Spicy IP Weekly Review: 4th Week of April, 2013

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The weekly review starts with a post by Gopika on the UK Supreme Court decision in Public Relations Consultants Association Limited v. The Newspaper Licensing Agency Limited, a case that dealt with whether copyright infringement proceedings could be brought against internet users for merely viewing copyrighted content on a website if they did not have a license from the owners of the copyright. The five judge bench unanimously held that such proceedings could not be brought against such internet users, given the exemption under Article 5.1 of the Directive 2001/29/EC.

Anubha followed this up with an update on the Indo-EU FTA negotiations, including India’s positive stance that it cannot go beyond the parameters of the TRIPS and its domestic IPR laws and its demand of being declared a data-secure country. The two sides have decided to meet again in June, 2013 to continue the talks. She remarked about the slow pace of the negotiations and voiced the concern that EU may end up enjoying double benefits if its demands for duty cuts in auto, wines and spirits and dairy products, as well as an assurance for facilitating registration of their GIs are accepted, which would in turn adversely affect the domestic industry.

Prashant then mooted the question of whether Indian Patent Agents, who accepted citizenship of other countries, while retaining the status of ‘Overseas Citizen of India’, could continue to be recognized as registered Indian Patent Agents. He referred to the matter of Mr. Naren Thappeta, whose name had been removed from the patent agent register because he had accepted U.S. Citizenship and moved to an OCI. The Controller General had finally accepted Thappeta’s argument that as per the Patent Act, 1970, Indian citizenship was a requirement only for qualifying as a patent agent and that the Act did not state that a patent agent could be removed from the Register for accepting the citizenship of another country.

It was then the turn of a detailed guest post by Chaitanya Ramachandran, analysing the argument made by T-Series in its constitutional challenge against Section 31(1)(b) and Section 31D of the Copyright Act (both provisions deal with compulsory licenses). Section 31(1)(b) sets out the regime for the compulsory licensing of works that have been withheld from the public. T-Series argues that this provision privileges the interests of broadcasters (who it claims have previously abused it for financial gain at the cost of copyright owners). S.31D creates a statutory licensing regime that allows compliant broadcasters to broadcast any literary and musical works or sound recordings. T-Series’ arguments against both these provisions can be classified under the two broad headings of natural justice and unconstitutionality (being violative of Arts. 14, 19(1)(g), 21, and 300A). The two points that were highlighted about T-Series’ challenges include the question whether mandatory licensing scheme introduced by the 2012 amendments amount to a solution in search of a problem and whether lowering the revenue generated in favour of copyright owners from licensing royalties by fiat will cause irreparable harm to the owners. 

This post also brought to us the first set of Spicy Comments of the week, in terms of quite an informative discussion between Anushree Rauta, Udit and Chaitanya himself, about issues such as whether Rule 31 of the Copyright Rules is sufficient to provide the fair hearing that T-Series has claimed to be lacking in S. 31D, and the possible reasons for T-Series not posing a challenge to the amended proviso to S. 33, among others.

Madhulika then presented a very well-structured analysis of an IPAB decision wherein the PAB had upheld the appeal filed by Thomson Reuters Global Resources against the Assistant Controller’s decision rejecting Thomson Reuters’ patent application entitled “Systems, Methods, Interfaces and Software for Extending Search Results beyond initial query-defined boundaries.” She also emphasized that the patent prosecution procedure at the Indian patent office at present leaves much to be desired in terms of articulation skills, logical and analytical rigor and that there seems to be a dearth of training programs for quasi-judicial authorities like patent officials.

This was followed by a post by Gopika on a trademark dispute between Swiss multinational Societe des Produits Nestle S.A (hereafter Nestle) and Kolkata based Kit Kat Food Products over the use of the trademark 'Kit Kat'. The IPAB had ruled this one in favour of Nestle being the rightful user of the mark.

Prashant then reported a story carried by the Hindu about a mandate by the All India Council of Technical Education (AICTE) to all the engineering institutes under it to install and use Microsoft Office 365, a productivity suite. Hindu, however, had deviated considerably from accuracy regarding considerable part of the story, when it had referred to this free-of-cost service by Microsoft to be considerably expensive (a clarification was published the next day). Prashant also wondered whether Hindu’s claim of this move driving a nail in the coffin of the open-source movement in these colleges (especially the rural ones) was not exaggerated. Although this was obviously a marketing move by Microsoft, one could scarcely deny its popularity and preference level over open source software in the bulk of the student community in India –nor was this move preventing the students to use open source software themselves if they chose to.

The second set of Spicy Comments arose surrounding the open source v. Microsoft debate, with two of our readers, Sridhar Gautam and Harjodh Singh, being quite vocal to condemn this ‘monopolistic’ action by Microsoft and AICTE facilitating the same.

Aparajita quickly put up a tid-bit story about the Supreme Court having allowed a stay order against the release of Zanjeer 2.0 by Amit Mehra, till the arbitration procedure between the parties (Amit Mehra and Sumeet and Puneet Mehra) becomes complete. The process was directed to be expedited and completed within the next six weeks.

Mathews’ turn came next when he reported the latest updates on the trademark dispute surrounding Darjeeling Lounge, involving ITC Ltd., wherein the IPAB has reverted the matter back to the Trademark Registrar, requiring ITC to file evidence showing why its counter-statement should not be considered time-barred. The IPAB, however, did not look into the merits about whether the mark can be registered or not.

I then followed up with a report of the various media coverage of the DU Copyright controversy, including reports from the Economic Times, the TOI, Hindu (an op-ed by Shamnad himself) and Al-Jazeera, reflecting on various facets of the controversy.

Finally, Prashant has reported just some time back on yet another piece of pharmaceutical legislation in India, wherein Symed Labs Ltd. has sued Glenmark Pharmaceuticals Laboratories before the Delhi High Court for allegedly infringing two of its patents, granted for “Novel intermediates for linezolid and related compounds” and for “A novel process for the preparation of linezolid and related compounds” respectively. Symed has claimed to have found certain compounds in Glenmark’s product which indicate that it has used Symed’s patented process, while Glenmark has accused Symed of not informing the court that it was aware of Glenmark manufacturing linezolid since 2005 and that Glenmark was also purchasing the linezolid from Symed as late as 18th April, 2012. Prashant has also pointed out that both these parties have been magnets for patent litigation in the recent past. An interesting point that he’s drawn our attention to is that the recent surge in patent litigation between Indian pharmaceutical companies is a sign of increasing competition between these companies and surprisingly, it is the smaller companies which are more aggressive in suing for patent infringement.

International Developments:

In the international arena, WIPO has successfully come up with a revised version of the Text on Traditional Knowledge Protection on the last day of the 24th session of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), which met from 22-26 April, 2013. The text is due to be transmitted to the WIPO General Assembly in September, 2013. There still remain a few kinks in the text to be smoothed out, though, judging from the reaction of the delegates.

The Organization for an International Geographical Indications Network (oriGIn), a producers’ group lobbying in favour of GI, has issued a preliminary list of candidate GIs in the United States, just ahead of a the WIPO Working Group on the Development of the Lisbon System meeting. The list takes a particular look at American wines and includes Michigan apples, Idaho potatoes, Louisiana shrimp, Wisconsin ginseng, and North American wild blueberries (specifically a type found in Maine), Wisconsin cheese, and Florida oranges.

An unfortunate development indicates that the participation of indigenous peoples at the United Nations World Intellectual Property Organization has become compromised as the voluntary fund allowing the organisation to invite indigenous peoples representatives is reaching the end of its financial tether. The fund was created in 2005 to support the participation of indigenous peoples’ representatives and has benefitted from different contributors including Australia, the Christensen Fund, France, Norway, South Africa, and Switzerland. However, beyond IGC 24, there appears to be no longer sufficient funding to cover the participation of any indigenous representative to any future session of the IGC.

In a fascinating turn of events, WIPO is making moves to demystify 3D printing technology, with experts being asked to discuss about its potential and limits in a panel discussion. On April 25, 2013, the WIPO building hosted a uncommon display of surprising objects, including a foldable seat made of plastic that once folded vaguely resembles an umbrella, a pair of improbable antique lace high heels plastic shoes, and a collection of equally strange items, all of which were made with 3D printing technology.

Apple has meanwhile won a court ruling that it hasn’t infringed patent claims brought by IP licensing firm Golden Bridge Technology Inc. in the matter of Golden Bridge Technology Inc. v. AT&T Inc., in the US District Court of Delaware.

Finally, in the latest oral hearing before the US Supreme Court in the matter of Association for Molecular Pathology v. Myriad Genetics, while the consensus appeared to be prevailing against gene patenting, yet there were also indications that the court might issue a narrow decision which would allow several instances of such patenting. In case of such a development, the US regime would inch closer to other jurisdictions relating to this issue, although problems limiting patent rights in order to protect the public interest will continue to plague US.

That’s all for this week, folks! See you on the first weekend of May with yet another set of interesting IP developments locally and globally!

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Guest Post: A look at the new notice and takedown regime under the Copyright Rules, 2013

Chaitanya, a Stanford law student, who has previously blogged for us over here, has written for us this very interesting post analysing the safe-harbour provision under the Copyright (Amendment) Act, 2012, the Copyright Rules, 2013 and has also contrasted it to the safe harbour provisions under the DMCA in American law. As Chaitanya concludes, it is a pity that the Government lost this opportunity to firm up the safe harbour provision for intermediaries especially since the point is being intensely litigated in various judicial forums across the country. 

A look at the new notice and takedown regime under the Copyright Rules, 2013

By, Chaitanya Ramachandran  

The Copyright (Amendment) Act 2012 (available here) introduced “safe harbours” for Internet intermediaries through the new ss.52(1)(b) and (c). Both clauses limit the liability of intermediaries with respect to the “transient or incidental storage of a work or performance”, which I shall call “transient copies” for brevity. Clause (b) protects ISPs, cable/DTH providers and the like, while clause (c) protects “information intermediaries” such as Google, YouTube, or any other entity providing “electronic links, access or integration”.

In this post, I analyze Rule 75 of the Copyright Rules, 2013 (available here), which fleshes out the notice and takedown process under clause (c). I first assess Rule 75’s scope and interaction with its parent section, and then make some broader points about the scope and significance of the new s.52 safe harbours.

I. Rule 75:  A house built on sand

Section 52(1)(c) provides that the making of transient copies by information intermediaries is not copyright infringement if two conditions are met:

(1) The copyright holder has not expressly prohibited the intermediary’s provision of the “links, access, or integration”; and

(2) The intermediary has neither actual nor “red flag” knowledge that the transient storage is of an infringing copy.

The basis for the notice and takedown process is contained in the proviso to clause (c) – it allows the holder to deliver a written complaint to the intermediary alleging that its transient storage is an infringement, in which case the intermediary must block access to the content until the complainant obtains a court order restraining the intermediary from providing. If such an order is not obtained within 21 days, the intermediary may restore access to the transient copy.

On close reading, it becomes apparent that this seemingly straightforward provision is beset with ambiguities:

1) What does “transient or incidental storage” mean? Is it a reference to caching, or does it have a broader meaning? What is the threshold below which a copy is “transient or incidental” as opposed to “normal”? This term is a strong candidate for semantic wrangling in litigation, but I haven’t found a definition for it in the Act.

2) What triggers the notice and takedown process – the fact that the underlying copy is infringing, or the act of making a transient copy of the underlying work? The latter would seem to vitiate the idea of a safe harbour for transient copies, but the drafting of the provision enables such an interpretation. While the proviso to clause (c) requires the written complaint to indicate that “such transient or incidental storage is an infringement” – which could be read as referring to the act of making a transient copy – condition (2) of clause (c) refers to the intermediary’s knowledge that the underlying copy is infringing. I think that the written complaint should also allege that the underlying copy is infringing – it doesn’t make sense for the copyright holder to allege that the transient copy is infringing, because the safe harbour protects the making of transient copies. Rule 75 accords with my interpretation, so is the ambiguity in clause (c) merely attributable to imprecise drafting?

3) It seems that the copyright holder must merely allege infringement in its written complaint to trigger the takedown. What happens if the allegation is unreasonable, and/or the intermediary has a good faith belief that the copy is not infringing? How is a difference of opinion between the two parties to be mediated?

Given that the parent section is fraught with ambiguities, one can forgive the somewhat skewed nature of Rule 75, which, in setting out the notice and takedown process in detail, gives considerable power to intermediaries. In essence, a copyright holder may complain in writing to an intermediary with details of (i) the identity of the work, (ii) its ownership of the work, (iii) the fact that the underlying copy is infringing and is not a permitted use under s.52 or otherwise, (iv) the location of storage, and (v) the uploader, if known. The copyright holder must undertake to file an infringement suit within 21 days of the notice. While clause (c) permits only the “owner of copyright” to deliver a written complaint, Rule 75 appears to extend the power to do so to exclusive licensees as well.

More notably, Rule 75(3) requires the intermediary to take down the work within 36 hours of receipt of the complaint only if it is satisfied that the copy is infringing. Presumably, if it is not satisfied, it doesn’t have to take down the work. Can the intermediary always refuse to take down the work citing dissatisfaction with the complaint? Or would the complaint itself constitute “red flag” or actual knowledge that the work is infringing, therefore making the intermediary’s satisfaction irrelevant when read with clause (c)? I subscribe to the first interpretation as it is more consistent with clause (c), but recognize that it gives the intermediary virtually unchecked discretion in the notice and takedown process.

 If the work is taken down, the intermediary must display a notice to persons trying to access it. If no court order is obtained within 21 days, the work may be put up again, and the intermediary may ignore future complaints regarding the same work.

II. Are the s.52 safe harbours truly safe?

To put the s.52 safe harbours into perspective, let us compare them with their U.S. counterparts – the DMCA safe harbours in §512 of the US Copyright Act. There are four §512 safe harbours for intermediaries, each directed at a specific intermediary activity. So intermediaries must meet different conditions to be exempted from liability for damages for (i) transmission, (ii)  “intermediate and temporary storage”, i.e. caching, (iii) storage of works at the direction of users, and (iv) provision of links or search facilities. §512 protects a much broader range of intermediary activities than the s.52 safe harbours. Although clauses (b) and (c) refer to the intermediary activities of transmission and provision of links/search, the safe harbours don’t fully protect these activities – they only protect the making of transient copiespursuant to such activities. So the scope of the s.52 safe harbours is extremely limited. One wonders why protection has not been extended beyond the making of transient copies. Presumably, even if the intermediary meets the safe harbour requirements for transient copies, it can still be held secondarily liable for the storage of the underlying works or the provision of information services pointing to those works. And given that the broader safe harbours under the IT Act do not apply to copyright infringement, it seems like the s.52 safe harbours represent another missed opportunity to create a fair safe harbour for intermediaries that appropriately balances their interests against those of copyright holders.

Though the notice and takedown process under §512(c) gives copyright holders a strong advantage, it is considerably more detailed (and less ambiguous) than the Rule 75 process. The key difference in §512 is that the intermediary must always take down the allegedly infringing work, unless it receives a “counter-notice” from the uploader alleging that the work was taken down by mistake or due to misidentification. This benefits the copyright holder because its complaint is not subject to gatekeeping by the intermediary, but this advantage is offset by the imposition of a strict 14-day deadline for the filing of a lawsuit. It also allows the uploader to participate in the notice and takedown process. So, while §512 creates a robust safe harbour for intermediaries and counterbalances it by giving copyright holders strong power to demand takedowns, s.52 goes in the opposite direction by creating a weak safe harbour and giving intermediaries the final say on takedowns.

In sum, the s.52 safe harbours are only a token nod to the interests of intermediaries, and their failure to provide more substantial protections means that Indian intermediary liability law is back to square one. Rule 75 appears to offset the weak position of intermediaries by giving them the power not to act on complaints from copyright holders. The end result is that no one is really better off. Intermediaries are not sufficiently protected from liability, and copyright holders can do little more than hope that their written complaints will be acted upon. So it may already be time to go back to the drawing board on intermediary liability rules.

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The patent litigation bug bites Indian pharma companies: Symed sues Glenmark

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In a sign of yet more litigation between Indian pharmaceutical companies, the Hyderabad based Symed Labs Ltd., represented by Fidus Law Chambers has sued the Mumbai based Glenmark Pharmaceuticals Laboratories before the Delhi High Court for allegedly infringing two of its patents: 213062 & 213063. The ‘062 patent was granted for “Novel intermediates for linezolid and related compounds” while the ‘063 patent was granted for “A novel process for the preparation of linezolid and related compounds”. 

Incidentally, both these patents were also the subject of two different patent infringement lawsuits filed by Symed against Optimus Pharma Pvt. Ltd on July 3, 2012 and against Sharon Bio-Medicine on July, 13, 2012. The Delhi High Court had granted interim injunctions in both cases restraining Optimus Pharma Pvt. Ltd. and Sharon Medicine from infringing the patents in question. Rajiv had written a detailed post on the Optimus lawsuit over here and I recommend reading it. 

In the present case, Glenmark had already filed caveats before the Delhi High Court in anticipation of the lawsuit and was thus present before the Court on the first day of hearing, pre-empting any interim injunction orders. Justice Rajiv Sahai Endlaw, declined to grant an ex-parte interim injunction and has posted the matter for further hearing on May 29th, 2012 after Glenmark has filed its replies to Symed’s application. 

From a reading of the order available over here, Symed has claimed to have found certain compounds in Glenmark’s product which indicate that it has used Symed’s patented process. Glenmark for its part has accused Symed of not informing the court that it was aware of Glenmark manufacturing linezolid since 2005 and that Glenmark was also purchasing the linezolid from Symed as late as 18th April, 2012. 

In this backdrop, it is interesting to note, that both Symed and Glenmark have been magnets for patent litigation in the recent past. Apart from the suit filed by Symed against Optimus and Sharon Biosciences in 2012, Symed was itself sued, in 2011, for patent infringement by Vifor International, a European company, for infringement of patent no. 221536, which was granted for “Water soluble iron carbohydrate complex and a process for producing water soluble iron carbohydrate complex”. At the time Symed had been at the receiving end of an ex-parte interim injunction from the Delhi High Court and we had blogged about the same over here. As for Glenmark, it has been at the receiving end of a patent infringement lawsuit filed by Merck for the infringement of its patents covering Januvia. Madhulika had written a post covering the case against Glenmark over here. 

Apart from these lawsuits, there was also the patent litigation between two other Indian pharmaceutical companies, Issar Pharmaceuticals and Ind-Swift, which we had blogged about over here. The increasing patent litigation between Indian pharmaceutical companies, is a sign of increasing competition between pharmaceutical companies and surprisingly it is the smaller companies which are more aggressive in suing for patent infringement. 

All in all, it’s a good time to be a patent lawyer in India.

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DU Copyright Controversy continues: Media joins the Fray

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The readers of Spicy IP may be interested to know of the manner in which what had started off as a brief spark in the Indian copyright scenario is fast being stoked into a raging fire all over the country and beyond. No prize for guessing as such, I am of course referring to the Delhi University photocopy controversy. On the off-chance that a reader is getting to know of the incident for the first time, the previous posts describing the various nuances of the matter can be found here. While browsing through the mainstream media reports of this incident and all the surrounding developments, four pieces have caught the attention of the Spicy IP team and the salient points of each are briefly discussed in this post.


The first one is a piece by Debika Ray in Al-Jazeera, which opens, perhaps befittingly, with a touch of Shakespearean tragedy: “To photocopy or not to photocopy university course material - that's the Hamletian dilemma many students are now confronted with in India.” It reported the publishers’ claim that the practice of photocopying relevant portions of books by students and/or creation of course materials by compilation of photocopied materials not only amount to copyright violation, but also leads to lose of revenue and royalty to publishers and authors respectively. Manas Saikia, managing director of publisher CUP India, went on record saying, "Where course packs are available, our books stop selling - even libraries stop buying multiple copies."


However, as Ms. Ray reported, the claim of the publishers to be representing the authors’ interest in this matter suffered from a setback when more than 300 leading academics and authors, 33 of whom were mentioned in the lawsuit, sent a letter to the publishers demanding abandonment of the legal action. The article also mentioned Amartya Sen having penned a similar letter urging the publishers to reconsider their court action last year.


Academics from a wide range of nations, such as the UK, the US, Australia, France, South Africa, Argentina, Egypt, and even the occupied Palestinian territories, had been interviewed by the author and the general consensus that emerged from such interviews is that the academics do not believe that the publishers are representing their interests, especially when many of the academics opine that such kind of photocopying is within the law, that it is not causing the publishers to lose money, and that it is an essential part of education in developing countries like India, for which the authors are willing to expect a lesser royalty in return of a wider audience. The living expenses of the authors were argued to being met by the publicly funded university system and not royalty in the Indian scenario. On the other hand, most academics seemed to think that the publishers are being motivated by the notion of personal monetary profit to carry on this crusade of theirs. Shamnad himself was interviewed by Ms. Ray on this matter and he was quick to point out that the course packs definitely fall under the exceptions of fair dealing and/or reproduction by teacher/pupil in course of instruction, as per the Copyright Act. Since the reprographics shop in question was producing the course packs under an agreement with the university, rather than for its own profit (as per the publishers’ claim), the arrangement certainly did not amount to copyright infringement.


Most of the supporters of the course-pack system rightly point out that an abolition of the system will have great adverse impact on the education system in India, given the financial background of many a meritorious student and the high cover price of the books. Even if the course packs are banned, it is unlikely to increase the income stream for the producers, since these students cannot buy the books directly anyway. In an interesting turn of events, the Delhi High Court has already admitted a student group named the Association of Students for Equitable Access to Knowledge, as a party to the lawsuit, after the group filed a petition explaining students' stake in the outcome. The faculty members might follow suit soon. So far, the High Court’s interim order to clamp down on the course-packs and photocopying has already generated a crisis for the DU students, who have very few viable options left to prepare for their examinations, given the huge number of students and the few number of copies of books that the University library hosts.


While it is true that the global publishing industry is currently undergoing a financial crisis, which may be prompting the publishers to seek to secure an income stream in a country as populous as India, some believe that what they are really seeking is the establishment of a new system under which institutions have to buy licenses for copying, as is in vogue in the UK and Canada. However, though the license rates are naturally kept low in the initial stage, there is no bar to a subsequent hike, which the publishers may effect later on, which makes this a potentially undesirable development. Still, the controversy was at least making academics weigh the relative advantages of open access publishing, instead of catering to the interests of the publishing giants. The article also pointed out a case decision in Costa Rica on November, 2012, wherein students protesting against a law that prescribed jail sentences for IP crimes had won a major victory when the president signed a decree reiterating the exemption on copying for educational purposes.


Next comes the turn of an article in Economic Times, penned by Soma Das and Urmi Goswami. This proved the surmise mentioned above to be right, by reporting that even while the case is pending before the Delhi High Court, the copyright licensing agency, Indian Reprographics Rights Organisation (IRRO) has begun collecting fees from the institutions. It has already asked over 400 colleges across the country to pay up and sign a license to legally photocopy parts of academic books (10% of a book or one chapter) in an in-house framework, with even more colleges to be approached. The tariff plans of IRRO vary according to whether the institute is a government, private or professional one (IRRO's annual plans start from Rs 12,000 for government colleges, Rs 1,44,000 for a private college, and could be even higher for professional colleges). For the small time photocopy shops like the one in the present controversy, which are licensed by universities and which IRRO dubs as a commercial entity, a stupendous a fee starting from Rs 3 lakh per annum or 40% of the annual turnover, has been claimed by IRRO. The CEO of IRRO has informed that institutes such as the Aligarh Muslim University have already acceded, while others like IIM Ahmedabad, Indian Statistical Institute and Jamia Milia Islamia are in “advanced stages of discussion." The question is, whether it is necessary at all to take such a license, since the usage (for educational research) is anyway permitted under the fair dealing clause under the Copyright Act. Not only that, some academics have opined that claiming money for 10% photocopying, especially in a developing country like India, may even be deemed illegal, because even in a developed country like the US, the 10% margin has been accepted as a valid exception to copyright!


Olav Stokkmo, chief executive, IFRRO, has cited a study saying that authors and publishers depend heavily on income from secondary uses (such as course packs) for their continued production and publication of textbooks, although that argument does not seem to wash at least for the authors, since a number of them have already asked the publishers to refrain from this battle, giving their permission for course packs. The academicians have indeed argued before the Delhi High Court that "A photocopier is expressly licensed as an agent of the university to do that which the university is entitled to under the Copyright Act. The terms of the license are clearly laid out including the fee to be charged for such course packs. A number of Indian universities and academic institutions do not have the necessary resources to install an adequate amount of photocopiers to satisfy the requirements of all faculty, students and staff."


Next was the turn of another article covered by Times of India, written by Atul Sethi. Amlan, one of the members of the Spicy IP team, who has been taking an active role in representing the student interest in this controversy, was interviewed and he was confident that this matter was going to be considered as one of the most important one in the student community in India and across the world in terms of its impact. This article also refers to the fair use exception under the Copyright Act. It also presented the publishers’ view, which is apparently, dubbing the course-pack system as commercial exploitation and piracy instead of educational fair use, all in the name of protecting the rights of the content creators and publishers, as was voiced by Sudhir Malhotra, president of the Federation of Indian Publishers (FIP). FIP has already gone on record supporting IRRO’s licensing scheme. However, apart from the legislative exception of fair use, there is also the question that since IRRO is not the sole copyright holder for all the titles being used by an educational institute, it cannot therefore technically offer a blanket licence and hence the universities will then be forced to get multiple licenses if they once accept the mandatory nature of the same, which was again something rightly pointed out by Shamnad himself.


Last, but not the least, comes the turn of an op-ed authored by Shamnad in The Hindu, wherein he’s meticulously delineated the nature of the entire controversy, including clarifications of what exactly course packs constitute (“compilations of limited excerpts from copyrighted books, put together painstakingly by faculty members in accordance with a carefully designed syllabus and teaching plan”, the concept of fair use in India under Section 52(1)(a) of the Copyright Act, the 10% reproduction limit in the US, the reason why India should at least allow a 30% corresponding limit (including the developing nature of economy and the legislative intention to exempt core aspects of education from the private sphere of copyright infringement), and the dangers of allowing the licensing regime that IRRO is prescribing at present etc., among other things.


He also points out how these exceptions have gradually started earning the nomenclature of “rights” accruing in favour of beneficiaries such as students, in decisions like the CCH Canadian Ltd. v. Law Society of Upper Canada. The public interest perspective and its significance in deciding IP cases, were also highlighted by the judge in the current controversy itself, when he allowed an association of students and academics as parties to the lawsuit, so that they could help the court arrive at a robust interpretation of the copyright exceptions.


Shamnad has gone on to opine that the rather wide language of Section 52(1)(i) may even allow the institutions to presume that the creation of course packs and related educational material is legal, until a court holds otherwise. He further points out that the one of the good results of the current controversy is that it has allowed the advantages of alternative open access models to be reexamined in the context of academic publishing industry. In this relation, he has highlighted the pricing of majority of educational textbooks much above the affordability range of an average Indian student and referred to an empirical study revealing that a vast majority of popular legal and social science titles have no corresponding Indian editions and need to be purchased at rates equivalent to or higher than in the West.


Finally, he also raises the question as to whether the publishers’ claim of the course packs ending up destroying the market for books can be considered seriously, especially given the fact that this is the first time in Indian publishing history that the producers are raising such a complaint! On the contrary, he believes, “the inclusion of extracts of copyrighted works in the course packs is likely to encourage readers to buy the books when they can afford them.”


Well, all in all, one can only say for sure that no matter what the court finally decided in this case, this is going to be a raging issue for quite a while to come, given it has so much at stake, both from the students’ and academicians’ side as well as the publishers (albeit the fact profit margin may not be a sufficient motivator in the long run as opposed to right to education, so to speak).

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SPICY IP TIDBIT: IPAB reverts “DARJEELING LOUNGE” matter to Registrar

Background

ITC Limited, the appellant, applied for the mark “DARJEELING LOUNGE” which was advertised on 07.02.2005.  Notice of opposition was served on the appellant on 22.12.2005 (which is disputed) by the Tea Board (the respondent).  The appellant filed the counter statement on 08.03.2006.  Observing that the notice of opposition was served on the appellant on 22.12.2005, the deputy Registrar held that the counter statement was filed beyond the statutory period. Further, as per the impugned order, notice was served vide letter dated 01.08.2008 to show cause why time-barred counter statement should be taken on record. There was no reply. Also, when hearing was fixed on 11.12.2008, no one appeared on behalf of the appellants to show cause why there was a delay in filing the counter statement. Therefore, an order treating the counter statement filed on 08.03.2006 as time barred and abandoning the application in Class 42 was passed after hearing Tea Board (the respondent) and the pleadings. The aforesaid order was challenged before IPAB.

Order

The appellant contended that it did not receive the notice of hearing. Accepting the contention, IPAB gave the benefit of doubt to the appellant for their absence on 11.12.2008. The appellant contended that it received the notice of opposition only on 10.01.2006 and not 22.12.2005 and therefore, the counter statement filed on 08.03.2006 was not time barred. IPAB vide Order dated 5.4.2013 reverted the matter back to the Registrar holding that the appellant shall prove by satisfactory evidence the receipt of notice of opposition on 10.01.2006.  The Registrar can pass appropriate orders thereafter. 

It is to be noted that IPAB did not examine the merits of the dispute i.e whether the mark is registrable or not. The Registrar was asked to send notices to the parties and decide the matter within 4 months from the date of receipt of the order.       

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SpicyIP Tidbit: SC stays release of Zanjeer 2.0

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As blogged about here, the Bombay HC had allowed Amit Mehra to go ahead with the production and release of the remade Zanjeer. Against this order, an SLP was filed by Sumeet and Puneet Mehra. Yesterday, the Supreme Court ordered a stay on the release of the film. It appears from this report, that the order of stay will continue till the arbitration between the two parties is completed. The court also directed the arbitrator to expedite the arbitration so as to complete it within the next six weeks.

We will bring you more updates on this copyright controversy soon. 

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Hindu-Microsoft spar over AICTE story

Earlier this week, Hindu reported on how “Come June 30, over 80 lakh college students all over India would have little choice but to use Microsoft Office 365 in their college computers, locked by a government contract that may well be more expensive than the use of an open source equivalent in the long run.” 

The report then claimed “The decision by the All India Council of Technical Education (AICTE) will limit engineering students to a particular product at a time when their exposure should be widened, say experts. It also forces college administrations to adopt one technology instead of giving them the flexibility to install whatever suits their students’ needs best, they said.” 

The report also claims that “Open-source software such as Linux has become popular among college students in recent times as its zero-cost approach promotes inclusivity” and quotes a faculty member of a Bangalore college, complaining that the use of Office 365 would limit students to Microsoft’s perspective and “stand in the way of serious open-source research in rural colleges”. 

It turns out that the Hindu got a substantial portion of its story wrong. In a clarification published in the Hindu the next day, Microsoft clarifies that there is no question of the service being more expensive since it was a free of cost service. The remaining clarification points out to other inaccuracies in the Hindu story. 

Apart from the obviously poor reporting by the Hindu, there is the issue of whether AICTE should be issuing such standards. 

Honestly, I don’t see what the big fuss is about. The AICTE clearly has the power to mandate minimum standards for colleges and if the software is for free, I don’t see the problem. Whether the open source community likes it or not, Microsoft software is way more popular in this country than open source software. I really don’t think the adoption of Microsoft Office 365 will interfere with “serious open-source research in rural colleges”. Besides, I’m not quite sure how adopting a cloud computing service would affect the ability of students to experiment with Open Source software like Linux. AICTE has not barred anybody from using Open Source software in addition.

Earlier the Open Source community had a problem when Microsoft used to price their products expensively and now they have a problem when Microsoft offers their products for free. 

So why exactly is Microsoft doing this – probably a marketing move – catch them while they are young so they use your products when they graduate and start working – it’s a smart move. Of course, that presuming that a majority of Indian colleges have computers and the electricity that goes along with the computers.

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