21 March 2005 — David Hammerstein, Member of the European Parliament, sent a letter to the Indian Members of Parliament on the subject of the patentability of software, which is subject of a bill tabled in the Indian Parliament on 18 March by Minister for Commerce & Industry Shri Kamal Nath

To
Mr. T.K. VISWANATHAN Secretary to Government of India,
Mrs. Sonia Gandhi, Leader of the Indian National Congress, 10, Janpath,
Dr. Manmohan Singh Prime Minister of India
Shri Kamal Nath Minister for Commerce & Industry
L K Advani Leader of Opposition

David Hammerstein Member of the European Parliament Grupo Verde/ALE

Subject: Software patents in the Parliaments of Europe and India

Dear fellow MP,

I am writing to you on the subject of software patents as Member of European Parliament. The European Parliament has opposed to make software patentable in September 2003, and in February 2005 the European Parliament by unanimous vote rejected a proposal by the Council of the European Union to request that. The debate is still open here, but speaking as a Parlamentarian I urge you to avoid any hasty and unwise steps in India.

During our debate, the US trade representative (for example in a letter of 16 September 2003) has argued that Europe was bound to have software patents due to the TRIPS treaty. We have now reached the understanding that in the making of TRIPS there is no indication that computer programs were to seen as a field of technology in the sense of TRIPS. Hence we clarified in Article 2 of our directive: “(2) The use of natural forces to control physical effects beyond the digital representation of information belongs to a field of technology. The processing, handling, and presentation of information do not belong to a field of technology, even where technical devices are employed for such purposes”.

This is in accordance with art 52 (2)(c) of the European Patent Convention that states clearly that “schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers” shall not be regarded as inventions.

Moreover, article 10 of the TRIPs treaty also clearly demands protection by copyright for computer programs; TRIPS does not mention patent protection for computer programs at any place.

Given that the majority of software patent applications at the European Patent Office is from US and Japanese countries, having software patentable is clearly not in Europe’s interest, and it is also likely also not to be in India’s interest.

I would recommend either

* to amend the Indian law in the sense as outlined at http://wiki.ffii.org/InAmend0503En

* or just to keep the acceptable present wording of the Patent Act’s 2002 version “3 (k) a mathematical or business method or computer programme per se or algorithms” and to reject the ambiguous wording that has it had been issued by the Minister of Industry Kamal Nath in December 2004 ordinance “3 (k) a computer programme per se other than its technical application to industry or a combination with hardware; 3(ka) a mathematical method or business method or algorithms;”

* or to improve the present wording of the Patent Act’s 2002 version by simply deleting “per se” in “3(k) a mathematical or business method or computer programme per se or algorithms”

With kind regards,

David Hammerstein

With Indians making their presence felt online it becomes necessary to have a proper/legal way to share their creations. Creative Commons is the best and cheapest way to share your art, music or knowledge. There are around 29 internationalized versions of creative commons. The time has arrived for India to have its own Creative Commons. iCommons oversees the internationalization of Creative Commons idea. For any internationalization of Creative Commons, iCommons require (Taken from the page: http://creativecommons.org/worldwide/overview)

1. Project Lead and Institution or Law Firm Identified
The Project Lead is the central figure for the porting of the licenses into national law. He/she would be an expert in copyright law, more often than not a lawyer, and more often than not associated with the Institution or Law Firm. In some countries iCommons will identify the Project Lead first and ask him/her for help in finding a renowned copyright Institution or renowned Law Firm. In other countries, we will be in contact with the Institution/Firm first and will try to find a Project Lead from within.
2. Production of First Draft
To preserve the global spirit of Creative Commons, we strive for utmost similarity between the licenses worldwide. It is very important to us that the porting be very close to the original and go into the specifics of national law only when absolutely necessary. Once the first draft of the licenses is produced, it should be re-translated into English. This step is for us from Creative Commons, so we can learn what differences the legal systems of the respective countries have brought into our licenses. We should look for the first drafting of the ported licenses to take no longer than 1 month.
3. Online Public Discussion
Creative Commons will make the first draft of the licenses accessible on the iCommons website for public discussion via a mailing list and archive, provided by iCommons. Both the Project Lead and iCommons will make concentrated efforts to drive expert traffic toward the project e-mail list. This discussion again should take no longer than 1 month.
4. Production of Second Draft
In a new draft, the Project Lead could incorporate any ideas he/she liked from the public discussion. This re-draft, however, is optional: the Project Lead may decide to stay with the original draft, if none of the ideas brought forward seem usable. And again, Project Lead will provide an English translation of this second draft.
5. Creative Commons Reviews Second Draft
In some cases, this “review” will be done on a public email list; in others, offline. Either way, the Project Lead and Creative Commons will work on producing a result everyone will be happy with.
6. Production of Human-Readable Translation
Ease-of-use by non-lawyers has been Creative Common’s priority since its birth. Therefore, it is important to us that, in addition to the ported licenses, the Project Lead produce a translation or adaptation of our human-readable layer in the national language, the Commons Deed, which gives a brief graphic explanation of what the licenses stand for.
7. Ported Licenses posted on creativecommons.org
Up to this point, creativecommons.org will have listed links pointing to the Lead’s website, and to important places of national discussion and/or press coverage (as provided by the Project Lead). At this moment, however, we place the full final licenses, plus the Commons Deed, on our website, in the national language.
8. The Launch
Whether the launch be in form of a party, a convention, a television program, a press conference or all of the above will be up to the Project Lead. What is important to us is that the event attract the kind of publicity we need to make sure that people will know where to turn to for “creative work available for others to create upon and share”.

Steps to get Indianized version of Creative Commons:
———————————————————————-

Step 1: Mail Christiane Asschenfeldt , iCommons Executive Director
To check if somebody is already working on it. If no to initiate the work. I am sending a mail to her today. Will update you guys what happened.

On Tue, 2005-04-12 23:53.
Hi Christiane,
I was going through the list of countries which have their own version of Creative Commons. I was surprised not see the name of India. Now I am interested to have our own version of Creative Commons. Before I start putting effort towards, I want to know if somebody is working towards Indian Creative Commons.
Please let me know if somebody is working on it. If not I will try to spread a word amongst people so that we can work towards it. Eagerly waiting for your replies.
And all the best for the iCommons effort.
Thanks,
Thejesh

On Tue, 2005-04-13 23:53.
Reply: About Indian version of Creative Commons
Hi Thejesh,
thanks for your interest!
Please meet Shishir – our CC project lead in India!
Best,
Christiane
CC : skjha at iitb.ac.in

Step 2: Tried to get more details of Shishir
I googled for his e-mail Id and I got the following details:

Prof. Shishir Kumar Jha
AIB (India) President
Shailesh J. Mehta School Management
Indian Institute of Technology Bombay
Powai, Mumbai – 400 076.

His Resume
His home page

Step 3: Mail Shishir Kumar Jha asking for details.
Hi Shishir,
Can I know in which Status the CC license is in. If you can give me some details it will be useful.
Thanks,
Thejesh GN

His reply.
Hello Thejesh,
The documents for the MOU between CC and IIT B are being prepared and
should shortly be signed. Next we will start working on the legal porting
of the license and a dicussion on the usefulness of CC in India.
Shishir