SpicyIP Weekly Review(May 28-June 3)

It has been quite a busy and unique week.

Busy because of the quantum of output and unique because we had the honour of Justice G.S. Patel, a sitting Bombay HC judge, penning a guest post for us.

To make the week sweeter, SpicyIP was listed 8th in the top 100 IP blogs on Feedspot’s website.

Thematic Highlight

The week’s thematic highlight has to be the exchange between Justice G.S. Patel and Prof. Sarnoff regarding whether copyright protection is content neutral. Meaning, if a work is considered ‘illegitimate’ (like Lady Chatterley’s Lover), would copyright extend to it?

Justice G.S. Patel, after outlining the contours of the discussion, proceeds to analyze the provision of the Copyright Act. Noting that the statute only refers to the originality angle, he raises questions from various standpoints and answers in an open ended fashion. He ponders over various complications including, but not limited to, the possibility of existence of copyright during the time between the publication and establishment of ‘illegitimacy’, the ambit of a statutory right (copyright) and the manner in which it can possibly be curtailed, creator’s intention and the practical consequences of the academic question outlined above.

In response to Justice Patel’s piece, Prof. Sarnoff penned an interesting guest post of his own. Tackling some of the questions raised by Justice Patel, he delves into a brief history regarding the intersection between morality and intellectual property law. He discusses a slew of statutes and examples, but one that might pique your interest is that of gambling machines and the regimes’ disinterest in granting a patent to them. He argues that the question of whether copyright law is content neutral or not is dependent on the surrounding atmosphere (constitutional and prevailing legislative intent) in which the copyright regime exists and not so much on the explicit provisions of the statute.

Topical Highlight

We have Prashant questioning the ethicality of Tushar Mehta’s (Additional Solicitor General) decision to intervene in the private matter between Nuziveedu and Monsanto. After discussing the general requirements to be fulfilled before an ASG can partake in any court proceeding, he checks for the fulfillment of these conditions in the current situation. Finally, he questions the very possibility of the government impleading itself in a private matter.

First up, we have Maitreyee’s post on the Bombay HC ruling that dealt with the issue of rights over the making of Sarkar 3. The core issue revolves over an interpretation of the contracts between the involved parties. After discussing the agreements in considerable detail, Maitreyee notes that the decisions boiled down to the distinction between a “sequel” and a “remake”, as referred to in the relevant contracts.

Up next, Prof. Basheer raises interesting copyright and passing off questions in the context of the ensuing controversy embroiling Arnab Goswami and Times Now. He ponders over whether content acquired through illegal means should be provided copyright protection and then, proceeds to present his Newslaundry piece. In the said piece, discussing some of the key points concerning the controversy, he argues that the controversy is not as straightforward as it might seem at first blush.

Following which, Maitreyee brought us an analysis regarding the requirement of a warrant for taking action against copyright infringers. After reviewing the relevant statutory provisions and case law, she delves into the Rajasthan HC Judgment of Deshraj v. State of Rajasthan. The judgment held that c. infringement was a non-cognizable offence, and Maitreyee after analyzing the reasoning, welcomes the holding as otherwise, she contends copyright law could be utilized to create a chilling effect over free speech.

Following which, we have Balaji dealing with the nightmarish intersection between tax and IP in the context of a Delhi HC divisional bench judgment concerning the validity of imposing VAT on a licensing agreement. Appreciating the court’s final holding, that only if the transfer of right was exclusive would it be considered to be a “transfer of good”, Balaji remarks at the futility of the holding, given that the GST is soon to come into force.

Next, I reported the Motion Picture Distributor’s Association’s comment that was sent in response to TRAI’s consultation paper on Network Neutrality. Apart from reporting the suggestions put across in the comment, I also discussed a few of my concerns in relation to them. Some of the topics that were briefly covered included role of internet service providers, regulation of illegal data, et cetera.

Next, we have Prof. Basheer briefly discussing his paper, on “patent working”, that was published in the Queen Mary Journal of Intellectual Property. “Patent working” is a special requirement, under the Indian patent regime, that requires prospective patent applicants to not only disclose the manner of functioning of the patent, but also disclose the way in which the patent will benefit the public interest. Such information could be used for the grant of compulsory licenses, but unfortunately, as Prof. Basheer notes, this requirement has been overlooked by the government. Apart from discussing the above issue, his publication also refers to his writ petition that seeks to address the aforementioned apathy.

After that, Mathews brought you a quick update about SpicyIP being listed 8th in the top 100 IP blogs on Feedspot’s compilation.

Next, we have Rahul’s two part post dealing with the recent US Supreme Court ruling that deals with the concept of patent exhaustion. The core questions is: Can a patentee impose restrictions on usage of a patented product, even after its sale? Rahul, informing you about the court’s holding, also goes onto unpack the court’s analysis. In his second post, he deals with the question of whether an international sale also exhausted the patentee’s rights over the product in the domestic market. Finally, he critiques the reasoning and raises certain concerns as to consequences, such as, the possibility of increased pharma prices in developing countries and the effect on conditional sales.

Finally, we have Sreyoshi, updating you regarding the recent development of the movie “Raabta” being slapped with copyright infringement charges by the makers of the Telugu hit “Magadheera”, and then discussing copyright infringement of movies in general. She discusses the issue of abstraction in the context of the idea-expression divide, whether a film is a ‘dramatic work’ and finally, discusses the ‘physical copy’ doctrine in opposition to the substantial similarity test.


2nd AIPLA Women in IP Networking Event
June 5th, 2017.
Venue: Delhi
Details here.

International News:

  1. Blackberry settles arbitration with Qualcomm over patent royalties. 
  2. Spotify settles copyright suit.
  3. Hotel California’s owner responds to TM infringement claim from the Eagles.

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