World Intellectual Property Day 2023: Understanding IP, Significance, How to apply

 World Intellectual Property Day is observed on April 26th every year to celebrate the importance of intellectual property rights (IPR) and the contributions that innovation and creativity make towards economic and social development.

The day was established by the World Intellectual Property Organisation (WIPO) in 2000 to raise awareness about the role of intellectual property (IP) in encouraging innovation and creativity and to promote a better understanding of the importance of IP rights.

What is Intellectual Property (IP)?

Intellectual property (IP) refers to creations of the mind, such as inventions, literary and artistic works, symbols, designs, and names used in commerce, for which exclusive rights are recognised.

Intellectual property rights (IPRs) allow creators or owners to have control over the use of their creations for a certain period of time. Examples of IPRs include patents, trademarks, copyrights, and trade secrets. Let’s take a look at some of these:

• Patents are exclusive rights granted to inventors for a limited time period, allowing them to prevent others from making, using, or selling their inventions without their permission.
  
• Trademarks are distinctive signs or symbols that identify products or services and their source.

• Copyrights are exclusive rights granted to creators of original works of authorship, such as literary, musical, or artistic works.
  
• Trade secrets comprise confidential information that gives businesses a competitive advantage and can include formulas, patterns, or processes that are not generally known.

Intellectual property plays an important role in promoting innovation and creativity by providing incentives for inventors and creators to invest time and resources in their work. However, it can also be a source of controversy and legal disputes, particularly in the digital age where it can be difficult to enforce and protect IP rights.

World Intellectual Property Day 2023: Significance

The significance of World Intellectual Property Day lies in its ability to highlight the crucial role played by IP in promoting innovation, creativity, and economic growth. Intellectual property rights are essential to encourage innovation, investment in research and development, and the creation of new products and services. They provide incentives for individuals and companies to invest in the development of new ideas, technologies, and artistic works.

Furthermore, World Intellectual Property Day provides an opportunity to raise awareness about the importance of respecting IP rights and to encourage individuals and organisations to protect the IP of others.

It also serves as a platform to showcase the importance of intellectual property in various fields such as medicine, art, music, literature, technology, and business.

How to apply for Intellectual property rights (IPRs) in India

To apply for IPRs in India, here’s what you need to do:

1. Identify the type of IPR you want to apply for.
2. Conduct a search to ensure that your creation is unique and does not infringe upon any existing IPR.
3. Prepare the application in the prescribed format along with the relevant supporting documents.
4. Submit the application to the relevant authority, such as the Indian Patent Office, the Trademark Registry, or the Copyright Office.
5. Pay the necessary fees for the application.
6. Wait for the examination process to be completed, and if there are no objections or oppositions, your IPR will be granted.

It is advisable to seek the help of a qualified and experienced attorney to assist you in the IPR application process to ensure that you do not face any legal issues in the future.

The importance and the very existence of World Intellectual Property Day lies in its ability to raise awareness about the importance of intellectual property rights, promote innovation and creativity, and encourage the respect and protection of IP rights. So, let World Intellectual Property Day 2023 serve as a reminder to you to go file that IP and make the most of what is your own.

Source: The Telegraph, 26/04/23

It’s time to chuck old copyright rules

 We should adapt our laws to new realities so that they can serve their intended purpose better

Prince Rogers Nelson was arguably the finest musician of his generation. More widely known by just his first name, he was a singer-songwriter who was effortlessly proficient in a wide range of musical instruments than should have been possible. He died on 21 April 2016 and was mourned by all—from US President Barack Obama to the cast of Hamilton—and buildings around the world coloured themselves purple for a night.

Within a year of his death, the Pantone Colour Institute created a brand new shade of purple called Love Symbol #2 in his memory. His estate immediately tried to secure the rights to it, so that no one else could use that specific shade of purple at concerts. In doing so, it looked to join a long line of entities that have done what was previously believed to be impossible—claim exclusive rights over the use of a colour.

We may not know it, but a number of companies already have exclusive rights over colours closely identified with their brands. UPS has a trademark over the shade of brown its delivery vans are coloured with, 3M for the unmistakeable Post-It yellow, Fiskars for the orange of its scissor handles and T-Mobile for the magenta of its logo. And they vigorously prosecute violations of their trademarks. Mattel sued MCA Records for the use of its trademarked pink colour on the music video artwork for Barbie Girl by Aqua. Christian Louboutin sued rival Yves Saint Laurent to prevent the latter from infringing its trademark red shoe soles.

You don’t need to be an intellectual property lawyer to realize just how self-destructive this can become. There are only so many colours and we will run out of shades long before we run out of companies that want them. But even before that, brands will lay claim to shades so similar to each other that no one will be able to tell them apart.

To me, this is just another example of how the boundaries of intellectual property protection are being stretched beyond their tolerance limits.

Take a look at what is happening in copyright law. Successive extensions of copyright terms have allowed royalties to be collected on the use of Mickey Mouse well beyond the period of 56 years that was the original entitlement based on when the character was first created. Mickey Mouse will finally come into the public domain on 1 January 2024—unless copyright law is further amended before that. Even the rights to Happy Birthday lie in corporate hands, earning them approximately $2 million a year in royalties each time the song was used in a movie, TV show or advertisement. Until, that was, a federal judge in the US invalidated its claim on the grounds that copyright to the song’s lyrics had never been validly transferred in the first place.

Patents were originally conceptualized as a way to offer inventors an incentive to invest in research and development—particularly in areas with a historically low strike rate of success. Unfortunately, instead of encouraging research into new molecules, it made pharmaceutical companies divert considerable resources into finding ways to extend the validity of existing blockbuster drugs—long beyond the original term of their patents over it. What’s worse, thanks to the one-size-fits-all nature of patent protection, all inventions are entitled to the same duration of protection—whether they took a lifetime to invent or are simple software innovations that are rolled out every six months or so with very little effort.

Intellectual property laws were supposed to encourage creativity, promote innovation and protect brand value. They did this by creating artificial monopolies that allowed holders of exclusive rights to monetize their artistic creations and inventions and ensure that no one else profits unfairly by passing their products off under brands other than what they themselves have built their reputations on for decades. Monopolies, however, are inherently unfair, and if we are not careful, what was intended to protect artists and inventors will enable aggregators, publishers and large corporate entities to preserve their entrenched positions.

Thankfully, India has for the most part refrained from going down the path taken by the US. You cannot, for instance, claim trademark rights over a colour in India, unless it is associated with a registered mark. And while it is true that the term of copyright law has been extended from time to time in India, this has largely been in order to stay in conformity with what other countries have been doing. While more than a few software patents have been granted in India, our patent office sets standards far higher than those applied in the US. To its credit, it has held firm against attempts to ‘evergreen’ existing patents, despite strong pressure brought to bear by Big Pharma.

The time has come to re-evaluate how intangible property should be protected today. We should not be afraid to discard laws and legal frameworks that are no longer relevant in the light of modern technologies and commercial realities, even if they might have made sense when they were first enacted. Where necessary, we should not shy away from creating new classes of intellectual property designed to protect software and digital technologies, instead of trying to force-fit them into pigeonholes that were never intended to accommodate their contours. Above all, we need to ensure that temporary protections introduced to offer an incentive for artistic, intellectual and commercial endeavours are not, whether by oversight or design, made permanent.

Rahul Matthan is a partner at Trilegal and also has a podcast by the name Ex Machina.

Source: Mintepaper, 3/08/22

Right to Research (“R2R”): An Independent Right with an Imposed Dependence in Copyright Law?

 Lokesh Vyas writes in with a post pondering the existence of a ‘right to research’ (r2r) in India. The query around r2r in general is not a new one – see for example Appadurai’s widely cited 2006 paper by the same name, or SPARC’s Coalition formed back in 2009. Lokesh attempts to find grounding for it in Indian law through the current post. He is an LLM Candidate (IP and Technology) at American University Washington College of Law (AUWCL), InfoJustice Fellow at PIJIP, and Arodhum Scholar, 2021. He graduated from the Institute of Law Nirma University, Ahmedabad in 2021

Right to Research (“R2R”): An Independent Right with an Imposed Dependence in Copyright Law?

Lokesh Vyas

Several academics and activists in some other parts of the world are discussing a ‘Right to Research’ (“R2R”) (American University’s PIJIP – my current institution is doing one such plethoric project in the light of international copyright laws) which is indeed needed to combat covid-created calamities (e.g. read Prof Sean Flynn’s paper). However, I wonder whether India is witnessing similar discussions. Undoubtedly, issues around research (including access, inequitable participation, excessive pricing) are not novel in India. In recent times, we’ve seen it come up during the DU Photocopy battle as well as in the Sci-Hub controversy (read Nikhil’s three-part post (Part I, Part II, Part III). However, a full-fledged discussion around whether a ‘Right to Research’ exists in India, whether it be internal, or external to Copyright laws seems largely absent.

If we imagine what an R2R could be, it need not necessarily stem from copyright law, nor does it appear to be only limited to people’s right to access research material. Scope-wise, it’s not necessarily limited to researchers, even if they are the ones who are obviously affected by it. Rather, I will attempt to frame it as a constitutional right with a strong footing in international human rights law. I argue that R2R can have four possible premises – 1.) a right under the constitution 2.) a user right under copyright law. 3.) privilege under copyright law. 4.) an exception under copyright law. I specifically support the first (constitutional right) and the third (privilege under copyright, in terms of Hohfeld taxonomy) premises. (Per Hohfeld Taxonomy, if ‘right’ to research is regarded as a privilege, no duty will lie in the users and no-right will exist in copyright holders.)

I divide the post into two main parts – the first part argues that ‘research’, although provided for in Indian Copyright law, runs on the premise of a baseless assumption of access by users, making it an incomplete and impractical user right. The second part highlights the constitutional and international law framework of R2R and attempts to establish its existence outside copyright law. 

(Note: 1. This post is limited to ‘research’, but it may be an interesting thought exercise to consider other fair dealing activities as a privilege. 2. Since the topic requires a full-fledged research paper with detailed arguments, the post only touches upon the constitutional and international law aspects to show that there is a strong logico-legal case worth investigating, for the R2R in India.) 

India’s Presumed-Access Research Right!

Section 14 of Indian Copyright law provides an exhaustive list of rights owned by the copyright holders, with a disclaimer that they are “subject to the provisions of this Act”. One relevant provision in this regard is Section 52 which reads ‘​​Certain acts not to be an infringement of copyright’. Specifically, Section 52(1)(a)(i) that reads “a fair dealing with a literary, .. for the purposes of— 1[(i) Private use including research”, is relevant for researchers. A conjoint reading of Section 14 and Section 52(1)(a)(i) suggests that copyrights cannot be an impediment for private research (although there is an arguable case for its expansion to public research, see comments here). However, this does not happen in reality, because access, which is a prerequisite for research, is controlled by copyright owners. It is worth noting that although copyright holders control the access of the works’, this control of access does not come from Section 14. Given Section 16 which restricts the interpretation of copyrights to the statute, Section 14’s interpretation cannot be expanded beyond the literal framings within the statute. 

[Separately, if rights conferred under the Copyright Act ARE SUBJECT to other provisions including Section 52 which lays down non-infringing activities, then why should research be regarded as an exception to copyright (for e.g. See Para 19, here) and not vice versa!]

One way to control access, (though not as a right) comes from Section 65A (read more here), dealing with technological protection measures (TPM), which are covered by the concept of paracopyright (see also here). But as per the statute, TPMs can be circumvented for ‘a purpose not expressly prohibited by the Act’, taking us back to Section 52(1)(a)(i). Regardless of how benign the idea was to make it adaptable to Section 52, circumventing a TPM demands technical expertise which cannot be always expected from a researcher. In simple words, Copyright Act, 1957 permission allowing access  to research works protected by TPMs works only if one is a technically able researcher.

Doesn’t this look like a scenario where access is either assumed or overlooked? Worse, if research is a right under copyright law, regardless of how impractical it is, it would most likely be shown (and seen) to be pitted against copyright holders because rights/interests in the same statute are often thought to require a ‘balance’, i.e. treated as opposing forces (though indirectly, it speaks of IP Internalism, see here). Thus, when the question reaches the court, the Judge would apply a balancing test (the balance between author rights and users’ rights) to ensure that both parties’ interests are protected. But it runs with a presumption that protecting parties’ interests would automatically (or ultimately) endorse the public policy goals of copyright law (see the relevant discussions of Parliamentary Debates on Copyright law at pages (of the uploaded file) 124, 136, 196, 351 especially the statements of Mr. Kishan Chand). 

‘Balance’ is nothing but a mystical metaphor of (over)simplifying issues with an assumption that all the background work has been done (see for e.g. here). Moreover, from whose perspective, is the balance seen? This ballad of balance makes a bizarre impression that users and copyright holders have antagonistic interests, like a zero-sum game. But doesn’t this contradict the fundamental goal of copyright law which hinges on the harmony between users and creators​​ (where users and creators are not necessarily different) with an aim to foster knowledge and enhance it by maximizing people’s participation in a creative activity? I think, yes, it does.

Tellingly, giving people a right to research which presumes access, is equivalent to expecting every researcher to have institutional access to research, as well as assuming that institutions actually have the necessary subscriptions to all journals. This is in essence making research contingent on the economic capability of an individual. Further, if access is available, the accessor can anyways make use of the work and the researcher would be treated like any other consumer. In its current form, it is just a theoretical right, playing the role of a paper tiger with no real-life benefits

Right to Research (R2R) – An Independent Right?

As per the OHCHR, states have a duty of respecting, protecting, and promoting the rights of people to undertake and access research, and this is core to actualizing many fundamental human rights. These rights include the right to science and culture (Art. 27, UDHR & Art. 15, ICESCR), right to expressions (Art 19 UDHR & Art 19, ICCPR), and right to development (declaration and supporting treaties), right to education (Art. 23, UDHR & Article 13, ICESCR). Further, there are rights that are derived and deciphered from the above rights such as the right to read, right to knowledge, right to information, right to think/learn, right to academic freedom, right to be creative. Hence, an R2R is just a derivative of these extant rights (especially the right to science and culture) which does not owe any recognition in copyright law. Interestingly, these rights have later  found a place in the Indian Constitution. 

‘Research’ literally suggests a close intellectual engagement with something, thus, it necessarily involves the faculties of reading, thinking, examining, which ultimately adds value to the personality of an individual. Given such a relationship of research with overall individual development, R2R draws credence from Part III and Part IV of the Indian Constitution. Under part III, R2R gains support from Article 21 [Right to Life] and Article 19(1)(a) [freedom of expression]. 

In 1966, in Rabinder Nath Malik v The Regional Passport Officer, the Delhi High Court noted that the scope of Article 21 includes “a right to acquire useful knowledge,”. Similarly, in 1980, the Supreme Court of India in Francis Coralie Mullin v The Administrator, Union Territory of Delhi, (dealing with a right of a detenu under COFEPOSA Act) noted that “… the right to life includes the right to live with human dignity and all that goes along with it, namely, … facilities for reading, writing and expressing one-self in diverse forms…”. Highlighting the importance of giving a broad interpretation to fundamental rights especially Art 21, the Court went on to say that “Every limb or faculty through which life is enjoyed is thus protected by Article 21 … include the faculties of thinking and feeling”. Further, in Samatha v State of UP, while mentioning the right to development as a fundamental right, the Supreme Court included the fulfillment of the “social, cultural and intellectual” needs under Art. 21. I would argue that this can be used to bolster the premise for a right to research as well. 

Similarly, in Wiley Eastern Ltd. vs IIM,  the Delhi High Court found the purpose of Section 52 of Copyright Act (specifically mentioning ‘research’ at Para 19) in protecting Article 19(1). Thus, it could be argued that R2R is potentially backed by both Articles 21 and 19 – with Copyright law seeing it as a part of freedom of expression, and the Constitution justifying it as a part of living with human dignity.

Under part IV, a duty is imposed upon the state under Article 39(b) to effectuate that “the ownership and control of the material resources of the community are so distributed as best to subserve the common good”. The term “material resources” is interpreted so broadly that it includes both public and privately owned materials, and a premise for an R2R could be found within this understanding. The inclusion of data under material resources by the Srikrishna Committee (e.g. here) further lends support to the argument that it can include informational goods such as research material within its ambit.

Notably, it can be observed that R2R under the Constitution, if it exists, would tend to focus on overall well-being and the holistic development of an individual. Conversely, Indian Copyright law’s R2R/research exception/limitation appears (at least semantically) to be only concerned with the availability of research material as it seems to already assume (/ignore) access.

Final thoughts – Importance of (Re)Contextualization/Revision 

The framing of R2R within Copyright is not a problematic premise per se. However, it does not do much, and rather limits R2R’s scope and impacts to merely being called a right of the user who (often) is willing to research and needs access to copyrighted content. Such scenarios, by the very policy narrative of balance between private and public interests, are sought to be adjusted with(in) copyrights. Conversely, a constitutional framing of R2R backed by human rights logic would break this binary of ‘copyright owner–users’, making research a right of everyone which can include access to research, contribute to it, and make it available.

This framing can revamp its functioning and simultaneously foster the public interest goals of copyright laws. Such revision/contextualization of R2R would also help courts manifest and understand the (hidden) interrelationships, tensions, and contradictions between various legal concepts, legal problems, and legal arguments such as liberty, economic and social inequalities, property, knowledge governance, contract, free will, which though may be connected with copyright law but do not really stem from or exist within it. As noted in the beginning, this is a very surface level beginning to this conversation. I would welcome readers to write in with their thoughts and critiques. 

Some notable readings – InfoJustice (PIJIP), R2R – Bibliography; Carys Craig, Users rights Rhetoric; M. P. Ram Mohan and Aditya Gupta, Right to Research in India, Jessica Litman, Readers’ Copyright; Julie E. Cohen, Place of users; Jane C Ginsburg, Authors and Users in Copyright law (paywalled); Wesley Newcomb Hohfeld, “Some Fundamental Legal Conceptions as Applied in Judicial Reasoning” and “Fundamental Legal Conceptions as Applied in Judicial Reasoning” (paywalled); J. M. Balkin’s “The Hohfeldian Approach to Law and Semiotics” and “The Promise of Legal Semiotics”.

I would like to thank Prof Sean Flynn and Swaraj Barooah for their inputs on the topic. Thanks to Akshat Agrawal for his comments on the draft.

Source: spicyip.com, 18/01/22

Copyright and Trademark Offences – Bailable or Not?: Bombay HC Also Weighs In

 Recently, the Bombay High Court was faced with a controversial question of law while hearing an anticipatory bail application. The bail application was filed in response to a criminal report registered, inter alia, under Section 63 of the Copyright Act and Section 103 of the Trade Marks Act. The primary issue addressed by the court was whether these offences are bailable in nature or non-bailable. The court ruled on the side of the latter, holding these offences to be non-bailable. In this post, I shall analyse this order and situate it in the context of its implications for free speech in the country.

Background

The above mentioned provisions deal with the infringement of copyright and trademarks respectively. Both of them prescribe a punishment of “not less than six months but which may extend to three years” in addition to the fine. The First Schedule of the Code of Criminal Procedure (‘CrPC’) provides for a three category classification of offences as bailable or non-bailable in accordance with the prescribed punishment. The second category in this classification states that offences “punishable with imprisonment for 3 years, and upwards but not more than 7 years” are non-bailable. The third category, on the other hand, states that offences “punishable with imprisonment for less than 3 years or with fine only” are bailable in nature. As the offences of copyright and trade marks have a maximum possible punishment of 3 years, it has led to a confusion as to which category they will fall under (see earlier posts on the blog here and here for more detailed context). Accordingly, different high courts have reached contrasting conclusions on this. While Andhra Pradesh High Court and Delhi High Court (here and here) have held these offences to be bailable due to the possibility of less than 3 years of punishment, they have been held to be non-bailable by Gauhati High Court, Kerala High Court (here and here), and Rajasthan High Court, in light of the possibility of a 3 year punishment.

The Order

In the proceedings before the Bombay High Court, the State submitted that “this issue is no more res-integra” as different courts have held that offences punishable with up to 3 years of imprisonment are non-bailable in nature. The court sided with this interpretation, by relying upon a series of its earlier decisions dealing with the Prevention of Insults to National Honour Act, 1971, the Prevention of Corruption Act, and the M.R.T.P. Act, 1966, where the classification was decided based on the maximum possible punishment. It also referred to the recent Division Bench decision of the Rajasthan High Court in Nathu Ram v. State of Rajasthan, where on a reference it was held that offences for which imprisonment “may extend to three years” would fall in the second category, and thereby non-bailable and cognizable.

Missed Points

The above assessment of the Bombay High Court selectively considers only authorities supporting the final outcome arrived at by it, and ignoring the authorities that arrive at a contrary result. Two particularly relevant arguments raised in these orders that were not considered by the court are as follows.

First, the decision of the Supreme Court in Rajeev Chaudhary v. State (N.C.T.) of Delhi (‘Rajeev Chaudhary’) has not been addressed. The decision was rendered in the context of Section 167 of the CrPC and the court held that “imprisonment for a term of not less than ten years” will not include the offence of extortion that provides “imprisonment of either description for a term which may extend to ten years”. This has been distinguished by the Delhi High Court by considering that the language of the classification of offences in the First Schedule is “materially different” to the term “not less than” used in Section 167. The Rajasthan High Court similarly distinguished this decision considering it to be “in different context”. This, however, involves a discussion that does not consider the specific wording of the First Schedule. To reiterate, it uses the phrase “punishable with imprisonment for 3 years, and upwards but not more than 7 years.” (emphasis supplied). There is a deliberate use of the term ‘and’ in the classification. This possibly implies that the concerned offence must be punishable for 3 years and above, and not merely 3 years. A different interpretation would render the term ‘and’ redundant. If the view of the courts classifying these intellectual property offences in the second category were correct, then the term ‘and’ would have to be instead read as an ‘or’ which cannot be the case here. Accordingly, if the use of ‘and’ is considered deliberate, this makes the provisions in line with that in Rajeev Chaudhary since the effective interpretation of both provisions is the same. This interpretation should be favoured, as rightly pointed out by the Andhra High Court, in light of the fact that criminal provisions are required to be interpreted strictly.

Second, the Supreme Court decision in Avinash Bhosale v. Union of India has not been discussed. This was rendered in relation to Section 135(1)(ii) of the Customs Act, 1962. It prescribes for a punishment of “imprisonment which may extend to three years” (identical to the intellectual property offences being discussed in this post). The apex court had held this to be a bailable offence. As the language of both the copyright and the trademark offences is identical, this interpretation would squarely apply to them and they must be considered as bailable. A similar view was also taken by the Delhi High Court.

In light of the non-consideration of the above Supreme Court judgments, it appears that the Bombay High Court order might be considered per incuriam and not good law.

Impact on Free Speech

Holding copyright and trademark offences to be cognizable and non-bailable in nature has a significantly high impact on freedom of speech and expression in the country. Six particular issues need consideration in this regards.

Dissuading Creativity

First of all, as Bhavik rightly argues, the essence of copyright law is to spur creativity and facilitate access to works. With the threat of a police arrest and the absence of bail as a right, creators would indulge in self-censorship lest they might need to serve jail time for their actions. This is particularly true in the modern day hostile environment in the country where creators are regularly targeted for their content. Particularly, there has recently been an increase in what are known as SLAPP litigation (‘strategic lawsuit against public participation’) where several cases have been filed against creators such as comedians.

Silencing Criticism

Secondly, this will also lead to suppression in criticism of unfair practices or government’s policies for fear of retaliation. This is because copyright law in the present day is being used as a means of censorship by both private players and the government. The excessive and unreasonable copyright infringement claims raised by WhiteHateJr to shut down all negative comments are an example of the former. The latter can be seen from recent reports hinting towards false invocation of copyright infringement by the Bangladesh government to take down content criticising the government’s functioning. This would, thus, further reduce the already narrowing boundaries of free speech in the country.

Hampering fair use

Thirdly, this would also dissuade carrying out activities which can be covered within the exceptions to the copyright law as provided in Section 52. This is because the determination of whether the concerned activity falls under the exception or not will happen only at a later stage of trial. Until such determination takes place, the threat of being booked under a cognizable, non-bailable offence and thereby the possibility of serving jail time looms large. For instance, consider an individual who runs a photocopying shop in Delhi where they photocopy entirety of books for the aid of students of a nearby university. If a copyright infringement suit is filed against them invoking Section 63, then there is a high probability that they will not be held guilty for the same in light of the D.U. Photocopy judgment. However, until the court rules so, the individual can be potentially arrested and put behind bars without any fault of theirs.

Trademark Bullying

Fourthly, even in context of trademarks, similar concerns persist. As the recent BigBasket-Daily Basket dispute indicates, big players regularly indulge in trademark bullying to drive smaller players out of the market or to make their business suffer. If such measures are resorted to, then legitimate trade mark owners also are exposed to the threats of being booked by a cognizable, non-bailable offence. A determination of whether there was indeed any infringement or not, or even whether the original mark itself is a generic mark and hence not protected, will only take place later during the trial. The situation is worsened by the absence of a consistent principle-based approach taken by Indian courts while dealing with issues such as likelihood of confusion. This further raises the possibility of harassment being suffered by legitimate trade mark owners.

Redundancy of Differentiated Culpability Model

Fifthly, it must be noted that both the legislations provide for differentiated punishment levels in that punishment of less than six months of imprisonment could also be imposed in adequate and special circumstances. The Copyright Act to this end, specifies that a precursor to this is that the “infringement has not been made for gain in the course of trade or business”. Hence, both the legislations envision that certain actions are at a lower level of culpability than others and should be treated liberally. This provision of lesser penalty, however, would become redundant if the offence is considered a cognizable, non-bailable one. This is because in such circumstances the process itself would be highly challenging and excruciating even if the final punishment awarded is minimal. This is because the alleged infringer would need to undergo unreasonable prison time at the whims of the police, thereby probably suffering more than what the punishment would have subjugated them to.

Impact on Vulnerable Groups

Finally, this has special implications for a country like India where the majority of the population is unaware of the functioning of intellectual property legislations. In such a scenario, if police is given unbridled power to arrest individuals without warrant and if bail for the same is made difficult, it could potentially be used as a weapon for harassment with no available remedy for the victims. The large extent of possible intellectual property violations in India and the lack of interpretive clarity on their defences just sets up a system where vulnerable groups can selectively be targeted. It could, thereby, become a mild version of sedition laws with even the private players with high social capital being able to unduly harass their critics.

Conclusion

The constant widening of the scope of criminal provisions concerning intellectual property rights poses significant challenges to the growth of both creativity and freedom of speech in the country. If this is coupled with making these offences as cognizable and non-bailable, it further entrenches the problems posed by this criminalisation. It raises additional questions about the shaky grounds on which criminalisation of intellectual property rights raises as possibly the harms sought to be reduced are countered by much higher harms that are caused by criminalisation in the first place. It is, thus, hoped that a shift towards decriminalisation of intellectual property offences takes place soon. Additionally, it is necessary that some certainty is provided in the interpretive exercise involving the classification of offences under the CrPC, particularly for those offences that do not strictly fall within the ambit of any of the prescribed categories.

by Nikhil Purohit

Source: spicyip.com, 25/03/21

Row over Javed Akhtar’s lyrics shows how producers defeat copyright laws

It is important to think beyond the politics of the present controversy and make efforts to protect the creators who bring melody and colour to our lives.

A recent tweet by lyricist Javed Akhtar, claiming he was credited as songwriter for a film he didn’t work on — PM Narendra Modi — raises some fundamental questions about the Indian copyright law. Whom should Indian copyright law primarily protect? The artist who created a work or the person who acquired certain economic rights from the artist through an assignment or license?

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Akhtar claims that his name was specifically included in the film poster without his knowledge or permission and he tweeted “Am shocked to find my name on the poster of this film. Have not written any songs for it!” The film’s producer, Sandip Singh, responded by tweeting, “We have taken the songs ‘Ishwar Allah’ from the film 1947:Earth and the song ‘Suno Gaur Se Duniya Walon’ from the film Dus in our film, thus we have given the due credits to respective lyricists Javed Sahab and Sameer Ji. @TSeries is our Music partner. @ModiTheFilm2019”.

Both tweets generated political heat on Twitter, but it is important to look at some key legal and policy questions, crucially, whether Akhtar has a right under the Indian copyright law to not be named as a lyricist in a movie that he does not wish to be associated with.

Under the Indian copyright law, there are two kinds of rights for creators — economic rights and non-economic rights. Economic rights comprise a bundle of rights including the right to reproduce, distribute and perform the work in public. These rights are assignable, transferrable, and waivable. Non-economic rights granted to the creators are generally known as “moral rights”. Under Indian copyright law, they are referred to as “Author’s Special Rights”, and includes right of attribution and right of integrity. The former is the right to be attributed as the author of a work, while the latter is the right to restrain or claim damages in respect of any distortion, mutilation, modification, or other act in relation to that work, if such acts would be prejudicial to her honour or reputation.

Moral rights under Indian copyright law are non-assignable, that is, creators cannot give away those moral rights to anyone through a contract. Unlike economic rights, they are also perpetual in character: Which means moral rights protection extends even beyond the term of copyright protection. While it is debatable whether perpetual moral rights protection is good for promoting creativity, it is important to note that one may not find a similarly strong moral rights position in many other jurisdictions. If one looks at the history of Indian copyright law, it can be seen that India consciously opted for a strong moral rights position in the first post-independence copyright legislation, deviating from the British approach which is reflected in most other parts of the Indian copyright law. Part of the reason could be the influence of freedom fighters like Gandhi, who were very keen on protecting the integrity of their works.

One of the important facets of moral rights is the right not to be named as an author, particularly in a scenario wherein the author considers that a modified version of her work would be detrimental to her honour or reputation. If one looks at cases wherein moral rights-related provisions have been invoked, it can be seen that the Indian judiciary has recognised this important aspect. The direction of the Delhi High Court to remove the name of the novelist Mannu Bhandari from the credits of the 1986 movie Samay ki Dhara, which was an attempt to adapt her novel Aap ka Bunty, is an example. In this context, it is important to ask ourselves whether we should deny the right of a creator to not be mentioned as a lyricist in a movie which she doesn’t want to be associated with or which she considers as prejudicial to her honour or reputation.

This question is also relevant in the context of the legal provisions on assignment of economic rights. While addressing the practical requirements of copyright assignment, lawmakers have taken note of the fact that creators are often forced to give away all their rights without adequate remuneration due to the imbalance in bargaining power. Indian copyright law has tried to address this issue through protective provisions. Restrictions introduced through an amendment in 2012 on assignments by a lyricist or composer for songs synchronised in a movie deserve special attention. Lyricists and composers are not allowed to assign or waive the right to receive royalties on an equal basis with copyright assignee, except for playing the music along with the film in a cinema hall. The amendment has also clarified that any agreement to the contrary shall be void. The only exceptions are for legal heirs of authors, and copyright societies established for the collection and distribution of royalties on behalf of creators. While that amendment was in the context of the right to receive royalties, the intention of legislators to protect lyricists and composers from undue exploitation of producers is very clear: This amendment was also a result of the efforts of Akhtar as a Member of Rajya Sabha.

However, the current controversy is an example of how economically powerful producers often try to defeat the creator-centric approach of India’s copyright law. It is important to think beyond the politics of the present controversy and make efforts to protect the creators who bring melody and colour to our lives.

Source: Indian Express, 2/04/2019

This article first appeared in the print edition on April 2, 2019, under the title ‘Where credit isn’t due’. The writer is assistant professor at National Law University, Delhi