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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The Art of Secularism

Author: Antriksh Mishra, 3rd Year student of IIT Law School, IIT Kharagpur.

"India is my country and I am proud to be its citizen"—one thing which no Indian will think twice before speaking. Now let’s change the parameters a little–"Hinduism is my religion and I am proud to be a Hindu." Now that is something people think twice before speaking. It has happened to me and to many others I know. 

In this post I would try to dwell the reasons for such hesitation. Let’s begin with Art. 25 of the Constitution of India, the famous "Freedom of Religion" clause. Firstly the clause allows "all persons" to "practice", "profess" and "propagate" their religion. This would include all individuals whether or not citizens of India.

The words "practice", "profess" and "propagate" cover any and all religious activities, even asking other persons to join your religion (as long as such joining is without force or consideration) is allowed (as mentioned by K. Santhanam during the Constituent Assembly Debates). And this beckons the question, "Why the hesitation?"

One might say that the answer is more of a psychological nature than legal. I would however respectfully disagree. The answer is more related to Indian Polity and Law than to Psychology.

Let’s start from the common understanding of the word secular and try to answers some fundamental questions.

1. Is being secular the anti-thesis of being religious?

The answer to this is a quite emphatic “No”. If being secular were the anti-thesis of being religious, both of these could not have found place in our Constitution. Secularism as referred to in the Preamble and religious freedom as referred to in Art. 25, as propounded by The Keshvananda Bharti Judgement, find their place in the basic structure of the Constitution. (Notwithstanding my objection on the way the Keshvananda Judgement was delivered, and how Justice HR Khanna's opinion was not similar to that of the other three majority judges, It is still the law of the land.)

2. Does being religious mean you must follow all preaching of a faith?

Again the answer would be an emphatic a “NO”. Take for example Galileo or Darwin, both of them asked questions and were subjected to great persecution, but today Christianity has evolved and accepted (to a certain extent) their theories, while they were devoted Christians till their dying breath. Now for the legal stand lets read Art 19 and Art 25 together, I have the right to free speech (which allows me any question on any religion) and Freedom of religion (which gives me freedom to choose religion), so no one has the right to doubt one’s faith in a religion, or stop him from practicing a religion based on questions raised by a follower. Religion (in theory) must welcome and clear doubts.

3. When one calls oneself proud to be of the Hindu faith does he become a zealot?

And again the answer is  a ”NO”. What faith you follow is a personal question, whether you choose to be vocal about it is a personal choice. As long as you don't hurt another faith how can there be a question of being a zealot. And this is where Politics comes into the picture. Hinduism in India seems to have become synonymous of RSS or BJP or the Babri Masjid incident. But frankly it is not. Not withstanding the fact that RSS ( the then Hindu Mahasabha) was the only organization other than the Muslim league to not take part in the Quit India movement and their chief in 2006 claimed that Quit India Movement was a failure.  In all fairness the public services done by RSS, Hinduism and Hindu extremists are two different things,just as Muslims are different from Muslim extremist. One does not equate the practices in Muslim majority State of Turkey to that of Saudi Arabia then why isn't such a differentiation available for the Hindu faith. As per the principle of equity Hindus have the same rights and responsibilities as the other minority classes in India. And by virtue of being the majority, the Constitution does not bestow upon them, a higher degree of responsibilities than the other faiths.

I am proud to say that I am religious, I am proud to say I am a Hindu and I am proud to say that I am a Bhartiya, an Indian, a Hindustani (which is actually derived from Indus, but Hey! propaganda is spread by use of selective dissemination of facts, as recently) and still I am secular. I respect other faiths, I ask questions about other’s and my own faith and I wish to leave my faith to future generations, evolved, than what it was when I had it. In this regard I agree with Mahatma Gandhi's views.

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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Legal Updates

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

Updates: 19th October to 25th October 2014.

In a case by one Gursahani, the SEBI’s circular increasing the limitation for arbitration from six months to three years was challenged. The court upheld the circular and dismissed the case.

In Ranbaxy Laboratories Ltd. Vs.  Novartis AG, Suit seeking permanent injunction restraining the appellant from infringing respondents Indian Patent came up for preliminary consideration before the learned Single Judge on September 08, 2014, on which date the appellant appeared to oppose the grant of any ad-interim injunction. The Court said that no ad-interim injunction can be given on lines of LA Roche Ltd. & Anr. Vs. Cipla Ltd.

The Chief Information Officer, Prof M Sridhar Acharyulu, took a strict stance on the handling and weeding out policies of government documents subject to RTIs. The Commission looking into the matter asked the concerned authority to show cause to show cause why maximum penalty cannot be imposed on him for making a wrong claim of weeding the record and for not furnishing the information to the complainant. The direction of the Commission clearly reflects the harmony between Public Records Act and Right to Information Act.

After coming out on bail, Jayalalitha took notice of the extreme steps being taken in row of the Court’s decision. She has appealed to all the supporters to condemn such acts and has promised Rs. 3 Lacs compensation to the families of the deceased. A responsible gesture by the ex-CM, but it would have been prudent to take such a stance much earlier.

In the infamous case of alleged sexual harassment in the Madhya Pradesh High Court, the accused administrative Judge has asserted before the apex Court that the woman judge “was not a disciplined member of the judiciary and after an elapsation of 15 days after the glory of the post she had formerly held, she levied reckless allegations and concocted a story in an attempt to get herself reinstated in service”. The course ahead depends crucially on the evidence advanced before the Court for efficient dispense of justice.

The All Inida Bar Association (AIBA) has written to the Supreme Court to initiate suo moto contempt proceedings against Thanti TV, a Tamil news channel. The channel is alleged to have recorded the court proceedings of the arguments put forward by Mr. Fali Nariman in the  Jayalalitha case.  Amid all this, the Kerala High Court is discussing provisions to ban lawyers from talking to journalists about their pending cases and their proceedings.

According to the direction by the law ministry, all 15,000 subordinate courts will have their judgments digitised, with new judgments to be uploaded by 6pm on the day that it is handed down. This is a welcome step which should have seen the light of the day years ago for efficient administration of the Court proceedings.

According to the direction by the Government, all its ministries will have to upload all the RTI applications and their respective replies on their websites. This documents containing personal information can be put out of the ambit of this direction. This is a potential step towards greater transparency and efficiency.

In the alleged forest land encroachment by BS Yedurappa and his kin, the Karnataka High Court set aside the Sessions court order which was stalling the investigation. The estimated area encroached is around 84 acres in the Shimoga district. With all relevant documents submitted and arguments completed, the decision will be given on 28th October.

The deadline of the biometric attendance system kicks in on the 25^th of this month. According to the direction from the PMO, all the government offices are to be installed with the electronic attendance machines. Also, the attendance is accessible to the public through attendance.gov.in. This is a simple step taken by the Government to ensure efficient governance and better service.

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

Until next post of weekly News updates.

Abhishek Chansoria (1st 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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Legal Updates

In this new feature of our blog, we will be bringing you all that has happened in the legal world last week. We hope that the augmentation of these news will be helpful for all of us in updating ourselves.

Updates: 13th October to 18th October 2014.

The Last week started with the SEBI barring DLF and six executives from entering the securities market and from buying or selling securities for three years. This follows the failure of DLF to provide key information on subsidiaries and pending legal cases at the time of its 2007 public offering. This might be a crucial decision taken by SEBI and it remains to be seen what course the court takes on this issue.

The Delhi High Court laid down guidelines in examining child witnesses when it overruled a judgment of the Dwarka District Court acquitting the accused in the rape of a 3 year old girl. The Court referred to Section 118 of the Indian Evidence Act, which states that the testimony of a child can be considered as a basis of conviction provided the child understands the questions. The Court criticized the approach of the trial court which had held the testimony of the child to be inadmissible.

AIADMK supporters had a reason to cheer and celebrate as the Supreme Court granted bail to the party supremo J. Jayalalitha and suspended the trial court’s sentence on a condition that there will be no attempt to delay the criminal proceedings in the Karnataka High Court. There can be different stands of legal scholars on this but as for the courts are concerned, they would take reason and practicality in accord for now.

The CIC has held that during the pendency of a RTI application the relevant record should not be destroyed by the public authority even if it’s weeding out policy permits. The CIC has cautioned that such a destruction of record would be a serious breach of the Right to Information Act.

India says no to unilateral opinion. The Government of India has told the American authorities that they will not be co-operating USTR’s Special 301 Out of Cycle Review (OCR) process. Indian authorities have said that they would engage US in bi-lateral dialogue mechanisms under the new IP working group, rather than the unilateral process.

The e-commerce business and its meaning and limits are being tested in the courts now. In the last week development, the famous WWE (World Wrestling Entertainment, Inc.) filed suit of infringement and passing off against an Indian company. The question that was settled was regarding the ‘carries on business’ in cases of e-commerce. The Delhi High Court has concluded that the jurisdiction will be determined by the buyer’s place of residence. This was supported by the interpretation of section 134(2) of The Trademark Act and section 62(2) of The Copyright Act along with section 4 (“contracts would be completed at the place where the acceptance is communicated.”) of the Indian Contract Act.

And here is some new for the ‘firsts’. The Controller General of Patents Designs and Trademarks recently launched a couple of features on online search services for patents and trademarks to make the search process easier and provide transparent results. The features include innovative tools such as “Stock and Flow”—a utility which existed for trademarks, has now been extended to patents also. The Indian Patent Office is the first in the world to achieve such transparency.

Now, its time for some filmy news. The Allahabad High Court has issued a notice to the makers of the film ‘Haider’ on a PIL filed by the Hindu Front for justice on the grounds that the movie was against national interests. The petitioner have criticized that the movie shows the Indian Army in poor light and song sequence was shot in the Markand Sun Temple with actors dancing with their footwear.

Red Chillies Entertainments Private Limited’s film ‘Happy New Year’, starring Deepika Padukone and Shah Rukh Khan which is set to release in theatres across India on 24th October, has recently obtained a John Doe order from the Bombay High Court dated 14th October. It will be interesting to follow this case for what remains to be a potential area of IP.

We hope that this summarizes the last week legal 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.'

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"Removal of English Language Comprehension Skills section from UPSC Prilims Examination"

 अनुश्रुत                                                    AnuZ ruta

                               This is summary of discussion conducted by AnuZruta: the IIT Law                                School  Knowledge club, which is students' initiative in Rajiv                                          Gandhi School of  Intellectual Property Law, IIT Kharagpur.

Removal of English Language comprehension skills section from the UPSC Prelims Examination has been the subject of continuous debates over the past some time. The team of AnuZruta organised an open discussion on the same where every member put forward their views and gave new dimensions to this issue.

A section of the members sided with the UPSC candidates stating that English was not really necessary when contemplating the aptitude of an eligible student. Stating how the aptitude of a person does not depend merely on his language skills, the members argued that the onus should be on providing an equal opportunity to all, in which the English language can prove to be a hindrance. Members also pointed out that at the end of the day majority of the Indian population is Hindi-speaking, instead of English. In fact, interpreters could be used to act as intermediaries wherever and whenever communication issues arise. Members even gave examples of their personal experiences, and justified that English was not needed for IAS officers posted in rural areas.

At the same time, there were enough supporters of the view that English is a link language and hence, should be included in all major examinations when forming the administration of our country. Giving examples of how Patent claims, lawyers claims, official gazettes etc were written primarily in English, the members debated that in the era of globalization the importance of English can never be understated.  CSAT tests the knowledge of a candidate related to basic science and general knowledge, and English too should be compulsorily included as a basis level. To counter the statistic that India includes major Hindi-speaking population, these members proved how majority of these candidates opt for an English-medium paper.

In the end, all members put forward some common solutions to this row. All agreed that the UPSC examination should be language neutral and a thorough survey should be conducted to propose a new format of the exam. A common consensus was drawn to harmonize the standard of English language taught in different states/boards so as to give equal opportunity to all. It was also suggested that the course and the exam could be segregated to test the English proficiency according to the requirement of that candidate needing to know the language.   

   

Team AnuZruta,

Rajiv Gandhi School Of Intellectual Property Law,

IIT-KGP, Kharagpur.

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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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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