India: Influential Voices Back “IP-unencumbered” Software; Copyright Debate Heats Up 05/09/2006 by Frederick Noronha for Intellectual Property Watch Leave a Comment Share this:Click to share on Twitter (Opens in new window)Click to share on LinkedIn (Opens in new window)Click to share on Facebook (Opens in new window)Click to email this to a friend (Opens in new window)Click to print (Opens in new window)By Frederick Noronha for Intellectual Property Watch NEW DELHI – For a judge, Yatindra Singh of India’s Allahabad high court is surprisingly outspoken. For a member of the bench, he is also amazingly tech-savvy. And as he talks technology, or explains to an Indian businessman how free software, unencumbered by intellectual property, can get support from the communities it builds, this 54-year-old is getting noticed as probably the country’s most tech-focused member of the judiciary. For some, this could be bad news: his judgement is clearly against the “proprietary” software that the Indian government overall tends to favour for a complex set of reasons. Singh, wearing a suit, talks about his “brother judges” – a form of address left behind here by the British. He mentions how his colleagues were reluctant to switch to the GNU/Linux free software platform, when he first suggested it. But then he talks about the viruses that hit their computers after the court got a broadband link. The other Allahabad high court judges switched. “They are all my biggest fans now [on the computing front],” he said. As he shares a dinner with techies at a plush Delhi hotel during a 24-26 August conference, the judge discusses copyright and trade secret issues. Does Microsoft, he wonders, really claim copyright protection in India, when it hasn’t disclosed its code to the authorities here? Or is it claiming protection under ‘trade secrets’? Judge Singh reflects a nascent interest in this issue among a wider circuit in India that goes beyond tech-savvy youngsters. It runs deep in certain professional sectors of this country that hope to achieve an influential position in the global software market. In an Indian context that mostly takes on a conveniently ambiguous position in the proprietary versus free/libre and open source software (FLOSS) debate, there are other voices which back the alternate – or pro-FLOSS – perspective. Indian President Dr. A.P.J. Abdul Kalam, a nuclear scientist in his earlier career, has spoken out in favour of open source software, to the delight of some young techies who prefer this computer operating system. One of the speakers at the invite-only Red Hat (India)-Indian Institute of Technology conference entitled “Owning the Future: Ideas and their role in the digital age” was V. Ponraj. Ponraj is director (Technology Initiatives) of the Office of the President of India, and stressed the role played by open source in his office. In this campaign for alternatives in the software world, there is also a diverse range of others who have played a role. Some backing FLOSS software are doctors, former navy personnel and professionals of various backgrounds. India’s Mixed View of Intellectual Property India has mixed feelings about how its intellectual property laws get shaped. Government officials speaking at the New Delhi meet dropped hints of this. Business lobbies sometimes see these intellectual property as potentially beneficial, but activists at the grassroots level often view these as a surrender of local control or the potential to share knowledge. In early 2005, when it was feared that software patents could be implemented in India, the father of the free software movement, Richard Stallman, sounded alarm bells from the United States. Local campaigners of the Free Software Foundation (India) took up the issue. By December 2005, FSF-India announced that Minister for Commerce and Industries Kamal Nath had “assured that the Indian government is committed to its position of not allowing software patenting for the time being and that it would reiterate this stand in the [December 2005] meeting of WTO ministerial at Hong Kong.” Nath did highlight the issue there. FSF-India quoted the minister as saying that “copyright provides reasonable protection for the software industry.” But at the same they quoted the minister saying there was a strong demand from sections of the Indian IT industry to allow the patenting of software in conjunction with hardware. Hence there was a perceived need to reconcile differing views on intellectual property. FSF India then decided to interact with industries, particularly small and medium industries, “to highlight the harmful effects of generic software patenting and also in order to understand the needs of the industry.” Legal Ambiguity on Software Patents in India Patents have a long, if odd, history in India. India’s first Patent Act was Act No. VI of 1856. It was an Act for granting exclusive privilege to inventors. It received the assent of the Governor General on February 24, 1856. India’s intellectual property is governed by these Acts: The Biological Diversity Act 2002 The Copyright Act, 1957 The Design Act 2000 The Geographical Indications of Goods (Registration and Protection) Act 1999 The Patents Act 1970. The Protection of Plant Varieties and Farmers’ Rights Act 2001 The Semiconductor Integrated Circuit Layout Design Act 2000 The Trade Marks Act 1999 IP also is dealt with under trade secret laws and the Indian Contract Act. But, history tells that this Act was repealed by Act No. IX of 1857, on the grounds that it was passed without the previous sanction of The Queen. This is the reason indicated in the preamble of Act No. 15 of 1859, passed by the Legislative Council of India which felt “it is expedient, for the encouragement of inventors of new manufacturers that certain exclusive privileges in their inventions should be granted to them in India.” This was a time of much change in India, when the British Crown took over the ruling of this large region from a private firm called the East India Company. But the situation has changed a lot since then. Section 3 of the Indian Patents Act explains that computer software is not covered as “inventions”. There was a lot of lobbying done to prevent software from being included, including by FSF-India. Section 3 of the Act specifically lists what are not inventions and cannot be patented. Section 3(k) says that mathematical or business methods, computer software “per se,” or algorithms are not considered to be inventions. But there’s a catch here. The word “computer programme” is modified by the word “per se.” This implies that, standing alone, software or a computer programme would not be patentable, but that a computer programme not standing alone could be patented. Those against the idea of software patents fear this leaves room for doubt. “The courts may interpret it in the same manner as the Europeans are doing, or could go all the way as is being done in the US,” said Judge Singh. “Of course, its finer boundaries will be determined when the courts actually interpret these words.” Failure to Disclose Source Code in Patent Applications Justice Singh himself points out that patent applications – where allowed – currently contain merely a flow chart but not the source code. Generally, in all spheres, patents are granted in exchange for a full description of the invention and how to work it. “If the source code is not disclosed, then the question that comes up is whether there is full disclosure. These questions need to be addressed judicially,” he said. In seminars across the country, the judge makes his concerns heard. In Delhi, it was lawyers who tuned in to him. Earlier, he spoke to students of prestigious law colleges. Judge Singh makes out a case that information technology and cyberspace also pose “new projects in jurisprudence.” And he is prominent enough for his words to carry weight. India has high courts in almost all of its 28 federal states, and these are subordinate only to the federal Supreme Court, the apex court of the country. India’s IP Policy India’s policy on free software or open source is confused at best, some say. Indian companies, who take pride in their growing software attainments globally but are still small players on a global scale, would themselves like to benefit from the IP-payoffs they see coming. Bigger corporations have a bigger reach and are also able to “convince” government officials and politicians, as against the rag-tag band of techies and campaigners trying to do the same job. Nonetheless, recently the south Indian state of Kerala made history when it “logged out Microsoft,” as the media put it, by opting for free software in 12,500 schools. A 2006 study called “Access to Knowledge: Copyright as a Barrier to Accessing Books, Journals and Teaching Material” by the Consumers’ International Asia-Pacific office in Malaysia, looked at India’s copyright and some other IP laws, apart from those of a number of countries. The study noted that India’s Copyright Act (last amended by Act No. 49 of 1999) came into force from 15 January, 2000. India is also signatory to the Berne Convention (Articles 1 to 21, 6 May, 1984; and Articles 22 to 38, 10 January, 1975) and the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights or TRIPS (1 January, 1995). The study had a dozen recommendations for India to take care of its national interests while staying within the parameters of the international law. These recommendations include that India should be explicit about the idea-expression dichotomy (by inserting a provision to expressly exclude all ideas, procedures, methods of operation and mathematical concepts from copyright protection); counter anti-competitive practices more strongly; allow better exceptions for teaching purposes; expressly allow all ways of making quotations, not just reproduction; exclude official texts from copyright protection; and limit the duration of copyright protection to more reasonable terms in the case of literary, dramatic, musical, photographic and applied art works. Proposed Changes to Copyright Law Force Debate In July 2006, India moved to significantly amend the 1957 Copyright Act to possibly include, among other things, the concept of digital rights management. This is a move which campaigners believe will restrict access to knowledge. Digital rights management (DRM) involves technologies used by publishers to control access to digital data like software, music, movies, apart from hardware. Much-debated abroad, DRM advocates back the idea as necessary to allow rights holders to exercise their rights, prevent revenue loss due to illegal duplication of their copyrighted works, and enable more effective market segmentation. But DRM critics say the term is a misnomer, since it involves “digital restrictions.” Such mechanisms, they suggest in the global debate, allow the enforcement of any restrictions desired by the publishers, regardless of whether those restrictions actually correspond to the publisher’s legal rights. Critics also say that transferring control of the use of media from consumers to a consolidated media industry will lead to a loss of existing user rights and stifle innovation in software and cultural productions. India’s Copyright Office has attempted to be transparent about the amendment process. It has displaying proposed amendments via its website (www.copyright.gov.in), and sought suggestions. At the New Delhi conference, officials acknowledged that a large proportion of suggestions came in from groups critiquing India’s position on copyrights, like the Bangalore-based Alternative Law Forum, which campaigns for “an alternative practice of law” that responds to social and economic injustice. “It is important to note that India is under no legal obligation to introduce some of the proposed amendments including DRM,” lawyers of the Bangalore-based Alternative Law Forum commented earlier. Government Urged to Consider Flexibilities in IP Law ALF added, “It is important for the government to recognize and rely on flexibilities of the Berne Convention and the TRIPS agreement, which enable access to knowledge and information, by ensuring easy access to copyrighted materials in respect of educational, private or general use, and via any media or form.” ALF’s Lawrence Liang, a Bangalore-based lawyer, noted in an awareness-building campaign conducted via the Internet and e-mail, that the other proposed changes apart from DRM included amendments on version recordings, and new provisions to enable access for people with visual disability. Proposed changes to the law also would apply to the scope of media coverage of other media reports, as well as public events like lectures. Lawrence Liang together with other lawyers-researchers Nirmita Narasimhan and Achal Prabhala said there also are other provisions which are “problematic in their current form and have not been addressed.” Things they see as needing change include the laws on parallel import of cultural and knowledge goods, and the currently limited scope of works under compulsory licensing for translations. Liang and his group also pointed to the extended copyright term of works which in most cases exceeds the minimum specified in the Berne and TRIPs agreements; unreasonable limitations on fair dealing in education; the limited scope of work considered to be of the government for the purposes of exception and access; and the lack of a system to recognise non-written licenses. “The present amendment seeks to promote greater access to knowledge and information for persons with any sensory disabilities,” Liang said in a recent statement. “This is a welcome move, especially if enacted with a thorough review of the details of the need, and the enabling provision.” He argued that another very important section is the one that enables the making of version recordings in India. “This provision has extensively enhanced the Indian music landscape. It has led to a transformation in the distribution and creation of cultural goods,” Liang argued. For instance, in the early 1980s, as audio cassettes proliferated, a number of small companies were able to use Section 52(1)(j) to produce and sell vast numbers of so-called version recordings in under-served languages and genres. It is also the section that has resulted in the remix culture that India has witnessed in the past few years. But, Liang said, the proposed change in the law could “significantly increases the costs and administrative burdens of making a version record.” The stakes are high, the approaches are diverse. Which road will India take? 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