Bombay High Court denies Barobax ex-parte relief

Tania Sarcar, who has previously blogged for us over here and here, has sent us this guest post on the first day hearing in the suit for copyright infringement filed by an Iranian band against the producers, music directors of Agent Vinod. 

Bombay High Court denies Barobax ex-parte relief

by 

Tania Sarcar

The recent controversy in Bollywood over alleged copyright infringement by Bollywood came to light when Barobax Corp, an Iranian music company served a legal notice seeking an injunction against Eros International Media, Illumanati Films Private Limited, music director Pritam Chakroborty and Super Cassettes Industries Limited. 

Barobax Corp alleged that the initial portion of ‘Pyaar Ki Pungi’ from the movie Agent Vinod has been copied from their composition ‘Soosan Khanoom’ which was released in January 2010. The case was heard on 22nd March 2012 before Justice S.J. Vazifdar. 

Barobax Corp is a music company founded by three musicians Khashayar Moradi Haghgoo, Keivan Moradi Haghgoo and Hamid Forouzmand in Canada. It is noteworthy that these three musicians- Moradi, Keivan and Hamidare are also the original owners of copyright as per the copyright registration certificate. They had composed "Soosan Khanoom" as one of the songs of their band also known as Barobax. 

After hearing the arguments and examining the copyright certificate of “Soosan Khanoom" which has been registered in Canada, the court found that the original copyright is in the name of these three Iranian musicians Moradi, Keivan and Hamid and not Barobax Corp. Furthermore, the Court held that there was nothing on record to establish the fact that these musicians had assigned their copyright to the company. Therefore, the court held that Barobax Corp did not have the locus standi required to file a suit for copyright infringement under the Copyright Act, 1957. 

The Court did not find it necessary to examine both “Soosan Khanoom" and “Pyar ki Pungi” to judge whether there has been an infringement or not. There would have been investigation had the suit been filed in the names of the three musicians. The order of the court can be accessed online and is available here. 

In the earlier post which reported this controversy, it was mentioned that it is not certain whether Iranian nationals have the right to sue in India as Iran is not a member of WTO and hence not recognized by India under the International Copyright Order. This order recognizes the foreign countries which have granted Indian citizens reciprocal rights therefore allowing the citizens of those countries to assert similar rights in India. Iran does not feature under any of the schedules in the International Copyright Order. 

Barobax’s website can be accessed at http://barobax.com/

Madras High Court passes its first-ever 'John Doe' order

In an order dated the 29th of March, 2012 Justice Vasuki passed the first-ever ‘John Doe’ order in the history of the Madras High Court. This order was passed in the case of R. K. Production (producers of '3') v. B.S.N.L & 14 other ISP and several yet to be named ‘John Does’ or ‘Ashok Kumars’. The Plaintiffs in the present case were represented by Mr. A.A.Mohan, a leading IP practitioner before the Madras High Court. The order can be downloaded over here. 

A ‘John Doe’ order is basically a simple ex-parte interim injunction with the added benefit that the Plaintiff is given liberty to add to the array of parties, infringers who have been identified after the filing of the suit. These orders are an exception the general rule which requires the defendant to be identified prior to the filing of a law-suit. The ex-parte interim injunction then applies against even the later defendants. In the original version the ‘John Doe’ order was usually combined with an ‘Anton Piller’ order which used to allow for the seizure of any infringing material. The concept of the ‘John Doe’ order evolved in a setting where it was necessary to operate quickly against ‘fly-by-night’ operators who did not operate out of a fixed location. 

This order of the Madras High Court is the latest in a series of orders by High Courts across the country targeting ISPs in cases of copyright infringement of either music or movies. 

The facts of the case are simple, the Plaintiffs are the producers and copyright owners of the Tamil film ‘3’ which also by the way features the super-hit number ‘Kolaveri-Di’. The movie is releasing today i.e. March 30th and is expected to be quite the super-hit. The Plaintiffs apprehending large-scale piracy of the movie over the internet, filed a qua-timet action before the Madras High Court seeking ex-parte interim injunctions against 15 Internet Service Providers (ISPs) and several un-named ‘John-Does’ who can be identified as parties to the suit at a later stage as and when their infringing activities are picked up by the Plaintiffs. The ISPs are required to prevent the copyright infringement of the film which means that they are supposed to actively police their users and ensure that nobody is accessing or sharing copies of the movie ‘3’ over their networks. The Delhi High Court has granted similar orders to Reliance Entertainment prior to the release of ‘Singham’. Swaraj had done an interesting post on how the Delhi High Court order wrecked total havoc amongst Indian internet users. 

In the present case, the order of the Madras High Court is quite broad and although it is targeted primarily at ISPs, it also prohibits the infringement of copyright through different mediums such as CDs, DVDs, VCDs, Cable-TV, pen-drives etc. The order can apply to virtually any kind of pirate who after being named in the suit, will also have to deal with the danger of being ‘labelled’ a goonda and packed off to prison under Tamil Nadu’s preventive detention laws. Personally, I'm, very sceptical about the efficacy of these orders against ISPs. 

Regardless, the fact of this judgment and its publication in newspapers across the country will serve to put some fear into the minds of possible video pirates. We must however not forget the larger debate on the liability of intermediaries in such cases. Amlan’s done some interesting posts on this point.

Is the TKDL a ‘confidential database’ and is it compliant with Indian copyright law?

I recently filed a RTI application with CSIR requesting for certain information on the Traditional Knowledge Digital Library (TKDL). The main aim of this RTI was to understand the legal basis of the TKDL being a confidential database. Of course, there were some other questions that I raised in this particular RTI. Image from here. The questions in this RTI Application were as follows: 

(i) Can any citizen of India access the Traditional Knowledge Digital Library (TKDL) that has been created by the Council for Scientific & Industrial Research (CSIR) or is the TKDL considered to be confidential? 

(ii) In case the TKDL is considered to be a confidential database, you are please requested to provide me with details/photocopy of the legal instrument or the order of the CSIR which has deemed the TKDL to be a confidential database. 

(iii) Are scientists of the CSIR allowed to access TKDL for the purpose of their research? 

(iv) What is the mandate of the TKDL? Is it only required to collate data or is it also required to actively object to foreign patents which misappropriate Indian TK? 

(v) Has CSIR secured the permission of copyright owners of the books which it has digitized for the purpose of the TKDL library? 

The entire response by CSIR, to this RTI can be accessed over here. 

In response to the first question CSIR replied, predictably, that the TKDL was considered confidential and that it could be accessed only by foreign patent offices such as the USPTO, EPO & JPO. Surprisingly and slightly shockingly, the Indian Patent Office is not mentioned in the list of patent offices with access to the TKDL. CSIR however also mentions that that around 1200 ‘demonstration formulations’ from three disciplines such as Ayurveda, Unani and Siddha are in ‘open domain’. 

In response to the second question, which pertained to the legal instrument that deemed the TKDL to be confidential, CSIR provided me with an extract from Cabinet meeting in 2006. CSIR’s implied answer appears to be that this extract forms the basis of deeming the TKDL to be a confidential database. You can read the entire note in the link that I have provided above. I didn’t notice any such statement anywhere in the document, which deemed the TKDL to be confidential. Unless I’ve missed something – have I? To briefly conclude, I don’t think there is any legal basis for CSIR to deem the TKDL a confidential database. Anybody filing a RTI Application asking for the entire TKDL on a couple of DVDs should be given access to the same. The larger question however pertains to the requirements for deeming a certain document to be ‘confidential’. In my view unless there is a Parliamentary instrument deeming a certain document or certain class of documents confidential, the same is open to public scrutiny. Surely the babus in CSIR cannot decide what is confidential and what is not. 

In response to the third question i.e. whether CSIR scientists had access to the TKDL, the response clearly states that CSIR scientists do not have any access to the TKDL for their research activities. 

In response to the fourth question on the precise mandate of the TKDL, the response indicates that the TKDL’s mandate is limited to “establishing all steps necessary for establishing prior art on Ayurveda, Unani, Siddha etc. at International Patent Offices before grant of patent”. However as explained in this earlier guest post, TKDL is actively examining patent applications filed before the EPO and providing inputs to the EPO. While there is nothing per se objectionable to this practice, there is the question of establishing the basis of such an action in the law. TKDL has to function within the parameters of the law that has established it. If the RTI response is correct in stating that the TKDL is supposed to only create a database, on what basis is the management of TKDL intervening in the patent examination process before the EPO? Moreover, if the TKDL is to be used in such a proactive manner, it should be removed from the purview of the CSIR because of a blatant conflict of interest since as explained in an earlier post CSIR is filing for a large number of patents in foreign countries. 

The fifth question pertained to certain copyright issues surrounding the TKDL. The TKDL project is basically the collation of all TK information available in India, into a single digitized database with the available information being translated into several different foreign languages. Basically, it is the TK equivalent of the Google Book project. It was an ambitious project by any standard. As per the TKDL website, the source of most information in the TKDL is various books published on the subject. A bulk of the information appears to have been sourced from 151 books on Ayurveda, 33 books on Unnani, 137 books on Siddha & 38 books on Yoga. Several of these publications are quite recent and involve an element of creativity in the sense that they are translations or compilations of existing information which can be protected as literary works under the Copyright Act, 1957. The question that I had posed to CSIR was whether permission had been taken from the copyright owners before these books had been digitized and translated. CSIR’s answer was quite surprising. They stated that the text of these books date back to several hundred years, up to 2500 BC therefore putting all these texts outside the purview of copyright laws. The implied answer therefore is that CSIR does not require to negotiate for any permission with the copyright owners. 

For the reasons already explained above, this understanding is completely flawed. As the TKDL website itself indicates, several of those books are translations or new compilations published only in the nineties. All such works will have individual copyrights in them. While the Copyright Act, 1957 may be viewed as an unnecessary hindrance, it is the law of the land. It is most regrettable that while CSIR spends crores of public money in protecting its own intellectual property, it does not deem it necessary to take the permission of private citizens before using their intellectual property. 

An ancillary issue at this stage is whether the publishers of these books can sue even the USPTO and the EPO for using such a database which appears to have seriously violated several international copyright treaties. This is of course an academic question since it is unlikely that these publishers will ever sue the USPTO or the EPO.

Zanjeer Remake should seek Scriptwriter's Permission: Javed Akhtar speaks outAkhtar

(Picture taken from here)
The regular readers of Spicy IP will undoubted be aware of the numerous controversies involving various rights associated with the so-called ‘remakes’ of popular movies in Bollywood. Allegations regarding unauthorized ‘borrowing’ of movie scripts, plots, scenes or music compositions have cropped up a dime a dozen in the recent times, often starting as lawsuits against the producer/director of the new movies that have culminated in out-of-court settlements. (For prior examples of different categories, see here, here and here). Script battles with regard to copyright are also legion in terms of numbers. However, not least contentious is the issue whether a remake, while seeking to ‘improve’ upon the original version of the movie and at the same trying to capitalize upon the latter’s popularity, ends up infringing the moral rights of the author of the script. This matter has once again come to the forefront courtesy to one of the all-time great writers in Bollywood, Javed Akhtar, who had once come up with the script of one of the biggest Bollywood hits Zanjeer.

Recently, plans have been aired of remaking Zanjeer by the Amit Mehra, the son of the director-producer Prakash Mehra, who’d come up with the original version. However, while Mehra would not have had any difficulty in obtaining rights over scripts etc., what irks Akhtar is the fact that his permission as the writer had never even been sought, nor was he even notified of the fact that somebody now wishes to modify what he’d once gone to great lengths to create. That is something which he feels should not be allowed to happen.

A long-time campaigner for according rights to the authors for their creation, Akhtar refers to the provision on moral rights of the creator as envisaged by the current Copyright Act, 1957 (for a detailed discussion on the moral rights under this Act, see here). According to him, such right can neither be transferred nor be stolen from the author and even if a person obtains subsequent rights over a script, in order to make any change, author’s permission must be sought. After all, he reasons, one can very well buy a masterpiece of M.F. Hussain and keep it in his house, but that doesn’t give him the right to make changes to the painting!

Akhtar seems to be eagerly looking forward to the upcoming Copyright (Amendment) Bill 2010 (for a discussion on the amendments sought to be introduced, see here), which seeks to provide independent rights to creators of literary and musical works in cinematographic films, entitling them to royalty that was denied to them so far. This Bill, according to him, should address some of the problems that the writers in this country have always faced vis-a-vis their creative rights. He’s also bothered about the perception of lyricists in general, alleging that they seldom get the respect they deserve and their performances have traditionally been judged on a completely wrong set of parameters.

One hopes that the Bill, once it comes into effect, will seek to put at least some of the debates surrounding the film industry at rest, providing all the contributors with their deserving rights and leading to an overall improvement in the copyright scenario in India.

CSIR spends a whopping Rs. 74.24 crores on securing patents in India & abroad; refuses to disclose revenues from patent licensing

The Council for Scientific & Industrial Research (CSIR), India’s premier civilian scientific research establishment has recently disclosed in response (available here) to a RTI Application filed by me that it has spent a whopping Rs. 74.24 crores or Rs. 74,24,00,000 on securing patents for its inventions in India and foreign countries. Of the Rs. 74.24 crores, only a paltry sum of Rs. 1.78 crores was spent on securing the Indian patents. The remaining Rs. 72.46 crores was spent on securing patents around the world including jurisdictions like the U.S., Japan & the E.U. Image from here. 

As of today, CSIR has 1872 active patents in India. The number of active patents in other jurisdictions is as follows: 813 in the U.S., 328 in the E.U., 147 in Japan and 829 in other countries. 

With respect to the following question, the CSIR completely evaded providing any answers: 

Please provide me with details of the revenues/profits earned by CSIR through licensing of its patents in India and other countries, for the last ten years. By details, I mean the following: 

(a) The patent number which has been licensed along with the title of the invention; 

(b)The value of the licensing deals in Indian Rupees or relevant foreign currencies; 

(c) The name of the person or company to whom a licence has been issued; 

(d) The duration of the licensing deal. 

With respect to questions (a) & (c), the CSIR HQ makes the shocking claim that it does not even keep a record of the patents granted to its different laboratories and that I will have to apply individually to each of its 39 odd labs. How is it that CSIR has a track of the amount that it has spent on securing all its patents but no information on how these patents are licensed to the industry? Such a claim is particularly disturbing since CSIR boasts of its own Intellectual Property Management Division (IPMD). It is the mandate of this Division to keep such records and yet the CPIO claims that the CSIR HQ does not maintain any such records. 

With respect to questions (b) & (d), the CSIR HQ responds with the standard nonsense on how the information is treated as ‘commercial confidence’ and ‘trade secrets’ and that disclosure of such information may harm the competitive position of the third party. This is like the Central Govt. saying that we cannot disclose the licence fee for 2G licences because it may harm the competitive positions of the various telecom companies which have been arbitrarily granted licences. The bottom line is that if the invention has been funded with public money and the patent has been secured with public money then the information is open to public scrutiny. What is CSIR going to do when CAG comes knocking on its doors? Moreover, I recently found this presentation by a CSIR official, where he discloses the financial details of several licencing deals with commercial entities. Why is it okay for him to discuss these figures in the public when CSIR considers them to be confidential? 

It is most unfortunate that CSIR continues to try and hide itself behind a veil of secrecy. As we have seen in the past, such secrecy is an open invitation to corruption, inefficiency and unaccountability.

In response to my last question on CSIR’s revenue sharing policies with its employees, we were given a copy of some guidelines on the point. The guidelines however seem to govern only consultancy or third-part funded research. This would basically cover the Patent Office-CSIR agreements for recruiting patent examiners and conducting prior art research. A part of this money from the Patent Office deals goes directly to CSIR employees. The guidelines do not seem to cover the transfer of royalties from public funded research. The Indian version of the Bayh-Dole Bill is likely to cover this aspect. However given the lack of transparency at CSIR, I would think that the Government may want to add additional safeguards to the draft version of the Bill.

SpicyIP Announcements: 1st Annual NUJS IP Essay Competition

The MHRD IP Chair at National University of Juridical Sciences (NUJS) and Intellectual Property and Technology Law Society (IPTLS) is organizing the 1st Annual NUJS IP Essay Competition. All students enrolled in accredited graduate programs in law, social sciences or in any related field are eligible to participate in the competition. 

Topic: Should the process of creating an invention or work determine its protectability as an intellectual property?

The Winning entry will receive Rs. 10,000/- and will be eligible for publication at the NUJS Law Review. The runner up will receive Rs. 6000/-, and the third best entry will receive Rs. 3000/-.

Word Limit: Entries should not be more than 5,000 words including footnotes and references. Entries exceeding the word limit would automatically disqualified.

Deadline: Entries close on May 12, 2012

The terms and conditions of the competition are available at www.nujs.edu. All queries should be addressed to iptls@nujs.edu.

My Ad or No Ad: Bharat Matrimony sues Google for Anti-Competitive Behaviour in Advertising

Consim Info Pvt. Ltd. filed yet another complaint against Google Inc. last month, only this time it’s before the Competition Commission of India (CCI) for ‘engaging in discriminatory and retaliatory practices relating to AdWords’. In a statement to the Economic Times, the complainant alleged that Google abused its dominant position in online advertising and it requested the Commission to impose measures for ensuring fair competition. The anti-competitive practice in question is the display of links of its competitor, Shaadi.com and Jeevansathi.com as ‘sponsored links’ next to the generic search results when ‘Tamil Matrimony’ (the complainant’s trade name) is keyed in. This complaint comes after an unfavorable interim ruling by the Madras High Court in 2010 to a petition for an injunction against Google for the sale of its trade name as keywords (such as Bharat Matrimony & Tamil Matrimony) to its competitors for triggering ads. The Court dismissed all charges of contributory trademark infringement against Google as the protected words (i.e. Tamil & Matrimony) were ‘descriptive’ of the trade and it lacked the intention to infringe Consim’s trademark (read Prashant’s post here for an in-depth analysis of the judgment). 

Back to the complaint, Google made a whopping $28 billion from AdWords in 2010 alone and it enjoys a humongous 85% share in the online search engine market. Despite having to defend several allegations of antitrust and trademark violations, in a bold move Google revised its trademark policy in 2010 with a view to allow larger pool of keywords for advertising. Now the Commission has to examine whether this policy could lead to anti-competitive behavior. 

Google's Trademark Policy in Advertising

Google’s AdWord creates a platform for online advertisers to bid for search terms to trigger their ads as ‘sponsored links’ next to the generic search results. The list of sponsored links is drawn based on similarity between the search terms and keywords bid by advertisers with the highest bidder ranked one on the list and so on. So, it is possible for Shaadi.com to be ranked higher than Tamilmatrimony.com for placing a higher bid. Precisely for this reason the trademark owners argue against a free-for-all biding in keywords as it allows competitors to use their protected words to trigger their ads thereby taking advantage of their goodwill. This is akin to saying that Shaadi.com and Jeevansathi.com are misappropriating the goodwill of Tamil Matrimony when their ads are displayed when searched for the latter. On the other hand, Google is reluctant to expand the width of trademark protection to proprietors of the mark. They fear that any restrictions on the use of keywords would allow trademark proprietors to monopolize and control information to the users. 

According to their latest policy, Google undertakes to investigate complaints from proprietors for the use of their marks as keywords or in the ad text or both, depending on the extent of trademark protection that each country provides. In countries which offer stronger protection, Google removes ads which use protected words as both keywords and in the ad text. Australia and Brazil are noticeable ones in this category. In jurisdictions with moderate trademark standards including India, Google investigates complaints from owners for the use of protected words in the ad text alone. Lastly, countries like the U.S and the U.K offer weak protection as certain advertisers are exempted from liability for using protected words in their ad campaigns. This class of permitted advertisers includes resellers, sellers of parts corresponding to the trademark, informational sites and the like. Microsoft’s Bing and Yahoo! also allow biding on protected marks by resellers, informational sites and for generic use and comparative advertising under few circumstances.

Jeevansathi.com and Shaadi.com were absolved of any liability only because the protected words were descriptive of the trade and hence saved under Section 35 of the Trade Marks Act, 1999. Section 35 exempts the use of protected words for a bona fide description of the trade. In India, Google investigates complaints only in the ad text and keywords are left out. The Madras High Court, however, did not make any distinction between the use of protected marks in the ad text and invisible keywords. Therefore, Google is legally bound to investigate the use of protected marks in keywords in addition to ad text. 

At present, Google does not investigate into situations in which non-trademarked keywords trigger ads when searched for a protected mark. While the trademark owners raise serious objections to this, the Madras High Court absolved Google of this burden because it is impossible for them to be aware of registered marks of all jurisdictions. Although the Court accounted for logistics in dealing with Google’s role, it also cautioned against permitting the use of arbitrary and fanciful words in the keyword suggestion tool. For instance, Apple Inc. should not be allowed to bid for ‘Microsoft’ as a keyword. Google would be vicariously liable if the ad is not disabled even after it has been brought to its notice by the trademark owner. It is precisely for this reason that the trademark policies of all these search engines shift the burden on the advertisers to ensure that the selected words does not violate the IP rights of any third party. 

In few jurisdictions, courts have appreciated the merit in the argument that the display of competitors’ ads is likely to cause confusion among users. On the other hand, the Madras High Court, in its entire analysis, laid emphasis mostly on the ‘use of the mark’. Applying this standard, Google is safe as long as it ensures that the exact mark is not used as a keyword. Illustratively, an ad by the name ‘Make my Trip’ for terms ‘Trip Advisor’ would not be an infringement of the latter’s trademark as long the keywords used are ‘trip’ or ‘trip’ and ‘advisor’ instead of ‘trip advisor’. 

On a separate note, Consim failed to establish that its competitors took unfair advantage of its goodwill contrary to honest practices in their trade in terms of Section 29(8). Furthermore, Section 30 of the Act expressly encourages the use of a registered mark as long as such use is an honest practice in that trade and does not take any unfair advantage of the goodwill. The only restrictions on the use of protected words in online advertising seem to be limited to protecting the legitimate rights of the owner and nothing more. 

The Question of Unfair Competition

(i) Abuse of Dominant Position: Advertisers, trademark holders and more importantly, the consumers are the major stakeholders in an online ad campaign. Arguably, Google is in a position of dominance capable of affecting the consumers and the advertising market. As per Section 4(2)(a) of the Competition Act, 2002, Google is prohibited from imposing any unfair or discriminatory terms in the provision of advertising services. This, however, should not be misunderstood as imposing an obligation on them to promote competition through advertising in any particular trade. 

The Trademark Act, 1999 prohibits competitors from profiteering from the goodwill of others except for honest trade practices. Therefore, Google would be secondarily liable if it allowed advertisers to benefit unfairly from the reputation of a well-known mark. Google’s advertising policy might have affected a few trademark owners like the case at hand. This, however, is certainly short of violating their legitimate rights, as is evident from the above.

When it comes to advertisers, Google cannot prevent Shaadi.com from using characters that are descriptive of their trade. Any other restrictions not founded in trademark law could give arbitrary powers to Google to unreasonably deny the use of certain words. At the same time, preventing Bharat Matrimony from bidding for their protected marks to trigger their ad would be discriminatory. While it is for the Director-General to investigate into any malpractices relating to the auctioning of any keywords, Google’s policy does not seem to impose any conditionalities on advertisers apart from cautioning them to indemnify in case of any violation of rights. Seen this way, it is indeed anti-competitive to prevent the use of protected words as keyword despite when there is no confusion. 

Needless to say, free-for-all biding of keywords would allow ads by competitors which enable consumers to make an informed choice. Hence, the existing policy promotes competition in advertising beneficial to consumers. Moreover, the explanation to sub-section 4(2)(a) clarifies that any conditions imposed to promote competition are not deemed to be discriminatory or unfair. Google’s obligations extend only to the point where legitimate interests of owners are not violated. On the whole, the trademark owners are not being prejudiced by dominance of the search engine.

(ii) Anti-Competitive Agreements: The advertiser enters into a vertical agreement with Google for the provision of advertising services. Section 3(1) requires that Google’s actions do not result in any ‘appreciable adverse effect on competition within India’. Google does not negotiate all agreements with each advertiser. Therefore, the CCI cannot take any action unless there is evidence to suggest that the search engine has colluded with any advertiser causing prejudice to any other competitor. 

Moreover, the text of Section 3 does not support any imposition of constraints on use of words in the present context except for violations of IP rights. From the definitions provided as explanation to Section 3(4), it appears that the effect of any alleged anti-competitive should have a restrictive or limiting effect on provision of services on few persons. Bharat Matrimony is free to carry on their ad campaigns on Google just like its competitors. 

Conclusion

On a milder note, Google’s advertising policy should not be scrutinized with strict standards of trademark protection. The apparent distinction between organic search results and sponsored links reasonably mitigates any confusion among users regarding its origin. Moreover, consumers do not expect Google to serve a public function in providing sponsored links. 

Conversely, in a similar matter the U.S. District Court in Nevada accepted the arguments of the defendants that the plaintiff (trademark owner) has ‘battled to censor and impede the universe of information that can be passed on to consumers; and conspired to ensure that consumers never taste the fruits of competition’. The Court also agreed that it would be ‘anti-competitive’ and ‘monopolistic’ to disable an advertiser when searched for any trademarked product. 

For now we have to wait until the Director-General of the Commission investigates further on Consim’s complaint.

Image from here.

SpicyIP Announcements: Socio-Legal Review Essay Competition

The Socio-Legal Review, the student edited peer reviewed journal of the National Law School of India University, Bangalore is holding the 2nd Annual SLR Essay Competition.

Students from law schools and other undergraduate courses in India and around the world can participate and submit their essays on the topics mentioned below.

1. Emergent Civil Society: Redefining or negating participative democracy?

2. Rule of Law in Fledgling Societies: Is parliamentary democracy still the best solution? Discuss and highlight possible alternatives in light

of the Arab Spring and Occupy Protests.

3. Freedom of Speech and Role of the Media: To what extent can and should the Press Council of India regulate content and reduce sensational journalism

Word Limit: 2,500 to 3,000 words (exclusive of footnotes) and the essay is to be submitted via email to sociolegalreview.nls@gmail.com and the deadline for submissions is 30th April, 2012

The essay competition is supported by a trust floated by Smt and Sri S.V.Joga Rao (visiting professor, NLSIU) In memory of their parents

Additional information can be found on the website www.sociolegalreview.in

Mayo v. Prometheus: Natural law ++ Significant application ~ Patent

The United States (US) Supreme Court recently invalidated an extremely broad patent, allowed by the Federal Circuit (CAFC), covering a method for determining the proper dose of a drug used to treat autoimmune disorders.  We had previously, in a guest post by Sooraj Abraham, briefly discussed about the case, Mayo Medical  Labs. v. Prometheus Labs., Inc.  This post provides a briefly discusses the judgment   in Mayo, and its implications upon Indian patent law.  

In Mayo, a unanimous Court held that an individualized patient dosing strategy is not eligible for patent protection because the process is effectively an unpatentable law of nature.  The CAFC had earlier held that the claims were patentable because they included substantial physical limitations.

In reaching the conclusion, the Court discussed Einstein's theory of relativity, and Newton's laws and stated that neither would have been patentable.  Similarly, an individualized patient dosing strategy could not be patented merely because the discovery that the blood level of a compound in a human correlated with   dosage of a drug.  In the court's opinion, Justice Breyer wrote that the patent "simply tells doctors to engage in well-understood, routine, conventional activity previously engaged in by scientists who work in the field."

Two distinct conclusions may be made from this decision.  (1) Law of nature (even if newly discovered) is itself unpatentable- (as before); and (2) An application of that law of nature (even if newly discovered) must not merely rely upon the application of the law, but add to the law.  Although “laws of nature, natural phenomena, and abstract ideas” are not patentable subject matter under §101 of the Patent Act, Diamond v. Diehr, 450 U. S. 175, 185, “an application of a law of nature . . . to a known structure or process may [deserve] patent protection,” id., at 187.  But to transform an unpatentable law of nature into a patenteligible application of such a law, a patent must do more than simply state the law of nature while adding the words “apply it.”  See, e.g., Gottschalk v. Benson, 409 U. S. 63, 71–72. It must limit its reach to a particular, inventive application of the law. 

"...[A]n application of a law of nature or mathematical formula to a known structure or process may well be deserving of patent protection.”  On the other hand, the “application” must be “significant,” not “too broadly preempt” use of the law, and include other elements that constitute an “inventive concept” that is significant and separate from the natural law itself. "

Justice Breyer in this decision wrote, that the Supreme Court had, "....the cases have endorsed a bright-line prohibition against patenting laws of nature, mathematical formulas and the like."  However, the Court did not rule out other highly debated patents (software patents?).  Hence this judgment in my opinion, is totally focused on the issue at hand (that no patents for correlating metabolite level and drug dosages) and does not provide guidance on these other areas, leaving them for another case.

Implications upon Indian law:  This decision provides enough guidelines (standard paragraphs) to examiners to refuse applications on the grounds that it is merely an application of law of nature without any additional elements that constitute an inventive step.  
As a side note, the subject line indicates that, an applicant must significantly to a natural law to maybe obtain a patent.

Guest Post: Madras High Court overrules IPAB on 'Rhizome Imperial Gold'

Arun C. Mohan, a practising IP lawyer before the Madras High Court has sent us this interesting post regarding the mark 'Rhizome's Imperial Gold' which was under litigation before the IPAB and subsequently the Madras High Court. This is yet another judgement in the long-running litigation in India between Rhizome and Pernod Richard S.A over the mark 'Imperial' in various permutations and combinations. Arun adds the disclaimer that his firm represented Pernod Richard S.A. in this matter

Madras High Court overrules IPAB on 'Rhizome Imperial Gold'

by

Arun C. Mohan 

The Madras High Court has recently delivered a very remarkable order in a writ petition against an order of the IPAB. The order can be found here. (unreported) Image from here. 

The mark in dispute was “RHIZOME’S IMPERIAL GOLD” vesting with M/s Rhizome Distilleries. The applicant (M/s Pernod Richard, France) before the IPAB was the proprietor of the well known mark “IMPERIAL BLUE”. Pernod Richard also held other registrations including “IMPERIAL RED”. There were also infringement proceedings before the Delhi High Court and Supreme Court instituted by Pernod Richard, at the end of which there was no injunction operative on Rhizome from using “RHIZOME’S IMPERIAL GOLD”. The DHC made some interesting observations as to the word ‘Imperial’ being sui genris in arriving at such a conclusion. 

The IPAB however, cancelled Rhizome’s mark “RHIZOME’S IMPERIAL GOLD” on the grounds that 

'the registration of the trade mark 'IMPERIAL GOLD' is in contravention of the provisions of section 11 of the said Act; the writ petitioner's trade mark was causing confusion and deception in the minds of the public; the 4th respondent has been using the similar identical trade mark since 1997, whereas the writ petitioner has adopted the trade mark only in the year 2002, but launched the product bearing the impugned trade mark in the year 2006; on the date of application for registration by the writ petitioner in the year 2002, the 4th respondent's trade mark was already put to use and there was likelihood of confusion and deception; further more, it is the contention of the 4th respondent that they are the registered proprietor of IMPERIAL RED, IMPERIAL BLUE, etc. and in such circumstances, there is every possibility to cause confusion'. 

Rhizome appealed against the Order before the Madras High Court. The Madras High Court reversed the order of the IPAB. The Court made the following observations in this Order which will have far reaching consequences in petitions before the IPAB: 

1. The grounds embodied under sections 9 and 11 are available to the persons only at the time when they raise objection for registering the trademark. The said principles cannot be applied for rectification of the registration. 

2. Observations/findings on interim applications in proceedings before a court in infringement/passing off would have bearing in IPAB proceedings. 

3. Submissions/filings made before other statutory authorities, which are not opposed, could amount to acquiescence and latches for the purpose of TM law. 

4. Other IP rights such as a registered copyright would have effect in a rectification proceeding. 

I find that the observations on ss 9&11 seem to be a complete game-changer. Besides the usual suspects (ss 47, 57, 68 and 77), we tend to rely extensively on the principles in ss 9&11, to provide the “meat & potatoes” of any argument before the IPAB. This observation severely curtails the scope of many arguments before the IPAB. It also throws many existing applications in a flux, as they have extensively relied on ss 9 and/or 11 to make out a case for allowing/dismissing rectifications before the IPAB. This observation creates a rather cumbersome dichotomy on objections to be raised against marks, pre-registration and post-registration. This observation, if given finality, would greatly increase the onus on proprietors of marks to keep a watch on TM journals to oppose applications appropriately. This Order could have an avalanche effect on other orders of the IPAB till date, which have extensively relied on ss 9 and 11 to come to findings. 

On the other observation of the Court, as to the applicability of interim applications, with due respect, is rather difficult to live with. In evidentiary terms, the IPAB functions as a court of 1st instance. It ought not to be influenced by proceedings which are constantly susceptible to change. Assuming the IPAB relies on an interim application to come to certain findings, and the interim application is reversed in trial, where does that leave the IPAB order? Would a review have to be filed then? Or the interim application is set aside by another interim application? I believe that the IPAB’s present stance that it will not be influenced by interim applications is very right. This allows the Board to make a free and unprejudiced decision strictly upon the set of facts before it. Given that IPAB proceedings are generally parallel to infringement proceedings, this Order restricts the possibility of an IPAB order which would conflict with an interim order of a Court. Is this a good thing? 

Incentivising Diseases?

Image from here

In the recent post on India’s first post TRIPS era compulsory license, a comment by Hersh Sewek brought up a very relevant question of how, if at all, this affects the innovation eco-system in India. Shamnad pointed out that very few papers have been written about the effects of such licenses on incentives to innovate. Indeed, there’s little concrete information on the amount of incentives required to bring about an increase in innovation. Let’s zoom out of compulsory licenses and look more generally at the incentives that the current drug development regime does give. 

In the field of public health, it is not only the rate of innovation which matters, but also the type of innovation. For instance, the creation of a baldness creams will certainly be appreciated and sold world over and the company which makes this product will doubtlessly have huge profits. However, is it better to have Research & Development costs directed towards baldness creams or towards a cure for say, tuberculosis? The current drug development regime - patent law - doesn’t discriminate between either of these, giving innovators equal incentives in both cases. In other words, the primary innovation system that we are relying on does not determine how socially valuable a drug is. In nearly any other area, the markets can be successfully used to determine to see which products the public values more - however, no body chooses the diseases they are burdened with. Further, they rely on 3rd parties (doctors) who are constantly bombarded by pharmaceuticals to sell more of their products for advice on which drugs to treat themselves. Throw in insurance claims on one hand and poverty seeped patients on the other and suddently the traditional market based incentive structure provides very little useful indicators of accorded value that society places on a product.

Aside from the obvious follow on effect of not having the more socially valuable drugs, Margaret Chan, director general of WHO, recently stated that another potentially devastating situation that may be fast approaching us. Several existing antibiotics may quickly become useless in treating infections. She said

“A post-antibiotic era means, in effect, an end to modern medicine as we know it. Things as common as strep throat or a child’s scratched knee could once again kill.”

She continued: “Antimicrobial resistance is on the rise in Europe, and elsewhere in the world. We are losing our first-line antimicrobials. (See more here)

Why is this happening? Because most antibiotics are in danger of being rendered useless. Continual usage of low dosages of antibiotics, both indirectly through meat as well as directly through our own medicines, has resulted in pathogens developing resistance to existing antibiotics. She justifies how dramatic her potential scenario sounds by pointing out that ‘the pipeline is virtually dry’, referring to the drug development pipeline.

As mentioned above, we are following a system that incentivises the development of any drug that brings in high revenues. Common low risk - high revenue strategies include production of drugs which have been modified just enough to get an extension on the patent term or focusing on lifestyle drugs (treatments for baldness, impotence, wrinkles, etc) which are typically not as capital-intensive. This leaves more necessary and important treatments left unexplored. Several criticisms of the patent system have been raised more and more frequently, however, not enough importance is being put on developing more useful and more efficient alternatives to it. Coming back to what I started with - even if compulsory licenses are not damaging any incentives to pharmaceutical companies - they are but a small bandaid to a much larger wound.

I’m not trying to claim that the patent system can be done away with completely, but the severe deficiencies that are being caused by it must be remedied as soon as possible. There must be more focus on determining and increasing the incentives for providing more important and socially relevant drugs. Drug companies, thankfully, seem to finally be showing some more social responsibility - and I know I’m being generous when I say that - but it may be too little, too late.

Guest Post: The Traditional Knowledge Digital Library and the EPO

Tufty the Cat, who is qualified as a U.K. and European patent attorney and who maintains a blog by the same name, accessible over here has written for us this interesting guest post on the veracity of the several claims made by TKDL. Tufty had earlier left a comment on one of my posts questioning the veracity of TKDL's claim of foiling an European patent application for certain properties pertaining to milk. Subsequent to that comment, I invited Tufty to write us a guest post on the several claims made by TKDL with regard to the several EP applications that it had claimed were either withdrawn or modified as a result of TKDL evidence. Image from here.

The Traditional Knowledge Digital Library and the EPO

by

Tufty the Cat

Traditional knowledge (TK) is often cited as being relevant to intellectual property, and it is sometimes even argued that TK justifies some kind of sui generis IP right. Whether TK could in any sense be considered to be an IP right is contentious, and is not the subject of this post. It is less contentious that TK would at least be considered to be prior art.

Under European law, the state of the art is "everything made available to the public by means of a written or oral description, by use, or in any other way, before the date of filing of the European patent application" (Article 54 EPC). This would certainly cover traditional knowledge, which is often communicated by use and by word of mouth. A problem with such disclosures is that of proof. The EPO is typically reluctant to accept oral disclosures as prior art unless backed up with sufficiently persuasive evidence. This is where the Traditional Knowledge Digital Library supposedly comes in. The TKDL, a collaborative project between the Council of Scientific and Industrial Research and the Department of Ayurveda, Yoga and Naturopathy, Unani, Siddha and Homeopathy, was set up in 2001 to document traditional knowledge that was claimed to be already known in India, sometimes for hundreds of years.

As claimed on the TKDL website, "TKDL gives legitimacy to the existing traditional knowledge and enables protection of such information from getting patented by the fly-by-night inventors acquiring patents on India’s traditional knowledge systems. It will prevent misappropriation of Indian traditional knowledge, mainly by breaking the format and language barrier and making it accessible to patent examiners at International Patent Offices for the purpose of carrying out search and examination". Apart perhaps from the claim about "fly by night inventors", this all seems quite sensible and generally a good thing. After all, patents should not be granted for inventions that are already known.

The TKDL website has a list of European patent applications in which "citation of TKDL references as prior art have led to significant strides towards achieving the goal of preventing misappropriation of Indian Traditional Knowledge". At the time of writing the list refers to 79 European applications that have been either withdrawn, refused or amended, allegedly as a result of TKDL cited references. One of these, EP2251029, was recently the subject of an article in the Times of India, which was noted by Spicy IP. The TofI stated that "India has successfully foiled a bio-piracy bid by a Swiss multi-national firm to patent an age-old Indian home remedy - milk as a laxative". Was this true? Had the TKDL been used in this way, and had a patent application really been made for milk as a laxative?

As expected, the truth is a little less dramatic. The application in question, filed by Nestec S.A. (the Nestlé Research Center in Lausanne, Switzerland) in 2009, was published in November 2010 after having been thoroughly searched by the EPO. The search report cited 17 documents as being relevant to the claimed invention, all of which were relevant to at least claim 1 of the application, which read "Ingestible composition enriched in lactoferrin to be administered to adults and/or the elderly". The European examiner stated in the search opinion dated 23 October 2009, that the application had several problems under European patent law, one of which was that the claimed invention was not new in light of ten of the cited documents.  Following an examination report issued in June 2011 confirming this finding, third party observations under Article 115 EPC were filed by CSIR on 13 September 2011. An extract from the TKDL was provided, citing various compositions including cow's milk for use in the treatment of constipation among other ailments. The applicant then failed to file a response to the examination report in due time, with the result that the application was deemed withdrawn on 24 January 2012.  (Incidentally, this is not yet necessarily the end of the line for the application, as a response can still be filed by 3 April 2012 if the applicant uses further processing.)

From only a quick review of the prosecution file, it is clear that the TKDL references would be far less relevant than any of the ten documents already cited by the examiner.  It is hard to see how the references would make any difference at all to the outcome of the application, which would most likely be refused, or at least substantially limited, as a result of the far more detailed references already cited by the examiner. To claim that the TKDL had "successfully foiled a bio-piracy bid" seems therefore to be plain wrong. 

This was, however, only one case where the TKDL has been used against a European application.  Surely there would be other cases where the TKDL has been effective in stopping a "bio-pirate" from appropriating Indian traditional knowledge? Looking at several of the other applications cited by TKDL, it is not clear that it has been effective in any cases.  There is, as far as I can see, only one instance where an application was refused in light of TKDL documents (EP1747786), and in that case the grounds for refusal also related to documents already cited by the examiner.  In another case claimed by TKDL to have had a decision to grant set aside, the application in fact proceeded to grant and remains in force after no opposition was filed. In the many other examples cited by TKDL, I have been unable to find any where a TKDL reference has been decisive in preventing an application from proceeding. 

From this brief review, it appears on the face of it that the TKDL, although possibly useful in some limited circumstances involving over-broad applications, is of fairly limited use. Although it has been claimed (in the above mentioned TofI article) that thousands of applications had previously been wrongfully granted as a result of a lack of information on traditional knowledge, this seems to be far fetched given that TKDL is unable to provide any convincing examples of applications being refused on grounds of a TKDL reference. Can anyone else find one?

SpicyIP Tidbits: Iranian Pop Band threatens to sue producers, music directors and distributors of ‘Agent Vinod’ for copyright infringement

A PTI report in DNA has reported that an Iranian band, by the name ‘Barobax Corp’, an underground Iranian Pop band, has served a legal notice on music director Pritam Chakraborthy who has composed the ‘Pyaar Ki Pungi’ song for Saif Ali Khan’s home production – ‘Agent Vinod’, which is due for a world wide release this Friday. The notice has also allegedly been served on the producers, director and Super Cassettes which owns the music rights. Reportedly, the legal notice alleges that the initial portion of the ‘Pyaar Ki Pungi’ copy has been directly copied from their composition ‘Soosan Khanoom’ which the band had produced and released on January 16th, 2010. 

The DNA Report extracts the following portion from the legal notice served on the band:

"On March 12 this year, the band came across the promotions of the movie 'Agent Vinod' on satellite television in Iran. The song 'Pungi Baja De..' was being aired. On listening to the song, the band realised that the initial portion of the song is lifted without any change from the title song of their album," 

“We demand the music director, producers and directors to refrain from releasing the song in the movie or use it to promote the movie. Failing to do so, the band shall be compelled to initiate proceedings to seek a restraining order and necessary compensation." 

Both ‘Pyaar Ki Pungi’ and ‘Soosan Khanoom’ can be accessed on Youtube over here and here.

This is not the first time that a foreign music band has alleged copyright infringement by a Bollywood music director. Shamnad had carried this excellent post some time ago on the history of copyright infringement by Indian music directors. The moot point in this case however is a mundane technicality of the law and that is whether these Iranian nationals have any standing to sue in India since their country of origin – Iran – is not yet a member of the WTO because of which it is not recognized by the Indian Government under the International Copyright Order, 1999 that is published under Section 40 of the Copyright Act, 1957. This ‘Order’ recognizes the foreign countries which have granted Indian citizens reciprocal rights therefore allowing the citizens of those countries to assert similar rights in India. Since Iran is not mentioned in the International Copyright Order, 1999 it is unlikely that this Iranian band will have the right to sue in India.

Anti-piracy movement in India gains heat: Cause for concern or justified response?

Unsatisfied with the court order it recently obtained from the Calcutta High Court, granting an ex-parte injunction against the website www.songs.pk, the Indian Music Industry (‘IMI’) has gone all out against more than a hundred websites alleged to have been indulging in piracy of Bollywood music tracks. In this post, I intend to examine the current state of anti-piracy movement in India and what the future holds for us in India on this issue, so pardon the long post. 

Method of Blocking Websites 

The order is directed against 387 ISP’s (the full list of the 104 websites that the IMI wanted blocked by 387 Internet Service Providers (ISP’s) in the country and the Calcutta High court is available at Medianama), ordering them to block access to the websites mentioned. For those unfamiliar with the subject, ISP’s provide access to the internet itself (for example Airtel, BSNL, Reliance who provide broadband connections etc.), while websites such as MySpace and Google provide access to certain services on the internet (such as Gmail or Google+). The order obtained requires the ISP’s to use any three of the following method to block access to the websites: 

1. Blocking by DNS name: This would involve blocking access based on the domain name itself. For example – “www.songs.pk” could be blocked. However, this can easily be bypassed by typing the IP address itself (a series of numbers, as opposed to letters) in your browser’s address bar. 
2. Blocking by IP address: A domain name represents an IP address. For example, the domain name www.songs.pk may have the IP Address "85.103.2.14". Thus ISP’s can block access to the IP address itself, but IP addresses can be changed, masked or anonymised. 
3. URL blocking by Deep Packet Inspection (DPI): This is a more invasive form of blocking that actually examines the data being transferred.

Ineffectiveness of Blocking 

At the risk of sounding like a pro-piracy apologist, I think it is important to question whether blocking of such websites is the most suitable method to curtail piracy. To put it quite simply, I would say no, it isn’t. And this should be examined at two levels – firstly, whether this method is actually effective and secondly, whether it is legally sound. 

On the question of effectiveness, I need hardly point out the ease with which webmasters can manoeuvre themselves around such restrictions. The most blatant example, closest to home is the fact that www.songs.pk, the same website which was ordered to be blocked less than a month ago, has resurfaced as www.songspk.pk, although it won’t be long before ISP’s are forced to block this website as well and the cycle will continue (my ISP currently blocks both websites). This is wasted time and effort. 

On the second issue, I have previously in an article on myLaw.net, criticised the Bollywood industry’s blatant disregard for legal procedures involved in website blocking. Instead of using the provisions contained in the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 (‘IT Rules’) as required by law, film producers have attempted to bypass statutory mechanisms by obtaining John Doe orders (about which you can read here and here) from courts, since intermediaries are more likely to act on a threat of legal liability based on a court-issued directive than a notice under the IT Act. 

The above two points stand alongside my philosophical objection to ‘blocking’ websites on the whole in the first place. Blocking access to an entire website is a radical measure and should be used cautiously, which is why even the Executive deemed it necessary to formulate specific guidelines on the issue, appropriately naming the IT Rules in a manner that emphasise access to information. There are two key words used in the title itself – ‘procedure’ and ‘safeguard’, both of which seem to have been slighted in this case. 

Moreover, there is a logical fallacy in blocking an entire when there may be completely legal links on the website as well. IMI in its court filings only established that some of the files were infringing, not all. In another article I argue that blocking entire websites for a few infringing links would be akin to supporting the closure of all the shops in Connaught Place, merely because a few shops in Palika Bazaar are selling pirated D.V.D’s. That does seem strange, doesn’t it? 

Legal Options Emerge – Finally Some Positive Developments 

Despite my apparent record label bashing, I do appreciate their efforts towards attempting to create an ecosystem that facilitates legal purchases of Bollywood tracks. Take for example the launch of Flipkart’s online music store called ‘Flyte’, which offers single-song downloads at a price ranging from Rs.6-15 based on their freshness in the market. I have long suggested on this blog that Indian music labels should explore this option (borrowing the iTunes Store idea of allowing single-song purchases) and it is nice to see them warming up to the era of digital consumption of media and backing such initiatives. Moreover, in an interview with Medianama, Saregama’s CEO has even proposed that they want ‘piracy sites to go legit by paying a license fee’. All of this is encouraging, but the current state of affairs is still worrying. 

Reasons to Be Concerned About Potential Future Demands of the Industry 

My biggest concerns about the current situation may be summarised as follows: 

Firstly, recent episodes such as the introduction of the much criticised SOPA bill in the U.S. has confirmed the fear that record labels are lobbying hard for super aggressive copyright enforcement mechanisms in legislative form. Unfortunately, this seems to be worldwide trend spreading from country to country. While the situation in India is not quite so bad, I would venture to argue that it is only so in form and not so much in intent. There are no SOPA-like legislations in the pipeline, but if the recent surge in court orders obtained by the industry, brushing aside mandated procedures, together with a general proclivity of intermediaries to succumb to such pressures and censor content indiscriminately to escape liability are anything to go by, we have a worrying future ahead of us. 

Secondly, when the industry goes after more than an hundred websites at a time, there are bound to be some websites that are wrongly identified as websites engaging in widespread piracy deserving of a website blocking request. If you don’t believe me, just ask Yahoo and Microsoft India who were wrongly added as parties to the ongoing suit in the Delhi HC demanding internet intermediaries take down ‘objectionable’ content (their petitions for removal as parties have been allowed on the ground that they are not social networking sites and further no ‘objectionable content’ was found on their servers). If Vinod Rai can go wrong with just 22 parties, surely the chances multiply when the number is 104. 

Thirdly, this current practise of obtaining ex-parte injunctions against websites with the effect of immediate blocking by ISP’s, seriously undermines the rights of the website owners to be given a fair hearing and violates basic principles of rule of law and natural justice. Similar provisions were contained in the SOPA bill and David Post, in a wonderfully insightful article, does a thorough job of attacking them on legal grounds alone. Think of a website owner based in Singapore who runs one of these ‘alleged’ piracy sites. Can he be reasonably expected to just show up at the Calcutta High Court one day to defend himself even though his website is in the form of a message board where only on occasion, certain users post links to infringing content. Is that fair? 

Where will the demands end? 

In the same interview, Saregama’s CEO says that file sharing websites will be the next target. This is an even bigger concern for me, especially in the wake of the Megaupload seizure in the U.S. While piracy websites such as www.bolloywoodmp3free.com might be a clear-cut case, it gets murkier and the line blur when we are discussing file sharing websites. Dropbox is largely considered to be a legitimate file-sharing service, but such moves might create chilling effect on new file sharing sites who do not want to be exposed to potential liability and business losses if this trend continues. 

I express the above concerns, without even broaching the subject of net neutrality (the principle that advocates no restrictions by ISP’s or governments on consumers' access to networks that participate in the Internet and opposes restrictions on content, sites, platforms, types of equipment that may be attached, and modes of communication) which although incredibly important, has sadly been a largely neglected issue in India. 

Moreover, with the success they seem to be attracting with such orders, it may not be long before they ask for grossly restrictive measures such as mandating ISP’s to use filtering tools to block content. I would point to the recent landmark ECJ ruling that such an order violates the privacy of users, their right to receive and impart information and restricts the intermediaries’ right to freely conduct business, but I have little confidence in Indian courts’ ability to appreciate sensible interpretation in other jurisdictions on copyright matters (they did not follow the DMCA’s safe harbour principle rationale in the Myspace case for example). 

Conclusion  

Of course, it is common knowledge that www.songs.pk contained more infringing content than could be tolerated and that is indeed a fit case for the likes of IMI to go after aggressively. But I do smell the potential for misuse and the proverbial ‘give an inch, take a mile’ brings about a sense of paranoia in my mind. This, coupled with aggressive lobbying from music executives to pass bills potentially harming free distibution of digital content online is definitely a source for concern. I’m willing to give them the benefit of doubt in this case, but only just.