SpicyIP Weekly Review (September 11–17)


We’re still reeling from Justice Endlaw’s much awaited ruling in the DU Photocopy case on Friday, and this week’s highlight can’t be anything but our continuing coverage of the decision. Prof. Basheer first brought us the key highlights of the order, which Gopika then followed up with a more detailed analysis. In a massive 94-page decision, the Delhi High Court handed out a landmark verdict for IP and Access to Knowledge, holding that the educational exception under Section 52(1)(i) – the reproduction of a work by a “teacher/pupil in the course of instruction” – of the Copyright Act was broad enough to cover the photocopying and creation of course packs. Read here, here and here for background on the case.

Starting off the week, Prashant reviewed the Delhi High Court’s judgement of Tata Sky v. YouTube. Following Kartik’s detailed post  last month, Prashant notes that there are a few problems with how the matter was dealt with by the Court. He notes first, the lack of any civil remedies in Section 65A of the Copyright Act for the circumvention of Technological Protection Measures (TPM), making its circumvention a criminal offence. Even with this limitation in the statute, he points out a case wherein Sony was granted an injunction for the circumvention of TPM – an argument that YouTube did not make. Secondly, Prashant points out that the Copyright Act criminalizes only the act of circumvention of TPM – it does not criminalize the act of teaching a person to circumvent a TPM. He notes that this, along with the Courts interpretation of the Information Technology (Intermediaries Guidelines) Rules 2011 has imposed the obligation on YouTube to take down such videos in the future, as they didn’t raise the above issues.

Next, we carried a guest post by Sribindu Chivukula. She discusses the case of a national phase out patent application filed by Merck that was denied by the Indian Patent Office under Section 4 of the Act – as it related to atomic energy. She examines the background in which the patent was granted, and examines the relevance of invoking Section 4 of the Act at all, and makes two pertinent observations: Firstly, that invoking Section 4 in the absence of knowledge on use of 18F in any application where a measurable amount of atomic energy is generated by a nuclear reaction is irrelevant. Secondly, Sribindu notes that since the basis of Section 4 was reasons of national security, to limit public access to said atomic technology. She argues that in this day and age, with the dissemination of information by technology at the rate in which it is occurring – perhaps Section 4 is now obsolete.

I followed this up with a post reviewing the current status of GM Mustard in the country. The Central Information Commission (‘CIC’), last month directed the Environment Ministry to release all biosafety data that related to GM Mustard. While the Ministry is yet to comply with the order, they released a Safety Assessment Report last week. The Genetic Engineering Appraisal Committee (GEAC) has additionally stated that it will only take a final decision on the commercialisation after it receives comments from stakeholders and the general public by the 5th of October, 2016.

Prateek was next with his analysis on Yahoo’s patent application, which was denied under Section 3(k) of the Act. He provides us with a preliminary analysis of the judgement, and promises to further examine the issues that the case brings up in a follow up post. Prateek examines Yahoo’s claim for their Instant Messaging Application, which was denied a patent as it was held to be an algorithm; as well as examines the other facets of Section 3(k).

Pankhuri then announced the IP Law Asia Summit 2016 in Kuala Lumpur. It will take place on the 24th and 25th of October, 2016. For more information, please contact Khadija Jaafar at [email protected] or read more here.

In continuation of our coverage on a troubling memorandum released by DIPP interpreting Section 32D of the Copyright Act to include “internet” broadcasts, Prof. Basheer reproduced his letter sent to the DIPP on the subject. He importantly notes that it is outside the constitutional competence of the DIPP to issue such an interpretation, and requests the withdrawal of the memorandum.

Next, Vasundhara uploaded a compilation of Open Access IP Course Books, very much in theme this week in light of the DU Photocopying decision. Lastly, I shared MSF’s new hard hitting video The Naked Truth, in which they question Big Pharma’s unexplained rising costs.

International Developments

  1. EU digital copyright reform proposals criticized as regressive
  2. US Government Grants Wal-Mart Patent to Roll Out ‘Self-Driving’ Shopping Carts
  3. Public WiFi providers ‘not liable for copyright infringement’, rules EU Court of Justice
  4. Swatch succeeds in trademark case over Apple ‘iWatch’

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