SpicyIP Weekly Review (July 12 – 18)

Topical Highlight

The Cinematograph (Amendment) Bill 2021: Overbroad, Disproportionate and Unnecessary

In this post, Adyasha analyses the Cinematograph (Amendment) Bill 2021 (‘Bill’) which seeks ‘to tackle the menace of film piracy’, and is a revision of the Cinematograph (Amendment) Bill 2019. She notes that the most controversial provision in the new Bill is the re-introduction of revisionary powers of the Central Government to direct the CBFC Chairman to reexamine an already certified film. She also highlights another surprising change i.e., the inclusion of the requirement of written authorization from the author of a film. Adyasha notes that while the Copyright Act deems the producer of a film as its author, that doesn’t imply that author and copyright owner would necessarily remain the same perpetually. In the event of assignment of rights, any person wishing to legally record a film would have to additionally obtain written permission from the author aside from the permissions already needed from the present copyright owner. Not obtaining the author’s consent might lead to heavy penalties. She also laments that the legislature continues to consider adding more overbroad criminal provisions when there are already serious doubts as to whether the existing sanctions are constitutionally valid. She concludes that the 2021 can have a significant impact on freedom of expression of both filmmakers and members of the public.

Thematic Highlights

Serious Comparative Advertising: Broadening the Definition

In this guest post, Sangita Sharma analyses the law around comparative advertisements in India. She argues that the law should broaden the definition of serious comparative advertisement (where the owner of the mark advertises his product reference to his competitor’s product based on scientific study) by allowing multiple comparisons.  She notes that the law currently allows comparison of one’s own products with that of one’s rival’s products but is not clear on whether comparison of a rival’s product can be done with other third-party products or not. She argues that such comparisons should be allowed in the interest of consumers and competition. She opines with regard to the Bombay High Court’s judgment in Hindustan Unilever Limited And Ors. vs USV Private Limited that merely because a comparison is unfavourable to a competitor, it cannot be said to be dishonest or unduly detrimental.  She contends that the ‘fair’ and ‘honest’ use thresholds under Section 30(1)(a) and (b) of the Trade Marks Act should come to the rescue of such advertisements. She argues that the courts are restricting traders from revealing objective facts about a rival’s product under the guise of intellectual property protection, which is open to constitutional scrutiny since the advertisements can only be restricted under Article 19(2) whereas the right to free speech under Article 19(1) extends to commercial speech. She concludes that that there are already laws available against advertisements that mislead the public, which is why comparative advertisements should not be feared for doing so. 

Other Posts

Pandemic Push: Royalty-Based Business Model for Better Downstream Revenue for Musicians

In this post, Namratha analyses an interesting change occurring in the music industry due to the pandemic: the creation of a marketplace for royalties. She notes that an issue often highlighted in this space is the artists’ lack of bargaining and negotiating power while dealing with big publishing houses and the clout the latter have in the industry. She emphasises that as per Sullivan’s model in this regard, investors or exchange platforms offer to purchase the future stream of royalty earnings for limited periods or permanently from artists in exchange for advance payments. She highlights that the emphasis is on investing only in royalty revenue and not buying the artist’s rights or retaining control over their work. NFTs (Non-fungible tokens), which act as a certificate of ownership for whatever the creator puts up for sale, allow artists to set their preferred terms of contract while making sales. She concludes that the drawbacks to this approach include assetization or the tendency of turning literally anything into a revenue stream that can be traded and capitalized, and inequities in terms of who is able to invest in royalties or who is able to purchase music NFTs. She emphasises that there exists the possibility of only big artists in the industry being able to cash in on this, as it generally tends to happen with any such new technology or business model.

No Injunction on the Film ‘Nyay: The Justice’: Is It Really Just?

In this guest post, Nishtha Gupta analyses the Delhi High Court’s recent decision refusing to stay the release of the film ‘Nyay: The Justice’ which is allegedly based on the life of late Bollywood actor Sushant Singh Rajput. She highlights that the Court refused to afford post mortem protection to personality rights of the actor. Nishtha emphasises that in determining whether the deceased possessed personality rights enforceable by his heirs, the Court based its reasoning on the intertwining between privacy and publicity rights. She notes the Court’s reasoning, hinging on the Puttaswamy case which opined that the right to privacy is born with the individual and extinguishes on his death. The court extended this logic to publicity rights to hold that celebrity rights extinguish on the death of the celebrity, and thus negatived the plaintiffs’ claim which demanded recognition of post mortem rights. She criticises the judgment because the Court based its reasoning solely on privacy without any justifications rooted in property rights. She also contends that the court’s reasoning that biographical facts and a life are not copyrightable can be countered by arguing that once celebrity rights are established, it is not biographical facts which are being granted protection, rather his persona and efforts he put into creating that personality. She argues that this effort entails an element of creativity thus renders the argument of non-originality moot.

Attars and Agarbattis: Protecting Traditional Cultural Expressions through Non-Conventional Trademarks

In this guest post, Tahhira Somal explores existing frameworks of non-conventional trademarks, particularly those of smell marks, while assessing their role in the protection of certain traditional cultural expressions. She highlights the issues and barriers to the registrability of smell-marks. She notes that  ‘Attar’ (traditional perfume) and ‘Agarbattis’ (incense sticks) fall within the Traditional Cultural Expressions category as defined by WIPO. She argues that unlike the Attars of Kannauj which are designated as Geopgraphical Indication, all small traditional businesses of Attars and Agarbattis do not enjoy such privilege, and thus, protection as smell marks may lend necessary protection to such TCE. She emphasises that trademark protection would shield small traditional businesses such as Attar and Agarbatti manufacturing in villages from being appropriated by say a company’s fancier ‘incense sticks’ in the case they don’t have additional safeguards like that of Geographical Indications. She argues for considering the original role of trademark as preventive of taking undue advantage of someone else’s labour and goodwill which benefits market efficiency by implication. She then uses this as the basis for claiming relaxations from the barriers to registrability of such marks. She concludes that the idea of trademarks as property of communities can be an effective way to protect TCEs, without stepping on the toes of the school of the view that trademarks are only used to enhance market efficiency.

Call for Submissions: The IP Press Law Review Vol. I, Issue I [Submit by September 20]

In this post, we informed our readers that The IP Press Law Review is inviting submissions for its inaugural issue. The deadline for submissions is September 19, 2021. The IP Press is a team of IP-Holics, who started this blog to ensure access to the latest intellectual property (IP) issues for all the IP hopefuls. Further details regarding the Journal’s call for submissions can be found in the post itself.

Call for Papers: NLU Jodhpur’s Journal of Intellectual Property Studies Vol. 5, Issue 1 [Submit by September 19]

In this post, we informed our readers that NLU Jodhpur’s Journal of Intellectual Property Studies (JIPS) is inviting original, unpublished manuscripts for publication in the Winter 2021 Issue (Volume V, Issue I) of the Journal. The last date for submissions is September 19, 2021. For further details, please read the journal’s call for papers mentioned in the post itself.

Decisions from Indian Courts

  • The Delhi High Court in The Foundry Visionmongers Ltd. v. Resonance Digital LLP & Anr., granted an ex-parte ad-interim injunction in favour of the plaintiff, restraining the defendants and anyone acting on their behalf from using any unauthorised program/software etc. of the plaintiff in contravention of the terms of its  End-User License Agreement, or infringing in any other manner the copyrights of the plaintiff’s software including NUKE and NUKE X. [14 July, 2021]
  • The Income Tax Appellate Tribunal (Bangalore) in Citrix Systems Asia Pacific Proprietary Ltd. v. the Income Tax Officer, Ward 1(1), Bangalore allowed the appeal of the assessee, holding that given the definition of royalties under the India-Australia Double Taxation Avoidance Agreement, it is clear that there is no obligation on the persons mentioned in S.195 of the Income Tax Act to deduct tax at source, as the distribution agreements/ EULAs in this case do not create any interest or right in such distributors/end-users, which would amount to the use of or right to use any copyright. The Court held that this is because the “licence” that is granted vide the EULA, is not a licence in terms of Section 30 of the Copyright Act, which transfers an interest in all or any of the rights contained in Sections 14(a) and 14(b) of the Copyright Act, but is a “licence” which imposes restrictions or conditions for the use of computer software.

News from India

  • The National Pharmaceutical Pricing Authority (NPPA) has invoked the terms of paragraph 19 of the Drugs Prices Control Order (DPCO) – 2013 to cap the price of five medical devices: a pulse oximeter, a blood pressure monitoring machine, a nebulizer, a digital thermometer, and a glucometer.
  • Khadi and Village Industries Commission (KVIC), the statutory body for the promotion of enterprises in khadi and village industries under the Ministry of MSME, has secured ‘khadi’ trademark registrations in three more countries – Bhutan, the United Arab Emirates, and Mexico – in order to further strengthen and protect the word mark and brand ‘khadi’ globally.
  • Scientists at the Indian Institute of Technology Hyderabad, who created COVIHOME, an artificial intelligence-powered COVID-19 test that allows self-testing at home, have filed a patent for the device and are now looking for industry partners for transfer of technology for mass production.
  • India will soon launch Maadhyam, a national single window system for regulatory clearances, allowing domestic and international investors to obtain over 560 types of regulatory approvals online, including permission to obtain a permanent exporter licence, set up a unit in a special economic zone (SEZ), register a copyright, start a power exchange, or obtain a licence to conduct business in India’s special economic zones.
  • A security researcher cautioned that cyber criminals in India are sending out false copyright complaint notices to Facebook users with harmful URLs that might harm computers.
  • In a piece for Live Law, Eashan Ghosh critically analyses Section 22(4) of the Indian Designs Act, 2004.

Other News from Around the World

  • Google was fined 500 million euros ($593 million) by France’s competition watchdog for failing to negotiate “in good faith” with media businesses over the use of their content under EU copyright regulations.
  • In the midst of a federal jury trial in Texas, Huawei Technologies Co. and Verizon Communications Inc. agreed to settle two patent-infringement claims over telecommunications technology royalties.
  • Finnish telecommunications firm Nokia has filed many patent infringement charges against smartphone maker OPPO regarding standard-essential patent (SEP) and non-SEP patents. Reportedly, these patents are about connectivity, interface and security elements and the complaints are filed in European and Asian markets

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