Three major academic publishers Elsevier Ltd. (UK), Wiley India, Wiley Periodicals (USA) and American Chemical Society (USA) have sued the websites ‘Sci-Hub’ and ‘Libgen’ before the Delhi High Court for infringing their copyright in their publications by making such publications available for free on these websites. They have sought for these websites to be blocked and a dynamic injunction issued against them. The matter is pending before the Court and is up for hearing on January 6, and in the meantime based on the defendant’s undertaking, the Court has instructed the defendants not to upload any new material of the plaintiffs.
Nikhil’s three-part post explaining the background of the case, analysing the plaintiffs’ dynamic injunction and the interim injunction plea, and the applicability of the fair dealing and educational use exceptions to the case, was also the most read copyright post on the blog in 2020.
2. Appointment of IPAB Chairperson/ Members
There were a lot of developments regarding appointments at the Intellectual Property Appellate Board (IPAB) last year:
i) In March, the Appointments Committee of the Cabinet (‘ACC’) notified the continuation of Justice (retd) Manmohan Singh as IPAB Chairperson until September 21, 2020.
ii) Then in July, the Indian Drug Manufacturer’s Association sued the Central Government over non-appointment of technical member for patent matters on the IPAB. Subsequently in August itself, the ACC notified the appointment of five technical members to the IPAB, including one for patent and two each for trademarks and copyright.
iii) Thereafter, in the same month the Department for Industry and Internal Trade called for applications for the post of the Chairperson of the IPAB, while an interim application for extension was filed in Supreme Court. The Chairperson’s tenure was further extended till December 31, 2020, by the Supreme Court.
iv) Finally, the most recent development concerning IPAB appointments is that the Supreme Court upheld the constitutional validity of the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2020.
The Cancer Patients Aid Association (CPAA) had written to the Health Ministry and the Pharma Ministry urging them to revoke the Indian patent granted to Gilead’s Remdesivir, at a time where it was thought as a potential COVID-19 cure. The said petition invoked grounds of non-patentability and public interest. Interestingly, the WHO has recently issued a conditional recommendation against the use of Remdesivir for COVID-19 treatment.
The Indian Performing Right Society (IPRS) issued a notice regarding a tariff scheme to be made applicable for live-streaming and live/ disc-jockey performances. Upon receiving backlash from singers, musicians and popular press this scheme was put on hold. Subsequently, it was clarified that the released tariff scheme was only for engagement with stakeholders before its Annual General Meeting, and that it will not be applied unless it is approved.
All Indian Drug Action Network (AIDAN) filed a petition before the Delhi High Court challenging Paragraph 32 of the Drug (Prices Control) Order 2013, which was amended through the Drug (Prices Control) Amendment Order, 2019. Paragraph 32 creates exemptions from price control, among which is one particular exemption for new drugs under the Patents Act, 1970, for five years from the date of commencement of the drug’s commercial marketing. However, it has been unclear whether this exemption is self-invocatory. As a result, several pharma companies were issued notices by the National Pharmaceutical Pricing Authority’s (NPPA) for relying on Paragraph 32 to exempt themselves from price caps without the authority’s approval, after having been granted patents. Subsequently, companies such as Lupin, Abbot Healthcare, Sun Pharma and Glenmark filed different petitions in High Courts concerning the interpretation of the exemptions granted under Para 32 and whether the same is self-invocatory.
India had applied for protected geographical indication (PGI) status for Basmati before the European Commission. This application was published in September 2020 seeking objections if any against such registration. Earlier last month, Pakistan filed an opposition to India’s sole ownership of Basmati arguing that Basmati is a joint product of both countries. Interestingly, Basmati is yet to be given the GI status domestically in Pakistan.
Swaraj and Praharsh filed an RTI seeking information about the Annual Reports for 2018-19 and 2019-20 of the Office of Controller General of Patents. Using the response from the RTI and the publicly available reports, they tabulated statistics concerning pre-grant and post-grant oppositions from 2016-17 to 2019-20 which revealed a discrepancy in the numbers.
The 2020 edition of the GIPC IP was released. It ranked India at 40 out of the 53 countries considered by the index. It praised India on a few counts including calling it a “Global leader on targeted administrative incentives for the creation and use of IP assets for SMEs”.
A PIL was filed before the Delhi High Court seeking a direction from the High Court to mandate the Central Government to make hard copies of legislations available at a reasonable price. It claimed that publication of these laws by private publishers amounted to infringement of government’s copyright in them. The High Court denied to grant this relief and disposed off the petition. The petitioner filed an appeal against the said order before the Supreme Court. The Supreme Court had issued notice to the Union of India but the case has not yet come up for hearing.
The terms of service of the Government’s Covid-19 tracking mobile app Aarogya Setu App imposed a blanket prohibition on reverse engineering, the legal enforceability of which was questioned by Aparajita in light of the fair use rights of users under Section 52 of the Copyright Act, 1957. This prohibition was, however, subsequently lifted in an update to the terms of service of the app.
Please click here to view our list of India’s top 10 judgments/orders (topicality/impact), here to view our list of India’s top 10 judgments/orders (jurisprudence/legal lucidity), here for the list of India‘s top 10 IP legislative and policy developments of 2020.