SpicyIP Weekly Review (April- Week 1)


SpicyIP Posts

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The week started with Rajiv informing us about the new online certificate course on IP offered by the FICCI. For more see here
This was followed by my post on the Bombay HC’s ruling in the Zanjeer remake controversy. The court has conditionally allowed the producer of the remade Zanjeer (Amit Mehra) to proceed with making of the film. However, its release is contingent on the final outcome of the on-going arbitration proceedings. The court granted such a relief primarily because the respondents (Sumeet and Puneet Mehra) were unable prove their ownership of the script of the original Zanjeer. The respondents were unable to produce a written agreement showing that the script writers had assigned all their rights in the script to the respondents. 
Another ‘remake rights’ controversy followed- Prashant blogged about the Bombay HC order that refused to grant script writer Sai Paranjape an interim injunction restraining the release of the movie Chashme Budoor. The script writer’s contentions of violation of copyright in the script and moral rights were not sustained by the court. Given the existence of a contract where Paranjape had reportedly assigned the copyright in the script of the movie to the production house coupled with the delay in bringing the present action, the court found the balance of convenience to be in favour of the production house. 
The next post also dealt with a Bollywood related copyright matter and was covered by Shouvik in his post about the Bombay HC allowing the production of Sholay in 3-D to continue. Ramesh Sippy, the director of original Sholay, contended that he still possesses the rights over the movie and has not relinquished the same. The court, however, said that Sippy was not entitled to any relief before certain preliminary matters raised by Sasha were addressed. 
Prashant then posted a detailed analysis of the Novartis-Glivec patent case. The post dealt with several issues such as what was the invention in question, was the claimed invention found to be anticipated or lacking in novelty and a detailed Section 3(d) analysis. 
Thereafter, I blogged about the publicity rights controversy surrounding Ketan Mehta’s film on the life of the famous ‘mountain breaker’ (Dashrath Manji). The Civil Court of Patent stayed the screening of the film after filmmaker Dhananjay Kapoor claimed to have legal rights over Manji’s life story. 
Madhulika then brought to our readers a detailed summary and review (here) of the recent Glenmark/Merck patent dispute. The Delhi HC refused to grant interim relief to Merck (plaintiff) who sought to restrain Glenmark (defendant) from launching its products. The discussion surrounded the issue of separate patents for Sitagliptin and salt form of Sitagliptin, the issue of infringement and observations made by the Court. 
Shouvik blogged about the recent rise in royalty rates paid by Asian subsidiaries to their parent companies abroad. Several reasons for such a trend have been discussed in the post such as the patent box regime in the UK which has reduced taxes on revenues derived from patent products. This has a direct consequence on UK parent companies seeking to earn greater sums of money in the form of patented product revenue from their subsidiaries. This however creates a clash of interest between local investors and the parent company. In this regard local authorities must reconsider their evaluation of this trend and long-term effects thereof –strictly from the taxation point of view. 
Comments of the Week 
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1.To Prashant’s post on the Chashme Bhudoor order – Anushree wrote – Bollywood would soon be posed with a series of litigations pertaining to remake rights of films. Considering that in the era of 70’s-80’s most of the arrangements between the producers and authors were based on trust and good relationships, the documents (if any) entered were just a mere formality and often loosely worded without apprehending any potential litigation. The understanding was always that once a producer makes a film, it becomes his property in perpetuity and the author is divested of all his rights in the film. This view was seconded to some extent by 1977 IPRS v/s EIMPAA SC judgment. The industry was not conversant with the concept of derivative works which is a trend that has developed recently. Little did the producers know that they would be posed with a challenge of establishing the “control” test and proving whether the engagement of the author was one of ‘contract of service’ or ‘contract for service’. Cases like Zanjeer (where no author’s agreement could be found) and Chashme Baddoor (where the engagement is being interpreted) are just the tip of an iceberg. With the Copyright Amendment Act, 2012 favoring the authors, the awareness of the moral and economic rights of authors is bound to increase which will ultimately result in multiplicity of proceedings. The centenary year of the film industry is definitely being marked with the litigations of cult films like Sholay, Zanjeer and now Chashme Baddoor. 
2. To my post on Ketan Mehta’s Film – Anushree wrote – As per earlier press articles in October 2012, Ketan Mehta had acquired the rights from Manjhi’s son after Manjhi’s death. Whereas Dhananjay Kapoor acquired it directly from Manjhi prior to his death. Several issues arise in this regard: (1) Whether Dhananjay Kapoor has the exclusive right to make a film on life of Manjhi? (2) Whether the personality rights of Manjhi are inherited by his son and therefore whether he has the right to grant biopic rights to producers like Ketan Mehta? An analogy may be drawn with the law of defamation of the dead. Defamation of a deceased person does not give rise to a civil right of action at common law in favour of surviving spouse, family or relatives, who are not themselves defamed. The maxim ‘actio personalis moritur cum persona’ embodies within it the English principle that a personal action dies with the Plaintiff. Also Section 306 of the Indian Succession Act states that “All demands whatsoever and all rights to prosecute or defend any action or special proceeding existing in favour of or against a person at the time of his decease, survive to and against his executors or administrators; except causes of action for defamation, assault, as defined in the Indian Penal Code, (45 of 1860.) or other personal injuries not causing the death of the party; and except also cases where, after the death of the party, the relief sought could not be enjoyed or granting it would be nugatory.” We perhaps need a judicial precedent to determine the descendability of personality rights. 
International News 
African Regional Plant Variety Protection Draft Legislation Raises Protest – The Southern African Development Community (SADC) is working on a protocol for the protection of new varieties. However, the lack of consultation with farmers and potential impact of the Plant Variety Protection has enraged the African civil society. Debates surround TRIPS compatibility/flexibility and restriction of Farmer’s Rights. 
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Australian Pharmaceutical Patents Review Draft Report Critical Of Patent Extensions, R&D Funding – This report by the Australian Pharmaceutical Patent Review, suggested that the Australian government should change the way pharmaceutical R&D is funded, reduce pharmaceutical patent extension terms and provide subsidizes for research and development. 
Six EU Countries Take Legal Action Against Google Over Privacy– Organizations in France, Germany, Italy, Spain, the Netherlands, and the United Kingdom agreed to take joint action against Google due to its failure to implement changes to its privacy policy. As we had previously mentioned (here)- the controversy surrounds Google’s universal privacy policy which has merged 60 separate privacy policies from around the world.

Aparajita Lath

Aparajita graduated from the WB National University of Juridical Sciences, Kolkata. She was formerly an editor of the NUJS Law Review. She is a lawyer based in Bangalore. All views expressed by her on the blog are her personal views.

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