SpicyIP Weekly Review (December 7 – 13)

Thematic Highlight

Who Gets Paid for the Music You Listen to?: Revamping Music and Copyright in India (Part I)

In Part I of this 2-part guest post, Akshat Agarwal analyses the ‘incentive/compensation’ structure actually in place for artists in India as well as its consequences. He lucidly explains that artists receive only a small proportion of revenue earned by music streaming services. He then highlights a deeper issue that enables a few oligopolistic players to capitalize on their monetary privilege and not only deprive authors of survival-based remuneration, but also drive a mainstream and dominant narrative around culture, and its commodification.

He highlights the rhetorical dishonesty of publishing industries that marshal policymakers’ support for stronger rights in the name of compensation to artists only to further their own corporate profit-making interests due to the tool of ‘assignability’ at their disposal. He argues that the Indian entertainment industry reflects the grave consequences of this for the diversity of words in circulation, wherein the wealthy control dissemination. Thus, he argues the content disseminated reflects the interests of a concentrated elite group.

Who Gets Paid for the Music You Listen to?: Revamping Music and Copyright in India (Part II)

In Part II, Akshat notes that Section 17 and 18 in the Copyright Act, facilitate an exploitative model of cultural regulation. He argues that section 17 of the Act, allows for corporate industries to be the first owners of copyrighted works created by their employees, and privilege them with an automatic transfer of all the rights which should ideally be vested with the creator in the Act. Section 18, allows for copyright to be transferred via standard form contracts containing unreasonable terms. He argues that this is a godsend for media industries to capitalize and build vast content-based monopolies. In the context of this power differential between artists and giant publishing houses, he urges for disintermediation, i.e. abolishing the assignment of copyright. He argues for alternative revenue sharing arrangements wherein the revenue shall firstly flow to the author, and thereafter, as a fee, to the publisher. He notes that this is more aligned with the reduced costs of dissemination in the digital space.  He highlights how this is more suited to the public interest goal of more and diverse expressions. He also argues that the recent amendments should recognise “neighbouring rights” under a separate head by amending section 13 and 14 in order to prevent the conflation of copyright with the financiers’ right.

Other Posts

NLU-D’s DIGITAL (Digital Rights and Inclusive Technology for All) Fellowship 2021 [Apply by December 22]

We recently informed our readers regarding a call for applications by the Centre for Communication Governance (CCG) at National Law University, Delhi for its DIGITAL (Digital Rights and Inclusive Technology for All) Fellowship 2021. The Fellows will be placed in a civil society organisation/litigation chambers that engages in digital rights litigation, and will also develop related legal and policy research under the guidance of CCG. More details regarding CCG’s work, the Fellowship and eligibility for applications can be found here.

NUJS International Webinar on Trade Secret as a Momentous Asset [December 12]

We also recently informed our readers regarding an international webinar on ‘Trade Secret as a Momentous Asset’ on 12th December, organised by the MHRD IPR Chair, NUJS, in association with the IPThink – Tank. The Webinar Agenda and bios of speakers can be found here.

Decisions from Indian Courts

• A civil Court in Maharashtra issued notice to the Serum Institute of India (SII) in a suit alleging passing off which seeks to restrain SII from using the trademark “COVISHIELD” or “COVID-SHIELD”, which a Nanded-based pharmaceutical company “Cutis Biotech” claims to be the “lawful and prior user” of. [December 11, 2020]
• The Madras High Court in Principal Commissioner of Income Tax, Chennai v. M/s. Redington (India) Ltd., allowed the Tax Case Appeals and decided the substantial questions of law in favour of the Revenue. It held on the issue of payment of Trademark/license fee for using the trademark, REDINGTON, that the Income Tax Appellate Tribunal’s finding was erroneous, reaffirming the factual finding by the Transfer Pricing Officer that the assessee had no reason for payment of such fee to a wholly owned subsidiary when it had been using the trademark since 1993, registration for which was deemed to have been granted in its favour from the date of application, i.e. from 2000. [December 10, 2020]
• The Bombay High Court in Chutraram Nemaram Gehlot v. Rajaram Magharam Tak, granted ad-interim relief in the form of a temporary injunction in favour of the plaintiff alleging violation of its registered trademark, PREM DULHAN by the use of the defendant’s mark DABANG DULHAN. The defendant was restrained from infringing the mark and the Court Receiver was authorized to seize and take charge, possession and control of the impugned products. [December 10, 2020]
• The Bombay High Court in Bisleri International Pvt. Ltd. v. Laxmikanta Nayak, granted ad-interim relief restraining the defendants from using the impugned pirated artwork of NATURAL AQUA ) bearing a colour scheme, get-up, layout, representation, style, trade dress or any other artwork which is identical with or substantially similar to the Plaintiff’s original artistic label of BISLERI. The Court also authorized the Court Receiver to search, seize and take charge, possession and control of the impugned products. [December 10, 2020]
• The Delhi High Court in Atul Paper Pvt. Ltd. v. Sri Balaji Sales Corporation, held that the impugned mark, ODDY was not descriptive or generic but a coined and adopted mark for which the plaintiff had registration in classes 16 and 35, making the defendant’s use of the exactly same mark for school bags—use for allied goods. The Court granted an ad-interim injunction, noting that failure to do so would cause irreparable loss to the plaintiff, who had made out a prima facie case in its favour, and on whose side the balance of convenience lay. [December 9, 2020]
• The Delhi High Court passed an order in T.V. Today Network Ltd. & Anr. v. Bennett Coleman & Co. Ltd. wherein defendant was, for the moment, directed as agreed to remove the photograph of the interviewee, Ms. Rhea Chakraborty from its website and all other social media platforms administered by it, and given three weeks to file a written statement and reply to the application. The defendant had emphasised that the plaintiff’s copyrighted work was used on a minimalistic basis to report a current event, and hence, was covered as fair dealing under section 52 of the Copyright Act. [December 9, 2020]
• The Bombay High Court in Ajanta Pharma Ltd. v. Saphnix Life Science, granted ad-interim relief restraining the defendant from infringing the plaintiff’s trade mark ARTEFAN in respect of pharmaceutical and medicinal preparations. [December 8, 2020]
• The IPAB in Hettich-Oni GmbH & Co. v. Controller of Patents and Design, Chennai, set aside the impugned order by the Controller and directed it to grant the patent on the basis of the claims on record, strictly within 2 weeks from the issuance of the order. The IPAB decried the practice of the Patent Office to reject orders in haste without hearing the other side, which it held constitutes not only a violation of set procedure but also implied bias on part of the Controller. [December 8, 2020]
• The Delhi High Court in Gujarat Cooperative Milk Marketing Federation v. Nitin Jain, refused to grant ad-interim injunction and gave the defendant the opportunity to file the reply. The defendant had argued that the allegedly infringing videos were in the public domain and protected under Section 29 of the Trade Marks Act since they did not make use of the plaintiff’s mark for commercial purposes. [December 7, 2020]
• A Delhi District Court in M/S Blue Heaven Cosmetics Pvt. Ltd. v. Khempal Singh Bhatia Trading, held that the defendant admittedly stopped using the mark ‘Roop Heaven’ after being aware of the plaintiff’s registration of ‘Blue Heaven’ whereas the plaintiff neither opposed the application under Order XIIIA CPC nor brought any material to show its entitlement for the relief of rendition of accounts, delivery up and damages or paid any court fee for the same. Hence, the court did not grant the relief of rendition of accounts, delivery up and damages while decreeing the suit qua relief of permanent injunction passed in favour of plaintiff vide order dated 17.07.2019. [December 4, 2020]
• The IPAB in Huawei Technologies Co., Ltd. v. Controller of Patents and Designs, Mumbai, allowed the appeal and declared the order of the Controller erroneous It also noted that the Controller did not provide adequate explanation and remanded the matter back to the Patent Office with a direction to assign a different controller to hear the case again as per Section  73(4) of the Patents Act, 1970. [December 4, 2020]

Other News from around the Country

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  India sought leeway to take policy decisions imposing export restrictions and higher tariffs in light of the Covid-19 pandemic, argued that the World Trade Organisation (WTO) obligations disparately affect developing countries’ abilities to provide large stimulus packages.

• In a reply to queries put forth under the Right to Information (RTI) Act, the Indian Space Research Organsation (ISRO) stated that it is the producer of the launch broadcast and hence owns the copyright therein, whereas the launch is merely telecast by Doordarshan, its social media handles and official website.
• Indian Union Commerce Minister, Piyush Goyal, sought Switzerland’s support for the joint proposal by India and South Africa seeking the waiver of obligations under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in light of Covid -19.
• An article in The Times Of India stated that sharing PDF copies of e-newspapers amounts to copyright infringement and is thus illegal. A post written by Balu Nair for SpicyIP earlier this year argued that “it is contingent on the terms attached to the specific e-paper as well as the existence of an implied license.” The ToI article also stated that circulation of these copies in Whatsapp groups “could invite legal action against admins of such Whatsapp groups and members”. Another post written by Divij Joshi for SpicyIP had argued that “there cannot be an automatic assumption of liability for administrators or other members of a specific group” and it is the role of the administrator that will have to be considered.
• In an article for the Business Standard, Achal Prabhala, Arjun Jayadev & Dean Baker argue against the US, U.K. and EU blocking a WTO proposal which would make more vaccines and treatments available to the entire world.
• In an article for LiveLaw, T. Prashant Reddy reviewed Adarsh Ramanujan’s recent commentary on Indian Patent Law titled, ‘Patent Law: Cases & Materials – A Synthesis For India’ published by Wolters Kluwer.
• The State of Himachal Pradesh seeks to obtain Geographical Indication (GI) for five of its products: Karsog Kulth, Chamba Metal Crafts, Thangi of Pangi, Rajmah of Bharmour, and Chamba Chukh.
• A fake copyright infringement notice was circulated on Instagram as part of a phishing scam.

News from around the World

• The Shenzhen Intermediate People’s Court, China in a unanimous decision by a panel consisting of seven judges, dismissed a Japanese company Sharp’s jurisdiction challenge in a lawsuit concerning standard essential patents, including Sharp’s Chinese and non-Chinese patents covered by wireless fidelity (Wifi), 3G, and 4G standards.
• The International Chamber of Commerce (ICC) released the 14^thedition of the ICC Intellectual Property Roadmap, which constitutes a comprehensive reference guide to intellectual property issues from the perspective of the global business community.
• Music streaming app, Spotify patented a “Plagiarism Risk Detector and Interface” which aims to use Artificial Intelligence to detect unoriginal music on its platform.
• Nobel Prize-winning songwriter, Bob Dylan sold the publishing rights to his catalogue of over 600 songs to the Universal Music Publishing Group.
• Singer Neil Young ended his lawsuit against Donald Trump’s campaign alleging copyright infringement for unauthorizedly playing two of his songs.

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