Legal Updates

We bring you the updates for last week. Hope it updates you with all the news from legal world.

Updates: 26th October to 1st November 2014.

The National Commission for Women will be a placing a proposal before a panel constituted by the Supreme Court on November 8 for legalizing prostitution in India..  The apex court had constituted the panel after a public interest litigation was filed in 2010 on rehabilitation of sex workers. The panel will deliberate on the existing provision of Immoral Traffic (Prevention) Act, 1956 (ITPA). The deliberations would focus on improved conditions that would allow sex workers to lead a dignified life. But activists have voiced their concerns over the NCW’s proposal. The legalization of prostitution goes against the ILO’s definition of ‘decent work’.

A man was arrested by cops for allegedly having sex with another man, which was recorded by his wife on a hidden camera. The man has been arrested under Section 377 of the Indian Penal Code that makes it an offense to commit 'carnal intercourse against the order of nature.' The highly debated re-instatement of the clause by the Supreme Court which was previously struck down by the Delhi HC as unconstitutional makes gay sex an offence punishable with life imprisonment.

The Supreme Court has rejected the plea by Nithari killer Surinder Koli seeking recall of the judgment upholding his death sentence in Rimpa Haldar murder case.

While applying for a passport for her child, an unwed mother will have to declare how she conceived. This was the Union Government’s reply to a query by a division bench of the Bombay HC that was hearing a petition by a woman challenging the passport authority's refusal to include her step-father's name in her passport. According to the advocate appearing on behalf of the foreign ministry, a unwed mother should file an affidavit stating ‘how she has conceived’ and ‘if she was raped’ and why she does not want the father's name included.

The CIC has held that the husband had a right to know about the amount of salary of the wife but information pertaining to expenditures and loan deductions cannot be given under the RTI Act. Amount of salary and the details of pay scale of a public servant can be a part of voluntarily disclosable information under Section 4(1)(b) but deductions, personal loans, seeking salary slips and residential address are not disclosable unless a public interest is involved.

The Delhi University will soon have its own IP policy. The IP policy will look into the patentability of the research undertaken by the students and staffs, the registration of copyright and trademark by the DU.  As per the university statistics, 168 patents are registered by Delhi University, 71 patents are under prosecution, 35 patents have been granted and 52 patent applications have lapsed.

The Ministry of Health and Family Welfare, Government of India recently issued a notification introducing a requirement that the pictorial and textual statutory warnings must cover 85% of the display area of the package. The notification, that amends the Cigarettes and Other Tobacco Products (Packaging and Labelling Rules), 2008 specifies that the pictorial warning must cover at least 60% of the area and the textual warning 25% percent of the area of the package—on both sides of the package. This move by the Government seems to be a plain packaging requirement though it is not in the purest form as in other countries like Australia and some European countries.

The US Eleventh Circuit Court has come out with a landmark ruling on the legality of course packs involving Cambridge University Press, Oxford University Press and Sage Publications against Georgia State University. GSU was indulging in digital dissemination of  course packs allowing students to obtain a digital copy of the designated course material. The Court held that the thought the excerpts were not transformative they were for a non-profitable educative purpose and it constituted fair use, despite the non-transformative nature.

We hope that this summarizes the last week's News. Your comments and suggestions are welcomed.

Until next post of weekly News updates.

Anjana Srinivasan, (2nd Year student of IIT Kharagpur Law School)

For 'OFF Court.'

Disclaimer: This blog or any post thereof is not to be considered to be in any way associated with the official stand of IIT kharagpur or RGSOIPL on the issues being discussed in the said post. The opinions on the blog are the authors own and should not be considered as legal advice.

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Effect of TRIPS on Public Health

Author: Sutapa Jana , 3rd Year student of RGSOIPL, IIT-Kharagpur.

       

Health is one of the basic fundamental needs of all human beings. Health policies encompass a number of elements, from prevention to cure and access to drugs.[1] Access is now defined by both availability and affordability which clearly establishes the economic link between this “access” and poverty.

The scenario of HIV/AIDS in the African continent clearly illustrates this relationship. The epidemic which is going on ruining countries has brought in limelight the utterly inhuman face of the Multi National Companies (MNCs), as they continued to sell the drugs to treat HIV-AIDS at 20-50 times their actual cost by seeking shelter under laws mandated by the TRIPS agreement. A kind of relief was given to those deprived people when the Indian companies like Cipla offered these drugs at very low prices by March 2001.

This has been the spark for an upsurge in the public opinion against the ruthless practices of MNCs, questioning the rationale of TRIPS, particularly in public health. These developments ultimately resulted in the Doha Declaration on TRIPS Agreement and Public Health (November 2001) seeking to limit, to some extent, the damage done by the TRIPS agreement and its underlying philosophy.[2]

The Doha Declaration does not open new avenues within TRIPS but confirms the legitimacy of measures seeking to use to the largest extent possible the in-built flexibility found in TRIPS. This emphasizes that the TRIPS Agreement does not and should not prevent members from taking measures to protect public health and reaffirms the rights of Members to fully use the flexibilities available in the TRIPS Agreement for this purpose. The TRIPS Agreement has to be interpreted in a manner which is supportive to safeguard the public health of Member countries and to promote access to medicines to all ("interpreted and implemented in a manner supportive of WTO members right to protect public health and, in particular, to promote access to medicines for all" ). In other words, the declaration does not open new avenues within TRIPS but confirms the legitimacy of measures seeking to use to the largest extent possible the in-built flexibility found in TRIPS.

It also clarified the provisions for the flexibilities granted under TRIPS, i.e. Compulsory licensing. Compulsory licensing has long been used as a tool to regulate the exclusive rights conferred by patents. In the case of health, the rationale is to make sure that the existence of a patent does not create a situation where a protected medicine is not available to the public because of non-health related factors. The Patents Act, 1970 provided an elaborate regime that included both compulsory licenses and licenses of right. The TRIPS Agreement has not explicitly mentioned the word compulsory licensing but that does not mean it has done away with the notion of compulsory licenses but provides a more restrictive framework than the current regime in force in India. It explained that each member has the right to grant compulsory licenses and has the discretion to determine the grounds upon which such licenses are to be given. The recognition in the Doha Declaration that TRIPS member-states can use the flexibility provided in the agreement and can, thus be understood in the context of a generally increasingly restrictive international patent regime. It was also mentioned that compulsory licenses can be issued for importation as well as for domestic production.

In regard to exhaustion of IPRs, the Declaration has clearly mentioned that each Member is free to establish its own regime without challenge if they are subject to provisions of TRIPS, prohibiting discrimination on the basis of nationality of the right holder. In the declaration it was reaffirmed that the developed countries are committed to the provisions of providing incentives to their enterprises and institutions to promote technology transfer to LDCs under Article 66.2 of TRIPS.

The declaration has been hailed as a giant leap in the direction for making the TRIPS Agreement more responsive to the needs of developing countries and more specifically to the individuals who are unable to afford the cost of patented drugs. In fact, it tries to address a number of important issues related to the implementation of medical patents. However, it fails to take up the much more fundamental questions of the scope of patentability and the duration of patents in the health sector. The Doha Declaration acts an important instrument in India for two main reasons. Firstly, at a political level, India was among the most vocal and one of the leading developing countries at the ministerial conference in putting forward developing Countries' interests. Secondly, the declaration was adopted while the joint committee of Parliament was finalizing its report.

The major goals identified in this millennium which are of immense importance include reducing poverty and hunger, improving health and education and ensuring environmental sustainability. There has been arguments in favor as well as  against the implementation of  IPR regime. Some strongly recommend the implementation of IPRs will reduce the poverty by stimulating economic growth. As protection for new innovation increases this will in turn increase the production calling for both domestic and foreign investment which will ultimately lead to availability of medicines to combat diseases. People who vehemently oppose this argue that it stimulates innovation to only a limited extent, on the other hand developed countries use it as a tool to ouster the domestic competitors from the market and encourage importing of medicines instead of manufacturing which in turn increases the price of essential drugs. 

Hence, even if those drugs are available they are beyond the reach of the destitute.  IP rights are not conferred to only attain profits but also to provide affordable health care for long term. Such rights must therefore be closely monitored to ensure that they do actually promote healthcare objectives and, above all, should not act as barrier in promoting access to healthcare.

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[1] Prachi Pallavi; Patent Regime and Right to Health: National and International Perspective; : http://www.legalservicesindia.com/articles/pg.htm

[2] Prachi Pallavi; Patent Regime and Right to Health: National and International Perspective; http://www.legalservicesindia.com/articles/pg.htm

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