SpicyIP Weekly Review (January 4 – 10)

Topical Highlight

Issues in Sci-Hub Case ‘A Matter of Public Importance’

In this post, Swaraj highlighted some issues that came up during the hearing of the recent litigation, involving Elsevier, Wiley, and ACS suing Sci-Hub and LibGen for copyright infringement. He observed that it was a positive step for Justice Midha of the Delhi High Court to repeatedly point out that case was ‘a matter of public importance’, and he would not want to pass any orders without hearing the various parties that wanted to get their views heard in the case. Swaraj noted that in another positive step, the blocking of these websites in other jurisdictions was not considered sufficient to throw in a quick blocking injunction without factoring in India’s expansive research exception. He also noted that the Delhi Science Forum, and the Knowledge Commons filed an intervention application, and a group of various scientists filed an impleadment application. The court ordered for the pleadings to be completed within the next 6 weeks, listing the matter for hearing after six weeks.

Draft Science, Technology and Innovation Policy Proposes Major Changes to India’s Open Access Culture

In this post, Swaraj and Praharsh examine the Open Science chapter of the Ministry of Science and Technology’s draft version of the proposed Science, Technology and Innovation Policy, which has been brought out for public consultation, and is open for comments till Jan 25, 2021. They happily note that the draft policy places a lot of importance on Open Science and the need for publicly funded research to be inclusive and accessible. They also observe that the most notable feature of the policy is the call for one centrally negotiated subscription which will enable access to “all individuals in India”. They conclude that the policy marks significant progress towards a culture of open access based on an understanding that public funded research is meant for the public (see here and here), as well as a desire to reach into the vast catalyzation potential that such access would provide.

Thematic Highlight

Interdigital v. Xiaomi: Relevance for Defendant’s Rights beyond SEP Litigation

In this post, Anupriya discusses the relevance of a recent order by the Delhi High Court in a case concerning InterDigital’s ongoing SEP (Standard Essential Patents) infringement dispute with Xiaomi. She disagrees with a previous post by Nikhil on this issue, and argues instead, that the order should not be construed to be limited to SEP litigation. She notes that the case makes it clear that the defendant cannot be excluded from accessing contractually protected confidential information, if such information is relevant for her to defend the suit. This is because concerns of fair play, equal opportunity and natural justice trump any interest that the plaintiff may have in keeping this information secret. The relevance of access to confidential information for the defendant is easy and intuitive to prove in SEP litigation. However, that would not render this decision inapplicable beyond SEP litigation, in other civil suits (including IP suits generally) where such relevance can similarly be proved. She concludes that the case is a useful precedent to argue in favour of the defendant’s right to know in civil suits across the board where confidentiality clubs may be created.

Interdigital v. Xiaomi: Confidential Information and Open Courts

In another post on the recent Delhi High Court order in Interdigital v. Xiaomi, Anupriya highlights how the common practice of courts granting confidentiality in commercial litigation without much reasoning does not augur well for transparency, judicial accountability and the citizens’ right to be informed of Court processes and reasoning as part of their fundamental right to freedom of speech and expression under Article 19(1)(a) of the Constitution of India. She also argues that once perceived via a constitutional lens, we would perhaps require a narrowly tailored test for determining confidentiality of information where the public is precluded from exercising their fundamental right to access the court proceedings and documents relied upon by the parties.

Other Posts

Take Two!: Screenwriters Rights Association of India Applies for Registration as Copyright Society… Again

In this post, Varsha and Adyasha analyse the revised application filed by the Screenwriters Rights Association of India (SRAI) to be recognised as a copyright society under Section 33 of the Copyright Act, 1957. They first summarise the right to royalties as available to screenwriters post the 2012 amendments to the Act. They then look at the purpose and the objectives of SRAI by looking at its MoA, noting elements such as registration of members’ works, entering agreements with third parties on members’ behalf, publishing tariff scheme, and enforcing IP both within and outside India. Then they look at the issues with the application and point out the inconsistency in the number of people involved in formation of the company and the number of applicants, and the mentioning of ‘dramatic’ works in the application despite the MoA only referring to ‘literary’ works. Finally, they note the presence of Screenwriters Association (SWA), a trade union of screenwriters and lyricists, and its efforts to secure the interests of screenwriters. Finally, they note the problems SRAI, in 2017 as an unregistered society, would have faced had it started the issuance of licenses on behalf of its members as their ‘authorised agent’, and conclude by hoping that acceptance of SRAI’s application will be a positive for the screenwriters’ rights.

The Inverse Ratio Rule: On Its Stairway to Heaven?

In this guest post, Prerna Sengupta and Riddhi Bang, critique the inverse ratio rule of copyright infringement and its application by Indian courts, in light of the US Supreme Court’s ruling in the ‘Stairway to Heaven’ copyright dispute last year. They note that the rule has been considered to be problematic because ‘more’ access to someone’s work doesn’t necessarily mean that such work has been copied. Therefore, this rule can lead to erroneous findings because the jury is led to believe that a certain degree of access automatically establishes copying. They also argue that the checkered application of the rule for proving copyright infringement leads to worrying inconsistencies, particularly in today’s age of wide dissemination where access is quite easy to prove. They argue that the rule also leaves people whose work is more accessible as unjustly better-off within the infringement analysis. They also critique the Bombay High Court’s application of this test last year in a case concerning Netflix’s horror drama ‘Betaal’. They conclude that the rule was formerly used by defendants to defend themselves and protect independently created music but today it has become a tool for plaintiffs to establish copying by simply showing that the defendant could access the plaintiff’s work.

National Biodiversity Authority Imposing Upfront Monetary Payment as Benefit Sharing for Research

In this post, Adarsh Ramanujan argues that the recent actions of the National Biodiversity Authority, in insisting on upfront payment even for research, imposing an arbitrary upfront monetary quantum as benefit-sharing payment, and the entirely unilateral decision-making, appears to be unreasonable and bad in law. He points out that while the final terms and conditions can be imposed by the NBA, it is expected that there is a process to it, and for the applicant and the authority to bona fide discuss the possible terms and conditions. He derives his argument from the Sections of the Biological Diversity Act, 2002 and Rules under the Biological Diversity Rules, 2004 to conclude that decision-making process envisaged under the scheme of the statute and Rules framed thereunder, involve consensus building which has been subverted by the recent unilateral imposition of upfront lumpsum payments.

The Sci-Hub Case: Why It is Time to Stop Favouring the Doctrinal Approach to Law over an Empirical One

In this guest post, Anshuman Sahoo and Aditi Shirpurkar examine the Sci-Hub/Libgen case which showcases the data they collected from a ‘mini survey’ on users of Sci-Hub to examine Sci-Hub dependence among researchers and students from some of the ‘elite’ institutes in India, including IISc Bangalore, IIT Kharagpur, IIT Guwahati, IIT Bombay, NLU Delhi, NLSIU Bangalore etc. The study reveals that students from even the best of the institutes are heavily reliant on unauthorised (supposedly illegal) sources to access educational materials – and this should be taken to be only the tip of the iceberg, since the study doesn’t even go into the problems faced by other stakeholders such as independent researchers, not-so-rich institutes, researchers with disabilities etc. The authors highlight the lack of empirical evidence in the debates animating this litigation, arguing for fact-based IP instead of faith-based IP.

Decisions from Indian Courts

• The Delhi High Court in Blue Heaven Cosmetics Pvt. Ltd. v. BHCosmetics LLC, granted an ex-parte ad-interim injunction restraining the defendant from using any mark deceptively similar to the plaintiff’s registered ‘BH’ and ‘BLUE HEAVEN’ marks. [January 8, 2021]
• The Delhi High Court in Elsevier Ltd. and ors. v. Alexandra Elbakyan and ors., re-issued notice to Libgen and ordered Sci-Hub not to upload any of the plaintiffs’ material till next hearing based on their undertaking. The court noted the case to be a ‘matter of public importance’. Multiple intervention applications have also been filed in the case. [January 6, 2021]
• The Delhi High Court in Roland Corporation v. Sandeep Jain, granted an injunction in favour of the plaintiff confining the use of the defendant’s marks as per a statement given by the defendants, in a trademark infringement suit filed by the plaintiff for their registered ‘BOSS’ marks. [January 6, 2021]

  

• The Delhi High Court in Reddys Laboratories Ltd v. Ridgecure Pharma, granted an ad-interim injunction restraining the defendant from using the plaintiff’s registered ‘OMEZ’ mark for medicinal and pharmaceutical preparations. [January 6, 2021]
• The Punjab & Haryana High Court in Cremo Netureal Milk LLP v. Cremo S.A., dismissed an appeal challenging the order of the Commercial Court, Faridabad, granting an ad-interim injunction in favour of the Respondent restraining the Appellants from using any mark deceptively similar to the ‘Cremo’ mark. [January 5, 2021]
• The Delhi High Court in Indian Performing Right Society v. Entertainment Network (India) Ltd., held that for public performance of sound recordings, a license from PPL is required, and for musical works, that from IPRS is required, and for events making use of both forms of work, both the licenses are required. [January 4, 2021]
• The Delhi High Court in Shrivats Rathi v. Anil Rathi, dismissed an appeal against the order of a single judge restraining the appellants from using any mark deceptively similar to the ‘RATHI’ mark. [January 4, 2021]
• The IPAB in The University of British Columbia v. Controller of Patents, allowed the appeal against the decision of the Assistant Controller of Patents & Designs rejecting a patent application concerning monoclonal antibodies to the 14-3-3 ƞ protein isoform. [December 31, 2020]
• The IPAB in Degapudi Janardhana Reddy v. Controller of Patents and Designs, allowed the appeal against the decision of the Assistant Controller of Patents & Designs and reminded the case back to the controller to decide it on merit based on amended set of claims. [December 31, 2020]
• The IPAB in Anaghaya Million Pharma LLP v. Nippon Soda Co. Ltd., dismissed a revocation petition on the ground of lack of locus standi of the petitioner. [December 29, 2020]
• The IPAB in Tony Mon George v. Assistant Controller of Patents and Designs, allowed the appeal against the decision of the Assistant Controller of Patents & Designs rejecting a patent application based on Compound 6- 1140 of D4. [December 29, 2020]
• The IPAB in Evonik ROHM Gmbh v. Assistant Controller of Patents and Designs, allowed the appeal against the decision of the Assistant Controller of Patents & Designs and reminded the case back to the controller to decide it on merit based on amended set of claims. [December 29, 2020]
• The IPAB in UCB Pharma Gmbh v. Controller General of Patents, Designs, & Trademarks, allowed the appeal against the decision of the Assistant Controller of Patents & Designs rejecting a patent application for the way to control degradation of fesoterodine even in stress conditions using certain stabilisers. [December 29, 2020]

Other News from around the Country

• The Twitter account of Sci-Hub has been permanently suspended citing violation of the Counterfeiting Policy. The site’s owner, Alexandra Elbakyan believes this might be directly related to the ongoing copyright suit in India.

  

• The national convenor of the RSS-affiliate Swadeshi Jagran Manch, Ashwani Mahajan, has written to the central government urging them to ensure access to research in light of the ongoing Sci-Hub copyright infringement suit.
• A piece in The Week highlights various academics speaking out against academic publishers seeking injunction against Sci-Hub and Libgen.
• Several people including celebrities have fallen for a recent phishing scam on Instagram with a message claiming that one of the users’ posts has been flagged for copyright violation and they could appeal the same using a link which seeks the account passwords.
• Painter Sobha Singh’ s daughter accused the Punjab government of unauthorised use of her late father’s registered copyrighted artwork, a picture of Guru Teg Bahadur, in the government’s official calendar. A day after this the government issued an apology and dropped the painting from celebrations of 400th birth anniversary of the guru.
• A group of farmers in Theni have applied for a GI tag for ‘panneer’ grapes grown in Cumbum.
• The Tribal Cooperative Marketing Development Federation of India under the ministry of tribal affairs has identified 54 products that could potentially obtain a GI tag and shall assist the makers and suppliers of these products in applying for the same.
• A Vidarbha scientist, Dr. Sameer Kulkarni, received patent for his technique to preserve the efficacy of bottle gourds for six months.
• AIMIM chief Asaduddin Owaisi advised the central government to invoke Section 92 of the Patents and issue compulsory licenses to generic manufacturers for ensuring adequate delivery of vaccines.

News from around the World

• Russia has granted a compulsory license to Pharmasyntez to produce Remdesvir for a period of one year.
• Rapper Nicki Minaj settled the pending copyright dispute with Tracy Chapman for allegedly leaking an unreleased song on the radio containing a sample of Tracy’s song, by paying $450,000.
• Cydia has sued Apple for illegally monopolising software distribution on iOS through App Store.
• HanesBrands received a judgment in its favour on a trademark infringement suit from the Nanjing Intermediate People’s Court in China.