SpicyIP Weekly Review (November 9 – 15)

Topical Highlight

Amendments to the Copyright Act: Hidden Consultations and the Missing Public Angle of Copyright Law – Part I

In the first of this two-part post, Nikhil discussed the consultation process initiated by the Copyright Office to amend the Copyright Act which happens to involve only industry stakeholders. He explains that these opaque, closed-door consultations are antithetical to the interests of open access, creativity, culture, and freedom of expression and might be paving the way towards the privatisation of copyright law. He contrasts this with the last amending exercise in 2012 which involved an elaborate consultation with varied stakeholders bringing forth their perspectives on the various aspects under assessment. This had culminated in bringing about a public interest focus to the law through extension of fair dealing exceptions to all works, broader library exceptions including digital storage, the introduction of the disability exception and fairer ownership and compensation model for lyricists and composers. He then underscores the implications of restricted consultations for those stakeholders that lack mainstream representation, raising concerns such as those surrounding the appropriation of works of minority communities by dominant cultures, challenges faced by open access initiatives, rights of classical and indie artists, and traditional artisans. He concludes that it is absolutely necessary to conduct wide public consultations regarding the final amendments.

Amendments to the Copyright Act: Hidden Consultations and the Missing Public Angle of Copyright Law – Part II

In the second part, Nikhil highlights some of the major themes that amendments must consider. First, he discusses the fair use provision of Section 52, which presently allows for exceptions only based on the exhaustive list of grounds it mentions, thus confining the extent of permissible creative uses. He suggests that the existing categories be clearly defined and a shift be made to a broader inclusive model, with the exceptions enumerated only as an indicative list. Discussing website blocking and its impact on free speech, he calls for a multi-step statutory framework that necessitates carrying out a proportionality analysis while determining whether takedown of a specific URL is an insufficient remedy and blocking of the entire website itself is required. On the issue of determination of liability of intermediaries for infringing content posted on their platforms, he seeks greater clarity in the legal provisions. He also underscores the need to consider decriminalisation of copyright law to the maximum extent possible cautioning that penal provisions might act as deterrence to creativity instead of incentivising it. More certainty is also required for the treatment of orphan works, such as the extent of search for the owner required for it to be considered ‘reasonable’, the treatment of owners’ moral rights, and the derivative use of the work. He concludes by touching upon other issues that need to be addressed, authorship of AI created works, text and data mining, statutory licensing for streaming services, digital exhaustion, and open access initiatives in form of easier copyright waiver mechanisms.

Indian Government Significantly Dilutes Patent Working Disclosure Norms

Pankhuri critiques the recently published amended version of Form 27. She recounts the history of the amendment, discussing the purpose of disclosure requirements and how consequent to a PIL by Prof Basheer, Form 27 was found to be inadequate to serve the public interest objectives of the Patents Act. The new form, however, seeks even lesser information from patentees. Pankhuri explains how excluding the quantum of invention manufactured/imported can make it impossible, for instance in cases of compulsory licensing, to ascertain whether the patentee had satisfied the reasonable requirements of the public. Similarly, not seeking the details of public requirement met at a reasonable price makes it difficult to assess availability and affordability to the public. It has also done away with seeking details of licensees and sub-licensees, instead of requiring more specific and elaborate details­­­ in this regard as suggested in the PIL, despite the fact that his information is anyway mandated under the Patent Act. Further, prescription of an arbitrary word limit of 500 words for the statement on reasons for not working and the steps taken towards working it will prevent the patentees/licensees from submitting all information and may also allow some to claim that they couldn’t ‘tell it all’ owing to the word limit. She discusses other amendments, such as asking for the ‘approximate revenue/value accrued in India, instead of just the value, seeking information on product as well as process patents, option of filing a single Form in respect of all related patents, filing requirements extended to licensees as well among others.

Thematic Highlight

Mirzapur 2 Controversy: The Right to Integrity and Free Speech

Anupriya discusses the recent controversy over web series Mirzapur 2’s use of a book as a prop along with a voiceover that the author claimed tarnished his reputation, in the larger backdrop of free speech, the right to integrity and fair dealing under Indian Copyright law. She notes that the author, Surendra Mohan Pathak accuses the makers of the show of mischievously misrepresenting his work in an allegedly vulgar context and goes on to threaten legal action. Anupriya explains how moral rights, justified by personhood theories that emphasise protection of the author’s deep connection with their work, allow some degree of ongoing control by the author over their work. She argues that this strong moral rights protection can cause chilling effects on downstream creators, when the author is perceived only as a participant in a larger dialogue, trying to interact with pre-exisiting works. This is important for the development of countercultures that seek to reinterpret or reimagine the existing narratives of dominant culture. For this purpose, she suggests that fair dealing exemptions be broadened, and be made applicable to moral rights, with further research on whose and what kinds of work they can be potentially used to silence, and who gets to enforce and deploy these rights, in order to align them with free speech rights.

Other Posts

The New Form 27 (Patent Working Statement): Heading in the Wrong Direction?

Adarsh notes that the new Form 27 removing the requirement of having to make a vague statement on whether the public requirement has been met partly/adequately/to the fullest extent at a reasonable price is a welcome move because, this requirement was potentially unconstitutional for vagueness. He then discusses how the form bypasses the necessity to declare any quantum, instead focusing only on ‘revenue/value’ that has accrued to the patentee/licensee ‘in India’. He argues that under Section 146(2) of the Patents Act, what is required to be filed are “statements as to the extent to which the patented invention has been worked on a commercial scale in India.Going by the Ayyangar Committee report, here, the phrase “worked on a commercial scale” possibly does not cover value, making the requirement in the form is ultra vires. He then highlights practical difficulties such as in cases where the patented invention is a component of the final product sold in the market, there is no direct mechanism to determine the ‘revenue’ from the patented invention within the final product. He argues that the purpose of this requirement was to provide readily available data, not to make patentees engage in a disproportionately complicated value calculation exercise or disclose potentially confidential information.

Call for Abstracts: Third IP & Innovation Researchers of Asia Conference [Online; March 24-27]

We informed our readers that the Third IP & Innovation Researchers of Asia Conference will be held online from March 24-27, 2021. The deadline for submission of the request to present a paper and the abstract is December 15, 2020. Further details are available in the post.

Other Developments

Decisions from Indian Courts

Other News

  • Agricultural and Processed Food Products Export Development Authority has announced that Assam’s Tezpur litchis have received Geographical Indication tag.
  • Karnataka Biodiversity Board has written to the central government recommending that Gajani Kagga, a paddy variety, be given Geographical Indication tag for its protection.
  • Hyderabad-based filmmaker who had sued the makers of the film ‘Jhund’ for copyright infringement, has now filed a contempt of court petition against them for allegedly entering into an agreement with Amazon Prime for releasing the film on their OTT platform.
  • Walmart India has undertaken not to use Parle Agro’s ‘Appy Fizz’ label for its apple drink after the company accused it of using the deceptively similar label.
  • A piece in Medianama discusses the issues with India’s intermediary liability laws with regard to fair use.
  • A piece in Scroll critiques Indian government’s ‘one nation, one subscription’ journal-access plan in light of the goals of open science movement.
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