Who owns your email account when you die?

There’s an interesting article in today’s Hindu about who gets to access your email/facebook account once you die. I think there are two questions – who gets the right to access this information that is held by your service provider, and what can be done with this information.

ACCESS
As a quick response to this question, most online service providers recognize that their ‘privacy policies’ are subject to the ‘operation of law’. See for instance what GMail’s Privacy Policy has to say on information sharing:

Google only shares personal information with other companies or individuals outside of Google if..
We have a good faith belief that access, use, preservation or disclosure of such information is reasonably necessary to (a) satisfy any applicable law, regulation, legal process or enforceable governmental request,

At the simplest level, this means that if are the deceased’s successor – say, the legatee under a will-  you will be able to access the deceased’s email account according to this policy. Gmail also has a page giving specific instructions on how to access the deceased’s email. This requires, inter alia,

5. A United States court order authorising access to the specific email account in question.

Presumably this would include orders from Indian courts that are executed through US courts.

The Hindu article suggests that one can look at email accounts as ‘assets’. My reading of GMail’s Terms of Service suggests that things may not be as simple for the following reasons:

• There is a disctinction between your email and your email account. While the email you send, and the Content of your email account is undeniably your ‘asset’ (since you hold copyrights over them), your email accounts are provided to you as a ’service’. This service may, according to Google’s terms, be stopped permanently or temporarily at Google’s sole discretion and without prior notice (Para 4.3 of TOS) . Further, “Google reserves the right to .. to pre-screen, review, flag, filter, modify, refuse or remove any or all Content from any Service.” (Para 8.3).
• Google holds your Content not as a custodian in the sense of a bailee, but as the licensee of the copyrights in them (Para 9.4). This is a technical, legal point, but one with much legal import. As valuable as your email may be to you, if Google deletes your email account after your death, it will not be “destroying your assets” as much as simply withdrawing a service that is within its discretion. This would be the case even if Google does this during your lifetime. You are solely responsible for keeping backups of your own mail.
• This is analogous to a situation where you are the heir of a famous author who had licensed their copyrights to be used by a publishing company. You inherit the copyright in the author’s works, but not the individual copies of the books which are stocked by the publishing company .

USE
Need to check the law here – I recollect there being a difference between the ownership of the individual copy of a letter itself, versus the copyright in what was written. Thus if I received a handwritten letter from my hero and Prime Ministerial candidate Lalu Prasad Yadav, I have the right to auction that particular letter and become a millionaire. I do not, however, thereby, get a right to reproduce copies of the letter, translate adapt etc. This would infringe his copyright if such use is not saved by fair dealing. (This is a point I have to repeatedly stress, since so often ignored in mainstream media – India has one of the most extensive regime of fair dealing rights and these rights trump copyrights in all kinds of ways. Please read section 52 of the ICA)
Some interesting US case law on the issue here.

What does this have to do with email accounts? I think this distinction would vanish. If Mr. Yadav sent me an email, for instance, I might notionally have a title over that ‘copy’, but for all practical purposes that title would be useless. Printing or forwarding a copy of the email would count as reproducing it – an infringing act unless it is saved by “fair dealing” exceptions (for instance private use and research).

(CAVEAT:I’ve only looked at GMail’s Terms of Service and so this post cannot be a comment on Yahoo’s or Hotmail’s services. I don’t think their policies would be vastly different, but you should check for yourselves)

One of the features of the ‘information society’ we inhabit is that I am convinced that I am never going to die.  I cannot help this feeelng. For others, there’s a detailed article morbidly titled “Planning for your digital death” which gives you step by step instructions on how to, er, ‘plan‘ your digital death.

Madras HC orders review of Roche’s AIDS drug patent

Another important victory for the Lawyer’s Collective and the access to medicine campaign. The Business Standard reports today that the Madras High Court has ordered a review of Roche’s valganciclovir marketed under the name Valcyte in India. This is described as “a critical drug needed for patients suffering with life threatening illnesses such as AIDS to prevent them from infections.” Excerpts from the BS report (also see the Lawyer’s Collective report):

The court’s decision is in response to a petition filed by the Indian Network of Positive People and the Tamil Nadu Network of People with HIV/AIDS against the Chennai patent office’ decision to grant patent for Valgancyclovir without hearing their pre-grant opposition.
The patent was granted for Roche in June 2007, without hearing the opposition filed by the groups alleging that the drug lacks novelty and hence non-patentable. The patient groups has maintained that the drug was first patented in the US in 1994 and as Indian laws provide product patent protection only to those drugs that are patented after 1995, and hence, cannot be considered patentable.

“Valgancyclovir is an important drug for HIV/AIDS patients and a product patent allows monopolistic situation in India, where the drug is sold at very high price. We are happy about the court decision,” said Loon Gangte, president of Delhi Network of Positive People (DNP).

Meanwhile, industry observers said the Madras High Court decision could impact another case being heard by the Bombay High Court between Roche and Indian generic drug maker Cipla on the same drug.

Roche had filed patent infringement case against Cipla seeking an order to stop the generic drug maker from selling its version of Valcyte, which was launched in January, this year.

From the Lawyer’s Collective report

At the centre of the dispute is the drug called valganciclovir, which is a prodrug of an already known drug ganciclovir. This drug is crucial for treatment of cytomegalovirus (CMV) retinitis, an opportunistic infection that affects persons living with HIV, and to prevent CMV infection in patients who have received organ transplants. At Roche’s maximum retail price of over Rs. 1000 (approx USD 20; 1 USD = approx Rs. 50) per tablet, a patient who has to take a treatment course of approximately four months for CMV retinitis would have to pay about Rs. 250,000 (approx USD 5000). This puts the treatment out of reach for those who need them.

In July 2006, INP+ and TNNP+ filed a pre-grant opposition before the Patent Office at Chennai objecting to the grant of a patent to Roche for valganciclovir and requested the Patent Office for a hearing. Under the Indian law, if an Opponent requests a hearing, the Patent Office is required to hear the Opponent. The Patent Office sent the pre-grant opposition to Roche and received a reply from Roche. Satisfied that the objections raised by INP+ and TNNP+ had been met by Roche, the Patent Office went ahead and granted a patent without hearing INP+ and TNNP+. The grant of the patent was published in June 2007. After correspondence with the Patent Office failed to yield any result, INP+ and TNNP+ filed a petition in the Madras High Court in October 2008. They alleged that failure to grant them a hearing amounted to violation of the mandatory requirements of the patent and also a violation of the principles of natural justice. The Assistant Controller, who had granted the patent, filed a reply justifying the grant. Roche objected to the petition on the ground that INP+ and TNNP+ could take recourse to mechanisms such as post-grant opposition or revocation available under the patent law to challenge the grant of the patent.

The Crow’s Domain

Chandamama is hosting some of its archival editions online for free view. Along with Amar Chitra Katha, Chandamama is probably one of the most extensive ‘popular’ documenter of folklore in India. I’m slowly going through the back issues accessible online and they are an absolute treat. I only hope they decide to make all of their rich archives available online preferably for free. I’m including one of the stories I read and liked.

Lessons in Cola, Copyright, Constitutionality and Generosity for dear Mr. Raju (from a self-appointed legal educator)

I’m responding to Raju Narisetty’s blog post on copyright infringement, along with which he tosses in some rambling invectives against Sunita Narain and the Center for Science and Environment (CSE).  In his words, “it all began” with his discovery of Mint articles archived at a site run by the CSE (www.indiaenvironmentalportal.org). The article claims that users and readers have absolutely no right to use Mint contents for any purpose unless The Mint expressly authorizes them. Mr Raju finds a gleefully irony in the fact that he can now accuse the CSE of a misdemeanor, as revenge for their having had the temerity to take on the Colas during their highly acclaimed pesticide campaign. I want to dwell briefly on his digs at the CSE, before addressing his observations on Copyright.

Coke
In relation to Sunita Narain and the CSE’s extremely hard fought campaign against the big colas, Mr. Raju scours the entire internet and finally handpicks this link - a monumentally stupid, 3 sentence piece in the National Public Radio’s website which says this.

“ In India, several states have banned the sale of Coke and Pepsi after a group called The Center for Science and Environment said the soft drinks contain unacceptably high levels of pesticide. The national government of India has said the Center’s data is flawed. But the state governments continue to ban the products.”

(I’m quoting the entire article, here and I hope Mr. Raju doesn’t give himself a nosebleed if he sees this)

While this snippet certainly does not tell you the “entire saga” of high toxicity levels in colas in India, it reveals much about Mr. Raju’s own worldview.

The CSE is a “group” – like the Taliban, the Bajrang Dal and the Indian Mujahideen – that is “prone to pointing fingers”, and is not the well-respected two-decade old research organisation that we know it to be. This ‘group’ is obviously populated by some nasty attention-seeking lunatics who are strangely influential amongst lowly state governments who irrationally ban the sale of colas. By contrast, the “national government of India” – the repository of reasonableness and true wisdom – is, however, wiser, and pooh-poohs the madwoman’s rants.

Undoubtedly, Sunita Narain is one of the many  “self-appointed guardians of right and wrong behavior in our society” whom Mr. Raju cannot abide. Coke and Pepsi would, of course, do nothing of the sort since, as we know, Coke is an honourable man. In fact, they advertise with him, these colas.

Here’s a snippet from another article that tries to capture what the real pesticide saga is about.

The most common pesticides detected by the CSE in the samples were Lindane, Chlorpyrifos, Heptachlor and Malathion. Lindane accumulates in fat tissues and damages the liver, kidney, neural and immune systems, and induces birth defects and cancer. Exposure to Chlorpyrifos adversely affects brain cell development. Malathion causes dna abnormalities at all doses.

According to CSE, the United States has restricted the use of Heptachlor to underground termite control. If the results are to be believed, therefore, they could have serious health implications for people.

Why should a global company which provides quality products globally provide a substandard product in India? Equally importantly, will our government give more importance to the threat of reduced investment vis-à-vis a possibly very real health threat to the public at large?

It’s a little shocking that the editor of a major national newspaper would exhibit openly his ignorance of important public issues. Or perhaps he is only exhibiting his antipathy towards them. In 2006, at a Global Meeting in Istanbul, Coca Cola issued special-edition coins with “Coca Cola Republic of Happiness” inscribed on them. More than a mere marketing gimmick, I imagine this “Coca Cola Republic” to be an actually existing borderless nation-state with a devoted population that includes people of Mr. Raju’s ilk. This population emphatically denies allegiance to any of the recognized constitutions of the world, and is opposed to being identified with the peoples of any country. The ‘other’ of this republic is not any one sovereign state, but the  “ordinary public” of the entire world.

Copyright
The pretext for this attack is equally ill-conceived. Mr. Raju is visibly pained that the CSE has not sought his express permission in writing before collecting the articles in its database. This “egregiously” violates, in his learned legal opinion , the Indian Copyright Act, 1957. At the heart of Mr. Raju’s attack is an extremely parsimonious view of freedom of speech and the press.

Where is an Intellectual Property?

The Authority for Advanced Rulings on Income Tax in India has recently held in a case by Foster’s Australia Limited, that intellectual property (which is treated as a capital asset for IT purposes) is located everwhere it is used, so that when an Australian beer company (Fosters), which had licensed its brand to indian manufactures for use in India, tranferred its trademarks to a
UK company, the transfer amount would be taxable as an income arising
in India.

” The situs of these intellectual property assets, in our view, should not be traced and confined only to the place where the contract (India S&P Agreement) was entered into and acted upon by the parties.

On the relevant date of transfer, they were very much present in India and the transfer of such assets took place concurrent with the transfer of controlling interest in Foster’s India to SAB Miller. At best, their location in Australia is only notional or fictional. The fact that the trade-marks and names originated in Australia and initially registered there does not make material difference.”

There’s an interesting article by TCA Ramanujam in today’s Hindu Business Line covering the issue.

BSA Bullshit – How 10% reduction of PC Software piracy in India could lead to additional $200 million tax revenues in US

This is in response to the verbal diarrhea periodically expelled by Microsoft and its Business Software Alliance cohorts suggesting that reducing piracy in India will lead to “Economic Benefits” – including enhanced tax collections to the tune of 200 million USD (now who could say no to that).

Fact is, most big software manufacturers never pay tax in India. Here’s how.
1) Most major software houses’ campuses are located in Software Technology Parks which have been enjoying a 10 year tax holiday since 1999 (extended till 2010). This means that any software that they develop in India and transfer to their parent undertakings abroad are 100% exempt from any taxation. (The normal rate of tax on income from royalty payments is about 10%.)

2) The same finished-software is then resold in India in “shrink wrap” packages. Another tax evasion occurs here. Most shrink-wrapped software that is sold to you, is sold via a chain of extensive distribution agreements instead of directly by the company’s unit in India. You buy Ms Windows from a distributor and not from MS India directly. This is done so that the “permanent establishment” in respect of the software unit sold is the US company and not MS India. By virtue of double taxation avoidance agreements (DTAAs), these companies classify such income as “business income” – taxable in the foreign country – rather than ‘royalties’ that are taxable in India. The implications of this loot are staggeringly high. The recent fight between the CBDT and Microsoft is a case in point where Microsoft has refused to pay income tax to the tune of 700 crore rupees (roughly USD 175 million).(Although the Income Tax Tribunal in this case has insisted that Microsoft is liable to pay the amount, the weight of legal authority seems to suggests that this demand will be overturned in appeal)

So in effect, the current BSA “study” (defying any relation to ‘reality’ that the word might ordinarily indicate) proposes to increase the amount of tax it can loot from India in addition to the USD 175 million that it already does to nearly 375 million through curbs on piracy.

Game’s up BSA^TM. Since I don’t want to doubt your OH-so-genuine concern for my country’s “economic benefits”, howzabout you just pay us the nearly $175 million you’re funnelling away to the US? And we don’t even have to touch piracy. Pay up, or Shut up.

UPDATE: There’s a really good article about this at Rediff.

BSA Bullshit – How 10% reduction of PC Software piracy in India could lead to additional $200 million tax revenues in US

This is in response to the verbal diarrhea periodically expelled by Microsoft and its Business Software Alliance cohorts suggesting that reducing piracy in India will lead to “Economic Benefits” – including enhanced tax collections to the tune of 200 million USD (now who could say no to that).

Fact is, most big software manufacturers never pay tax in India. Here’s how.
1) Most major software houses’ campuses are located in Software Technology Parks which have been enjoying a 10 year tax holiday since 1999 (extended till 2010). This means that any software that they develop in India and transfer to their parent undertakings abroad are 100% exempt from any taxation. (The normal rate of tax on income from royalty payments is about 10%.)

2) The same finished-software is then resold in India in “shrink wrap” packages. Another tax evasion occurs here. Most shrink-wrapped software that is sold to you, is sold via a chain of extensive distribution agreements instead of directly by the company’s unit in India. You buy Ms Windows from a distributor and not from MS India directly. This is done so that the “permanent establishment” in respect of the software unit sold is the US company and not MS India. By virtue of double taxation avoidance agreements (DTAAs), these companies classify such income as “business income” – taxable in the foreign country – rather than ‘royalties’ that are taxable in India. The implications of this loot are staggeringly high. The recent fight between the CBDT and Microsoft is a case in point where Microsoft has refused to pay income tax to the tune of 700 crore rupees (roughly USD 175 million).(Although the Income Tax Tribunal in this case has insisted that Microsoft is liable to pay the amount, the weight of legal authority seems to suggests that this demand will be overturned in appeal)

So in effect, the current BSA “study” (defying any relation to ‘reality’ that the word might ordinarily indicate) proposes to increase the amount of tax it can loot from India in addition to the USD 175 million that it already does to nearly 375 million through curbs on piracy.

Game’s up BSA^TM. Since I don’t want to doubt your OH-so-genuine concern for my country’s “economic benefits”, howzabout you just pay us the nearly $175 million you’re funnelling away to the US? And we don’t even have to touch piracy. Pay up, or Shut up.

UPDATE: There’s a really good article about this at Rediff.

Drug authority may require patent for approval of biosimilar drugs

The Hind Business Line reports that the Drug Regulatory Authority in India is “considering a proposal wherein generic versions of bio drugs, called biosimilars, may be mandated to apply for patents.”

Biopharmaceutical drugs are medicines produced using a living system or genetically modified organism. Compared to traditional chemical medicines, even a minor change in the conditions, formulation or the processes can change the final product drastically.

Biosimilar medicines are supposed to be replicate versions of original biopharmaceutical medicines designed to treat the same diseases as the innovator’s product. However, compared to generic versions of chemistry based medicines, biosimilar medicines are extremely complex.

The report quotes the Director General of the pressure group ‘Organisation of Pharmaceutical Producers of India’ (which counts among its members several “Big” pharma companies like Pfizer, Eli Lily, Roche and GSK, significantly excluding generic biggies like Cipla and DRL) as approving this idea because of “the complexities involved,”

The very nature of a biologic means it is practically impossible for two different manufacturers to produce two identical biopharmaceuticals if identical host expression systems, processes and equivalent technologies are not used. This has to be demonstrated in an extensive comparability programme. Therefore, a generic biopharmaceutical cannot exist.”

A “Government source” however said that a final view is yet to be taken.

According to Mr. Ray only such stringent measures can facilitate the growth of the biogeneric business.

Ha.

Articles on GIs and creativity

Some interesting articles in the papers this last week.

Latha Jishnu’s written a characteristically insightful and analytical piece about GI registration in India. Excerpts:

In recent months there has been practically a stampede for GI registration in India. Unlike the developed countries which use it primarily for food products (Champagne, of course, and things like Parma Ham), India has extended GI protection to products across the spectrum, from handicrafts to flowers and spices. Thus the Aranmula mirror, along with assorted silks, saris, textiles and embroidery styles, joins soaps, incense, different varieties of jasmines, several strains of rice, tea, betel leaf, pepper and chillies to get the GI tag.

The GI Registry at Chennai, where right-holders can register their products, is getting inundated. The question, however, is how much of a protection a GI offers. For one, other WTO members are not obliged to ensure the same kind of protection to all Indian GIs because there is a problem of hierarchy. Although TRIPS has a single definition for all GIs, it has authorised a two-level system of protection: one, a general protection under Article 22, and the other, a higher level under Article 23 that is applicable only to wines and spirits.

According to some experts, Article 22 is not good enough. It is simply a law against unfair trade practices and for consumer protection and is not really for IPR protection. A producer not belonging to a specific geographical region could still use the GI as long as the product’s true origin is indicated on the label. In other words, an Aranmula mirror could be turned out from, say, Houston in Texas, thus allowing an American producer to free ride on the reputation and market goodwill created by Keralite artisans over two centuries. Tellicherry pepper and Udupi jasmine thus far are not in the same class as wine from Champagne.

Lawrence Liang’s article in the Indian Express covers the recent Rakesh Roshan V Ram Sampath row in the Bombay High Court and makes some poignant comments on creativity, copying and copyright.

The language of the case and the reportage around it rely very heavily on the language of theft, property and damages for infringement of copyright and plagiarism in music. This rather hasty leap of faith to stricter enforcement of music copyright does not seem to find too much support in the history of music itself. While there was surely a violation of propriety in the Ram Sampath case, the important question that emerges is the impact of thinking of creativity only in terms of property. The history of copying, appropriation and plagiarism is in fact central to the history of various forms of cultural production, including music. We should therefore be a little cautious when we celebrate this case for the quick remedy it provided to an act of copying.

The act of copying has been central to the ways in which culture has flowed through various parts of the world, transcending the limitations set by space and time. Thus a Polish folk song, “Szla dzieweczka do gajeczka”, becomes a part of Indian popular consciousness through its adaptation as Salil Chaudhury’s “Dil Tadap Tadap Ke” from Madhumati. Secondly, the creation of music has always relied on adaptations, influences and inspirations, whether conscious or unconscious. It would be unfortunate if as a result of aggressive copyright suits, we reach a situation like the United States where even subconscious copying is held to be infringement. In a case brought by a band, The Chiffons, against former Beatle George Harrison, the court held that Harrison’s “My Sweet Lord” was in infringement of The Chiffons’ “He’s so fine”, even though the judge believed that Harrison did not intentionally copy the song and had only been inspired by it subconsciously.

In our enthusiasm to protect the creator and ensure that he gets his just rewards, let’s not forget that the sense of touch is not limited to the hand, but extends to our eyes and ears. It is only natural that when we create something, it will be influenced by things we have read, heard or seen, even if they are not our property. Walter Benjamin describes this form of mimicry as a form of learning as a “sensuous similarity”, a right to copy, which should be as jealously guarded as copyright.

New Bangla Patent Act?

Business Standard today carries this slightly unclear piece about a new Bangladeshi law that will increase “chances of technical partnerships in Bangladesh”. Apparently, Bangladesh has “changed its patent law in an attempt to become a hub for manufacturing cheap copies of patent-protected medicines. ” However, another statement in the same article casts some shadow on this assertion:

Nazmul Ahsan, general secretary, Bangladesh Association of Pharmaceutical Industry (BAPI):

“Our government is actively considering various provisions to incorporate the flexibilities of TRIPS (trade-related intellectual property rights) within the patent law. It will be in the form of annexes that make production of medicines having patent protection elsewhere legally possible. We will be able to supply it to other developing nations also,” he said.

The article contains the usual info about the TRIPs, parallel imports and developing countries as well as some useful info on how the Indian pharmaceutical industry operates:

India, under its new patent regime, cannot supply raw materials or bulk drugs of patented medicines. However, it can supply intermediates (which are one step down in the manufacturing cycle of bulk drugs) anywhere in the world.

If Indian companies can strengthen the technological capabilities of their Bangladesh partners, these intermediates can be further developed into bulk drugs and finished medicines in that country. While these medicines have an assured market in all poor countries, they can also reach nations like India on the basis of compulsory licences.

“Indian bulk drug companies are going to fetch good business as penultimate raw material suppliers to bulk drug firms in Bangladesh. It will be definitely attractive for all new products that cannot be made in India,” he said.

So.. we can’t directly infringe patents and manufacture drugs. So we will manufacture them cheaply till their last step. Export them over the border to Bangladesh where they are assembled. Then use compulsory licensing to re-import drugs back to India. A pirate alliance like no other! Everyone’s happy.

Bangladesh shouldn’t be happy with this arrangement. A couple of months ago, Padma Gehl-Sampath made a presentation at the Alternative Law Forum on the technical capacity of the Bangladesh pharmaceutical industry. According to her, although the industry has a fairly robust manufacturing base, it has a very thin research base due to inadequate investment in pharmaceutical education. So Bangladesh imports machinery to manufacture drugs, but does not itself possess enough skilled manpower to reverse engineer drugs. India’s pharmaceutical industry ‘miracle’ since the 70s has owed itself to the fact that we had a largish base of skilled pharmacologists who could re-engineer very quickly.

So, short term, as an Indian, this makes me very proud. Long term, I’d like to see more pirate drug producing nations.