SpicyIP Highlights of the Week:
Our highlights of the week were two posts relating to the issuance of John Doe orders that tell very different stories. The first post was my coverage of the Bombay High Court’s issuance of John Doe orders in two cases that were circumscribed by robust safeguards, in light of the criticism articulated on this Blog about broad-based John Doe orders. The orders can be accessed here, here and here. As I note in the article, this is the first time that a court has factored a criticism about its jurisprudence embodied in a web article into its analysis – a sign that our judiciary is recognizing the need to engage with well-founded critiques embodied in unconventional fora.
However, Legally India reports that Justice Patel seems to have changed his mind about these critiques and issued an order blocking 110 websites completely, in contradistinction to individual URLs, later in the week on the 8th of July. The 8th July order was based on a more specific affidavit submitted by the plaintiffs listing 110 websites as a whole (and not just links). The judge then appears to have passed the order against all the websites as a whole included in this affidavit. Given the express earlier order of the same judge that wholesale websites cannot be banned (this would be akin to banning youtube as a whole only because a user uploaded a movie on it). this appears to be a mistake/misunderstanding and one hopes it will be corrected at later hearings.
In this week’s second highlight, Prashant analyzed a Madras High Court John Doe order aimed at preventing the circulation of illicit copies of 5 Tamil movies. After criticizing the judge for issuing a widely worded John Doe order, he explains how the lack of a legal requirement for copyright registration in India makes it difficult to ascertain who the first owner of a copyrighted work is. Noting the difficulties that compulsory registration would throw up, he examines two alternative approaches to addressing this problem.
The first post this week comes from Ritvik and Swaraj, who examined the contours of a recent resolution by the UN Human Rights Council on access to medicines in developing countries. After setting forth the salient features of the Resolution, they talk about the manner in which the Resolution seeks to reconcile the competing arguments advanced by different countries. Finally, they explain the importance of framing the access debate in human rights terms in order to imbue it with greater meaning and substance.
In the next post, Shan discusses the recent controversy about the true inventor of cereal. After noting how the misappropriation of inventions by the powerful is reflective of a broader societal problem, she substantiates this argument by citing 3 concrete instances of inventions of the telephone, email and the light bulb being misappropriated by the financially powerful. Thereafter, she situates examples such as these, which reek of deceit, into a broader context, noting, very eloquently I might add, how these examples are emblematic of the way society creates structures that perpetuate existing hierarchies.
Next, Professor Basheer unleashed a new series on Sex and IP (“IP Juris-prurience”) noting that IP can be very effectively taught through the “Prism of Prurience”. He starts with the Viagra patent controversy and traverses the path of the patent as it travels from UK to Canada to China. While recounting these legal sagas with his unique literary flair, he notes that while the UK rejects it on grounds of obviousness, Canada does so on the ground of insufficient disclosure. However, while China also rejects the patent on credible grounds, it faces the fury of the US industry and government. Prof Basheer notes through this example that the patent regime is an indeterminate investment instrument and recommends that we move to a more direct investment regime.
Thereafter, I took note of the fact that instances of plagiarism by government bodies have been on the rise in recent times. After discussing 3 recent reported instances of plagiarism, I delineated the need for a robust legal and ethical framework to deal with this malaise which has made its presence felt in a large array of professional disciplines in India.
In the 5th post this week, Inika discussed the grant of a temporary injunction by the Delhi High Court in favour of Ericsson against Lava. After explaining the rationale underpinning the court’s finding that Ericsson’s patents were SEPs, she talks about the reasons underpinning the court’s conclusions that LAVA intentionally delayed the FRAND negotiations and that the inventions were not attracted by the mischief of Section 3(k) of the Patents Act, 1970.
In this week’s final post, Balu examines the wider ramifications of the grant of a patent to Apple for an invention aimed at blocking still and video recordings. After setting forth the patent specifications, he explains how the patented technology can serve as a powerful technological protection measure for upholding the rights of copyright holders. Finally, noting how this invention can also be used to curb free speech, he references Apple’s unbridled track record in protecting free speech in support of the proposition that this invention will not be misused.
International developments:
1. The Digital Economy Bill was tabled
in the U.K. Parliament this week. It seeks to, inter alia, lower the standard for establishing criminal liability for copyright infringement in cyberspace and increases the imprisonment term for such infringement by as many as 5 times.
2. Leading video game maker, Blizzard Entertainment, has sued Bossland for contributory copyright infringement, alleging that the latter’s cheating technique designed to help users unethically thrive in a game created by the former has paved the way for unauthorized generation of derivative works.
3. Apple has agreed to pay $25 million in settlement to a patent troll in a suit relating to a 1999 patent describing a file system function.
4. Huawei Technologies has sued T-Mobile, alleging that the latter is using the former’s SEPs relating to 4th-generation wireless technology without obtaining a license for the same on FRAND terms.
5. The European General Court has ruled in McDonald’s favour in a trademark registration suit, holding that McDonald’s has the exclusive right to use the terms ‘Mc’ and ‘MAC’ as a prefix in the name of any foodstuff or beverage.
6. The UK High Court for England and Wales has ruled that ISPs can be ordered to block websites selling counterfeit goods, in violation of rights of trademark owners, despite the absence of an express law providing a legal basis for such orders.
I read Prashant’s criticism of the Madras High Court order and thought it to be missing the point a bit. The prayer is extracted in the first page of that order. It is fairly clearly worded – that an injunction is sought against the uploading of these five movies on YouTube or other websites. The order says that the application is “ordered as prayed for”. I think it is pretty clear and pretty narrow.