SpicyIP Weekly Review (January 29 – February 4)

Our topical highlight this week is Ritvik’s 2-part analysis of TRAI’s recent tariff order on the rights of broadcasters under the Copyright Act.

In the first part, he sets forth the central features of the Order, the principal aim of which is to impose an obligation on broadcasters to provide the MRP of their channels on a-la-carte basis. Thereafter, he explains the key objections that broadcasters have raised as regards the legal tenability of the Order. Relying on a Delhi High Court judgment, two TDSAT orders and a 2004 government notification, he explains how the TRAI is authorized under the TRAI Act to regulate the terms and conditions of broadcast and impair the commercial freedom of broadcasters in the exercise of this power.

In his second post he analyzes the validity of the order against the touchstone of Section 37 of the Copyright Act which spells out the reproduction rights of broadcasters.
He begins by noting how delegated legislation must be consistent with general law and not just its parent enactment. Relying on a TDSAT judgment, he concludes that nothing in the Copyright Act would serve as a legal embargo to the TRAI regulating the terms and conditions of broadcast. Finally, he explains why the TDSAT, and not the CCI, would have jurisdiction to deal with any legal disputes that this order may give rise to.

Our thematic highlight this week doubtless has to be Prashant’s thought-provoking post in which he explains how poorly drafted regulatory laws are significantly impeding access to affordable medicines for Indians. He begins by emphasizing the desirability of providing a clear regulatory pathway for generics to use patented drugs once their patent expires. Citing the example of the Hatch-Waxman Act in the United States, he explains how such laws can lower the time and cost required for generics to enter the market. Referring to Roche’s legal battle against Dr. Reddy’s for their biosimilar called Grastim which played out more than a decade ago, he points out that India has completely failed to put in place any regulatory system to provide clarity on this issue. He then refers to the absence of clearly drafted laws in the agricultural sector and specifically focuses on the controversy surrounding Bt cotton in support of the proposition that this dispute would never have arisen if the GEAC had exclusively reserved to itself the power to authorize the commercialization of genetically modified cotton.

Our first post this week comes from Pankhuri who analyzed Justice Endlaw’s decision in the DU photocopying case as regards the impleadment application filed by Indian Repographic Rights Organization (IRRO), Federation of Indian Publishers (FIP) and Association of Publishers in India (API). After outlining the 5 key arguments advanced by these organizations, she goes on to explain the reasons underpinning Justice Endlaw’s decision to reject them. More specifically, she focuses on Justice Endlaw’s conclusion that the matter has been remanded back to him only for making a factual determination as to whether the extent of copying in this case falls within the four squares of Section 52(1)(i) of the Copyright Act and, therefore, it would not be permissible for him to allow third parties to intervene in the matter.

Next, I covered the controversy surrounding Arnab Goswami’s decision to use the word ‘Republic’ as the title of his new show. I began by analyzing the relevant entry in the Emblems and Names Act and explained how it does not proscribe the use of the word ‘Republic’ simpliciter. Citing many examples of trademark applications for the word ‘Republic’ individually or as a part of an expression being granted, I argued that there would be no legal embargo to the registration of the mark. Thereafter, I noted how the Trademark Registry acted with uncharacteristic swiftness in adjudicating upon Goswami’s application and concluded by noting how this controversy has been rendered moot by Goswami’s decision to call his show ‘Republic TV’.

Next, Balu chronicled all the copyright controversies that President Trump has been involved in. From his inaugural speech being similar to Bane’s Batman speech to Melania Trump’s speech at the Republican National Convention; from the controversy relating to the cake used in Trump’s inauguration ceremony to plagiarism allegations against Monica Crowley, a key Trump aide – he explains how Trump has repeatedly found himself in the midst of such controversies.
Finally, he expresses the hope that Trump will conduct himself in future in a manner that helps him steer clear of controversies – to which I would say: if only pigs could fly!

Next, Mathews exhaustively analyzed the Delhi High Court’s recent judgment on trans-border reputation in the Prius Auto versus Toyota case. He commences his analysis by setting forth the factual matrix of the case and the key issues involved. After outlining the principles for adjudicating upon a dispute relating to trans-border reputation enunciated by the Court, he goes on to explain how the Court arrived at the conclusion that Toyota had not established its trans-border reputation at the time the defendants-appellants started using the mark Prius.

Next, in guest post, Vijaykumar Shivpuje, a Patent Agent, grapples with the practice of patent applications being published 20 years after their filing. Citing an example of an application filed in 1996 being published in 2016, he demonstrates how the same is inconsistent with the rule that every patent application must be published on the expiry of 18 months from the date of filing.
Finally, he talks about the larger questions that this practice raises and emphasizes the need for the Patent Office to take prompt remedial steps to deal with this worrying practice.

Next, Pankhuri informed us about the WTO at 20 Conference being held in Delhi by the Appellate Body of the WTO in collaboration with NLU Delhi on February 16th-18th. The last date for registration is today – February 5th.

Next, Prashant informed us of the Indian Performing Rights Society’s decision to hold an Extraordinary General Meeting on the 9th of February to determine how its administration should be overhauled. He examines the two issues that are going to be discussed at this meeting – amendment of the AoA of IPRS and the release of Rs. 13 crores by authors and publishers to composers and outlines his thoughts as regards each of these issues.

Finally, Balaji covered a hugely significant development relating to Para 6 of the Doha Declaration coming into force through a TRIPS amendment. The amendment, which led to the introduction of Article 31BIS to the TRIPS agreement, carves out an exception to the rule that drugs issued under a compulsory license must only be used domestically by allowing for the export of such drugs to least-developed countries. Noting how the system envisaged by Article 31BIS is riddled with many flaws, such as the need to provide the patentee adequate remuneration, he opines that the system is designed in ways that are likely to result in its goals not being realize.

International developments:
1. Volitional conduct must be established for direct copyright infringement, rules Ninth Circuit.
2. A jury has awarded Zenimax $500 million in its lawsuit for copyright and trademark infringement against Facebook-owned Oculus
3. In a Letter to President Trump, an Influential Lobbying Group in the US has Urged him to Put in Place Stronger Copyright Norms.
4. Natco has Successfully Invalidated 4 Patents Held by Teva in the United States.
5. Kylie Minogue has Successfully Thwarted Kilye Jenner’s Attempt to Trademark Her Name..


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