SpicyIP Weekly Review (February 11 – 17)

We’ve had a busy week at the blog this week, with several guest contributors and interesting discussions on our comments threads too.

The week’s thematic highlight is Mathews three-part post analyzing Section 31D of the Copyright Act, and criticizing the order of the Punjab and Haryana High Court in ordering the Registrar of Copyrights to exercise power under Section 31D. The first part of the post notes that the IPAB is supposed to function as an independent tribunal, which is a core feature of the statutory and constitutional scheme. However, the Court’s directions subvert this scheme and assign the judicial powers of the IPAB to the registrar. The second part of the post chronologically sets out the developments pertaining to Section 31D, where Mathew brings to our attention the interim license passed under Section 31D by the Registrar, and the order of the Delhi High Court which stayed the order of the Punjab and Haryana High Court. In a third post, Mathew analyses the Delhi High Court’s order of February 12, 2018, and disagrees with the Delhi High Court’s interpretation of the P&H High Court’s order.

The topical highlight for the week is Prof. Basheer and Pankhuri’s post updating us on the ongoing litigation in the Delhi High Court regarding Patent Working disclosures under the Patents Act. In its recent order, the Delhi High Court elaborated on the confidentiality conditions under which Form 27 data must be submitted, stating, with regards to details of licenses, that “only the specification with regard to number, date and particulars of the licensees and sub-licensees need to be submitted.” The Court has also ordered to Government to show how it plans on modifying the submission of patent working data to make it more effective.

Prashant updated us on the Bombay High Court’s order restraining Novex Communications from taking coercive actions against Gulraj Hotels. Prashant reiterates how Novex, despite not being a copyright society under the Indian Copyright Act, claims to act as an agent for copyright holders and administer their royalties. However, as we’ve noted here before, Novex’s functioning is less than transparent, and it is a symptom of a confusing royalty administration system under the Copyright Act, which, as Prashant notes, is ripe for reform.

Prashant also noted this need for reform when reporting on certain comments left by the Managing Director of ISRA on his earlier posts, which seem to allege that Prashant or SpicyIP are “hands in gloves with the Rich Music Companies”. Prashant notes the lack of transparency in ISRA’s functioning and the parallels with the maladministration of IPRS.

We also had some great guest posts on the blog this week –

First, Mr. Achille Forler, an advisor to the Indian Performing Rights Society, brought us a wonderful post debating the legal and philosophical concept of newness and the nature of creativity and the need for the IPR system. Mr. Forler exposits on some of the philosophical foundations which have sought to explain creativity, and the need to historically analyse how the present legal regime for intellectual ‘property’ came into being.

Next, we had a two-part post be Himanshu Arora, an IP lawyer practicing at the High Courts of Delhi and Punjab & Haryana and the District Courts at Amritsar. In part one of the post, Himanshu analyses the dispute between DishTV on one hand and ZemTV and TVAddons in a Texas Federal Court. The dispute concerns a copyright claim by DishTV against certain modification softwares to the Kodi Set Top Box, which allow the capture and online streaming of broadcasts of copyrighted material. Himanshu notes that the fair use defence may be of use to the defendants, given that the software merely retransmits broadcasted works. In part two, Himanshu analyses the possible arguments and defences that may be put forth in the dispute.

SpicyIP Events:

The Centre for Innovation, Intellectual Property and Competition (CIIPC) at National Law University Delhi and the Centre for Protection of Intellectual Property (CPIP) at George Mason University, Washington D.C. are organising a conference titled: “Back to Basics: The Role of Property in the IP System” on March 22-23, 2018 at National Law University Delhi. The last date for registration is February 28, 2018.

The Centre for Innovation, Intellectual Property and Competition (CIIPC) in association with National Academy of Law Teaching is organising the 7th Annual IP Teaching Workshop 2018 at National Law University, Delhi (NLUD) on March 24, 2018. The last date for submission of applications is March 1, 2018.

Other Developments

India

Judgements

News

1. Google To Make Copyright Disclaimers More Visible
2. US-India advocacy group seeks bilateral IP dialogue
3. BCCI wins IPL trademark infringement case
4. Navitas fails to restrain local firm from using PVNET
5. How can copyright exist in an unpublished biography: High Court
6. US Trade Representative asked to place India on its priority watch list
7. Rasagolla dispute reaches Chennai
8. IIT-KGP law school launches legal aid and IP facilitation cell
9. Delhi Government Health Department issues show cause notice to Hollywood actor Pierce Brosnan over endorsing a Pan Masala brand
10. Delhi High Court dismisses review petition filed by Super Cassettes Industries Private Limited seeking review and recall of judgement passed in favour of ISRA
11. KVIC vs Fabindia: Is govt body infringing on the freedom to do business?

International

1. Judge Rules News Publishers Violated Copyright by Embedding Tweets of Tom Brady Photo
2. Why I want you to steal my ideas
3. OFFENSIVE TRADE MARKS: WHAT EVERYONE HAS BEEN WAITING FOR*  

4. BREAKING: in his new Opinion in Louboutin AG Szpunar (confirms and) advises CJEU to rule that a trade mark combining colour and shape may be refused or declared invalid