The ASSOCHAM organised IP conference on ‘Interface between Intellectual Property & Competition Law’ – Invention, Growth and New Challenges’ held on the 7th of this month became the subject of much controversy, when a section of the civil society, comprising organisations Alternative Law Forum, Bangalore, Centre for Internet and Society, Bangalore, IT for Change, Bangalore, Knowledge Commons Collective, New Delhi, National Working Group on Patent Laws, New Delhi and Software Freedom Law Centre, New Delhi raised concerns against the participation of the CCI chairperson Ashok Chawla as a keynote speaker at the event that was not only co-sponsored by (lo behold!) Ericsson, but was also to be attended by one of its representatives. Three more CCI members – GP Mittal and MS Sahoo and SL Bunker – were also scheduled to attend the conference.
In their letter to the CCI, the organisations had argued that CCI’s participation in the event would pose a rather grave conflict of interest. Firstly, so far as the sharing of a platform by a public watchdog with private commercial actors is concerned, and secondly, considering that three CCI investigations against Ericsson on the very same issues that were to be discussed at the event – Standard Essential Patents (SEPs) and the competition aspects of licensing agreements – are currently underway.
SpicyIP has documented Ericsson’s run-in with the CCI on multiple occasions here, here, here, here, here and here. To quickly help the uninitiated catch up, complaints were filed before the CCI by Intel, Micromax and iBall against the discriminatory royalty charged by Ericsson for the issue of licenses to use Standard Essential Patents(SEPs). These patents are owned by Ericsson, but have been adopted as standards, leaving mobile phone and tablet manufacturers with no option but to obtain a license for the use of these patents – thereby imposing upon Ericsson the obligation to issue the same in accordance with the FRAND terms.
The organisations claimed that CCI’s participation in the conference had the potential to compromise public perception of the CCI as an independent, unbiased watchdog. They stated in their letter, that in the light of well-set precedent, it is only expected that a quasi-judicial body like the CCI refrains from engaging in discussions on matters that are currently under its investigation, and especially so where the private entity it is investigating against had been invited as a key-note speaker at the conference itself. The letter went on to say that the CCI is expected to avoid any occasion that could cause not only actual conflict of interest, but also a perceived conflict of interest – which it claimed would arise by its virtue of its participation, because it would raise the possibility of the body getting influenced by the interests of private entities like Ericsson.
The letter pointed out that this was not an academic event, but a commercial one, where an exclusive group of IP owners – one that included Microsoft, Intel, Qualcomm in addition to Ericsson -were given an opportunity to put forth their views in the presence of the CCI, from the perspective of an IP owner. The letter states, it is very clear the primary objective of the conference is regulatory capture through reaching out to CCI. Any direct or indirect participation of CCI in the conference would convey the signal with regard to the vulnerability of CCI to lobbying and corporate capture. The letter questioned the ethics and propriety of CCI’s participation in a conference organised and sponsored by commercial entities in order to further their own economic interests. It emphasized that such participation could very well raise questions as to CCI’s credibility as a guardian of public interest, and affect its image as a non-aligned, neutral quasi-judicial body.
Sources tell us that the letter did in fact ruffle quite a few feathers. The CCI chair, we hear, made only but a quick appearance, disappearing right after his speech. The panels for the event were reshuffled, with the Ericsson speaker being put on a later panel. Further, attendance was slim.
Now, it may be argued that the presence of the CCI chairman at an open event where private actors present their stand on the rather controversial conference theme may not have been the smartest way to go if they really did have a crooked trick up their sleeve. However, where an authority appears to have voluntarily put itself in a vulnerable position where it becomes susceptible to the influence of third parties in line with their vested interests, it seems rather necessary to jolt the said authority out of its stupor in order to prevent aspersions from being cast upon the integrity of its subsequent actions.
The letter did just that, and it looks like it might have fairly succeeded.