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The Data Exclusivity Debate in India: Time for a Rethink? - Prashant Reddy T.

Data exclusivity or regulatory marketing exclusivity is a concept that has been subject to much debate in the Indian context – with specific reference to the Indian pharmaceutical and agro-chemical industries. This debate has been carried on in the backdrop of obligations under the TRIPS as well as the Indo-EU Free Trade Agreement.

In this paper, the author discusses the concept of data exclusivity in the light of the existing regulatory regime for pharmaceuticals and agro-chemicals in India. He also examines various Committee reports to glean the Indian stance on data exclusivity for agro-chemicals as well as pharmaceuticals and the contradictions therein. The paper proposes data exclusivity as an incentive for drug companies to conduct clinical trials, particularly local clinical trials in India rather than free-riding on foreign trials. Although such local clinical trials are in the interest of public health, they remain almost prohibitively expensive. Therefore, it is necessary that the conduct of such trials is incentivized. As the high threshold for patentability in India deters patents from being employed as such incentive, this paper nominates data exclusivity as a possible solution.

PDF – The Data Exclusivity Debate in India: Time for a Rethink? – Prashant Reddy T.


The Central Monitoring System and Privacy: Analysing What We Know So Far - Jaideep Reddy

State-run surveillance is as old as the ages, but the wired state of our lives has put it in the spotlight more now than perhaps ever before. Our communication and data can often be veritable repositories of all that we are, and many governments today have the technological means to give them relatively easy access to most of our private data. Civil society around the world has therefore naturally expressed concern over the increasing scope of State surveillance.

The Central Monitoring System (hereafter, “CMS”) is a new technology for State surveillance in India, and is in the nascent stages of implementation. It was in 2009, amidst the first hints of information from government sources about this new technology that concern began to arise in civil society in India about the impact of the new form of surveillance on private data and communication.

This paper, based on an analysis of the little and scattered official information available on the CMS, discusses, from a privacy viewpoint, the extent to which the CMS is likely to change the landscape of State surveillance in India from what it is today. A tentative evaluation is also made of whether the CMS looks likely to achieve the security-privacy balance, followed by certain suggestions that may help in achieving such a balance.

PDF – The Central Monitoring System and Privacy: Analysing What We Know So Far – Jaideep Reddy


Of Bollywood Songs, Film Producers And Collecting Societies: Locating The Rights Of The Composers Poorna Mysoor

Bollywood films are known for their songs, and in many cases Bollywood films are known because of the songs. It is not merely in Bollywood films that songs have a significant role, but also in the lives of myriad composers, lyricists, singers and so on, lending an opportunity for their creative expression in addition to serving as a means of livelihood. Ideally, it should be possible for composers to be able to earn an income by composing music for films, as well as by being a member of a collecting society in such a way as to maximize their returns. From the bundle of rights they have, the composers should be able to transact with both the producers and the collecting societies, but with rights that do not overlap. However, in reality the rights could get tangled in a legal quagmire between the collecting society and film producers, as each demands exclusivity. The article is an attempt to show how the rights of composers is meddled with by both the film producers and the collecting societies, leading to gross unfairness in the distribution of the returns from exploitation of their rights. To this end, the article examines the UK Court of Appeal decision in B4U Network (Europe) Limited v Performing Rights Society Limited, which upheld the rights of the collecting society, and compares it with the Indian Supreme Court decision in Indian Performing Rights Society v Eastern India Motion Pictures, where the rights of the film producers was upheld. This article then goes on to examine what it means to the composers if the film producers’ rights trump those of the collecting societies. The article also explores how the amendments introduced to the Indian Copyright Act in 2012 address the situation.

PDF – Of Bollywood Songs, Film Producers And Collecting Societies: Locating The Rights Of The Composers Poorna Mysoor


Overcoming India’s Food Security Challenges: The Role of Intellectual Property Management and Technology Transfer Capacity Building -Stanley P. Kowalski, Aarushi Gupta and Ifica Mehra

The growth of the Indian economy after Independence has had little impact on the food security of the country. The paper analyses the development of advanced crop varieties through the use of agricultural technologies (hereinafter “agbiotech”) within the technology transfer system, a framework which comprises of the interactions of intellectual property rights law and agricultural research and development in India. Through this, the author argues that agricultural innovation in India is failing due to the absence of connections within the technology transfer system and advocates for the creation of a national program aimed at advancing IP and tech-transfer capacity in agbiotech

PDF – Overcoming India’s Food Security Challenges: The Role of Intellectual Property Management and Technology Transfer Capacity Building -Stanley P. Kowalski, Aarushi Gupta and Ifica Mehra


A Legal-Comparison Of The India Software Law And The Software Law Of Germany - Thomas E. Soebbing

India has emerged as one of the leading destinations for offshore outsourcing in software industry and has attracted the attention of software industries of several countries including that of Germany. In order to sustain this outsourcing relationship, the legal frameworks of these countries play a very important role. In this article, the author conducts a comparative analysis of Indian and German laws that impact the software industry, mainly dealing with three fields: First, Copyright Law impacting the protection of intellectual rights over software; second, Contract Law specifically dealing with software contracts and nature of such transactions and, finally, the remedies available in both the countries under their civil, criminal and administrative law to ensure protection of software.

PDF – A Legal-Comparison Of The India Software Law And The Software Law Of Germany – Thomas E. Soebbing

Should the Law Beat a Retweet? Rationalising Liability Standards for Sharing of Digital Content - Nandan Kamath

The emergence of social media has raised new and interesting questions concerning the regulation of free speech. One such question is the legal treatment of the sharing of third party digital content. Using the example of a ‘retweet’, this article highlights the urgent need to establish clearer liability standards for those sharing, repeating or endorsing illegal or infringing content. It attempts to propose a clear, principle-based approach that lifts the cloud of uncertainty creating a chilling effect on speech. This act of retweeting is sought to be analysed against various legal frameworks including defamation, copyright infringement and public order. It is seen that unlike an intermediary that enjoys safe harbour protection, the retweeeter is treated on par with a principal actor. The law as it stands today does not differentiate between the repetition and original posting of content. This has a chilling effect on the act of sharing and reduces the diversity of voices on the internet. For these reasons, it is argued that a retweeter must be protected as a traditional internet intermediary. Finally, this article postulates a legal framework for attributing liability to the retweeting of illegal and infringing content that accounts for the unique context of social media communications.

PDF – Should the Law Beat a Retweet? Rationalising Liability Standards for Sharing of Digital Content – Nandan Kamath

 

Give Me My Space and Take Down His - Ananth Padmanabhan

The Copyright (Amendment) Act, 2012 has introduced fair use provisions to exempt intermediaries from liability in certain specific situations and provides them an opportunity to take down infringing content when brought to their notice. Lawmakers in India have certainly taken a positive step forward, and the above provisions on a plain reading, seem to protect and nurture a file-sharing business model that offers immense possibilities for the future, even at this nascent stage. However, the judicial response to this Parliamentary intent is a matter of serious concern, considering the recent pronouncements of the Delhi High Court in the Myspace case and the decision of the Madras High Court in the R.K. Productions case. The amendments also have to be viewed in light of the widely worded John Doe orders issued by Indian Courts, which pose a potential risk to the growth of the file -sharing industry and the possibility of a chilling effect on free expression and dissemination of information. In this paper, the author examines the content of the amendment and the nuances in its language, the manner in which it could be interpreted by Courts and the extent to which this amendment could foster the growth of the file sharing and streaming industry. To do this, the issue of intermediary liability in Indian law prior to the amendment has been examined. The paper also briefly studies the legal position on intermediary liability in the United Kingdom as discussed in the Newzbin2 case and examines whether the post-amendment provisions in India are open to similar interpretation and application.

PDF – Give Me My Space and Take Down His – Ananth Padmanabhan

 

IP Addresses and Expeditious Disclosure of Identity in India - Prashant Iyengar

Concomitant with the proliferation of cybercrime in India has been the use of Internet Protocol (IP) addresses by law enforcement agencies to track down criminals. While useful in many situations, the potential for misuse of this information raises important concerns for the privacy of individuals online. This note reviews the statutory mechanisms regulating the retention and disclosure of IP addresses by internet companies in India. It identifies and analyses the four broad sources to which the regime of IP Address disclosure by Internet Service Providers (ISP) may be traced: under the (i) operating licenses issued under the Telegrah Act, 1885, (ii) Information Technology Act, 2000, (iii) Code of Criminal Procedure, 1973 (hereinafter, “the Cr.P.C.”) and (iv) contractual agreements between users and ISPs. It concludes that the various layers of Indian law create an atmosphere that is intensely hostile to the withholding of such information by ISPs and intermediaries. Despite this, the author submits that there remains scope for optimism.

PDF – IP Addresses and Expeditious Disclosure of Identity in India – Prashant Iyengar

 

Renewable Energy and the WTO: The Limits of Government Intervention - James J. Nedumpara

This paper examines the role of the government in designing and supporting renewable energy programs and the compatibility of such interventions with various covered agreements of the World Trade Organisation (‘WTO’). The WTO treaty does not provide a special framework for renewable energy and a number of programs are susceptible to WTO challenges and domestic trade contingency measures. Of particular interest to developing countries such as India will be the availability of necessary policy space in fostering various renewable energy programs. This paper discusses the current treaty provisions of the WTO, especially the Agreement on Subsidies and Countervailing Measures (‘SCM Agreement’) and the Agreement on Trade Related Investment Measures (‘TRIMs Agreement’) and examines the extent of space in policy making available to various WTO Members across varying levels of development. In short, the paper seeks to examine the limits of WTO-consistent government intervention in the field of renewable energy.

PDF – Renewable Energy and the WTO: The Limits of Government Intervention – James J. Nedumpara

 

Is The National Pharmaceutical Policy, 2012 Really Cheering The Pharma? - Dipika Jain*

The National Pharmaceutical Policy was approved by the Cabinet and notified in 2012. Based on this policy, a new Drugs Price Control Order was notified in May, 2013. As a result, several drugs will come within the ambit of price control under the National list of Essential Medicines (NLEM). The primary purpose of NLEM is to facilitate the rational use of medicines which will allow for cost effective, safe and drugs with efficacy. This paper critically evaluates the provision on exclusion of patented drugs in the recent National Pharmaceutical Policy, 2012 from the Drug Pricing Policy for five years. The policy states “Drugs patented under the Indian Patents Act, 1970 and which have been made as a result of indigenous products or process have been exempted from price control for a period of five years.” Further, a formulation involving a new delivery system developed through indigenous R&D would be eligible for exemption from price control for a period of five years from the date of its market approval in India. While this exclusion may have been designed keeping the opportunity for innovation for pharmaceutical companies, however, given the critical situation of HIV/AIDSs medication, cancer drugs, tuberculosis etc., it is pertinent to have these drugs under price control well before the prescribed period of five years. This paper argues that this provision of the NLEM, 2012 contravenes the main objective of this policy and in turn violates the Constitutional right to life and health of millions of people who need these patented lifesaving drugs, especially the people living with HIV/AIDS (PHLAs).

PDF – Is The National Pharmaceutical Policy, 2012 Really Cheering The Pharma? – Dipika Jain*

 

Book Review: Overlapping Intellectual Property Rights, Neil Wilkof and Shamnad Basheer (eds.) - V. Lakshmi Kumaran

The book Overlapping Intellectual Property Rights, edited by Neil Wilkof and Shamnad Basheer, seeks to give answers to these issues or,at least, offers comprehensive insight into the issues and stakes and is therefore an invaluable addition to the existing literature on Intellectual Property Law. The legal context given to these questions of overlap is from the perspective of US and English law with inferences drawn from the EU as well. Although, it may seem as a limitation, it only provides for uniformity in the analysis and readers have, at their disposal, what can be described as comprehensive chart at the end of the book that contains snippets on the overlapping IPR regimes in 17 countries. The size of the five hundred page book does not do justice to the spectacular labour of several authors that has gone into creation of this work which has a vast reach in terms of number of fields and jurisdictions. A perusal of the “list of contributors’ would show that the authors of different chapters are from diverse background such as leading universities, research institutes, and prominent law firms from different parts of the world such as USA, UK, Singapore, Australia, India, Belgium etc. This lets the reader have a wider perspective over the underlying theme.

PDF – Book Review: Overlapping Intellectual Property Rights, Neil Wilkof and Shamnad Basheer (eds.) – V. Lakshmi Kumaran

Environmental Protection in Outer Space: Where we Stand and what is Needed to Make Progress With Regard to The Problem of Space Debris - Stephan Hobe

This paper provides a brief survey of current space law and its applicability to the problem of space debris. Starting from the definition of space debris, it asks what makes space debris a problem and thus a legal concern. Finally, it assesses the current space law framework with regard to legal rights and obligations to take preventive measures that address the risks posed by space debris; and the legal consequences in case such a risk materializes.

PDF – Environmental Protection in Outer Space: Where we Stand and what is Needed to Make Progress With Regard to The Problem of Space Debris – Stephan Hobe

 

The Spectre Of Spectrum: Public Interest Questions Around Spectrum Management In India - Danish Sheikh*

Public interest in spectrum allocation is not restricted to matters of access, but includes often ignored concerns regarding freedom of speech and expression. Drawing upon the history of media infrastructure cases in India, the author seeks to identify parallels between past cases involving infrastructure for newspapers and broadcasting media, and the present situation with spectrum being licensed for use by mobile service providers. The author also examines the public trust doctrine and its applicability keeping in mind that spectrum may be classified as a natural resource. Differing from the school of thought that believes the market must determine allocation of this natural resource, the author submits that a positioning of spectrum as commons rather than private property, buttressed by the use of open-access technology, is closer to the ideal use of spectrum for the public interest.

PDF – The Spectre Of Spectrum: Public Interest Questions Around Spectrum Management In India – Danish Sheikh*

 

Transfer Of Technology In India: Interface Of Iprs And Competition Policy - Anil B. Suraj

Economic growth is increasingly being defined by the ability of a nation to provide an affirmative framework for marketing innovations. The role of the legal system, particularly that of IPRs and the Competition principles, in achieving this framework is extremely significant. In this regard, the author attempts to capture select challenges of multilateral relevance that require to be discussed to suitably enrich the Indian legal context.

PDF – Transfer Of Technology In India: Interface Of Iprs And Competition Policy – Anil B. Suraj

Limitations and Exceptions in The Digital Era - William Patry

Ideological polarization has hijacked copyright debates, drowning out the question: how do we get our copyright laws to do what we want them to do? The term “limitations and exceptions” assumes that the ability to control all unauthorized uses is the norm. This special comment asserts that private rights should never trump public interest, and that our copyright laws must reflect this principle. Copyright law must be grounded in current technological and market conditions in order to accomplish its lofty objectives. Even as changes wrought by digital technology are at the core of most debates over copyright, there is a failure to grasp the profundity of these changes and the challenges they pose. We need dynamic laws in order to encourage creativity on the internet. Properly structured copyright laws would enable desirable behaviour in a world that technology is changing faster than ever before. It is argued that guiding principles such as fair use should be the bases for adjudication and not statutory straitjackets, as is already the case in legal regimes supporting the most advanced technology sectors, in India and the U.S.A. Though legislative and judicial understandings are not always at par in their level of progression, even judicial interpretation in light of broad principles as opposed to a closed list is a step in the right direction because we need transformative laws to regulate the transformative world we live in.

PDF – Limitations and Exceptions in The Digital Era – William Patry

 

Bias in Search Results?: Diagnosis and Response - Benjamin Edelman

The author explores allegations of search engine bias, including understanding a search engine’s incentives to bias results, identifying possible forms of bias, and evaluating methods of verifying whether bias in fact occurs. He then considers possible legal and policy responses, and assesses search engines’ likely defences. He concludes that regulatory intervention is justified in light of the importance of search engines in referring users to all manner of other sites, and in light of striking market concentration among search engines.

PDF – Bias in Search Results?: Diagnosis and Response – Benjamin Edelman

 

Rethinking Online Intermediary Liability: In Search Of The 'Baby Bear' Approach - Gavin Sutter

This paper examines various national approaches to the regulation of online content. Its particular focus is on the treatment and liability of the intermediary service provider in the context of data provided by third parties. It does this through a survey of the issues involved in the provision of unacceptable content, basing on this even its assessment of why the intermediary should have an appropriate role in the first place. It then moves on to how content can be regulated at this point. The argument this paper makes is that a case-specific approach offers probably the optimum solution, being not too liberal, absolving intermediaries of all responsibility while not being overtly stringent either, thereby overburdening the intermediary. This analysis is contextualised in an exposition on the value of the legal right to the freedom of expression

PDF – Rethinking Online Intermediary Liability: In Search Of The ‘Baby Bear’ Approach – Gavin Sutter

 

Fair Dealing of Computer Programs in India - Rahul Matthan & Nikhil Narendran

This essay analyses the amendments to the Copyright Act introduced in 1994 that dealt with fair dealing provisions for computer programs. The authors identify fair dealing as a user right rather than a defense right on the basis of judicial decisions on the point. They discuss the statutory exceptions to copyright for the purposes for which the program was supplied and to achieve inter-operability of a program. The authors also discuss the restrictions upon such fair dealing provisions, such as their accrual only to the lawful possessor of the program and their use solely for the purpose of achieving the purpose of supplying the program. The exceptions provided for research purposes and for making copies for non-commercial use fulfil the need for greater public access to programs and dissemination of such programs to achieve the utilitarian aim of public benefit, rather than merely seeking to vest rights in the copyright holder, despite the resistance of the industry to such methods. The authors conclude that any attempts by a company to enforce its rights to the program by creating stricter license terms to exclude the statutory exceptions for fair dealing ought to be punished under the Act.

PDF – Fair Dealing of Computer Programs in India – Rahul Matthan & Nikhil Narendran

 

New Crimes Under The Information Technology (Amendment) Act - Amlan Mohanty*

This essay analyses the amendments to the Copyright Act introduced in 1994 that dealt with fair dealing provisions for computer programs. The authors identify fair dealing as a user right rather than a defense right on the basis of judicial decisions on the point. They discuss the statutory exceptions to copyright for the purposes for which the program was supplied and to achieve inter-operability of a program. The authors also discuss the restrictions upon such fair dealing provisions, such as their accrual only to the lawful possessor of the program and their use solely for the purpose of achieving the purpose of supplying the program. The exceptions provided for research purposes and for making copies for non-commercial use fulfil the need for greater public access to programs and dissemination of such programs to achieve the utilitarian aim of public benefit, rather than merely seeking to vest rights in the copyright holder, despite the resistance of the industry to such methods. The authors conclude that any attempts by a company to enforce its rights to the program by creating stricter license terms to exclude the statutory exceptions for fair dealing ought to be punished under the Act.

PDF – New Crimes Under The Information Technology (Amendment) Act – Amlan Mohanty*

 

Book Review: Indian Patent Law and Practice, Kalyan C. Kankanala, Arun K. Narasani and Vinita Radhakrishnan (OUP, 2010) - Feroz Ali Khader

Jurisdictional Issues in Cyberspace. - Justice S. Muralidhar

With the advent of the internet and the transmission of information and transacting of business across borders, a host of issues have cropped up onthe legal front. This article proposes to deal with only one such major issue – that of jurisdiction of the courts to deal with intellectual property rights (IPR) disputes arising out of commercial transactions on the internet. Within the fairly broad field of IPR, the focus will be on trademark disputes, as that is one area where the major developments have taken place.

PDF – Jurisdictional Issues in Cyberspace. – Justice S. Muralidhar

 

Balancing Online Privacy in India - Apar Gupta

There have been disturbing press reports and articles on the Information Technology (Amendment) Act, 2008.

These accounts broadly wallow about the increase inthe police powers of the state. They contend that the amendment grants legal sanction to online surveillance inexorably whittling down internet privacy. This article seeks to examine this prevalent notion. It discovers that legal provisions for online surveillance, monitoring and identification of data have been inserted in a narrow and defined class of circumstances governed by tenuous procedures. At first glance it may seem that these procedures and safeguards by themselves increase the right to privacy. However, on a deeper study it is revealed that they are found wanting due to the nature of internet communications. The article takes a comprehensive look at the state of online privacy in India arising out of the Information Technology Act, 2000.

PDF – Balancing Online Privacy in India – Apar Gupta

 

Policy-Making, Technology & Privacy in India - Subhajit Basu

There is a preconceived assumption that privacy laws in India are notoriously weak. This unquestioned assumption is based on a paradigm that does not take into consideration that the conception of privacy in India is influenced by its ‘culture of trust.’ Unfortunately, rather than looking into the specific societal, political and economic factors triggering the controversy, privacy researchers in the West have constantly varied the meaning and extent of the ‘right to privacy’ to bolster their argument. This article offers an explanation for why ‘umbrella’ data privacy legislation similar to the E.U. Data Protection Directive should not be enacted by India. This article further evaluates the argument that one’s private sphere is subjective and depends on one’s culture, environment and economic condition.

PDF – Policy-Making, Technology & Privacy in India – Subhajit Basu

 

Sui Generis Protection for Plant Varieties & Traditional Knowledge in Biodiversity & Agriculture: The International Framework and National Approaches in The Philippines and India - Christoph Antons

The so-called ‘biotechnology clause’ of Article 27.3(b) of the WTO-TRIPS Agreement requires from member states protection for plant varieties either via the patent system or via an ‘effective sui generis system’ or by a combination of the two. Many developing countries prefer forms of sui generis protection, which allow them to include exceptions and protection measures for traditional agricultural practices and the traditional knowledge of farmers and local communities. However, ‘traditional knowledge’ remains a vaguely defined term. Its extension to biodiversity has brought a diffusion of the previously clearer link between protected subject matter, intellectual property and potential beneficiaries. The Philippine legislation attempts a ‘bottom-up’ approach focusing on the holistic perceptions of indigenous communities, whereas national economic interests thus far receive priority in India’s more centralist approach. Administrative decentralisation, recognition of customary rights, disclosure requirements, registers of landraces and geographical indications are discussed as additional measures, but their implementation is equally challenging. The article concludes that many of the concepts remain contested and that governments have to balance the new commercial incentives with the biodiversity considerations that led to their introduction, so that the system can be made sufficiently attractive for both knowledge holders and potential users of the knowledge.

PDF – Sui Generis Protection for Plant Varieties & Traditional Knowledge in Biodiversity & Agriculture: The International Framework and National Approaches in The Philippines and India – Christoph Antons

 

Beyond Copyright: Possible Solutions to an Internet Governance Regime - Meera Jayakumar & Hemangini Dadwal

A long time ago, a brilliant example of man’s scientific vision came to light with Charles Darwin’s Theory of Natural Selection. Herbert Spencer added clarity to the implications of this theory through the term ‘the survival of the fittest.’ Charles Darwin propounded that only those organisms will be fit to survive which can adapt to changing environments, i.e., only the most resilient will prevail. Almost a century and a half later, this theory is incredibly relevant to cyberspace also. For, what other phrase would better describe the insignificant withering away of copyright regulations for data spread over the internet? There has been much debate over the general proposal that IP law should be re-designed to suit the climate of cyberspace. However, in this paper, we propose that the very premise of IP law in general, and copyright in particular, as it stands on its own, is redundant for the regulation of the internet. Consequently, we propose two regulatory solutions that can complement the present copyright law regime through improved control over access to data spread over the internet, viz., the Creative Commons approach and the Tier Model for internet regulation.

PDF – Beyond Copyright: Possible Solutions to an Internet Governance Regime – Meera Jayakumar & Hemangini Dadwal

 

Book Review: Cyber Laws, Justice Yatindra Singh (Universal Law Publishing Co., 2010) - Prof. Ashwani Kumar Bansal

The book ‘Cyber Laws’, by Justice Yatindra Singh, a sitting judge of Allahabad High Court, has been published by Universal Law Publishing Co. and is now in its fourth edition. The book is a comprehensive guide to the various legal issues which have arisen as a result of the unprecedented growth of the internet. It covers both academic and practical information regarding technology related issues and the underlying legal principles which have been applied in these areas. Part I of the book has 146 pages of commentary and Part II contains relevant Acts, rules, notifications, circulars, etc. in 276 pages. The book provides an overview of the cyber law scenario in India. The material is well researched and clearly described in thirteen concise chapters.

PDF – Book Review: Cyber Laws, Justice Yatindra Singh (Universal Law Publishing Co., 2010) – Prof. Ashwani Kumar Bansal

The Fundamental Problem of Regulating Technology - Hon. Justice Michael Kirby AC CMG

Scientific breakthroughs and the ceaseless pace of technological innovation touch a diverse range of subject matter, with the most profound changes often proving to be the most controversial. Recent decades have seen the fields of biotechnology and information technology raise the most attention, with the deliberations of lawmakers and courts being increasingly focused on issues brought up by innovation within these fields. Though seemingly disparate and autonomous, given the wide range of issues brought up by the different facets of contemporary technological innovation, the author in this special comment presents how one can take an overview of the subject of regulating technology vis-à-vis the law. Drawing inferences from his experiences with such issues during a law reform and judicial career spanning several decades, the author argues that there are interconnected paradoxes, and also general lessons, that regulators, particularly judges filling in for gaps left over by the legislature, must keep in mind when dealing with the subject of regulating technology.

PDF – The Fundamental Problem of Regulating Technology – Hon. Justice Michael Kirby AC CMG

 

The Melting of Patent Law - Eben Moglen

In this special comment, the author posits that the patent system as it stands is archaic and oppressive, and has neither intellectual nor moral support. Having veered away from its original goals, by virtue of the change in the technological and functional basis of government, it instead serves as a justification for inequalities of wealth distribution. The author argues that substantial reform is required that would shift the balance in patent law from monopolistic greed to public interest, paving the way for access to knowledge.

PDF – The Melting of Patent Law – Eben Moglen

 

Open Documents and Democracy: A Political Basis for Open Document Standards - Laura DeNardis and Eric Tam

Modern information society depends upon an enormous variety of electronic devices in order to function on a day-to-day basis. Information and communication technology (ICT) devices are able to exchange information only if they adhere to common communication protocols, technical interfaces, and information formats. ICT standards are the blueprints enabling users to access, create, and exchange information regardless of their hardware or software choices. Increasingly, governments are establishing policies to use ICT products based on standards that adhere to principles of openness and interoperability. Academic analyses of open standards policies usually address economic and technical concerns. But technological design is also political. Technologies both embody values and, once developed, have political consequences. Rationales for government procurement policies based on principles of openness and interoperability should not be viewed exclusively through an economic or a technical lens, but through the prism of the principles that provide democratic governments with their legitimacy.

The overarching conclusion of the authors, emanating from both the theoretical and descriptive portions of this paper, suggests that movements toward open standards, particularly in the context of electronic public documents, are highly beneficial for citizens who value democratic principles.

PDF – Open Documents and Democracy: A Political Basis for Open Document Standards – Laura DeNardis and Eric Tam

 

Fake Facts: An Incredulous Look at Piracy Statistics in India - Prashant Iyengar

The author of the paper looks at how the expression ‘piracy’ has acquired traits due to the manner in which news has been reported, and also the manner in which ‘piracy statistics’ have defined the boundaries of their context by perpetuating an image of value-neutrality while revealing little other than the quantity of ‘pirates’. By examining newspaper reports, he notes the manner in which the losses in the music and video industries are portrayed, and the estimations of the same which are sometimes downright fictitious, but nonetheless accepted by the press. Accounts of piracy in the press have changed though, with stories of linear losses that focussed on illegality giving way to accounts addressing the issue in terms of affordability and access. However, the truth is still nebulous as most cases are heard with the defendant ex parte, spawning an assumptive methodology of arriving at figures. This situation has the effect of a simple distrust amongst laypeople of the logic of spectacular losses claimed, but also a heightened sense of emergency among official circles.

The overarching conclusion of the authors, emanating from both the theoretical and descriptive portions of this paper, suggests that movements toward open standards, particularly in the context of electronic public documents, are highly beneficial for citizens who value democratic principles.

PDF – Fake Facts: An Incredulous Look at Piracy Statistics in India – Prashant Iyengar

Data Protection Efforts in India: Blind Leading The Blind? - Latha R. Nair

This paper, after establishing the need for effective data protection in India, goes on to describe the rudimentary measures taken in the country till date in the sphere of data protection. While highlighting the inadequacy of such measures and the ambiguity in proposed amendments, the author seeks inspiration from European Union law in proposing a broad framework for data protection law in India.

PDF – Data Protection Efforts in India: Blind Leading The Blind? – Latha R. Nair

 

Book Review- Thomas Schultz, Information Technology and Arbitration - A Practitioner’s Guide s Guide, Kluwer Law International, 2006, Paperback- Promod Nair

The last decade has seen the legal world engage with IT in a way never seen before, and although the use of IT in arbitration is still in its infancy, one can sense a perceptible shift of momentum in this regard. Three of the world’s leading arbitral institutions, namely the International Court of Arbitration of the ICC, the AAA, and the Arbitration and Mediation Centre of the WIPO have in the last couple of years focussed on increasing the efficiency of arbitral procedures with IT solutions. Without over-egging the pudding, it would be safe to say it appears inevitable that the emergence and development of IT tools for dispute resolution will radically change the conduct of commercial arbitration in the near future. In this context, a work addressing the manner in which IT solutions can enhance the quality of arbitration proceedings, is of huge relevance to the arbitration practitioner. Thomas Schultz, the author of two previous books on information technology in dispute resolution, seeks to address a number of issues concerning the interface between IT and arbitral processes in Information Technology and Arbitration: • The arguments in favour of greater reliance on IT in arbitration; • The various forms of IT that are available and suitable for use in arbitration, as also the manner in which they could, or are, being used in arbitral proceedings. • The main concerns relating to the use of IT in arbitration – the security and efficiency of reliance on IT solutions, and their implications for the procedural rights of the parties; and • The institutionalisation of IT in arbitration by their incorporation in arbitration agreements and procedural orders.

PDF – Book Review- Thomas Schultz, Information Technology and Arbitration – A Practitioner’s Guide s Guide, Kluwer Law International, 2006, Paperback- Promod Nair

 

Of Square Pegs And Round Holes: Towards A New Paradigm Of Database Protection - Deepu Jacob Thomas* & Prasan Dhar

This article looks at the question of the applicability of copyright law to the protection of databases. It features a detailed discussion of the EU Database Directive, which is the only comparable legal framework for the protection of databases. It then discusses some problems that the EU Directive encounters vis-à-vis public interest concerns, and outline why the EU Directive is unable to strike the right balance, both in principle and in practice. Next, it briefly studies database protection law as it exists in the United States, Australia, Canada and finally India, following which the need for protection of databases in India is assessed. Finally, a basic alternative framework for the legal protection of databases is proposed, seeking to balance the interests of database generators and those of the public at large. The authors argue that databases should be protected with reference to principles of the law of unfair competition, which recognizes that a balance needs to be struck between the interests of owners and the public. The authors also suggest the registration of databases with a governmental authority (similar to the trademark registration process) so as to properly delineate the scope of commercial exploitation that the database owner intends. Further, an argument is made for compulsory licensing provisions.

PDF – Of Square Pegs And Round Holes: Towards A New Paradigm Of Database Protection – Deepu Jacob Thomas* & Prasan Dhar

 

Saving the Internet - Jonathan Zittrain

The famed Warner Bros. Cartoon antagonist Wile E. Coyote demonstrates a fundamental principle of cartoon physics. He runs off the cliff unaware of its ledge, and continues without falling. The Coyote defies gravity until he looks down and sees that there is nothing under him. His mental gears whirr as he contemplates his predicament. Then: splat! The Internet and the PC are following a similar trajectory. They were designed by people who share the same love of amateur tinkering as the Coyote, and who dealt with problems only as they arose – or left them to individual users to deal with. This “procrastination principle”, together with a design premised on contributions from anyone who cared to pitch in, have caused the Internet and PC to emerge from the realms of researchers and hobbyists, and to win out over far more carefully planned and funded networks and information appliances. The runaway successes of the Internet and PC with the mainstream public have put them in positions of significant stress and danger. Though the Internet’s lack of centralized structure makes it difficult to assess the sturdiness of its foundations, there are strong signals that our network and computers are subject to abuse in ways that have become deeper and more prevalent as their popularity has grown. The core boon and bane of the combined Internet and PC is its generativity: its accessibility to people all over the world – people without particular credentials or wealth or connections – who can use and share the technologies’ power for various ends, many of which are unanticipated or, if anticipated, would never have been thought to be valuable. The openness that has catapulted these systems and their evolving uses to prominence has also made them vulnerable. We face a crisis in PC and network security, and it is not merely technical in nature. It is grounded in something far more fundamental : the double-edged ability of members of the public to choose what code they run, which in turn determines what they can see, do and contribute online. Poor choices about what code to run – and the consequences of running it – could cause Internet users to ask to be saved from themselves. One model to tempt them is found in today’s “tethered appliances.” These devices, unlike PCs, cannot be readily changed by their owners, or by anyone the owners might know, yet they can be reprogrammed in an instant by their vendors or service providers (think of TiVo, cell phones, iPods, and PDAs). As Steve Jobs said when introducing the Apple iPhone earlier this year, “We define everything that is on the phone. You don’t want your phone to be like a PC, the last thing you want is to have loaded three apps on your phone, and then you go to make a call and it doesn’t work anymore. These are more like iPods then they are like computers.” If enough internet users begin to prefer PCs and other devices designed along the locked down lines of tethered appliances, that change will tip the balance in a long standing tug of war from a generative system open to dramatic change to a more stable, less interesting system that locks in the status quo. Some parties to debates over control of the Internet will embrace this shift. Those who wish to monitor and block network content, often for legitimate and even noble ends, will see novel chances for control that have so far eluded them. To firms with business models that depend on attracting and communicating easily with customers online, the rise of tethered appliances is a threat. It means that a new gatekeeper is in a position to demand tribute before customers and vendors can connect – a discriminating “2” inside “B2C.”

PDF – Saving the Internet – Jonathan Zittrain

It Outsourcing and Global Sourcing: A Comparative Approach From The Indian, U.K. And German Legal Perspectives - Ulrich Bäumer, Mark Webber and Sonal Basu

Businesses today have been able to take advantage of technology in order to use models such as offshoring in order to reduce their costs without a corresponding decline in quality. However, concerns such as data confidentiality and security issues have emphasised the need for businesses to take considerable care when dealing with crossborder transactions, especially since some knowledge of the needs of different jurisdictions is necessary. This article examines the outsourcing model in the context of the information technology industry and looks at the most important clauses and legal issues in such contracts in the light of Indian, English and German law.

PDF – It Outsourcing and Global Sourcing: A Comparative Approach From The Indian, U.K. And German Legal Perspectives – Ulrich Bäumer, Mark Webber and Sonal Basu

 

A Collective Rights Society for the Digital Age - John Maloney

Variations in digital copyright law in the international sphere have created unnecessary transaction costs to both consumers and producers who wish to transfer digital media efficiently. This article argues that the international community should create a collective rights organisation to bring uniformity, fairness, and efficiency to the process of transferring digital media and endeavours to construct the ideal model for such a collective rights organisation by describing a hypothetical collective rights organisation named PICRO (Possible International Collective Rights Organisation) and examining its operation using the example of digital music distribution. By illustrating the PICRO model in the light of current trends in international digital copyright law, the article aims to highlight the advantages of the proposed new system while underscoring the inherent weaknesses of having different digital copyright laws for different territories.

PDF – A Collective Rights Society for the Digital Age – John Maloney

 

Licensing Information Assets in the New Economy: A Pro-Rights Perspective - Raymond T. Nimmer

Transactions in the twenty-first century are no longer restricted to just transactions of goods. The digital age has brought with it a boom in transactions in information, and licensing of information assets is often seen as the best way to permit and control the use of the information in question by mutual agreement. However, given the rapidity of technological advances and the corresponding changes in the nature of licensing transactions, an economy is not best served by a static legal system that continues to treat information licensing in the same manner as a hire, rent or lease of goods. This article therefore examines the nature of licences as well as the market and legal rationales behind licensing in an effort to depict the impact of these transactions and the importance of having dynamic legal systems enforcing and protecting them.

PDF – Licensing Information Assets in the New Economy: A Pro-Rights Perspective – Raymond T. Nimmer

 

Data Exclusivity with regard to Clinical Data - Animesh Sharma

Intellectual property rights have evolved over the years with the intention of protecting novelty and innovation of ideas while creating a competitive market, at both a local and global level. The strongest tools to achieve this end have arguably been patents protecting inventions that are novel, non-obvious and demonstrate utility. Most countries give a protection term of twenty years from the date of filing a valid submission. In the field of pharmaceuticals, foods and agrochemicals, marketing of products requires statutory clearances from the appropriate national regulatory bodies, in order to ensure that the products satisfy certain minimum criteria of quality and safety. Generating such data generally involves elaborate experimentation, trials in various phases, chemical analysis, and an estimation of the impact on the environment, all of which are time-consuming and expensive processes. Thus the intellectual property right of data exclusivity becomes important, as it involves the question of whether these processes, once completed, can be taken advantage of by other applicants. This paper analyses the concept of data exclusivity, studying article 39 of TRIPS, and addresses the question of whether data exclusivity laws should be introduced in India.

PDF – Data Exclusivity with regard to Clinical Data – Animesh Sharma

Patentability Under TRIPS: The Need For Uniformity - Donald S. Chisum

International intellectual property law has never been uncontroversial, and patent law in particular has been the subject of heated debate. The advent of TRIPS seems to have fuelled rather than ended these discussions, as arguments continue to rage on in developing countries about the subject-matter and patent term provisions of TRIPS and the ways in which developed countries have purportedly used TRIPS to impose their own laws on the world. However, such an approach misses the point of TRIPS altogether: the need for international harmonisation. By examining two recent examples from US case law, it becomes apparent that the developed nations need harmonisation as much as the developing nations do, and thus the focus should be on facilitating full harmonisation rather than impeding it through challenging specific provisions.

PDF – Patentability Under TRIPS: The Need For Uniformity – Donald S. Chisum

Property Rights In Cyberspace Games And Other Novel Legal Issues In Virtual Property – Peter Brown & Richard Raysman

A major challenge faced by the law as it struggles to keep up with advances in technology is the surprising rate at which it canters along, throwing up new varieties of disputes, new types of transactions and even new types of property. This note examines the concept of virtual property and the problems that may arise from it in the specific context of cyberspace games, as well as the ways in which such problems have been dealt with by the law in the past and how they may be better dealt with in the future. It also discusses the existing debate over the need for legal regulation of virtual property and endeavours to see if the provisions of Indian law are sufficient to deal with cases such as these.

PDF – Property Rights In Cyberspace Games And Other Novel Legal Issues In Virtual Property – Peter Brown & Richard Raysman

 

Intellectual Property Rights and the Public Domain in the New World Order - John Frow

The proprietary system of intellectual property rights introduced by the TRIPS regime is premised on Western, neo-liberal notions of the nature of property. This article first highlights a number of recent changes in the global organisation of intellectual property rights. These changes indicate the international convergence of intellectual property law. The repercussions of the TRIPS regime on pharmaceuticals, agriculture, and genetic research are then examined. Finally, it stresses the importance of the idea of “common heritage” as a better way of thinking about the public domain.

PDF – Intellectual Property Rights and the Public Domain in the New World Order – John Frow

Access To Medicines, Of The Doha Declaration On Public Health, And Developing Countries In International Treaty Negotiations – Daya Shanker.

Paragraph 6 of the Doha Declaration on Public Health, dealing with access to medicines for countries lacking the manufacturing capacity for them, became an important issue because its solution on 3oth August 2003 on the basis of the Note of the Chairman of the TRIPS Council was perceived as changing the basic features of the TRIPS Agreement. This was the subject of much debate, and a number of proposals from different countries were submitted either individually or collectively. However, the proposals from developing countries did not find their way into Paragraph 6, and the problem of developing countries not being able to make their voices heard in international negotiations is the focus of this article. By discussing the circumstances of the Paragraph Solution and the ways in which the interests of the developed countries were prioritised over the interests of developing countries, this article attempts to find ways in which the negotiating process may be made more transparent in future so as to accommodate all interests more fairly.

PDF – Access To Medicines, Of The Doha Declaration On Public Health, And Developing Countries In International Treaty Negotiations – Daya Shanker

 

Outsourcing In India: Practical Approaches To Intellectual Property Issues From The Indian Company Perspective - Wilburn L. Chesser* & Steven A. Cohen

International outsourcing transactions by their very nature require some understanding of the laws in multiple jurisdictions on a variety of subjects, including contract law and intellectual property rights law. Such an understanding becomes especially difficult if the systems of law are very different from each other, but it is required nonetheless to ensure that both parties are fully aware of the best ways to avoid liability and maximise their own benefits from the transactions. This article takes the familiar example of US companies outsourcing to India and discusses what the Indian company should be aware of in the context of the intellectual property issues involved, as well as the tactics it can use to maximise the market.

PDF – Outsourcing In India: Practical Approaches To Intellectual Property Issues From The Indian Company Perspective – Wilburn L. Chesser* & Steven A. Cohen

Indias' Tryst with TRIPS - The Patents (Amendment) Act, 2005. - Shamnad Basheer

The Patents (Amendment) Act, 2005 introduces pharmaceutical product patents in India for the first time. This Act attempts to balance out competing interests of a variety of stakeholders, including domestic generic medicine producers, foreign multinational pharmaceutical companies and civil society groups concerned with access to medicines. Although this dexterous manoeuvring around competing interests deserves praise, the net result of such a compromise has been a lack of clarity in the law. While highlighting the key aspects of the 2005 amendments and this lack of clarity, this article also focuses on the vexed issue of the likely impact of the new regime on access to medicines. It notes that the provisions as they stand now could be interpreted in a manner that would leave considerable scope for the continued production of some generics. Whether these provisions would be so interpreted remains to be seen.

PDF – Indias’ Tryst with TRIPS – The Patents (Amendment) Act, 2005. – Shamnad Basheer

 

Technology, Law, Freedom, & Development - Yochai Benkler

Technology interacts with social, economic and legal frameworks to set the basic ‘affordances’ and constraints of human action over time. While biotechnology and nanotechnology may portend significant upheavals in the future, the most significant present transformation revolves around computers and the emergence of the networked information economy. These new technological and economic conditions are creating new forms of production and new forms of social behaviour that are fundamentally altering the way we know the world, how we learn about how the world is and how we can make it become. It is important that we study this transformation and understand it in political as well as economic terms. How we manage the transition – in particular how we construct the basic institutions governing it, such as intellectual property and communications law – will go to the very structure of freedom and the possibility of human development in the coming decades.

PDF – Technology, Law, Freedom, & Development – Yochai Benkler

VoIP: The Future Of Telephony Is Now If Regulation Doesn’t Get In The Way – Burt A Braverman

VoIP is an innovative new form of telephony that can dramatically enhance both the efficiency and functionality of telephone service to businesses and individuals around the globe. Regulators worldwide are now faced with the choice of whether to impose inapt, antiquated monopoly-based telecom regulations on VoIP or to exercise regulatory restraint and allow this dynamic communications medium to flourish. This article examines some of the technical aspects of VoIP, and considers why this new technology is rapidly gaining popularity in both industrialised and developing nations alike. The article also analyses the changes in the regulatory environment in the United States, including major rulings by the Federal Communications Commission and federal courts that have occurred in the wake of VoIP’s rise in popularity and cross-platform acceptance. Finally, the article looks at some of the issues that regulators in other countries, including India, must address as the legal framework relevant to VoIP continues to evolve.

 

Intellectual Property and India's Development Policy - Sudhir Krishnaswamy

As India wades into the 21st century, we are faced with a strategic choice about how we imagine and institutionalise new modes of regulation of access, control and production of information, knowledge and cultural resources. The rapid legislative activity on intellectual property, most recently the Patent (Amendment) Act, 2005, has so radically shifted the goalposts of the debate that we are still to catch our breath! This essay is an exercise in deep breathing and careful reasoning to relieve us from our present breathless state. Let us begin with Garrett Hardin’s contestable prognosis on the ‘tragedy of the commons’ which has grounded recent debate on intellectual property policy. Operating from his premise, we can agree that the ideal regulatory framework for public goods is one that maximises access and use of these goods while ensuring the sustainable preservation and regeneration of the resource. We may then deploy this ecological metaphor of the commons to set up a benchmark against which we assess the relative merits of regulatory strategies which respond to analytically identical problems with information, knowledge and cultural resources. Let us name the two facets of this regulatory benchmark the ‘access maximising’ and ‘sustainable production’ imperatives. Having got this far, the rest of this essay seeks to identify the best regulatory strategy as one that responds adequately to both these strategies simultaneously.

PDF – Intellectual Property and India’s Development Policy – Sudhir Krishnaswamy

 

Copyright, Cultural Production and Open Content Licensing - Lawrence Liang

This article seeks to introduce the complex world of open-content licences against the backdrop of the massive expansion of copyright in recent years and the increasing threat posed by copyright licences to the world of cultural production. The world of open content has been inspired by the free software movement and hence this article begins with an overview of the conceptual challenges posed to copyright by free software movement. It then moves into an analysis of the ways in which the terms of free software may be understood for the purposes of cultural production and what such a translation may entail. We then go through a brief survey of the history of open content licences and discuss a few routes through which we may read licences not only as legal documents but also as cultural documents.

PDF – Copyright, Cultural Production and Open Content Licensing – Lawrence Liang

 

A Foreign Outlook on Satyam Infoway Ltd. v. Siffynet Solutions Pvt. Ltd. - Cédric Manara

The first dispute over a domain name occurred in 1993, over the name mtv.com. Since then, there have been innumerous rulings all around the world made under national laws or under the Uniform Domain Name Dispute Resolution Policy. The online publication of many of these decisions has led to an interesting phenomenon, viz.the citation of foreign precedents in briefs, and consequently foreign rulings influencing courts that are dealing with a dispute over a domain name for the first time. The creation of the UDRP is in itself a kind of synthesis of diverse and multinational legal approaches to the resolution of disputes between trademark-holders and domain name-owners. UDRP practice has also helped lawyers and courts to define common criteria borrowed from this policy, to determine if a domain name registration is abusive or not. Even after ten years of domain name disputes all over the world, there have been very few rulings by supreme courts and all of them are recent. There have been decisions in Austria, , Germany and France, but interestingly, there has not yet been a single Supreme Court order in the United States of America, where the Internet was born, its law developed and where the earliest domain name disputes were fought. The scarcity of authoritative decisions regarding domain names means that the judgment of the Supreme Court of India in Satyam Infoway Ltd.v. Siffynet Solutions Pvt. Ltd. is of significant interest.

PDF – A Foreign Outlook on Satyam Infoway Ltd. v. Siffynet Solutions Pvt. Ltd. – Cédric Manara