Spicy IP Weekly Review (March 29 – April 4, 2015)

spicyip weekly review

We covered a wonderfully wide variety of concepts over this past week – a dual takedown of PPL and IPRS, Net Neutrality, Trade Secrets, Copyright in light of parodies, more comments on the Draft IPR Policy, Open Source Software, FRAND Litigation, a new centre for IP and Plagiarism. However, the highlight of the week goes to Rupali’s powerful two-part post analyzing Shreya Singhal. In the first part, she briefly discusses the findings in relation to Section 66A and 69A of the IT Act. In the second part, she deals with the more complicated question of intermediary liability under Section 79 which the Court upheld after considerable watering down of its applicability.  After a systematic analysis of the law on the point and relevant academia, she concludes that while the judgment brings clarity to free speech jurisprudence, the principles of chilling effect and overbreadth could become basis for arguing a relook at the liability regime for intermediaries under Copyright law.

In our first two posts this week both PPL and IPRS received a lot of flak for their recent doings. In the first, Aparajita discusses the defamation notice that the Telangana Chamber of Events Inductry, the TCEI, received from PPL for few comments made by the former on Facebook. She criticizes the notice to be more of a copyright infringement notice than one for defamation, and notes that PPL’s presence in the news has been less than flattering making it rather bold for the company to be sending out defamation notices. She analyzes the legal position on defamation suits by companies and questions the applicability of facts to that threshold. She notes that it is quite improbable that few comments on Facebook would cause damage to the business of property of PPL. On merits, she finds that the content of the comments are likely to fall under the defense of ‘fair comment’. Notwithstanding that claim on merit, she provides a simpler alternative that PPL could have adopted – to have replied to comment with the truth on Facebook itself instead of sending a notice for defamation. This also makes the demand for 10 crores as damages difficult to justify. She finds that the trend of courts to come down hard on such SLAPP suits could possibly ensure that nothing happens out of this defamation notice.

This was closely followed by Devika’s post where she reported that IPRS is following PPL’s suit by claiming not to be a copyright society. In the post she notes that PPL’s withdrawal of its application for registration as a copyright society last summer, and its claims that any previous registration had expired and was inoperative. In October last year, IPRS declared that it was not a copyright society and that it was unaccountable under the Copyright Act. Even more recently, the IPRS submitted that it was not amenable to an enquiry by the Department of Higher Education, Copyright Office into alleged dishonest practices because it had ceased to be a copyright society. She argues that both IPRS and PPL do not realize that their argument is a double-edged sword, that if they are not a copyright society, they cannot carry on the business of issuing or granting licenses. Additionally, any licenses that can be issued would only be in the name of the copyright holder and not in their own name.

Next, Kartik in a tidbit briefly discusses the concept of Network Neutrality and the distance that has to be covered to attain full freedom of speech on the cyberspace. He highlights the importance of Network Neutrality and observes that the TRAI is making its way into this area. He notes the importance of ensuring that the masses appeal and flood TRAI with comments. Comments on the paper should be sent to [email protected]

I then wrote on a recent decision of the Delhi High Court regarding Trade Secrets in Airef Engineers Ltd. In my post I argue that in the exparte ruling, the Court missed the opportunity to lay out standards and principles to govern trade secrets, and to contribute to sparse jurisprudence on the point. I also note that the Court overstepped its powers when it considered mere possession of trade secrets when the contract prohibits only misuse. I go on to observe that the Court seemed to have created an affirmative defense when it required the employee to prove that he was not in possession of trade secrets. I conclude that along with shifting burdens unnecessarily and without justification, the Court missed out on an opportunity to establish principles making it a fairly forgettable decision.

In the next post for the week, Kartik reported Netflix’s ambitions to make its contents global. Netflix’s main hurdle is in the fact that the content that it provides is under licenses which geographical restrictions on the places in which this content can be provided. Netflix’s argument is that its move is counter piracy. Kartik studies this claim – he notes that piracy is not attributable to an unwillingness to pay. Instead, bending the rules in the only way consumers who are more than willing to pay have access to content. He concludes that if Netflix Global succeeds in India, it would be a positive step bringing easy access to content to people around and world. Additionally, the move would bring Netflix’s internet-age business model to a broader audience which is great news for innovation.

Devika then gave us a very different perspective on the Deepika Padukone-Vogue video. She reported that a spoof of the video which was taken down from YouTube after Vogue was unimpressed with it and cited copyright infringement. She opined that the parody would be covered under Section 52(1)(a)(ii) and that the pulling down of the video was not correct. In any case she argued that we are far too easily offended and, that our sensibilities and sense of humour must become better if we want empowerment in its true sense.

Then, Swaraj drew attention to a two-page letter in which the economic wing of the Sangh Parivar- Swadeshi Jagaran Manch raised concerns over the Draft IPR Policy. The letter was addressed to the Minster of Commerce and Industry and made 4 requests. The SJM requested a reconstitution of the Think Tank to remove conflict of interest and ensure the involvement of academics, reorientation in the approach of the Tank and the Nation IPR Policy to address technological and development needs of the nation, putting an end to the hurry in the formation of a National IPR Policy and commission studies to identify development and technology needs, and direct a reconstituted Tank to identify the suboptimal flexibilities in the National IP regime.

On the first of April, Madhulika announced our decision to charge readers with a nominal fee for subscription in certain regions.

Then, Spadika noted the incorrect and appalling nature of the statements made by the Director of Hetero Pharma regarding the Compulsory Licensing that was granted to Natco. She then went on to comprehensively takes down each of the statements on analysis.  She noted that it was favourable that Hetero has distanced itself from the stance of the person making the statement.

Thomas then discussed the Policy adopted by the Central Government to utilize Open Source Software wherever available to fulfill its software requirements in Central Government organisations for e-Governance applications systems while replacing existing software applications. States are also open to adopt and implement the policy.  He observed that this is indication of the fact that the government is aware of the advantages that OSS offers and that in India’s circumstance, this awareness by itself is monumental. He then broke down the manner of implementation under the policy and the effective measures that it imposes to create a better environment for the functioning of OSS. While he drew our attention to two possible flaws, he noted that there is much to be appreciated about the policy and much to be hopeful about its implementation.

Aparajita had a quick follow up on the Natco CL post by Spadika. She notes that not only did Hetero distance itself from the statements of the Director, it (sternly) asked ET to be more cautious in the future and check the authenticity of the sources. She questions how ET could have been more cautious. She noted that in this context it would mean the ET keep a tab on all internal arrangements and happenings within all organizations that they report on. She notes that the doctrine of indoor management will take precedence and that the same would afford protection to media houses.

Kiran then came out with a tidbit reporting the launch of the NUALS’ Centre for Intellectual Property Rights. On a positive, which is rarely the case for such Centres now, the Centre has begun its activities with a qualified Chair in place already.

We then had Prashant’s guest post on interim damages in FRAND patent litigation. While, Prashant briefly condemns the determination of royalty rates by judges of the Delhi high Court without a trial, he highlights the unchartered territories that the Delhi High Court seems to have ventured into with the case of Ericsson v. Intex where interim damages for past conduct was ordered. He questions the powers of the Court to order such payment of interim damages directly to the plaintiff without conducting trial. He notes that even in the skewed situation with Indian Courts, there is only the requirement that money be deposited with the Court. He questions the legality of these interim damages on the threshold of the difference between injunctive relief and damages, and the absence of such a provision under the Patents Act. He went on to question the constitutional question (Art. 300A) of whether or not Courts can deprive persons of their property without following procedure established by law. He concluded by severely questioning as to where the justice is in such an order.

Gopika then announced the 8th Annual NLSIR Symposium on Competition Law which calls for Student Papers for the 8th edition of the Annual Symposium.

Gopika rounded of the week reporting the irony that a paper published by the Indian Journal of Dermatology establishing guidelines to approach plagiarism was retracted for plagiarism. She reaffirmed that academic journals need to take strict action ensuring that plagiarized works are never published and, that the academic community along with institutions instill the unacceptable nature of plagiarism with more force.

Key International Development

The US Supreme Court heard oral arguments on the closely watched case of Commil v. Cisco which deals with the defense of patent invalidity in induced infringement cases. (http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-896_q8l1.pdf)


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