors in preference to the works of American authors. So the solution was to not give copyrights to British authors. When they finally, grudgingly, granted copyright protection, it was on the condition that the books of foreign authors had to be manufactured in the United States. This manufacturing clause was not repealed until fairly recently and that was done only because by then the US realized that the US had become a big exporter of books by authors. So we have to take with a grain of salt the comments we get about IP policies in every country. It is very important to take a realistic view of what is really going on.</p>
<p style="text-align: justify; ">China has grown steadily in the past eight years to the point where the growth is now over nine trillion dollars. The growth in filing patents in China is incredible. It is going up exponentially and shows no signs of abating. In 2012, WIPO showed that Chinese nationals were responsible for almost 150,000 granted Chinese patents and the number of issued patents to foreigners was roughly 75,000. The problem with China is that there is no way of knowing what the mix is between patents of invention and utility models. Given the enormous disparity between the number of applications filed by the Chinese people in China compared with those filed by them abroad, most of the inventions that are utility models, or patents that are of very dubious economic value. My feeling is that these huge numbers are due to government policy in dictating to Chinese companies that they have to file a lot of patent applications, because it is easy for a government to say, "Look at how impressive our filing statistics are". You have to dig deeper to try to find out what the value is of the innovations that are represented by these patents. My feeling is that since such a small number, roughly 4% of all applications filed by the Chinese in China were filed abroad, that is an indication that the vast majority of these huge Chinese filings are not of any great economic importance.</p>
<p style="text-align: justify; ">India's GDP is over 1.3 trillion dollars. Economists predict that in 15 years, the Indian economy is expected to rival that of the US. Of course, India has a population of over 1.3 billion. The US has, maybe, a quarter of that. So you cannot exactly compare them.</p>
<p style="text-align: justify; ">Patent applications in Indiai show a somewhat disturbing trend. Although there is some growth in the patent filings by resident applicants, non-residents' filings swamp [outnumber] those of the residents. The number of applications filed abroad by companies and individuals of Indian origin is less than 10,000, which is a very small number given the size of the Indian economy.</p>
<p style="text-align: justify; ">There has been a very sharp decline in the past four years in the number of patents that are actually granted to individuals or companies where the inventors are of Indian origin. In 2014, less than 600 patents were granted to Indian nationals [WIPO statistics]. The number of patents granted to foreign applications is likewise declining and it is surprising. It could mean that the Indian Patent Office is getting tougher on "unobviousness". Nevertheless, the numbers are still pretty low.</p>
<p style="text-align: justify; ">Korea is a real success story. Their GDP is not yet at the level of India or China, but it is at 1.3 trillion dollars, which is not insignificant. But take a look at their patent application filings. Korean inventors were responsible for almost 150,000 filings in 2012. Koreans filed more than 50,000 applications abroad in the same year. These grants are substantial compared with [erstwhile] figures for India and China.</p>
<p style="text-align: justify; ">The US GDP is close to 17 trillion dollars and the economy seems to be continuing to grow. Right now the US economy is about 27% of the worldwide GDP. It is reasonable to conclude that the US has a very strong and vested interest in trying to ensure that IP rights are protected outside of the US because their continued growth depends on the protection of their homegrown IP.</p>
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<p><b><br /></b></p>
<p><b>Questions-Answers </b></p>
<p><b>How do you compare and contrast recent litigation in pharma versus litigation in the high-tech space, especially Ericsson and Vringo?</b></p>
<p><b>Pravin Anand (Managing Partner, Anand & Anand): </b> In the Francis Xavier case in New Delhi, a division bench of the Delhi High Court said that an ex-parte injunction must not be granted in patent cases. The law, however, changed subsequently. The first evidence is of a DCJI clearance required when an application was moved by a pharma company and the news reached the patent owner by means of a right-to-information (RTI) request and private investigation. The patent owner then approached the court in order to prevent to the marketing of the product. Thus, before the launch of the product, the patent holder obtained a status quo. The rules of the division bench did not apply because balance of convenience was observed in maintaining the status quo. But that order essentially acted as an ex-parte injunction in a patent matter. This was phase one. Phase two saw the grant of injunction as the number of status quo order had exceeded twenty five in litigation against well known companies such as Pfeizer and Bristol Meyers. These orders were converted to injunctions by the judges.</p>
<p>The third phase was brought on by the Ericsson, Vringo, and other electronics companies, which albeit through lesser litigations, were able to create quite a stir. Ex-parte injunctions were granted in these cases. However, the judges felt the need to arrive at interim arrangements in lieu of the injunctions. Earlier, pending trial, these arrangements involved the payment of money and royalty by the defendants through their sales, directly to the plaintiff.</p>
<p>Therefore, the present stance is that both status quo orders and temporary injunctions are in use in pharma litigation before the launch of the product. Subsequently, the grant of such orders is rare. The impediment after launch is that the price difference between the plaintiff's and the defendant's product are evident to the question. Prior to the launch, only the plaintiff's product exists in the market. Hence, the grant of such orders is said to be in favour of balance of convenience. The mobile phone patent litigation cases, however, are witnessing the grant of interim orders, rather, arrangements.</p>
<p><b>Why is it that the Courts cannot wait another day to hear both the parties before granting the ad interim injunction?</b></p>
<p><b>Abhay Pandey, Partner, LexOrbis:</b> The main issue that is going to come up in electronic product litigation is the pleading which contains the product mapping. In the Ericsson cases, there is an indirect reference made to the infringements, i.e., the devices are following the standards and not the readings to the claims. Therefore, the issue of injunctions will arrive only once the product is broken down into the claims.</p>
<p><b>D.P. Vaidya (Lakshmikumaran Sreedharan)</b></p>
<p><b>Computer Related Inventions and Indian Patent Law</b></p>
<p>Section 2 of the Indian Patent Act defines “invention” as any new process or new product which has or which involves an inventive step and is capable of industrial applications. “Inventive step” as well as “capable of industrial application” are defined in the Act. Section 3 defines what are not inventions. With respect to computer related inventions (CRIs), section 3(k) is worded differently than the provision for CRIs in the European Patent Convention (EPC). In Indian law, mathematical methods, algorithms, and business methods are not considered “inventions”, irrespective of whether they are “as such”. Computer programs are qualified with the phrase “per se” instead. The only common thing between EPC and Indian patent law is that “computer programs per se” or “computer programs as such” are not inventions. So programs that do not quality “per se” or “as such” could be patentable.</p>
<p><b>What are CRIs?</b></p>
<p>CRIs can be classified as: CRIs related to general purpose computers and CRIs implemented by specific computers (and not special purpose computers). General purpose computers are inventions that work towards different types of solutions. The solutions could be purely mathematical calculations or technical problems.</p>
<p>The term “business method” is not precisely defined in law as much as the abstract idea is. Generally speaking, any commercial transaction will qualify as a “business method” going by my observations from various decisions in the US, UK, and Europe.</p>
<p><b>Example technical problem:</b> What is the point of presence (PoP) for designing network topology or network architecture?</p>
<p>Based on rules and various parameters defined for the topology or architecture, a schematic is drawn up. It shows the locations where the PoPs should be placed to minimise the cost of operations and the investment. This is also an application that can be implemented over a general purpose computer.</p>
<p><b>Would it fall under the definition of an “algorithm”? </b>The definition of “algorithm” in the guidelines is very broad. Whether or not it is implemented on a [general purpose] computer, it will be treated as a “computer” because there is no qualifier as “per se” or “as such”. If it is an algorithm, it is not patentable.</p>
<p>Then, <b>what is not an “algorithm”? </b>It could be argued that all methods will fall under the definition of “algorithm”. The IEEE definition of a “solution to a problem” is that it is a finite set of well-defined rules in a finite number of steps. For example, a complete specification for a sequence of arithmetic operations for evaluating the value of sin “x” for a given precision. When the aim is mainly to determine a certain value or function for optimisation or for arithmetic calculations, the method or process can be treated as an “algorithm”. From a legal point of view, methods are patentable, but paradoxically, algorithms are not considered inventions.</p>
<p>Then next level of general-purpose computer-implemented inventions (CII) are those that make changes in the operating systems [instead of sitting on top of the operating system]. By making changes in the operating system, the CII is changing the character of the computer. It is improving the computer, and therefore it is patentable. Also, a general purpose computer operating a machine or a technical process is patentable.</p>
<p><b>Embedded Computer-Implemented Inventions:</b></p>
<p>Wherever there is embedded software, the patent controllers generally do not have any issues related to patentability. They may have issues related to inventive step.</p>
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<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/report-global-intellectual-property-convention-2015'>http://editors.cis-india.org/a2k/blogs/report-global-intellectual-property-convention-2015</a>
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No publisherrohiniIntellectual Property RightsAccess to Knowledge2015-06-21T13:36:18ZBlog EntryNational IPR Policy Series : Who is a 'public authority' under the RTI Act?
http://editors.cis-india.org/a2k/blogs/national-ipr-policy-series-who-is-a-public-authority-under-rti-act
<b>In this blog post, CIS intern Devrupa Rakshit examines case law with respect to the understanding of a 'public authority' under the Right to Information ("RTI") Act, 2005.</b>
<p style="text-align: justify; ">In earlier blog posts, India’s National IPR Policy has been discussed at length. In February 2015, <a href="http://cis-india.org/a2k/blogs/rti-requests-dipp-details-on-constitution-and-working-of-ipr-think-tank">three RTI applications</a> were made by the Centre for Internet and Society to the Department of Industrial Policy and Promotion (<i>hereinafter</i>, the “DIPP”). The response of the DIPP to these requests could be described as vague, at best. A <a href="http://cis-india.org/a2k/blogs/national-ipr-policy-series-rti-requests-by-cis-to-dipp-dipp-responses">detailed blog post by Nehaa Chaudhari</a> discusses the questions, the responses and the other nuances of this endeavour at length.</p>
<p style="text-align: justify; ">Having failed repeatedly in our attempts to retrieve information pertaining to the IPR Think Tank that was, essentially, in charge of formulating the National IPR Policy, we put forth an RTI request to the IPR Think Tank earlier this month. The response is awaited, at the moment. In the meantime, we have undertaken the task of finding out whether the IPR Think Tank can indeed be classified as a “public authority” under the <i>Right to Information Act</i>, (<i>hereinafter, </i>the<i> </i>“<i>RTI Act</i>”, or simply the “<i>Act</i>”) because if it can, then it must have a Public Information Officer as per <i>Section 5</i> of the <i>Act</i>.</p>
<p style="text-align: justify; ">The <i>RTI Act </i>defines “public authorities” in <i>Section 2(h)</i> –</p>
<p style="text-align: justify; "><i>A “public authority” means any authority or body or institution of self- government established or constituted – </i></p>
<p style="text-align: justify; "><i>(a) </i><i>by or under the Constitution;</i></p>
<p style="text-align: justify; "><i>(b) </i><i>by any other law made by Parliament;</i></p>
<p style="text-align: justify; "><i>(c) </i><i>by any other law made by State Legislature;</i></p>
<p style="text-align: justify; "><i>(d) </i><i>by notification issued or order made by the appropriate Government, and includes any –</i></p>
<p style="text-align: justify; "><i>(i) </i><i>body owned, controlled or substantially financed;</i></p>
<p style="text-align: justify; "><i>(ii) </i><i>non-Government organization substantially financed, directly or indirectly by funds provided by the appropriate Government.</i></p>
<p style="text-align: justify; "><b>A. Who is a "Public Authority"?</b></p>
<p style="text-align: justify; ">In 2011, the Punjab-Haryana High Court<a href="#_ftn1" name="_ftnref1">[1]</a> while deciding on 24 civil writ petitions against the Central/State Information Commissioners had held that if any person, or body, satisfies the following conditions then it would "squarely fall within the ambit and scope of definition of 'public authorities'" and would be "legally required to impart the indicated information as envisaged under the RTI Act" -</p>
<p style="text-align: justify; ">(i) the institution cannot come into existence and function unless registered and regulated by the provisions of a legislation; or</p>
<p style="text-align: justify; ">(ii) the State Government has some degree of control over it through the medium of <i>Acts</i>/<i>Rules</i>; or</p>
<p style="text-align: justify; ">(iii) it is substantially financed by means of funds provided directly, or indirectly, by the appropriate Government; or</p>
<p style="text-align: justify; ">(iv) the mandate and command of the provisions of the <i>RTI Act </i>along with its Preamble, aims, objects and regime extends to their public dealing; or</p>
<p style="text-align: justify; ">(v) the larger public interest and totality of the other facts and circumstances emanating from the records suggest that such information may be disclosed.</p>
<p style="text-align: justify; ">The Court was further inclined to believe that arguments to the contrary would "nullify the aims and objects of the <i>RTI Act</i>, perpetuating and inculcating the injustice to the larger public interest in general."</p>
<p style="text-align: justify; ">The Central Information Commission (<i>hereinafter</i>, the "CIC") has also held<a href="#_ftn2" name="_ftnref2">[2]</a> that pension trusts are "public authorities" under the <i>RTI Act</i>.</p>
<p style="text-align: justify; ">The CIC also held<a href="#_ftn3" name="_ftnref3">[3]</a> that the LIC Housing Finance Limited (<i>hereinafter</i>, the "LICHFL") and LIC Mutual Fund Asset Management Co. Ltd. would qualify as "public authorities" under the <i>RTI Act</i>. It was held that LIC is a body established, constituted, owned and controlled by Central Government. Further, LIC is a public authority having been constituted by an Act of Parliament. And, since the Chairman and Managing Director for both LIC and LICHFL is the same, and since LIC has 40.497% of the shares of LICHFL, LICHFL would be regarded as a "public authority" for the purposes of the <i>RTI Act</i>.</p>
<p style="text-align: justify; ">In a verdict that has remained prominent for over half-a-decade now, the CIC had alluded to the judgment of the Madras High Court in <i>Tamil Nadu Newsprint & Papers Ltd </i>v<i>. State Information Commission</i>. In this case, the court had observed that since the mere requirement of the <i>RTI Act</i> for an institution to be deemed a "public authority" is that the Government must substantially finance it, and exercise control over its affairs, it is not necessary that the Government must be the <i>majority</i> shareholder in that institution. The Court had further gone ahead to make an observation that whether or not the government exercises such control is immaterial. Having relied heavily upon this judgment by the Madras High Court, the CIC had further stated that the practice of funding and general control over the affairs and functions of the LIC Mutual Fund by the Central Government is nothing but a manner of indirect funding, and hence LIC Mutual Fund would qualify as a "public authority" under the <i>RTI Act</i>.</p>
<p style="text-align: justify; ">In the same case, it was held that the GIC Housing Finance Limited is also a "public authority" for the purposes of the <i>RTI Act</i> since "the shareholding of six Public Authorities in GIC Housing Finance is 47.68% and coupled with the control they exercise over the GIC Housing Finance, it is sufficient to bring them within the ambit of the definition of 'Public Authority' as defined in <i>Section 2(h)</i> of the <i>Right to Information Act, 2005</i>."</p>
<p style="text-align: justify; ">Further, the Indian Olympic Association (<i>hereinafter</i>, the "IOA") was held<a href="#_ftn4" name="_ftnref4">[4]</a> to be a "public authority" under the <i>RTI Act</i> on account of substantial funding by the Government not only for the discharge of functions of the IOA, but also for the construction of its building. In fact, the level of funding by the Government, here, is such that without it, the IOA is unlikely to be able to discharge its functions under the Olympic Charter itself.</p>
<p style="text-align: justify; ">In another judgment<a href="#_ftn5" name="_ftnref5">[5]</a>, where it was contended that the body, in question, was a non-governmental organisation, and was not funded by the Government, the CIC held that the impugned body would be a "public authority" as it had been substantially financed by the funds provided by the Government.</p>
<p style="text-align: justify; ">In a judgment<a href="#_ftn6" name="_ftnref6">[6]</a> by the Madras High Court, even an aided private school was held to fall under the ambit of the <i>RTI Act</i> as its entire teaching staff received 100% of their salary from the aid received from the government. The same line of reasoning was resonated in a judgment by the Allahabad High Court in the following year.<a href="#_ftn7" name="_ftnref7">[7]</a> Yet another private recognised school was held<a href="#_ftn8" name="_ftnref8">[8]</a> by the CIC to be a "public authority" under the <i>RTI Act</i> because it was substantially funded by the appropriate Government, and was under its control.</p>
<p style="text-align: justify; ">The Delhi High Court held<a href="#_ftn9" name="_ftnref9">[9]</a> the Krishak Bharti Co-operative Ltd. (<i>hereinafter</i>, the "KRIBHCO") - a society registered under the <i>Multi-State Co- operative Societies Act, 2002</i> (<i>hereinafter</i>, the "<i>MSCS Act</i>" - to be a "public authority" for the purpose of the <i>RTI Act</i> because certain devices laid down in the <i>MSCS Act</i> itself makes KRIBHCO amenable to the control of the Government. On the same grounds, the National Cooperative Consumer Federation of India Ltd. (and the National Agricultural Cooperative Federation of India Ltd. (<i>hereinafter</i>, the "NAFED") - two other societies registered under the <i>MSCS Act</i> - are "public authorities".</p>
<p style="text-align: justify; ">Furthermore, the NAFED is also "a nodal agency of the Government of India for the purchase of agricultural and non- agricultural commodities under Market Intervention Scheme and the losses incurred in the implementation of the schemes by NAFED are shared by the Government of India and the State Government concerned in the ratio of 50:50."</p>
<p style="text-align: justify; ">Continuing its trend of according a liberal approach to "public authorities" under the <i>RTI Act</i>, the Madras High Court stated in the <i>New Tirupur Area Development </i>case<a href="#_ftn10" name="_ftnref10">[10]</a><i> </i>that while <i>Section 2(h)(d)(i)</i> qualifies a "<i>body owned</i>" or a "<i>body controlled</i>", nowhere does it state that the body must be <i>wholly</i> owned, or <i>wholly</i> controlled, by the State. And, as the court observed, even the term "<i>substantially financed</i>" has not been defined though it has been qualified by the terms " <i>directly or indirectly</i>". <i>Section 2(h)(d)(ii)</i> further ropes in non-governmental organisations (NGOs) that are substantially financed. This reflects the intent and purpose of the legislators. In any case, the object of the <i>Act</i> to is to provide the citizens with a right to information from public authorities, and hence, as the Division Bench of the court had previously opined in the <i>Tamil Nadu Road Development Corporation Ltd.'s </i>case<a href="#_ftn11" name="_ftnref11">[11]</a>, the impugned section must receive a liberal interpretation.</p>
<p style="text-align: justify; ">Further ahead in this judgment<a href="#_ftn12" name="_ftnref12">[12]</a>, the court made an observation saying that if the State Government, instead of undertaking a work that is essentially its own duty, substantially funds an agency to do it, then such work can hardly be deemed as a private activity. It evolves "very much (into) a public activity over which public interest can generate."</p>
<p style="text-align: justify; ">In the same case<a href="#_ftn13" name="_ftnref13">[13]</a>, it was also observed that under the Act, the quantum of the finance required for a body to qualify as "substantially financed" is not spelt out. On this point, the High Court also relied on a precedent <a href="#_ftn14" name="_ftnref14">[14]</a> (the <i>Tamil Nadu Road Development</i> case decided by Justice A.K. Ganguly) where the court had refused to accept the argument of the petitioner, which stated that the financial support by the government was meagre at best.</p>
<p style="text-align: justify; "><b> B. Which bodies are exempted from the Ambit of "Public Authorities"? </b></p>
<p style="text-align: justify; ">The Kerala High Court, in a 2011 judgment<a href="#_ftn15" name="_ftnref15">[15]</a>, exempted the offices and officers of public religious institutions and endowments to which the <i>Madras Hindu Religious and Charitable Endowments Act, 1951</i> applies from the definition of "public authorities" under the <i>RTI Act</i>.</p>
<p style="text-align: justify; ">In a subsequent case<a href="#_ftn16" name="_ftnref16">[16]</a>, the CIC said that despite the fact that 46% of the equity capital of the National Commodity and Derivatives Exchange Ltd. was held by the PSUs (which are, of course, public authorities), the National Commodity and Derivatives Exchange Ltd. cannot, in itself, be regarded as a "public authority" as there is no direct or indirect funding by an appropriate Government.</p>
<p style="text-align: justify; ">Three Karnataka High Court judgments in 2009 [(a) dealing with the <i>Basava Samithi</i><a href="#_ftn17" name="_ftnref17">[17]</a> - an organisation that promotes the <i>Basava</i> Philosophy of Life and is registered under the <i>Karnataka Societies Registration Act, 1961</i>; (b) dealing with a co-operative housing society<a href="#_ftn18" name="_ftnref18">[18]</a> in Malleswaram, Bangalore; (c) dealing with a Bank <a href="#_ftn19" name="_ftnref19">[19]</a>] held three different bodies as not the creation of any law made by the Legislature, or not as bodies owned or controlled or substantially financed by the Government, and hence, exempt from the ambit of a "public authority" under the <i>RTI Act</i>. These judgments were, however, criticised in the Punjab and Haryana High Court<a href="#_ftn20" name="_ftnref20">[20]</a> wherein it said that in the three 2009-judgments, the Karnataka High Court had overlooked the basic aims and objectives of larger public interest enshrined in the Preamble of the <i>RTI Act</i>.</p>
<p style="text-align: justify; "><b>C. Conclusion</b></p>
<p style="text-align: justify; ">The easiest way to establish that the IPR Think Tank would qualify as a "public authority" under the RTI Act would be to show that it is a body owned, controlled or substantially funded directly or indirectly by the Government, or that it is created either by any other law made by the Parliament or State Legislature, or under the <i>Constitution</i> itself.</p>
<p style="text-align: justify; ">Moreover, it appears from <i>The Hindu Urban Cooperative Bank Limited </i>v. <i>The State Information Commission</i><a href="#_ftn21" name="_ftnref21">[21]</a> that when discharging public functions, even though a private entity does not become a State <i>per se</i>, considering the public interest involved, it must be deemed to be a "public authority" in a bid to avoid diluting the aims and objectives of the <i>RTI Act</i>. Now, since the drafting of the National IPR Policy can, in all likelihood, be described as the exercise of a public function, the IPR Think Tank should then qualify as a "public authority" under the <i>Act</i>.</p>
<p style="text-align: justify; ">In addition, the underlying principle used in <i>Indubala Agarwal</i> v. <i>National Commodity and Derivatives Exchange Ltd.</i> <a href="#_ftn22" name="_ftnref22">[22]</a> was that while the public bodies engaging in commercial or business activities - often, even profitable - that are created by any government in exercise of its sovereign functions would qualify as "public authorities" as per <i>Section 2(h)</i> of the <i>Act</i>, the set of commercial bodies further created by these public bodies as part of their business ventures would not qualify as "public authorities" as per <i>Section 2(h)</i>. The simple reason behind this discrimination of sorts is that the latter set of bodies lacks any direct, or indirect, involvement of an appropriate government. However, it is unlikely that this <i>rationale</i> could be used to keep the IPR Think Tank outside the domain of "public authorities" under the <i>Act</i> since it would hardly qualify as a commercial body. Furthermore, it was not created by the DIPP merely in a bid to expand its business interests, but to formulate a National IPR Policy that is quite a far cry from being classified as a commercial activity.</p>
<p style="text-align: justify; ">On a different but related note, in the well-known case of <i>Ajay Hasia</i> v. <i>Khalid Mujib Sehravardi</i> <a href="#_ftn23" name="_ftnref23">[23]</a>, the test laid down for a "public body" was whether a said person, or body, is an instrumentality or agency of the State, and not as to how it was brought into existence, <i>i.e.</i>, the idea is to find out <span>why</span> it was created, and not <span>how</span>. No doubt, the context of the judgment was <i>Article 226</i> of the <i>Constitution of India</i>, and not the <i>RTI Act</i>. Nonetheless, considering that there is no apparent reason to distinguish between public bodies under <i>Article 226</i> and under the <i>RTI Act</i>, what if this test were to be applied to the issue at hand? Since the IPR Think Tank has been created for the purpose of drawing up the National IPR Policy which obviously affects the public, it may not be entirely wrong to state, then, that it would fall within the ambit of "public authorities" the <i>RTI Act</i> .</p>
<div style="text-align: justify; ">
<hr align="left" size="1" width="100%" />
<div id="ftn1">
<p><a href="#_ftnref1" name="_ftn1">[1]</a> <i>The Hindu Urban Cooperative Bank Limited and Ors</i> . v. <i>The State Information Commission and Ors.</i> [2011] (Pun & Har HC) <br /> available at - <<a href="http://indiankanoon.org/doc/155741837/">http://indiankanoon.org/doc/155741837/</a>></p>
</div>
<div id="ftn2">
<p><a href="#_ftnref2" name="_ftn2">[2]</a> <i>Mr. SK Choudhary</i> v. <i>Delhi Transco Limited</i> [2010] (CIC) available at - < <a href="http://www.rti.india.gov.in/cic_decisions/SG-26022010-12.pdf">http://www.rti.india.gov.in/cic_decisions/SG-26022010-12.pdf</a>></p>
</div>
<div id="ftn3">
<p><a href="#_ftnref3" name="_ftn3">[3]</a> <i>Shri Nisar Ahmed Shaikh and Ors.</i> v. <i>LIC Housing Finance Limited and Ors.</i> [2009] (CIC) available at - < <a href="http://www.rti.india.gov.in/cic_decisions/FB-28102009-01.pdf">http://www.rti.india.gov.in/cic_decisions/FB-28102009-01.pdf</a>></p>
</div>
<div id="ftn4">
<p><a href="#_ftnref4" name="_ftn4">[4]</a> <i>Veeresh Malik</i> v. <i>Indian Olympic Association</i> [2006] (CIC) available at - <a href="http://www.rti.india.gov.in/cic_decisions/Decision_28112006_3.pdf">http://www.rti.india.gov.in/cic_decisions/Decision_28112006_3.pdf</a> ></p>
</div>
<div id="ftn5">
<p><a href="#_ftnref5" name="_ftn5">[5]</a> <i>Mrs Navneet Kaur</i> v. <i>Electronics and Computer Software Export Promotion Council</i> [2006] (CIC) available at - < <a href="http://cic.gov.in/CIC-Orders/CIC_Order_Dtd_22032006.pdf">http://cic.gov.in/CIC-Orders/CIC_Order_Dtd_22032006.pdf</a>></p>
</div>
<div id="ftn6">
<p><a href="#_ftnref6" name="_ftn6">[6]</a> <i>Diamond Jubilee Higher Secondary School</i> v. <i>Union of India</i> [2007] (Mad HC) available at - <<a href="http://indiankanoon.org/doc/563155/">http://indiankanoon.org/doc/563155/</a> ></p>
</div>
<div id="ftn7">
<p><a href="#_ftnref7" name="_ftn7">[7]</a> <i>Dhara Singh Girls High School</i> v. <i>State of Uttar Pradesh</i> [2008] AIR (All HC) available at - < <a href="http://indiankanoon.org/doc/1378411/">http://indiankanoon.org/doc/1378411/</a>></p>
</div>
<div id="ftn8">
<p><a href="#_ftnref8" name="_ftn8">[8]</a> <i>Mr. Tilak Raj Tanwar</i> v. <i>The PIO, Deputy Director of Education</i> [2012] (CIC) available at - < <a href="http://rti.india.gov.in/cic_decisions/CIC_AD_A_2011_001699_M_73865.pdf"> http://rti.india.gov.in/cic_decisions/CIC_AD_A_2011_001699_M_73865.pdf </a> ></p>
</div>
<div id="ftn9">
<p><a href="#_ftnref9" name="_ftn9">[9]</a> <i>Krishak Bharti Cooperative Ltd.</i> v. <i>Ramesh Chander Bawa</i> [2010] (Del HC) available at - < <a href="http://indiankanoon.org/doc/159896809/">http://indiankanoon.org/doc/159896809/</a>></p>
</div>
<div id="ftn10">
<p><a href="#_ftnref10" name="_ftn10">[10]</a> <i>New Tirupur Area Development </i> v.<i> State of Tamil Nadu</i> [2010] (Mad HC) available at - < <a href="http://judis.nic.in/judis_chennai/qrydisp.aspx?filename=25472">http://judis.nic.in/judis_chennai/qrydisp.aspx?filename=25472</a>></p>
</div>
<div id="ftn11">
<p><a href="#_ftnref11" name="_ftn11">[11]</a> <i>Tamil Nadu Road Development Company Limited</i> v. <i>Tamil Nadu Information Commission</i> [2008] 6 MLJ 737 (Mad HC) available at - < <a href="http://indiankanoon.org/doc/454066/">http://indiankanoon.org/doc/454066/</a>></p>
</div>
<div id="ftn12">
<p><a href="#_ftnref12" name="_ftn12">[12]</a> <i>ibid</i> .</p>
</div>
<div id="ftn13">
<p><a href="#_ftnref13" name="_ftn13">[13]</a> <i>See</i> n 12.</p>
</div>
<div id="ftn14">
<p><a href="#_ftnref14" name="_ftn14">[14]</a> <i>See</i> n 13.</p>
</div>
<div id="ftn15">
<p><a href="#_ftnref15" name="_ftn15">[15]</a> <i>AC Bhanunni Valluvanattukara</i> v. <i>The Commissioner, Malabar Devaswom Board</i> [2011] (Ker HC) available at - < <a href="http://judis.nic.in/judis_kerala/qrydisp.aspx?filename=239775">http://judis.nic.in/judis_kerala/qrydisp.aspx?filename=239775</a>></p>
</div>
<div id="ftn16">
<p><a href="#_ftnref16" name="_ftn16">[16]</a> <i>Indubala Agarwal</i> v. <i>National Commodity and Derivatives Exchange Ltd.</i> [2010] (CIC) available at - <Part 1: <a href="http://www.rti.india.gov.in/cic_decisions/LS-01012010-08.pdf">http://www.rti.india.gov.in/cic_decisions/LS-01012010-08.pdf</a>> and <Part 2 - <a href="http://www.rti.india.gov.in/cic_decisions/LS-08022010-06.pdf">http://www.rti.india.gov.in/cic_decisions/LS-08022010-06.pdf</a>>.</p>
</div>
<div id="ftn17">
<p><a href="#_ftnref17" name="_ftn17">[17]</a> <i>SS Angadi </i> v. <i>State Chief Information Commissioner </i>[2009] 5 RCR (Civil) 312 (Kar HC) available at - < <a href="http://indiankanoon.org/doc/1198428/">http://indiankanoon.org/doc/1198428/</a>></p>
</div>
<div id="ftn18">
<p><a href="#_ftnref18" name="_ftn18">[18]</a> <i>Dattaprasad Co-operative Housing Society Ltd. </i> v. <i>Karnataka State Chief Information Commissioner</i> [2009] 5 RCR (Civil) 833 (Kar HC) available at - < <a href="http://www.the-laws.com/Encyclopedia/Browse/Case?CaseId=018002943000"> http://www.the-laws.com/Encyclopedia/Browse/Case?CaseId=018002943000 </a> ></p>
</div>
<div id="ftn19">
<p><a href="#_ftnref19" name="_ftn19">[19]</a> <i>Bidar District Central Co-operative Bank Ltd.</i> v. <i>Karnataka Information Commission, Bangalore</i> [2009] 5 RCR (Civil) 394 (Kar HC) available at - < <a href="http://www.the-laws.com/Encyclopedia/Browse/Case?CaseId=018002573000"> http://www.the-laws.com/Encyclopedia/Browse/Case?CaseId=018002573000 </a> ></p>
</div>
<div id="ftn20">
<p><a href="#_ftnref20" name="_ftn20">[20]</a> <i>See</i> n 1.</p>
</div>
<div id="ftn21">
<p><a href="#_ftnref21" name="_ftn21">[21]</a> <i>See</i> n 1.</p>
</div>
<div id="ftn22">
<p><a href="#_ftnref22" name="_ftn22">[22]</a> <i>See</i> n 16.</p>
</div>
<div id="ftn23">
<p><a href="#_ftnref23" name="_ftn23">[23]</a> <i>Ajay Hasia</i> v. <i>Khalid Mujib Sehravardi</i> [1981] 2 SCR 79 (SC) available at - < <a href="http://indiankanoon.org/doc/1186368/">http://indiankanoon.org/doc/1186368/</a>></p>
</div>
</div>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/national-ipr-policy-series-who-is-a-public-authority-under-rti-act'>http://editors.cis-india.org/a2k/blogs/national-ipr-policy-series-who-is-a-public-authority-under-rti-act</a>
</p>
No publishernehaaIntellectual Property RightsAccess to Knowledge2015-05-21T17:03:30ZBlog EntryCall for Participation: Global Congress on Intellectual Property and the Public Interest
http://editors.cis-india.org/a2k/blogs/call-for-participation-global-congress-on-intellectual-property-and-the-public-interest
<b>We are pleased to announce the call for participation for the fourth edition of the Global Congress on Intellectual Property and the Public Interest (“Global Congress”), being hosted at New Delhi from December 15 to 17, 2015. </b>
<p style="text-align: justify; ">The theme for this year’s Congress will be “<i>Three Decades of Openness; Two Decades of TRIPS</i>.” We are now inviting applications to participate in the Congress, including session participation and presentations. We are also welcoming proposals for panels and workshops.</p>
<p style="text-align: justify; ">The application form is available now at [<a href="http://form.jotformpro.com/form/50854976184973">http://form.jotformpro.com/form/50854976184973?</a>] Please note that this form is for application purposes, and does not amount to confirmation of participation. The registrations for the plenary sessions, which are open to the public, will open closer to the date of the Global Congress.</p>
<h3 style="text-align: justify; ">Deadlines</h3>
<p style="text-align: justify; "><b>August 1st: </b>Priority Deadline for Applications- Applicants will be considered on a rolling basis, with applications made by August 1st being given first consideration. Applications after August 1st to receive travel assistance will be considered only under exceptional circumstances (these details will be collected in a subsequent form).</p>
<p><b>November 1st: </b>All applications for session participation and paper submissions will close on November 1st.</p>
<h3>Application Information</h3>
<p><i>For applications to participate/host</i>: Applications to present or host workshops shall be considered based on the proposals to be submitted in the form.</p>
<p style="text-align: justify; "><i>For applications to attend sessions:</i> Applications to attend sessions as discussants will be considered based on the statement of purpose and/or any other relevant information provided by the applicant.</p>
<p style="text-align: justify; ">Limited travel grants to cover accommodation and/or travel to the Congress will be available, with priority to those from developing countries.</p>
<h3 style="text-align: justify; ">Background, Theme and Expected Outcomes</h3>
<p style="text-align: justify; ">The Global Congress on Intellectual Property and the Public Interest is the most significant event on the calendar for scholars and policy advocates working on intellectual property from a public interest perspective. By sharing their research and strategies, the network of experts and activists supported by the Global Congress are empowered to put forward a positive agenda for policy reform. The Global Congress began in Washington D.C. in 2011, moved to Rio de Janeiro in 2012, and was held in Cape Town in 2013. The fourth Global Congress will now be held in New Delhi, in December 2015. The event would be the largest convening of public interest-oriented intellectual property practitioners ever held in Asia, and would help link in the world's most populous region to these global debates around how intellectual property policy can best serve the public interest.</p>
<p style="text-align: justify; ">The fourth edition of the Global Congress brings research, civil society, industry and regulatory and policy-making communities together for active, intense engagement on key public-interest intellectual property issues. Opportunities for these groups to interact are rare but valuable; and have been proven to lead to successful policy outcomes. The 4<sup>th</sup> edition of the Congress, slated to be held in December, 2015 in New Delhi seeks to be one such opportunity.</p>
<p style="text-align: justify; ">The theme for the 2015 Congress is <i>Three Decades of Openness; Two Decades of TRIPS-</i>coming at a pivotal time for reflection, revision, and further strategizing. Specifically, the 2015 Congress seeks to produce three outcomes- <i>first, </i>the mobilization of existing scholarly research directly into the hands of civil society advocates, business leaders and policy makers, leading to evidence-based policies and practices; <i>second,</i> the collaborative identification of urgent, global and local research priorities and generation of a joint research/advocacy agenda; and <i>third</i>, the solidification of an inter-disciplinary, cross-sector and global networked community of experts focused on public interest aspects of IP policy and practice.</p>
<h3 style="text-align: justify; ">Participation Opportunities</h3>
<p style="text-align: justify; ">Discussions at the Global Congress will be carried out in the form of plenary sessions, thematic tracks, cross-track sessions, and the room of scholars. Participation is invited for the thematic track sessions, cross-track sessions and the room of scholars.</p>
<p style="text-align: justify; ">The thematic tracks at the Global Congress are: 1) Openness, 2) Access to Medicines, 3) User Rights, 4) IP and Development. Cross-track sessions will feature research that cuts across tracks in order to facilitate engagement between tracks on themes of mutual interest.</p>
<p style="text-align: justify; ">The Room of Scholars will feature presentations of research outputs such as draft works or white papers that may not fit directly within the thematic tracks but fall within the overall theme of the Global Congress.</p>
<p style="text-align: justify; ">Participation could be in the form of presenting / discussing conference papers or policy briefs, or by conducting workshops where they may share their own work and solicit feedback from peers, during the aforementioned sessions.</p>
<p style="text-align: justify; ">The application form for participation is available now at <a href="http://form.jotformpro.com/form/50854976184973">http://form.jotformpro.com/form/50854976184973?</a>. Please forward this invitation to interested lists and individuals. For more information or questions, you may contact <a href="mailto:global-congress@cis-india.org">global-congress@cis-india.org</a>.</p>
<h3 style="text-align: justify; ">Organisation</h3>
<p style="text-align: justify; ">The 4<sup>th</sup> Global Congress on Intellectual Property and Public Interest, is being organised in cooperation with <a href="http://www.nludelhi.ac.in/">National Law University, Delhi</a>, by the <a href="http://americanassembly.org/">American Assembly</a> at Columbia University, the <a href="http://cis-india.org/">Centre for Internet and Society</a>, <a href="http://www.openair.org.za/">Open A.I.R</a>., and the <a href="http://www.pijip.org/">Program on Information Justice and Intellectual Property</a> at American University Washington College of Law.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/call-for-participation-global-congress-on-intellectual-property-and-the-public-interest'>http://editors.cis-india.org/a2k/blogs/call-for-participation-global-congress-on-intellectual-property-and-the-public-interest</a>
</p>
No publishersinhaIntellectual Property RightsHomepageGlobal CongressAccess to Knowledge2015-06-24T16:11:07ZBlog Entry2015 USTR Report: Old Wine in New Bottle
http://editors.cis-india.org/a2k/blogs/2015-ustr-report-old-wine-in-new-bottle
<b>Every year, the Office of the United States Trade Representative (USTR) undertakes an elaborate exercise to castigate countries' domestic intellectual property (IP) law and policy. The criticisms and recommendations are presented in a document called the Special 301 Report. This year's edition puts India on the Priority Watch List for the twenty-sixth time in a row. Below, I rebut the report's prejudicial claims and demands, and argue that the report puts free speech, innovation and public interest in jeopardy. </b>
<p> </p>
<a href="http://cis-india.org/a2k/blogs/2010-special-301">Keeping
in tradition </a>, the
2015 report yet again exposes US' hypocrisy by faithfully serving Hollywood and Big Pharma. In the past, countries
such as Israel and Canada have
publicly rejected the USTR's findings and derided the US for
unwarranted interference with domestic law and policy. Last year,
India too had refused to cooperate with a USTR initiated unilateral
investigation (Out of Cycle review) of its IP regime because the
investigation violated international law.
<p><strong>
</strong></p>
<p><strong>
</strong></p>
<p align="JUSTIFY">The
Electronic Frontier Foundation has released a hard-hitting response
to the report. It draws <a href="https://www.eff.org/special-404">case
studies of countries</a>
where overbroad IP law has affected public interest, free speech and
innovation. For instance, it mentions how Colombia's 'reformed'
copyright law has become a travesty. Colombia introduced extreme
enforcement and harsh criminal sanctions for unauthorised sharing of
works at the behest of the US. Last year, news surfaced that a
Colombian biodiversity researcher faced upto eight years in prison
for sharing an academic article on Scribd. Any balanced IP regime
(including India) permits such use of copyrighted works under the
fair use principle, however, Colombia's narrow fair use provision has
led to a situation where citizens now face prison for ordinary use of
academic works.</p>
<p><strong>
</strong></p>
<p><strong>
</strong></p>
<p>This
year the Special 301 Report in its section on India approves the
Prime Minister's statements to align IP law with international
standards, which is a cause for concern. Firstly, what are these
“international standards” that both US and India refer to
exactly? The most comprehensive international agreement on IP that
binds 160 member nations is the WTO Agreement on Trade related
aspects of Intellectual Property (TRIPS Agreement). Ergo, this
agreement would qualify as the most accepted “international
standard”, which India already complies with. Secondly, the TRIPS
Agreement sets down certain <em>global</em>
<em>minimum</em>
standards for protecting and enforcing IP, simultaneously providing
countries a certain degree of flexibility. However, the US has
consistently pushed India to enact tougher provisions known as TRIPS
Plus provisions. This is reflected in the report as well. Legally
speaking, under international law India is not obligated to accede to
such demands, and it should not if it wants a balanced IP regime to
protect and serve the interests both of rights holders and its
citizens.</p>
<p><strong>
</strong></p>
<p align="JUSTIFY">The
report shamelessly aligns its concerns with the financial interests
of foreign rights holders and American companies. It erroneously
projects IP as a tool to only maximise revenues, agnostic to public
interest. While
IP rights are temporary monopolies, they also are a tool to ensure
innovation, social, scientific and cultural progress and further
access to knowledge. It
is well established that flexible IP laws <a href="http://www.altlawforum.org/intellectual-property/publications/articles-on-the-social-life-of-media-piracy/reconsidering-the-pirate-nation">enable
access to knowledge and promote innovation</a>.
Such a flexible regime is critical to developing countries like
India. The USTR
conveniently forgets that lax
IP law and enforcement for a large part of the 19th century helped
the US to accelerate into an economic powerhouse and a front-runner
in innovation. It also
brazenly threatens to impose unilateral sanctions against a country
designated as a Priority Foreign Country on the list. This treatment
is usually reserved for the worst offender on the list. Such
unilateral threats and sanctions are again a direct violation of
international law.</p>
<p><strong>
</strong></p>
<p><strong>
</strong></p>
<p align="JUSTIFY">Unsurprisingly,
the report is critical of India's under-enforcement of copyright laws
and the impact of patent law on pharmaceuticals. It demands a
specific legislation to counter camcording and video piracy. The
prospective legislation is unnecessary because all movie theatres in
India prohibit camcorders and the prevailing Copyright Act, 1957
contains penalties to punish offenders. Instead of creating new
offences, we should re-evaluate the need of existing offences. <a href="http://cis-india.org/a2k/blogs/2010-special-301">For
instance, copyright infringement on non-commercial scales should not
be a criminal offence at all</a><a href="http://cis-india.org/a2k/blogs/2010-special-301">.</a>
Instead, the law should provide convenient and affordable access to
such works to counter petty infringement.</p>
<p><strong>
</strong></p>
<p><strong>
</strong></p>
<p align="JUSTIFY">India
is home to the world's largest apothecary. The Indian pharmaceutical
and medical device industry provides affordable healthcare to the
citizens, and also exports drugs to countries in need. In fact, the
compulsory licensing mechanism has ensured affordable access to life
saving liver and kidney drugs in India. The report comments on the
undesirability of section 3(d) and the compulsory licensing mechanism
in Indian patent law. With respect to section 3(d), the US wishes
India to to change its patent law to enable large pharma companies to
patent new forms of known substances that aren't even better. This
alarmist outlook smacks of hypocrisy because the US, in fact, has a
higher rate of patent invalidation and compulsory license grants! It
also demands data exclusivity – which would extend proprietary
rights to patentees over government mandated drug data, and would be
detrimental to the local pharma industry. Further, the report states
that the Indian system is biased against enforcement of foreign
patent rights holders - which is mere speculation. T<a href="http://spicyip.com/2015/04/modi-shames-india-calls-patent-laws-under-developed.html">here
is no evidence to draw such a conclusion.</a>
The claims relating to localisation trends in pharma are half- baked
and speculative again.</p>
<p><strong>
</strong></p>
<p><strong>
</strong></p>
<p align="JUSTIFY">The
report observes that at the UNFCCC negotiations, India recognised
patents as an obstacle to dissemination of climate change
technologies. It wishes India understood the critical role of patent
protection and competitiveness to ensure innovation, which is a
flawed co-relation. While strong IP rights may protect inventors
against infringement and provide return on investment, however,
<a href="https://www.american.edu/cas/faculty/wgpark/upload/Intellectual-Property-Rights.pdf">stronger
IP rights also raise the cost of innovation by raising the price of
technological inputs into innovation and lower the frequency of
innovation.</a></p>
<p><strong>
</strong></p>
<p><strong>
</strong></p>
<p align="JUSTIFY">As
far as the issue of counterfeit medicines is concerned, a better
remedy lies in health safety laws and consumer laws, than the
trademark law. The report also approves of state legislatures'
version of the Goondas Act. These Acts <a href="http://cis-india.org/a2k/blogs/fallacies-lies-and-video-pirates">provide
for detainment of criminals and lumpen elements in society,</a>
and with recent amendments have expanded to include video pirates and
digital offenders. Karnataka's Goonda Act <a href="http://spicyip.com/2014/08/guest-post-karnatakas-goondas-act-an-examination.html">enabling
preventive detention violates </a><a href="http://spicyip.com/2014/08/guest-post-karnatakas-goondas-act-an-examination.html">constitutional rights</a>.
While the Sixth Amendment to the United States Bill of rights
protects offenders against preventive detention, the US has no qualms
about approving such unconstitutional procedures in India.</p>
<p><strong>
</strong></p>
<p><strong>
</strong></p>
<p align="JUSTIFY">The
arguments above underscore the irrelevance of the report. The Prime
Minister may have made appeasing statements to the USA, however, in a
welcome development Commerce and Industry Minister Nirmala Sithraman
in response to the report stated <em>“I</em><em>ndia
is fully aligned with international intellectual property rights
standards and "there is no need for anyone to question us."”
</em>Our
IP
regime with its inherent flexibilities should be preserved and not
sacrificed at the altar of US' business interests. Using
compulsory licensing across sectors would indeed accelerate
technology transfer and diminish initial capex for manufacturers, a
move promoted by the National Manufacturing Policy. The ambitious
Make in India and Digital India campaigns are set to suffer if India
incorporates TRIPS plus standards into its IP regime. The <a href="https://opensource.com/government/10/11/open-standards-policy-india-long-successful-journey">government
supports opennes</a><a href="https://opensource.com/government/10/11/open-standards-policy-india-long-successful-journey">s</a>
and has implemented policies mandating use of open standards and open
source software as a part of the Digital India campaign. India should
not let foreign hands dictate its IPR Policy, and proceed to develop
a policy
which is informed by broader principles of fairness and equity,
balancing intellectual property protections with limitations and
exceptions/user rights such as those for research, education and
access to medicines.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/2015-ustr-report-old-wine-in-new-bottle'>http://editors.cis-india.org/a2k/blogs/2015-ustr-report-old-wine-in-new-bottle</a>
</p>
No publishersinhaIntellectual Property RightsHomepageLimitations & ExceptionsAccess to Knowledge2015-06-16T10:24:49ZBlog EntryBetter intellectual property values luring Indian startups abroad
http://editors.cis-india.org/a2k/news/economic-times-april-10-2015-evelyn-fok-varun-aggarwal-better-intellectual-property-values-luring-indian-startups-abroad
<b>Prime Minister Narendra Modi says Make in India. But anyone who wants to, finds that their intellectual property is valued much more if the patent is filed in the US, or anywhere else, but India.</b>
<p style="text-align: justify; ">The article by Evelyn Fok and Varun Aggarwal was <a class="external-link" href="http://articles.economictimes.indiatimes.com/2015-04-10/news/61017739_1_graphic-india-sharad-devarajan-startups">published in the Economic Times</a> on April 10, 2015. Sunil Abraham is quoted.</p>
<hr />
<p style="text-align: justify; ">Take the case of BITS Pilani graduate Sriram Kanuni, for instance, who decided to come back to India after spending 12 years with SAP in <a href="http://economictimes.indiatimes.com/topic/Germany">Germany</a>. His family thought he was out of his mind, but he wanted to work for India and primarily serve Indian clients.</p>
<p style="text-align: justify; ">His core vision hasn't wavered five years down the line, but he has been forced to move a large part of his company's intellectual property (IP) to the US, just to get a better valuation for his next round of funding. And his is not an isolated case. "Global investors seem to value companies with patents in the US much higher. Therefore, it makes more sense to shift patents out of India, in case you're looking to raise money or exit the company," Kanuni, who is the CEO and co-founder of <a href="http://economictimes.indiatimes.com/topic/Arteria%20Technologies">Arteria Technologies</a>, said. Major Indian startups such as <a href="http://economictimes.indiatimes.com/topic/Flipkart">Flipkart</a>, <a href="http://economictimes.indiatimes.com/topic/Myntra">Myntra</a> and <a href="http://economictimes.indiatimes.com/topic/ZipDial">ZipDial</a>, which have either raised over a billion dollars or exited, already have their IPs outside the country. Experts say that is one of the reasons that attracted investors.</p>
<p style="text-align: justify; ">"If a company with its IP in India is acquired by an international firm, and post acquisition the buyer wishes to transfer the IP to a different jurisdiction, such transfer would need to be at a fair value decided by the government and the company is taxed at the rate of 34% on that," one of the bankers who was part of a large exit told ET.</p>
<p style="text-align: justify; ">"For tech-centric companies where the value of IP would comprise over 70-80% of their value, such high taxes can possibly make them unattractive for potential investors," they added. With better valuation and exits in mind, startups are moving out their innovation to countries such as Singapore and the US, leaving behind very little intellectual property that the country can proudly call its own.</p>
<p style="text-align: justify; ">"You would want to incorporate somewhere with a respected reputation for maintaining legal protection when it comes to copyright and trademarks, especially with global licensees or partners," said Sharad Devarajan, co-founder and CEO of character entertainment company Graphic India, which is incorporated in Singapore. "Incorporation in a country like the US where potential for M&A is higher, especially for core technology startups, will generally make it more attractive to potential buyers as it avoids a lot of legal and financial paperwork," said Brij Bhasin, India investment lead of Japanese <a href="http://economictimes.indiatimes.com/topic/venture%20capital">venture capital</a> firm Rebright Partners.</p>
<table class="plain">
<tbody>
<tr>
<th><img src="http://editors.cis-india.org/home-images/OverseasCall.png" alt="Overseas Call" class="image-inline" title="Overseas Call" /></th>
</tr>
</tbody>
</table>
<p style="text-align: justify; ">Investor concerns over IP are well founded. "Indian courts aren't uniform when it comes to developing jurisprudence around copyright and patent infringement," explained Sunil Abraham, executive director of Bengaluru based research organization Centre for Internet and Society.</p>
<p style="text-align: justify; ">"There is a high chance that a judge who doesn't understand the details would give an injunction. Then the loss of six months, etc., can be quite expensive, because in six months' time your competitor might eat into all of your market," he said.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/news/economic-times-april-10-2015-evelyn-fok-varun-aggarwal-better-intellectual-property-values-luring-indian-startups-abroad'>http://editors.cis-india.org/a2k/news/economic-times-april-10-2015-evelyn-fok-varun-aggarwal-better-intellectual-property-values-luring-indian-startups-abroad</a>
</p>
No publisherpraskrishnaIntellectual Property RightsAccess to Knowledge2015-04-16T01:49:02ZNews ItemDIPP RESPONSE TO CIS (THIRD) RTI REQUEST - FEBRUARY, 2015
http://editors.cis-india.org/a2k/blogs/dipp-response-to-cis-third-rti-request-february-2015
<b></b>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/dipp-response-to-cis-third-rti-request-february-2015'>http://editors.cis-india.org/a2k/blogs/dipp-response-to-cis-third-rti-request-february-2015</a>
</p>
No publishernehaaGovernment InformationAccess to KnowledgeDIPPIntellectual Property RightsAccountabilityNATIONAL IPR POLICYIPR THINK TANK2015-04-14T18:16:52ZFileDIPP RESPONSE TO CIS (SECOND) RTI - FEBRUARY, 2015
http://editors.cis-india.org/a2k/blogs/dipp-response-to-cis-second-rti-february-2015
<b></b>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/dipp-response-to-cis-second-rti-february-2015'>http://editors.cis-india.org/a2k/blogs/dipp-response-to-cis-second-rti-february-2015</a>
</p>
No publishernehaaGovernment InformationAccess to KnowledgeDIPPIntellectual Property RightsAccountabilityNATIONAL IPR POLICYIPR THINK TANK2015-04-14T18:14:18ZFileDIPP RESPONSE TO CIS (SECOND) RTI REQUEST - FEBRUARY, 2015
http://editors.cis-india.org/a2k/blogs/dipp-response-to-cis-second-rti-request-february-2015
<b></b>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/dipp-response-to-cis-second-rti-request-february-2015'>http://editors.cis-india.org/a2k/blogs/dipp-response-to-cis-second-rti-request-february-2015</a>
</p>
No publishernehaaGovernment InformationAccess to KnowledgeDIPPIntellectual Property RightsAccountabilityNATIONAL IPR POLICYIPR THINK TANK2015-04-14T17:58:50ZFileDIPP RESPONSE TO CIS (FIRST) RTI - FEBRUARY, 2015
http://editors.cis-india.org/a2k/blogs/dipp-response-to-cis-first-rti-february-2015
<b></b>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/dipp-response-to-cis-first-rti-february-2015'>http://editors.cis-india.org/a2k/blogs/dipp-response-to-cis-first-rti-february-2015</a>
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No publishernehaaGovernment InformationAccess to KnowledgeDIPPIntellectual Property RightsAccountabilityNATIONAL IPR POLICYIPR THINK TANK2015-04-14T17:42:43ZFileDIPP RESPONSE TO CIS RTI - IMPROPER PAYMENT - FEBRUARY, 2015
http://editors.cis-india.org/a2k/blogs/dipp-response-to-cis-rti-improper-payment-february-2015
<b></b>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/dipp-response-to-cis-rti-improper-payment-february-2015'>http://editors.cis-india.org/a2k/blogs/dipp-response-to-cis-rti-improper-payment-february-2015</a>
</p>
No publishernehaaGovernment InformationAccess to KnowledgeIntellectual Property RightsAccountabilityNATIONAL IPR POLICYIPR THINK TANK2015-04-14T17:35:58ZFileCIS RTI REQUEST TO DIPP - NUMBER 3 - FEBRUARY, 2015
http://editors.cis-india.org/a2k/blogs/cis-rti-request-to-dipp-number-3-february-2015
<b></b>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/cis-rti-request-to-dipp-number-3-february-2015'>http://editors.cis-india.org/a2k/blogs/cis-rti-request-to-dipp-number-3-february-2015</a>
</p>
No publishernehaaGovernment InformationAccess to KnowledgeDIPPIntellectual Property RightsAccountabilityNATIONAL IPR POLICYIPR THINK TANK2015-04-14T17:28:53ZFileCIS RTI REQUEST TO DIPP - NUMBER 2 - FEBRUARY, 2015
http://editors.cis-india.org/a2k/blogs/cis-rti-request-to-dipp-number-2-february-2015
<b></b>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/cis-rti-request-to-dipp-number-2-february-2015'>http://editors.cis-india.org/a2k/blogs/cis-rti-request-to-dipp-number-2-february-2015</a>
</p>
No publishernehaaGovernment InformationAccess to KnowledgeDIPPIntellectual Property RightsNATIONAL IPR POLICYIPR THINK TANK2015-04-14T17:22:37ZFileCIS RTI REQUEST TO DIPP - NUMBER 1 - FEBRUARY, 2015
http://editors.cis-india.org/a2k/blogs/cis-rti-request-to-dipp-number-1-february-2015
<b></b>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/cis-rti-request-to-dipp-number-1-february-2015'>http://editors.cis-india.org/a2k/blogs/cis-rti-request-to-dipp-number-1-february-2015</a>
</p>
No publishernehaaAccess to KnowledgeCopyrightIntellectual Property RightsAccountabilityPatents2015-04-14T17:17:53ZFile