Intellectual Property Rights or The Right to Withhold Information

 

Vaccines were developed with Government Money - So how come patents?

 

On the right to photocopy

S Sivakumar and L P Lukose in The Hindu


The DU photocopy judgment is a victory for access to education. But is it successful in balancing the competing interests of the academic community and the copyright holders?

On September 16, the Delhi High Court dismissed the copyright infringement petition filed by three international publishers against a photocopy shop located in the Delhi University premises (The Chancellor, Masters and Scholars of the University of Oxford v. Rameshwari Photocopy Services). The court ruled that making course packs for suggested reading for students by photocopying portions of various prescribed reference books does not violate the copyright of the publishers.

Right to reproduction

Section 14 of the Copyright Act, 1957, grants a bundle of exclusive rights such as the right to reproduction on copyright owners for commercial exploitation of the work. Making photocopies amounts to reproduction. Photocopies made in violation of Section 14 thus constitute infringement unless it is listed under Section 52 as an act not constituting infringement. The judgment holds that if any provision of the Act permits any person other than the owner to reproduce any work or substantial part thereof, such reproduction will not amount to infringement (Para 27).

The Copyright Act, to prevent stagnation of the growth of creativity, seeks to maintain a balance between the competing interests of the copyright owners on the one hand and the interests of the public to have access to works on the other. Copyright’s basic rationale is that there should be promotion of creativity through sufficient protection; and at the same time it also caters for dissemination of knowledge and access to copyright material through the doctrine of fair dealing. This doctrine, which is essential for research and academic purposes, is an exception to copyright holders’ exclusive rights. The Indian copyright law uses the term ‘fair deal’ (where listed purposes are statutorily embedded) whereas the U.S.’s copyright law adopts ‘fair use’ (which is merely illustrative). As per Article 13 of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement, these exceptions must confine to “special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder”. Since the term ‘fair dealing’ is not defined in the Act, the judiciary determines its scope on a case by case basis.

Fair dealing

Section 52(1)(i) of the Copyright Act treats as fair dealing “the reproduction of any work (i) by a teacher or a pupil in the course of instruction; or (ii) as part of the questions to be answered in an exam; or (iii) in answers to such question. Section 52(1)(j) uses terms such as “staff and students of an educational institution” whereas Section 52(1)(i) uses “teacher or a pupil in the course of instruction.” On analysing this difference, the judgment holds that “there is no reason to interpret Section 52 (1)(i) as providing for an individual teacher and an individual pupil.” The word ‘instruction’ is not defined in the Act. According to Justice Rajiv Sahai Endlaw, the words “in the course of instruction” would include “reproduction of any work while the process of imparting instruction by the teacher and receiving instruction by the pupil continues during the entire academic session... imparting and receiving of instruction is not limited to personal interface between teacher and pupil but is a process commencing from the teacher readying herself/himself for imparting instruction, setting syllabus, prescribing text books, readings and ensuring, whether by interface in classroom/tutorials or otherwise...” Hence it would be fair dealing if the students click photographs of each page of portions of the prescribed book.

Limitations

Copyright must increase and not impede the harvest of knowledge. When the judgment reads, “Copyright is to motivate the creative activity of authors in order to benefit the public”, what is left for the copyright owners? The judgment places no limitation on photocopy if the material is prescribed in the course of instruction. Copyright holders invest considerably in creating works. Can this be ignored while interpreting Section 52(1)(i) as a license for reproducing unlimitedly everything prescribed in the suggested reading? If the legislature had intended to give such a wide interpretation to the words “in the course of instruction”, why does it add, “as part of the questions to be answered in an exam or in answers to such question” which should also be covered automatically? If the suggested reading provides for the whole book, does Section 52(1)(i) permit reproduction of the whole book or only reasonable excerpts? The judgment has conveniently avoided any direct reference to this aspect. The Court Commissioner had reported that “8 books were found being photocopied cover to cover”. Was the court successful in balancing the competing interests of the academic community and the copyright holders? When the university is entitled to free photocopy of 3,000 pages every month(Para 4), can the possibility of commercial interest be overruled? In that context, does it comply with Article 13 of TRIPS? Is it justified to cover the private photocopy shop in the university premises within the expression “in the course of instruction”? Doesn’t the judgment provide blanket immunity to the university to meet the demands of all the students by purchasing a single book?

Undoubtedly, the judgment, which is a breakthrough in the Indian copyright jurisprudence, is a major victory to access to education in a developing country like India. It will certainly have a far-reaching impact in academic circles as well as on the copyright industry. When access to education itself is a challenge, none of the students can be expected to purchase expensive textbooks, especially when syllabi prescribe certain portions from various books. Universities are expected to cater to students’ reading requirement without prejudicing copyright holders’ legitimate economic interests. Are the Indian universities honestly utilising funds earmarked for libraries for that purpose? The students’ demands can be met reasonably by permitting reproduction of reasonable excerpts.

WikiLeaks publishes secret draft chapter of Trans-Pacific Partnership

Treaty negotiated in secret between 12 nations 'would trample over individual rights and free expression', says Julian Assange

• Alex Hern and Dominic Rushe
• theguardian.com, Wednesday 13 November 2013 18.12 GMT

Demonstrators protest against the Trans-Pacific Partnership (TPP) after the May Day rally in Tokyo, Japan. Photograph: EPA/Kimimasa Mayama

WikiLeaks has released the draft text of a chapter of the Trans-Pacific Partnership (TPP) agreement, a multilateral free-trade treaty currently being negotiated in secret by 12 Pacific Rim nations.

The full agreement covers a number of areas, but the chapter published by WikiLeaks focuses on intellectual property rights, an area of law which has effects in areas as diverse as pharmaceuticals and civil liberties.

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Negotiations for the TPP have included representatives from the United States, Canada, Australia, New Zealand, Japan, Mexico, Malaysia, Chile, Singapore, Peru, Vietnam, and Brunei, but have been conducted behind closed doors. Even members of the US Congress were only allowed to view selected portions of the documents under supervision.

"We're really worried about a process which is so difficult for those who take an interest in these agreements to deal with. We rely on leaks like these to know what people are talking about," says Peter Bradwell, policy director of the London-based Open Rights Group.

"Lots of people in civil society have stressed that being more transparent, and talking about the text on the table, is crucial to give treaties like this any legitimacy. We shouldn't have to rely on leaks to start a debate about what's in then."

The 30,000 word intellectual property chapter contains proposals to increase the term of patents, including medical patents, beyond 20 years, and lower global standards for patentability. It also pushes for aggressive measures to prevent hackers breaking copyright protection, although that comes with some exceptions: protection can be broken in the course of "lawfully authorised activities carried out by government employees, agents, or contractors for the purpose of law enforcement, intelligence, essential security, or similar governmental purposes".

WikiLeaks claims that the text shows America attempting to enforce its highly restrictive vision of intellectual property on the world – and on itself. "The US administration is aggressively pushing the TPP through the US legislative process on the sly," says Julian Assange, the founder and editor-in-chief of WikiLeaks, who is living in the Ecuadorean embassy in London following an extradition dispute with Sweden, where he faces allegations of rape.

"If instituted," Assange continues, "the TPP’s intellectual property regime would trample over individual rights and free expression, as well as ride roughshod over the intellectual and creative commons. If you read, write, publish, think, listen, dance, sing or invent; if you farm or consume food; if you’re ill now or might one day be ill, the TPP has you in its crosshairs."

Just Foreign Policy, a group dedicated to reforming US foreign policy, managed to crowdfund a $70,000 (£43,700) bounty for Wikileaks if the organisation managed to leak the TPP text. "Our pledge, as individuals, is to donate this money to WikiLeaks should it leak the document we seek." The conditions the group set have not yet been met, however, because it required the full text, not individual chapters.

Related to the TPP is a second secret trade agreement, the Transatlantic Trade and Investment Partnership (TTIP), which ties together regulatory practices in the US and EU. George Monbiot, writing in this paper, referred to the treaty as a "monstrous assault on democracy". Ken Clarke, the minister without portfolio, replied that it "would see our economy grow by an extra £10bn per annum".

Campaign group Fight for the Future has already collected over 100,000 signatures in an online petition against what it calls the “extreme Internet censorship plan: contained in the TPP.

Evan Greer, campaign manager for Fight for the Future, said: "The documents revealed by WikiLeaks make it clear why the US government has worked so hard to keep the TPP negotiatons secret. While claiming to champion an open Internet, the Obama administration is quietly pushing for extreme, SOPA-like copyright policies that benefit Hollywood and giant pharmaceutical companies at the expense of our most basic rights to freedom of expression online."

Ethics, Economics, Education

The decision of the courts against a photocopying shop that provided course-material to Delhi University students will have global repercussions

ALI KHAN MAHMUDABAD in outlook India

The right to education is fundamental to the development of any society. Implicit within this right is the right to access knowledge without being constrained by one's socio-economic background. The state, which is the mediator between private interest and public good, has a duty to enforce these rights. A court case in India instituted last year by Taylor and Francis, Cambridge University Press and its Oxford equivalent against Delhi University and Rameshwari Photocopy Services is being heard again and will force the judicial system not only to address technical and legal questions concerning copyright but deeper questions about what constitutes the public good.

The case concerns the photocopying and sale of books printed by these publishing houses, as buying the originals, even the Indian editions, is beyond the means of most students. In fact, has been established through empirical studies by academics like Shamshad Basheer, often only short sections of these books are copied to make course-packs as is done in the US under the 'fair use' laws. A bare reading of the copyright laws in India might lead some to the conclusion that the photocopying is illegal as the photocopying house, an official licensee of Delhi University, is making a profit. At the same time the carefully worded section 52 of the Indian copyright act makes certain provisions, as has been argued by Niraj Kishan Kaul the advocate for the University of Delhi and goes to great lengths to differentiate between ‘reproduction of work’ and ‘issuing copies of work’ and sub-clauses that allow for an exception to be made for students and teachers.

The court granted temporary relief to the petitioners and stopped the photostat shop from making any copies and on the last hearing on the 1st of October listed the matter for the 21st of October.

Interestingly, copyright laws have not always been restrictive. In 1790 a copyright law was passed in America, actually permitting the re-printing of foreign material, as copyright was deemed a privilege and not a right, which led to an entire industry being built around material that otherwise might have been deemed ‘pirated.’ So although today America is a stickler for enforcing copyright laws, its own market was initially built by breaking these very rules.

What is perhaps of as great importance as a discussion of the technical aspects of the law is a conversation about the value of the service being provided by the Rameshwari Photocopying Services and, crucially, what the stance of the university presses says about their approach to knowledge dissemination.

The argument that the authors of academic works suffer is largely redundant as most academic presses give relatively modest remuneration to the writers. Furthermore, many of the people mentioned in the lawsuit, including noted academics such as Amartya Sen amongst others, have actually written an open letter opposing the case. Notably, there are very few countries in the world in which academics are remunerated in a manner which is commensurate with the role they play in today’s world: writing the history of the future of coming generations. Most academics do what they do because of a love of the subject and of course there are those who are able to cash in on their expertise but these form the exception rather than the norm. The argument for a loss of income to the publishing house is also questionable since the closing down of shops such as the Rameshwari Services will not mean that the students will suddenly be able to buy original prints as these will still be too expensive.

In a section entitled ‘what we do’ the Cambridge University Press website states in big bold letters that its purpose is “to further the University’s objective of advancing learning, knowledge and research.’ Beneath this admirably expressed goal, in smaller font, the blurb talks of 'the global market place,’ ‘their 50 global offices’ and ‘the distribution of their products.’ The two parts of the section speak volumes about the press’ approach in fulfilling its objectives and indeed this is symptomatic of a system that encourages institutions or indeed individuals to profess an ethical approach to economics but one which is in actual fact often under girded by a fine print that almost inevitably puts self-interest before anything else. The Oxford University Press website states similar aims and interestingly even acknowledges that "access to research helps push the boundaries of research."

Of course any institution needs to be self-sufficient but at the same time in many countries those institutions that are deemed to be serving a public good are granted tax-free charitable status, as is the case with both the university presses. This of course in effect means that the taxpayer subsidizes them.

The case instituted by these publishing houses then seems to be part of the worrying effort to commercialize education by making it bend to the ‘logic’ of the market. India is already facing the effects of unregulated private educational institutions that are often used to launder money and which essentially offer a degree on payment service. The publishing houses then are acting in a manner which is no different from the way in which certain corporate entities bully smaller organisations out of the market. The difference is that the some of the students who buy photocopied material might well end up publishing material with the university presses because ultimately both are part of the same system. In a recent statement the spokesperson for the Cambridge Press even said that their primary purpose is "not as a commercial organisation."

In a speech in the House of Commons on the 5th of February 1841 Lord Macaulay, while accepting its necessity, dubbed copyright ‘a tax on readers for the purpose of giving a bounty to writers…for one of the most salutary and innocent of human pleasures.’ Later in the speech, he gave the example of Milton’s poetry, the sole copyright of which lay with a bookseller called Tonson who once took a rival to court for publishing a cheap version of Paradise Lost, after its performance at the Garrick theatre. Macaulay then concluded that the effects of this monopoly led to a situation where ‘the reader is pillaged; and the writer’s family is not enriched.’

The decision of the Indian courts will have global repercussions, as has been the case in its rulings against big pharmaceutical companies. The practice of making course-books is found in many other countries such as Nigeria, Peru and Iran, with the latter also suffering as sanctions mean that many journals cannot be accessed, let alone copied. In Syria, just outside the University of Damascus, in the underpass beneath the Mezze autostradde were a number of shops that provided cheap copies to students who otherwise would not have had access to key material.

In a world delineated by bottom lines, fine prints and sub-clauses, in which freedom in essence translates into 'consumerist freedom,' it is easy to speak of ideals and values but much harder to put them into action. As Harvard philosopher Michael Sandel argues, the more we treat everything as a product to be sold or bought, including our education, our bodies and even our emotions, the more we devalue their intrinsic worth and so what is needed is 'bringing ethics, morality and virtue into public discourse.' For students, any society's real assets, the closure of the small yet crucial services provided by shops that produce photocopied coursework would only add one more obstacle in a country that is already riven with economic disparities.

Academic publishers make Murdoch look like a socialist

Academic publishers charge vast fees to access research paid for by us. Down with the knowledge monopoly racketeers

• 
• • George Monbiot
  • guardian.co.uk, Monday 29 August 2011 21.08 BST
  • larger | smaller

'Though academic libraries have been frantically cutting subscriptions to make ends meet, journals now consume 65% of their budgets.' Photograph: Peter M Fisher/Corbis
 
Who are the most ruthless capitalists in the western world? Whose monopolistic practices make Walmart look like a corner shop and Rupert Murdoch a socialist? You won't guess the answer in a month of Sundays. While there are plenty of candidates, my vote goes not to the banks, the oil companies or the health insurers, but – wait for it – to academic publishers. Theirs might sound like a fusty and insignificant sector. It is anything but. Of all corporate scams, the racket they run is most urgently in need of referral to the competition authorities. Everyone claims to agree that people should be encouraged to understand science and other academic research. Without current knowledge, we cannot make coherent democratic decisions. But the publishers have slapped a padlock and a "keep out" sign on the gates. You might resent Murdoch's paywall policy, in which he charges £1 for 24 hours of access to the Times and Sunday Times. But at least in that period you can read and download as many articles as you like. Reading a single article published by one of Elsevier's journals will cost you $31.50. Springer charges €34.95, Wiley-Blackwell, $42. Read 10 and you pay 10 times. And the journals retain perpetual copyright. You want to read a letter printed in 1981? That'll be $31.50. Illustration by Daniel Pudles Of course, you could go into the library (if it still exists). But they too have been hit by cosmic fees. The average cost of an annual subscription to a chemistry journal is $3,792. Some journals cost $10,000 a year or more to stock. The most expensive I've seen, Elsevier's Biochimica et Biophysica Acta, is $20,930. Though academic libraries have been frantically cutting subscriptions to make ends meet, journals now consume 65% of their budgets, which means they have had to reduce the number of books they buy. Journal fees account for a significant component of universities' costs, which are being passed to their students. Murdoch pays his journalists and editors, and his companies generate much of the content they use. But the academic publishers get their articles, their peer reviewing (vetting by other researchers) and even much of their editing for free. The material they publish was commissioned and funded not by them but by us, through government research grants and academic stipends. But to see it, we must pay again, and through the nose. The returns are astronomical: in the past financial year, for example, Elsevier's operating profit margin was 36% (£724m on revenues of £2bn). They result from a stranglehold on the market. Elsevier, Springer and Wiley, who have bought up many of their competitors, now publish 42% of journal articles. More importantly, universities are locked into buying their products. Academic papers are published in only one place, and they have to be read by researchers trying to keep up with their subject. Demand is inelastic and competition non-existent, because different journals can't publish the same material. In many cases the publishers oblige the libraries to buy a large package of journals, whether or not they want them all. Perhaps it's not surprising that one of the biggest crooks ever to have preyed upon the people of this country – Robert Maxwell – made much of his money through academic publishing. The publishers claim that they have to charge these fees as a result of the costs of production and distribution, and that they add value (in Springer's words) because they "develop journal brands and maintain and improve the digital infrastructure which has revolutionised scientific communication in the past 15 years". But an analysis by Deutsche Bank reaches different conclusions. "We believe the publisher adds relatively little value to the publishing process … if the process really were as complex, costly and value-added as the publishers protest that it is, 40% margins wouldn't be available." Far from assisting the dissemination of research, the big publishers impede it, as their long turnaround times can delay the release of findings by a year or more. What we see here is pure rentier capitalism: monopolising a public resource then charging exorbitant fees to use it. Another term for it is economic parasitism. To obtain the knowledge for which we have already paid, we must surrender our feu to the lairds of learning. It's bad enough for academics, it's worse for the laity. I refer readers to peer-reviewed papers, on the principle that claims should be followed to their sources. The readers tell me that they can't afford to judge for themselves whether or not I have represented the research fairly. Independent researchers who try to inform themselves about important scientific issues have to fork out thousands. This is a tax on education, a stifling of the public mind. It appears to contravene the universal declaration of human rights, which says that "everyone has the right freely to … share in scientific advancement and its benefits". Open-access publishing, despite its promise, and some excellent resources such as the Public Library of Science and the physics database arxiv.org, has failed to displace the monopolists. In 1998 the Economist, surveying the opportunities offered by electronic publishing, predicted that "the days of 40% profit margins may soon be as dead as Robert Maxwell". But in 2010 Elsevier's operating profit margins were the same (36%) as they were in 1998. The reason is that the big publishers have rounded up the journals with the highest academic impact factors, in which publication is essential for researchers trying to secure grants and advance their careers. You can start reading open-access journals, but you can't stop reading the closed ones. Government bodies, with a few exceptions, have failed to confront them. The National Institutes of Health in the US oblige anyone taking their grants to put their papers in an open-access archive. But Research Councils UK, whose statement on public access is a masterpiece of meaningless waffle, relies on "the assumption that publishers will maintain the spirit of their current policies". You bet they will. In the short term, governments should refer the academic publishers to their competition watchdogs, and insist that all papers arising from publicly funded research are placed in a free public database. In the longer term, they should work with researchers to cut out the middleman altogether, creating – along the lines proposed by Björn Brembs of Berlin's Freie Universität – a single global archive of academic literature and data. Peer-review would be overseen by an independent body. It could be funded by the library budgets which are currently being diverted into the hands of privateers. The knowledge monopoly is as unwarranted and anachronistic as the corn laws. Let's throw off these parasitic overlords and liberate the research that belongs to us. • A fully referenced version of this article can be found on George Monbiot's website. On Twitter, @georgemonbiot

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