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SpicyIP Weekly Review (May 4 – May 17)


The blog saw a huge amount of action over the last couple of weeks, so this belated highlight-reel is going to be longer than usual.

Highlight of the week(s)

Over the last two weeks, Swaraj and Shamnad raised questions over inconsistencies that run rampant in the framing of India’s IPR policy. First, Swaraj put together a timeline of events demonstrating the kind of doublespeak that’s pervaded the higher echelons of the government in the last few months. Shamnad then attempted to get at the possible reasons for such contradictory statements emanating from cabinet-level decision-makers. He posits that policymakers could be caught between opposing goals – to appease Western trade lobbies as well as domestic players at the same time. He also discusses the impact of such statements on the recently released USTR Special 301 Report, which seems to be much milder in tone than earlier editions.

I then came in with the second of a two-part post outlining my apprehension over Google’s Patent Purchase Promotion, in which I wonder whether such measures will allow large corporations to leverage their financial muscle to easily acquire large numbers of patents with astonishing ease. I conclude with an ominous question: will companies such as Google end up becoming tomorrow’s biggest patent trolls through such processes?

Kiran brought us up to speed on the recent IPAB decision against Khoday Breweries, in which the company’s “Royal Pipers” was removed from the trademark registry following opposition from Chivas, seeking to protect its own “100 Pipers” mark. Kiran summarises the order, and notes that Khoday seems to be a repeat offender when it comes to trademark infringement.

Next, I did a post detailing Martin Luther King, Jr.’s history of plagiarism, and attempted to mount a defence of his free borrowing of ideas, especially in his political speeches. However, I concluded by noting a crucial contradiction that raised its head when studying King’s interaction with IP – his preacher-inspired idea-borrowing is in sharp contrast to his (and his heirs’) aggressive enforcement of the IP subsisting in his speeches.

Rajiv then came up with an extremely interesting post discussing the interplay between portfolio licensing and the territorial scope of patent law. After flagging off issues with the prevalence of portfolios, such as the dominance of the licensor’s interests in setting rates, he notes that most patents in licensed portfolios are not filed in India. He also emphasizes that patent scope is a function of each country’s domestic law, and a given patent’s scope may often differ in different countries. Given these discrepancies, he questions the practice of allowing licensors to fix a uniform rate for the portfolio, and further contends that the benefits of portfolio licensing may be outweighed by this disadvantage.

Next, Shamnad outlined attempts made in the US to ensure that pharma companies disclosed their R&D costs, in order to ensure that they set fair prices and still recouped their investment. After narrating the failure of these attempts, he points us to an investment protection model that could achieve the same end, end emphasizes that unless research costs are made public, fair pricing of drugs will remain an impossibility.

Rupali then informed us of the latest example in a disturbing trend – Fresenius Kabi Oncology’s withdrawal of its opposition to Sugen’s lung cancer drug patent. After summarising the proceedings and highlighting the IPAB’s slow processing of the case, she notes that such settlements represent a substantial setback for the interest of the patient, impeding access to the drug in the market.

Devika posted on the impact of the Right To Be Forgotten, and how Google was dealing with requests under the ruling from its European users. Interestingly, she explores the role that copyright law can play in combating revenge porn – she argues that since most of the content posted as revenge porn involves selfies taken by the victim, he or she can then have this content taken down using the mechanisms provided under copyright law.

Devika also chronicled another troubling trend – the prevalence of “three-strike rules” around the world, being employed by ISPs in collaboration with rights-holder organisations in order to dissuade users from digital piracy. She concludes that such policies are both ineffective as disincentives to pirate, and unnecessarily harsh in their curtailment of the “errant” user’s right to internet access. She highlights alternatives that have combated piracy better, such as services like Netflix and Spotify that have made it easier to access legitimate content.

Completing a hat-trick of posts, Devika then informs us that the makers of Piku and Bombay Velvet have successfully obtained ex parte injunctions against named and unknown defendants to prevent them from hosting or transmitting the movies. Both orders direct ISPs to block access to websites that share infringing content in this regard. It’s possible to visualise a future in which applying for such an injunction becomes just another formality that film-makers have to perform before their Friday releases.

Shamnad then questions the excruciatingly slow pace at which proceedings happen in our courts, wondering how arguments at the interim stage stretch out for years together. He cites Justice Katju’s innovative solution – to do away with lengthy interim proceedings by “cutting to the chase”, as it were, and deciding the issue on merits at the first instance in an expedited trial. However, he observes that Justice Katju’s pronouncement has not found traction at the High Court level and below, and argues that this could be because there exists no mechanism to ensure compliance in the courts below.

Almost as if on cue, the very next post we had was from Devika, reporting yet another interim injunction issued to the Indian Independent Filmmakers Worldwide Association (IIFWA) against YouTube, The matter concerned episodes of IIFW Masterclass, a series of videos in which established filmmakers share their knowledge with budding artists. YouTube was directed to remove the episodes immediately, pending hearing and final disposal.

Rounding up the action for the fortnight, Swaraj explores the role of a copyright-maximalist approach in curbing freedom of speech and expression. He argues that the intermediaries that benefit the most from copyright maximalism (publishing houses, record labels and film studios – collectively “Big Media”) – have lost much of their relevance in today’s world that in which content creators can easily reach out to consumers without their mediation. In such a situation, he questions the dogmatic reliance on copyright law through instruments such as the TPP and the ACTA, which have the potential to impose massive curbs on freedom of expression, privacy and other individual rights.

Announcements

Job vacancy for Policy Associate (Internet Governance) at The Centre for Internet and Society

Third Annual Information Technology Legal Summit (ITLS) 2015

Consilience 2015 – Net Neutrality

Job Vacancies at Lawyer’s Collective

International Developments

– Michael Jordan has escalated a trademark dispute against a local firm in China over the use of his Chinese name and his jersey number “23” without his permission to the country’s supreme court.

– Ride-sharing services could be the site of the next big patent war, with Uber, Lyft and Sidecar counting their patents and assessing their options.

Balaji Subramanian

Balaji Subramanian

Balaji is a third year student at NALSAR, Hyderabad. He is currently an editor of the Indian Journal of Intellectual Property Law. He is fascinated by technology law and IP law, and is an active member of NALSAR's Technology Law Forum. When he isn't doing law school things, he wanders the country looking for quizzes to participate in. He can be emailed at [email protected]

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