SpicyIP Weekly Review (May 2013, Week 1)

SpicyIP is delighted to announce a new section on ‘Social Innovations’ focusing on innovations which are ‘development oriented or specifically directed at social causes’. Swaraj brought our attention to world’s first Braille smartphone developed by an Indian company, Kriyate Design Solutions. The phone enables visually impaired to send and receive text message, tactile maps, scan and convert external text to braille and even represent our surroundings in braille! The project is a brainchild of Sumit Dagar, a graduate from National Institute of Design.

Constitutionality challenge to Bollywood amendments

In this week’s featured post, Prashant briefly takes us through the arguments raised by film producers led by Bharat Anand and JMV Movies Pvt. Ltd. against Sections 17, 18, 19 and 33 of the Copyright Act which were amended last year. This is part of our continuous coverage on three writ petitions filed before the Delhi High Court challenging the constitutionality of various provisions of the latest amendments.
(a) Second Proviso to Section 17: The petitioners alleged that the effect of insertion of second proviso to Section 17 excludes producers from claiming first ownership over the work. The petitioners argue that the provision unfairly discriminates producers wherein status quo is maintained for other copyright owners.

(b) Provisos to Sections 18 & 19: The petition alleged that the provisions which allow lyricists and composers to claim equal share of royalties earned by producers in relation to exploitation of their works is unreasonable and discriminatory to other classes of authors.

(c) Section 33: The film producers argue that the proviso of Section 33(1) violates Article 19(1)(c) which safeguards right to join (and right not to joint) an association. The provision mandatory requires the licensing of underlying works incorporated in cinematographic works to be administered through a copyright society.

For more on the strength of the arguments raised by film producers, Prashant’s post is a must read.

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US Special 301 Report: India in the ‘Priority Watch List’ yet again

The US’s Special 301 Report continues to place India in their ‘Priority Watch List’ and expectedly, the Supreme Court’s decision on Section 3(d) and IPAB’s decision on granting of India’s first compulsory license were the prime targets. Maybe an ill informed opinion or a case of blatant misrepresentation, the report viewed the SC decision as a ban on incremental innovation in pharmaceutical industry. Furthermore, the report finds fault with the IPAB’s ruling on ‘local working requirement’ necessitating inventors to manufacture in India, raising concerns over the spillovers to other sectors such as green technology and information and communication technology.

Swaraj in this post rightly questioned the legitimacy of the Special 301 report which of late echoes the opinions of corporate America without any deference to public health concerns in the developing world.

Prashant reported the Central Government’s continuing apathy towards DIPP as the IPAB chief Justice Prabha Sridevan submitted her second status report on the tribunal’s functioning before the Madras High Court in the on-going challenge to tribunal’s constitutionality. The first report was submitted 18 months ago (report available here). The latest report addresses two main issues concerning the Board; office space and financial requirements. The good news is that the space crunch seems to be resolved as extra space has opened up within the existing premises. Therefore, there no need for the Board to relocate itself to a new building sanctioned by DIPP which is currently under construction and three times more expensive than occupying the extra space. And for the bad news, the Board had to cancel few circuit hearings due to paucity of funds. The Board was granted Rs. 31.8 lakhs towards ‘Office Expenses’ as opposed to their proposal of Rs. 1.2 crores.

Justice Sridevan also noted a letter from Ministry of Law and Justice informing their efforts to streamline all tribunals, particularly to ensure uniformity in appointment and service conditions. Unfortunately, however, the DIPP continues to exert control over appointment of Board members.

IPAB allows opposition against registration of Jaguar

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The IPAB on April 30, 2013, allowed an opposition filed by UK based car major, Jaguar Cars Limited in relation to registration of ‘JAGUAR’ sought by Swiss company, Manufacture Des Montres Jaguar, in relation to ‘watches and parts thereof excluding clocks’. The Deputy Registrar of Trademarks, Kolkata dismissed the opposition on the grounds that the Swiss company was a prior applicant with respect to watches and that the opponent’s registration does not extend to watches. The IPAB dismissing the order stated that Jaguar Cars Ltd. acquired wide reputation and brand value in India since its registration in 1945. Notwithstanding applicant’s prior use of the mark in relation to watches, IPAB opined that the grant of registration is likely to cause confusion among consumers.

IP Courses 

The Federation of Indian Chambers of Commerce and Industry (FICCI) has opened registration for an ‘Online Certificate Course on Competition Law & Intellectual Property Rights’ (IPComp). The course is open to law students, lawyers, industry professionals and students pursing company secretary courses. Last date for registration is May 25, 2013. For more details please visit www.ficciipcourse.in or email at [email protected].
Vidhi Centre for Legal Policy (VCLP) [formerly Pre-Legislative Briefing Service (PBLS)], an independent think tank co-founded by Prashant Reddy and Arghya Sengupta is on a look out for research fellows and interns. In a very short span, VCLP has produced some cutting-edge research and policy work related to pending bill before the Parliament and has received much appreciation from Parliamentary Standing Committees examining these bills. The think think is currently headed by Arghya Sengupa, a Rhodes scholar at Oxford, and the last date for sending your applications is May 30, 2013.
International Developments

International status for GIs

The WIPO Working Group on the Development of the Lisbon System of Appellations of Origin met last week to discuss inclusion of geographical indications to the Lisbon Agreement for the Protection of Appellation of Origin and their International Registration. The latest move is an attempt to expand the membership to the treaty, as reported by Intellectual Property Watch. This round of discussions has brought more clarity in dealing with conflicts between earlier trademarks and registration of Appellation of Origin (AO) and GIs. The working group will reconvene in December 2013 to discuss further.

UKIPO proposes reforms to UK Design Rights

After an elaborate consultation process, the UK Intellectual Property Office (UKIPO) released a white paper suggesting amendments to its design laws and procedures. It recommended to amend the UK design protection to align with EU laws and has attempted to ‘modernise and improve the design framework so that it is less complex to use’.Some of the key proposals include provision of criminal sanctions against copying of registered designs, retain and extend Unregistered UK Design Rights to businesses conducting operations in EU and permit a 30-month delay in publishing design application.

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UK abandons plain packing laws for tobacco products (The SunFinancial Times)

The British government has decided not to introduce plain packaging law for sale of tobacco products. An Australian style plain packaging law was doing rounds for more than a year in an attempt to de-glamorize  smoking among the youth. The UK tobacco lobby comprising two of the world’s biggest tobacco companies, British American Tobacco and Imperial Tobacco, have continuously challenged the claim that plain packs dissuade tobacco consumption. In fact there is no credible evidence in Australia to indicate that  plain packs affect smoking, according various news reports.

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