Category Archives: Intellectual Property

PATENTING OF HUMAN GENES: Intellectual Property vs Access to Healthcare & Research

In the case briefs of Myriad Genetics vs Associated Molecular Pathology, amongst the several moving stories of victims of gene patents, contained the story of Abigail, a 10-year-old with a long QT syndrome, a serious heart condition that, if left untreated, could result in sudden death. A company in this case had obtained patent on two genes associated with this condition and developed a test to diagnose the syndrome. But then they went bankrupt and never offered such tests. Another lab tried to offer the test to Abigail, but the previous company which held the patent to such diagnosis threatened to sue the lab for patent infringement. So as a result, for 2 years, no test was available. During that time, Abigail died of undiagnosed long QT.

In 1790, the US Government started issuing patents under Patents Act 1790, with the motive of “Encouraging Arts and Sciences”. These intellectual property rights slowly became the biggest statutory safeguards of research and investment in a democracy. Edible business cards, nicotine infused coffee, a rock-paper-scissors card game for people too lazy to use their hands and finally thong diapers which make up the list of some rather amusing patents the USPTO has issued to protect intellectual property.

In initial days, this IPR regime was under huge criticism from ethical and moral firewalls which questioned how the right of commercial exploitation of resources can be rested at the hands of a selected few [link found here]. But the intensification of competition in industries (especially the biotechnological industry in this case) called for some sort of incentive creation for investment in research which came in the form of patents.

SCIENTIFIC DIFFERENTIATION OF FORMS OF DNA IN QUESTION 

Genes as we have pointed out before are units of heredity. A gene is a segment of DNA that codes for a specific protein or set of proteins. In this article, we will talk about legal framework of gene patenting with respect to the following three forms DNA in its natural cellular environment, isolated genomic DNA, modified synthetic cDNA. Scientists have discovered methods of extracting DNA from its natural cellular environment which is later used for purpose of diagnosis through gene sequencing. This isolated genomic DNA is sometimes modified by splicing and removing the non-coding introns to make a DNA made of only exons. This kind of modified DNA is called cDNA and the same is used to express particular proteins by scientists in human body. The difference between isolated genomic DNA and cDNA is that there is human modification involved in the later while there is none in the earlier [link here].

HISTORY – CASE LAWS SURROUNDING GENE PATENTING IN USA

The landmark decision of Diamond vs Chakrabarty in 1980- opened the floodgates for patenting of microorganisms where the judge ruled that human-made living matter is
. Anything under the sun made by man was considered to be patent worthy as long as they were not discoveries or manifestations of nature. The court clarified the threshold required for obtaining a patent as: “relevant distinction was not between living and inanimate things but between products of nature, whether living or not, and human-made inventions.”

“Thus, a new mineral discovered in the earth or a new plant found in the wild is not patentable subject matter. Likewise, Einstein could not patent his celebrated law that E=mc2; nor could Newton have patented the law of gravity. Such discoveries are “manifestations of . . . nature, free to all men and reserved exclusively to none.”

 

The United States Patents and Trademarks Office though seemed to have paid little attention to the limitations under the patent regime which in no way allowed patents to products of nature. The Patents Office undertook an expansive interpretation of law and went on to grant patents to a number of “engineered DNA molecules”. It handed patents for isolated DNA on the ground that since these molecules had been secluded from their natural cellular environment they were no longer “products of nature”.

This standing USPTO practice was challenged for the first time in a 2009 case against the grant of patents to Myriad Genetics. Myriad Genetics had after extensive investment and research discovered locations of BRCA 1 and BRCA 2 genes on the human chromosome which was landmark in the medical science. Mutation of BRCA 1 and BRCA 2 genes could lead to breast and ovarian cancer in women (it increases the chances of contracting breast cancer by 50-80% and ovarian cancer by 20-50% approximately according to case reports of Myriad Genetics vs. AMU). Though the scientific community was aware of threat of cancer from heredity, they were clueless as to the exact location of the BRCA 1 and BRCA 2 genes on the human chromosome. USPTO gave Myriad Genetics the exclusive rights to isolate these genes and carry diagnostic tests. The problem started when Myriad tried to enforce these patent rights against organisations which tried to test such gene mutation since they had an exclusive right over the isolation process which is an essential step in any diagnostic testing.

The case of Association of Molecular Pathologies vs. Myriad Genetics can be contextualised as a case of civil rights versus intellectual property rights. The company’s patents on BRCA 1 and BRCA 2 genes were ruled invalid on March 29, 2010 by Judge Robert W. Sweet in a U.S. District Court. On an appeal, the Court of Appeals for the Federal Circuit reversed the trial court judgment on July 29, 2011 and held that the genes were eligible for patents.

On December 7, 2011, the ACLU (fighting the case on behalf of petitioners) filed a petition for a writ of certiorari to the Supreme Court. On March 26, 2012, the Supreme Court vacated the Federal Circuit’s judgment and remanded the case for further consideration in light of Mayo Collaborative Services v. Prometheus Laboratories, Inc. in which the Supreme Court had ruled, just six days earlier, that more restrictive rules were required to patent observations about natural phenomena.

Myriad Genetics vs. AMP

“Myriad did not create or alter either the genetic information encoded in the BCRA1 and BCRA2 genes or the genetic structure of the DNA. It found an important and useful gene, but ground-breaking, innovative, or even brilliant discovery does not by itself satisfy the §101 inquiry.” 

“Ground-breaking, innovative, or even brilliant discovery does not by itself satisfy the §101 inquiry.”

On June 2013, the nine judge bench of the US Supreme Court ruled that: “A naturally occurring DNA segment is a product of nature and not patent eligible merely because it has been isolated”. However the Court went on to hold that manipulation of genes by human intervention to create something not found in nature (like cDNA) is patent eligible. The court emphasised on the “product of nature” exclusion used in previous judgments and also on Section 35 which makes isolated genomic DNA non-patent eligible but something like cDNA patent eligible due to significant human intervention in production process leading to change in nucleotide sequence.

PATENT LAW IN INDIA

Section 2(1)(j) of the Patent Act, 2005, defines the “invention” as a new product or as process involving an inventive step and capable of industrial application.

Indian Patents Act recognises patents only for inventions capable of having industrial application and not mere discoveries of existing inventions. The cross jurisdictional reference through successive amendments to Indian Patent Law can be linked to the US Patent law system of not granting patents to “products of nature”. Furthermore Section 3 of the Indian Patents Act lists out a set of inventions which cannot be patented due to negatively weighing in on policy considerations.

The 2002 Calcutta High Court case of Dimminaco AG vs Controller of Patents and Designs was the first in line of cases to question the legal provisions relating to gene patents. The company sought a patent on the process of preparing Bursitis vaccine where the final product was living organisms. The Patents office had denied patent rights to plaintiff grounding its reasons on the fact that such process couldn’t technically be considered a process of manufacture under the definition of invention under Indian Patents Act since the end product was a living product which they claimed was inherently a part of nature. The court overturned the Patents Office decision and remarked that there was no statutory bar on the patenting manner of manufacture even though the end product is living in nature. The Indian Patents Act was amended in 2002, to specifically permit among other things microbiological and biological processes.

ANALYSIS OF INDIAN PATENT LAW

Indian Patent law doesn’t recognise naturally occurring DNA to be patentable in any manner whatsoever due to provisions of Section 3(c) of Indian Patents which regards mere “discoveries” as non-patent eligible. Act 3(j) of Indian Patents Act which prohibits patentability of any form of animal or plant body is also relevant in this case.

Indian Patents office till 2013 allowed patents on isolated genomic DNA but Indian Biotechnology Guidelines of 2013 changed such a regime by treating such isolated material as mere “discovery” making them non-patent eligible under Section 3(c) of Indian Patents Act and also under Section 3(d) of the same legislation which can consider isolated DNA as “mere discovery of a new form of a known substance” which does not contribute to enhancement of the efficacy of that substance make them non-patent eligible again.

On patent eligibility of cDNA, it is argued to be a product artificially derived by man from work done on a naturally occurring substance. Indian patent case law doesn’t have enough precedent value although to determine the amount of alteration/deletion/moderation by human intervention needed to make modifications on objects of nature patent eligible. The primary question remains as to whether such levels of human modification takes cDNA out of the limitations imposed by Section 3(c), 3(d), 3(e) and 3(j) of the Indian Patents Act to make it patent eligible.[further analysis found here]

ARGUMENTS FOR GENE PATENTING:-

  • The creation of incentive for investment in research is one of the biggest functions of any patent. This is done in order to balance out the risks taken in lieu of investment in research.
  • If a process of gene isolation proves relevant factors of novelty, non-obviousness and utility then why it can’t be treated like any other scientific invention notwithstanding that it’s a part of human body is a question at the core of this entire controversy.
  • Most of public health concerns arising from lack of access to healthcare due to high cost of research is usually external to the patent system.
  • Many of the countries around the world already have a system of gene-patents. The need of any legal framework is to create a positive harmonised set of laws in congruence with laws in other countries.
  • A more realist argument supporting gene patents would be that of adopting a restrictive approach in handing patents leading to companies filing for trade secrets under IPR resulting in removal of research work from the public domain.

ARGUMENTS AGAINST GENE PATENTING

  • Patents are handed on the basis of inventions and not discoveries. Even though there is a lot of investment going into a work of research, a patent can’t be simply granted for that reason. There are other ways of creating incentives which does not lead to monopolization of research.
  • The argument from moral and ethical point of view [read more about ethical issues here] is with regards to questions surrounding how a part of human body can be patented since research on the same is usually based on common heritage and ownership of human race in general. Moreover, genes are units of heredity and Article 4 of Universal Declaration of Human Genome and Human Rights state that no financial gains should arise out the same.
  • Another huge criticism of gene patents is the counter analogy to the first argument made in favour. Exclusivity or monopolization of research may pre-empt future research by blocking access to public knowledge.

The question as a matter of policy thus boils down to balancing two major factors in the gene patenting regime i.e. incentivising of research and investments in research versus promoting public access to necessary healthcare. One of the ulterior objectives of the Human Genome project was to make information available to the general public at large. Expansive approach of reading patent laws has been seen to have wide repercussions leading to reduction of access to healthcare and research.

CONCLUSION

The need for incentivising research was one of the main reasons behind  introduction a liberal patent regime but the fact that in spite of large investments in research, mere discoveries or products of nature shouldn’t be made patent eligible is what should guide our jurisprudence of gene patents. There are other methods present in public domain to incentivise such landmark scientific achievements which are not patent eligible like grant of awards or subsiding costs of research. The advantage of these over granting patents is that they don’t intrude into public access to healthcare and research. The grant of individual property rights cannot supersede under any circumstances the basic civil rights of individuals.

 

 

 

 

 

 

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YouTube’s Copyright Policy – An Explanation

Ed. Note: This post by Ashwin Murthy is a part of the TLF Editorial Board Test 2016.

Digital media has become the norm of the modern world and in the field no website is as dominant as YouTube. YouTube, currently a Google subsidiary, controls the market when it comes to video sharing, outpacing the other video-sharing providers by millions of views and users. YouTube presently has more than a billion users and has even allowed the growth of a new career in YouTube personalities, the most famous being PewDiePie. As a natural product of being a video sharing service, multiple videos use content that is copyright protected.

To help protect these companies and their copyright protections, YouTube has created a system called Content ID. This system allows copyright owners to easily identify their content on another person’s or channel’s videos and take action against the same. A database of files and content is submitted to YouTube by the content owners. When a video is uploaded to YouTube, it is scanned against the database. If a match is detected, a Content ID claim is raised and the owners of the content that has been copied are informed. They then have the option to do one of four things:

  • Mute the audio that is copied/matching
  • Block the entire video from being viewed
  • Track the number of views
  • Monetize the video by running ads

Monetizing the video is the most common measure that the content owners take, one that bears very little publicity and negativity associated with it and is also the most profitable. The choice between sharing the revenue generated from these ads with the uploader is up to the content owner. Not everyone is given this Content ID privilege – only copyright owners who meet specific criteria are allotted the same.

More serious however is when the copyright owners submit an official legal copyright infringement notification, instead of merely accepting Content ID actions. This notification can be submitted through a very simple form, the uploaded content is removed keeping in line with the Digital Millennium Copyright Act (DMCA). This will then place a strike upon the uploader, which initially has no penalty apart from removing the uploaded video. If the live stream or archived live stream is removed for copyright, then the uploader’s access to live streaming will be restricted for 90 days. Three strikes however will cause the account to be permanently banned, deletion of all videos from the account and a ban from creating an account on YouTube. Strikes can be removed by waiting three months and completing the Copyright School (a ‘corrective’ test and series of instructions on the YouTube site), getting a retraction from the issuer or submitting a counter notification, disputing the challenge.

Certain content, even if using copyright protected works, may be allowed if it is ‘fair use’. YouTube has certain fair use guidelines, which speak of which content would and would not be protected by fair use depending on certain characteristics including the amount and substantiality of the work used in comparison to the entire work as a whole. Thus if 90% of the content of a video uploaded is of a music video, such as Ezra Furman’s song ‘Restless Year’, then it would not be protected by fair use and would be liable for takedown. However, if a part of the music video is used to create content on something original, such as a discussion of emerging trends of fashion, it would be protected and no claim would be allowed. Excerpts used verbatim for the purposes of criticism, teaching, reviewing or proving an analytic point are all part of fair use.

In theory this measure is a unilaterally positive measure, however in practice certain issues have been raised. This quasi-legal system allows for an easy way for certain companies and individuals to easily make money without getting involved in lawsuits or disputes, simply through the filling of a single form. Further, there is no penalty for filing a false claim. It essentially becomes an automated action, where a claim is made with only potential benefit and no downside. The action by YouTube is first taken, and only after this can the uploader fight for a refraction/counter claim. This allows for gross abuses of the system, the most publicised being of film critic Doug Walker on his YouTube channel ‘Channel Awesome’. His review of the movie ‘My Neighbour Totoro’, ironically a recommendation and in complete fair use, was claimed against and he was hit with a copyright strike. His channel was hit with massive restrictions from YouTube and ad revenue was stripped from every video he uploaded. The redressal systems neither worked nor were easily accessible, and only after he made a video that got wide attention did YouTube take it seriously.           YouTube musician Miracle of Sound was hit with copyright claims against the music he created for his own channel and others. Game critic Jim Sterling, as explained in his video on the issue (explicit language) was forced into a rather innovative action – he used footage from multiple games published by companies like Konami, Nintendo and Rockstar in a single video, causing them all to raise Content ID claims on the video which effectively nullified the claims to a point where no action at all could be taken. This pointed to the critics an example of how easy the system had become to abuse and game for only potential gains.

This led to the creation of the movement #WTFU (Where’s The Fair Use) by Doug Walker and supported by multiple high profile YouTubers calling YouTube and Google to take action and change the existing policies towards fair use and copyrights. YouTube responded, stating that they would take action to make a change, however change is yet to be seen. YouTube has to balance a fine line between allowing for creative content and protection of copyrights and intellectual property. However, it has become evident that their algorithms for discovering this content as well as their mechanisms for dealing with copyright issues are outdated, biased towards the issuing party and difficult to redress if wrong. Change is necessary to create a platform that can better deal with the immense number of users that YouTube possesses and until it arrives, YouTubers like Channel Awesome and Jim Sterling will actively fight against the blatant issues that exist within the system.

Rights of persons with disability and Copyright

Ed. Note.: This post, by Benjamin Vanlalvena, is a part of the NALSAR Tech Law Forum Editorial Test 2016.

How are disabled persons affected by Copyright Law?

The onset of the digital era has brought in an ease of access for persons with disabilities greater access to resources earlier not available not to them through assistive technology.

Copyright laws are set in place to protect the interest of the right-holder of the creative work. However, every time a visually impaired, blind or print disabled person wanted to convert the work into a format compatible with a screen reading software, they would have to reproduce the book in its entirety. A lot of E-books and other similar digital media content have Digital Rights Management (DRM) Systems which place technical restrictions to prevent the copies from being copied. This conflict between persons with disabilities having the right to access information and the copyright holder’s right to control copying of their work created an obstacle for such persons with disabilities leading to a ‘global book famine’. According to the World Blind Union, roughly 5 percent of the millions of books published were made available in formats which would be accessible to persons who are blind, visually impaired or print disabled. This is a cause of concern considering that there are 285 million persons in the world who are blind, visually impaired and print disabled, 90 percent of whom live in low-income settings in developing countries.

What has been done to address the interests of both parties?

To balance the interests of both parties, on 27th June 2013, the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled was adopted by member States of the World Intellectual Property Organization (WIPO), and with the ratification of the treaty by Canada, 20 countries having ratified the treaty, the treaty will come into force on September 30, 2016.

What is the Marrakesh Treaty and what does it attempt to do?

The Marrakesh Treaty is a recognition of the rights of blind/visually impaired/print disabled persons and the difficulties and obstacles faced in getting information from the books. It calls for contracting parties to adopt provisions in their respective domestic laws to permit reproduction, distribution works in accessible format for persons who are blind, visually impaired or print disabled. It is pertinent to note that this does not apply to all persons but organizations defined either under Article 2(c) of the treaty or in the domestic laws.

The Marrakesh Treaty takes note of Technological Protection Measures (“TPMs”) and in Article 7 states that Contracting Parties are to take measures to ensure that circumvention of the same would not be deemed illegal if used for the purpose mentioned in this treaty.

The treaty allows distribution of copies in an accessible format to for the exclusive use of beneficiary persons without the authorization of the right holder (even distribution to/import from another country).

The definition of a beneficiary in the Marrakesh Treaty is quite broad and is inclusive of persons suffering from dyslexia, paralysis, etc. Though it does not apply to audio-visual works according to Article 2(a), it applies to works in audio forms such as audiobooks. One must also note that Article 12(2) of the Marrakesh Treaty states that it is without prejudice to other limitations and exceptions for persons with disabilities provided by national law.

Beyond the Treaty

A number of countries in their national laws provide exceptions which are broader than the one provided in the Marrakesh Treaty. The scope in the Indian Copyright Act for example, allows for such an exception to be available for the benefit of persons with disability, which is inclusive of all disabilities requiring a special format to access the work. Countries like Australia, United Kingdom and United States of America also have some similar provisions of exceptions for persons with disabilities.

While the Marrakesh Treaty does not address the issue for every person with disabilities [such as those who are hearing-impaired] it is still a commendable step in that direction.

TORRENTS: THE LEGAL RAMIFICATIONS

Ed. Note.: This 101, by Kaustub Bhati, is a part of the NALSAR Tech Law Forum Editorial Test 2016.

Have you ever used a torrent to download something not available freely? You must have. Ever wondered how it works and why there is so much fuss about it being illegal and people using it might face legal sanctions?

A torrent is typically a file sharing method in which large media files are shared between private computers by gathering different pieces of the file you want and downloading these pieces simultaneously from people who already have these files. This process increases the download speed manifold. An example would be if 5,000 people are downloading the same file then it doesn’t put much pressure on the main server itself but what happens is that every individual use contributes upload speed which in turn ensures that the file transfer is fast. The download, hence, doesn’t really take place from the main server but from the 4999 other users currently downloading. This is typically known as P2P or Peer-to-Peer sharing method.[1]

Now since the invention of torrents in 2001 by Bram Cohen, it is being used to share a massive no. of files everyday some of which are copyrighted materials such as video games, movies and songs which should technically be paid for but are being distributed freely. This loss of revenue for the copyright-holding companies and the subsequent law-suits brings us to the forefront of our discussion: The Legal issues.

The torrent is not wholly illegal as the general misconception is. It can be used to share files across different people legally but the line is drawn when it comes to copyrighted content because then it amounts to Intellectual property theft. Almost 97 – 98% hosting companies (the companies which provide the link rather than host the content themselves) do not allow hosting torrents, and most of them are simply afraid of the word torrent. In India too, the authorities are catching up, Sec 66 of IT Act provides for 2 years of imprisonment and fines for people who download pirated media from the internet.

The Cyber Cell Department catches this illegal downloading by paying some IP Troll companies which lets them join the hosts of people downloading torrents allowing them to see the IP addresses and hence come knocking on their door steps. This leads to another legal issue as the IP address only tells WHERE the file is being downloaded and not WHO is downloading and also what would be done if the downloader was a minor? These are some problems faced by the prosecution in the court of law.

One of the major problems that can be seen globally is the difference in copyright laws in different countries giving rise to file-sharing sites such as The Pirate Bay to swim through this crack by saying that no laws of the host country i.e. where the servers lie, are being violated and hence everything is legal. Internet sites like Pirate Bay even posts legal notices sent to them by companies like Sony, DreamWorks and Electronic Arts on their site accompanied by mocking retorts.[2]

The prominent arguments presented in favour of the sites like these are that the sites themselves are not illegally distributing copyrighted materials but are functioning just like any other search engine like google or yahoo providing relevant search results to a query after which the users themselves are responsible for the acquisition of the materials in question and they themselves should be held liable and not the intermediaries. While Sweden in its judgement against co-founders of Pirate Bay refuted this, countries like Netherlands, Ukraine, India and the privacy-conscious Switzerland have become new piracy havens due to the exact same loopholes in the law deeming the intermediaries as not guilty of what their customers do.

While countries like Japan have severely strict laws entailing a 10-year imprisonment for uploading and a 2-year imprisonment for downloading illegal content[3], Germany is also not far behind, imposing a fine of €1000 fines or more if even a single instance of a copyrighted material is downloaded through BitTorrent.

These were some of the legal ramifications regarding the use of torrents, in an era when everyone wants everything to be freely available with just a click, Peer-to-peer file sharing has become a platform for political activities against intellectual property laws and has sparked movements such as the anti-copyright movement advocating complete or partial remission of current legislations. In the end, the ball is thrown towards the general masses to catch and in turn be implicated in illegal activity or let it fall and support the rights of the creators of the content we so want to see.

[1] Carmen Carmack,” How BitTorrent Works”, http://computer.howstuffworks.com/bittorrent1.html

[2] Dennis H, A Pirates’s Life in Sweden, https://yalelawtech.org/2011/02/23/a-pirates-life-in-sweden/

[3]Japan introduces piracy penalties for illegal downloads, http://www.bbc.co.uk/news/technology-19767970

Spotify v. “Music”?

Controversy surrounded popular online music-streaming service Spotify after artist Taylor Swift pulled her entire catalog from it, and other prominent artists like Thom Yorke of Radiohead criticized it. The artists’ main issue with the service seems to be the fact that its revenue model is not artist-friendly, and threatens the music industry.

Currently, Spotify is a major player in the internet radio industry, controlling 6 percent of internet music streaming market, with discrimination in services to free and paid subscribers. The company is estimated to gross $1.2 billion from its 10 million paying subscribers alone, and has been recently valued at $8.3 billion.

However, artists’ perceived lack of compensation in terms of royalties from the internet radio and the negative effect of the service on regular music sales have led to much debate over the threat the streaming service poses to the music industry. Continue reading Spotify v. “Music”?

[SpicyIP Cross-post] Online Piracy – The Way Forward?

This post was first published on SpicyIP here. Image Source: https://flic.kr/p/BXwqH.

One of the greatest issues that the Old Guard of the media production realm has had with the Internet is the copyright infringement that it facilitates. As such, there have been multiple attempts at restricting the internet to protect copyright in various ways, the most notable international examples of which are the DMCA, SOPA and PIPA, MPAA’s structured siege against Google, the essentially pointless litigation against Pirate Bay, and the story of Aaron Swartz. The Indian examples include litigation on Section 81 of the Information Technology Act, and thespate of troubling orders that have been passed in the last year alone.

The Draft National IPR policy, released by the IPR Think Tank last month, continues this approach. The Policy is for the most part silent on online piracy, but when it does discuss it, it states only that that the enforcement authorities should be strengthened and enforcement methods should be stepped up to combat this phenomenon.

But this excessively protectionist approach, as this post shows, is misguided and out-dated. There has long been a strong argument that the old content distribution model and the copyright regime that protects it are past their prime, and that it needs to change drastically to accommodate the Internet. This position has gained even more support in recent years due to the consistent failures of anti-piracy laws and measures the world over. An example of this is the failure of the Spanish Sinde Law, which is quite similar to the SOPA Bill. The anti-piracy measures of the Indian government have failed as well, as evidenced by the fact that last year, India was placed on the 2014 International Piracy Watch List by the International Creativity and Theft-Prevention caucus.

The fact is, the Internet has fundamentally altered content production. The Internet and accompanying technological developments have made content easier to produce, and infinitely easier to access, leading to changes in the market demands. The law is as always lagging behind – but this time, it has the support of an entire industry behind it.

Point of Failure

Online piracy is not just a legal problem – it is an economic, service problem, entrenched in the existing copyright system which is fighting to sustain the obsolete model. For instance, the movie ‘The Interview’ was recently released on online video platforms by Sony Pictures. But this release was limited to the US only – anyone who wanted to watch the movie outside US actuallycould not watch it legally. So if they wanted to watch the movie, they had to pirate it, even if they were willing to pay for it. Even with Sony releasing the movie on online video platforms, this disconnection between the supply and demand of content along with the inconvenience of the old model is a huge part of what leads to piracy.

Another example of the above is Digital Rights Management, one more consequence of the Old Guard’s fear of piracy. Ideally, when sales are made to consumers, the title to the goods soldtransfers entirely to them. The seller no longer has any claim over the object, other than some exceptions under the ‘First Sale’ doctrine. But this changes when digital goods and DRMs are involved. With digital goods, you aren’t buying the product – you’re licensing/borrowing it. Thus, you don’t actually own the product in question at all. If you want to own them, you have no choice. You either have to buy the physical copy or break the DRM.

Notably, last year the United Kingdom took a slightly different approach to piracy through their Voluntary Copyright Alert Programme (VCAP). While not exactly a ‘decriminalisation’ of piracy, the scheme indicates a shift in their stance regarding prosecution of consumers for pirating content, at least for those ISPs who take part in the voluntary program.

Changing Markets

The old model of distribution of content is simply unsustainable in the new market created by internet, which is a major cause of the failure of the above measures – and a major part of why Netflix and Spotify succeed, because they capitalize on this very service deficiency. It thus comes as no surprise that Netflix and Spotify actually decrease piracy.

Furthermore, BitTorrent has recently taken strong steps to prove that torrents are not only a means for piracy but can actually be a viable business model. It launched a service called ‘Bundles’, which allows content owners to ‘bundle’ free content with paid content and distribute it. This system allows consumers to share legitimate files through the p2p network from the content creators/distributors, cutting down server and hosting costs for the latter. It also allows creators to market their products directly to the consumer. Last year, Thom Yorke of Radiohead released his album ‘Tomorrow’s Modern Boxes’ through ‘Bundles’ in September, making it the first paid-for-album to be sold through it. And he has made as much as $20 Million through it since then!

Furthermore, many self-published authors and amateur artists have actually found releasing their work on services like Spotify and torrents a good way to gain recognition for their work, before going commercial. Also notable here is the Flattr experiment, co-founded by Peter Sunde, one of the original team at Pirate Bay, and the Aereo and JaadoTV cases.

Conclusion

Therefore, rather than expanding protection in the manner indicated by the Draft Policy and focusing on the pointless practice of trying to curb the Hydra that is online piracy, a better option in the longer run would be to actively try and accommodate the internet herein, and to allow innovators a bit more breathing room so that they can help the industry adapt to the new technologies. This would give start-ups more room to experiment with new, alternative models, and would help the Indian technology sector to boom. It would also lead to a more robust model which can accommodate and even promote the changes that are continuously brought into the content production sector by the evolution of technology, in place of the current unsustainable system.

[SpicyIP Cross-Post] Innovation in the time of SEPs & FRAND licensing

This post first appeared on SpicyIP, here. (Image Source: https://flic.kr/p/hoAtp)

In the last few years, smartphone manufacturers have seemingly been as popular for their patent-wars as they are for their phones. And these famed patent wars have recently come to India. Of specific note in this regard is the Xiaomi-Ericsson dispute. The main issues in this dispute, as Prof Shamnad Basheer has explained here, are the Standard Essential Patents (SEPs) owned by Ericsson, who licenses them out to smartphone manufacturers. Ericsson also brought cases against Intex, Micromax and Gionee, on similar grounds and perhaps even the same patents.

Continue reading [SpicyIP Cross-Post] Innovation in the time of SEPs & FRAND licensing