SpicyIP Weekly Review (April 26- May 2)

Topical Highlight

Supreme Court Weighs in on the Crisis: Vaccine Price Equity, Compulsory Licensing and Free Speech Online

In this post, Adyasha analyses the recent proceedings in the suo motu case taken up by the Supreme Court regarding matters concerning the Covid-19 pandemic. She first discusses the concerns regarding the pricing of vaccines and notes that the court asked the right questions from the Central Government as to the differential pricing for the Centre and other entities, deviation from the National Vaccine Policy, and powers under the Drugs Price Control Order. No specific directions were, however, given in this regard. The court also asked the government to consider compulsory licensing mechanisms which are being debated globally, and have received a comparatively favourable stance from its traditional opposers such as the US. The court also raised the possibility of drug procurement from other countries but did not touch upon possible accompanying issues. Adyasha, however, notes that the court failed to raise the key issue of Covaxin’s IP status which impairs production expansion. She then notes the court’s protection of the use of social media by citizens to voice their grievances. She concludes by noting that no conclusive progress has been made so far by the case as issues have been touched only on the surface.

Thematic Highlight

Copyrighting Musical Fountains: An Analysis of China’s Approach to Dynamic Artworks

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In this guest post, Abhijay a Chinese decision on copyrightability of a musical water fountain show and analyses whether the courts’ approach therein is compatible with Indian copyright law. He first summarises the decision highlighting the court’s novel interpretation to consider the show as an artistic work. He then compares it with the Indian position and notes that it might be difficult for such a show to be considered artistic work in India as it might not meet the fixation requirement which while is specified in the Copyright Manual (though not found in the Copyright Act). He then notes that the Chinese position on fixation is much more flexible as against the US position where it would be difficult to gain protection for a similar show. He concludes by noting that in the absence of a fixation requirement specified in the Act, a liberal approach should be taken towards artistic works as long as the works meet the original-expression requirement.

Other Posts

NLSIU Announces Thakur Foundation PhD Scholarships in Public Health & the Law

We informed our readers that the National Law School of India University (NLSIU), Bangalore has announced two PhD scholarships on public health and the law, supported by the Thakur Foundation. The scholarship will be offered to two students for the entire duration of their doctoral studies over a period of three years. Further details including the possible research directions and the application process are mentioned in the post.

A Guide on Fair Use Cases in India

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In this post, Pankhuri brought out the initial instalment of a compilation of all the fair use decisions pronounced by India’s high courts and the Supreme Court under the Copyright Act, 1957 till date. The compilation lists the relevant legal provisions, case details and the main points of court’s reasoning in respect of each type of use. This instalment compiles the decisions relating to education and research. Within this category, the cases have been arranged according to the broad type of use, such as course packs, guide books, question papers etc. The compilation will be updated periodically and the entire compilation should hopefully be released soon.

Decisions from Indian Courts

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    The Delhi High Court in Tata Sons Private Limited v. Dinesh Kumar, granted an ex-parte interim injunction restraining the defendant from using any marks deceptively similar to the plaintiff’s well-known registered mark ‘TATA’. [April 28, 2021]

  • The Delhi High Court in Sun Pharmaceutical Industries Ltd. v. Nukind Healthcare P. Ltd., granted an ex-parte interim injunction restraining the defendant dealing in medicinal preparations/health supplements under their ‘NUVITAL’ mark or any mark deceptively similar to the plaintiff’s registered ‘REVITAL’ mark. [April 28, 2021]

Other News from around the Country

  • MSD, the Indian unit of US-based drug maker Merck has entered into voluntary licensing agreements with five Indian drugmakers for molnupiravir, an experimental drug that is currently tested to treat Covid-19 infections.
  • Jan Swasthya Abhiyan, a Mumbai based network of organisations and individuals, has filed an application in the ongoing suo motu case concerning Covid-19 before the Supreme Court seeking, inter alia, directions to invoke powers under Sections 100 and 92 of the Patent Act for government use or compulsory licensing of the drugs Remdesivir, Favipiravir and Tocilizumab.
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    A piece in Scroll discusses the opacity behind the ownership of IP rights over Covaxin.

  • A piece in News18 argues that relaxation of patent rights in Covaxin might also be in the interest of Bharat Biotech.
  • Producer Anurag Augustus has approached the Kerala High Court for the cancellation of screenwriter Jinu Vargheese Abraham’s copyright in the script of the movie Kaduva, claiming that the script was written under a contract of personal service.
  • Actor Sakshi Malik settled her dispute with the producer of the Telugu Film, V, whom she had sued for illicit use of her picture in the movie for referring to a “female escort or a commercial sex worker”.

News from around the World

  • Brazil’s senate has approved a bill to suspend patent protection for Covid-19 vaccines, tests and medications amidst the Covid-19 pandemic. The bill has now been sent to the lower house of the Congress for its consideration.
  • Australian mining magnate Clive Palmer has been ordered to pay A$1.5 million in damages to Universal Music for illegally using the latter’s copyright over Twisted Sister’s 1984 hit song “We’re Not Gonna Take It” in political advertising.
  • A piece in LiveMint argues that WTO patent waivers would not be of much help in tackling the pandemic.
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