Ghajini vs Fudgini: Whither Originality?

We bring you a guest post from Nikhil Krishnamurthy, a leading Indian copyright lawyer and someone who's already blogged with us earlier. He comments on a recent Bollywood movie, Ghajini that appears to be raking in the moolah, and more noteably, has been in the news in relation to a copyright infringement claim against it before both the Madras and the Mumbai High Courts.

The claims in both these suits are not entirely clear to me. Are these related suits (the Mumbai and Chennai ones) or are they separate? Is the Mumbai suit a copyright infringement claim or just one for breach of contract? Sample these paragraphs from this news item:

"Justice P.R. Shivakumar of the same court had Tuesday stayed the Hindi film’s release after A. Chandrasekaran, the producer of the original Tamil film of the same name, filed a suit alleging that the producers of the Hindi remake had “fabricated documents to claim ownership over the remake rights”.

Earlier in the day, Justice S.B. Karnik of the Bombay High Court said the film can be released as scheduled but also asked director A.R. Murugadoss to file an affidavit Friday clearing his stand.

Mumbai firm KBC Pictures in its complaint said Murugadoss had signed an agreement with it in 2004 for re-making the hit Tamil film in Hindi. Thus, the company claimed, the Hindi film was in violation of their contract."

Can any of our readers more familiar with this case enlighten us on these intricacies?

If it is indeed a copyright claim, it is rather paradoxical that the Tamil producer very conveniently forgot that he had copied the same theme from Memento, a Hollywood movie. Pot not only calling the kettle black but dragging it all the way to court to demonstrate that it is indeed black!

To place this issue within the larger framework of copyright issues pertaining to Bollywood generally, please see this article here.

GHAJINI or FUDGINI: WHITHER ORIGINALITY ?
By Nikhil Krishnamurthy

With a population of over one billion people, it always surprises me that some film-makers seem incapable of original thought.

My post this week is occasioned by the recent rumblings about the similarities between the Aamir Khan starrer Ghajini and Christopher Nolan’s movie Memento starring Guy Pearce.

The last time I can remember such a discussion about lifting film plots is when the Salman Khan starrer Partner was compared with Hitch, starring Will Smith and Eva Mendes.

It seems to me that when people are defending the subsequent editions they are unaware of what our Supreme Court stated as far back as thirty years ago in the case of R. G. Anand v. Delux Films, (1978) 4 SCC 118.

For the sake of clarity, let me reproduce, verbatim, the rules that the Supreme Court laid out in that decision.

“52. Thus, on a careful consideration and elucidation of the various authorities and the case law on the subject discussed above, the following propositions emerge:

1. There can be no copyright in an idea, subject matter, themes, plots or historical or legendary facts and violation of the copyright in such cases is confined to the form, manner and arrangement and expression of the idea by the author of the copyright work.

2. Where the same idea is being developed in a different manner, it is manifest that the source being common, similarities are bound to occur. In such a case the courts should determine whether or not the similarities are on fundamental or substantial aspects of the mode of expression adopted in the copyrighted work. If the defendant's work is nothing but a literal imitation of the copyrighted work with some variations here and there it would amount to violation of the copyright. In other words, in order to be actionable the copy must be a substantial and material one which at once leads to the conclusion that the defendant is guilty of an act of piracy.

3. One of the surest and the safest test[s] to determine whether or not there has been a violation of copyright is to see if the reader, spectator or the viewer after having read or seen both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original.

4. Where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work, no question of violation of copyright arises.

5. Where however apart from the similarities appearing in the two works there are also material and broad dissimilarities which negative the intention to copy the original and the coincidences appearing in the two works are clearly incidental no infringement of the copyright comes into existence.

6. As a violation of copyright amounts to an act of piracy it must be proved by clear and cogent evidence after applying the various tests laid down by the case law discussed above.

7. Where however the question is of the violation of the copyright of stage play by a film producer or a Director the task of the plaintiff becomes more difficult to prove piracy. It is manifest that unlike a stage play a film has a much broader prospective, a wider field and a bigger background where the defendants can by introducing a variety of incidents give a colour and complexion different from the manner in which the copyrighted work has expressed the idea. Even so, if the viewer after seeing the film gets a totality of impression that the film is by and large a copy of the original play, violation of the copyright may be said to be proved.”
[Emphasis mine]

I saw Memento for the second time yesterday, to refresh my memory. If one wants an excellent summary of the plot, see here, provided you don’t mind spoilers.

Now I haven’t seen Ghajini, (and nor am I keen to, as most times I have tried to watch a Bollywood movie in the recent past, I have been sorely disappointed) and so cannot comment on whether it is a copy of Memento. The last disaster I tried watching was Drona, and the one before that, Partner, purely out of curiosity to see how closely the plot followed Hitch.

Before that I watched a class act called Awaara Pagal Deewana starring Akshay Kumar. Maybe people aren’t aware, but there is a ten minute frame-to-frame rip-off of a famous fight scene in the Matrix when Neo and Trinity go to rescue Morpheus from a building. I am not joking – please watch it for yourselves. You will think they cut that bit directly from the Matrix and pasted it into the film. Oh, and I forgot to mention, the impression I got after watching the movie, was that it was lifted straight from The Whole Nine Yards (with a lot of unnecessary embellishment in the form of song and dance sequences, etc.).

Bheja Fry is supposed to be a remake of Diner de Cons, le (The Dinner Game). I haven’t seen either so won’t pass judgment, but do note that this appears to be the “general” impression. [Remember what the Supreme Court said.]

I have to say at this juncture that I don’t hate Bollywood. I have seen and been entertained by excellent Bollywood fare in the past. I watched Rock On recently and was pleasantly surprised. Nothing over the top, excellent performances by all the actors, realistic, all in all, a well made film. Most importantly, it was original. What I hate is when I start to watch a film and it turns out to be a poorly made copy of some other film. If you’re going to copy something then at least do it right. [Note: this is NOT legal advice.]

The counter argument I get is that Hollywood does the same, so why can’t Bollywood ? A common example cited is Martin Scorcese’s The Departed, a really fabulous movie in my opinion. I had seen the Hong Kong film Infernal Affairs some years before The Departed was released and had no doubt in my mind that The Departed was an adaptation. [Incidentally I thought Infernal Affairs was even better.] But before one accuses Martin Scorcese of plagiarism, being the well-known Director he is, I think one must pause for a moment and ask whether it is possible that he had acquired the rights to make an English adaptation of Infernal Affairs from the original right-owner. At least one website seems to indicate that the rights had been purchased by Hollywood.

Can we say this with certainty for Awaara Pagal Deewana or Partner ?

What is the impression one gets after seeing both films, if one has seen the previous Hollywood films ?

Is not the addition of song and dance sequences and some random characters with some random side stories just mere surplusage intended only to puff up the film, which when stripped bare of all extraneous matter, is a cinematographic reproduction or adaptation of the original script.
By the rules laid down by the Supreme Court above, will this not amount to an infringement even under Indian law ?

Some films go a step further and are an amalgamation of scenes, situations and plot lines lifted from various different foreign movies. If one is interested in seeing a very comprehensive list of Bollywood films that are supposed to be rip-offs of foreign films, see here. That has got to be the most comprehensive list I have seen in this context.

Memento was released in the year 2000, when digital cameras were not as ubiquitous as they are now. The protagonist in that film suffers from anterograde amnesia and his memory lasts only for 15 minutes, after which he forgets everything that has happened. He is trying to find and kill his wife’s murderer and due to the fact that he has a very short span of memory, depends on tattoos, notes and photographs taken with a Polaroid (tm) camera in order to remind him and keep him focused on his goal.

In Ghajini, the situation appears to be the same except that the protagonist is trying to find and kill his girlfriend’s killer. In fact, though the movie has been released at the end of 2008, when even every other cell-phone has a fairly decent digital camera, Aamir Khan insists on taking photos with a Polaroid (tm) camera as a memory aid. Why can’t he use a digital camera ? Was this film set in 2000 ? Earlier ? Does the hero have a fetish for Polaroid (tm) snaps ? Who can say ?

Another interesting thing is Aamir’s interview where he insists that Ghajini is not a copy of Memento. He states in a couple of places that A. R. Murugadoss had “heard” of Memento but wrote the script even before he actually “saw” Memento.

It is curious then that the script-writer chose the Polaroid (tm) camera as an aide-mémoire when digital cameras were widely available even in 2005 when the Tamil version was released. What is also interesting is that the protagonists in both films have tattoos on the same place on their respective chests to remind them that their respective wife/ lover was killed. Murugadoss must be psychic !

What’s more, it appears that the producer of the Tamil version of Ghajini sued the producer of the Hindi film claiming copyright infringement (!) and successfully obtained an interim injunction before the release of the Hindi version ! It appears that the injunction was lifted and the Hindi movie has now made it to the big screens. This just gets better and better.

Interestingly, the following URL contains a similar analysis of all the similarities of the Tamil Ghajini with the original Memento, not unlike the way the Supreme Court performed its analysis in R. G. Anand’s case. See for yourself. I must warn readers that this site is rather acerbic in its criticism so watch out. Reading this, it would appear that Murugadoss actually saw and copied elements of Memento before he “wrote” his “original” script – the coincidences seem too many, even for a psychic. Would that make the Hindi Ghajini an adaptation of an adaptation ?

Let me stress again what the Supreme Court stated –
(i) If the defendant's work is nothing but a literal imitation of the copyrighted work with some variations here and there it would amount to violation of the copyright.

(ii) One of the surest and the safest test[s] to determine whether or not there has been a violation of copyright is to see if the reader, spectator or the viewer after having read or seen both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original.

(iii) If the viewer after seeing the film gets a totality of impression that the film is by and large a copy of the original play, violation of the copyright may be said to be proved.

It seems to me that the three-Judge Bench of the Supreme Court laid much emphasis on the viewers’ impressions to determine a copyright violation. In that case, public opinion has to count for something. Perhaps, and in order to be objective, SpicyIP should start a market survey to determine if one movie is a copy/ adaptation of another. Maybe Ghajini is a good place to start, and the reader can familiarise himself with the rules of the Supreme Court in this regard. Maybe a poll can be started with respect to other movies as well, both past and future (see the URL mentioned above for a list of movies to dissect).

Again, I haven’t seen Ghajini so I cannot state my impression. It is entirely possible that the two movies are different and that, as Aamir maintains, Ghajini is “inspired” by Memento. What I cannot understand is why details in both films are seemingly identical in many respects. This brings me back to my point about having original thought. I think Bollywood has proved time and time again that it can produce the best of them without outside help. So why copy ?

Informal Innovators: Any Good Hearted Patent Attorneys?

Given an earlier post on "Informal Innovation", I thought it quite fitting to share with you an email that I'd received from an "informal" innovator.

"Dear Sir,
Basically I am very small business man doing business related to septic tank installation work in Dehradun (Uttrakhand). I innovated a new idea, where the efficiency of septic tank can be enhanced. I contacted to National Innovation Foundation (NIF) to help me to get patent of my invention but they told that they only can help grass root innovators and I do not fall in their category. Can you please help or refer me to people that might help me with drafting the patent?"

Regards
P K Gupta
107 - Kanwali, Near Bharat Petroleum
Dehradun (Uttrakhand) - India.
09897227026, 9319946287.
Email: info[at]bindaltech.org"

Unfortunately, I have no great experience with patent drafting. Are there any good-hearted patent attorneys out there who are willing to help this person? Not exactly "pro bono" but for an "affordable" fee? And only after you've verified that he is indeed deserving of your highly subsidised fee schedule? If so, will you please write to him at (info[at]bindaltech.org) or call him at the numbers above and help him out.

And if possible, please do copy me (shamnad[at]gmail.com) on your emails to him....just so that I can create a list of "good hearted" patent attorneys for future reference:) Thanks very much.

I also had a query for our readers in the "know". Do the current bar council rules etc prevent Indian attorneys from taking a share of the invention (i.e that X% of royalties, if the invention is successfully commercialised). Would this fall within the ambit of the rule that prohibits "contingency" fee lawyering i.e. that fees cannot be based on whether or not the case is succesful. The reason I ask is: if the rules do permit this, it could serve as a good incentive for many patent attorneys to take up drafting on behalf of poor inventors who cannot afford to pay their fees. Provided of course that they think the invention is worthy of commercialisation.

A related question: Are Indian patent attorneys (that are not other registered as lawyers with the Bar Council) subject to Bar Counil rules, the Advocates Act etc? If not, can they stake a claim in the invention and partake in the royalties? If "yes", then, this might serve as an incentive for them to draft for free on behalf of poor inventors? And we could engender more participation of poor "informal" inventors in our rather "formal" patent system? And thereby bring about more social justice?

Creating ‘Informal’ IP Norms

In an earlier post, I touched on something called "Informal IP Norms". I have attempted to flesh this out a bit more in this Mint editorial. Much more needs to be done in this regard-- and this is just a tentative thought. As always, I greatly welcome your comments/insights/critiques on this theme.

(Image from here)

Creating ‘Informal’ IP Norms

Current intellectual property (IP) regimes are excessively formalistic in their orientation. Not too surprising, given that their creation and sustenance has largely been the preserve of lawyers trained in formal legal thought, with little input from other disciplines such as science, sociology or economics.

One watches with deep anguish as such regimes take on a life of their own, forgetting the simple yet hard truth that they are not ends unto themselves, but are mere means to help serve a greater end, i.e., fostering more innovation and creativity. In other words, patents are valuable to us only to the extent that they help engender more innovations for society.

Not only are IP rules excessively formalistic in their orientation, they also cater largely to what one might term as the “formal” economy. In other words, there is an assumption that innovation is the sole prerogative of a lone inventor who does her research within the closed walls of a formalistic entity that we call the “corporation”. Similarly, copyright norms are premised on the assumption that content creation is the preserve of artists and writers who tie up with big media giants and publishing houses.

A close look at the nature of our economy today, characterized by Web 2.0 and the vast social/ collaborative networks built on it leads one to seriously question the above assumptions.

Illustratively, the open-source movement has opened our eyes to the fact that an informal network of programmers can bring us highly innovative and free software products of a kind never thought possible under a proprietary model where coding was controlled by a single corporation and products placed on the market at monopoly prices. Such collaborative/democratic/user innovation models are now being attempted in other technology areas such as biotechnology and pharmaceuticals. And they are bound to succeed, given that innovation is not a formal or linear process directed by a lone inventor, but a social process involving a multitude of different actors.

Indeed, India’s very own Council of Scientific and Industrial Research (CSIR) is now attempting to leverage an online collaborative model to come up with a new drug for tuberculosis (TB). That the gold standard for TB is a drug from the 1960s and that we haven’t had any major breakthroughs since then leads one to seriously question the current IP model around drug innovation; a model that brings us fewer innovative drugs each year and more me-too versions.

In the context of copyright law, the rise of user-generated content has thrown archaic copyright norms into serious question. Content is being created and posted on social forums such as Facebook and YouTube at a pace that might soon rival the speed of light. Similarly, content is shared between millions of users through several online platforms such as BitTorrent and LimeWire.

In the specific context of India, where almost 90% of the economy comprises the “informal sector”, the above truths hold even greater sway. The National Innovation Foundation, run out of IIM Ahmedabad, has compiled more than 50,000 innovations belonging to the rural “informal” poor and virtually demolished the assumption that innovation is the preserve of the rich and the “formal”. But merely identifying such innovative potential in India’s villages, often referred to by Mahatma Gandhi as the “real India”, is not good enough. One has to do more in terms of coming up with norms that help these poor communities leverage their creativity.

Newer IP regimes in India, such as the protection of geographical indications and plant varieties, throw the relevance of “informal communities” into sharper focus, dealing as they do with communities of farmers and artisans. Similarly, as India moves to devise norms for protecting and leveraging its ancient “traditional” and indigenous knowledge, it will again have to cater predominantly to informal communities that live on the fringes of the existing IP regime.

This regime, largely a Western heritage gifted to us by our colonial masters, and further entrenched with the help of an inequitable international instrument called TRIPS, is very “individualistic” in tone and focuses specifically on identifiable inventors and authors. This sits in sharp contrast with the “community” focus in India, where things like traditional medicinal knowledge and folklore have no clearly identifiable authors or inventors, but have been preserved by indigenous communities over hundreds of years.

Let me end this note by highlighting a paradox that characterizes IP regimes. Since their inception, most such regimes have been fairly static in their orientation, and have failed to reflect any “innovation” and “creativity”, the very same values sought to be encouraged by such regimes.

India has demonstrated its potential for innovative IP norms by articulating section 3(d) in its patent regime, a section that helps balance pharmaceutical patent protection with the need to preserve access. Given the importance of our informal economy, can we take this opportunity to innovate within this space as well by conceptualizing a set of “informal” IP norms?

Drawing the line between Copyrights and Designs

A recent decision of a Division Bench of the Delhi High Court, Rajesh Masrani v. Tahliani Design presents an opportunity to highlight certain issues arising from the interaction between copyright and design protection.

The facts:

The Plaintiff, a private limited company under the “creative leadership” of fashion designer Tarun Tahliani, had alleged that the drawings which it made in the course of developing garments and accessories were artistic works under Section 2 (c) (i) of the Copyright Act. The patterns printed and embroidered on the fabric were also alleged to be artistic works in their own right, as were the garments finally designed. Further, the plaintiff had alleged infringement of copyright in these various artistic works, and a Single Judge had issued an interim injunction in its favour.

The defendant-appellant raised several arguments in appeal, and at least two of them merit deeper consideration. The first was that the garments and drawings were not ‘artistic works’ for the purposes of copyright protection; and the second was that in any case, the drawings were required to be registered as designs under Section 15 (2) of the Copyright Act.

The 15 (2) argument:

The latter argument can be dealt with very first. This is what Section 15 (2) says:

Copyright in any design, which is capable of being registered under the Designs Act, 1911 (2 of 1911), but which has not been so registered, shall cease as soon as any article to which the design has been applied has been reproduced more than fifty times by an industrial process by the owner of the copyright or, with his licence, by any other person.

For this provision to be applicable, it is essential that the work in question is (a) capable of being registered as a design under the 1911 Act, (b) has not been so registered and (c) the article to which the design has been applied has been reproduced more than 50 times. The plaintiff had contended that condition (c) was not met as the drawings/designs/garments were made exclusively for particular customers and had not been reproduced over 50 times.

The ‘Artistic works’ argument:

This leaves us to consider the prior question of whether the works were “artistic works” such that they could claim to be within the purview of copyright protection. In arguing that the work produced by the plaintiff company was not capable of being the subject-matter of copyright protection, the appellant placed heavy reliance on the decision in Microfibres v. Girdhar. In that decision, the Court had stated:

62. What cannot be lost sight of is the very object with which such arrangements or works had been made. The object is to put them to industrial use. An industrial process has to be done to apply the work or configuration to the textile. It is not something which has to be framed and put on the wall or would have any utility by itself. The two important aspects are the object with which it is made (which is industrial) and its inability to stand by itself as a piece of art. (Emphasis added)

Relying on this paragraph, the appellant argued that the drawings and patters created by the plaintiff company were made with the object of putting them to commercial use. Thus, even if less than fifty copies were being made, the works in question were still being used for an industrial object. The drawings and patterns had no independent existence separate from the final garments, and they could be applied on to the garments only through an industrial process. Therefore, the defendant argued that copyright protection should be denied.

The Court distinguished Microfibres on several grounds.

A. In Microfibres, the work was reproduced more than 50 times.

This fact is sufficient to answer the issue related to Section 15 (2) of the Copyright Act. But the appellant was arguing that because of the nature of or object behind the works, they were incapable of being considered “artistic works” in the first place. As far as that question is concerned, the number of times the work has been reproduced is irrelevant. The question which the Court should have answered was “Is the object behind the creation of a work relevant in deciding whether a work is an artistic work or not?” Had this question been answered explicitly, the Court might have found that the object/intent behind the creation of the work is irrelevant. Alternatively, what the Court might have meant was that the fact that the work was produced less than fifty times was an indication of the fact that the object behind the creation was not ‘industrial’.

In either case, merely distinguishing Microfibres on this ground was insufficient (although not necessarily incorrect) – the Court could perhaps have clarified its reasoning further.

B. In Microfibres, the subject matter of the work in dispute were some floral designs which were applied upon fabric through an industrial process and the plaintiff in that case had registered the subject matter of the work of design in United Kingdom.

From this, the Court drew the conclusion that in Microfibres, the only relevant issue was the one related to Section 15 (2) of the Act. The observations of the Court on that issue could not influence the position of law on whether something could be an artistic work in the first place. However, it is worth noting that the observation in Microfibres reproduced above arose in the context of deciding whether the works qualify as “artistic works” under the Copyright Act.

A few questions:

Importantly, the definition of “design” under the Designs Act, 1911, it is possible for a work to be both an “artistic work” as well as a “design”. This is why the provision in Section 15 deals with copyright in a design capable of being registered under the 1911 Act. The Designs Act, 2000 defines “design” to exclude any “artistic work” under Section 2 (c) of the Copyright Act.

I leave readers with a few policy questions. To what extent should the object behind the creation of a work matter in deciding on what type of IP protection that work is entitled to? Should the test for deciding on the type of protection be solely an objective test – that of only looking at the work in question – or should it allow for subjective elements such as the intent behind the production of that work to be considered? And finally, considering that the 2000 Designs Act excludes “artistic works” from “designs”, how best do we draw the line between the two?

Death of the ‘six year rule’ in Indian patent law jurisprudence

The birth of the rule: In the 1965 case of Manicka Thevar v. Star Ploughs the Madras High Court laid down a rather doubtable proposition of law. In this case the plaintiff had requested the Court to grant it an interim injunction restraining the alleged infringer from infringing on his patent. While deciding the case the Court held that it would not grant an interim injunction in those cases where the patent was a recent one and where its validity had been seriously challenged. The Court proceeded to define a recent patent as one which was not more than 6 years old. It is not too clear why the Court laid down 6 years as the benchmark. The only authority it claimed in support of the ‘6 year rule’ was the English commentary – Terrell on Patents. A noteworthy criticism of this rule has been the fact that it makes no sense to attach a stronger presumption of validity to a patent after 6 years for the mere reason that it has not been challenged for the first 6 years. Such a stance would make it tougher to challenge the patent after the first 6 years. The question of validity of the patent should be dependant only on the facts of the case and not on obscure time factors.
Regardless of the logic or the lack of logic behind the ‘6 year rule’, the fact remains that several judgments, especially Delhi High Court judgments picked up on this rule and applied it in several cases to deny interim injunctions in all those cases of patent infringement where the patent was less than 6 years. Although this 6 years rule has never formed the only basis in law to deny an injunction it was mentioned quite regularly without even pausing to understand or mention the reasons for fixing 6 years as a benchmark.

The possible logic behind the rule: Traditionally even English Courts were reluctant to grant interim injunctions when the patent was relatively new because of the fact that the process to grant a patent was quite complex and more often than not it could be presumed that a patent office would err in the grant of a patent. However this was the situation in England before it introduced post-grant opposition mechanisms. With the introduction of the post-grant opposition mechanism the quality of patents was presumed to have increased since there was now an opportunity to challenge a patent soon as it had been granted. In American Cyanamid Lord Diplock pointed out how the post-grant opposition mechanism had attached to all patents a stronger presumption of validity.

The Delhi High Court adopting the rule: The Delhi High Court however not only borrowed on this rule from Manicka Thevar but also proceeded to hold in the case of N.R.D.C, New Delhi v. The Delhi Cloth and General Mills Co. Ltd. and Ors (1980) that as “a rule of practice that if a patent is a new one, a mere challenge at the Bar would be quite sufficient for a refusal of a temporary injunction”. Amongst other cases this proposition was followed unquestioningly by the Delhi High Court in the Standipick case (2000) and once again in the relatively recent Bilcare (2007) case. It was only in the Roche v. Cipla case (2008) that Justice Bhat of the Delhi High Court finally paused to question the logic of this rule and also express his “bafflement” at this rule. In relevant part he laid down that the 6 year rule “has to be seen as a rule of caution and prudence rather than a rigid, ritualistic formula of mathematical application.”

The death of the rule: Justice Bhat will be happy to know that a couple of judges from the Madras High Court hearing the ‘banana leaf patent’ case shared his ‘bafflement’ at the ‘6 year rule’. The counsel in this case had argued that the '6 year' rule was borrowed by the Manicka Thevar Court from the 1886 RPC 379 - Moss v. Malings case and that the '6 year' rule was fashioned on the basis of the facts of that case which were not relevant to 21st Century India. THe Court seems to have bought this argument because paragraph 66 of the judgment effectively over-ruled the '6 year' rule of Manicka Thevar when it reasoned that the times had changed since the formulation of the 'six year' rule and in these days given the rapid advances of science and technology in the competitive market space, any patented technology would fast lose its relevance in the marketplace. Hence it can be concluded that the Court was of the opinion that the first 6 years were of too much significance in today’s marketplace to deny a patentee his rights for the mere reason that somebody challenged it through revocation proceedings. After all an invention maybe obsolete after 6 years. Hopefully with this judgment the Madras High Court has put to rest this ‘6 year’ rule. The question of validity of a patent should remain purely a question of fact and not a question of age of the patent.

Merry Christmas from SpicyIP: Some Thoughts on the "Grinch"

Dear Readers,

Here's wishing you a merry Christmas and a fabulous New Year ahead. We'll be bringing you some additional features in the New Year--so please stay tuned.

And in the meantime, here's a story that connects up IP and Christmas, and one that I picked up from Manon Ress's posting on the wonderful A2k (Access to knowledge) listserve hosted by KEI.

Of course, the writer misses some of the finer nuances in our exotic IP jurisprudence---for e.g., the domain name "christmas.com" being owned by an unknown Isle of Man entity does not in any way suggest an unfair or small hearted IP regime!

Given our earlier post on an opaque entity that goes by the name of PPL and its propensity to bully folks into buying blanket licenses (particularly during the festive season, when music and wine flow freely), the title "How the Grich Stole Christmas" in the story below could not have been more apt. Unless of course, some of our establishments decide to stand up and fight them. Anyway, enjoy the story...

Who Owns Christmas?

William Pentland, 12.10.08, 11:20 AM EST

'Tis the season for intellectual property lawyers.

In late November, Louisville, Ky., abruptly abandoned plans for a Christmas display based on the story "How the Grinch Stole Christmas."

It wasn't because of public uproar, or the big green meanie terrifying small children. No, it was the cease-and-desist letter from lawyers representing the estate of legendary children's author Dr. Seuss, threatening to sue for copyright infringement if the city went ahead with the Grinch-themed display.

"It appears these lawyers' hearts are two sizes too small," Louisville Mayor Jerry Abramson told reporters at the time.

Same thing happened in Medford, Mass. The town narrowly escaped a copyright infringement suit for a Christmas celebration called "Jingle Bells Festival." Medford officials agreed to rename the festival next year after Black Crow Media, a company based in Valdosta, Ga., filed a lawsuit alleging infringement.

So be warned. Christmas may be a lot of things, but it's also a boon for lawyers, as owners of some of your most beloved holiday traditions defend their intellectual property rights from all comers.

Santa Claus is a case in point. Father Christmas, a British company and owner of Santa-Claus.com, owns a trademark for "Santa Claus." Trademark experts say that "Santa Claus" has become part of the public domain and that the trademark probably would not pass muster in a legal challenge. But apparently, the U.S. Patent and Trade Office didn't agree. In 2000, it added the "Santa Claus" trademark to the long list of approved holiday-themed, legally recognized trademarks, which include everything from "Santa's Elf" clothing to "St. Nick's" beer to "Santa Claws" pet apparel.

Domain names are also a holiday legal hot spot. GlobalAccess, an obscure company located on the equally obscure Isle of Man, has owned Christmas.com since 1994. Versimedia, which also owns GreetingCards.com, has owned Hanukkah.com since 1997. P. Gordon, owner of Getaway.com and UnitedStates.com, owns Holidays.com.

And those pictures of your kids with the mall Santa? You may own the print, but not the image itself. That belongs to the individual or institution that took the photograph. Unless you shot the photograph with your own camera, making copies of a print is illegal. Unfortunately, most people only discover this when an unlucky clerk at Kinko's or Wal-Mart refuses to create a copy without permission from the copyright owner.

Even asking for presents is in legal limbo. Much to the chagrin of computer-savvy children everywhere, a company in Florida called Channel Intelligence says it owns the rights to digital wish lists. Last week, it filed a lawsuit against half a dozen Internet start-ups alleging patent infringement, saying they had violated the patent by creating ways for users to create wish lists for products that people may want others to buy for them.

For Arthur Rankin Jr., creator of Claymation TV classics like Rudolph the Red-Nosed Reindeer, Frosty the Snowman and The Year Without a Santa Claus, it's all become a bit much.

"If I had written the Grinch story, I would let the people in Louisville use it," says Rankin. "These days it can seem more like the Grinch who stole Hollywood sometimes."

Rankin is trying to recover more than $2 million in royalties from Warner Bros., which he says failed to pay him contractual fees for broadcasting the holiday specials. Warner Bros. declined to comment on the case.

PPL and X'mas Collections: Transparency and the Right to Information

Tis' Christmas time-- the time for the Santas of copyright law to come riding on "non transparent" sleighs and to knock on the doors of unsuspecting hotels and bar owners. Not with gifts, but with threats of law suits.

Yes, dear readers: tis PPL (Phonographic Performance Limited) that I speak of. The very same entity, whose non transparent and high handed functioning resulted in an earlier guest post.

And why do I mention them again today? Its not that I don't trust the memory of our perceptive readers, some of whom have hauled us up poor bloggers for inconsistent statements made in our enthusiastic and rather immature posts several years back. But in the light of my conversations today with a doleful hotel owner, who complained against PPL's high handed and rather inequitable methods of music tax collection, I thought it fit to sensitize our readers once more to the fact that when PPL comes knocking on your door, please do not get intimidated. Rather, demand more information from them--remember that ours is a democracy, with accountability and transparency enshrined as bedrock principles (well, at least normatively)

Begin with asking them a fairly simple question. Under what authority are they collecting moneys for the playing (public performance) of songs in your hotel, bar or other establishment? Ask them to produce proof of their right to collect in respect of the music that you normally play in your establishment. In other words, make a list of music that you normally play/perform (say, in the last month or so) and ask them to specify the ones in respect of which they own the right to collect. Also ask them to make available copies of agreements to prove that the songs concerned belong to copyright owners (record labels) who are members of PPL.

In short, it is your right to know under what authority they levy this extra tax on you. Recall from our previous post that PPL has the right to collect moneys for the public performance of certain sound recordings in bars or other establishments. But if and only if, they have been granted this right by the copyright owner (typically a record label) in the first place.

Once they reveal this information to you, one of three things could happen.:

i) You are satisfied that they have the right to collect on behalf of the record labels (whose music you play) and therefore you willingly pay the required license fees.

ii) You find that only a minor percentage of the music that is normally performed in your establishment belongs to PPL's repertoire . In such an instance, and if you are prepared to fight, you could reject the uniform blanket fee based licensing agreement that PPL shoves in your face. After all, if you play only 2 songs that belong to PPL's repertoire (out of the 50,000 songs that you play that month in total), why should you pay a blanket fee that is the same as some other bar owner who plays about 40,000 of PPL's songs in a single month. If PPL insists on a blanket license here, there is a strong case for an antitrust complaint . As to whether our current MRTP structure is robust enough to sustain such a challenge is a moot issue. But things will change as and when (and that is a long "when") the Competition Act wades through all the political/legal quagmire to finally come into force.

iii) You don't want to pay and you tell PPL to go fly a kite (in French)! But how would you do this, without falling foul of the law? We advocate a slightly risky option, but one that deserves a shot.

You only play songs of American record labels. What--such a restricted collection? Well, not quite, as about 75% of mainstream global music is controlled by the big four record labels--and three such labels, Sony, Warner and Universal Music Group(to the best of my knowledge) are multinational companies headquartered in the US of A! (EMI appears to be headquartered in Great Britain. Although Universal appears to be a fully subsidiary of Vivendi, a French company, it is headquartered in the USA).

And why would playing songs of only American record labels not be a problem? As our earlier post pointed out:

"Our copyright regime is premised on the notion of reciprocity. In other words, if the US copyright act does not provide copyright protection to Indian authors, then we do not need to provide any copyright protection to US authors. Reflecting perhaps the biblical saying: "Do unto others what you would have them do unto you".

There is no copyright protection for the public performance of sound recordings in the US--therefore Indian copyright law need not provide such protection to sound recording companies from the US. Unfortunately, our copyright order which deals with reciprocity does not make this distinction. Since such a distinction is mandated by the parent Copyright Act, the copyright order ought to be amended immediately to rectify this inequity."

In other words, if a bold hotel or bar owner wishes to take on PPL, it ought to play just US record label songs, get sued by PPL and then challenge the vires (constitutionality) of the copyright order. Or it can even challenge the vires of this order without waiting to be sued, which is in fact far more advisable.

Apart from all of the above, we one again call upon the government to take PPL to task for not revealing critical information such as licensing rates etc on their website. Our earlier post stated:

"PPL's website is likely to make even the most ardent nudist blush in terms of how "bare" it really is. It does not even bother spelling out licensing rates--so much for transparency and good governance! Being a society registered under the Indian copyright act, the government must take immediate steps to force PPL to disclose licensing rates and other material particulars that are central to its operations. After all, PPL has been gung ho about going after every establishment that makes the mistake of playing recordings without paying royalties : shouldn't there be a n obligation on them to disclose their rates of licensing and other particulars to the public, so that the public are better informed?"

We need information not just on their rates, but on how royalties collected by PPL are being disbursed. Since PPL's model is that of "blanket licensing" (i.e bar owners etc do not pay per song played but pay depending on how big (in terms of square feet) the establishment is), one wonders as to how they split up royalties between the various copyright owners. I have a nagging suspicion that PPL is merely paying out moneys to the record biggies in India, namely Saregama, Univeral, Sony, EMI and TIPS. The smaller record labels are left high and dry! A suspicion that appears to be strengthening after my conversations with experts in this area.

Further, our earlier post also pointed to the fact that PPL does not appear to have made any disbursements to owners of foreign sound recordings.

A look at PPL's annual reports in 2006-2007 and 2005-2006 shows that the only expenditure in foreign currency made by PPL in both financial years are towards travel (Rs. 7,22,591/- in the year 2005-2006 and Rs. 3,93,025/- in the year 2006-2007: See for example page 24 in the attachment to Form 23ACA -06-07--this can be procured from the Registrar of Companies].

If any of our readers are in a position to understand these documents better and interpret them to indicate whether PPL is making royalty payments to foreign right owners or not, please let us know. On a prima facie reading of these documents (and I am no accounts expert), it would appear that no payments in the nature of royalties to foreign copyright owners have been made. Here again, there are two possibilities:

i) A number of global record labels have subsidiaries in India (Universal, Sony etc). And some of these subsidiaries are PPL members. Perhaps PPL is paying such subsidiaries directly. This however leaves open the question of whether there is any music outside this "subsidiary" repertoire. In particular, we note that PPL appears to have entered into a back to back reciprocal agreement with PPL UK (the collecting society in the UK) in 2005 (information obtained from the 2005 Annual report of PPL UK which contains a photograph of Vipul Pradhan of PPL closing the deal with the PPL UK head). Why have no foreign royalty payments been made to PPL UK, despite the efflux of three years?

ii) PPL collects money but does not bother disbursing to foreign copyright owners. In which case, it needs to be taken to task.

To conclude, SpicyIP sincerely hopes that some of you out there are bold enough to take on PPL and expose their high handed and rather unethical royalty grab strategies in a court of law. This perhaps might be the best way of converting a key statutory collecting society into a transparent and accountable organisation.

So Now You Could Infringe a Patent by Thinking About It

“The Patent System as it stands today has to a considerable extent "just growed", without much reference to fundamental principles, escaping the social planning of men into unexpected byways...”

The profundity of this statement made by Edith Penrose way back in 1951 commenting on the economics of the international patent system is relevant even today, if only with greater vigour. This was not a hoarse-throated cry of some emotionally-charged self-proclaimed self-styled pseudo-intellectual seeking to do away with the system of patents altogether, but a pithy observation from a balanced individual that the system had/has probably been subverted and has outgrown its purpose for which it was originally envisaged. I couldn’t help thinking in these lines while going through the facts of Classen v. Biogen et al in an appellate decision delivered by the US Federal Circuit Court just last week on the 19th.

Parties, Forum and Decision
Plaintiff-Appellant: Classen Immunotherapies Inc.
Defendant-Appellees: Biogen, GSK and Merck
Forum: US Court of Appeals for Federal Circuit
Decision: Appeal Dismissed, Patent Invalidated

Facts of the Case
The plaintiff, Dr.Classen, was granted 3 US patents all of which apparently claimed an inverse relationship between the regular use of an early immunization schedule and the chances or risk of contracting a chronic disease at a later stage in life. The interesting part is that the immunization schedule was already a part of the prior art; the focal point of the so-called “invention” was its prognostication of a secondary benefit of the vaccination schedule in the long run.

The defendants who had been selling vaccines with the said schedule prior to the grant of the patent stood accused of infringement of the patents subsequent to its grant for, according to the patentee, the defendants now sold their medicines taking "undue advantage" of the plaintiff’s “invention”, which is the supposed correlation between vaccination and probability of contracting a chronic disease in the long term. Stated otherwise, the very act of thinking and drawing a conclusion based on the plaintiff’s “invention” amounted to infringement of the patent.

Discussion
Though I haven’t gone through the trial Court judgment, I personally agree with the trial Court’s grant of a summary judgment against the patentee which was affirmed by the Court of Appeals in a near-fitting brief decision of just a paragraph. The Court held thus:

“In light of our decision in In re Bilski, 545 F.3d 943 (Fed. Cir. 2008) (en banc), we affirm the district court’s grant of summary judgment that these claims are invalid under 35 U.S.C. § 101. Dr. Classen’s claims are neither “tied to a particular machine or apparatus” nor do they “transform[] a particular article into a different state or thing.” Bilski, 545 F.3d at 954. Therefore we affirm.”

Once again it’s the US CAFC to the rescue after the USPTO allowed such a preposterous patent. But this judgment too is not without its pitfalls because the Court here has gone on to repeat its stand on the validity of the transformation test which it expounded on in the Bilski case (here I would like a good friend, senior and Frequently Anonymous reader to relate this test to my take on the patentability of softwares); it would be relevant to take note of Judge Rader’s opinion in the Bilski case where though he concurred with his brothers on the final decision, he was of the opinion that the Court could and should have avoided a long-winded discussion on transformation by rejecting the application in that case on the grounds that it claimed an idea and since ideas are “unclaimable”/ineligible subject-matter, no patent could be granted.

The gravamen of the issue which I think is of greater consequence to both the legal and medical community is that the Classen case is the second instance where the Court could have clarified its stance on the legality and wisdom of grant of patents to diagnostic methods. An earlier instance, which I am aware of, is LabCorp v. Metabolite (2006) where the Supreme Court dismissed the case on technical grounds and hence did not address the issue. More importantly, the eligibility of the subject-matter under s.101 was never raised in Labcorp in the Court of Appeals; the arguments were limited to ss.102 and 112 of the US Patent Act and the impugned claim and patent were held valid.

In Labcorp, the plantiff-patentee’s US patent 4940658 claimed an assay for sulfhydryl amino acids and methods for detecting and distinguishing cobalamin and folic acid deficiency. In simple terms, the premise of the patent was this; amino acid-homocysteine is metabolized by cobalamin and folate i.e Vitamin B12 and Folic acid. Presence of higher-than-normal levels of total homocysteine in an assay would indicate cobalamin and folate deficiency. The patent claimed four things: first, a particular assay which was to be used to test levels of vitamin deficiency; second, correlating the level of total homocysteine in the aforementioned assay with vitamin deficiency (this was claim 14), a panel test for finding individual levels of deficiencies of cobalamin and folate (this was claim 18) and finally, a broad claim on correlating the level of homocysteine in no specific assay with vitamin deficiency (claim 13).

The 13th claim (no wonder!) was the disputed claim and naturally so; it reads thus:
A method for detecting a deficiency of cobalamin or folate in warm-blooded animals comprising the steps of:
assaying a body fluid for an elevated level of total homocysteine; and
correlating an elevated level of total homocysteine in said body fluid with a deficiency of cobalamin or folate.

In my opinion, there are quite a few issues involved here:
1.Does the claim covet a scientific principle or does it claim a method of diagnosis?
2.Does a diagnostic method always translate to a principle of nature?
3.Are diagnostic methods eligible subject-matter?

Claim 13 at the end of the day merely relates to discovery for it simply establishes the presence of a correlation between the presence of one thing and its effect on the presence or otherwise of another, both of which exist in nature. Interestingly, this issue was never raised in the Court for the Court was too busy analysing the claim’s compliance with the enablement and description criteria under s.112. As regards the third question, i shall answer it indirectly; though my stand is not that diagnostic methods are patentable in the US, patents on such methods do exist in good number. Having said this, it should also be pointed out that the jurisprudence is not clear-cut and does take a very tortuous route. Also, to answer the question of eligibility would resolve the other two issues as well (or is it the other way round?). Before I elaborate further, I would like to make a few observations.

The Indian Patents Act for all accusations of non-compliance of TRIPS, increasingly seems to be a very sensible one, particularly the definition, rather negative definition of what constitutes an invention under s.3 appears to be useful in the light of the experiences on either sides of the Atlantic. s. 3(i) clearly precludes patent-eligibility of diagnotic methods. (I am sure there are a few, as always, who would call this section an escapist attempt consistent with our “nihilistic karmic philosophy”. The response to such a critique will have to wait for now).

Too often do we find Courts across the board in several jurisdictions taking one of these two extremes- either outmoded and dated perceptions of science and technology as perceived by law hold them back from acknowledging the inventive effort involved in a host of new technologies (software and biotech for instance) or, Courts go out of their way to accommodate new technologies (again software and biotech) in direct contravention with certain fundamental and hence indispensable principles of patent law and jurisprudence without a vision, thereby muddling the scene entirely (the late Justice Shri Anandmoy Bhattacharya in his inmitable style would have called it a “hodge-podge”)

What then is the solution? I must honestly admit that I really have nothing new to offer but for a call for revisiting established views. In what sense, would be the next question. A clear line of distinction between “invention”, “inventive step” and “inventive concept” has to be drawn on the basis of a revaluated standard of what constitute “science” and “technology”. This is critical because the nature, scope, content and subject-matter of a patentee’s right turn on the very definitions of these terms. Not just that, these definitions have implications on other aspects of patent law such as an infringement analysis based on the doctrine of equivalents/equivalence (by sheer coincidence, this judgment comes at a most opportune moment because it provides greater motivation to undertake a deeper study of seemingly “obvious” terms and concepts). Would a putative definition serve the interests of the system better? I am not sure because one would have to undertake a broad-based comparative study not only of technology-specific jurisprudence but also of the treatment in various jurisdictions.

In a future post, I shall try to put forth what I have understood of these terms. Until then, quite a bit of research is required.

The Delhi HC orders the Centre for Science and Environment to remove all HT Media content from its website

The copyright dispute between the business daily The Mint and the Centre for Science and Environment (CSE) has finally snowballed into a full-blown legal battle with the Mint's parent company Hindustan Times Media Ltd. managing to convince the Delhi High Court to pass an ex-parte order, ordering the CSE to remove all infringing content from its website - http://www.indiaenvironmentportal.org.in .

A couple of months ago the Mint's editor, in a hard-hitting post on his blog, had pointed out that the CSE had been infringing on his newspaper's copyrights by carrying entire reproductions of the Mint's free articles on its websites without securing prior permission from the Mint. (Please click here and here to read more of this dispute). The Mint proceeded to serve a legal notice on the CSE and the CSE claims to have complied with the notice. However the HT Media's legal counsel has been quoted as saying that they served two legal notices on CSE but to no avail since the website in question was still carrying over 800 articles whose copyright belonged to the HT Group. I visited the website and did a search for Hindustan Times articles and I got a really lengthy search list. There is no doubt that CSE's website is still carrying the infringing website. I'm surprised that the CSE forgot to remove 800 articles after receiving a legal notice!!! [Correction: It appears that the CSE has removed the infringing content from its website although the search engine is displaying HT articles within the results. However when you click on the HT articles then in that case it displays a message saying "You are not authorized to view this article".]

It is possible that the folks at CSE thought they had to remove only the Mint's articles because the initial outburst was from the Mint's editor. I'm guessing that they missed out on the fact that the legal notices were from the HT Media group and not just the Mint which is one of the many newspapers controlled by the HT Media group.

According to the Mint the head of CSE - Sunita Narain responded to the court order with the following words:

“We’ve already removed all the articles,” insisted Sunita Narain, director of CSE. “This is thoroughly unprofessional. Only criminal companies such as Coca-Cola and PepsiCo use interim orders and file suits without informing all the parties.”

Three quick points in regards this statement:

Firstly - CSE has not removed the infringing content as is obvious from a visit to its website.

Secondly - HT Media group served two legal notices and only then moved court for relief. What is unprofessional about that? Unless of course the legal notices required them to remove only Mint;s articles and not HT articles.

Thirdly - If Pepsi and Coca-Cola ever wanted to settle scores with Ms. Narain, she's presented them with a brilliant opportunity, by calling them 'criminal companies'.

However I must add that this quote was given to the Mint in an interview and the Mint is one of the interested parties in the litigation. We'll try and contact Ms. Narain and get her side of the story.

Coming to the legal aspects of this dispute I would have to say that this is a tough case. We've covered this previously in a previous post. Initially it appeared that the HT Group had a open and shut case. However that was only until it was pointed out that they could claim a defence under Section 52(1)(m) of the Copyright Act which reads as follows:

The following acts shall not constitute copyright infringement:

(1)(m) the reproduction in a newspaper, magazine or other periodical of an article on current economic, political, social or religious topics, unless the author of such article has expressly reserved to himself the right of such reproduction

Please note that the section uses the word author and not owner. The HT Media Group is the owner and not the author. The only way to prevent the application of Section 52(1)(m) is by putting up a notice by the author forbidding the reproduction of the article without his exclusive permission.

The moot point in my opinion is whether this provision will cover websites? Two of our readers Divs & Anon. Coward had an intensive, no-holds barred discussion with me in the comments section of this previous post. We ended by agreeing to dis-agreeing. Feel free to add to the debate.

The IGF and Open Standards

The IGF (Internet Governance Forum) recently held its 3rd meeting from the 3rd-6th December at Hyderabad. The IGF is an outcome of the World Summit on the Information Society which took place in 2005 where Governments had asked the UN Sec-Gen to convene a new forum for policy dialogue to discuss issues related to key elements of Internet governance in order to foster the Internet's sustainability, robustness, security, stability and development. Meant to serve as a platform for dialogue between stakeholders, the IGF was seen as a ‘process of dialogue and discussion that helps in reaching decisions elsewhere’.

The overall theme was "internet for all" and the 3 day event was divided so as to broadly cover 5 main themes.

"Reaching the next billion", "Promoting Cyber-Security and Trust", "Managing Critical Internet Resources", "Emerging Issues" and "Taking Stock and the way Forward". From an IPR perspective, it was noted that interoperability, and thereby standardization presents a important issue.

The emergence of the internet, arguably the single most important technological advancement in the recent past represents a platform with no pre-existing hierarchies. What this implies is thereby promise for a structure which allows for a more open and equal society – a structure which, now out of its infancy, is in danger of being harnessed for specific interests. It is with this in mind that one must look at Open Standards in e-governance. (Readers will remember Suchita’s previous post on open standards in e-governance.) Open standards are by their nature platform-independent, collaboratively developed and vendor-neutral. Also, access measures via Open Standards do not depend on any commercial intellectual property. (Note, this does not mean that IPRs are not involved at all, merely that access measures are free from commercial IPRs). Not to be confused with Open Source which are software defined by its ‘community development’ and its ‘distribution model’, Open Standards are the sets of ‘building blocks’ so to speak, which allow interoperability of different systems, platforms and devices. In an analogy given by Luis Villa, on why Open Standards matter, he talked about a big fire which had occurred where firefighters from neighbouring states had to be called in for help. On arrival however they couldn’t do anything to help because their hoses wouldn’t fit the present state’s hydrants. Likening this to the situation of vendor lock-in, he stresses on the importance of allowing Open Standards.

The importance of Open Standards was stressed upon in the recent IGF meeting by the "Dynamic Coalitions on Open Standards" (DCOS). The DCOS focuses on best practices in government policy and procurement practices for public documents and services. As per their site:

"IT standards, although not created by legislatures, states or courts, create regulatory structures that transcend international boundaries, affect numerous public policy issues and impact developing countries and many stakeholders who don't have an equal voice in their creation, management or adoption. There are significant problems in our global IT standardization ecosystem. In many regards, ICT standards are being privatized, and there has been little public debate on this development. Ultimately, this hurts consumer choice, equitable access, competition and innovation. "

In furtherance of their objectives, the DCOS released an agreement on procurement on the last day of the meeting – "The Dynamic Coalition on Open Standards (DCOS) Agreement on Procurement in Support of Interoperability and Open Standards". Under this agreement, governments, publicly funded and non-profit institutions agreed to measures for the promotion of interoperability and accessibility through the use of open standards and, by 2010, agree that procurement of all software should be vendor neutral and implement open standards.

For the purposes of the agreement, the position of the EU's draft European Interoperability Framework on the definition of "open standards" was used. It is reproduced below.

1. The open standard is adopted and will be maintained by a not-for-profit organisation, and its ongoing development occurs on the basis of an open decision-making procedure available to all interested parties (consensus or majority decision etc.)

2. The open standard has been published and the standard specification document is available either freely or at a nominal charge. It must be permissible to all to copy, distribute and use it for no fee or at a nominal fee.

3. The intellectual property - i.e. patents possibly present – of (parts of) the open standard is made irrevocably available on a royalty free basis.

4. There are no constraints on the re-use of the standard.

(IDABC EIF v2 draft)

As seen in this adopted definition (and as mentioned in the agreement), technical barriers and barriers to entry are sought to be reduced. This allows any interested party to implement the standards and to compete on quality and price thereby encouraging more competition and innovation, with no limitations arising from the patent associated with the standard in question. However this definition could possibly create a problem with licensing in IPRs as there are several parties which don’t support a strictly royalty free approach , including the European Standardization Commission, which support RAND/FRAND (Reasonable and Non Discriminatory / Fair RAND) licensing. The criticism to this lies in the difficulty of interpreting ‘reasonable’ and thereby the risk in allowing the monopolistic minded to determine what is or what is not reasonable.

There are currently two forms through which interoperability can be achieved – i.e. through proprietary standards and non-proprietary standards. Personally being in favour of non-proprietary standards, I submit what may be a rather simplistic question, but also a very basic one. There being no decisive evidence or proof demonstrating actual benefits which proprietary standards hold over non-proprietary standards, why should a Standard which has more encumbrances be chosen over one which is has less or none? Of course, if a technically superior standard exists which is based on F/RAND and the other option is a freely available standard which is inferior to that standard, it is likely that the technologically superior one will be selected.

There is also the common criticism which now arises over the usage of IPRs. As quoted by Neelie Kroes, European Commissioner for Competition Policy:

• There are so many patents, whose scope is sometimes less than crystal clear, that it can be harder to know what patents read on a particular technology.
• There are also concerns that patents are now often used strategically and no longer primarily to protect innovation.
• Laws on copyright and trade secrets rightly do not require disclosure of software source code before protection is granted.
• Trade secrets are not limited in time – and in effect, as far as technology is concerned, neither is copyright.

• And of course copyrights and trade secrets may not be technologically innovative

Thus raising the possibility of perpetual exclusion based on technology which is not even innovative.

Another controversial issue which arises in this regard is the issue of Multiple Standards. On one hand, competition between standards is a further extension of the prevention of vendor lock-in argument, while on the other hand Multiple Standards could result in a confusion and raise in costs for everyone. It would be prudent to realize that finding a Standard beneficial today and fixing it as the standard does not preclude us from the possibility of being locked in tomorrow. It is also submitted that considering the variety of types of usages which these Standards would be applied to, Multiple Standards are an optimal method of ensuring a 'comforted fit' standard to different tasks. Currently, in our own Draft Policy, Multiple Standards are being provided for.

ACTA criticized.

Aside from the DCOS agreement on procurement, there was also substantial mention of the ACTA. . According to IP Watch, it was pointed out that the curtains behind which the ACTA negotiations were taking place would bring about difficulties in its adoption later on. The ACTA negotiations so far have been very secretive and have failed to incorporate two of the basic pillars on which the models such as the IGF are based upon – ‘enhanced cooperation’ and ‘multi-stakeholderism’. According to Brazilian diplomat Everton Lucero who was present at the meeting, the ACTA indicates “a pattern of behaviour of some governments which openly defend multi-stakeholderism, democracy and inclusion, but prefer to follow restricted, behind-doors, exclusive arrangements to negotiate new legal instruments.”