SpicyIP Fortnightly Review (June 24-July 7)

We have had an eventful fortnight at the blog:

Thematic Highlight

For our thematic highlight, we had a guest post from Prof. N.S. Gopalakrishnan. In the first of a series of posts, he writes about the problems in the Indian plant variety regime. In this post, he argues that the ‘enclosure movement’ in extant and farmers’ varieties is resulting in commonly available varieties being monopolised by private players. This has resulted in the plant variety regime working against the farmers since it reduces their access to seeds. He also highlights the procedural hurdles that are faced by ordinary farmers to benefit from the regime. He concludes by noting that the lack of clarity in the legislative mandate has resulted in the Authority developing new norms that have not benefitted the farming community, and urges reform in the law as soon as possible.

Topical Highlights

Prashant brought this fortnight’s topical highlight with his post on the RTI filings he made with respect to drugs that combat multi-drug resistant tuberculosis (MDR TB). He noted a piece in the Hindu that reported that the government would consider compulsorily licensing the MDR TB drugs manufactured by Janssen and Otsuka since did not agree to voluntarily license the same. In furtherance of the same, he filed an RTI application seeking the authentic report of the IMRC and communications between the government and the companies concerning the licensing. The RTI, unfortunately, has not received an affirmative answer.

I reported the recent approval of the Union Cabinet of India to accede to the WIPO Internet Treaties. I noted that the accession to the WIPO Copyright Treaty and the WIPO Performers and Phonograms Treaty would come as a delight to copyright owners in India since it significantly strengthens their rights in the digital sphere. On a slightly more sombre note, I argued that such a move could expose India to lobbyists from the EU and US since the access-friendly TPM provisions in India do not match western standards of stronger protection.

Other Posts

In our first post for this fortnight, we had an interesting piece by Prarthana. In her post, she discusses that Article 13 of the recently approved of the EU Copyright Directive in the Digital Single Market (which has since failed to pass the European Parliament) which imposes liability on internet platforms in cases where copyright infringing material is uploaded by users. She argues that such a stance may result in a loss of faith reposed in copyright law in the digital age. She also discussed the Indian position on this issue, which requires a court order to take down infringing content.

Prarthana also wrote a post on the recent amendment to the recent amendment to the Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007, which reduces the powers of customs officials to withhold import of patented goods. She argues that such a change would do India well since this area has had several issues in the past. She specifically highlights problematic instances in the Delhi High Court and the Samsung case. She then discusses the implications of the amendment, noting that the Ericsson judgment would be rendered obsolete since customs officers will no longer have the authority to determine patent eligibility of imports.

Prashant then wrote a post responding to Anand Grover, in their ongoing debate concerning the waiver of Phase III trials for bedaquiline. He argued that the advocacy that portrays bedaquiline to be a wonder drug is problematic since complete knowledge of its side effects and efficacy has not been garnered. He traces the confidence that people repose in the drug back to sustained advocacy by a Mr Chapal Mehra, who has written pieces for several media houses showcasing bedaquiline as a wonder drug. Prashant notes that such advocacy can be problematic since there is a lack of transparency among patient advocacy groups.

Next, Prof. Basheer wrote about the privacy-related issues with Aadhar. He discusses a PIL filed by him before the Delhi High Court that demands compensation from the government for various breaches of privacy owing to the Aadhar project. He argues that the UIDAI has problematically continuously denied allegations of breaches, without addressing underlying issues with the project. He then notes that the Aadhar Act is notoriously drafted to protect the authority, by highlights various claims grounded in the fundamental right to privacy, common law actions of torts and the Informational Technology Act that may result in such compensation being awarded.

Prashant also wrote on the Specific Reliefs (Amendment) Bill, 2017 which he anticipates will be passed soon by the Rajya Sabha soon. He notes the changes envisaged would affect patent infringement cases against the government or private contractors in certain cases. He argues that once the new law comes in force, patent holders will be unable to seek injunctive relief in cases that involve infrastructure projects in the field of electricity generation and distribution, which would include the railways. He then draws a comparison with a 28 USC 1498, which prohibits injunction in case the US Govt. compulsorily licenses a patent. He concludes by noting that although the changes are with respect to infrastructure projects, it could potentially change the way Indian courts grant injunctive relief due to stripping away of discretion.

Finally, we had a guest post by Sheetal Srikanth, an advocate at the Madras High Court. She delved into the recent judgment delivered by the Madras High Court in Thiagarajan Kumararaja v. M/s Capital Film Works. This decision decided a dispute between a script-writer and producer of a film regarding dubbing rights. According to her, the court’s conclusion of placing the right to dub with the producer was reached without analysing certain important issues. First, she argues that in distinguishing between dubbing and translation of works, the court failed to appreciate that the first step in dubbing is translating the script. Further, the court opined that a script-writer can restrict the dubbing rights of a producer via express agreement. Sheetal argues that this is in contradiction with the court’s conclusion that the right to dub exists with the producer. She concludes by noting that the Supreme Court has rejected an SLP filed on this matter.

Other Developments

Indian

Judgments

Kajal Agarwal v. The Managing Director, M/s. V.V.D. & Sons Pvt. Ltd – Madras High Court [June 25, 2018]

The dispute concerned the ownership over a cinematographic work over which the performer was claiming certain right. The court dismissed the appeal, stating that the producer was the first owner of copyright over the work in which the performer featured for a 60 year period, under Sections 17 and 26 of the Copyright Act, 1957. While the court did acknowledge that the rights of the producer may be overridden by an agreement if Section 17 is attracted, it found that this was not the case in the present dispute.

Wunderbar Films Private Limited vs Pranita Pawar Productions – Madras High Court [June 22, 2018]

The dispute concerned the infringement of copyrights and audio/video rights in the Tamil film VIP. The court granted an ex-parte injunction, restraining the defendant from remaking a Marathi version of the same film, titled ‘MNS’. The court reached this conclusion after finding evidence that proved that MNS had copied the story-line, scenes and songs from VIP.

M/S.N.Ranga Rao & Sons v. M/S.Shree Balaji Associates – Madras High Court [June 13, 2018]

The court upheld the decision of the IPAB, holding that the registration of the trademark CYCLE by the petitioners for agarbathis and other products in Class 3 were invalid because only well-known invented words are entitled to such protection under Section 47 of the Trade and Merchandise Marks Act, 1958, and not generic words and devices like CYCLE

News

P&G wins trademark case against UP-based Unani medicine firm

After two decades, Amul wins legal battle against Anul

HC dismisses actress Kajal Agarwal’s plea against single-judge order on copyright of film

Madras High Court bars Karnataka firm from naming its oil as ‘Gold Premium’

IPAB allows trademark claim of Starwood Hotels

Spurious oil sold in Hindustan Petroleum bottles

International

Apple and Samsung settle seven-year-long patent fight over copying the iPhone

Apple Brings Patent Battle Against Qualcomm to PTAB With Six IPR Petitions on Four Patents

European Parliament Rejects Starting Negotiations On Copyright Reform Proposal

MEPs have voted down the EU’s new Copyright Directive which would have made web giants pay more to use creators’ content