Open Access: What is it about?

Aaron Swartz's recent suicide has sparked discussion all over the internet, with much of it to do with his  strong belief in the moral imperative of sharing scholarship and making it accessible to all. There's a certain strong raw attraction towards this idea, however, it's practicality is far from a simple matter. It's a rather complicated and nuanced question that needs more serious discussion along with the impassioned cries. I found myself in one of these discussions, (sparked by Shashank Kumar and Tara Van Ho) and thought I'd share some thoughts along with some relevant points that arose in that discussion. We focused on the problems of access to scholarship today as well as the viability of the recommendations such as those of the Finch Report (available here) on Open Access that the UK Government has recently adopted. (warning: long post) 

Perfectly summed up by GB Shaw.
Calligraphy  by Itti

First, the problem: 

Quoting from Swartz, "Information is power. But like all power, there are those who want to keep it for themselves." And indeed, it is tremendous power. If we lived in a world where information served as currency, every transaction would lead to everyone becoming richer, and one can only imagine what a globalised 'idea economy' would have led to. Idealistic or not, it is unfortunate that this is not our reality. Instead we have a series of proxies which we rely on to encourage, generate and spread this information; and these proxies are far from ideal, leaving several distortions in their wake. 

Attaching property rights as commonly understood to information has serious repercussions  Information, being a public good, is most beneficial when shared. This sharing also allows for organic and exponential growth due to the ever expanding baseline of knowledge that everyone is given access to when an idea is thrown into this pool. Thus, any restriction on this knowledge sharing should normatively be allowed only if there is an appropriate justification. So the question is: Does (temporarily) restricting the spread of scholarship encourage the overall growth of scholarship? Given that (a) the incentives are directed towards publishing companies instead of scholars,  and (b) that the common perception is that these publishing companies add sub-proportionate value to the whole process, scholars and researchers world over are starting to demand a release from the restriction privileges that the publication companies are given. 

Today the crisis in academic scholarship, to be stated simply is that scholarship is not being shared as widely as it could and should be. With the internet, for the first time, there is a super cheap mode of dissemination of scholarship that could make information available to all with an internet connection. Traditionally, publishers have held this role of disseminators, as it was beyond the means of authors to do so themselves. And of course, they also add certain value by organising scholarship as well as providing an idea of the quality of the work.

However, the value that they do not add includes actually reviewing the work (which is done by other researchers peer-reviewing for free) and funding the research being published (often publicly funded - but not subsequently available to the public). Authors provide their scholarship to the journals either for free or by paying a charge to get published. Journals then sell these collected works primarily to libraries/institutes (back to where it came from!), or per piece, to individuals at very high rates. This is despite the rapid transition that many journals have done by jumping on to the digital platform. One would think that this would lead to a drop in prices but this is apparently not the case. The prices remain on par with the former print prices. While introducing an online version doesn't mean online costs don't exist, or that the print prices disappear, it would appear to me that there should be some (substantial) difference in price as some costs have surely gone disappeared. 

In terms of effects on the world of academics: this generally means that those with access to large resources are the ones who can get access to more scholarship. In turn, this means that these are the ones with more opportunities to produce more scholarship. More funding occurs. Cycle repeats. 

What is being discussed the most though, is simply that scholarship is being restricted by journals and sold at artificial prices at the cost of scholarship. As per the Economist: "Elsevier, the biggest publisher of journals with almost 2,000 titles, cruised through the recession. Last year it made £724m ($1.1 billion) on revenues of £2 billion—an operating-profit margin of 36%." And this, even while Harvard is saying that it can't afford journal prices. 

Any hope for this to change?

When one has the requisite resources to buy into these journal subscriptions, one tends to go about his work. When one does not have the requisite resources to buy into these resources, one tends to spend their efforts trying to get hold of what they can manage. So, who spends their efforts at changing this?

Traditionally, this cycle of those with resources continuing to receive more resources, would mean that those without voices, continue to not receive a voice - which they need to even to complain about not having a voice! However, a few factors seem to have combined to start changing this. 

1. With developing countries taking a larger presence on the international stage, large institutes within them, while poor with respect to the large institutes in the developed world, have increasingly been able to communicate their concerns through their governments in the international discussions involving access to knowledge. 

2. Terrific activism by those who have understood the possibilities unleashed with the internet. 

3. The internet has had a remarkable democratization effect, providing individuals all over the world an opportunity to make their voice heard and to hear other voices. Many of these voices have tended to combine under the loosely defined leadership roles played by the above mentioned activists, giving both louder voices. 

4. No doubt, the falling budgets in the developed countries due to the fiscal crisis have sensitized them to prices as well. 

Problems are being raised. And more importantly, they are being given attention and possibilities of solutions to these are being explored. 

Now what? What is the Open Access movement and can it help?

Open Access scholarship is scholarly literature that is provided via the internet and is unrestricted, allowing anyone to access it. In other words, Open Access journals are ones that are not operated based on the reader-pays or subscription-funded model. As for how they are funded - there is active debate regarding the most optimal method. The more popular demand side models include the Article Processing Charge (APC) model, the Advertisement/Sponsorship backed model and the subsidy based models. The more popular supply side models include implementing fees based on (a) Use over a certain free-floor, (b) the supply of literature in convenient formats, and (c) for additional value added. There's a great guide to several supply side as well as demand side revenue generation mechanisms for Open Access scholarship that's been made available by SPARC (the Scholarly Publishing and Academic Resources Coalition) here. 

The UK govt has notably dived into the Open Access movement with its acceptance of the recommendations of the Finch Report (available here). It plans on making (wholly or partially) publicly funded research available for free public access from mid 2013 by implementing a mixture of 'Green OA self-archiving' and 'Gold OA' Publishing. Green OA self archiving involves the researchers publishing their research in any journal but also making a post print version of the article available in an appropriate repository without restrictions for non-commercial use within 6 months of publication. The recommendations make clear though, that it is strongly preferable authors take the Gold OA route. If the author chooses to go the Gold OA route, he must submit his article in a compliant journal using a Creative Commons non-commercial reuse license. The Research Council of UK (RCUK) will provide funds to institutions for the payment of Article Processing Charges (APCs). The policy also states that all these peer reviewed papers must include details of the funding that went into it as well as how to access the underlying research materials. 

This sounds very public friendly and would be very beneficial for accessing publicly funded scholarship. There could be possible problems following this model though, especially for countries like India. It would appear that until a sufficiently large amount of scholarship has gone open access, they will have to continue to pay for library subscriptions as well, thus doubling spending on both supply and demand side. This may especially be the case if other governments do not pursue Open Access with equal enthusiasm. There are other implementation questions that arise though. On what basis will the govt decide what scholarship to provide APCs for? Will they allot quotas to institutes? If so, this is bound to be problematic as issues of division within the institute, as well as issues of how much each institute gets will arise. Will they simply fund everything? This may be too expensive a proposition. Perhaps the journals could be ranked by a team of experts and only articles selected in journals of a certain quality would be funded? 

There are bound to be plenty of questions and issues which arise while branching out from the traditional model of publication.  However, I certainly view it as a very positive step for global scholarship that the issue of access to scholarship is being taken seriously enough to experiment with new and innovative Open Access models. 

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The political economy of the current round of compulsory licensing in India

Yusuf Hamied (Image from here)

The present round of compulsory licencing which has been kick-started by the DIPP, is widely seen as the fruits of a sustained lobbying effort by the generic pharmaceutical lobby. While the media is yet to identify, the ‘masterminds’ behind the lobbying, the final result of the lobbying effort is keeping in line with the demands of Yusuf Hamied, the head of Cipla. (For our previous posts on these issues please click hereand here)

Ever since, India brought in a pharmaceutical patent regime in 2005, Yusuf Hamied has been a strong advocate for a system of ‘licences of right’, which did exist under the pre-2005 patent legislation where certain patents, especially patents that could be used to manufacture medicines and foods, were deemed to be open to be licensed by any person interested in manufacturing them. The statute even fixed the upper limit of the royalty rate at “4% of the net ex-factory sale price in bulk of the patented article (exclusive of taxes levied under any law for the time being in force and any commissions payable) determined in such manner as may be prescribed.”

The exact provision is reproduced as follows,

“87. Certain patents demand to be endorsed with the words "Licences of Rights"

(1) Notwithstanding anything contained in this Act,-

1. every patent in force at the commencement of this Act in respect of inventions relating to-

(i) substances used or capable of being used as food or as medicine or drug;

(ii) the methods or processes for the manufacture or production of any such substance as is referred to in sub-clause (i);

(iii) the methods or processes for the manufacture or production of chemical substances (including alloys, optical glass, semi-conductors and inter-metallic compounds),

shall be deemed to be endorsed with the words "Licences of right" from the commencement of this Act or from the expiration of three years from the date of sealing of the patent under the Indian Patents and Designs Act, 1911, whichever is later; and”

The provision containing the effect of ‘Licences of Rights’ is as follows:

“88. Effect of endorsement of patent with the words is "Licences of Rights".

(1) Where a patent has been endorsed with the words "Licences of right", any person who is interested in working the patented invention in India may require the patentee to grant him a licence for the purpose on such terms as may be mutually agreed upon, notwithstanding that he is already the holder of a licence under the patent.

(2) If the parties are unable to agree on the terms of the licence, either of them may apply in the prescribed manner to the Controller to settle the terms thereof.

(3) The Controller shall, after giving notice to the parties and hearing them and after making such inquiry as he may deem fit, decide the terms on which the licence shall be granted by the patentee.

(4) The Controller may at any time before the terms of the licence are mutually agreed upon or decided by the Controller, on application made to him in this behalf by any person who has made any such requisition as is referred to in sub-section (1), permit him to work the patented invention on such terms as the Controller may, pending agreement between the parties or decision by the Controller, think fit to impose.

(5) In the case of every patent in respect of an invention referred to in sub-clause (i), or sub-clause (ii), of clause (a) of sub-section (1) of section 87 and deemed to be endorsed with the words "Licences of right" under clause (a) or clause (b) of that sub-section, the royalty and other remuneration reserved to the patentee under a licence granted to any person after such commencement shall in no case exceed four per cent of the net ex-factory sale price in bulk of the patented article (exclusive of taxes levied under any law for the time being in force and any commissions payable) determined in such manner as may be prescribed.”

During the TRIPs negotiations, the bloc of developed countries were firm in their demand for prohibiting ‘licences of right’ which existed not only in Indian law but if I’m not mistaken even in the law of the U.K. albeit in a milder form. In any case, the provisions pertaining to ‘licence of rights’ was deleted by India in order to ensure compliance with TRIPs.

Yusuf Hamied however never dropped the demand to reinstate such a regime for atleast life-saving drugs. Here’s an excerpt from an interviewhe gave to Wharton in May, 2009:

“India Knowledge@Wharton: What are the key lessons to be learned by Indian lawmakers from the controversy in AIDS-ravaged South Africa?

Yusuf Hamied: The controversy in AIDS-ravaged South Africa gives you a glimpse of what's in store in a monopoly. India must seriously examine its Intellectual Property Rights (IPR) position and see how best TRIPS (Trade Related Intellectual Property Rights) can be interpreted, as IPR laws are national laws. India should cull the best points from various laws to suit her future needs. For example, American patent laws include the Bolar Provision, so that generic companies can have products ready for sale as soon as a patent expires. Compulsory licensing is valid under TRIPS and can be invoked when there is a national emergency. But diseases like malaria, tuberculosis and leprosy are permanent, perpetual and even perennial emergencies in countries like India, and I'd say that we need a system of automatic license of right for a fixed royalty to the patent holder (typically, about 2% to 4% of net sales).

In fact, many of these issues were raised in the I.K. Gujral Committee Report in 1993. The committee was of the opinion that India should insist on automatic licensing in certain circumstances, besides recognizing the need that countries at different stages of development need to be treated differently.”

He’s repeated this demand more than once, including in an interview to Forbes last year. In fact even the Annual Report (P. 16) filed by Cipla for the year 2008-09, the Company publicly stated the following:

“When it comes to saving lives, the destiny of the world cannot be left to one or two companies. It is necessary for all countries to modify their intellectual property laws to ensure availability of essential and life-saving drugs. This is possible only by introducing a permanent compulsory licensing system for all drugs, whereby a suitable royalty on net sales should be paid to the inventor and patent holder. Cipla has always been appealing to the Indian government to modify its intellectual property laws to safeguard Indian consumers from monopoly. The Indian government should adopt a pragmatic compulsory licensing system. This is the only possible way to make drugs available for the healthcare needs of our large population, at affordable prices.”

About 5 years after Parliament enacted the historic amendments to bring India in compliance with its TRIPs requirements, the DIPP released in August, 2010 a public consultation paper on compulsory licensing of pharmaceutical patents dealing separately with S. 92 licences under Category I and S. 84 licences under Category II. Although the paper is presently not available on the DIPP website, I have made available a copy of the policy over here. We had blogged about this paper over hereand here.

The CL policy announced by the DIPP was extremely ambitious and sought to give provisions like Section 92 a very, very liberal reading to include not only epidemics such as an outbreak of AIDs, malaria etc. but also chronic diseases like cancer and diabetes. While referring to the grounds in S. 92, the DIPP states:

“Given the extremely diverse nature of these three grounds, one view is that it may not be feasible or even desirable to focus the scope of their application in a definitional sense. Another view is that it is necessary to clarify that these grounds can be used for promoting access to medicines like cancer and diabetes. Para 4 of the “ Doha Declaration on the TRIPS agreement and Public Health” specifically clarifies that the TRIPS agreement does not and should not prevent Members from taking measures to protect public health. It further affirms the Members rights to protect public health and in particular to promote access to medicines for all. Thus chronic diseases can also be addressed though such provisions.”  

The Indian Pharmaceutical Alliance, the lobby of generic pharmaceutical companies responding to this suggestion stated “Whether patents for cancer and diabetes drugs (or for that matter any other article) can be notified under Sec 92 will depend on the justification relating to its use in conditions of national emergency, extreme urgency or public non-commercial use. There are only three grounds, as enumerated in the section itself, for invoking powers under Sec 92. Public health crises relating to the specified diseases and other epidemics are deemed to be within the scope of one or more of the grounds specified.”

The entire response of the IPA can be accessed over here.

The final results of Hameid’s lobbying and the DIPP’s discussion paper from 2010, is that India is today pretty much back to a system of ‘licence of rights’ for life-saving pharmaceuticals products, albeit on a case-by-case basis.

For all practical purposes, the entire purpose of TRIPs stands defeated because it is widely believed that PhRMA was the main force propelling TRIPs and protection of pharmaceutical patents was seen as the raison d'être of TRIPs.

How will PhRMA react to this announcement and more importantly how will the United States Trade Representative react to this announcement?

In response to the Nexavar compulsory license, the USTR in its Annual 301 report was extremely understanding of India’s public health concerns, stating “The United States will closely monitor developments concerning compulsory licensing of patents in India following the broad interpretation of Indian law in a recent decision by the Controller General of Patents, while also bearing in mind the Doha Declaration on TRIPS and Public Health found in the Intellectual Property and Health Policy section of this Report.” 

Further in the section on IP and Health Policy, the report states: "As affirmed in the Doha Declaration on TRIPS and Public Health, the United States respects a trading partner’s right to protect public health and, in particular, to promote access to medicines for all, and supports the vital role of the patent system in promoting the development and creation of new and innovative lifesaving medicines." We had blogged about it over here.

Will the USTR be as understanding of India’s decision today?

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Guest Post: Examining the recently announced Compulsory Licenses on anticancer drugs

In light of the recent decision to issue compulsory licenses for three anti-cancer drugs, Madhulika Vishwanathan brings us her third submission for our SpicyIP Fellowship application. After looking into the possible legal provisions that could have been used in pursuing this decision, she examines how generics may follow up on this decision by noting the differences in approach that they will have to take regarding small molecule drugs and biologics. (Note: Much of the first half includes quoted provisions, so the post is longer than usual)

Examining the Recently Announced Compulsory Licenses on Anticancer Drugs

Recently there was a well written post in Spicy IP regarding Government of India’s proposed decision to issue compulsory licensing for three anticancer drugs viz. Herceptin, Ixabepilone, and Dasatinib. I would like to further explore the decision by attempting to answer two questions: 

1. Which legal provision could have been explored for grant of compulsory license under the current circumstances? (Editor's note for the readers: A different interpretation has been put forth here regarding Section 92 as compared to the one put forth in our earlier post) 

2. What are the possible ramifications of the decision to issue compulsory license?

1. Which legal provision could have been explored for grant of compulsory license under the current circumstances?

To quickly review the situation: Sections 84, 91, 92, and 92A enumerate the various circumstances under which compulsory licenses may be granted. 

Compulsory licensing under Section 84 requires that after the expiration of three years from the date of the grant of a patent, an interested party should make an application to the Controller provided that any one of the following grounds are met i.e. (a) reasonable requirements of the public have not been satisfied (b) drug was not "reasonably affordable" to the public (c) patented invention was not worked in the territory of India.

It seems highly unlikely that an application for compulsory license has already been made by a generic manufacturer, so most probably the government has explored the option of compulsory licensing under Section 92. Under Section 92, the Controller can issue a compulsory licensing on application only after the Central Government issues a special notification.

Section 92(1) reads as “If the Central Government is satisfied, in respect of any patent in force in circumstances of national emergency or in circumstances of extreme urgency or in case of public non-commercial use, that it is necessary that compulsory licenses should be granted at any time after the sealing thereof to work the invention, it may make a declaration to that effect, by notification in the Official Gazette…” 

While the current circumstances cannot be classified “national emergency” or “extreme urgency”, public non-commercial use is a term with broad scope and compulsory licensing of anti-cancer drugs could be covered within this category. 

Section 92(2) reads as “The provisions of sections 83, 87, 88, 89 and 90 shall apply in relation to the grant of licences under this section as they apply in relation to the grant of licences under section 84.” As per section 92(2), in case of compulsory licensing under Section 92, a lengthy procedure is required to be followed which involves notifying the patentee followed by complete opposition proceedings.

However, Section 92(3) states that in the circumstances of National Emergency or Extreme urgency or public non-commercial use including public health crises, relating to Acquired Immuno Deficiency Syndrome (AIDS), Human Immuno deficiency virus, tuberculosis, malaria or other epidemics, to avoid any delay in the procedure, provisions under section 87 will not apply. Since the statute mentions specific diseases and epidemics, I am not sure whether “Cancer” could be construed as being within the ambit of these diseases mentioned under section 92(3). Hence I believe that if compulsory licensing is granted for these three drugs, usual procedures of opposition for compulsory licenses will be followed and expedited approval as specified in Section 92(3) will not be applicable in this scenario.

Alternatively, the government could also exercise its power vested with it under Section 100 (Power of Central Government to use inventions for purposes of Government). (Relevant provisions provided in coloured text below. Discussion continues after provisions)

Section 100(1) reads as “Notwithstanding anything contained in this Act, at any time after an application for a patent has been filed at the patent office or a patent has been granted, the Central Government and any person authorized in writing by it, may use the invention for the purposes of Government in accordance with the provisions of this Chapter”

Section 100(6) reads as “The rights to make, use, exercise and vend an invention for the purposes of Government under sub-section (1) shall include the right to sell on non-commercial basis, the goods have been made in exercise of that right, and a purchaser of goods so sold, and a person claiming through him, shall have the power to deal with the goods as if the Central Government or the person authorized under sub-section (1) were the patentee of the invention”

Section 99 defines use of invention for purpose of Government and reads as “For the purposes of this Chapter, an invention is said to be used for the purposes of Government if it is made, used, exercised or vended for the purposes of the Central Government, a State Government or a Government undertaking.”

Government use is as provided under Section 100 and can be invoked any time after the application for a patent has been filed, thus making it wider in scope than compulsory licensing under section 92. However, the license granted under Section 100 would only enable sale of the generic version of the drug through government channels distribution (i.e. through government hospitals at a certain reasonable price). In contrast, compulsory license under Section 92 would enable retail sale of the product.

2. What are the possible ramifications of this decision?

Out of the three anti-cancer drugs for which the government has started the process for issuing compulsory licensing, two are small molecule drugs (Ixabepilone, Dasatinib) and one is a biologic (Herceptin/Trastuzumab) ─ specifically a monoclonal antibody. 

The generic version of a small molecule drug can be demonstrated to be chemically and structurally identical to the innovator drug by using sophisticated analytical techniques. 

However, the threshold for regulatory approval for biosimilars is higher than conventional small molecule drugs and requires much more than demonstrating pharmacokinetic bioequivalence. Biologics are structurally more complex as compared to small molecule drugs and are extracted from cell culture. Even if the two cells are of the same type, conditions in the cell vary depending on various factors; such variations will have a profound impact on the structure of the resulting biologic. Thus it is extremely difficult for a biosimilar to have the same degree of reproducibility as is afforded by a conventional small molecule drugs. Also the immunogenicity of recombinant therapeutic proteins is an important safety concern. Furthermore, because biologics are formulated as injectables as opposed to tablets/capsules a small mistake could have severe repercussions. 

A case in point is when a small manufacturing change in production of Eprex (epoetin alfa produced by Johnson and Johnson) caused pure red cell aplasia and resulted in multiple fatalities. Eprex is used in the treatment of patients with anemia resulting from chronic kidney disease; these patients are unable to produce sufficient endogenous erythropoietin. A change in the formulation of Eprex caused a number of patients to develop neutralizing antibodies not only to the biologic but also to the native erythropoietin. Some studies suggest that organic compounds that leached from uncoated rubber stoppers in prefilled syringes contributed to the immunogenicity. 

Will David and Goliath team up?

The biosimilar industry is still in a nascent stage and most of the countries only recently developed guidelines for approval of biosimilars. The recently issued Indian guidelines for biosimilars stipulate rigorous testing regime in order to ensure safety and efficacy. In light of all this the onus of providing affordable healthcare without compromising on patient safety increases. Also with majority of the pharmaceutical companies in strategic alliances with MNC’s, it would be extremely interesting to see who takes up the challenge of manufacturing these drugs. Nature of the invention like complexity of the technology involved plays an important role in the effective utilization of compulsory licensing. Only time will tell, whether generic manufacturers are capable of and willing to produce and distribute generic versions of the Herceptin within an appropriate time frame.

From a small step to a giant leap, India’s first patent compulsory licensing order has indeed paved the way for issuance of compulsory licenses against other such expensive drugs.

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The S(war)tz Legacy and "Open" Lessons for India

Aaron Swartz is no longer with us; a towering intellect he was, representing the best of conviction and passion in a world where, as the poet Yeats sadly noted: 

 

"The best lack all conviction,  

while the worst are full of passionate intensity." 

 

As this blog debates the “proportionality” of the US response to this access to knowledge crusader and the causal linkage between the prosecution and his death, I wanted to reflect for a moment on his legacy and the important lessons for India and educational access.  

 

T'was perhaps appropriate that Aaron had the term “war” embedded in his very name (Swartz). And he did fight many of them. From his battle against the infamous SOPA, to his stealth attacks to “open” up academic content from proprietary databases, Aaron fought and fought well, albeit through means that were not strictly legal. But then, so did our Mahatma, who mainstreamed the concept of civil disobedience and courted arrest time and again for breaking what were essentially “unjust” laws.  

 

Our reflection on Aarons' legacy comes at a critical time for India, as access to education is under serious threat, thanks to an unfortunate law suit filed by leading book publishers against Delhi University and their photocopier. (I'll leave discussions around the Quixotic wars being waged by the government of India against internet freedoms for another post).

The DU Copyright/Education Case:

Owing to a rather fine array of well paid lawyers hired by publishers and an unfortunate grammatical rendering, a restraining order issued almost immediately in this law suit, pitting the public interests of students and educational institutions against the private (commercial) interests of publishers.

For those that came in late, this creative copyright jingle (set to music by John Daniel and picturised by Sudarshan Suresh) appropriately captures the essence of the law suit and what it stands for. 

Let me take the liberty of reproducing the pithy video description of the case on Youtube here:

"A group of publishers (Oxford and Cambridge University Press and Francis & Taylor) have sued Delhi University & its agent, Rameshwari Photocopy Service for compiling short extracts from different textbooks into a digest for students to use as part of their study (commonly referred to as "course packs").

Naturally, students, teachers and even authors of these text books have protested this aggressive law suit, particularly since this is perfectly acceptable under the Indian Copyright Act, which allows for "fair use" and permits any reproduction of copyrighted works, so long as it is done in the course of educational instruction.

This is not mala fide use, nor is anyone selling these 'course packs' for profit. Publishers going after students, many of them from economically disadvantaged communities, despite the high cost of textbooks, really begs the question - whither our constitutionally guaranteed fundamental right to education?

In this festive Christmas season of giving and sharing, one really wonders what is the point of all this copyright aggression. Do we want these poor students to buy entire textbooks for the sake of a few pages? Or perhaps access to knowledge is not a concern at all, when there is money to be made in the name of copyright.

The publishers have, using their legal might, secured a temporary victory with a recent Delhi High Court order restraining Delhi University and the photocopier from making and distributing ANY course-packs! Meanwhile, students have nowhere to go and are struggling to access very basic material required for exam preparations that are just round the corner.

"Pay up, pay up, pay up" seems to be the publishers' mantra. But let's sing along and battle this to the finish in true Christmas spirit. And lets hope that the new year brings in good cheer, as the Delhi High Court reverses the restraining order and rules in favour of students.

Share this with your friends, teachers, colleagues and others so everyone is made aware of this heinous injustice and we can all fight together to right this copy-wrong. For more information on this unfortunate law suit, see the well known Indian IP blog, SpicyIP which has been tracking these legal proceedings."
 

In the Name of Authors:

A number of authors in whose names this law suit has been allegedly brought have already spoken out against this excessive copyright aggression that seeks to outrightly ban the creation of any course packs, even those that extract no more than a miniscule proportion of copyrighted books. The latest in this line of academic protesters' is Kaushik Sunder Rajan, a leading scholar at the University of Chicago (and author of the famous Biocapital) who in this email notes:

"One thing I would like to say (and will happily say on record) is that for me, as an author, the ability to have my work photocopied in India has been absolutely essential. I was not able to find an Indian publisher for Biocapital, even though the book deals with issues of Indian science. I have been very keen for my work to be read by Indian academic, activist and scientific communities.

The *only* way in which my book has been read has been through photocopying, and I have given copies of my book to individuals in India explicitly requesting that they photocopy and distribute as widely as possible. Without this, my work would only have been read by primarily Euro-American audiences, which would have defeated the very purpose of my being an academic.  

I am happy for you to quote this in any affidavit you may file if it is of use. I think it is important to establish that the ability to freely reproduce academic works through photocopying is important not just for consumers in (relatively) resource poor settings who cannot afford Euro-American prices, but is also important for authors who wish to disseminate their work outside Euro-American settings.
 

...This just makes the actions of OUP, CUP and T & F seem to me ever more petty, egregious, and worthy of the strongest opposition and condemnation."
   

Publishers have offered and continue to offer the prospect of a license to Universities, seeking to convert what is essentially a copyright defence for education (where copyrighted works can be used without any payments whatsoever) to a compulsory licensing provision (where royalties/licensing fees would need to be paid). Tellingly, the Canadians who opted for the licensing route, are now bearing the brunt, as the low rates offered by publishers in the initial years have rapidly escalated. Some universities have wisened up and are now refusing to renew their license.

We need to ensure that the educational access space in India remains open and is not unduly constricted through an uncontested judicial process. A loose coalition of academics, lawyers, activists and students has therefore come together to intervene in this law suit and point the court to the fact that section 52 of our copyright act contains a rather liberal educational exception that covers the creation and dissemination of course packs. We are looking for more support and plan to file two sets of intervention petitions. One on behalf of students, and another on behalf of academics/authors. If you're interested in joining us on the student petition, please email Amlan Mohanty at mohanty.amlan@gmail.com. If you're an academic or author and plan to join us in the intervention filed on behalf of academics, please email me at shamnad@gmail.com.

Back to Swartz and his incredible legacy in the short span of 26 years that he graced us with his presence. As a dear friend of mine put it so tellingly: "Even for a small fish like me, from a well funded university, the academic access  issue strangles my work and Swartzs' battle is the defining battle of our times."

And defining it is, in a world where the powers that be conspire time and again to reassert hegemony and re-establish control in a digital world whose essential DNA is one of openness and sharing.

ps: image from here. 

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SpicyIP Events: Patracode announces Workshop on Tools for Researching and Managing Intellectual Property

SpicyIP is pleased to announce Patracode's workshop on tools for researching and managing Intellectual Property. Interested participants should note that while there is no registration fee, seats are limited, so all interested parties are requested to confirm by January 21st, 2013. More details as stated below: 

"Patracode, founded in 2010, is a unit of quick learners who are actively involved in catering the needs of seekers in the field Intellectual Property. They have earned good experience of handling the sophisticated clients of IP fraternity by successful representation of reputed global IP products in India. The company has headquarters in Bangalore, India and addresses the demands of clients by its trained work force located at various parts of country.

Patracode is conducting a workshop on "Tools: Researching and Managing Intellectual Property" in association with our Business Partners Questel, IPFolio and Corsearch – Wolters Kluwer.

The aim of workshop is to introduce various solutions which can simplify researching and managing intellectual Property for a Business Organization and supports its IPR, R&D and Legal Department.

The speakers will be:

1. Laetitia Aymonin, Sales Director, Asia-Pacific, Questel will take you through various features, enhancement of Orbit.

2. Rupert Mayer, Chief Executive Officer, IPfolio Corporation will throw light on efficiently managing and analyzing data related to own IPs.

3. Craig Bailey, Business Development – New Markets from Corsearch – Wolters Kluwer will focus on researching Trademarks throughout the world in a structured fashion.

The Venue & dates:

Date: 25^th January 2013, Friday        Venue: Keys Hotel, Whitefield, Bangalore

Date: 28^th January 2013, Monday     Venue: Keys Hotel, Kalyaninagar, Pune

There is no registration fee but limited seats so all interested participants are requested to confirmation before 21^st Jan 2013. 

Please contact Ms. Nurjahaan @8880238927 for more details."

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Mark Lynas, former anti-GM food activist embraces GM foods at Oxford Conference

Image from here

In a surprising turn of events, Mark Lynas, a former campaigner against genetically modified foods has completely reversed his views on the topic at a conference in Oxford and has now given genetically modified food his stamp of approval. Earlier in his career, Mark Lynas, reportedly played a key role in the anti-GM campaign in both Europe and India, where GM food remains banned due to poor public confidence in the safety of the food. Lynas appears to have been one of the more radical anti-GM campaigners and somebody who never shied away from throwing pies at people like Bjorn Lomborg. Even when he recanted his opposition against GM foods he didn’t do so at a cocktail party or tea party but in a speech before an audience at the Oxford Farming Conference. 

The video of his speech and the entire text of the speech can be accessed over here. Here’s a sampler, with the first paragraph “For the record, here and upfront, I apologize for having spent several years ripping up GM crops. I am also sorry that I helped to start the anti-GM movement back in the mid 1990s, and that I thereby assisted in demonizing an important technological option which can be used to benefit the environment. As an environmentalist, and someone who believes that everyone in this world has a right to a healthy and nutritious diet of their choosing, I could not have chosen a more counter-productive path. I now regret it completely.” 

This article on the NYT website is also a must read. 

I can only imagine the guts that it must have taken for this man to stand before a crowd of people and publicly recant his views. 

The Indian Express carried an interesting interview (available here) with Lynas on the reversal of his views on GMOs which have been an incredibly controversial topic in India were anti-GM campaigners have been successful in blocking all efforts by companies like Monsanto to introduce GM foods in the Indian market. The Express interview quotes Lynas as stating “Indian anti-GM activism is based on widely believed myths and popular misconceptions and conspiracy theories, promoted by political activists like Vandana Shiva, who find anti-GM a convenient banner to organise their reactionary campaigns against modern technology and capitalism in general”. 

When asked for a comment by IE, Shiva had this to state “This fellow does not even know science,” an angry Shiva shot back. “I am a PhD in quantum theory. All that he is saying now is like being another spokesperson of corporates like Monsanto. The United Nations would not have created a UN protocol on biosafety if there were no issues related to GMOs (genetically modified organisms). He cannot accuse the UN of working on myths.” Mincing no words, Shiva added: “I, in fact, have got recognition for drafting related frameworks at the global level. He, it seems, has the recognition of corporations that are paying him.” Well, I don’t think anybody was expecting Shiva to embrace the chap but to accuse him of being a paid hack seems a bit unfair.

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Rebutting ad hominem Twitter attacks

I was aware that I would receive some amount of criticism for my last post on the Swartz suicide given that I am criticized for pretty much anything that I write these days but I was surprised to hear some vicious criticism from some unexpected sources, namely Nandita Saika, a media and tech lawyer who maintains an interesting blog on Indian copyright law which you can access over here, in case you haven’t yet already heard of it. 

On her twitter handle, Nandita writes “Nandita Saikia ‏@nsaikia: “Just read Prashant Reddy over at @SpicyIP on 'IP ideologies and the Swartz suicide' and am disgusted beyond all measure” 

While Twitter does encourage, if not institutionalize brevity, I would have expected somebody like Nandita, whom I do not remember meeting, to explain why she was condemning me on a public platform – without  engaging in a constructive dialogue. For those of you who have followed the comments section on my last post, you will see that there have been several disagreements with my initial views by Swaraj and others and I have had an interesting discussion with them to get to the root of the matter and I think all parties, me included are more educated by the same. 

But given that Nandita has chosen to condemn me on a public forum, without the minimum courtesies, I would like to present an unsolicited defence. I made three brief points in my last post: 

(i) That nobody knew the reason for Swartz’s suicide – was it the prosecution or was it the depression that he had blogged about himself back in 2007? 

(ii) I explained the background context of his prosecution and added some points to Swaraj’s earlier post on the issue and quoted some very reliable sources for the same; 

(iii) I warned against using Swartz’s suicide as a tool in the IP debate, since we didn’t know what caused his suicide and it just feels wrong to use the untimely death of a young man as a political tool. 

The only difference between my post and other posts like Swaraj’s post was that I didn’t display too much emotion. There is a reason for that – I have very strong views against suicides – the very first funeral that I went for in my life was for a friend who committed suicide – to see the despair in the parents and the friends who felt they didn’t do enough was heart-breaking, to say the least. I’m not one of those people who believe that we have total control over our life but I do believe that the decision to take our own lives is certainly within our control. 

I didn’t want to moralize on Swartz’s suicide and I am still not going to moralize on his suicide because as much as I may be against it, I have no idea what was going on in his head before he took his life. Which is why I chose my last line in the previous post, very carefully: “We must mourn but we must not forget that there is no glory in death by suicide.” I think young people out there, especially in the Indian education system need to be told that there is always somebody to talk to about your problems and that suicide is not the solution to anything. The message should be one of encouraging young people to reach out for help in times of trouble instead of getting into a blame game. Unfortunately almost everything I have read about this suicide, contains only a message of vengeance targeted at those perceived to be responsible for this unfortunate suicide.

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