Welcome back to the “Sifting Through SpicyIP Pages” series! This time, I have journeyed through the pages “Januarys” on SpicyIP since 2005 and got you some stories that, I think, have kept us occupied over the years. It’s the 8th post of this monthly series. We have already traversed through Junes, Julys, Augusts, Septembers, Octobers, Novembers, Decembers, and shared some stories like Rahul Cherian’s Legacy, 2010’s International Efforts on Pandemics, Corruption in IP Offices, Law Making via Leaked Documents, etc. If you missed any of these, simply click on SpicyIP Flashbacks and select the month to catch up.
Without further ado, here’s what I found in the Januarys:
Virtual World, Gaming, and IPs: Sifting through January pages, a decade-old post by Deepshikha Malhotra caught my attention, discussing Property Rights in the Virtual World. While the terms like virtual reality, AI, etc., were in traction before, their popularity has surged in recent years. The question of ownership in the virtual world, particularly in video games, has long been debated. For instance, see Thomas Vallianeth’s post pondering upon Copyright Aspects in Open World Gaming and arguing that “open world gaming contains elements that need to be granted distinct protection as opposed to the generic protection as computer programs.” Similarly, Shashank Singh penned a post called “Gamers Beware!” which addresses YouTube’s ‘Content ID’ mechanism. More recently in 2020, Sankalp Jain discussed the copyright challenges in “Dreams,” a video game enabling user-generated content, arguing for the Indian copyright law’s limitations in addressing the the issues around the fan-made creations within the game.
On the trademark side, relevant is this post by Bhavya Solanki and Medha Bhatt discussing the applicability of the fair use provisions of trademark law to the unauthorized use of trademarks in the virtual world. Speaking of the virtual world and connected stuff in today’s time, one shouldn’t miss the blockchain. Relevant here are Arun C. Mohan’s post “Trademarks for Digital Currencies,” Bhavik Shukla’s follow-up post highlighting the unsolvable conundrum in the trademark-ing of Blockchain Technology, and Aparajita’s most recent post. For more descriptive posts especially on Non-Fungible Tokens (NFTs) and copyright law, check Adarsh Ramanujan’s two-part post here and here and Awani Kelkar’s post here.
Performers, Rights, and Copyright: The concept of performers’ rights continues to intrigue, posing numerous unanswered questions as highlighted in various posts on the blog. For instance, this decade-old post by Shashank Mangal explored this concept with compelling hypothetical scenarios. Notably, during the 2012 copyright amendment, intriguing discussions emerged, such as this ghost Post questioning if Performance under the Copyright Act is confined to live performances (See also here). Then, Arundathi Venkataraman discussed the topic using the case of Garcia v. Google, particularly looking into ‘consent’ and the moral rights of a performer. This case is particularly interesting as it involves an interesting question about the plausibility of performance as a copyrighted work. (Sidenote: In this context, I wonder if an author is a performer, especially considering the meaning of the word “author” which means the originator of something. So … given a performance “originates” from a performer, can a performer be called an author? Just thinking aloud.)
Then Spadika Jayaraj’s entertaining two-part series (See here and here) on the Kuchipudi Copyright Conundrum would challenge us to think deeper, questioning how performance rights mesh with tricky definitions of dramatic and cinematic works. (see also The Drama in the Definition of ‘Dramatic Works’). Likewise, the Ilayaraja-SP Balasubramanyam Copyright Dispute catapulted some curious questions on music composers’ rights vs performers’ rights. Now if you want to zoom out and see the larger picture of how these rights are managed and owned, check Prashant’s post on the Indian Singers’ Right Association’s (ISRA) Dubious Victory before the Delhi High Court, which was later followed up by Balu Nair. These cases continued to unfold, as detailed by Prashant here. Let’s also not forget the Delhi High Court’s telling move to set aside three compromise decrees recognizing settlement agreements between ISRA and certain defendants (see also here). Before I wrap this story, let’s not miss this recent post about the Agreement on Royalty Sharing Signed between ISRA and Music Labels, where Surmayi discussed whether Singers (a type of performer) are entitled to royalties for sound recordings. Okay. That’s all from my end.
(By the way, since I mentioned the 2012 amendment, I can’t resist asking – do you know the sneaky ways that have been (are) used to circumvent the Copyright Amendment Act, 2012?)
Does the exclusion on “Business Methods” patents need revision?: ‘Tis known that Section 3(k) of the Indian patent law explicitly excludes business method patents. Right? Well … not really! As Yogesh Byadwal’s most recent post on this topic made me think. Intrigued, I parsed the past posts to understand how the discussion on this topic has evolved over the years. I found Aparajita’s post from January 2013, discussing why Business Method Patents are granted where she also pointed out the granting of many business method patents in India despite the express statutory exclusion of the same.
For older and more general discussion, check out Prof. Basheer’s post on Patenting Software and Business Methods In India (and this one), and other posts such as the Patent Protection for Marriage Portal, the post on the USA case of Bilski v. Kappos (see also here), and this example from our Chinese neighbors. While judicial discussions on this issue have been limited, it appears that the exclusion of business methods has been straightforward without much need for revision, as highlighted in Rajiv’s post on Yahoo v. Controller and Rediff.
Just a final question before I end this story: when the statute is clear, does the recent decision of the DHC to revisit a settled position, both judicially and legislatively, warrant revision?
The Oddity of John Doe Orders: Perusing some past posts, I chanced upon Sai Vinod’s post on John Doe orders for Blocking Websites, which kindled my curiosity about this legal oddity. But what exactly is a John Doe Order, or Ashok Kumar Order? Simply put, it’s a (lamentable) legal tool, often wielded by Bollywood film producers, allowing them to take action against “anyone” found infringing copyright, without specifying a particular defendant. While once prevalent in headlines, it seems to have faded from the spotlight. Not because they aren’t granted anymore, but rather because they seem to have become normalized and are now covered by its modern, broader counterpart – the dynamic (and dynamic+) injunction. Given the concept has been covered broadly on the Blog, let’s throw in some worthwhile posts.
For a quick recap and context, check The Story of India’s First “John Doe,” Kartik Khanna’s two-part post on the misuse of the concept (here and here), Amlan Mohanty’s post claiming that Indian Intermediary Liability Law Requires a Thorough Makeover, Swaraj’s concerns about moving towards a censored society, Kashish Makkar’s discussion on it as ‘Justice’ v. Statutory Law. Given the gust of these ghastly orders, Prof. Basheer also proposed having an IP Ombudsman for this issue, which was later endorsed by Justice Patel of the Bombay High Court while quoting SpicyIP (see also here). There was even a time when the Madras High Court issued an ‘Ashok Kumar’ order to block the Internet Archive along with 2649 Websites.
Over time, such broad orders have evolved into “dynamic” injunctions, first granted in 2019 by the Delhi High Court. Subsequently, dozens of blocking injunctions were granted under this new ‘Dynamic Injunction’ Process, and the Government was asked to ‘Suspend Domain Name Registrations’ (see also here and here). More recently, the concept of “Dynamic+” injunctions has emerged, indicating a further evolution in judicial practice. I wonder, what’s next in this legal saga? John Doe, dynamic, dynamic+, the possibilities seem endless. This reminds me of Prof. Basheer’s larger-than-law type post called Of Courts, Cuts and Copyrights, a truly spicy read indeed!
Anyway, it’s already a long story, let me end it with a question that Nishtha Gupta asked a few years ago: Do Ashok Kumar Orders Conform to Principles of Equity?
Biological Diversity and Access and Benefit Sharing (“ABS”): Before sharing this story, let me say that this particular story seemed unending when I began reading it. I started with Prashant’s 2010 post discussing India’s position on the Convention on Biodiversity (CBD) at the 10th Conference of Parties (CoP). This led me to ponder what we have witnessed on this relatively less-discussed IP topic. For some of the earliest discussions, check this short post here, this guest post on critical analysis of the Indian Policy on seeds. For some critical discussion on the topic, Alphonsa Jojan’s posts called, “The Curious Case of the Indian Biological Diversity Act” and “Where to lean on? The Biological Diversity (Amendment) Bill 2021 or the Landmark Cases?” would help. In case you are looking for some particulars, I’d recommend reading the Pelargonium Patents case and Biopiracy. Speaking of which, allegations against Monsanto need highlighting. So … see here, here, and here. (For more on Monsanto’s matter, check our Novembers’ sift). Interestingly, there was also a time when the government issued the Protection, Conservation, and Effective Management of Traditional Knowledge relating to Biological Diversity Rules, 2009. However, it seems that these rules never really came to fruition (please let me know if I am mistaken and if there are any updates.)
For a blend of fun and serious reading, check Shan Kohli’s “The Moo Point: Cows and Bulls Lock Horns with IPRs,” Inika Charles’s post about some Courts’ clarification on Benefit Sharing under the Biological Diversity Act, and Alphonsa Jojan’s discussion on the Bio-Cultural Jurisprudence and Divya Pharmacy v. UoI. Some recent discussions on this front include Adarsh Ramanujan discussing the New (Draft) ABS Guidelines (here and here); Anupriya Dhonchak and Dayaar Singla’s post on the creation of People’s Biodiversity Registers (PBRs) and the draft Environmental Impact Assessment (EIA) 2020, Prashant post on Patanjali’s Tryst with the Biological Diversity Act.
Okay … ’tis again time to end this story but … given the ongoing international discussion on this topic, I feel compelled to recommend some solid larger-than-law-type posts: Prashant’s post called “India’s Biodiversity Law Has Turned Out to Be a Nightmare for Scientists and Businesses – Parliament Should Repeal It,” “Learning from India’s Disastrous Experience in Protecting Itself against Biopiracy” and Balakrishna Pisupati’s “Protecting India’s Biodiversity: Are we all Criminals?.”
So … let’s wrap up this sift. But before we conclude, let’s reflect: Did I miss anything? D’accord. For, there’s always more unfolding. After all, the world abounds with constraints, notably time and space. But you, my readers, are free(er). So … please feel free to share in the comments what’s missed! Until next time, stay tuned! See you then.