SpicyIP Weekly Review (May 7 –13)

Our topical highlights this week were both provided by Prof. Basheer. The first post was the news that the DU Photocopy Case finally reached its closure, with the Supreme Court, in a bench consisting of Justices Ranjan Gogoi and Navin Sinha, refusing leave to the Indian Reprographic Rights Organization (“IRRO”) to appeal against the judgement of the Delhi High Court in the DU Photocopy Case. Given that the IRRO was only an intervener in the original suit, the Supreme Court held that their appeal was not maintainable.

The second topical highlight, also by Prof. Basheer, was his post on on the contentious use of the ‘judicial compulsory license’ by the US Court of First Appeal, in denying an injunction and ordering continuing royalty in the case of Nichia Corp. v. Everlight Elecs. Co. The court, recalling the four factor test laid down in eBay, held that the plaintiff had not established ‘irreparable injury’, although the prima facie infringement had been established. The post also highlights the apparent hypocrisy in the United States’ stand on compulsory licenses, where, on one hand it effectively allows judicially created compulsory licenses, while on the other hand it regularly takes issue with countries that issue compulsory licenses through valid, TRIPS-compliant legal mechanisms.

The thematic highlight of the week is the two-part guest post by our fellowship applicant Kuhuk Jain, on the recent controversy surrounding the ‘fearless girl’ statue on Wall Street, placed in front of the Charging Bull of Wall Street as an ode to women in business. Part I of the post explores the legal challenge to the fearless girl by Arturo di Modica, the creator of the Charging Bull under US copyright law, including whether the work would be a derivative work, and whether it would violate di Modica’s rights under the Visual Artists Rights Act, (answer: probably not), and whether it would constitute fair use for being transformative (answer: possibly). In the second post, Kuhuk analyses these issues in light of copyright law in India, and whether the outcomes would differ if the same situation occurred in India (answer: again, probably not).

The first post this week (after Kuhuk’s) was my post on royalty collection societies teaming up to develop a better mechanism for tracking information about copyright and related rights by looking to blockchain technology. The post argues that blockchain could be critical to solving the ‘exasperating farrago’ of tracing copyright metadata back to its creators to ensure that artists get their dues, particularly with the digitisation of cultural media.

The next post was Prashant’s post reporting the Delhi High Court’s judgement on a design infringement and passing off suit filed by Carlsberg against Som Distilleries, for the protection of the design of their bottle. Importantly, the court recognized that the judgement of the Court in Microlube India may be per incuriam and contrary to the Supreme Court’s earlier decision in Dabur India Ltd. v. K.R. Industries, and referred the question of whether a passing off suit could be combined with a suit for design infringement to the Chief Justice of the Delhi High Court (currently Justice Gita Mittal). Secondly, the Court denied Carlsberg an injunction, holding that Carlsberg’s design was not novel, relying substantially upon the ‘statement of novelty’ in Carlsberg’s Design Certificate. Thirdly, the Court touched upon the issue of whether utility is a factor in assessing the protectable elements of a registered design.

The next post was Maitreyee’s insightful write-up on the confusing standards for injunctions under Indian law. The post builds on Prof. Basheer’s analysis of the US Courts’ standards for issuing injunctions, and assesses the inconsistencies in the law on patent injunctions in India. Maitreyee’s post brings attention to the lack of substance in terms such as ‘prima facie case’ or ‘public interest’, which are thrown about by courts using injunction jurisprudence, but are hollow due to the lack of any concrete standard.

After this helpful post on injunction standards was my post theorizing about the implications of new business models for content distribution under and their impact on digital piracy, and consequently, upon the development of copyright law. The post uses the example of Netflix’s (somewhat) disregard for the piracy of its show, Orange is the New Black, to argue that piracy should be viewed as an access problem, and that new models which recognize this and bridge the gaps which prevent easier access to content will be economically more successful and also reduce piracy to a large extent.

The final post this week was a guest post by SpicyIP intern – Radhika Agarwal. Radhika’s post analyses the Delhi High Courts decision to stay its landmark decision where it allowed Natco to export Bayer’s patented drug ‘Nexavar’, under the research exemption in Indian patent law, colloquially known as the Bolar Exemption. The Delhi High Court reportedly modified its earlier order in light of claims that Natco was exporting its drugs for commercial purposes and not for research purposes, which was prohibited by the terms of its compulsory license. Accordingly, the court injuncted Natco from exporting Nexavar until September 21, 2017.

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