Intellectual Property(IP) and Communication Rights Report on India Asia Pacific Regional Meeting on...

Intellectual Property(IP) and Communication Rights Report on India

Asia Pacific Regional Meeting on Access To Knowledge 17 February 2009 Pritee Shah, Sr. Director, CERC & Editor- INSIGHT, The Consumer Magazine Krupa Gandhi, Sr. Staff Writer, CERC

“The whole human development is derivative. We stand on the shoulder of the scientists, artists and craftsmen who preceded us. We borrow and develop what they have done,not necessarily as PARASITES but simply as the ‘Next Generation’. It is at the heart of what simply we know as PROGRESS”.

- Justice Hugh Laddie

The IP Regime in India

India has signed the following IP Conventions:Trade Related Aspects Of Intellectual Property

Rights (TRIPs) in 1994. The Berne Convention for the protection of

Literary and Artistic WorksThe Geneva Convention for the protection of

Producers of Phonograms against un authorised duplication of their phonograms

Contd...

Contd… The IP Regime in India

The Nairobi Treaty On The Protection Of The Olympic Symbol

The Paris Convention For Protection Of Industrial Property

The Patent Co-operation Treaty

Contd…


IP Laws in force in IndiaThe Patent Act of 1970The Trademarks Act of 1999The Design Act of 2000The Copyright Act of 1957


India is listed in the US 301 Watch List. Even though India improved its Patent Regime for Pharma and agricultural chemicals – its Copyright Laws and enforcement are weak – says the USTR (United States Trade Representative) report, hence the inclusion.

Awareness on Creative Commons Licensing

Creative Commons is a non-profit organisation. It works to increase the amount of creativity (cultural, educational, and scientific content) in “the commons” — the body of work that is available to the public for free and legal sharing, use, repurposing, and remixing. Creative Commons International has developed a license for many jurisdictions and so for India (http://cc-india.org/). Contd...

Contd…Awareness on Creative Commons Licensing

The India license has now been integrated into the Creative Commons licensing process, so Indians would now be able to license their content under this jurisdiction's law. Creative Commons is working with IIT Bombay to create India jurisdiction-specific licenses from the generic Creative Commons licenses.

Contd…


The latest version of the licenses available for India are:Attribution 2.5 India Attribution-Noncommercial 2.5 India Attribution-Noncommercial-No Derivative Works 2.5 India Attribution-Noncommercial-Share Alike 2.5 India Attribution-No Derivative Works 2.5 India Attribution-Share Alike 2.5 India


Some Indian initiatives using the CC licenseEkalavya [http://ekalavya.iitb.ac.in/](open source courseware)

Oscar [http://oscar.iitb.ac.in/](Open Source Courseware Animations) Repository NPTEL [http://www.nptel.iitm.ac.in/] (National Programme on enhanced technology learning)

Access to Learning Materials

Access to learning material on the surface though not portrayed as a burning issue, but there are certain reference learning materials, which are difficult to access not because they aren’t available but because they aren’t affordable.

ExamplesThe New Scientist magazine, UK: It's yearly e-

version costs 60 US Dollars and its annual print version costs 37 US Dollars. The cost factor is high. Thus, restricting access to learning material.

Contd…

Contd…Access to Learning Materials

To quote a few examples given by a microbiology professor Vivek Upasani, M G Science College, Ahmedabad:

The Varghese Manual, (US Publication) would cost anywhere between 411 to 616 US Dollars. It is a very vital collection of volumes on identification of bacteria. (too expensive for an Indian student to even think of buying).

Contd…


The Pro Caryotes Manual which is the most important volume for microbiology students. The cost of one such volume would be approximately 308 USDollars.

The manual on Standard Methods of Water and Waste Water Analysis (must have for consumer testing laboratories) would cost around 102 US Dollars.

Contd…


The US Pharmocopeia - very essential for pharmacy students – but the cost of acquiring it is not less than 308 US Dollars.These volumes as stated by the Professor, only one or two copies are available in the University – Cost (on account of copyright protection) acting as a barrier to access.

Digital Rights Management

DRM enables content owners to retain perpetual control over the content by controlling access to the content itself. These content owners are not numerous but only a few, mostly US companies, which also own the DRM technology. The ownership of DRMs lies in the hands of a few companies, of which Sony and Time Warner are the two studios which form one significant block together with Microsoft. Contd…

Contd…Digital Rights Management

Other major owners manufacture electronic devices on which contents are held, such as Philips, Panasonic, Thompson, and Samsung.The relation between content owners and device owners is symbiotic. This may be evidenced in the DVD sector, where companies like IBM, Toshiba, Panasonic, and Intel teamed up with Walt Disney, Sony, and Warner Bros to form the Advanced Access Content System Licensing Authority which licenses DRM technologies for DVDs.

Contd…

Contd…Digital Rights ManagementHowever, for device owners, excessive restriction of content by use of DRM and excessive concentration of the DRM technology in few hands is rarely acceptable as it tends to limit their technological development Sony ‘Root kit’ incident: It shows how powerful corporations (once they have the ownership) attempt to breach our security system and violate consumer privacy. The comment of SONY BMG President of Global Business : that “Most people don't even know what a rootkit is so why should they care about it?” disturbs a lot more

Contd…

Contd…Digital Rights Management

This statement perhaps reflects the attitude of the corporations towards consumer behaviour and is alarming for a country like India, where the ownership of such technologies in the hands of a corporate oligarchy may lead to absolute market dominance and translate into high prices, driving digital content away from the reach of average consumers. All this would definitely have more of social effects much beyond the immediate concerns of the entertainment industry about piracy

Needs fulfilled by black or grey markets

Example: Apple Ipods (IPod Gray Market Booms in India)While Windows machines enjoy low prices because they're produced locally, Apple Computer products have to make their way from production facilities in China. Along the way, they pick up several cost-inflating customs stamps.Shopkeepers have responded to this by smuggling huge loads of illegal iPods and MacBooks from Singapore, Dubai and Malaysia. As a result, it's now almost impossible to buy any Apple product legally.

Contd…

Contd…Needs fulfilled by black or grey markets

"You can't buy Apple in India. I have to fly out of the country every month to get more," said Om Gani, proprietor of a hole-in-the-wall stall in Burma Bazaar, Chennai's most notorious illegal market.One can pick up a 30-GB video iPod for $280, which is only $20 cheaper than he/she can get one at Best Buy in the United States, but a whopping $160 cheaper than the $440 that authorized dealers sell iPods for in India.Last quarter Apple sold more than 8 million iPods and 1.3 million computers. Industry estimates by Daily News & Analysis suggest that the gray market makes up between 60 percent and 90 percent of sales in India.

Contd…

Contd…Needs fulfilled by black or grey markets

Even though demand for iPods is as great in India as anywhere else in the world, Apple seems to have cold feet about expanding its presence in the country. In May, Though Apple said only that it had "re-evaluated" its plans in India, it appears that high taxes, a strong gray market and a thriving environment for Windows systems have given the company pause.

Access to medicines in India – IPR and Patents

Changing IP will have differential effects on drugs, depending upon the date of patent filing. Two categories of generic products will remain legal on the Indian market after 2005, generic copies of products already off-patent in regulated markets and generic versions of products patented before 1995. There is also a category of generics that most certainly will NOT be allowed on the Indian market after 2005, and these are generics of products patented after 2005.

Contd…

Contd…Access to medicines in India – IPR and Patents

The contentious category relates to generics for all those products patented between1995 and 2005. It includes several of the inhibitor ARVs and important anti-cancer drugs. If Indian regulators grant a patent, post-2005, for a product that received its patent in a regulated market after 1995, then the innovator may apply for a stay order on the generic supplier to stop producing the copies.

This already happened with Novartis’ anti-cancer drug, Gleevec, when Novartis was successful in getting a stay order to stop production of generic copies. “In April 2007, Union health minister Anbumani Ramadoss had asked Novartis to withdraw its patent litigation it is engaged in, in India over Gli-vec and warned that the country should not be forced to “issue a compulsory licence” even though it had never issued one”. Contd


“Two large drug consignments of generic major Cipla were seized in Netherlands by its customs authorities recently. The two drugs on the way to Peru are generic versions of block-buster medicines used in mental health – Rivastigimine (manufactured by Novartis), and Olanzapine (by Eli Lilly)”, reports The Times Of India, a leading newspaper of India on 12 February 2009. Recently many generic essential drugs have been held at European ports on way to Africa or Latin America from India, by EU customs for IP infringement or labeling them as “counterfeits”.

Contd…


Millions of people die from infectious diseases that are treatable and preventable in many cases. The death toll is unacceptably high in developing countries like India, where many die because they do not have access to effective and affordable medicines. Example: Even a life saving drug “Insulin” is still costly (invented long back) for those who cannot afford it on a daily basis and people die on account of lack of access to it. One 5 ml bottle costs around 4 US Dollars, which lasts for 20 days

( if injected of 20 units daily). Annual cost on “Insulin” for a patient is 374 US Dollars, which is phenomenal. Contd…


Implementation of TRIPs Agreement may lead to high drug prices, low access to medicines and a weakening of pharmaceutical industries in the developing countriesThe minimum term of 20-year patent protection required by TRIPs effectively allows a pharmaceutical company a monopoly over the production, marketing and pricing of patent protected medicinesDeveloping country pharmaceutical producers will find themselves pushed out of the market, having to compete with the large MNCs.

Contd…

Censoring of blogs and emailsInternet censorship in India is carried out by Central as well as state governments of India The Government of India established the Computer Emergency Response Team, or CERT-IN, as a means to monitor all incoming and outgoing Internet traffic from India.Currently, there is no established law as to which websites the government censors, or when. In the past, mainly pornographic and anti-establishment political websites have been blocked.

Contd…

Contd…Censoring of blogs and emails

In 2001, the Bombay High Court appointed a Committee to oversee issues relating to cyber pornography and Cybercrime.The Committee upon identifying key issues made recommendations such as licensing of Cyber cafe, introducing identity cards for Cyber cafe visitorsThe report addressed the issue of protecting minor children from accessing adult sites and made a recommendation that Internet Service Providers must provide parental control software with every Internet connection.

Internet Access Filter

Results from ONI testing reveal that Indian ISPs selectively filter sites identified by government authorities as relating to national unity and state security. Although obscene information is the only type of content to be made illegal under the IT Act.The OpenNet Initiative is a collaborative partnership of four leading academic institutions: the Citizen Lab at the Munk Centre for International Studies, University of Toronto; Berkman Center for Internet & Society at Harvard University; the Advanced Network Research Group at the Cambridge Security Programme, University of Cambridge; and the Oxford Internet Institute, Oxford University. Their aim is to investigate, expose and analyze Internet filtering and surveillance practices in a credible and non-partisan fashion

Privacy and Data Protection Laws in India

Under the Indian IT Act, 2000:Sec 43- provides protection against unauthorized access of

the computer system by imposing heavy penalty up to 2,05,000 US Dollars. Unauthorized downloading, extraction and copying of data are also covered under the same penalty

Sec 65 – If anyone intentionally conceals, destroys, alters the computer source code such shall have to suffer a penalty of imprisonment or fine up to 4109 US Dollars

Contd…

Contd…Privacy and Data Protection Laws in India

Sec 66- Protection against hacking has been provided under this section. This section imposes the penalty of imprisonment of three years or fine up to two lakh rupees or both on the hacker.

Sec 70-This section provides protection to the data stored in the protected system. Any access or attempt to secure access of that system in contravention of the provision of this section will make the person accessed liable for punishment of imprisonment which may extend to ten years and shall also be liable to fine.

Sec 72 - This section provides protection against breach of confidentiality and privacy of the data. Anybody who breaches, shall be imprisoned for 2 years or with a fine of 2050 USD or both

Penetration of Broadband and Mobile Internet Services in India

YEAR Users Population % Pen. Usage Source

1998 1,400,000 1,094,870,677 0.1 % ITU

1999 2,800,000 1,094,870,677 0.3 % ITU

2000 5,500,000 1,094,870,677 0.5 % ITU

2001 7,000,000 1,094,870,677 0.7 % ITU

2002 16,500,000 1,094,870,677 1.6 % ITU

2003 22,500,000 1,094,870,677 2.1 % ITU

2004 39,200,000 1,094,870,677 3.6 % C.I. Almanac

2005 50,600,000 1,112,225,812 4.5 % C.I. Almanac

2006 40,000,000 1,112,225,812 3.6 % IAMAI

2007 42,000,000 1,129,667,528 3.7 % IWS

http://www.internetworldstats.com/asia/in.htm Contd…

Contd…Penetration of Broadband and Mobile Internet Services in India

Over 3.6 million new broadband subscribers were added in India in the first quarter of 2008 reports World Broadband Statistics, by Fiona Vanier, Point Topic Ltd, UK(www.tendencias21.net/index.php?preaction=joint&id_joint=96525)As per TRAI’s latest numbers, the number of Indians using their mobiles to logon to the internet has increased from 16 million in 2006 to 38 million in 2007 (both GSM and CDMA). While Broadband numbers stay at 2.69 million and there are just 22 million PCs in the country (of which only 30-40% have Internet access), mobile Internet seems to be the logical area of growth. This concludes that Mobile Internet users in India are 14 times more than the broadband users.

Conclusion

CERC has joined CI’s Global Consumer Dialogue on A2K issues to:

Participate in national discussions with respect to A2K issues To make the consumers aware on the issues they face due to

stringent IPR regimes To bring forth evidences of barriers faced by consumers with

respect to access of copyright protected materials and life saving drugs and advocate the same for enforcement of legislations towards developing a mechanism leading to ease in the access to learning material and affordable medicines to consumers.

To make representations to the Government and hold them accountable for IPR regimes that harm consumer interest.

Contd…Conclusion

Consumers in India would benefit out of this project in many ways:

Education and Awareness on the IPR issues harming them

Consumers would get acquainted with their rights with respect to IPR regime. Would gain knowledge on the provisions to circumvent the IP rights.

Over and above they would be enlightened to alternative mechanisms of IPR such as common creative licensing and benefit out of it.

Contd…Conclusion CERC with CI’s support proposes to :

research on the laws that impact on Internet access, notable deficits in infrastructure, skills or content and Affordability and accessibility issues with respect to Internet.

conduct a survey on the level of access to learning materials to students, colleges, libraries, NGOs and research organizations.

conduct a survey to gauge the awareness level of IP alternatives such as open source and Creative Commons Licensing in India

do a survey with respect to Net Neutrality, Region Coding and DRM issues in India

Contd…

Contd…Conclusion research on the access to availability and affordability of life

saving drugs in India to the poor and the middle class of India.Undertake research on national copyright laws and practices.Conduct public education campaigns with like minded NGOs

and civil society organizations interested in IP issues nationallyRepresenting the consumer fraternity in national committees

and regional assemblies with respect to IP and A2K Effective use of media to spread the research findings and

public education campaign activities

Contd…Conclusion

CERC needs CI’s support in:Technical ExpertiseCapacity BuildingFund Raising for the activities

THANK YOU

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