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SpicyIP Weekly Review (11 June-18 June)


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As to the Highlight of the Week, we were hard pressed to choose a winner and have a tie between Professor Shamnad Basheer’s timely and hard hitting take on the need to distinguish the merit of a judgement from its length and Balaji Subramanian’s stellar two part post on the constitutionality of state laws that criminalise copyright infringement.

The week got off to a flying start with the excellent post by Professor Basheer, originally carried in the Wire, on the merits of assessing a judgement by its length. The immediate inspiration of his article was a recent story in the Times of India, which was written on the basis of an apparent complaint by an anonymous litigant against Justice Gita Mittal of the Delhi High Court for the supposed lack of length in her judgements. In his pithy analysis, he points out how the length of judgment is in no way a yardstick for either its jurisprudential depth or legal logic. By linking the issue of legal verbiage to access to justice or the lack of it, Professor Basheer holds back no punches in pointing out the need for de-linking a well- reasoned judgment from its length.

In the second post of the week, I reflected on the way the evolution of e-books has been transforming the traditional landscape of publishing industry. In this post, I highlight the two major problems caused by the rise of e-books. While one of them affects the authors, the other one challenges the very existence of libraries. I point out how publishers are taking the authors for a ride by labelling the licensing of e-books to end customers as a “sale” while paying out royalty to authors, purely in order to avoid the higher royalty under a licensing transaction. As far as libraries are concerned, the lack of a digital first sale doctrine severely restricts them from lending out e-books at will and I point to the need for having a “digital first sale” doctrine.

We rounded off the week with the other highlight post of the week by Balaji Subramanian. The post has been written in light of the recent decision in Subramanian Swamy v UoI, which upheld the constitutional validity of defamation provisions in the Indian Penal Code. In the first part of the post, he starts off by drawing the link between a defamation action and an action against copyright infringement, as both involve competing claims of ‘private right against dissemination’ as against free speech.He goes on to examine the validity of the two factors cited by Nimmer as imparting copyright laws their immunity from constitutional scrutiny- the idea- expression dichotomy and the fair use exception. After examining cases such as Morrissey v. Procter & Gamble and Time, Inc. v. Bernard Geis, he arrives at the conclusion that it would be incorrect to assume that these so-called “in-built” mechanisms provide copyright laws any blanket protection from free speech scrutiny.

In the second part of his post, he pits the state Goonda Acts against the reasonable restrictions allowed for under Article 19 (2) of the Constitution. He observes that while there are no explicit exceptions carved out for legislations such as these, he nevertheless tests them against the only discernible exception- public order. He concludes, by examining the dicta in Ram Manohar Lohiya v State of Bihar, Rangarajan v. P Jagjivan Ram and Arun Ghosh v State of WB, that the public order is a narrow exception and the same would be inapplicable in cases of copyright infringement as they can at worst be classified as breach of law and order and cannot be fall within the narrow exception of public order.

International Developments

  1. Apple Iphones found to have violated Chinese rival’s patent
  2. EU Trade Secrets Directive to come into force on 5 July 2016
  3. European Council approves first- ever analysis of drug prices with look at IP rights
  4. UN Development Agency issues guidelines for pharmaceutical patent examiners
  5. Another copyright lawsuit against appropriation artist Richard Prince

Balu Nair

Balu completed his B.A. LL.B. (Hons.) from WB National University of Juridical Sciences, Kolkata and LL.M. from Melbourne Law School as an Alex Chernov Scholar. He is currently a Lecturer at Jindal Global Law School and is also Assistant Editor at Indian Law Review. He can be reached at [email protected]

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