Others

SpicyIP Weekly Review (April 6 -12)


(This post has been authored by our intern, Bhavik Shukla, a 5th year student at NLIU, Bhopal)

Topical Highlight

Our Fellowship applicant, Anupriya discussed the copyright-related issues thrown up in light of the recent ‘Genda Phool’ row. She begins by stating that an absolute right to claim authorship exists under the Indian copyright law, and Badshah’s rendition of the song ‘Boroloker Biti Lo’ would be an infringement of Ratan Kahar’s exclusive rights over it. By way of policy implications, she notes that first, copyright law should evolve a holistic concept of authorship, thereby creating an opportunity for cultural borrowing and syncretism. Second, she observes that the ambiguity in determination of ‘originality’ often results in appropriation of works of the minority communities. She also emphasizes upon the role played by various societal and inherent factors in enabling certain individuals to exploit the public domain better than others. Third, she observes that ‘attribution’ of a work can preserve diversity important for effective free speech, but also recognizes the danger arising from over protection of copyrighted works.

Thematic Highlight

In a guest post, Dr. Sunanda Bharti discussed the issues related to copyright in unpublished works in India. She notes that there is no specific requirement of publication of a work for subsistence of copyright under the Copyright Act, 1957 (‘Act’), and accordingly even unpublished works are protected by the Act. Although copyright may subsist in an unpublished work, she observes that its enforcement by the ‘true and bona fide author’ necessitates the work’s publication. Delving into the meaning of ‘unpublished’ with the aid of various provisions of the Act, she observes that a work may be considered to be ‘unpublished’ until the author has an ‘intention’ to make it available to the public for the purpose of consumption. Further, she opines that the fact of publication does not depend on the number of people to whom the work is made available to, but she also points to section 6 of the Act which seems to indicate that there may be a connection between the two. She concludes by noting that the ascertainment of publication is important for determination of the copyright term of work.

Other Posts

A guest post by Priyanka Joshi examined the liability of intermediaries with specific reference to the application, ShareChat. She begins with the determination of the term ‘intermediary’ under the Information Technology Act, 2000 (‘Act’). She notes that ShareChat is not an ‘innocent’ intermediary, in light of its description on the iOS and Google Play Store applications. Further, she notes that ShareChat provides access to third-party copyrighted material, without their permission or authorization. She notes that the intermediary exemption under section 79 of the Act is inapplicable to ShareChat Dealing as it is aware of the infringing activities occurring on its platform. She subsequently relies on section 81 of the Act to state that exemptions to intermediaries cannot be granted in cases of copyright violations. In conclusion, she observes that platforms which participate in and promote infringement of copyrighted material should not be granted the intermediary exemption under the Act.

This was followed by Divij’s post, where he responded to Priyanka’s aforementioned post on ShareChat’s alleged infringement of copyrighted works. First, he states that the qualification of an ‘intermediary’ under the Information Technology Act, 2000 (‘Act’) does not require consideration of any knowledge standard in its respect. He further states that the importance of ‘knowledge’ is only applicable while considering if the intermediary exemption is applicable under section 79 of the Act. Second, he observes that section 81 of the Act cannot be interpreted to prevent the application of the safe harbour defence to intermediaries, as such defence would be lost only if they failed to comply with takedown notices. Subsequently, he observes that the standard for secondary infringement is ‘actual knowledge’, and it is unlikely that Priyanka’s claims constitute a sufficient basis for liability of ShareChat. He concludes by observing that intermediary liability jurisprudence in India is highly uncertain, and it is for the courts to bring some order to the conflicting standards of liability.

SpicyIP Announcements

Recently, we informed readers about Sagacious IP’s webinar on best practices in Innovation Management to be held on April 14, 2020. The webinar aims to provide an insight to IP departments into dealing with the economic impact of COVID-19. More details about the panellists and the reasons to attend the webinar can be sought from the post.

We also informed readers about NALSAR University’s call for papers for Volume 11 of their flagship journal, the Indian Journal of Indian Intellectual Property Law. This volume of the Journal is to be tentatively released by December, 2020, and the deadline for accepting submissions has been fixed at May 31, 2020. Further information on the submission guidelines is mentioned in the post.

Other Developments

India

Judgments

Kishore Kumar and Others v. Union of India and Another – Delhi High Court [March 6, 2020]

Numerous petitions were filed against the Trade Marks Registry for the non-communication of the O-3 notices, whereby the Registry had failed to inform the registrants that their marks were due for renewal. In this light, the registrants argued that their marks could not be considered to be ‘abandoned’ in the absence of communication of the aforementioned notices. The Court noted that the Registry had submitted various affidavits clarifying the workings of the entire computerized process, and that it had also invited stakeholders’ comments for improving the Registry’ functioning. Moreover, the Court observed that several suggestions made by the stakeholders had already been implemented by the Registry. Accordingly, it granted the Petitioners and other stakeholders an opportunity to submit further suggestions within six weeks from the date of the order and dismissed the petitions.

News 

  • RSS-affiliate Swadeshi Jagran Manch claims that the U.S. asked for hydroxychloroquine from India because it has a pro-people patent regime.
  • Northern Railway contemplates applying for a patent for the design of the isolation coach.
  • Natco Pharma launches a lower-cost generic version of AstraZeneca’s patented anti-diabetes drug, Farxiga.
  • BananaIP Counsels to waive patent filing fees for inventive masks to promote universal face covering.
  • Mahindra and Mahindra claims that the allegations of IP theft against it in respect of manufacture of respirators are baseless.
  • Many applications for registration of various coronavirus related trademarks have been filed before the Registry. Our post analysing legal issues relating to such marks can be viewed here.

International

  • WHO Director-General endorses the idea of creating a voluntary IP pool to develop COVID-19 products.
  • WIPO Director-General states that COVID-19 emergency could trump patent rights.
  • Experts on health, law and trade send across an open letter to 37 WTO members asking them to declare themselves open to import medicines manufactured under compulsory license in another country under Article 31bis of the TRIPS Agreement.
  • CHF Solutions submits a patent application for a system which enables the removal of cytokines from the blood of patients suffering from COVID-19.
  • Tiziana Life Sciences files a patent application for its method of introducing antibodies into the lungs using a handheld inhaler.
  • A piece in Law360 argues that the onset of the COVID-19 pandemic may result in adoption of new patent strategies.
  • A piece in JDSupra argues that various companies which intend to provide equipment to tackle COVID-19 may be liable for possible patent infringement, if they do not enter into a Defence Production Act contract.
  • A piece in the New York Times argues that the COVID-19 pandemic should not turn into an excuse to coerce writers to give up their rights.
  • A piece in The Wire contemplates a means to stimulate pharma innovation without necessarily granting patents.
  • In light of the copyright owners’ objections to creation of National Emergency Library by Internet Archive, a piece in Jurist argues that if copyright is property, then copyright owners are landlords and copyright profits are rent.  

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