How many of you have heard of the Biological Diversity Act, 2002? I had heard about the Act long ago but somehow never got down to actually trying to understand it and when I did get down to it while researching for this post I was quite stunned with both, the importance of this Act and the seemingly muted discussions of such an important piece of legislation in the mainstream press. Unlike The Patent Act which is considered the ‘sexier’ branch of IP law, affects the industry and hence vigorously debated even in the mainstream media the Biological Diversity Act, 2002 has hardly gotten any coverage in the mainstream press despite its direct impact on millions of rural citizens of India. This example is probably another vindication of P. Sainath, the Magsaysay Award winner, thesis that the Indian media, especially the English media, has turned a blind eye to all matters affecting rural India.
The Act is actually a result of the United Nations Convention on Biological Diversity signed at Rio de Janeiro in 1992. The Act states its main aims as conservation, sustainable utilization and equitable sharing of benefits arising out of utilization of genetic resources. India has been designated as one of the 12 Mega-Biodiversity countries in the world. The extremely informative website of the National Biodiversity Authority says that this is because “With only 2.4% of the land area, India already accounts for 7-8% of the recorded species of the world. Over 46,000 species of plants and 81,000 species of animals have been recorded in the country so far by the Botanical Survey of India, and the Zoological Survey of India, respectively. India is an acknowledged centre of crop diversity, and harbours many wild relatives and breeds of domesticated animals.” The National Biodiversity Strategy and Action Plan (NBSAP) commissioned by the Ministry of Environment & Forests very rightly pointed out that it is imperative for India to conserve its biodiversity for its own sake because of the fact that it sustains the lives and livelihoods of over 70 per cent of India’s population.
So how does the Act go about this? The basic principle of both the Convention and Legislation is to assert a nation’s and people sovereignty over the biological resources by creating a intellectual property rights over those resources. Once the rights are created the biological resources can be exploited with only the approval of the local people and the state through the National Biodiversity Authority and the various State Biodiversity Authorities. The State decides on the level of involvement of foreign parties and the fixing of the equitable sharing of profits, with the community, that may accrue from the possible research and commercialization of the communities biological resources. For e.g. If RiceTec were to lift basmati strains from a research university they will have to pay for it now. The Act also ensures that no one may be granted a patent for an invention created from a biological resource without the approval of the NBA.
Despite the noble intentions of the legislation it has run into considerable trouble. The activists accuse the government of using the legislation to merely facilitate the commercialization of the biological resources instead of focussing on the conservation element. Local communities on their part are opposed to the Act arguing that they have absolutely no say in the panchayat level Biological Management Committees leaving them in the undesirable position of having to part with their biological resources without having a say in how those resources may be used or how much they may charge for the use of the resources. The truth I’m sure lies somewhere between.
Wednesday, October 31, 2007
The Biological Diversity Act
Tuesday, October 30, 2007
IP and Traditional Medicine.
The lush flora in the State of
Popularly hailed as the Garden City of India, Bangalore the State Capital of Karnataka has woken up to the fact that the vegetation in the forests of the Western Ghats region of the State has great potential in contributing to the burgeoning Indian Traditional Medicine(TM) and Complementary/Alternative Medicine (CAM) industry, now fast gaining ground on the international ramp.
(Interesting fact sheet on TM published by WHO for those interested in reading more.)
Excerpt from an article in The Hindu
In an effort to conserve its rich biodiversity, initiatives are afoot to document the rare and endangered species of medicinal plants. The Biotechnology Centre at Hulimavu in
For example, “sarpagandha,” a medicinal plant found in these forests, is in great demand for its efficacy in treating hypertension and many other ailments, but is now an endangered species.
Its medicinal value is in its roots, for which the entire plant is uprooted, and this unscientific harvesting method is a cause for its depletion in the wild.
These rare and endangered plants have economical as well as educative value in society and are a part of traditional wealth and Traditional Knowledge (TK)
Many of these medicine rich horticulture plants qualify as prime candidates for a G.I right and some for a patent at the product stage. This new genre of IP right whilst serving as a tool to protecting TK wealth does not adequately address the questions of IP and beyond that are likely to rear it head with advances on this front While Kerala and Karnataka are factoring in the TK stream in their respective State IPR policy, a comprehensive Sui generic national legislation to protect its TK is sadly lacking, one that needs tending to.
Countries such as Kenya having realized that many its traditional medicinal wealth is 'lying in its labs’ and may not see the light of the day unless and until there is a legislative mechanism and safeguard in place are working zealously to implement measures.
The recently concluded Symposim on Intellectual Property and Bioethics at WIPO has emphasized on providing IP protection to the traditional collective knowledge of societies practiced and handed down over several generations. Lack of IP protection hinders optimum realization and actualization of the knowledge and does little to contribute towards sustainable development of the community.
As we harness our energy towards exploring and probing the realm of the unknown and working towards making forays into the world of modern biomeds, the world of the known that lies in our TK-TM knowledge base , and much neglected could do with some nurturing , protection and address.
Babel's back
The National Internet Exchange of India (NIXI) announced the launch of IDNs in five to six languages in the first phase of an ambitious project beginning early next year.
(NIXI is a non-profit government agency that serves as an operational meeting point of Internet Service Providers (ISPs) in India. NIXI also operates the official .IN registry.)
Similar to the launch of the .IN registry, NIXI plans to open the IDNs first for trademark owners in a Sunrise Period starting January 2008. Registration for the general public is expected to start around March, 2008.
IDNs actually convert non-ASCII characters to ASCII (character encoding based on the English alphabet, used extensively in computing) in order to preserve compatibility with the existing infrastructure.
Even as Indian entrepreneurs start to celebrate, there are some obvious problems with a multilingual IDN system, which NIXI additional CEO Rajesh Aggarwal acknowledges in the ET article cited above:
"The same letter may exist both in Tamil and Hindi. Also, within a language it can be represented visually through different set of Unicode characters. We are trying to make the IDNs phishing and spoofing proof," Aggarwal added.
Currently, any letter in a Devanagiri, Gurmukhi or any other regional script font can be created visually using different codes.
Simply put, if Ram.com is created using one script, the same can be created visually by using a different set of codes. It may lead to a rise in phishing or spoofing of identities.
However, a policy is being prepared to handle such eventualities.
"To counter this, we will block alternate identities of the same name, which can be created by different codes, except the original identity for every user. We will have a scientific formula on how the visual representation of each character in the domain name will be made. Also, we will have a simple dispute resolution policy," he [Aggarwal] adds.
In a related development, the Internet Corporation for Assigned Names and Numbers (ICANN) has started live testing of Internationalized Domain Names in 11 non-English languages, including Hindi and Tamil, which allows Internet users to key in the entire domain name in one language. (Currently, domain name suffixes, e.g . ".com" and ".in" are only available in Latin characters.)
This ICANN project has been in the works since 2000 and has taken its time to come to some palpable fruition. Some time ago, China set up its own system to allow its citizens to access net domains written in Chinese characters, fed up waiting for [ICANN] to approve an official way of using non-Roman alphabets in domain names.
So who's celebrating? Surely, it's the countries where English is not the primary language of communication. The obvious argument in favour of IDNs is the prospective expansion of the Internet to parts of the world that have been on the other side of the Germanic divide. If one can already have a site with content in Tamil, it has always seemed quite silly to have to key in a domain name with Latin characters.
At the same time, the logistical enormity of setting up a system of this kind is pretty overwhelming. At the very least, trademark owners will have a tough time registering multi-lingual identities.
From the regulator's perspective: while NIXI might be able to deal with phishing and cyber-squatting in languages it is immediately overseeing, e.g. Hindi and Punjabi; it might get more complex in cases involving non-Indian languages such as simplified Chinese.
From the trademark owner's perspective, a very simple but daunting question: how many languages does one keep tabs on? And how does one do this? For a reputed international trademark owner, this might be an easy task. But what of the smaller, emerging entrepreneurs who do not have the resources ( e.g., international offices, linguistic expertise) to pull this off?
There is also the issue of languages that share characters and scripts, e.g., Hindi and Sanskrit share the Devanagari script, which allows the same character to be represented by two different codes, welcoming hackers and their ilk with open arms. (See homograph spoofing). Although the existing defence mechanism lies in software design itself (e.g., web browsers do not support certain kinds of domain names), its acceptance as the best possible method of protection is still under question. And this debate will surely trudge on in the months to come.
Cyber-squatting, and related trademark dilution, also comes into play with regard to IDNs in languages that are used simultaneously in different countries. A case that stares in the face is that of Tamil, which has official language status in India, Singapore and Sri Lanka. The domain name-trademark relationship, although it exists in principle, is yet to be strengthened in practice. With different IP laws in different jurisdictions, this correlation is going to become weaker than before. And of course, one hasn't even begun thinking of simpler administrative issues. (Hypothetically, if prior registration of a trademark is a criterion for domain name registration, there are significant time-lags in the certification and registration processes in different countries; with its related problems).
On an endnote, though, a new wave of regional Top-Level Domains has opened up for registration, with the ".asia" suffix up for grabs. It has taken its time, but to force a cliché, Asia is surely the flavour of the season. And more exciting still, although perhaps fanciful, we might yet live to see the lingua franca of the Internet change…
Monday, October 29, 2007
Government's foolish proposal vetoed by Natco
"Hearing on the Novartis AG’s plea to exclude a Technical Member of the Intellectual Property Appellate Board (IPAB) from hearing its statutory appeals against rejection of its patent application was on Tuesday adjourned to November 6 by the Madras High Court.
The First Bench, comprising Chief Justice A.P. Shah and Justice V. Ramasubramanian, adjourned the matter after senior counsel for the Hyderabad-based Natco Pharma opposed the proposal to post the statutory appeals before the IPAB’s Bench, comprising its Chairman and Vice-Chairman, and to enable the Chairman to play the role of a Technical Member during the proceedings.
Additional Solicitor-General of India V.T. Gopalan, on his part, sought time to get instructions from the Centre. Counsel for Novartis also wanted time to respond to the objections."
US Enablement Case: Relevance for Novartis Patent Case in India
"Today in Pharm. Resources, Inc. v. Roxane Laboratories, Inc. (Fed. Cir. 2007), (Moore, J.), in her first important pharmaceutical opinion, the newest member of the court authored an affirmance of a summary judgment of invalidity under 35 USC § 112, ¶ 1, against a claim to "[a]n oral pharmaceutical composition in the form of a stable flocculated suspension in water comprising: (a) megesterol acetate; (b) at least two compounds selected from the group consisting polyethylene glycol, propylene glycol, glycerol, and sorbitol; and (c) a surfactant."
Citing Liebel-Flarsheim Co. v. Medrad, Inc., 481 F.3d 1371, 1380 (Fed. Cir. 2007), the court said that the patentee "sought extremely broad claims in a field of art that it acknowledged was highly unpredictable, therefore, [the patentee] has set a high burden that its patent disclosure must be to satisfy the requisite quid pro quo of patent enablement."
(To receive Hal's email updates, you can email and request him).
The judgment is a very lucid one--and more importantly, is very concise and to the point --rare for a US patent judgment. Perhaps our Madras HC judges (who wrote a good 40 pages in the Novartis patent case without much lucidity or analysis) could learn a lesson or two!!.
For those interested in this decision, please see here. Also, Patently O has posted the following summary of the case:
"Par’s megestrol acetate suspension is prescribed to people who lose their appetites — often during treatment for cancer or AIDS. Interestingly, the company created this popular drug while attempting to design around a megestrol patent owned by BMS.
After obtaining patent protection, Par sued Roxane for infringement. The district court, however, granted summary judgment of invalidity under 35 USC 112 ¶ 1 — finding that “Par is not entitled to the broad claims it asserts.”
Enablement analysis begins with the presumptions that an issued claim is enabled and that a challenge to enablement requires clear and convincing evidence. Unlike its close analog written description, enablement is reviewed by the CAFC on a de novo basis.
A claim is enabled when a PHOSITA can make and use the claim without undue experimentation. Broader claims, of course, require broader disclosure to ensure that their “full scope” is enabled. The unpredictable nature of an area of technology often serves patentees well as they argue non-obviousness. (It cannot be obvious if the results could not have been predicted). However, the enablement requirement demands more disclosure for unpredictable arts.
Broad Claims: Here, Par’s claim includes the following elements: “(a) megestrol acetate; … and (c) a surfactant.” The CAFC finds this claim very broad because it would “allow the choice of any surfactant in any concentration.” (emphasis in original). In its disclosure, Par described three working examples and only one new surfactant. As a matter of law, the CAFC found that “these three working examples do not provide an enabling disclosure commensurate with the entire scope of the claims.”
So how is this relevant for our pending Novartis patent case? Those that have looked at the facts carefully will notice that there is a an enablement issue here. Novartis's invention consists of the following steps:
i) Synthesizing the Imatinib free base, a compound that was patented in the US, EU and several other countries. However, this could not be patented in India, owing to the fact that in 1993, India did not provide product patents for pharmaceutical substances.
ii) The conversion of the free base to a salt form -- imatinib mesylate by adding methanesulfonic acid.
iii) The obtaining of the beta crystalline form of imatinib mesylate, a polymorphic form that is allegedly the most stable form of the salt. A patent application was filed for this and it is this application that is the subject matter of dispute in India
iv) The making of Glivec, a drug that is based upon the above beta crystalline form of imatinib mesylate.
Novartis claims that Glivec (beta crystalline form of imatinib mesylate) is more effective than the Imatinib free base, since it displays better bio-availability properties i.e. it is absorbed more easily into the blood.
Novartis claims all acceptable pharmaceutical salt forms in its main 1993 patent (step (i) above). This would ordinarily include Imatinib Mesylate as well. The question however is: does the 1993 patent "enable" the making of imatinib mesylate? (step (ii) above). I personally think it does--but am happy to be corrected. If it does not, then imatinib mesylate cannot form part of the claims. It also cannot taken to be a "known" substance. Section 3(d) requires that the new form demonstrate increased efficacy over the "known" substance. If Imatinib Mesylate is not a "known" substance, then the comparison under section 3(d) cannot be with Imatinib Mesylate. And to this extent, the case against Novartis on section 3(d) becomes a weak one.
However, as I said earlier, I personally think the patent enables the making of Imatinib Mesylate and the case on section 3(d) therefore still remains a strong one. Would be interested to hear what readers think.
Friday, October 26, 2007
Spicy Tidbits & Events
Prizes instead of patents for pharmaceuticals
Senator Sanders introduced the Medical Innovation Prize Fund Act of 2007 into the US Congress. In essence the idea is to provide a large fund of money to provide government backed incentives ('prizes') to help direct pharmaceutical research into needed areas. The aim is to separate innovation from the proce of products. The prizes will be substituted for patent monopolies (though patents would still play a role in who gets each prize). The team at Knowledge Economy International (and particularly James Love) have been advocating such a system for quite some time now. For those unaware of the underlying theory, there is a lot more to it than meets the eye - a careful consideration will be well worthwhile.
The Knowledge Ecology International press release on the bill is here.
Call for papers - Workshop on the Politics of Intellectual Property
Convenors:
Sebastian Haunss (University Hamburg, Germany)
Kenneth C. Shadlen (London School of Economics, UK)
Intellectual property (IP) has become an issue of utmost importance in the contemporary global economy. How should the private or collective acquisition and control of knowledge be governed? Which frameworks for managing IP are optimal for stimulating the production of knowledge while also facilitating use? These overarching questions are increasingly the subject of political conflicts over what types of knowledge can and should be privately owned, and about how much power owners should have to restrict access to privately owned knowledge.
While the broad topic of intellectual property has received considerable attention in recent years, particularly from lawyers and activists, remarkably few political scientists have turned their attention to this issue. Our workshop aims to encourage this incipient research agenda and encourage scholars to direct their analytic energies toward the politics of IP. As such, we invite scholars working in international relations, political economy, social movement studies, political sociology, and other fields to confront their respective methodological perspectives and theoretical assumptions in a productive exchange that promises to lead to a fuller understanding of the social and political processes that affect the governance of intellectual property.
Please submit abstracts by 1st December 2007 to:
Sebastian Haunss
Kenneth Shadlen
You can download a pdf-version of the call for papers here.
For more information see the ECPR website: http://www.rennes2008.visionmd.co.uk/index.html
Wednesday, October 24, 2007
The Uneasy Alliance between Basmati & IP
Once upon a time many years ago an evil prince tried to pirate our ‘queen of rices’ - ‘basmati rice’ - but luckily our ever vigilant government challenged the pirates in an adversarial duel (3 years late!) and won back our ‘basmati’ swearing to protect this ‘queen of rices’ from the bio-‘Pirates of America’.
I know the above introduction sounds much too over-dramatized, over-romanticized for an IP blog but those sentences are quite accurate of the over-hyped state of affairs in 1997-2001 when the RiceTec case occurred in the USA. RiceTec at that time was a small company held by the reigning Prince Hans Adam II of Liechtenstein, a small principality bordering Austria and Switzerland. RiceTec in 1994 had submitted 20 claims for utility patents for its hybridized basmati rice. RiceTec claimed to have spent $10 Million and 4 years in developing these strains from original South Asian strains of basmati which were donated by India and Pakistan to a U.S.-based international agricultural research center in Idaho (Bio-Diversity Act???). The patents were granted in 1997. The rice was sold under the brand ‘Kasmati’ and 'Texmati' something which RiceTec was doing even prior to filing for the patents.
As with all IP issues, involving the West in India, this issue too, soon assumed the shape of colonial struggle against the forces of imperialism. A NGO filed a Public Interest Litigation in the Supreme Court which in turn ordered the Indian Government to protect Basmati in the USA. RiceTec was caught completely off-guard by the adverse publicity. They kept claiming, and in my opinion quite rightly, that these patents would not affect Indian Exports of Basmati since it did not in anyway forbid Indian farmers from selling their produce in India. Anyway to keep things short the issue ended with the Indian Government successfully challenging the patents on the grounds that the claims were actually prior art. RiceTec consequently withdrew the most contentious claims. This was just Chapter 1 in Basmati’s tryst with IP law. (SpicyIP had commented on another Basmati Patent issue in July)
The most contentious issue, according to me, was not the patent issue because RiceTec could continue to grow and sell its strain of Basmati even without patents; the most contentious issue was the granting of trademarks such as ‘Kasmati’ - ‘Indian Type Basmati Rice’. Basmati rice had quite a reputation in the Western markets, as an aromatic rice, with an export market worth around Rs. 2000-2500 Crores and several American Companies were riding on this reputation to sell their own versions of American Basmati something which the Indians thought was an oxymoron on the lines of ‘American Champagne’. In 2001 some Indian and American NGOs filed a petition with the Federal Trade Commission (FTC), the regulatory watchdog, against unfair competitive practice, requesting it to curtail the use of the word ‘basmati’ to only traditional basmati imported from India, since the unregulated use of the name would mislead consumers. The FTC denied this petition on a number of grounds the most pertinent one, for us, being the fact that “there were no agricultural regulations mandating that the use of the term ‘basmati’ be controlled by a rice product’s country of origin” as also their finding that basmati rice is “included as an example of ‘aromatic rough rice,’ and is not limited to rice grown in any particular country.” The last finding was particularly damaging since it seems to have deemed Basmati as a generic term describing all forms of aromatic rice and under Article 24 of the TRIPS a country need not accord GI protection ‘with respect to goods or services for which the relevant indication is identical with the term customary in common language as the common name for such goods or services.’ However I’m not sure whether the FTC ruling is conclusive on this issue, the IPR Commission of UK has commented on this issue in its famous report on IP. The Commission wondered why the Govt. of India did not even launch a formal complaint with the FTC’s ruling on the issue.
Thus the obvious question now, was how India was going to protect the Basmati brand in the USA and more importantly in its existing world-wide markets against ‘American Basmati Rice’?
The one possible remedy to this was to accord ‘Basmati’ the protection of a ‘Geographical Indication’ as defined under the TRIPS regime. As SpicyIP already mention in an earlier post TRIPS under Article 22 defines GI as “a indications which identify a good as originating in the territory of a Member, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin.” Famous examples are Champagne & Scotch. Specific examples of GI like protection for rice are the “Arroz de Valencia rice” from the Albufera region of Valencia in Spain. GI protection assures that producers situated outside the designated geographical region cannot use the name of the protected GI i.e. nobody outside the Champagne district of France can use Champagne to describe their sparkling wine.
India passed a GI legislation in 1999 but 8 years later ‘basmati’ is still not protected as a GI despite the Government’s claims post-RiceTec to take all necessary steps to protect ‘basmati’ adequately. So what went wrong? Why don’t we have GI protection for ‘basmati’ as yet, despite there being an application pending with the GI Registry? Only when India grants GI protection will other countries view ‘basmati’ as a GI and prevent mis-use of its name. Currently the application is still being studied by the Expert Committee. One possible reason for the delay could be the bureaucratic apathy (as explained to me by an official of the GI Registry) but given the pace with which the GI Registry has been granting GIs, that cannot be the only reason. There are several other reasons for this delay.
Firstly ‘basmati’ is an extremely valuable product; its export market is between Rs.2000 to 2500 crores. Obviously politics follows money and politics has followed the ‘basmati’ dispute especially since ‘basmati’ is traditionally grown in Haryana and Punjab where the agriculture lobbies are rather strong. To be more precise, Indian farmers/millers/exporters and the government just cannot agree on an acceptable definition of ‘Basmati’. Everybody knows Basmati is an aromatic rice which is longer than other rice grains and has a special flavour to it but the need of the hour is for the Govt. of India and the private parties to agree to a fixed definition keeping in mind the requirements of the GI Act. The Ministry of Agriculture notified 6 traditional varieties of Basmati rice in 2003 under the Seeds Act, 1966 and these were the 6 varieties that were also notified by the Ministry of Commerce in a set of rules titled titled “Export of Basmati Rice (Quality Control & Inspection) Rules 2003”. These rules are enforced by the Export Inspection Council (EIC) of India which undertakes compulsory testing of ‘basmati’ exports. The Agricultural Processing and Export Development Authority (APEDA) (which is the central agency dedicated to promoting the export of agricultural products such as basmati) issued a press release in 2006 warning basmati exporters to stick to guidelines failing which there was a very serious threat of ‘basmati’ being considered a generic name and being denied protection. These guidelines however give de-facto GI like protection in Europe, U.K. & Saudi Arabia since those governments have drafted basmati import guidelines on the basis of the Govt. of India definitions and prohibit the usage of ‘basmati’ for any other brands. The EIC is recognized as the final certifying authority by the EU. Moreover the EU provides for a zero duty regime on traditional basmati rice thereby hiking the cost of the imported hybrid American Basmati varieties, much to the chagrin of the Americans who threatened to take the issue to the WTO.
The roadblock to the GI protection, as reported by livemint, is the fact that Indian farmers and millers aren’t happy with this definition. They want a wider definition so as to increase the volume of the exports of even other rices which don’t strictly fall under the definition of ‘basmati’ and subsequently earn more money. It is these objections and procedural delays which are bogging down the registration process. Moreover the association (GIs can be granted only to a collective association) which had filed the first application for Basmati was found to be an association of exporters/mill owners. This is against the very basis of the GI which is the fact that the farmers should be the main stakeholders. The need of the hour is that the Government conduct an in-depth scientific study on the issue and give a conclusive definition of what constitutes ‘basmati’.
What needs to be noted here is the difference in strategy pursued by the various state governments. Whereas the Karnataka and A.P governments initiate GI registration on behalf of the community the Basmati GI applications are filed by private parties and associations and not by the State Governments.
The second possible reason for the delay is more complex. It’s the fact that Basmati is grown both in Pakistan and India thereby requiring them to initiate the process of joint registration. TRIPs does provide for such registration, the only problems are that firstly Pakistan doesn’t have a GI Act and secondly the Indo-Pak negotiations are a constant hostage to the vagaries of international politics.
Some Governments namely the American Government have stated that some WTO countries “might not consider ‘basmati’ to be a term eligible for protection as a GI since it does not identify an actual place to which the particular quality and characteristics of the rice are attributable.” This argument makes no sense because for proving a GI all that is required to be proven is reputation’, ‘given quality’ and ‘other charateristics’; there is no requirement for the name to refer to a specific geographical region. For e.g. ‘reblochon cheese’ produced in the Savoy region of France does not bear any name of any geographical place. The American argument holds true for only the predecessor to the GI that is the ‘appellation of origin’ where the indicator had to make a direct reference to the geographical region.
The second challenge that Basmati faces, if it is ever registered as a GI, is the fact that current protection under the TRIPS does not preclude other producers from making allusions to the ‘basmati’ name during advertising their own non-basmati rices i.e. under Article 22 of TRIPs American producers are not precluded from using phrases like ‘Indian Style Basmati’ as long as they can prove that consumers will not be confused by such wording. Such protection is in sharp contrast to the protection given to wines and other spirits under Article 23 of the TRIPs which clearly prohibits the use of words such as ‘style’, ‘kind’ etc. The EU is in favour of expanding this protection. Once again the Americans are in total opposition to extending such protection to even food stuffs because they are a country of immigrants who have started businesses selling food stuffs of their home countries and to prohibit such usage would hurt their indsutries substantially. Please see this paper by Dwijen Rangnekar for more on the subject.
Monday, October 22, 2007
WHY NOVARTIS NEEDS TO CHALLENGE THE MADRAS HIGH COURT JUDGEMENT
"Friends, Indians, Countrymen, lend me your ears;
I come to bury the Madras High Court judgment, not to praise it.
The Madras High Court decided a landmark case involving Novartis’ famed anti- cancer drug, Glivec. Ignoring the bard’s dictum that brevity is the soul of wit, the court in a tryingly long decision held that section 3(d) of the Indian Patents Act was constitutional. It also held that it had no jurisdiction to adjudicate on the TRIPS issue i.e. whether or not section 3(d) (the section in the Indian patents act under which Novartis’ application claiming Glivec was rejected), was compliant with TRIPS. Several commentators lauded the judgment and rightly so⎯it’s conclusions cannot be faulted. However, there is much to be said for the manner in which they were arrived at.
What is perhaps most surprising is that Novartis issued a statement that although it disagrees with the judgment, it will not appeal to the Supreme Court. This note points out why it is imperative for Novartis to challenge this judgment.
Section 3(d) essentially states that new forms of existing chemical substances do not merit patent protection, unless they demonstrate significantly enhanced “efficacy” over the previously known substance. The Madras High court defended the constitutionality of section 3(d) by holding that the terms “enhancement of known efficacy” and “significant differences in properties with regard to efficacy” were neither vague, arbitrary nor discriminatory. Nor did the inclusion of such terms in section 3(d) without accompanying definitions amount to a delegation of an essential legislative function.
Although the conclusions are correct, the reasoning leaves much to be desired. Indeed, the judgment is a convoluted morass of mutually conflicting propositions. Illustratively, the court is not clear whether section 3(d) embodies an ‘economic’ rationale or whether it encapsulates ‘social welfare’ goals or both. Paradoxically, while the court demonstrates a hands-off approach to TRIPS by claiming that it has no jurisdiction to adjudicate on it, it discusses TRIPS provisions in an effort to defend the constitutionality of section 3(d). Most surprisingly perhaps, the court denies any scope for vagueness and uncertainty in the term “enhancement of known efficacy” by claiming that Novartis, being a pharmaceutical giant, knows what this means. This proposition strikes me as puzzling⎯is the court suggesting that Novartis self certify the increase in efficacy demonstrated by its drug? In which case, do we need to waste the time of the patent office and courts over this issue? Important flashback⎯Novartis assumed that its demonstration of a 30% in bio-availability would be sufficient to procure the patent—unfortunately, the patent office didn’t think so!
Had this been a case that turned purely on the esoteric nuances of patent law, one might have forgiven the court. After all, for a country that is coming to grips with pharmaceutical product patents after a long hiatus and has thus far been exposed to a mere 80 odd patent cases, one cannot expect sophisticated legal reasoning. However, for a country that is lauded for producing some of the most sophisticated constitutional law jurisprudence, this is shameful!
Novartis may or may not be interested in the finer aspects of constitutional law. However, it ought to be concerned with the court’s pronouncement on the term “efficacy”. A medical dictionary definition was relied upon to hold that the term "efficacy" in section 3(d) meant "therapeutic" efficacy and therefore “what the patent applicant is expected to show is, how effective the new discovery made would be in healing a disease”.
Under such a definition, the kind of derivatives that qualify for patent protection are likely to be severely limited. For instance, increased "bio-availability" (which is what Novartis claims in its application for Glivec) may not count as "therapeutic" efficacy. The court makes this clear by stating that an increase in the potency of the drug does not amount to an increase in efficacy. However, Novartis could easily challenge the court’s assumption that section 3(d) is limited to drugs and therefore “efficacy” ought to be construed as “therapeutic efficacy”. A plain reading of section 3(d) would make clear that the section also applies to other “chemicals” such as agro-chemicals. A pesticide or fertilizer cannot be tested for patentability on the basis of whether it enhances a “therapeutic” effect on the human body!
If Novartis does not challenge this portion of the Madras High Court judgment, and if the IPAB follows this dictum (as to whether the IPAB is bound by this ruling of the Madras High Court is a moot issue), then Novartis effectively loses the case. It may as well withdraw its appeal from the IPAB! It is paradoxical that Novartis would continue to threaten to move investments to China, despite being called on their bluff—whilst at the same time desisting from fighting where it really matters.
Amidst several calls that Novartis withdraw its case, it bears reiteration that we must let this case run its course, so that we get more clarity on section 3(d). Let me close by paraphrasing the Bard of Avon:
O judgement! thou art fled to brutish beasts, And men have lost their reason…. Bear with me; My heart is in the coffin there with the HC judgment,
And I must pause till it come back to me"
Wednesday, October 17, 2007
‘MYSORE MALLIGE’ GETS GI PROTECTION
karnataka scores once again in registration of a ‘geographical indication’
Of late Intellectual Property Rights (IPR) in
The uniqueness of the ‘Mysore Mallige’ is that it is a variety of jasmine with a unique lingering fragrance. The Hindu in a very informative article also mentioned another unique factor that is “The volatile oil (essential oil) content is comparatively lower in this variety.” (unique quality)
According to the same report “The dry sandy soil prevailing in the region around Hadagali taluk is responsible for the particular aroma of this flower, while the dry climate (low/sparse rainfall) adds to the favourable environment for the crop.” (attribution to the specific geographical region)
And to continue “The flower is in high demand in places such as Mumbai, besides the coastal region. It has an export potential as it is in demand in West Asia.” (reputation)
Since ‘Mysore Mallige’ fulfils the criteria of a GI as laid down in the Act it was granted protection. Therefore nobody outside this specific geographical region will be allowed to sell under the name. The GI status gives an exclusive cultivation rights for a period of 10 years. The Act has rather strict punishments of imprisonment along with hefty fines of upto Rs. 2 lakhs.
A fact which must get special mention is that the people of the State of
Before ending this post, SpicyIP would like to caution its readers on the various connotations of the term ‘
SPICY TIDBITS
SPICY TIDBITS
Piracy and a “rare act of intelligence”
According to Remix Theory Warner Brothers’ China division, in a rare act of intelligence on the part of a major media company, demonstrated significant savvy last year when they began selling cheap, legitimate, high quality DVDs of movies within days of the theatrical release. By pricing the discs at around 12 yuan (approximately US$1.50), Warner is hoping to make cost a non-issue, thus allowing them to compete in one area where they hold the upper hand: Quality. Instead of taking a chance with on a low quality, shaky-camcorder copy of a film, Chinese consumers can get a high quality copy of the movie at a reasonable price….
This is undoubtedly a clever move. SpicyIP discussed this tactic in one of its earlier posts. Software majors may like to learn a lesson or two?
PS: The article actually gives a step by step process to get illegal access to copyrighted material! I think the only reason why the author may not be sued for encouraging copyright infringement is that his article cautions that doing so is illegal! Please note: SpicyIP doesn’t recommend following the steps either!
WIPO and the Development Agenda
The Hindu reports the adoption of the 45-point development agenda (See here) by Member-States of the WIPO General Assembly that met in Geneva from September 27 – October 3:
“The United Nations patent and copyright agency has adopted a 45-point development agenda intended to correct policymaking and activities to account for the gap in knowledge and technology that separates rich countries from poor ones.
Member-states of the World Intellectual Property Organisation (WIPO) General Assembly, which met in Geneva from September 27 to October 3, agreed to the proposal finalised by the provisional committee in June. This includes significant reforms of the WIPO technical assistance and capacity building programmes; the establishment of a new development-based framework for norm-setting (treaty-making) activities; consideration of access to knowledge and technology issues; enhancing WIPO activities on technology transfer; and introducing a new evaluation and impact assessment framework in WIPO, among other measures. A committee on development and intellectual property is to be established immediately to develop, monitor and implement recommendations.”
The development agenda was proposed by Argentina and Brazil in 2004 (See here). See the latest WIPO document on this here.
As per the IP Watch report on the formal adoption of the Development Agenda:
"The assembly approved the creation of a new Committee on Development and Intellectual Property, which will meet twice in the next year for five days each. The main task will be implementation of 45 consensus proposals for change at WIPO, 19 (which have little financial or human resource cost) of them immediately. (Read the full report here)
Novartis: Still making headlines.
Novartis’ patent fight in India is still making headlines. In a recent article, Chan Park and Achal Prabhala reiterate a point that Shamnad made on SpicyIP quite some time ago (See Here). They say: “To the extent that India is an attractive place for research investment, it has everything to do with our low-cost/high-skill advantage and very little to do with our patent law.”
IP News and Business (John Bringardner) latest article on how Novartis’ strategy in India was fatally flawed, also makes an interesting read.
Monday, October 15, 2007
S. 3(d) like provision under the proposed “Quality Affordable Medicines Act” in the Philippines
According to recent news articles (here and here), the Senate in the Philippines has passed a new “Quality Affordable Medicines Act” (Senate Bill No. 1658) (the text of the Bill can be found here) that seeks, inter alia, to amend patent laws to allow importation of cheaper drugs, support the development of local generic industries, authorize the President to impose price ceilings on life saving drugs (in India, this role is played by the National Pharmaceutical Pricing Authority – for details, read on!) and what it terms as giving “ample muscle to government in times of need” (suggesting perhaps a stronger compulsory licensing regime? :))
Interestingly, the law also seeks to strengthen the fight against fake or substandard drugs by strengthening the Bureau of Food and Drug (This echoes the concerns on piracy voiced in one of the earlier posts)
The Bill is being pushed partly because of a comparative study (quoted in part in this article) that shows that some common medicines are 2.5 to 40.3 times more expensive in Philippines than in India.
What I found most interesting was that the Bill seeks to “boost the generic drugs industry, by… disallow[ing] new patents for existing inventions under frivolous reasons of ‘new use’ or ‘new property.'" This proposal stems from the view that allowing such new use patents would “unduly [extend] the patent life of drugs even without a significant change in the formula or content.” According to the article, Ever-greening stifles the development of quality and affordable generic versions of patented medicines. If this sounds similar to the rationale underlying section 3(d) of the India Patents Act, its because it is! A look at the legislative debates that lead to the passing of the Patents (Amendment) Bill 2005, makes this amply clear. [http://164.100.24.208/debate14/debtext.asp?slno=1745&ser=patents&smode=t]
The article also states: “The Indian Patent Act protects generic firms from lawsuits arising from “newly-discovered uses” for previously patented products.” This again seems to refer to section 3(d) of the Indian Patents Act, which provides (in addition to the enhanced efficacy requirement) that the discovery of a new use for a known substance will not be considered an invention for the purposes of the Indian Patents Act. Clearly, the rationale of section 3(d) seems to appeal to more than one developing country!
Other interesting features of the Bill that are similar to provisions under the Indian Patents Act are:
1. Adoption of a Bolar type exemption. The article calls this the “early working” principle, “allowing local generics companies to start preparing for regulatory approval of generic versions of patented drugs even before the expiration of their patents.” India inserted Section 107A into its Patents Act via the Patents (Amendment) Act 2002
2. Broader compulsory licensing provisions: “The government or authorized third parties may use an invention even without the agreement of the patent owner when public interest so requires; when a judicial or administrative body has determined that a patent owner’s exploitation of his patent or license is anti-competitive. Such flexible use is to be determined by the President, with adequate compensation to the patent owner, and will be immediately executory. No court, except the Supreme Court, can issue a temporary restraining order or preliminary injunction to stop or delay it.”
3. Price ceilings to be a last resort: The Bill allows the President to impose price ceilings, but only as a last resort. This is because according to local economists, price controls may be incompatible with competition-enhancing policies. The circumstances in which a price ceiling are deemed justified are:
“1. An impending or existing calamity, or the effects of a calamity that affects public health.
2. The threat, existence or effect of a public health emergency as recognized by the DOH or by an officially recognized non-government organization.
3. Prevalence of widespread acts of illegal price manipulation of any drug or medicine.
4. An impending or existing event, or its effect, that causes artificial and unreasonable increase in drug prices.
5. Whenever the price of any medicine has risen to unreasonable levels.”
In India, price controls are the responsibility of the National Pharmaceutical Pricing Authority (NPPA) which implements the Governmental orders under the Drug Price Control Order (DPCO). (Shamnad's wwritten on this earlier. See here) The authority to pass the order is granted to the government under Section 3 of the Essential Commodities Act, 1955 (See here http://www.medindia.net/buy_n_sell/pharm_industry/ph_drugprice.asp). The primary duties of the NPAA (established in 1997) include fixing and revising prices of pharmaceutical products, making recommendations to the government on drug price policy and enforcing the provisions of the DPCO. (See Here http://nppaindia.nic.in/function.html for more details) The NPPA website has also recently launched an online complaints monitoring system (http://nppaefile.nic.in/nppacms/). Does anyone know if any complaints have been filed under this system? A list of prices fixed/revised by the DPCO on September 27, 2007 is available here: http://nppaindia.nic.in/ceiling/press27sept07/stmt27-9-07.html. I would be interested in knowing if any studies have been conducted on the efficacy of the price control mechanism in place in India.
Potter-troubles over for Puja organisers
The Delhi High Court has dismissed a petition by J K Rowling and Warner Brothers against a Durga Puja pandal in Kolkata's Salt Lake area allegedly replicating Hogwarts Castle. In a brief order, the court refused to restrain the Durga Puja committee from using the statues and images of Harry Potter characters during the festival, TOI reports.
Justice Sanjay Kishan Kaul, however, made it clear that the court's order would be applicable till October 26, saying, "any (further) use of these characters will be subject to the prior permission of the author of Harry Potter series, J K Rowling."
The court also directed the puja committee to file an undertaking stating that they would not use any character from the book without permission in future.
The pandal had run into rough weather with Rowling and Warner Bros who sued the festival organisers for breach of copyright. The author and the publishing house, who own the rights to the Harry Potter series in India, had sought damages of Rs 20 lakh in the 394-page petition filed in the Delhi High Court.
According to IE, Rowling and WB had sought an injunction and monetary compensation against the organiser for "clear violation" of her intellectual property rights over her characters.
The court's decision came after the pooja organiser gave a written undertaking before the Bench that they would in future use the subjects and symbols of her stories only after receiving her prior explicit permission.
Allowing the organisers to use Potter replicas till October 26 - the last day of the festivities - Justice Kaul ordered the "defendants (organisers) in future to model their pandals on any of the subject matter only with the leave and liberty of the plaintiff (Rowling)".
Refusing to impose compensation, the court termed the organiser's use of Potter characters in Durga festival as a "non-profit making enterprise" without any aim to derive financial mileage.
Earlier, Warner Brothers in a statement quoted in the Telegraph had said:
"Sadly, the organisers of this large-scale commercially sponsored event did not approach us for permission to go ahead," the company said in a statement issued in London.
"This event falls outside the guidelines set up by Warner Bros., J.K. Rowling and her publishers to help charitable and not-for-profit organisations to run small-scale themed events that protect fans and allow everyone to enjoy Harry Potter books, films and events in the spirit in which they were created," it added.
The 96-foot-high pandal, decorated with props from the Potter saga including his magic broom, the Hogwarts Express, hanging candles, and of course, giant images of Potter and his coterie, has already cost the organizers Rs 8 lakh thus far, TOI reports.
The court effectively made the injunction in favour of Warner Bros, but allowed the organisers to keep the pandal structure standing until the duration of the festival. The pandals are usually pulled down once the festival is over, and this ruling would not affect the celebrations during the Durga Puja.
As Warner Bros. have pointed out in a statement to IANS:
"...The injunction was made in our favour, but the court decided that there was insufficient time for the Harry Potter elements of this particular event to be amended or withdrawn. We are pleased that the court has recognised that such events cannot proceed without Warner Bros' permission which should have been obtained."
About Justice Sanjay Kaul's rejection of Warner Brother's claim for compensation - on the grounds that a claim could not be made on a public purpose such as a puja - the statement issued in London said: "Court requirements in India meant that minimum damages initially had to be claimed, but we expressly waived these in the court hearing."
Having done a bit of pandal hopping myself over the past several years, I have always been fascinated by the skill of the artisans to reproduce life-size structures of things both sacred and profane: the Dakhineshwar Kali Temple, the Titanic, the Taj Mahal... The contention that the committee organizers intended to use this (the Hogwarts Castle and Harry Potter replicas) for commercial use seems hard to digest. I don't want to pass judgement on the choice of the pandal theme, which might descend into an evaluation of appropriate depictions of religious sentiment. But I do not see much difference between costume contests and yard decorations and themed parties during Halloween in other parts of the world and puja pandals here.
The IANS report, quoted above, suggests that
Warner is thought to have been informed by its legal advisers in India that this was a commercially organised event which was selling 40 to 50 stalls at a cost of $600 each and banner advertisements at a cost of $250 each to local and internationally recognised companies.
Perhaps this is a naïve defence of the festival season, but the purpose of selling these stalls is to fund the organisation of the puja itself. As I understand it, the sarbojanin, or community, puja celebrations is where representatives of a locality or a neighbourhood get together, collect funds from the members of the locality, which are then pooled in to arrange for the construction of the pandal marquee, the idol of Durga, and the payment for carrying out the many religious ceremonies that take place during the festival. Increasingly corporate sponsorships of pujas and puja pandals have become popular, and some would argue (and I would tend to agree) that the religiosity of the puja is taking a backseat nowadays, but it is there nevertheless. Certainly, the Durga Puja festival is today more carnivalesque than anything else, but its underlying mandate remains a not-for-profit religious and socio-cultural event. To me, this is made apparent by the fact that anyone is allowed to enter a pandal, anyone is allowed to attend the religious ceremonies, anyone is allowed to partake of the religious offerings; and all of this without any payment.If the event was objected against on grounds of not being 'small-scale' (see Warners Bros statement, as quoted here), the contenders would have to defend what they term as 'small-scale' and 'large-scale' in a country such as India, where size often takes on a whole new meaning. For example, conservative estimates suggest that in Kolkata alone, there are over ten thousand pandals organized simultaneously during this festival. In a city with an estimated population of 4.5 million, where a significant portion of residents visit several pandals every day during the festival, arguments of scale will be very difficult to justify.
Wednesday, October 10, 2007
NOVARTIS SAGA: MAKING A MOCKERY OF THE IPAB!
"The Union government has told the Madras high court, which is hearing a petition filed by Swiss drug major Novartis AG challenging the appointment of former patent controller S. Chandrasekharan on the Intellectual Property Appellate Board (IPAB), that it is ready to make a revision in the structure of the board. Novartis is challenging the Chennai patent office’s decision to reject its patent application for Gleevec, a blood cancer drug, last year. The rejection took place when Chandrasekharan was supervising India’s patent administration. Novartis believes his presence on the board can be prejudicial and has asked the court’s help in seeking his removal from hearing the case.
The government has now proposed that the board will now comprise a chairman and a vice-chairman instead of a three-member panel. The court agreed to consider the removal of the current technical member on the Gleevec patent appeal—who is Chandrasekharan—and invited written comments from both parties ahead of a 22 October hearing. Chandrasekharan was inducted into the appellate board as a new technical member on patents in April.
Novartis’ patent application for a crystal form of the cancer drug imatinib mesylate was rejected by the Chennai patent office in 2006, citing that the Indian patent law does not allow patent exclusivity for derivatives or marginally innovated form of known drugs unless it is proved that it enhances the treatment value substantially. When Novartis applied for patent in India, it was opposed by non-government organizations such as Lawyers Collective and local drug making companies including Cipla Ltd, Ranbaxy Laboratories Ltd and Natco Pharma Ltd. The companies also joined the current court case.
“The appellate board can hear the matter with the chairman and the vice-chairman, without the technical member,” said Cipla’s legal counsel A. Ramesh Kumar.“If this formula is acceptable to everybody, then the court will pass a consent order, failing which the matter will be heard by the court on merits.” A lawyer, who did not want to be named, said the Act says “there ought to be a technical member, so I am not sure if the government can really override it.
Also, Novartis itself may not agree with the new revision and may insist on another technical member as only such a technical member, who is an expert in patents, may be capable of understanding the nuances of their case and their line of reasoning.” G. Gopakumar Nair, a patent expert in Mumbai, said, “Since the government has not spelt out its plan to remove Chandrasekharan, one cannot say that it has retraced the steps. The government has only proposed a new constitution of the panel. Everyone is back discussing the proposal with their clients and a clear picture will emerge only later.”
A Novartis spokeswoman said, “We petitioned the Chennai court for a new technical member because we disagree with the appointment of the former controller general of the Indian patent office to the appellate board.”
I tend to agree with the anonymous lawyer quoted above. Section 84 (2) of the Trademarks Act states that every IPAB bench must consist of at least one technical member and one legal member. And section 116 (2) of the Patents Act lays down the qualifications for a "technical member". In short, a technical member ought to have been a Controller of Patents for at least 5 years or should have been a patent agent for at least 10 years. This being so, I fail to understand how the government can now ignore these provisions and have an IPAB bench without a "technical member". If accepted, the Government proposal above would mean that an IPAB bench consisting of just the Chairman (Justice Ansari) and the Vice Chairman (ZS Negi) will decide a sophisticated patent matter.
Neither of them qualify as "technical members". Given that India has had only about 80 odd patent cases till date, I'd be surprised if Justice Ansari who retired as a High Court judge prior to his joining the IPAB has heard more than one patent case in his entire career as a judge.
If the scheme proposed by the government is accepted by the parties and put into operation, aren't we making a mockery of the legislation creating a specialized IP tribunal (IPAB)? I'm assuming that the philosophy underlying its creation was that IP disputes called for some level of specialised expertise not normally possessed by ordinary judges.
On another note, I just wish I knew that if all parties to a dispute agreed, we could subvert a statutory provision—during my days as an IP attorney in India, there were plenty of times when I sat with opposite counsels and moaned about statutory provisions that neither of us liked!!
So what next? Parties to a dispute decide that they don't like a provision in the Civil Procedure Code mandating that a court cannot grant more than 3 adjournments, barring exceptional circumstances? Or that none of the parties want the judge to apply sections X and Y of the Patents Act that is not entirely to their liking? Or perhaps, they draft their own codes that they wish the judge to apply!!
A classic case of "I told you so". Spicy IP had warned right at the start that shifting the forum from the Madras High Court to the IPAB midway through the litigation was a bad idea. Come to think of it, isn't this what we are getting now--a non specialised team sitting in judgment over this complicated patent dispute.
Of course, I'm still at a loss to understand why the government decided to shift the matter to the IPAB midway. Something to do with Nalini Chidambaram (the wife of Finance Minister, Chidambaram) representing Novartis at the initial stages of the litigation and an apprehension of bias??
Anyway, now that it is clear that the government goofed up and created a dent in what might have otherwise been a strong case on merits, what are the possible ways forward?
1. Appoint another technical member. This has the added advantage that if similar situations arise in future (where a technical member such as Chandrasekharan is recused on account of bias), we have a clear way out. In fact, the government should use this as a perfect opportunity to appoint such a person. It may take a little while but it's well worth the effort.
2. Continue with the solution recommended by the government of having a panel without a technical member---and make a mockery of the system. Of course, this might lead to tricky questions of why tax payer money was wasted in creating this specialised IP tribunal.
3. Shift the litigation back to the High Court. A solution that is not very likely at this stage.
Before I end this post, I wish to reflect on another point dealing with legal strategy. Spicy IP can’t fathom why counsels opposing Novartis in this matter are arguing in favour of making a mockery of the IPAB. In fact, when the government decided to pass an order shifting the matter from the High Court to the IPAB, I wrote to some counsels and hinted that it was a foolish move and that they ought to oppose it. One of them wrote back suggesting that it was too late and that there was nothing they could do about it. Later I found that some of them vehemently argued that Chandrasekharan ought to sit in on the panel on account of something called the "doctrine of necessity"!! And now Mr Kumar representing CIPLA argues (as stated in the LiveMint article extracted above) that it's perfectly okay for the IPAB to hear the matter without a patent expert.
Why are they actively in favour of an improperly constituted IPAB deciding this matter in a hurry? Wouldn’t a delay help them? After all a delay means that the patent office order rejecting Novartis' application continues–in other words, generic manufacturers can continue manufacturing generic versions of Glivec. In fact, it is in Novartis' interest to speed up this litigation. So then, why are generics, including Mr Ramesh Kumar appearing for CIPLA arguing in favour of an improperly constituted IPAB? Very baffling—any enlightenment on this count will be most appreciated.
Tuesday, October 09, 2007
SpicyIP Guest Series: Sudhir Syal on Creative Commons
Also, if any of you are interested in writing guest posts, please let me know.
Creative Commons… What’s that again?
“An organization that has framed a new code of laws to promote a culture of freedom, openness and creativity.”
“A spin-off from the open source movement”
“A bunch of young techies who have found a new way to complicate the world.”
Yes, there have been multiple attempts at describing the new phenomenon called ‘Creative Commons’.
How is the phenomenon relevant to an intellectual property rights blog? Well, at one level, Creative Commons, its entire philosophy and belief of freedom to the content creator, is one which gives him an alternative to traditional intellectual property copyright. At another level though, a Creative Commons license is not completely dissimilar to a regular copyright one. In fact, in many case they put more restrictions on creative content then what might have previously existed on them.
Enough of a parallel?
Let’s find out more.
So what exactly is it then, this ‘Creative Commons’?
Creative commons is a non-profit organization devoted to expanding the range of creative work available for the world to build upon legally, share and distribute. Its title line itself is “Share, Reuse and Remix legally”, and that in many ways sums up the entire aim and objective of the group.
As Lawrence Lessig, the founder of Creative Commons said in one of his interviews, “ Creative Commons is a movement which aims to break away from the ‘Permission culture’ which exists amongst creators of traditional media such as Cinema and music”
The base of the philosophy is quite simply this. Current copyright laws are in their purview,
- Too expensive to acquire
- Extremely time consuming
- Too Ambiguous
When you consider that most creative content is based in some form or the other on some other pre-existing content, this becomes especially relevant.
Amongst the groups other subsidiaries is an organization called ‘ICommons’ whose vision is to use these licenses to develop a united global commons front by collaboration with tools such as open education, free software, open access publishing and free culture communities. The group works on specific projects, executed by a team of members from across the World.
How did it all begin?
The earliest examples of Creative Commons based philosophy and ideology is in the Open publication license and in the GNU Free Documentation license which existed back in 1999. Both these licenses, allowed the free sharing and distribution of creative work in some form, and formed the seeds of Creative Commons based philosophy.
The Creative Commons organization itself was officially founded in 2001, by Lawrence Lessig who headed a board of directors which consisted of a team of intellectual property and cyber-law experts. The organization was founded with its headquarters in San Francisco, and gained further momentum as it was promoted by the fellows and students at the Harvard and Stanforld Law Schools.
Authors, Scientists, Artists, educators and other creators of creative content now had free tools to mark their creative work with the freedom they wanted it to carry.
So what are these tools or licenses that a content creator can use?
They are 4 basic tools which a content creator can use (in various combinations) in order to indicate the amount of freedom with which he would want his creative work to be used with. Though the Creative commons license promotes free sharing of content, it must be noted that the content creator does not lose his copyright by offering his work under the license; it only means that some of the content creator’s rights are offered to the public on pre-defined terms and conditions.
Here is the complete list of the types of Creative Commons licenses a content creator can use:
Attribution - “You let others copy, distribute, display, and perform your copyrighted work and derivative works based upon it, but only if they give credit the way you request.”
A common example of this is when a newspaper uses a photo from the web, if the photo were to carry an Attribution license, the newspaper would have to provide credit to the photographer in a manner he deems fit; this is often carried out by printing the Photographer’s name by the side of the photo.
Noncommercial – “You let others copy, distribute, display, and perform your work and derivative works based upon it, but strictly for noncommercial purposes only.”
For instance someone can plagiarize blatantly from a blog post of yours, put it up on the web and base content around it; but if he for instance were inclined to compiling the content into a book and putting it out for sale, he would have to take your permission before doing so.
No Derivate Works – “You let others copy, distribute, display, and perform only verbatim copies of your work, not derivative works based upon it.”
This one is quite simple, if you for instance were to compose a new song and upload it onto the web with a ‘No Derivative Works’ license; your friend Joe can download the song for free, share and distribute it; but if he were for instance to use the song, mix it with another and come up with his own compilation, the license would prevent him from doing so without your permission.
Share Alike - You allow others to distribute derivative works only under a license identical to the license that governs your work.
The Share Alike license in many ways epitomizes the entire philosophy of Creative Commons. This is used in association with other licenses, to quote an example; if for instance a photograph of Samira’s under a non-commercial license is used by Simon (a publisher) in creating a collage to be used in his magazine. His magazine would firstly have to be a non-commercial magazine, as Samira’s photo has a non-commercial license. Secondly, his photo would also necessarily have to be under a non-commercial license since it contains your picture. This would mean that if anyone were to copy or derive content from his magazine, it would necessarily have to be for non-commercial purposes only.
Except for the ‘No Derivate Works’ license not being used with the ‘Share Alike’ license , all other combinations of licenses are allowed and are frequently used.
Some of the commonly used combinations of licenses are:
(Attribution Non Commercial No Derivative Works)
This is one of the most restrictive of the combinations of licenses, and is often called the “Free Advertising license”. This license would in effect mean that the specified piece of content cannot be made derivates out of or mixed with other forms of content, further it cannot be used for commercial purposes and will necessarily have to provide you with a pre-agreed upon attribution wherever it is used.
(Attribution Non Commercial Share Alike)
The main difference between this license and the previous one is that this one lets others freely share, mix, tweak, and make modifications of the content, provided of course that the content is used only for non-commercial purposes. The Share Alike component of this license means that any derivative of any part of this creation would also necessarily have to be non-commercial in nature and given pre-agreed upon attribution to.
Ok. Sounds interesting. How does one actually use any one these licenses?
Once the license is chosen, its presented to the user in 3 ways:
- Commons Deed: A simple, plain-language summary of the license, complete
with the relevant icons. - Legal Code: The fine print that you need to be sure the license will stand up in court.
- Digital Code: A machine-readable translation of the license that helps search engines and other applications identify your work by its terms of use.
The process is completely free. After this is done, the relevant button is added to your published material and viola, you’re done!
Hang on a minute. So these licenses mean that all content is actually given away free and the content creators are still making money out of it?
Yes, believe it or not, it’s true. The common phenomenon is that, once an interest is generated around a product freely available on the internet, a large proportion of those who use the content on the internet, move over to a retail store and actually pay for the same content in a physical form.
The reasons are manifold, some buy it for purposes of convenience, other do so to show their respect for the content creators, while still others buy it because of their perception of value in buying a product they can touch, feel and put on their rack. More than anything, the content available freely on the web helps build hype and WOM (Word of Mouth) attention onto the content, which more often than not translates into sales.
There are a number of content creators which have used this strategy and come out successful; you can read more about them here and here.
Has anyone taken these licenses seriously? Have legal bodies given them recognition?
Well, the best way to answer that question is to tell you about an incident which happened recently. Well known podcaster Adam Curry, was shocked to see one morning a collection of photos from his Flickr page appear without his permission in the Dutch Tabloid ‘Weekend Magazine’. The license for all his content on Flickr being a non-commercial Creative Commons license meant that any commercial use of his photographs was strictly disallowed and his permission would have to be sought if it were to be used.
The case went to the Dutch Courts, and Curry won.
The tabloid was warned, with the ruling clearly stating that moving forward, the tabloid would be fined a sum of 1000 Euros for every photo they were to use without his permission. An analysis of the decision states that, "The Dutch Court’s decision is especially noteworthy because it confirms that the conditions of a Creative Commons license automatically apply to the content licensed under it, and bind users of such content even without expressly agreeing to, or having knowledge of, the conditions of the license."
This was a victory for the Creative Commons movement. Their belief and faith in the movement had been vindicated.
Given the recent nature of this phenomenon, and the unstructured new media laws in most countries, it’s still unclear how Creative Commons licenses will be upheld in other countries, only time will perhaps give us that answer.
Where have these licenses been used since their launch?
Since its launch, the response has been dramatic with a number of blogs, photos, videos and other creative content being licensed with the Creative Commons licenses. Some of the notable projects which have been CC Licensed have been popular internet platforms such as Flickr and Wikimedia Commons, while other formal publications and instructional materials such as MIT OpenCourseWare and the Public Library of Science have been others who have labeled their content with CC Licenses.
The movement has seen itself extend to other forms of media such as newspapers, magazines, blogs and record labels apart from open space films such as Elephants Dream and Cactuses.
So has it all been so rosy? There really has been no criticism or resistance to this movement at all?
You’ve been pushing your luck with your leading questions sonny, stay in line.
Errr Ok – Let me rephrase that. What have been the points of criticism (if any) that the Creative Commons movement has faced?
Much better.
As you would expect with a movement such as this, there have been multiple points of criticism against the organization and its movement.
Some of the common points of criticism have been:
- An Ethical position – Many have criticized the Creative Commons organization for not having an ethical position to base its licenses. Proponents of the Free Software Movement have argued that many of the CC Licenses have instead of providing more freedom to content creators, actually served as a hindrance. The Creative Commons organization reacted by retiring some of those specific licenses.
- A Political position – Many who have examined the group have completely disregarded its relevance, potency and effectiveness describing the group as an unconcerned corporate filter serving more to feed all those participating into corporate co-option with no specific motive.
- A Pro-Copyright position - The content industry as a whole has said that the Creative Commons Licenses in general undermine copyright laws showing utter disrespect for the media industry at large. Further, they have criticized the movement saying that instead of simplifying license proliferation, they have worsened it by providing that are incompatible with most forms of media.
A paper by Niva Elkin Koren, a professor of law at the University of Haifa Israel, forms a an alternative view on Creative Commons, presenting her hypothesis on how instead of opening out a new world of creative thinking and freedom, the movement might actually inadvertently create more of a restrictive licensing culture because of the easy accessibility to licenses. Her view is that, since most creative content is actually devoid of copyright licensing in any case, the Creative Commons licenses are in most cases giving creative content new licenses and restrictions which previously did not exist.
The next question one often asks is “Will all content be shared freely in the years ahead? Is that where this is heading?
There are multiple answers and views to this question, and it really is a question which can be debated endlessly.
My view is this, the group or the movement itself is not necessarily heading towards a pre-defined goal or destination. It has no clearly expressed ambitions of ‘changing the world’, and even it does, it would be a difficult task actually doing so. The undeniable crux of the matter is this, at any point of time there are certain types of creative content for which using a Creative Commons license simply does not make logical or commercial sense, while there are other forms of content where the content creators could benefit enormously by effectively using these licenses.
Both intellectual property and Creative Commons licensing can co-exist giving the content creator the choice of which path he would like to follow.
All the other details and arguments, then simply cease to exist.
IAs many would agree, that’s really what the internet generation (what is now referred to as the Google generation) is all about – ‘Empowering the user’. Traditionalists may rise in objection, skeptics might argue and the purists may scratch their heads in disbelief but recent history has shown that, when it comes to this phenomenon called the ‘Internet’ – traditional beliefs and rules are sidelined, the rules are completely different, most times shockingly so.
How slowly or quickly the World would like to accept or adapt to these rules is really up to them.
It’s a free world after all. Ain’t it?
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