The Curious Case of New Invention

Section 2(1) (j) of the Patents Act, 1970 defines the ‘invention’ as a new product or a process involving an inventive step and capable of industrial application. The Act defined the terms ‘inventive step’ and ‘capable of industrial application’ under Section 2(1) (j) (a) and Section 2(1) (c) respectively. However what is ‘new’ was not defined and left to be interpreted using the provisions of Section 13.

Interestingly, we also have Section 2(1) (l) which defines “new invention” but the term has not been used anywhere in the Act. The term sounds redundant in light of definition of term “invention”. We cannot resist arguing that when an invention is itself new, what sense does the term “new invention” makes. Every invention, in order to obtain a grant, has to fit in the definition of invention under Section (2) (1) (j). Moreover, a patent is granted under the Act for an invention and not for a “new invention” as per Section 2(1) (m). Although  Section 13 clearly marks out as to when an invention would be anticipated, it was desired that a proper definition clause be inserted in order to define what is ‘new’.

It is apparent from the legislative history of the 2005 amendment to the Patents Act, 1970 that such proposal was forwarded so that frivolous claims are not filed and the patent office is not unduly burdened. It was accepted that inventors are technical persons and in all likelihood they would not read provisions of Section 13 so as to determine the novelty of their invention. The legislature thought that it was prudent to incorporate the definition of ‘new’ so that the inventors are well aware of the eligibility of their claims. However, it can be inferred from the attached document that the Legislature approved the addition of clause “new” invention and what finally came into existence was “new invention”.

It is crystal clear that the term “new invention” is a product of legislative drafting error. There is no cogent reason for defining “new invention” when the term “invention” is already defined. However, it is surprising that this error is still not rectified by the Government nor this section would ever be interpreted by the courts since the same is redundant. This is precisely the reason that the term is not used anywhere else in the scheme of the Act. The Amendment Bill of 2005 had more such ambiguous definitions such as definition of the term “pharmaceutical substance” which defines pharmaceutical substance as ‘any new entity involving one or more inventive steps’. According to this definition every invention under Section 2(1) (j) would fall under the said definition. It must be noted that the Amendment Bill was passed without much deliberation and without referring to Standing Committee or any other Technical Committee.

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Public performance or not.!!

 Author : Shweta Khurana, 2nd Year student of RGSOIPL, IIT Law School.

Is the evolution and interpretation of laws lagging behind the technological advancements? The recent Supreme Court judgment in the case of American Broadcasting Companies Inc. v. Aereo Inc. 573 US 2014 implies so. The ruling observes that the retransmission of programs to the paid subscribers without the copyright owner’s authorisation or license is violative of the copyright law. The case raises the question of liability of the companies that offer the subscribers the ability to watch and record local broadcast television over the internet on payment at monthly basis. The US Supreme Court rejecting the respondent’s contentions as to their retransmission activity not coming within the meaning of “public performance” pointed out that such service was a tool or way to avoid being held liable for copyright infringement.

Analysing the judgement, if we look into the technology to get a clearer view as to the service in dispute being within the meaning of “public performance” the said service allows all the paid subscribers to watch programs airing on network television or record programs that will air in the future over the Internet.  The service provides three-in-one function as that of a regular television antenna, a recording device, and an application that makes these services work on devices other than televisions and computers. This is enabled by use of thousands of antennas that are distinct for each subscriber and function to capture the local broadcast signals i.e. thus the service bears similarity to modern day cable systems. Pointing to the definition of the public performance under the US Copyright Act, 1976^[1], 17 U.S. Code § 101 states that:

To perform or display a work “publicly” means—

(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or

(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

Interpreting the words of the definition and applying it to the dispute under question, it is noted that Aereo sent each of its subscribers an individualized/ private transmission of a performance from a unique copy of each copyrighted program captured and transmitted through different antennas. Also the servers are subscriber specific and does not involve transmission of performances “to the public,” but rather a number of "private" performances to paying subscribers.

Referring to two similar cases of Fortnightly Corp. v. United Artist Television Inc.^[2] and Teleprompter Corp. v. Columbia Broadcasting System Inc.^[3] where the community antenna television (CATV) systems were considered to be outside the purview of ‘public performers’ and these systems were said to be like a viewer rather than a broadcaster as these systems only perform the function of carrying the programs which have already been released to the public by private channels to individual viewers.

Drawing a comparison with the Indian Copyright Act, 1957 as amended in 2012 that gives an expanded definition of “communication to public” under Section 2 (ff)^[4]  so as to include both works and performances (instead of just works as was the case prior to the coming into effect of the 2012 amendments i.e. 'earlier'). Also, the definition now explicitly states that it does not matter whether the communication is ‘simultaneous or at places and times chosen individually’. As such, it appears to include multicasting, narrowcasting and unicasting. The explanation to the aforementioned section helps in understanding the intricacies of the copyrighted works transmitted through satellite or cable transmission so as to be considered within the definition of ‘public performance’. This makes it clear that such a dispute under Indian Jurisdiction would have suffered the same fate, preserving and protecting the broadcaster’s rights ruling out copyright violation on part of the service provider.  

Looking a bit deeper into the issue, one can see the economic and technological implications of this judgment on the new and upcoming technologies like Apple’s iCloud and Dropbox and other cloud computing tools that provide easy online access to stored data, music, pictures and other information via an online platform. It also raises concern as to the affordability issue as the service enabled the viewers or subscribers to watch and record local programs from various electronic devices on a very cheap subscription monthly payment.

So, instead of leaving the judiciary to interpret the law on their own, there is a need to find out such loopholes within the legislation and improvise or evolve the law to keep pace with the leaping technological breakthroughs as a 1976 legislation is not an appropriate legal proposition to be applied in the era of Internet, digital video recorders and smart phones.

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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[1]http://www.law.cornell.edu/uscode/text/17

[2] 392 U.S. 390 (1968)

[3] 415 U.S. 394 (1974)

[4] "communication to the public" means making any work available for being seen or heard or

otherwise enjoyed by the public directly or by any means of display or diffusion other than by issuing

copies of such work regardless of whether any member of the public actually sees, hears or otherwise enjoys the work so made available.

Explanation.- For the purposes of this clause, communication through satellite or cable or any other

means of simultaneous communication to more than one household or place of residence including

residential rooms of any hotel or hostel shall be deemed to be communication to the public;

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You can't escape CCI !!

Author: Prigya Arora, 1st year student of RGSOIPL, IIT Kharagpur Law School.

The pharmaceutical industry of India has matured over the years into a major producer of bulk drugs, rated among the top five in the world[1]. With the escalating number of diseases, more resistant bacteria and constantly evolving viruses, there is a constant increase in the demand of drugs in market. But making new drugs and taking them into the market is a hellacious task. It includes a lot of research and development and trials and rejections that leads to enormous costs.

A new analysis conducted at Forbes puts grim numbers on these costs. A company hoping to get a single drug to market can expect to have spent $350 million before the medicine is available for sale. In part because so many drugs fail, large pharmaceutical companies that are working on dozens of drug projects at once spend $5 billion per new medicine[2].

To acknowledge the efforts and costs put up by the pharmaceutical companies for this R&D, the novel drugs are given patents so that these companies can get the exclusive rights to manufacture that drug under The Patents Act, 1970. But once the patent expires, the formula of the drug becomes open (generic) and anyone is free to produce and manufacture it. The core issues for most drug companies are pricing, patent expiration of number of drugs and increasing legal and regulatory concern. To recover these high costs, the pharmaceutical companies try to maintain the monopoly in the market by paying off small local cheap generic drug producers for keeping them off the market. Some companies alter the compound and sell at much lower prices which surely upsets the comparatively larger companies.

Such issues can be observed as in the case of F. Hoffmann-La Roche Ltd. v. Cipla Ltd.[3]In 2008, Roche sued Cipla before Delhi High Court claiming that Cipla’s generic product Erlocip violates Roche’s patent rights over the Erlotinib Hydrochloride (EH); Indian Patent No. IN '774. Moreover, Cipla’s generic version costs about 1/3rd of Roche’s patented drug. The Court dismissed Roche's patent infringement suit in 2012. To counter such problems, the Competition Commission of India (CCI) which regulates country’s competition may now examine the details of patent settlements being negotiated between foreign branded medicine companies and local generic drug makers as these agreements may restrict the access of cheaper drugs to the unwell.

The other cases which CCI is likely to examine includes patent infringement battle between Swiss drug maker Novartis and Indian biotech firm Biocon, and the other between US-drug multinational Merck Sharp and Dohme Corp. (MSD) and India’s Glenmark Pharmaceuticals Ltd., both these cases are based on patent infringements of anti-diabetic drug of different kinds.

The argument is not that MNCs should be stopped from coming to India; the real concern is to guarantee that if they potentially harm competition, then steps are taken to ensure that the harmful effect is diluted. Generic drugs on the other hand, have become a necessity for the availability of cheap medicine to the poor class of India. With the involvement of CCI in the pharmaceutical sector, it is expected to bring a positive impact on the distribution of medicines in India as well as a check on prices charged to the customers.

In the past, until the passage of the CCI’s involvement, these issues were managed by administrative decisions of ministries and the Foreign Investment Promotion Board (FIPB) route. This approach had the impression of arbitrariness of government decisions. On the contrary, CCI operates within a well defined structure, providing legal certainty and transparency to the parties with clearly defined appellate processes. The Competition Act, 2002 empowers the Commission to evaluate all aspect of the proposed deal such as reduction of capacities for production or R&D and market distorting issues related to ownership of IPR. Further, this structure has in-built systems for consultation with appropriate sources, including ministries, department of government and designated persons or cells in these organizations[4].

Government of India has taken a very optimistic decision to allow CCI to be the watchdog of pharmaceutical settlements. As the role and powers of the CCI have been notified very recently, the ultimate test of their efficacy lies in the implementation. Both domestic and foreign pharmaceutical companies must realize the importance of public health and the need for affordable and accessible medicines to all consumers in a densely populated country like India and must rearrange their business models to serve the larger purpose.

 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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[1] Dr. Geeta Gouri (Member: Competition Commission of India), Competition Issues in the Generic Pharmaceuticals Industry in India,http://www.cci.gov.in/images/media/presentations/ComIssGenPharmIndusIndia_20100401142

346.pdf

[2] http://www.forbes.com/sites/matthewherper/2013/08/11/how-the-staggering-cost-of-inventing-new-drugs-is-shaping-the-future-of-medicine/

[3] 159(2009)DLT243

[4] “Foreign Direct Investment in Indian Pharmaceutical industry”,http://cci.gov.in/images/media/ResearchReports/shahbaazInternreportdec2011.pdf

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Every Monkey has its day!!! I mean litrally …

Author: Suraj Badrayan, 3rd Year student of RGSOIPL, IIT Kharagpur Law School.

Imagine yourself owning a DSLR camera, and trek the forests in the hopes of capturing one of those rare photographs. You put down your camera and take break. Little do you know, lurking in the bushes, whoosh..!!! A monkey grabs your camera, manhandles the camera and then dropping it down and running away. Ordinarily, all you would do is just hope that your expensive camera is not damaged and scratched. But, then you find out  that you are in the possession of one of the rarest photographs ever captured. A rare shot of a monkey taking a selfie!! That photograph could make you a lot of money.

Little do you realise that you would be actually be mixed up with a bizarre copyright ownership issue about that photograph. Apparently, the monkey owns copyright over the photograph. Surprised..!!! Well you shouldn’t be, because that is exactly what has happened to Mr Slater. The story can be viewed here.

Well, let’s examine the legal position in this regard. Section 17 of the Indian Copyright Act, 1957 says that “the author of the work” shall be the first owner of the copyright. Section 2(d) subclause (iv) of the same Act, defines author of the photograph as the person taking the photograph. So by bare reading of the provisions of the Act, you will actually realise that the monkey is  the true owner of the copyright.

Ok, in order to make things more complicated, the Black’s Law Dictionary and General Clauses Act, 1897 defines person as a human being or a legal entity. So, the monkey cannot hold the copyright in the photograph.

THE QUESTION IS WHO OWNS THE PHOTOGRAPH?

There are three arguments that can be put forward. Let’s look at them.

1. The owner of the camera is the owner of the photograph. He spent, time, money and resources. He meant to take photographs, but the monkey took and camera and clicked it. Since, monkey is not a person, naturally the only person over there, the owner of the camera owns the copyright.

2. The government owns the photograph: The concept of animals as “property” of person is not new. To the law, animals are property, they are goods to be bought and sold, acquired and maintained.   This principle is deeply interwoven into the law. Imagine, the monkey is owned by a person, say Mr. X. Then, if the monkey clicks the photograph, then it can be said that the copyright is owned by Mr. X. As common law says that, rights and liabilities of acts done by the animal can be traced back to the owner itself.

Section 39 of the Wildlife Protection Act, 1972 specifies that all wild animals are to be government property. Section 17 clause (d) of the Copyright Act, says that in case of government work, the government shall be the first owner of the copyright. Hence, above analogy, the government shall be the first owner of the copyright of the photograph.

3. The photograph is in public domain: Here it can be said that, no one owns the copyright, and the photograph is public domain under the principle of res communes. The term res commune was defined as "things that could be commonly enjoyed by mankind, such as air, sunlight and ocean”. Common law describes public domain material as publici juris or propriétépublique to describe works that were not covered by copyright law. Legal scholars such as Patterson and Lindberg describe “public domain” not as a "territory", but rather as a concept: "There are certain materials—the air we breathe, sunlight, rain, space, life, creations, thoughts, feelings, ideas, words, numbers—not subject to private ownership. The materials that compose our cultural heritage must be free for all living to use no less than matter necessary for biological survival.^[1]

Hence, copyright to photograph may not exist at all due to publici juris principle. An alternative interpretation to this would be taking the philosophy of section 52 of the Copyright Act, which are copyright exceptions and limitations. Hence, such content which (but for Section 52) would have fallen squarely within the scope of the definition of a protectable work under the Copyright Act may also, in a manner, be considered to be in the public domain, if one were to use the term loosely. Consider particular sub clauses of:

 52(1)(a): as fair dealing

52(1)(h): for bona-fide instructional use

52(1)(m): for reproduction in any newspaper, periodical, magazine of an article on economic, political, social or religious topics.

Or reading of  the general exceptions within section 52 one can come to a conclusion that the photograph can be fitting loosely in the definition of public domain.

CONCLUSION:

If the matter ever comes to court and if I was ever the judge hearing that case, I would rather apply the Golden rule of interpretation^[2] to the definition of author in section 2(d) sub clause (iv) of the Copyright Act in order to remedy the absurd result arising from the section.

The interpretation would be that in particular cases when author of the camera is not able to be determined or is absurd in law, then the author is in fact the owner of the camera.

This would be the most simple, more logical and common sense thought to do. For if a court would try to resolve it otherwise, he would end up writing a whole lot of absurd nonsense like the one I have written above.

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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[1]Ronan, Deazley (2006). Rethinking copyright: history, theory, language.Edward Elgar Publishing.p. 105.ISBN 978-1-84542-282-0.

[2]The golden rule of statutory interpretation may be applied where an application of the literal rule would lead to an absurdity. The courts may then apply a secondary meaning.

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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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Breakdown of the ‘Idea- Expression Dichotomy’ Doctrine

The doctrine that, only expressions are Copyrightable and not the underlying ideas, is referred to as ‘idea expression dichotomy’ and is one of the foundation pillars of modern Copyright Law. It is because of this doctrine that non literal expressions could also enjoy a protection. The doctrine has been relied upon by the Indian Courts in a number of decisions (for e.g., see the oft quoted judgment in the case of R.G.Anand v. Delux Films, AIR 1978 SC 1613).

The test to separate the copyrightable expressions from the underlying non copyrightable ideas is referred to as the ‘pattern test’ or ‘abstraction test’ and has emerged from the argument put forward by J. Learned Hand in the case of Nichols v. UniversalPictures Corp., 45 F.2d 119 (2d. Cir. 1930):

Upon any work, ...  a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out. The last may perhaps be no more than the most general statement of what the play [or the work] is about, and at times might consist only of its title; but there is a point in this series of abstractions where they are no longer protected, since otherwise the playwright [the author] could prevent the use of his "ideas," to which, apart from their expression, his property is never extended...

In this quest to find out the dividing line between the expression and the underlying idea, Hand asks us to carry out a series of abstractions where each abstraction is coupled with filtration out of Copyrightable expressions. For the sake of clarity, consider the following example:

“Samba, mad with rage, murdered the treacherous Kaliya on that dark moonless night.” [Initial Expression]

First abstraction:

“Samba, mad with rage, murdered the treacherous Kaliya that night.” [Underlying Expression]

Second abstraction:

“Samba, mad with rage, murdered the treacherous Kaliya.” (Expression underlying the Underlying Expression)

Third abstraction:

“Samba, mad with rage, murdered Kaliya.” (Expression underlying the Expression underlying the Underlying expression

Fourth abstraction:

“Samba murdered Kaliya.” [The most general statement of what the initial Expression is about]

Justice Hand regards this ‘the most general statement’ as the idea which is not copyrightable.

However, such an approach presents to us a paradox because aren’t the words, “Samba murdered Kaliya”, too an expression. They are words of English language and language is an instrument of expression. Hence, to say that we have dissected the expression and found out the underlying idea is an absurd statement, for the course of such an exercise, pushes us to the realms of Psychology, which in itself is not an exact science. Because, whatever the idea we think through our faculty of reasoning, logic or aesthetics, as soon as is delivered to the external world, either through speech or pen or paint brush or an act of drama or dance, becomes an expression and no more remains merely a thought or an idea. Thoughts and ideas dwell in the kingdom of the brain and mind but as soon as they are delivered to the outside world, even in the most minuscule, raw and uncreative form, they are expressed, hence transform into an expression. Thus, for the purpose of finding out the underlying idea, telepathy and not ‘pattern’ or ‘abstraction’ test is required. Hence, to me, the doctrine that idea- expression dichotomy is a pillar of Copyright Law, appears to be incorrect. 

The doctrine also appears to be flawed because it makes the whole law subjective and renders unpredictability to the situation. Even if the outcome of a case does not get influenced by personal whims and fancies of the judge, yet in the absence of any bright line rule, the same situations may have different outcome when presented to different judges. The following illustration shall be useful:

Suppose you are the judge and the owner of the copyright in Spiderman approaches your court against the copyright owner in Nagraj alleging that the Naagrassi (Snake rope) coming out of the wrist of Nagraj is substantially similar to the spider web rope coming out of the wrist of Spiderman:

If you apply ‘abstraction’ test on the character of Spiderman to find out when the expression separates from the idea and thus what would be the scope of copyright protection, the following plausible abstractions come out:

Abstraction- Underlying Idea #1:

A rope like structure coming out from the wrist of the Superhero, made up of a material peculiar to the Superhero.

Abstraction- Underlying idea #2:

Use of a rope by the Superhero to swing in the air or to tie enemies.

In the absence of any guiding light or bright line formula, you are free to chose any of the above abstraction as the underlying non copyrightable idea- if you find the former as the idea, then the plaintiff will get a relief but if you find the later as the underlying idea, the defendant would be in a better position.

Then what is the way out? In my humble suggestion, we need to go to the basics of Copyright Law. Perhaps we must look into the creative aspects of the work and if the new work is creatively novel  then the work must enjoy a copyright protection. Hence, rather that traversing backward to abstract the underlying idea, we must keep the initial work (whose copyright has been alleged to have been infringed) as the starting point and then compare the later work with it. If the expression in the later work is creatively different then it is not infringing (Note: Here the degree of creativity must be much higher than the modicum of creativity, Eastern BookCompany v. D.B. Modhak, (2008) 1 SCC 1, because if creative aspects are present only in modicum quantities, then the new work is a mere adaptation).  And this decision, which would be based on the then prevailing facts, and not law should be decided not by judges, but by a jury comprising of artists and critiques in that field and expert evidence should have a great value. 

Author: Tanveer Verma

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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BEWARE OF THE 'NEW PUBLIC'

The judgement of CJEU in the case of Svenssonv Retriever Sverige AB, hereinafter referred to as Svensson, sheds some light on the doubts related to hyperlinking. In the case Retriever Sverige AB (‘Retriever Sverige’) operated a website that contained hyperlinks that redirected users to press articles in the website of the Stockholm newspaper Göteborgs-Posten. Svensson, a journalist including 3 others sued Retriever Sverige AB for communication of their copyrighted work to the public. So after the judgement to the case we try to answer some questions here.

1)      Q: What if a website provides hyperlinks to the copyrightable content of another website, otherwise freely available?

Ans: The links that have been posted are linking them to original site itself and allowing them to view what have already been given free access to! So there is no communication to “new public”. Hence there is no infringement of copyright.

By “new public”, the court means, the public that was not taken into account by the copyright holders when they authorized the initial communication to the public to whom the work has been communicated to.

2)      Q: But what if the original site has removed such protected content from the site and still another website gives access to those removed contents?

       Ans: In this case the access is being given to new public and as per the  reasoning of the court in this judgement it would amount to copyright  infringement.

3)      Q: What if a website gives access only to restricted users to the protected content and another website on the other hand circumvent such restrictions through the links appearing on such site?

       Ans: Definitely then access of the content is being given to new public a copyrighted material. Then bypassing such restrictions, will amount to infringement!

4)      Q: What if another website links to content from other website in such a way that it appears to the viewers that it is a content of the website on which the links are available?

       Ans: In this case if the content is still freely available then as per this judgement it would not result in any infringement as there is free access and no new public is created.

5)      Q:Article 3(1) of Directive 2001/29 provides: 

         Member States shall provide authors with the exclusive right to authorize or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.

 So it is possible for a Member State to give wider protection to authors’ exclusive right by enabling communication to the public to cover a greater range of acts than provided for in the directive?

Ans: The directive is for the purpose of harmonization of the member state laws and widening the scope of the act of “communication to the public” would be detriment to the purpose.

Conclusion: 

      

In a nutshell the implications of this judgement is that internet users will still be able to share and refer to free contents on the Internet without breaking copyright rules. It is also good news for internet users and especially for content aggregators that direct consumers to content sites whose revenue would otherwise be seriously affected. The judgement of this case is valuable as it settles some of the debated issues and brings in the concept of “new public” which however may not always provide a workable solution in every situation. It sets a positive precedent to cases of hyperlinking of unauthorized content.

The Copyright Act, 1957 of India has inserted a sec 52 (c) after the amendment in 2012 which permits transient or incidental storage of a work or performance for the purpose of providing electronic links, access or integration unless such links, access or integration have been expressly prohibited by the right holder or if the person responsible is aware or has reasonable grounds to believe that such storage is of an infringing copy. We are yet to see how the Indian courts deal with the issue of hyperlinking after this case.

References:

•     http://copyright.lawmatters.in/2011/01/hyperlinks-and-copyright-infringement.html
• Alka Chawla , Law of Copyright : Comparative Perspectives, First Edition, 2013
• http://kluwercopyrightblog.com/2014/02/21/the-svensson-case-and-the-act-of-communication-to-a-new-public/

AUTHOR - Neerajita Sarkar

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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