SpicyIP Weekly Review (September 18-24)


Both the thematic and topical highlights of the week have to be Prof. Basheer’s opinion piece in the DNA on the Photocopy case and Prashant’s two part piece providing a counter argument to Justice Endlaw’s reasoning in the historic DU Photocopy case. Irrespective of which faction of IP thinkers you owe your allegiance to, it is difficult to argue that Prashant does not have a point. I found the second part especially informative.

In the first part, he discusses the following:

i. Shows that considerable investment goes into publication of scholarly works.
ii. Disincentivization of publishing scholarly works.

Given the low returns from scholarly works, the new ruling would cause further disinclination in publishers to deal in Indian scholarship. Hence, he suggests that the publishers request for 50 paise per page is a reasonable one and in the larger interest of education.

In the second part, he discusses the following:

i. IP as a natural right v. IP as a right based in utilitarianism
ii. Indian Jurisprudence’s conception of IP

 Reasons that arguments can be forwarded both ways.

iii. Indian History of “educational use” exception and its implications

Shows how Justice Endlaw’s reasoning is in contravention to the Berne Convention     and accepted general principles of law.

Contrast this with Prof. Basheer’s piece which discusses the following:

i. Education Access is the rule, while IP is the exception.
ii. Nothing really “intellectual” about intellectual property.
iii. Distinction between Academic and Regular Publishing.

 Argues that unless empirical data shows disinclination on the part of academic              publishers due to the investment risk, the law should align itself with the larger              purpose of education.

iv. Fear of Photocopying of entire academic books
v. The “Reasonable Nexus” Test.

Is the nexus between copying and the furtherance of education instruction                       reasonable?

vi. Lawyers who worked against the publisher

Apart from the above, I found Pankhuri’s piece on DIPP’s pending decision on a cancer drug “Dasatinib” incredibly thought provoking. The following are her discussion points:

i. 3 Years of Delay already in DIPP deciding issuance of compulsory license for Dasatinib.
ii. Examination of grounds in determining what constitutes “extreme urgency” under S. 92.

Questions arise because there are statistics going both ways:
Only 0.001% of Indians need it.
40% of patients of a certain type of cancer (CML) need it.
98% of those who need it cannot afford it.

iii. Questions status of Ixabepilone amid safety concerns.

Next, we have Balu’s piece on the feasibility of increasing procedural hurdles for instituting infringement claims, given the large number of frivolous claims that seem to be filed.
Using Mr. R. Roshan’s statements as a starting point he goes onto examine two issues:

i. The presence of safeguards against frivolous claims already present.
ii. Compoundability of offences in relation to S. 63 of the Copyright Act.

Next, we have a guest post by US law professors, Prof. Colleen V. Chien and Prof. Jorge L. Contreras. Their primary contention was to:

i. highlight the requirement for accessible, organized empirical data to test India’s policies.

They argue that though India has been known for innovation policies that are                   themselves innovative, there is little empirical data to test the efficacy of these policies.

After this, we have Ritvik’s coverage of the drug COPAXONE’s patent rejection in the US.
He discusses:

i. Possibility of delay in the entry of generics in the market.
ii. The implications of the patent rejection on the Indian market.

 He shows how TEVA (Company behind COPAXONE) is showing symptoms of giving      up its patent claims even in India, in light of the rejections in the US. He predicts that      soon generics from Mylan and NATCO will soon enter markets.

Next, we have Rahul’s (expectedly) delightful analysis of a recent CJEU decision that makes hyperlinking, in certain instances, illegal. The court held that hyperlinking to infringing material, coupled with a profit motive, is illegal. Rahul criticizes this decision and argues that it would lead to stunting of flow of information across the internet.

While committing to come up with a more detailed analysis, Vasundhara briefly presented the holding in IPRS v. Aditya Pandey & Ors. She argues that the holding requiring broadcasters to pay royalty only to the owner of the recordings, leaves lyricists and composers with an unfair bargain. That said, she clarifies that they will get their share in all cases except in cinematographic films, and in any case, they will have no say in grant of licenses.

Finally, we have Inika’s lucid and well written analysis of the IPRS v. Entertainment Network case. The question was whether the IP dispute between the parties was arbitrable.
Inika discusses the following:

i. A summary of the Arbitral Award
ii. The jurisprudence of in rem and in personam concerning IP disputes.

 Right in rem or personam depends on the relief claimed.

iii. Distinguishing it from Eros v. Telemax

When is it that an IP dispute is arbitrable and when is it not.

The events which were brought to your notice this week include:

Programme on “Access to Seeds: Building Capacities, Discussing Policies”
 October 24th-28th    
New Delhi.
Deadline: October 3rd, 2016.
Registration cost: 2000INR
15 of 30 selected participants will receive financial support.

International IP Skills Summit 2016 in Bangalore
November 11th-12th
Deadline: Registration acceptance depends on availability of spots.
Registration cost: 25,000INR after 29th September. 20K before.

SpicyIP Jobs brought to your notice:

Research Fellow in NLU Delhi
Deadline: 30th September

International Developments:

1. Apple files Patent application for Paper Bag.
2. German Court: Can’t Ignore “Spam” Copyright Notices
3. Gene Editing Patent Clash

Prateek Surisetti

Alias: Suri Net Worth: 0$. NALSAR Batch of 2019. Characteristic Features: 1. Thinks he's funny. 2. Can't shut-up about having topped in Class II. 3. Takes deep personal offence when his cricketing talent is questioned. 4. Will definitely reference his status as World#1 @ Reflex Ball (A sport he invented), within 10 minutes of conversing with him. Notable Endeavours: 1. Founder Access Fitness (Movement at NALSAR that promotes utilization of public spaces for furtherance of sport and fitness) 2. Author "Good Morning Miss Hobby" 3. Travel Photographer (Antarctica, India) Details @ www.facebook.com/prateekss Contact: [email protected]

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