In Event and Entertainment Management Association v. Union of India, at issue was the constitutionality of a notification issued by the Commissioner of Police which called on all police officers to
“attend to and provide assistance” whenever any complaint “in respect of violation of the provisions of Copyright Act, 1957” was received from any of the three big three copyright bullies : Super Cassettes Industries Limited, Phonographic Performance Ltd and Indian Performance Right Society Ltd.. This virtually amounted to the commandeering of the criminal enforcement system by a few private owners for their own private interests. It enables these companies to summon to themselves the already expansive powers under Section 64 of the Copyright Act.

By way of background, in 1984, Section 64 of the the Copyright Act was amended to give pre-emptive powers to any police officer, not below the rank of a sub-inspector, to seize without warrant all infringing copies of works “if he is satisfied” that an offence of infringement under section 63, “has been, is being, or is likely to be, committed”. Prior to amendment, this power could only be exercised by a police officer when the matter had already been taken cognizance of by a Magistrate.

Prima facie, this is a very sweeping power since its exercise only depends on the “satisfaction” of a police officer. To put matters in perspective, under the Income Tax Act, dealing with the far more serious issue of tax evasion, a search and seizure can only be conducted “where Director of Inspection or Commissioner in consequence of information in his possession, has reason to believe that any person having in possession of any money, etc..” has not disclosed it for purposes of Income Tax.

Returning to the case, the Delhi High Court struck the notification down, as unconstitutional. Justice Muralidhar of the Delhi High Court held:

“To the extent the impugned circular privileges the complaints from SCIL over other complaints from owners of copyright it is unsustainable in law for the simple reason that there has to be equal protection of the law in terms of Article 14 of the Constitution. The police are not expected to act differently depending on who the complainant is. All complaints under the Act require the same seriousness of response and the promptitude with which the police will take action, Likewise, the caution that the Police is required to exercise by making a preliminary inquiry and satisfying itself that prima facie there is an infringement of copyright will be no different as regards the complaints or information received under the Act.”[1]

The Judge also made some welcome remarks on the manner in which complaints under Section 64 were to be handled:

In order that the power to seize in terms of Section 64 of the Act is not exercised in an arbitrary and whimsical manner, it has to be hedged in with certain implied safeguards that constitute a check on such power. Consequently, prior to exercising the power of seizure under Section 64(1) of the Act the Police officer concerned has to necessarily be prima facie satisfied that there is an infringement of copyright in the manner complained of. In other words, merely on the receipt of the information or a complaint from the owner of a copyright about the infringement of the copyrighted work, the Police is not expected to straightway effect seizure. Section 52 of the Act enables the person against whom such complaint is made to show that one or more of the circumstances outlined in that provision exists and that therefore there is no infringement. During the preliminary inquiry by the Police, if such a defence is taken by the person against whom the complaint is made it will be incumbent on the Police to prima facie be satisfied that such defence is untenable before proceeding further with the seizure.(emphasis added)[2]

What’s not to love about Judge Muralidhar (famous inter alia for the Naz Foundation and the Delhi cycle-rickshaw pullers case)?! In one stroke, he has both tempered the severity of Section 64, and renewed the vitality of fair dealing rights in India. Police Officers must now both:

1. be prima facie satisfied that there is an infringement of copyright in the manner complained of
2. Conduct a preliminary inquiry during which, if the defence of fair dealing is raised, the police officer must be satisfied that such defence is untenable.

I hope this decision receives the wide publicity it deserves since it cuts some very powerful lobbies down to size, and restores to civility one of the most barbarous powers under the Copyright Act.

[1] Event and Entertainment Management Association v. Union of India (Delhi HC) Order dated 2nd May 2011 . See also Harkauli, S., 2011. HC nullifies police circular on copyright issue. The Pioneer. Available at: http://www.dailypioneer.com/336974/HC-nullifies-police-circular-on-copyright-issue.html [Accessed May 9, 2011]

This article attempts to rescue Indian academic research, not by denying the charges of plagiarism, but by charting an alternative trajectory of plagiarism so that each successive instance does not amplify our sense of embarrassment and crisis in the academy.

I’m slightly dismayed that they’ve printed the earliest version of my article which bears one glaring (although deliciously ironic) gaffe in the third paragraph : I’ve misattributed Benjamin Franklin’s quote on originality being “the art of concealing the source” to Oscar Wilde!

Oh well. At least I’m not alone here. Here’s Dorothy Parker on misattribution of quotes to Oscar Wilde  (Thank you, Nishant Shah!)

A Pig’s-Eye View of Literature: Oscar Wilde

If with the literate I am
Impelled to try an epigram,
I never seek to take the credit;
We all assume that Oscar said it.

I’ve uploaded another expanded version of the article on SSRN which, I feel, makes crisper arguments about plagiarism. I think this is the version of the article that I’d prefer to be circulated.

A possible way forward would be to import the cinematic notion of plagiarism into academic writing: Not all that is unacknowledged is unoriginal (as my example from student research at law universities shows), but this does not extend to a license to appropriate all as one’s own (the example of the famous IP author who plagiarised 200 pages from a professor).

Meanwhile, Rohit De has reviewed my article on the Law and Other Things blog. In the post, he invites us to consider the salience of the recombinative account of originality (that I describe in my article) in thinking about contemporary judgment-writing in India.  Sometime back, in the aftermath of the Ayodhya verdict, I’d posted a comment on Kafila in response to a post by Nivedita Menon which somewhat considers this question. I wrote:

‘judgment’ – a reasoned deliberation based on evidence and law has now become only one of many *possible* outputs from the judiciary.

2) One big difference since the post-90s has been the total decline in the craft of judicial writing. It is almost impossible now to find a well-written decision which makes a coherent argument from start to finish (This doesn’t mean there have been no ‘good’ decisions – the Naz Foundation case strikes one as an example of a poorly written, but “at heart” good decision)

Viewed entirely aesthetically, the ‘Indian decision’ has, over the past 2 decades, acquired a fascinatingly pastiche quality. Judges liberally toss law, facts, extracts from previous judgments, personal reflections, wikipedia entries, extracts from reports etc into their word processor and anything that flies out counts as a ‘judgment’.
(Another feature of contemporary judgment writing seems to be the escalating size per judgment, which adds little analytically to the overall quality of the judgment. This seems to be an acceptable, if apologetic. substitute for ‘quality’)

Coherence is a far too exacting standard which which to judge the higher judiciary – one is grateful, in its stead, to know at least “who won”.

So, in short, Yes. I do think it is possible to apply the recombinative theory of originality to lend a modicum of respect to the fantastically promiscuous judgments that have been emerging from our appellate judiciary in the past two decades. I think this jurisprudence is “autochthonous”, despite the absurd plurality of its sources. Intellectual profligacy is the seal that distinguishes contemporary Indian jurisprudence, and attests its authenticity. (And I’m only being very slightly derisive here)

I remember posting this article from the Hindu Business Line on the Commons Law list in 2007 which provides, I think, a singular instance of the judiciary commenting squarely on its own plagiarisms.

The book of my enemy has been remaindered
And I am pleased.
In vast quantities it has been remaindered
Like a van-load of counterfeit that has been seized
And sits in piles in a police warehouse,
My enemy’s much-prized effort sits in piles
In the kind of bookshop where remaindering occurs.
Great, square stacks of rejected books and, between them, aisles
One passes down reflecting on life’s vanities,
Pausing to remember all those thoughtful reviews
Lavished to no avail upon one’s enemy’s book –
For behold, here is that book
Among these ranks and banks of duds,
These ponderous and seeminly irreducible cairns
Of complete stiffs.

The book of my enemy has been remaindered
And I rejoice.
It has gone with bowed head like a defeated legion
Beneath the yoke.
What avail him now his awards and prizes,
The praise expended upon his meticulous technique,
His individual new voice?
Knocked into the middle of next week
His brainchild now consorts with the bad buys
The sinker, clinkers, dogs and dregs,
The Edsels of the world of moveable type,
The bummers that no amount of hype could shift,
The unbudgeable turkeys.

Yea, his slim volume with its understated wrapper
Bathes in the blare of the brightly jacketed Hitler’s War Machine,
His unmistakably individual new voice
Shares the same scrapyart with a forlorn skyscraper
Of The Kung-Fu Cookbook,
His honesty, proclaimed by himself and believed by others,
His renowned abhorrence of all posturing and pretense,
Is there with Pertwee’s Promenades and Pierrots–
One Hundred Years of Seaside Entertainment,
And (oh, this above all) his sensibility,
His sensibility and its hair-like filaments,
His delicate, quivering sensibility is now as one
With Barbara Windsor’s Book of Boobs,
A volume graced by the descriptive rubric
“My boobs will give everyone hours of fun”.

Soon now a book of mine could be remaindered also,
Though not to the monumental extent
In which the chastisement of remaindering has been meted out
To the book of my enemy,
Since in the case of my own book it will be due
To a miscalculated print run, a marketing error–
Nothing to do with merit.
But just supposing that such an event should hold
Some slight element of sadness, it will be offset
By the memory of this sweet moment.
Chill the champagne and polish the crystal goblets!
The book of my enemy has been remaindered
And I am glad.

Clive James

1) In her blog post, Nilanjana Roy accuses me of having demonized the Indian publishing industry. I cannot entirely escape this accusation although I’d temper it, by pointing out that I’ve only targetted big publishing in English in India. All I can say is that I didn’t mean to demonize, only de-divinize. They’re certainly not demons, but they’re not quite the saints they set themselves up to be. I think I maybe overshot a bit, but my objective was, modestly, to attempt to tame the looming sense of catastrophe which has characterized the industry’s response to this amendment. I remain skeptical that there is any evidence which supports their dire apprehensions. This is an industry that has been quite opaque about the way it functions – accurate figures and studies are extremely hard to come by even today – and I don’t think we should be in a rush to indulge their doomsday predictions, however earnestly issued.

2) If there’s one thing that’s clear from these debates, it is that there isn’t clarity on parallel import – either on who’s behind this amendment and what its impacts are going to be. When one puts aside the imagined losses to the “Indian publishing industry” and asks for real examples (which authors, which books, which publishers?), there’s an uneasy silence that takes over. I support Thomas Abraham’s conjecture that it will be popular books in English which could possibly bear the brunt of this amendment. This makes intuitive sense. But this possibility is dismissed by Vinutha Mallya’s statement to the contrary – which also makes eminent sense. I stick by my own conservative guess, that this amendment will simply mean “more of the same” in terms of second hand bookstores. Hardly worth the breast-beating we are now witnessing.

3)One of the strongest arguments that the publishers have made in this debate is that overseas  “remaindering” will kill their local market. We’re talking, say, about Penguin India being worried that remaindered books sold by Penguin UK -whose ability to return a profit has been written off – will find their way into the local market and undercut Penguin India’s profits. A very simple way to avoid this is for the UK publisher to desist from remaindering books. This would also ensure that the author’s territorial royalty expectation would be preserved – which appears to be the publishers’ most animating concern.  Why is this internal check such an impossible thought? Instead, our publishers want to retain the right to “remainder” (read dump) books, while simultaneously retaining control over the territories where those books might legitimately land up. I think this is at least a little unreasonable, and possibly very parsimonious.

4) I’m puzzled by the term “Indian publishing” – what is the nature of this benighted beast? It seems to me, there’s an ‘Indian publishing’ which counts amongst its members the 90 year old Gita Press, whose sales stood at a healthy Rs 32 crore in 2008-09 (mostly from the sales of Bhagwad Gitas and Ramcharit Manas).However, they are excluded entirely from the “Indian publishing” who are described as “having come into its own in the last decade”, or being threatened by the curent parallel import amendment. If we have to arrive at a referrent for this term, then, we must do so by elimination of the indigenous and the prosperous amongst Indian publishing. Who remains, then to represent Indian publishing in this fight against parallel import? The Hachette-Indias, the Penguin Indias, Macmillan India, Harper Collins-India and the (r)Random Houses of India. And alongside them Roli and Rupa. I’m not impressed by the suggestion that assorted small publishers have joined the chorus to oppose this amendment. Whatever tactical consideration may have induced them to do so, I don’t see anyone making any credible claims that their interests, specially and separately considered, will be affected at all.

5) In response to the charge of overpricing that I (and others) have levelled against the prices of English books, I’ve typically received two varieties of responses. Firstly, that there is a intricate international territorial logic to this state of affairs, that we’re all stuck with, for better or worse. My response to this argument is that it’s business, not biology. Like all industries, book publishing is and should be subject to interference in the Indian public interest. I don’t see why Indian copyright law should operate as a handmaid to sustain an international restrictive trade practice which hasn’t kept the best interests of the Indian consumer’s in mind. So, restrictive-trade-practice should be subordinated to domestic consumer interest. Secondly, it is repeatedly asserted that Indian editions “are far cheaper than the global average”. That, however does not automatically mean that the books are “affordable” to Indians – which was my main point with the comparison with books in regional languages. It is possible to publish affordably priced books in India, as the regional language publishers demonstrate. So the only explanation for the high prices of English books is this territorial licensing regime.

6) Lastly, to prove that I don’t hate the industry, I’ve picked out some of my favourite “Indian Book-Publishing Shining” quotes from newspaper clippings and blog posts.

In April 2009,  the Indian high commissioner to the United Kingdom Shiv Shankar Mukherjee  described the country’s publishing industry as vibrant and said it is growing at an impressive rate of 30% every year. (Live Mint)

In 2008, The India Publishing Market Profile released the following figures (reproduced from The Publishing Horizon blog)

The total book market was worth around Rs. 10,000 Crore, of which

The school book market may be worth around Rs. 3,500 Crore

The higher education book and journal market may be worth around Rs. 2,500 Crore

The trade book market may be worth Rs. 4,000 Crore, of which the English language segment may be worth about Rs. 2,400 Crore

Some other estimates from Times Emit

• # India is 7th largest publisher in world; 3rd largest English language
• # Estimates for 82,537 titles published in India last year are “way, way too low!” i.e. these are just those which are registered. 16,000 publishers, with 1,000 publishing over 50 p/a
• # 10,000 crores annually
• # 60% educational
• # 40% trade, folk, religious, spiritual
• # 20,000 hindi titles
• # 19,000 English

A quote found in the Prayatna blog from the Preface to a book titled “The Book Industry in India – Context, Challenge and Strategy” published in 2004 by the Federation of Publishers’ and Booksellers’ Associations of India

The vibrant publishing industry in India generates a turnover of approximately Rs 70 billion annually (Rs. 7,000 crores). Around 16,000 publishers in India publish 70,000 titles (estimated) out of which 40% are in English, which makes India the third largest English language publishing country in the world. Exports have grown from Rs 330 million in 1991 to Rs. 3,600 million in 2003.

Here’s a quote from Manas Saikia (homegrown publishing crorepati) and no fan of piracy in the Frontine (Feb 2006)

There is only one true Indian multinational, Roli Books. They have a true international approach and market. ,,Most Indian publishers who have made good, such as S. Chand, Navneet or MBD, invest their profits in property or hotels such as Hotel Tourist in Delhi, Atlantic in Chennai, MBD Radisson in Noida and MBD Airport Hotel in Kolkata. Hence these people, who have the money to go global, do not do so. That is a pity. However, please note that India has become a global leader in digital origination. There are companies such as Tech Books in Delhi, DBS in Pune, e-Macmillan in Bangalore, Intergra in Chennai and so on who employ thousands of people for typesetting and uploading. Homegrown Indian publishers complain about the import of books and loss of foreign exchange. The truth is that international publishers are buying much more out of India than the books that are being imported. At the London Book Fair, there is a “Production” section. If you go there you will find most exhibitors are Indian printers for digital service providers. (emphasis mine)

And lastly a quote from the The Book Standard (March 31, 2005) again from the Prayathna blog

Penguin India president Thomas Abraham is predicting a “phenomenal growth curve” for Indian publishing. He estimates the Indian book market at $823m (£438m, or Rs. 3,500 Crores) with imports of around $36m (£19m, or Rs. 81 Crores ), but Abraham believes the market has massive further potential.

So much for the foretold death of Indian publishing.

All this just to remind readers that Indian publishing does have a spine, and will not be swept away by a motley tide of mere “remaindered” books. Other ways concerned individual editors and publishers could respond, if they still feel threatened is to push for their own branding in books as suggested in this blog post.

At the ideological level, this debate has troubled me since it appears to clash with my native protectionist, anti-free market instincts.  For the record, I’m *not* enamored by “free trade” and LPG. I don’t believe markets are best left to themselves. So how does this instinct accord with my stance on the parallel import debate? I think the prevailing arrangements in international publishing are in fact a product of “free trade” undertaken under the shadow of copyright monopolies. The Indian Publishing industry in English is in fact *very* globalized and this is what accounts for the high prices we face (and also possibly the few ‘truly indigenous’ Indian publishers).  Protectionism in this context (disallowing parallel import), merely buttresses an already strong global system of price fixing over which Indian publishers have no control. So being anti-global, being ‘nationalistic’ in this context ironically means promoting open access.

They respond every time by simply and simplistically predicting the ruin of the starving creator and the publishing industry, and along with these, the imminent end of Culture, learning and everything nice. Examples are legion. In the publishing empire’s impoverished imagination, with every amendment that has loosened the stranglehold of copyright law, and enlarged the rights of the reading public, the Wheels of Civilization, no less, have ground creakingly to a Final Halt. In over 400 years, this iron template hasn’t altered even marginally, and still continues to plague us to this day with its oppressive banality.

The occasion for this outburst on my part is some of the writing that has surfaced in the ongoing debate over the “parallel import” amendments sought to be introduced into the Copyright Act. For instance, Thomas Abraham’s darkly titled piece “The death of books” in the Hindustan Times which begins bluntly with a prophesy that the new amendment will “dismantle the very fabric of Indian writing in English”. <shudder> There goes my entire library. Thomas then proceeds to issue some misinformation about how the Indian publishing industry “is just about coming into its own in the past few ten years or so”. (As any student of Indian publishing would know, India has been, at least since the late 19th century, home to the most thriving, profitable low-cost print publishing industries anywhere in the world.) Next, with all the freshness of a 400 year old argument, he informs us that because of the new amendment, authors will be bereft of their “economic right.. to profit from their copyright” and consequently will lose all their “incentive” to create. There is the classic, sly conflation of the author’s interest with the big publisher – you are with us or against the struggling author.

There are, however, some novelties in Thomas’ argument. Chiefly the gratuitous disparagement of intellectual production in Malaysia, Singapore and Hong Kong, (allegedly these countries cannot claim even a single “literary or commercial author brand” between them!) and the chastisement of India on account of the fact that “mature markets” don’t have analogous provisions on parallel import as we are trying to introduce. In this latter assertion, India is deftly transformed into the errant schoolboy of global lawmaking!

Rumours of the death of books, fortunately, have always been greatly exaggerated. Unfortunately, so have the rumours about the demise of big publishing.

As I have written elsewhere, I owe my education in English entirely to low-cost editions of books bought from pirate street vendors or less-frequently at second hand bookstores (who typically would stock books imported from overseas library sales). So I’m eagerly anticipating the changes this new amendment promises to unleash – more of the same. (Aside, officially sold English books in India have always been much more highly priced than vernacular books of identical print quality – prompting us to speculate who pockets the difference. And why. The interests of the reading public or the author are very far removed in this calculus.)

Contrary to the fantasies of big publishing empires, it is not their own largesse, but the unwitting generosity of small printers and pirates and book importers that is the cause of India being home to such a huge mass of regularly consuming readers in English. Let nobody be fooled. If street piracy and second-hand sales had been killed off twenty years ago in India, the market for English books in India would not have expanded at all. How else does one explain the irony that despite rampant piracy, despite having the laxest copyright regime in the world (by the publisher’s own accounts), despite the most permissive fair dealing regime in the world, the Indian publishing industry today is a global behemoth. In the past few years alone, India has been invited as the “guest of honour” at multiple book fairs including the ones at London, Frankfurt and Beijing – a testament to the robustness of our indigenous industry. Contrast this with the situation in Hong Kong and Singapore who, in addition to not having any “literary or commercial author brands” between them, have also little to no street piracy in books. The other thing they lack is a thriving indigenous publishing industry. Perhaps the three are interrelated.

In big publishers’  completely book-hating utopia, these “remaindered” books would have to languish in disuse or be destroyed – they would gather dust in warehouses or be turned to pulp rather than circulate in the hands of caring readers who would otherwise be denied access to them. I’m sure this is the stuff every author’s dreams are built of. As a bibliophile who treasures every article on his bookshelf, I am astonished by the hatefulness of this vision – which could only have been issued from the pen of a big-publishing-empire advocate. I think it is one of the most painful ironies of our times that the custodians and owners of our most cherished cultural outputs happen to be copyright lawyers and CEOs of big publishing empires – the dullest, most misanthropic people on the planet.

Although this debate on parallel imports is new, it is in some senses as old as copyright itself. As Mark Rose informs us in his seminal article The Author as Proprietor, Copyright Law itself originates as a move against “parallel import” :

In 1694 the Licensing Act, the statute that regulated the British press, had been allowed to lapse because it was apparent that it was operating primarily as a restraint on trade. Most affected negatively were the small group of powerful London booksellers who under the ancient rules of the Stationers’ Company had come to control nearly all the old copyrights of value. This group, whose dominance of the book trade was threatened by the provincial booksellers of Ireland and Scotland (who were not bound by the rules of the Stationers’ Company), petitioned Parliament for permission to bring in a bill to regulate the trade, and in 1709 the Statute of Anne, the world’s first copyright act, was passed.’ The statute was essentially a codification of long-standing practices of the Stationers’ Company, but, whereas under the guild regulations copyright was perpetual, under the statute the term was limited to fourteen years with a possible second term if the author were still living. (emphasis mine)

Then, as now, the issue was about incumbent interests in the heart of Empire – the London Booksellers – trying to preserve their dominions against upstart native enterprise in the colonies (in the 17th century, the Irish, Scots and Indians were regarded, alike, as barbarians – See Henry Maine etc) to the detriment of the reading public.

The proposed amendment will not kill Indian publishing (and even more ridiculously, Indian writing), any more than a century of piracy has. But defeating it *will* preserve the rights of global publishing empires, headquartered overseas, to decide which class of the Indian public gets to consume its books.

At stake are not the interests of “Indian publishing” at large, but the interests of a clutch of foreign publishers who wish to re-colonize Indian publishing and consumption through the devious means of licensing contracts.

Here’s an alternate scenario – my counter-utopia to Thomas’ ungenerous one:
The parallel import clause passes into copyright law, and an entire business model is spawned which focuses on providing access to books through parallel import. Since books tend, almost as a rule, to be much more expensive abroad, it would not make economic sense (there would be no incentive!) to import books where low-priced editions are already published in India. This will force more foreign publishers to aggressively publish low-priced editions in India – thus leading to a further expansion of the Indian publishing industry, and benefiting the Indian reader with access to wider material. Meanwhile importers would concentrate on books where editions are not available in India – opening up access to a hitherto unavailable richness of literature. As more second hand book stores open up, the general levels of readership will increase – leading to the production of more author-aspirants, and a larger consuming public. The new authors will in turn greatly expand the markets for Indian publishing, who will reap more enormous profits (since that’s what it all seems to come down to anyway) from the expanded Indian readership. India will greedily lap up the “remaindered” books of the world – a thought I find absolutely alluring.

And all of this because of parallel imports.

(Ps. I’ve desisted from running through the specific legal provision implicated because I think this has already been done by many others. For a very detailed account of this provision and its various legal intricacies read Pranesh Prakash’s excellent and thoughtful post:Why Parallel Importation of Books Should Be Allowed
I endorse everything there.

Rahul Maththan has added his voice to the debate by endorsing the amendment in his article in the Indian Express. There’s also a piece on SpicyIp by Amlan Mohanty.

As with most things in IP law, I think this battle will be won more in the realm of rhetoric than legal argument.
Just for clarity, I think that buried under the heavy jargon of “parallel import”, “territoriality”, “national exhaustion” etc, this is really a battle being waged by foreign publishers against bibliophiles and bibliophilia in India. The incumbents in the global publishing industry have always been cranky about losing their monopolies and things are no different this time. As usual they’ve dragged the specter of the struggling author to shadow-box for them. Seldom in the history of copyright law have any developments truly been about benefiting the author (for instance, why don’t we have a law that statutorily prescribes a minimum royalty of say 50% of the price of the book? Wouldn’t that benefit the struggling author? Currently, the global average royalty an author receives is rarely over a measly 8-10%.).

PPs: I realize I must sound very unkind to Thomas Abraham in this piece –I don’t know him and I’m sure he’s an honourable man. As any good historian of copyright law will agree, I think his piece rehashes exactly the same arguments that have been made thousands upon thousands of times in the past by captains of big publishing industries. I’m using his piece as a prop, but it is in fact to the same arguments that my post is addressed)

Update +1 day: There’s an interesting rebuttal to my post by Thomas Abraham at Divya Dubey‘s blog.  I’m prepared to concede the argument about “English language publishing” in India having some cause to worry.  As he acknowledges, this is not the same as “Indian writing in English” – which was  my main point.  I also found very interesting his assertion that “Any importer would concentrate first on the book that was a success here.” – I think this is true, despite my provocation. But this leads to two conclusions – one that parallel import is an issue that will concern only large publishers and big-name authors. And second, why aren’t these books, these “low cost Indian editions”  more accessibly priced to start with? As of this writing, Gyan Prakash’s tome on Bombay/Mumbai costs Rs 600 on Flipkart and is only available in hardback edition. For many of us this is an unacceptable price, and doesn’t give us a lower priced paperback option.  The publishing industry’s response – that I should wait for their approved “low priced” edition to emerge a few months/years(?) from now is high-handed.  Bibliophilia doesn’t wait, if it can avoid it, for the territorial fantasies of large publishers to play out.  I think parallel imports will force Indian publishers to change their business model and there will be a welcome reduction in prices all round. This will benefit consumer choice, expand readership and benefit the author both in royalty payments as well as increased exposure to audiences. One only has to look at how Moser Baer has succeeded in tapping into a large market of cinephiles by dropping the rates of CDs to ‘pirate’ prices – with no drastic consequences for Indian cinema. The Moser Baer’s model was self-consciously modelled after the ‘pirate’ business model and I await a similar readjustment in the realm of English book publishing and distribution. Bibliophilia, like cinephilia, is something that industries can tap into – but it will need a re-imaginative shake up of prevailing industry shibboleths. I think parallel import may provide the occasion for such a shake up – since book piracy has largely failed.

Aside, I’ve decided that I like this Thomas Abraham! I think he’s been very patient, and informative about the industry-as-it-stands. Book publishing in India has operated largely in the shadows and I think between his posts, he’s provided a lot of grist for research. I’ve decided to tone down my jibes in this post where possible. Time to roll back the tanks, lay down the weapons and stop baring fangs! :). I hope we can meet as friends!

What are the Dos & Don’ts with respect to the use /display of the UID Number in our (Registrar) processes/documents?Does the UIDAI have a brand logo / name usage guidelines?
The UID number should henceforth be referred to as Aadhaar. The usage of the word  Aadhaar should be restricted to that of a proper noun. For example, usage such as “NREGA ka Aadhaar” and “Ration ka Aadhaar” should be avoided. The guidelines for the display of Aadhaar logo will be provided separately.

I can think of no other reason for the restriction of the invocation of Aadhar to its  “proper noun” form except, evidently the PR Guys at the UID Authority are afraid that ‘Aadhar’ will become generic (like ‘Xerox’ for photocopying) and will lose it’s brand value! I think this is symptomic of an unthinking, paranoid fetishisation of intellectual property that  has crept into even the government these days. If you’re a commercial entity (like Google), I suppose it would make sense to be wary of your brand becoming generic. Your very survival in the market would depend on your being able, uniquely, exclusively to control the instances when your precious brand name can be uttered. So the coining of a word like ‘googling’ can legitimately set off panic bells ringing in company headquarters. I understand this.

But what’s got into the Government? Isn’t the ‘generic-ization’ of its scheme actually in its own interests? Don’t you want, as a Government, your supposedly beneficial scheme to become so popular among people that it’s name passes into their languages as a common noun? Who are you hoping to extract licensing revenues out of for the use of the word Aadhar? Why is the ‘brand’ so goddam important?

We already have, in India, The Emblems And Names (Prevention Of Improper Use) Act, 1950 which forbids, generally, the private use of Government names and emblems. The Act, inter alia, forbids the use of any name which “may suggest or be calculated to suggest connection with any local authority or any corporation or body constituted by the Government under any law for the time being in force.” Such as the UIDAI. For abundant caution, the UIDAI could also take the pains to insert one line in the Schedule to the Act – something along the lines of “The name, emblem or official seal of the UID Authority of India”. Finis. The Government thereby gets absolute monopoly and sovereignty over its prized emblem, far in excess of anything that Trade Mark law can hope to provide. Unlike trademarks, official emblems have the added advantage of never running the risk of becoming generic. Like diamonds, or nuclear waste, they are eternal.

Again, why the bleeding, inferior Trade Mark?? Has the Government forgotten itself?

Missing EVM: techie arrested Special Correspondent

HYDERABAD: A city-based computer engineer who demonstrated the vulnerability of Electronic Voting Machines (EVMs) to tampering was taken into custody by the Mumbai police from his residence in Madhapur locality here on Saturday morning.

The Mumbai police was investigating the case of a ‘missing EVM’ from the Mumbai collectorate and the same machine was reportedly used for the ‘vulnerability demonstration’ by the technologist, Hari K. Prasad, in April last.

Mr. Prasad, managing director of a Hyderabad-based technology firm NetIndia, had taken the help of two other researchers — a Michigan University professor, J. Alex Halderman, and a Holland-based technology activist, Rop Gonggrijp.

Preamble

Through these arguments, it is sought to be shown that patentability of software is not some arcane, technical question of law, but is a real issue that affect the continued production of new software and the everyday life of the coder/hacker/software programmer/engineer as well as consumers of software (which is, I may remind you, everywhere from your pacemaker to your phone). A preamble to the arguments would note that the main question to ask is: why should we allow for patenting of software? Answering this question will lead us to ask: who benefits from patenting of software. The conclusion that I come to is that patenting of software helps three categories of people: (1) those large software corporations that already have a large number of software patents; (2) those corporations that do not create software, but only trade in patents / sue on the basis of patents (“patent trolls”); (3) patent lawyers. How they don’t help small and medium enterprises nor society at large (since they deter, rather than further invention) will be borne out by the rest of these arguments, especially the section on practical reasons against software patents.

What are Patents?

Patents are a twenty-year monopoly granted by the State on any invention. An invention has to have at least four characteristics: (0) patentable subject matter; (1) novelty (it has to be new); (2) inventive step / non-obviousness (even if new, it should not be obvious); (3) application to industry. A monopoly over that invention, thus means that if person X has invented something, then I may not use the core parts of that invention (“the essential claims”) in my own invention. This prohibition applies even if I have come upon my invention without having known about X’s invention. (Thus, independent creation is not a defence to patent infringement. This distinguishes it, for instance, from copyright law in which two people who created the same work independently of each other can both assert copyright.) Patents cover non-abstract ideas/functionality while copyright covers specific expressions of ideas. To clarify: imagine I make a drawing of a particular machine and describe the procedure of making it. Under patent law, no one else can make that particular machine, while under copyright law, no one can copy that drawing.

Philosophical Justification Against Software Patents

Even without going into the case against patents per se (lack of independent creation as a defence; lack of ‘harm’ as a criterion leading to internalization of all positive externalities; lack of effective disclosure and publication; etc.), which has been done much more ably by others like Bessen & Meurer (especially in their book Patent Failure) and Boldrin & Levine (in their book Against Intellectual Monopoly, the full text of which is available online).

But there is one essentially philosophical argument against software as subject matter of a patent. Software/computer programs (“instructions for a computer”), as any software engineer would tell you, are merely algorithms (“an effective method for solving a problem using a finite sequence of instructions”) that are meant to be understood by a computer or a human who knows how to read that code.

Algorithms are not patentable subject matter, as they are mere expressions of abstract ideas, and not inventions in themselves. Computer programs, similarly, are abstract ideas. They only stop being abstract ideas when embodied in a machine or a process in which it is the machine/process that is the essential claim and not the software. That machine or process being patented would not grant protection to the software itself, but to the whole machine or process. Thus the abstract part of that machine/process (i.e., the computer program) could be used in any other machine/process, as it it is not the subject matter of the patent. Importantly, just because software is required to operate some machine would then not mean that the machine itself is not patentable, just that the software cannot be patented in guise of patenting a machine.

Legal Case Against Software Patents

In India, section 3(k) of the Patent Act reads:

(3) The following are not inventions within the meaning of this Act: (k) a mathematical or business method or computer programme (sic) per se or algorithms.

As one can see, computer programs are place in the same category as “mathematical methods”, “algorithms”, and “business methods”, hence giving legal validity to the idea propounded in the previous section that computer programs are a kind of algorithms (just as algorithms are a kind of mathematical method).

Be that as it may, the best legal minds in India have had to work hard at understanding what exactly “computer programme per se” means. They have cited U.S. case law, U.K. case law, E.U. precedents, and sought to arrive at an understanding of how per se should be understood. While understanding what per se means might be a difficult job, it is much easier to see what it does not mean. For that, we can look at the 2004 Patent Ordinance that Parliament rejected in 2005. In that ordinance, sections 3(k) and (ka) read as follows:

(3) The following are not inventions within the meaning of this Act: (k) a computer programme per se other than its technical application to industry or a combination with hardware; (ka) a mathematical method or a business method or algorithms.

Thus, it is clear that the interpretation that “computer programme per se” excludes “a computer programme that has technical application to industry” and “a computer programme in combination with hardware” is wrong. By rejecting the 2004 Ordinance wording, Parliament has clearly shown that “technical application to industry” and “combination with hardware” do not make a computer programme patentable subject matter.

Indeed, what exactly is “technical application to industry”? “Technical” has various definitions, and a perusal through those definitions would show that barely any computer program can be said not to relate to a technique, not involve “specialized knowledge of applied arts and sciences” (it is code, after all; not everyone can write good algorithms), or not relate to “a practical subject that is organized according to scientific principles” or is “technological”. Similarly, all software is, by definition, meant to be used in combination with hardware. Thus, it being used in combination with hardware must not, as argued above, give rise to patentability of otherwise unpatentable subject matter category.

In 2008, the Patent Office published a new ‘Draft Manual Of Patent Practice And Procedure’ in which it sought to allow patenting of certain method claims for software inventions (while earlier the Patent Office objected to method claims, allowing only device claims with hardware components). This Draft Manual was withdrawn from circulation, with Shri N.N. Prasad (then Joint Secretary of DIPP, the department administering the Patent Office) noting that the parts of the Manual on sections 3(d) and 3(k) had generated a lot of controversy, and were ultra vires the scope of the Manual (which could not override the Patent Act). He promised that those parts would be dropped and the Manual would be re-written. A revised draft of the Manual has not yet been released. Thus the interpretation provided in the Draft Manual (which was based heavily on the interpretation of the U.K. courts) cannot not be relied upon as a basis for arguments in favour of the patentability of software in India.

In October 2008, CIS helped organize a National Public Meeting on Software Patents in which Indian academics, industry, scientists, and FOSS enthusiasts all came to the conclusion that software patents are harmful for both the industry as well as consumers.

Practical Reasons Against Software Patents

This is going to be an attempt at distilling and simplifying some of the main practical arguments against patenting of software.

There are traditionally four incentives that the patent system caters to: (1) incentive to invent; (2) incentive to disclose; (3) incentive to commercialize; and (4) incentive to invent substitutes. Apart from the last, patenting of software does not really aid any of them.

1. Patent Landmines / Submarine Patents / Patent Gridlocks / No Exception for Independent Creation

   Given that computer programs are algorithms, having monopolies over such abstract ideas is detrimental to innovation. Just the metaphors say a lot about software patents: landmines (they cannot be seen/predicted); submarines (they surface out of the blue); gridlocks (because there are so many software patents around the same area of computing, they prevent further innovation in that area, since no program can be written without violating one patent or the other).

   Imagine the madness that would have ensued had patents been granted when computer programming was in its infancy. Imagine different methods of sorting (quick sort, bubble sort) that are part of Computer Science 101 had been patented. While those particular instances aren’t, similar algorithms, such as data compression algorithms (including the infamous LZW compression method), have been granted patents. Most importantly, even if one codes certain functionality into software independently of the patent holder, that is still violative of the patent. Computer programs being granted patents makes it extremely difficult to create other computer programs that are based on the same abstract ideas. Thus incentives # (1) and (3) are not fulfilled, and indeed, they are harmed. There is no incentive to invent, as one would always be violating one patent or the other. Given that, there is no incentive to commercialize what one has invented, because of fear of patent infringement suits.

   An apt illustration of this is the current difficulty of choosing a royalty-free video format for HTML 5, as it shows, in practical terms, how difficult it is to create a video format without violating one patent or the other. While the PNG image format was created to side-step the patent over the LZW compression method used in the GIF image format, bringing Ogg Theora or Dirac (both patent-free video format) to surpass the levels of H.264/MPEG-4 AVC or VC-1 will be very difficult without infringing dozens if not hundreds of software patents. Chris DiBona of Google, while talking about improving Ogg Theora as part of its inclusion in HTML 5 specifications said, “Here’s the challenge: Can Theora move forward without infringing on the other video compression patents?” Just the number of companies and organization that hold patents over H.264 is astounding, and includes: Columbia University, Electronics and Telecommunications Research Institute of Korea (ETRI), France Télécom, Fujitsu, LG Electronics, Matsushita, Mitsubishi, Microsoft, Motorola, Nokia, Philips, Robert Bosch GmbH, Samsung, Sharp, Sony, Toshiba, and Victor Company of Japan (JVC). As is the amount of royalties to be paid (“[t]he maximum royalty for these rights payable by an Enterprise (company and greater than 50% owned subsidiaries) is $3.5 million per year in 2005-2006, $4.25 million per year in 2007-08 and $5 million per year in 2009-10″; with royalty per unit of a decoder-encoder costing upto USD 0.20.)

   Indeed, even the most diligent companies cannot guard themselves against software patents. FFII estimates that a very simple online shopping website would violate twenty different patents at the very least. Microsoft recently lost a case against i4i when i4i surfaced with a patent covering custom XML as implemented in MS Office 2003 and MS Office 2007. As a result Microsoft had to ship patches to its millions of customers, to disable the functionality and bypass that patent. The manufacturers of BlackBerry, the Canadian company Research in Motion, had to shell out USD 617 million as settlement to NTP over wireless push e-mail, as it was otherwise faced with the possibility of the court shutting down the BlackBerry service in the U.S. This happened despite there being a well-known method of doing so pre-dating the NTP patents. NTP has also filed cases against AT&T, Sprint Nextel, T-Mobile, Verizon Wireless, and Palm Inc. Microsoft was also hit by Visto Corporation over those same NTP patents, which had been licensed to Visto (a startup).

   • Don’t These Cases Show How Software Patents Help Small Companies?

     The astute reader might be tempted to ask: are not all of these examples of small companies getting their dues from larger companies? Doesn’t all of this show that software patents actually help small and medium enterprises (SMEs)? The answer to that is: no. To see why, we need to note the common thread binding i4i, NTP, and Visto. None of them were, at the time of their lawsuits, actually creating new software, and NTP was an out-and-out “non-practising entity”/”patent holding company” AKA, patent troll. i4i was in the process of closing shop, and Visto had just started up. None of these were actually practising the patent. None of these were producing any other software. Thus, none of these companies had anything to lose by going after big companies. In other words, the likes of Microsoft, RIM, Verizon, AT&T, etc., could not file counter-suits of patent infringement, which is normally what happens when SMEs try to assert patent rights against larger corporations. For every patent that the large corporation violates of the smaller corporation, the smaler corporation would be violating at least ten of the larger corporation’s. Software patents are more helpful for software companies as a tool for cross-licensing rather than as a way of earning royalties. Even this does not work as a strategy against patent trolls.

   Thus, the assertion that was made at the beginning is borne out: software patents help only patent trolls, large corporations that already have large software patent portfolios, and the lawyers who draft these patents and later argue them out in court.

2. Term of Patents

   Twenty years of monopoly rights is outright ludicrous in an industry where the rate of turnover of technology is much faster — anywhere between two years and five months.

3. Software Industry Progressed Greatly Without Patents

   In India, software patents have never been asserted in courts (even though many have been illegally granted), yet the software industry in India is growing in leaps and bounds. Similarly, most of the big (American) giants of the software industry today grew to their stature by using copyright to “protect” their software, and not patents.

4. Copyright Exists for Software

   As noted above, the code/expression of any software is internationally protected by copyright law. There is no reason to protect the ideas/functionality of that software as well.

5. Insufficient Disclosure

   When ordinary computer programmers cannot understand what a particular software patent covers (which is the overwhelming case), then the patent is of no use. One of the main incentives of the patent system is to encourage gifted inventors to share their genius with the world. It is not about gifted inventors paying equally gifted lawyers to obfuscate their inventions into gobbledygook so that other gifted inventors can at best hazard a guess as to precisely what is and is not covered by that patent. Thus, this incentive (#2) is not fulfilled by the current system of patents either — not unless there is a major overhaul of the system. This ties in with the impossibility of ensuring that one is not violating a software patent. If a reasonably smart software developer (who are often working as individuals, and as part of SMEs) cannot quickly ascertain whether one is violating patents, then there is a huge disincentive against developing software in that area at all.

6. Software Patents Work Against Free/Libre/Open Source Software

   Software patents hinder the development of software and FOSS licences, as the licensee is not allowed to restrict the rights of the sub-licensees over and above the restrictions that the licensee has to observe. Thus, all patent clearances obtained by the licensee must be passed on to the sub-licensees. Thus, patented software, though most countries around the world do not recognize them, are generally not included in the default builds of many FOSS operating systems. This inhabits the general adoption of FOSS, since many of the software patents, even though not enforceable in India, are paid heed to by the software that Indians download, and the MP3 and DivX formats are not enabled by default in standard installations of a Linux OS such as Ubuntu.

Conclusion

Currently, the U.S. patent system is being reviewed at the administrative level, the legislative level, as well as the judicial level. At the judicial level, the question of business method patents (and, by extension, software patents) is before the Supreme Court of the United States of America in the form of Bilski v. Kappos. Judge Mayer of the Court of Appeals for the Federal Circuit (CAFC, which heard In re Bilksi) noted that “the patent system has run amok”. The Free Software Foundation submitted a most extensive amicus curiae brief to the U.S. Supreme Court, filled with brilliant analysis of software patents and arguments against the patentability of software that is well worth a read.  We should keep all these things in mind when we think of changing our law / our interpretation of our law on software patents.

It’s quite easy to recognize these events by a few simple parameters 1) Exorbitant admittance fees – designed to keep out all troublemakers and commoners with decent common sense 2) 5 star venues – same reason 3) The dismally boring titles of the presentations 4) Even more dismally boring list of all-male speakers including heads of large Law firms/small firms who want to play big/large corporate houses 5) Token member of the bureaucracy/judge 6) Lavish lunch (which makes the whole trauma worth it).

If you happen to have the misfortune of being roped into an event of this nature, as poor Latha undoubtedly found herself, I recommend taking along a good book, an Ipod – something to distract from the monotony of these dreary old men in suits talking in platitudes. They’re no Ciceros. They read management books (“How to catch a chicken and make it yours and make it bleed eggs till it’s purple and then count them before they hatch”) and self-help books (“How to win influence by talking loftily and wearing expensive suits”). They read them for pleasure.

For a subject of which ‘creativity’ and ‘innovation’ are supposedly the core, most of the voices you will hear will be abjectly devoid of either. This is what it has come down to. There is surely some irony in the fact that the biggest, shrillest campaigners on behalf of the struggling artist and the garage innovator also tend to be the dullest people on the planet.

Returning to Jishnu, I think she’s absolutely right, as usual, in drawing attention to GWU’s crusade. It’s a tad amusing to think that India means such a BIG deal to this dusty little old “2nd tier” university sitting somewhere in the US.  (To borrow Obelix’s famous phrase “These Romans are Crazy!”). Little universities, like little law firms need to shout loud in order to be heard I suppose.

“On one level, the answer is simple. After their last defiant act, the Aztec priests die leaving their killers to continue with their rampage and sing praises to their courage. But the Brahmanic response ensures that ‘unheroic cowards’ are always there ready to make their presence felt when opportunity arises.. The Aztec priests also set a good example, from the perspective of the dominant culture, for all dissenters to follow: die in glorified dissent.”

Based on all the information presented in the preceding paragraphs and when there is no clear consensus within the scientific community itself, when there is so much opposition from the state governments, when responsible civil society organisations and eminent scientists have raised many serious questions that have not been answered satisfactorily, when the public sentiment is negative and when Bt-brinjal will be the very first genetically modified vegetable to be introduced anywhere in the world and when there is no over-riding urgency to introduce it here,

it is my duty to adopt a cautious. precautionary principle-based approach and impose a moratorium on the release of Bt-brinjal. till such time independent scientific studies establish. to the satisfaction of both the public and professionals. the safety of the product from the point of view of its long-term impact on human health and environment. including the rich genetic wealth existing in brinial in our country.

I’m republishing the Environment Support Group‘s Press release on the environment ministry’s moratorium on the commercialisation of Bt Brinjal. The notice raises some critical issues about the Bt Brinjal debate that I think are important not to lose sight of.

Environment Minister’s Decision on Bt Brijal Welcome, Scientifically Sound, but Sketchy and Legally Weak

Press Release: 10 February, 2010 : Bangalore
The decision of the Union Minister of State for Environment and Forests (I/C), Mr. Jairam Ramesh, to place a moratorium on the clearance accorded by Genetic Engineering Approval Committee (GEAC), to the environmental release of the Bt brinjal variety developed by M/s Mahyco (an Indian seed company with substantial investment from US multinational, Monsanto) is without doubt an historic decision that is a triumph for public opinion and rational decision-making. We acknowledge the unprecedented action of Mr. Ramesh in undertaking an arduous process of public consultations across India in arriving at this conclusion.

The decision is based primarily on the opinion of scientists, various state governments, and the general public, that not enough is known about the environmental, economic, and health risks involved in introducing GMO foods in India. The Precautionary Principle is invoked, in particular based on the decision of the Hon’ble Supreme Court in the State of Andhra Pradesh vs. M.V. Nayudu and ors., and also the ongoing litigation in the Hon’ble Supreme Court about the absolute lack of safeguards in current clearance mechanisms on Genetic Engineering.

A significant limitation of this decision is that while arguing in favor of the wider public interest, based entirely on the Precautionary Principle, the Minister has unnecessarily decided that he does “not propose to do a post-mortem on the way the GEAC has functioned”, even as he admits that “(i)t is incumbent upon us as an accountable and transparent administration to respond to these concerns in a serious manner.”

This raises a whole series of issues why Mr. Jairam Ramesh is willing to submit his decision to scientific opinion and public opinion, but not to the basic question of whether the approval granted by GEAC met with the standards of public accountability and administration and also statutory compliance as required by law. Also not addressed is the issue of contamination of Certified Organic Produce, as well as the gaps that exist in regulating their safety and security of livelihoods and status of Organic Farmers.

The annexures to the Environment Minister’s report confirm that issues have been raised relating to the very legality of the research undertaken by M/s Mahyco in collaboration with the University of Agricultural Sciences (UAS), Dharwad, and M/s Sathguru (a front company of USAID and Cornell University, USA). These concerns primarily addressed the fundamental violation of the Biological Diversity Act of India, 2002, which is a representation of India’s commitment to fully and meaningfully implement the UN Convention on Biological Diversity, the Rio Declaration, and the Cartagena Protocol.

The particular issue raised was that when the research project was initiated, admittedly on the voluntary initiative of UAS, Dharwad, the guidelines under the BD Act to monitor such an international collaborative effort involving transfer of local biodiversity, import of transgenic material, and commercialisation of the product did not exist, as required under Sec. 5 of the Act. It was the mandatory obligation on the part of the collaborative partners and also the National Biodiversity Authority (NBA) to not have initiated this research project until such time the Guidelines were formulated or the Central Government took the precautionary measure of singularly approving this project, based on the need for abundant caution given the risks involved. Consequently, since the research project involved a company with substantial foreign involvement (that too, of three US institutions), the project was clearly required to be approved under Sec. 3 and 4 of the BD Act, even if in retrospect. (Accessible at http://moef.nic.in)

Six popular and traditional varieties of brinjal grown in Karnataka were involved in the experimentation, and thereby the approval of the Karnataka Government and the State Biodiversity Board was mandatory as per the BD Act. It is an incontrovertible fact that none of the contracting parties to this research project ever approached the Central or State governments, and also the local Biodiversity Management Committee, as required per the Act, to collect local varieties of brinjal for experimentation and commercial production using GMO technology. This fact was highlighted in the Bangalore consultation and has not at all been addressed by the Minister in his report. In fact, the issue was also addressed as an open-door policy facilitating biopiracy and undermining the due right of the local people and the State in being a part of this decision.

Another serious matter that concerns us is the fact that the Minister, in acknowledging the monopolistic possibility of “Monsanto controlling our food chain if Bt brinjal is approved”, based on the wider experience of the monopolisation of the Bt cotton seeds, states “it would not be an exaggeration to say that public concerns about Bt brinjal have been influenced very heavily by perceptions of Monsanto itself.” Such articulation clearly gives Monsanto and Mahyco an unnecessary privilege to claim that they are being discriminated against, while allowing local universities to continue their research on Bt brinjal for the market. On the other hand, the reports from all states and general public have categorically rejected all Bt brinjals and other GM foods, irrespective of nature of the promoters. It is a fact that the same GEAC which approved Mahyco’s product is also monitoring all other research on GMO under the very same unscientific and legally weak norms.

This brings us to the issue that the Minister is also administrator in charge of the effective implementation of the BD Act and its implications to GMO and other matters such as “normally traded commodities”. In the first footnote of the Minister’s report (p. 2), it is claimed that “a wholly unjustified controversy was generated by two individuals at the Bangalore consultations … by their claim that a Gazette Notification of October … 2009, exempting trade in 190 agricultural commodities from the ambit of Sec. 40 of Biological Diversity Act 2002 made these Bt brinjal consultations a sham.” The Minister goes on to justify that this has nothing to do with genetic engineering issues on hand and that the species listed in the Notification “are used as bioresources, permission of National Biodiversity Authority is still needed as export takes place.” This is a wholly incorrect representation of the concern raised. The undersigned being those who also raised this concern had unequivocally stated that the 190 plants listed completely lost protection under the BD Act as stated in the deliberately inadequate Preamble of the Notification. It was also raised that this list was prepared intransparently, based on exclusive interaction with industry and some Ministry officials, and not one State Biological Diversity Board or Biodiversity Protection Committee was ever consulted in the formulation of this list, as required under the Act. Besides the fact that brinjal figures in the list, what is more alarming is that many of our endemic and endangered species with high religious, cultural, environmental, and medicinal value are now without any protection under the BD Act. It is a fact that several of these 190 plant species are not normally traded commodities, which raises a deep suspicion over the process, content and timing of the Notification. It is truly unfortunate that the Minister has sidestepped this key issue, and even attempted to silence such concerns. (The Notification dated 26 October 2009 is accessible at www.nbaindia.org)

All things considered, India has truly taken an historic step in saying “no” to Bt brinjal, and we hope that the people of India, through their representatives in the local governments, state legislatures, and parliament will demand a thorough review of the existing statutory processes relating to our biological diversity and also on GMO, and ensure public interest of present and future generations is not compromised in any manner whatsoever.