SpicyIP Weekly Review (October 16-22)

spicyip-weekly-reviewThe topical highlight for this week is Rahul’s coverage of CSIR Director’s call to its affiliated laboratories to refrain from ad-hoc and unprincipled patenting of their inventions without undertaking a techno-commercial and legal evaluation. The Director admonishes both the reluctance of labs to find suitable licensees as well as their neglect in renewing the patents once the concerned scientist retires. He also points out that, given the high filing costs incurred by CSIR, approximately to the tune of 56 crores, henceforth the concerned labs will have to bear 25% of the cost of domestic patent filings and 50% of the cost of foreign patent filings. Rahul welcomes the move by pointing out the lack of transparency with which the organisation has been functioning for the longest time.

As far as the race to being the thematic highlight of the week goes, Prateek’s post on Justice Patel’s order on GoAir- Indigo dispute was a clear winner. In what could be termed as one of the most entertaining and thought provoking pieces the blog has had, Prateek examines the propriety of using judicial humour in various scenarios. Prateek comes up with a rather handy test for judges to assess if it is the right occasion to whip out their wit.

The week started off with Prashant alerting us about the continuing wait for the commission of inquiry’s report on the working of Indian Performing Rights Society (IPRS). IPRS, whose functioning has been embroiled in controversies including allegations of siphoning of royalties, is now being investigated by an inquiry commission headed by YPC Dangey, a retired joint secretary from the law ministry. Although the norm is to extend the deadlines for submission of such inquiry reports, Prashant exhorts the government to ensure an early submission.

Next we had Prashant bringing to us the news of appointment of Mr. Prabhakar Rao, Chairman of Nuziveedu, to the Plant Varieties and Farmers’ Right Authority. The authority, which has policy and adjudicatory roles, is manned by 15 members, most of who are bureaucrats serving in their ex-officio capacity. Prashant explains to us why the appointment of Mr. Rao might be problematic in light of the functions they perform under the Plant Varieties and Farmers’ Right Act, including the appointment of the Registrars, who examine new PVP applications.

I then had the pleasure of reporting the Delhi High Court judgment on ISRA’s suit against Night Fever Club and Lounge for the enforcement of its members’ performance rights. The suit, decided ex-parte, was strikingly similar to the one reported by Prashant two months ago. Although the alleged infringing act was identified to be a live performance and not one which reproduced the performance of the Plaintiff’s members, judge passed an injunction against the Defendants. The Court also failed to examine some other important aspects like commercial use and the right of performers’ over recorded versions, thus missing out on an opportunity to settle some crucial aspects of unsettled law.

Next up we had Prateek’s analysis on M/S Stellar Information Technology Pvt. Ltd. v. Rajesh Kumar and Ors., in which an employer attempted to prevent his previous employees from making use of alleged confidential information and running a competing business. Although the question on copyrightability of the alleged confidential information turned on the finding that there was no ‘copying’ by the Defendants and therefore copyright infringement, Prateek examines what could have put the decision on a more sound logical footing. Although the judge found that the information used was available in the public domain and hence does not provide any basis to restrain the Defendants in light of S.27 of the Contract Act, Prateek wonders whether he is also in effect saying that the information in public domain cannot be copyrighted. Furthermore, the judge gave a narrow interpretation to the definition of confidential information in the contract as a wider meaning would render it void by virtue of S.27.

Our week had a very heavy copyright flavour with Inika bringing to us a pithy analysis of Prof. Satish Deshpande’s article in the Indian Express on subsidies for academic publishing, in the light of the DU photocopy case. The article, she mentions, brings out why academic publishing is subsidised both implicitly and explicitly from the intellectual commons and the need to question copyright ownership against this background. First of the four bases for his argument is that, unlike other sectors of publishing, academic publishing is not a commercial venture in the true sense of the term as academic publishers enjoy the benefit of meagre costs as well as having a captive consumer base in the form of students. Secondly, given the ever changing nature of reading lists in universities and lesser number of students as opposed to schools, universities do not enjoy the economies of scale, which makes reading materials affordable. Also, with the technological transformation in publication and distribution as well as the growth of open access initiatives, traditional publishing is expected to take a hit. He further opines that the Indian Copyright Act is designed to cater to “mass-market, high value” IP such as films or music and that academic publishing is peripheral to the Act. Inika wraps up her post by noting that Prof. Deshpande’s article provides some valuable counter arguments to the points raised by Prashant in his post as he exposes how academic publishing is heavily subsidised.

Up next we had Prof. Basheer sharing with us his piece in the Indian Express, countering the argument raised by former NCERT Chairman Krishna Kumar, in light of the DU judgment. Mr. Krishna Kumar had earlier argued that the decision would discourage students from reading full books and would drive them towards only reading course packs. He also hinted that the decision was going to affect the revenues of academic publishers. Prof. Basheer begins his retort by noting that the culture of photocopying is not something that the publishers want to end; in fact, the only change they had hoped to bring out was to get each and every photocopied page paid for. He points out how students are in fact not the target audience of these publishers as there has been no attempt to rationalise the costs of these books, even prior to the DU decision. As to Mr. Krishna Kumar’s argument on profitability, Prof Basheer debunks the myth by observing that the photocopying industry has been around for more than 30 years and had it been such a menace as claimed to be, chances are that they would have shut shop long back. He ingeniously argues that, on the contrary, photocopying familiarises authors to students and enhances the chances of these authors being read. He also alludes to the dangers of allowing such additional streams of revenues, citing the Canadian experience. The piece, in conclusion, observes that the decision does not provide a carte blanche for full text photocopying and how powerful IP lobbies have been successful in depicting IP to be the controlling norm while carve outs such as educational access as exception while in reality it should have been the exact opposite.

The week came to a close with Pankhuri’s announcement of call for applications for SpicyIP’s new IP case law team as well as CopyCamp 2016, an international conference on the future of copyright in Europe. Applications to the case law team are open to both students and lawyers and the selected persons will be involved in the preparation of summaries of 3-4 IP cases every week for a minimum period of six months.

International Developments

  1. KickassTorrents lawyer claims that torrent sites do not violate copyright laws
  2. Samsung files copyright claims against videos mocking Galaxy Note 7 handsets
  3. Photographer sues Donald Trump for copyright infringement
  4. Intel takes on John McAfee against use of his name as a trademark
  5. Roche relying on its upcoming cancer drugs to offset patent expiries

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