From pranesh at cis-india.org Sat Jan 9 20:42:48 2010 From: pranesh at cis-india.org (Pranesh Prakash) Date: Sat, 09 Jan 2010 20:42:48 +0530 Subject: [Commons-Law] Proposed Amendments to Copyright Act Message-ID: <4B489CF0.4000901@cis-india.org> Dear all, The proposed amendment to the Indian Copyright Act, while seeking to bring in some positive changes (for limitations and exceptions for the physically challenged, for instance -- but even that seems to have highly problematic wordings, which urgently require changing) also have some highly negative ones (such as the introduction of technological protection measures, despite not being obligated by any international obligations to do so, since India has not signed the WIPO Internet treaties). Given below are some important links, and the text of the government's press release of the Cabinet's approval of the amendments. Now it will be sought to be introduced before the Parliament during the Budget session (which will start sometime in late February onwards). * Last known public version of amendments, from 2006 (this has changed since): http://tr.im/JSXu * Extensive analysis by Lawrence Liang, Achal Prabhala and Nirmita Narasimhan on the last public version of the proposed amendments (which have changed since), from 2006: http://tr.im/JSVj * Google News article collections: http://news.google.com/news/more?pz=1&cf=all&cf=all&ncl=dLnQ9f26ZOnhHaMugih_AIeM9AquM and http://news.google.com/news/more?pz=1&cf=all&cf=all&ncl=d0kIXxmxv3MR1rM45g6_2JLFv2tUM ********** Press Release Amendment to the Copyright Act, 1957 December 24, 2009 The Union Cabinet today approved the proposal to introduce a Bill to amend the Copyright Act, 1957. The Ministry of Human Resource Development has proposed the amendments in order to gain clarity, remove operational difficulties and to address the newer issues that have emerged in the context of digital technology and the internet. Amendments are being made to bring the Act in conformity with the World Intellectual Property Organisation (WIPO) Internet Treaties, namely WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT) which have set the international standards in these spheres. The WCT deals with the protection for the authors of literary and artistic works such as writings, computer programmes, original databases, musical works, audiovisual works, works of fine art and photographs. The WPPT protects certain “related rights” which are the rights of the performers and producers of phonograms. While India has not yet signed the above two treaties it is necessary to amend domestic legislation to extend the copyright protection in the digital environment. **Amendments related to bring the Act in conformity with WCT and WPPT** · Through a new section in the Act, it is proposed to ensure protection to the Right holders against circumvention of effective technological measures applied for purpose of protection of his rights like breaking of passwords etc. while maintaining an appropriate balance between the interests of the right holders on the one hand and of Technology innovators, Researchers and Educational Institutions on the other. · The existing Performers’ Rights are proposed to be further enhanced by introducing a new section to provide exclusive rights compatible with WPPT. · “The Moral Rights of Performers” are proposed to be introduced in a new section. · Amendments have been proposed to protect the interests of researchers, students and educational institutions so as to ensure that Technological Measures do not act as a barrier for further development of the technology. These amendments also address the issue of access to information in the digital context and the liability of Internet service providers. · The period of copyright for photographers is proposed to be enhanced to “Life plus sixty years” instead of only sixty years as at present. **Amendment to protect the Music and Film Industry and address its concerns** · Statutory licence for version recordings and authorship to ensure that while making a sound recording of any literary, dramatic or musical work the interest of the copyright holder is duly protected. · Term of copyright for cinematograph films has been extended by making the Producers and Principal director as joint authors. · A copyright term of 70 years to Principal Director which automatically extends the copyright term for the Producers for another 10 years provided he enters into an agreement with the Director; **Amendments to address the concerns of the physically challenged** The physically challenged need access to copyright material in specialized formats, e.g. Braille text, talking text, electronic text, large print etc. for the visually challenged and sign language for the aurally challenged. Currently the cost of production of material in such formats is very high. With additional requirement of royalty payments the price of such material to the target groups would be even higher. · A clause is proposed to be introduced as a fair deal clause to allow the production of copies of copyright material in formats specially designed for the physically challenged. · A separate compulsory licensing provision has been proposed to allow for publication of copyright works in formats other than specifically suited for the physically challenged. **Amendments for rights to authors** · Amendment is proposed to give independent rights to authors of literary and musical works in cinematograph films, which were hitherto denied and wrongfully exploited, by the producers and music companies. · An amendment is proposed to ensure that the authors retain their right to receive royalties and the benefits enjoyed through the copyright societies. · Another amendment ensures that the authors of the works, particularly songs included in the cinematograph film or sound recordings, receive royalty for the commercial exploitation of such work. · It has been proposed to introduce a system of statutory licensing to ensure that the public has access to musical works over the FM Radio and Television networks and at the same time the owners of copyright works are also not subject to any disadvantages. · It is proposed to amend existing provisions to provide compulsory license through Copyright Board to publish or communicate to the public such work or translation where the author is dead or unknown or cannot be traced or the owner of the copyright work in such work cannot be found. **Other amendments** · Amendments are being made for incidental changes, which are required in the context of digital technology to cover “storing of copyrights material by electronic means’. · Amendments in relation to operational facilities, such as registration of Copyright Societies by providing that only authors can register and procedure for tariff schemes of copyright societies and commercial distinction between assignment and licence; and · Enforcement of rights such as border measures, disposal of infringing copies and presumption of authorship under civil remedies. **Background** In order to formulate the proposed amendments and to carry out wide-ranging consultations with all stakeholders, the Ministry of Human Resource Development had constituted a 30-member Core Group in the year 2005 under the Chairmanship of the Education Secretary with representatives of the other Ministries/Departments concerned with the subject and other key stakeholders like copyright-industry organizations, stakeholders, subject experts and Institutions of repute in related fields. The Core Group had deliberations at length in five sessions to cover all the provisions of the existing statute and made recommendations with regard to the proposed amendments. The Core Group then created a Drafting Committee to draw up the text of the proposed amendments and to fine-tune the recommendations of the Core Group. ********** -- Pranesh Prakash Programme Manager Centre for Internet and Society W: http://cis-india.org | T: +91 80 40926283 -------------- next part -------------- A non-text attachment was scrubbed... Name: signature.asc Type: application/pgp-signature Size: 197 bytes Desc: OpenPGP digital signature Url : http://mail.sarai.net/pipermail/commons-law/attachments/20100109/95c9344a/attachment.bin From pranesh at cis-india.org Wed Jan 13 13:28:40 2010 From: pranesh at cis-india.org (Pranesh Prakash) Date: Wed, 13 Jan 2010 13:28:40 +0530 Subject: [Commons-Law] Robert Horvitz on Opening India's Spectrum | Thursday, Jan 14 @ 18:00 Message-ID: <4B4D7D30.2000706@cis-india.org> Dear all, The Centre for Internet and Society invites you to a lecture by Robert Horvitz on Open Spectrum in India. The government monopolised India's radio spectrum until the mid-1990s and even now, non-governmental use of wireless is more limited than in other democracies. Restrictive policies constrain the growth of mobile telephony, broadcasting, wireless broadband and many other services important to India's social and economic development. Can anything be done to change this? Robert Horvitz, director of the Open Spectrum Foundation , and author of the Local Radio Handbook, is visiting India to study this question and suggest strategies for citizen action to reform radio regulation. On Thursday, 14 January, at 18:00 he will discuss some of his preliminary findings at the Centre for Internet and Society. Date: Thursday, 14 January 2010 Time: 18:00 - 19:30 Location: CIS Office, D-2, 3rd Floor, Shariff Chambers 14 Cunningham Road Bangalore, India -- Pranesh Prakash Programme Manager Centre for Internet and Society W: http://cis-india.org | T: +91 80 40926283 -------------- next part -------------- A non-text attachment was scrubbed... Name: signature.asc Type: application/pgp-signature Size: 197 bytes Desc: OpenPGP digital signature Url : http://mail.sarai.net/pipermail/commons-law/attachments/20100113/455932b4/attachment.bin From pranesh at cis-india.org Sat Jan 16 16:25:04 2010 From: pranesh at cis-india.org (Pranesh Prakash) Date: Sat, 16 Jan 2010 16:25:04 +0530 Subject: [Commons-Law] Intellectual bottlenecks Message-ID: <4B519B08.2090008@cis-india.org> Dear all, Amit Shovon Ray and Sabyasachi Saha take a look at why the PUPFIP Bill (the "Indian Bayh-Dole" bill) is ill-imagined, and how science and technology in India have other bottlenecks that need to be worked on instead. Regards, Pranesh http://www.financialexpress.com/news/intellectual-bottlenecks/567807/0 AMIT SHOVON RAY and SABYASACHI SAHA take stock of the state of R&D in India Intellectual bottlenecks AMIT SHOVON RAY, SABYASACHI SAHA Saturday, Jan 16, 2010 India’s strive towards self-reliance shaped its post-independence policy agenda in all spheres. The pursuit of science and technology under government patronage was an integral part of this agenda, which led to the establishment of universities and institutes of higher learning and research as well as publicly funded S&T organisations. However, aggregate R&D expenditure in India has remained rather low at less than 1% of its GDP. A quick international comparison in the accompanying table reveals that developed countries on an average spend over 2% of their GDP on R&D, a cut above India’s spending. China spends 1.4% of its GDP on R&D, again ahead of India. Interestingly, however, the lion’s share (nearly 75%) of India’s R&D expenditure is publicly funded and only a quarter is borne by the private sector. Despite this concerted effort, India has not succeeded in reaching the global frontiers of cutting edge research in science. Moreover, our industry has also not benefited significantly from home-grown technologies with university-industry interface remaining sub-optimal. Publicly funded research has not adequately contributed to the process of technological learning and catch-up by the Indian industry. Indeed, inventions generated from publicly funded research in India, however sporadic and few they may be, remain largely unnoticed by the industry. Even when noticed, such inventions are not picked up due to heavy development costs and uncertainties. This is not to suggest that Indian policymakers did not realise the importance of publicly funded scientific research and the possible role it could play in boosting industrial competitiveness. Keeping in mind the low levels of effective university-industry technology transfer in India, a possible corrective step was conceived in terms of a legal framework for intellectual property rights (IPRs) in the academic sector (publicly funded research).The idea was first mooted by the National Knowledge Commission in 2007 and was adopted by the government through the introduction of a new legislation, along the lines of the US Bayh-Dole Act of 1980. The Protection and Utilisation of Public Funded IP Bill 2008 is presently with the Parliament. The Bill seeks to assign the ownership rights of publicly funded patents to universities in order to facilitate their commercialisation by incentivising the industry and assuring them exclusive license rights for further development and marketing. Moreover, it is through this law that the government also seeks to incentivise and energise creativity and innovation in publicly funded research. Although patenting is still relatively uncommon among academic researchers in India, some of the S&T organisations, particularly within the CSIR network, have put in place institutional frameworks for patenting research outputs. It may be noted that the number of US patents granted to CSIR jumped to 196 in 2005-06 from just 6 in 1990-91. On the other hand, India’s contribution to the world publications has increased from 2.1% during 1995-2000 to 2.3% during 2000-05. Although the effective contribution of Indian scientists in the international scientific community has gone up, India’s impact factor is not yet at par with the world average in most scientific fields, except for physics where it has made significant gains with an impact factor of 3.1 during 2003-07. For a long time, concerns related to intellectual property rights did not bother Indian academic scientists. In a recent econometric study, the authors explored some of the less understood relationships that explain faculty inclination towards patenting in Indian universities. These include the importance of faculty background and attitude. Faculty with a doctoral degree from abroad are more inclined to patenting. The dynamism of the younger generation of faculty combined with academic maturity of the professorial level is the ideal combination for encouraging university patenting. Faculty with a positive attitude towards research supervision and a larger team of research students engage more in patenting their research. Policymakers in India have been arguing that the absence of a clear IPRs framework prevents the industry from accepting university inventions. Literature on the US experience post-Bayh Dole, however, does not present an unambiguous picture in this regard. Evidence suggests that although the decades that followed saw a huge rise in university held patents, there was only a modest increase in their licensing and that too mostly for a few top-ranking universities. Given the heterogeneity in the quality and content of publicly funded research in India, it remains to be seen how a uniform IP law for all publicly funded organisations could be tailored to suit every tier of the quality spectrum, if at all. Different constituencies are expected to respond differently to a new institutional/legal framework. It is in this context that one fears that a ‘one size fits all’ approach could be counterproductive. Policymakers also argue that IP rights vested with individual universities are more efficient as they reduce direct bureaucratic control from funding agencies. However, in India funding agencies have rarely staked IP claims in the first place. CSIR, for example, holds patent rights for all publicly funded research outputs and has also licensed them exclusively in some cases. Therefore, possible bottlenecks in the process of commercialisation of publicly funded patents in India cannot be directly linked to IP ownership per se. IPRs have so far been acting as a viable business proposition for knowledge-based industries where production of knowledge essentially depends on the extent to which it can be appropriated. But would such business models work for universities? Universities in the West have tried out operational business models for encouraging university scientists to become entrepreneurs with equity shareholding in spin-offs. This worked well in some cases (e.g.,Silicon Valley around Stanford and Route 128 near MIT). Nevertheless, universities are known to conventionally follow an altogether different model of knowledge creation that goes beyond private appropriation paving the way for wider dissemination through publication and teaching. It remains true that university scientists’ own urge towards solving research puzzles would continue to be the dominant driver of their research. Indeed, excessive focus on career advancement often proves counterproductive for faculty’s research performance as far as their individual publication rates are concerned. Going beyond IPR, a more fundamental bottleneck hindering university-industry technology transfer in India is a mismatch of research temperament and a lack of understanding between the two. Indian industry is often myopic and averse to taking risks. On the other hand, industry has always alleged that university research in India is too tangential to have direct commercial applications. Therefore, there may be further need to explore possibilities of appropriate profile-matching between the two to achieve successful university-industry technology transfer in the long-run. Under these circumstances, implementing laws for promoting university patenting might lead to another futile public policy exercise resulting in filing and maintaining large unutilised government patents at the cost of public money. Introduction of an ‘Indian’ Bayh-Dole for energising academic research that overlooks the realities of the differences in context, environment, culture and level of scientific achievements between the US and India might be tantamount to putting the cart before the horse. Amit Shovon Ray is professor, JNU and Chair Professor, Icrier. His coauthor Sabyasachi Saha is researcher, Icrier. Views are personal. -- Pranesh Prakash Programme Manager Centre for Internet and Society W: http://cis-india.org | T: +91 80 40926283 -------------- next part -------------- A non-text attachment was scrubbed... Name: signature.asc Type: application/pgp-signature Size: 197 bytes Desc: OpenPGP digital signature Url : http://mail.sarai.net/pipermail/commons-law/attachments/20100116/29944fd7/attachment-0001.bin From pranesh at cis-india.org Mon Jan 25 12:39:29 2010 From: pranesh at cis-india.org (Pranesh Prakash) Date: Mon, 25 Jan 2010 12:39:29 +0530 Subject: [Commons-Law] DIPP in mysterious pact with Wipo Message-ID: <4B5D43A9.3060902@cis-india.org> By Latha Jishnu in today's Business Standard: http://tr.im/LvLn DIPP in mysterious pact on patents with Wipo Latha Jishnu / New Delhi January 25, 2010, 0:51 IST *Agreement mentions India's IP strategy and action plan, but govt declines to reveal what these contain.* India has signed an agreement with an international organisation to help it implement a national policy on intellectual property (IP) and innovation. However, it is a policy no one has seen or discussed in the country. The memorandum of understanding was signed by the commerce ministry's Department of Industrial Policy and Promotion (DIPP) with the World Intellectual Property Organisation (Wipo) during the visit of its director-general, Francis Gurry, in November last year. Signing on behalf of the commerce ministry was outgoing DIPP secretary, Ajay Shankar. The MoU, signed on November 13, as Gurry wrapped up a three-day, high-profile visit to India, is broadly aimed at strengthening cooperation on IP matters between the two sides. But, a key focus of the agreement is the national IP and innovation strategy and an IP Development Action Plan for 2010-2011 which, the MoU states, will represent "activities identified as priority areas of cooperation". This is the first indication that India has drawn up a national IP and innovation strategy and that a two-year IP action plan has been put in place. However, none of the top industry bodies says it has seen such a strategy or action plan or been privy to any discussion on these. Queries sent to the Confederation of India Industry (CII) and the Federation of Indian Chambers of Commerce and Industry (Ficci) have drawn a blank. Spokespersons for these apex organisations say they have not seen such a document. Both had held round-tables on IP issues during Gurry's visit. While the CII roundtable brought some 50 enterprise leaders from various sectors for a discussion on Wipo's activities, the Ficci meeting was with representatives of the entertainment industry. Top DIPP officials remain tight-lipped on the IP Development Plan. An industry source said, "requests for a copy of the plan have remained unanswered". According to this source, DIPP "is not even willing to share the contents of the MoU, leave alone the national IP innovation and innovation strategy, which has serious implications for key sectors of our economy". Similarly, requests from Business Standard for a copy of the policy and action plan have not been successful. Wipo, too, had not replied to an email about the IP Development Action Plan for 2010-2011. A copy of the MoU is with BS and it shows the emphasis is on "a more intense, active and systematic" cooperation on IP matters. The centrepiece, though, is the national innovation and IP strategy "in the context of India's national development priorities". One worrying aspect, according to an official of an industry body who did not wish to be identified, is a clause in the agreement that states DIPP can "designate a third entity or entities to coordinate functions" under this agreement. This has raised concerns about the necessity of involving unspecified third parties to implement IP policies which have a significant bearing on the prospects of several industries, not least pharmaceuticals. D G Shah, secretary general of Indian Pharmaceutical Alliance (IPA), which groups the country's leading pharma producers and exporters, says: "It is odd that WIPO should be involved in the implementation of India's national IP and innovation strategy and odder still that a third party should be engaged for this purpose. But, even more worrying, he says, is that no consultations were held with the industry or other stakeholder ministries. Other ministries, such as human resources development and information and broadcasting, which have a sizable say in IP matters, do not appear to have been consulted. Shah claims the Department of Pharmaceuticals in the Ministry of Chemicals & Fertilisers has not responded to the urgent clarifications that IPA sought from it. The industry's concerns stem from the fact that several provisions in Indian patent law have been challenged in different forums and so, secret plans formulated in consultation with Wipo could have a major impact on domestic industry. "I am hoping that at least the Department of Pharmaceuticals would have been consulted, since industry was not, before finalising the strategy and Action Plan. But, the lack of transparency and some of the provisions contained in the MoU are clearly disturbing," says the IPA chief. -- Pranesh Prakash Programme Manager Centre for Internet and Society W: http://cis-india.org | T: +91 80 40926283 -------------- next part -------------- A non-text attachment was scrubbed... Name: signature.asc Type: application/pgp-signature Size: 197 bytes Desc: OpenPGP digital signature Url : http://mail.sarai.net/pipermail/commons-law/attachments/20100125/db16cc12/attachment.bin From demartin at polito.it Wed Jan 27 04:53:15 2010 From: demartin at polito.it (J.C. DE MARTIN) Date: Wed, 27 Jan 2010 00:23:15 +0100 Subject: [Commons-Law] the public domain manifesto Message-ID: <4B5F7963.1040308@polito.it> The Public Domain Manifesto is online: http://publicdomainmanifesto.org Principle #1: The public domain is the rule, copyright is the exception. Lawrence Lessig, James Boyle e Bernt Hugenholz are among the initial signers: http://publicdomainmanifesto.org/node/8/signatures Please read it and, if you agree, sign it. Thanks, best, juan carlos prof. juan carlos de martin coordinator - COMMUNIA project http://communia-project.eu