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As October passed, Halloween festivities and the Day of the Dead provided a backdrop for contemplating the past. After all, reflecting on what’s passed helps us anticipate what’s ahead. This brings me to my Octobers’ sift – a sift that yielded some sinuous IP stories. Those who haven’t checked our Sifting Through SpicyIP Pages series yet, can check SpicyIP Flashbacks and see what we found thus far while journeying through the months of Junes, Julys, Augusts, and Septembers. They included stories of the Patent Agent examination, the Indian Innovation Act, the opening of the Trademark database, the presumption of patent validity, and the South Asian Basmati fights and more.
Without further ado, here’s what the Octobers offered:
Serial Crisis in India, Anything new?: Around a decade ago, in October, Swaraj discussed Indian science officials expressing their concern over the unaffordable subscriptions. This is a “serials crisis” i.e., a situation when rising subscription costs for scholarly journals exceed academic library budgets, hampering researchers’ access. Tellingly, Indian academics are not the only ones affected, even the world’s most prestigious universities have expressed their concern over this. Those who tried to intervene, such as Diego A. Gómez Hoyos and Aaron Swartz, faced serious consequences. One may ask – is open access a solution? Maybe. Maybe not. Swaraj’s post is on this point. More specifically, is Copyright a Hindrance for Open Access in India? (I am not even wading into the Bogus Open Access Journals and The dark side of the scientific publishing industry). What else? Is Creative Commons a solution? Maybe! Check Justice Prabha Sridevan’s post ‘Cultivating The Commons’, drawing our attention to the idea that “Access to education is not ancestral property, it is common property.”
This brings me to broader issues of education/science/knowledge; DU Photocopy and Sci-Hub cases need highlighting here. The former, a highly hailed Indian case with a few counterviews, raised questions about access to educational material. The latter, currently pending, involves questions about the legality of shadow libraries, engines that fuel much of the research in India (Here’s a mini-survey). I recommend reading Nikhil’s 3-part post examining the Sci-hub case and Divij’s post examining Sci-Hub and the Disruption of the Academic Publishing Industry. In another development, Publishers united to Fight Copyright Infringement on ResearchGate, although it was settled out of court.
Nonetheless, what’s the solution in the long run – abolishing copyright from scholarly works as Steven Shavell proposed; disallowing corporate assignment of copyright over scholarly works, akin to Akshat’s suggestion in the music industry context; revamping Legal Deposit under The Delivery of Books and Newspaper (Public Libraries) Act 1954. Or, maybe thinking of a new right, such as a “Right to Research.” Needless to say, these aren’t the main/only solutions. We must think through these and more solutions and do so sooner rather than later. As Swaraj said, it’s Time to More Seriously Question the Spectre of Copyright in the Realm of Education.
Whither Clinical Trial Data?: In an October 2012 post, Kruttika Vijay highlighted the Supreme Court’s concerns over the lack of transparency in clinical trials in India. For context, these trials are conducted by pharmaceutical companies as R&D to, evaluate the efficacy, risks, and health benefits of new drugs/components. Access to clinical trial data not only helps drug innovation but also impacts consumer benefits and drug pricing. Class 5.1 and Class 5.2 of our IP Reveries series, while discussing the basics of clinical trials and drug innovation, have highlighted their implications. Prof. Basheer, in his 2009 post, about Chantix, a Pfizer-patented anti-smoking drug, raised questions regarding transparency around the discretion to require local clinical trials. Kruttika’s poignant post in the same year, ran a persuasive case of publishing clinical trial data, discussing when public interest in trial data outweighs commercial interest. This issue continues to surface, often concerning data exclusivity, which does not cover test data. See two related posts here and here. Nevertheless, such data, regardless of their apparent public interest implication, are not disclosed to the public. More recently, the issue of clinical trial data came up during COVID-19 when the clinical trial data of Covaxin were not shared. Read Anupriya’s excellent post here.
Speaking of this topic, I can’t miss Bedaquiline, the first new drug to receive approval to treat tuberculosis (TB) in over 40 years, which raised serious questions about its marketing approval without mandatory Phase III clinical trials in India and around informed consent of Indian patients. Thanks to Prashant, who has substantially worked and written on this issue, for bringing this issue to the fore. Prashant and Balaji’s well-worded Special Report: The Smoke & Mirrors Surrounding the Approval of Bedaquiline examined the issue in detail. In other posts, he discussed the legal and ethical concerns around Bedaquiline. Trust me, the issue was super-intense with discussions spread across several interconnected fronts, including reporting (see also), RTIs (see also), advocacy, activism, and WHO. The issue is also discussed in his and Dinesh Thakur’s book ‘The Truth Pill: The Myth of Drug Regulation in India.
Hopefully, we’ll see a greater and more active engagement on this issue in the future.
The Recording of Court Proceedings in 2008: In October 2008, Mihir discussed a case in the Supreme Court that considered recording its proceedings as a move toward judicial transparency. It mightn’t be astonishing today, but it was an advanced move then, given the issue of accessing court records at that time. Mihir nicely discussed the usefulness of such a move for lawyers, appellate courts, legal scholars, etc. Surely, we have come a long way over the years, now, court recordings are a common thing. However, the destination is still afar (read the Junes’ Sift). Also, there are some copyright issues around the streaming of court proceedings as Niyati discussed. Speaking of which reminds me of a recent case where a court used copyright to take down an already aired court recording showing a judge apologizing to another judge after a heated discussion. One may wonder how the said judicial transparency interplays with commercial cases. For insights, read Anupriya’s post on Interdigital v. Xiaomi highlighting how the common practice of courts granting confidentiality in commercial litigation problematizes transparency, judicial accountability, and the citizens’ right to be informed of court processes and reasoning under Article 19(1)(a). It bears noting, however, that confidentiality may be a valid concern and shouldn’t be just disregarded for transparency alone. This decision should be made on a careful assessment of several objective factors. Moreover, the increasing emphasis on the Right to be Forgotten needs to be carefully balanced with access to public records and an open court system.
Nevertheless, with the increasing impact of copyright and privacy on the flow of information, the path of transparency seems to be becoming more and more turbulent, warranting more attention and closer scrutiny than before.
Corruption in IP Offices, Anything New? – Once upon a time, as Prashant noted in his October 2011 post, a trademark application was filed, examined, and published within a mere 72 hours at the Chennai Trademarks Registry. This extraordinary speed raised questions about whether it was super efficiency or super corruption. But this is not all! Here’s the backstory of this revelation: taking the lead from Sumathi’s post, the investigation was done by Mr. Balakrishnan, a Coimbatore-based IP lawyer, who in the process exposed the striking corruption at the Chennai TMR. In 2011, the same IP office also witnessed the arrest of a high-ranking Registrar on charges of massive corruption and disproportionate assets after a CBI investigation. The person was later convicted in 2016. Speaking of these issues, the Manjal matter needs highlighting where the mark was problematically removed by the same arrested registrar. This raised a question did the registrar of Trade Marks have the jurisdiction to revoke the ‘MANJAL’ trademark?, which Prashant discussed in his post.
Sadly, this extends beyond the Trade Mark office; it carries broader implications for transparency and overall administration, ultimately influencing the accountability of public officials. Given troubling record-keeping practices at the IPO including instances of missing files at trademark (see also here), copyright, and patent offices (see also here), the issue cuts deeper, deeper than what we can see and surmise logically. Read Akshay Ajayakumar’s posts about the dismal examination standards disregarding the mandatory requirements of Collective and Certification marks. For collective marks, he argued that out of 10 collective mark registrations he examined, 9 were granted erroneously. Also, check Joff Wild on the Allegations Against Indian Patent Office.
Before ending this story here, I’d direct readers to two intriguing posts by Prof. Basheer’s Hazare Hunger and Policy Making and Gandhi Comes to WIPO, offering food for thought and inviting deeper contemplation on the issues of governance and administration.
Origin and Turns of the Ad-Words cases: Prashant, in October 2009, shared the news of the Madras High Court vacating ex-parte interim injunction against Google’s ad-word program (see also here). The vacated order restrained Google from infringing Consim’s trademark on Bharat Matrimony. “Ad-word” … yes, the very same thing that recently made headlines, again! Let’s see how it unfolded.
So … Prashant’s post was followed by a detailed post on Adwords and Trademark Law cautioning that a traditional interpretation of “use in commerce” could jeopardize the rights of trademark owners, given the evolving business models. Then, in 2010, the European Court of Justice ruled in favor of the Google Adwords Program holding such use to be non-infringing. In the following years, a Dutch Court applied the ECJ Google ruling and a French Appellate court also ruled in Google’s favor. Although Google faced some challenges and penalties before the Competition Commission of India, and Indian start-ups complained about unfair Google Ad-Sense contracts, more or less, things were in Google’s favour on the trademark front.
Fast forward to 2022, which wasn’t a very good year, as DHC restrained some defendants from using the plaintiff’s registered marks on the Google Ads Program for trademark infringement and passing-off. However, 2023 seems good for Google, thus far. Aditya discussed Google v. DRS, where the court held that ad-words are not inherently violative of trademark rights. A brand owner’s injunction now depends on the ad’s content, checking if the same confuses or causes blurring or tarnishment. Only then does Google need to take action against the advertisement and not otherwise. But what are the implications of this (not-so-straightforward?) ruling on Indian businesses and trademark holders? Nivrati Gupta essayed to answer that in her post discussing the evolving legal dynamics of trademark use in Internet advertising, and its impact on businesses.
Well, this wraps up our Octobers’ sift. Next time, I’ll sail on a fresh journey through the pages of “Novembers.” If there are any posts or events that slipped my sight, feel free to share them in the comments. Until then, see you next month!
Thanks to Swaraj Barooah for his input on this piece.