Stale News: Delhi Courts Issue Notices to Social Networking Sites

A few days ago, a Delhi Court issued an ex parte order directing 22 social networking sites to remove derogatory content which might hurt religious sentiments.  The order was issued in a petition lodged by Mufti Aijaz Arshad Qasmi. The websites were asked to respond to the petition by yesterday i.e. December 24, 2011.

In another private complaint, another Delhi Court has issued notice to Facebook, Orkut, Google and Youtube for publicly exhibiting obscene lascivious comment.

One wonders if it’s sheer coincidence that these complaints were filed in the immediate aftermath of Kapil Sibal’s call for censorship of the internet. After all, in this country, it isn’t that difficult to plant complainants...

Policing Netizens?!?!?!

I am told that during one of India’s toughest political times, when editorials were curtailed due to an Emergency, one prolific newspaper carried Nobel laureate Rabindranath Tagore’s wonderful words:

Where the mind is without fear and the head is held high

Where knowledge is free

Where the world has not been broken up into fragments

By narrow domestic walls

Where words come out from the depth of truth

Where tireless striving stretches its arms towards perfection

Where the clear stream of reason has not lost its way

Into the dreary desert sand of dead habit

Where the mind is led forward by thee

Into ever-widening thought and action

Into that heaven of freedom, my Father, let my country awake

Recently, our Minister for Communications and Information Technology, Kapil Sibal who is also one of India’s most renowned figures in the legal fraternity, made a statement regarding policing the internet and social media. While his statements were the much heated subject of discussion in the Indian media over the course of last week, they indeed do attract one’s attention, at least for a moment or two, to look at the pros and cons of doing so, pertinently in the context of social media.

Of course as far as policing one’s parallel life on the internet goes, in my mind several issues may arise. The most prominent of these issues is the constitutionality of such policing, vis-à-vis the Freedom to Speech and Expression, guaranteed under the Constitution. Undoubtedly, as we all tweet, Facebook or share via Google+, not just do we share our lives, but these platforms have given us an opportunity to become more vocal and on several occasions, severely critical as well.

However, with the expansion of media, whereby one can “voice” one’s opinion, is the need for policing also called for? My personal opinion, which I believe is the majority opinion, is an emphatic NO. While the Constitution guarantees the Freedom to speech and expression, the same is unrestricted across the media of communication. Additionally, since Art. 19(1)(a) is a guaranteed freedom, I believe that the only action viable, if at all, would be a civil defamatory suit for libel.

Having said this, my concern runs somewhat deeper, beyond what Mr. Sibal has to say. I worry most about copyrighted content and sharing the same, particularly of videos.

If one were to consider such content, the same is being dealt with by making access to the content itself unavailable to a particular geography -just as many websites, youtube videos, online telecasts are not available to a particular ISP addressee.

However, I am unsure if the walling off content would prevent someone from “reposting” a link on an online forum. The catch here is that while a video may be unavailable in a particular geography, I may be able to access the same the moment I shift location.

On one hand, since one may consider the absence of commercial benefit to the profile hosting such content, and may advocate this use to be fair, on the other hand, the mere lack of commercial benefit shouldn’t amount to misuse. If a pay-per-view system be in place, would this form of contributory infringement come to rest? Or, since songs, et al. do speak our minds the best, more often than not, would our Freedom of Expression?!?!?

There is a new song that has become a rage amongst the Indian public, called Kolaveri di, and has had over a couple billion hits. Thanks to social media and sharing, the song has acquired the popularity that it has. Now, that was someone’s mind without fear and head held high!!!

Musings over Moral Rights

The world of Copyright, in my opinion, today best reflects the fine move that went on from Industrial to Intellectual Property, albeit in the opposite order.

Copyright, has under its wings, a wide array of creative works (not that inventions cannot have their creative side), most of which today, have undoubtedly acquired a more commercial nature than ever. However, what seems to create the fine balance between its commercial and creative characterestics, is perhaps the presence of a scheme for moral rights.

The Hegelian theory of Personality Justification, that appears to fit the mould of copyright in the best way, talks about property being an extension of one’s personality. We see that in every piece of creative work around us, thus creating room for art critics, historians, curators and so on. Perhaps the theory of Moral rights, also grew in and from the European era of Renaissance, wherein self- expression, freedom of thought and concepts akin came to life.

This having been said, the law in the United States never ceases to amaze me.

On one hand, the United States Constitution, vide Article 1, Section 8, Clause 8, empowers authors with the gift of copyright. On the other hand, the only place for moral rights appears to be in the Visual Artists Rights Act (VARA). Moral rights as outlined therein allow an author of a visual work to avoid being associated with works that are not entirely his/her own, while also preventing the defacement of their works.

However, the importance of Moral rights in the US has found some life, through judicial deliberation.

A much debated scheme of thought came by, vide the Google Book Settlement decision, rendered by Justice Denny Chin of the Southern District of New York.

While it is impossible to quote from the decision, since the thoughts of the judge are weaved throughout the judgment, the approach to moral rights is exceptionally subtle, with reference in a couple of instances as “international” rights or concerns.

I have read this forty eight page decision, now, over a couple of times. And,to be honest, the simplicity with which Justice Chin appears to have brought about the nexus between Copyright as an Intellectual Property, the Commercialization that often drives authors, and associated concerns is a delightful read.

Non-working Isn’t a Ground of Revocation of a Patent: Why?

Section 64 of the Patents Act, which lists the grounds for revoking a patent, is exhaustive. No ground which is not mentioned in Section 64 can be used to impugn the validity of a patent. This much is obvious. But why does not Section 64 provide a ground for revocation of a patent for non-use/non-working of the patent?

The only remedies available under the Patents Act for non-working of a patent appear to be an application for compulsory license under Section 84 and an application for revocation under Section 85.

A reading of Section 85, in fact, tells us that an application for revocation under Section 85 may be made only after the expiration of 2 years from the date of the order granting the first compulsory license. It appears, under the framework of the Act, for a patent to be invalidated on grounds of non-working, it is mandatory to first apply for a compulsory license before seeking revocation under Section 85.

May be the Patents Act is not so anti-patentee after all…..

But why should an un-worked patent not be revoked directly? Why is the compulsory license route mandatory before seeking revocation of a patent for non-working? Why shouldn’t revocation be an option after three years from the date of grant? Shouldn’t an “interested person” have the option of choosing between revocation and compulsory license, instead of reaching the former after the latter? 

Isn’t Arbitration a Better Alternative for Patent Infringement Disputes?

In an earlier post, I had expressed concerns on the ability of Courts (at least in India) to do justice to patent infringement suits. 

Continuing in the same vein, I think Courts would do well to invoke powers vested in them under Section 89 of the Code of Civil Procedure to refer patent matters to arbitration cells of Courts.

Arbitration may prove to be a much more expeditious way of seeing a patent dispute through, instead of wading through the sea of formality which is characteristic of conventional Courtroom litigation. (There is nothing radical in this suggestion, this thought has been out there for quite some time now and literature on this issue abounds)

Besides, considering the fact that Indian Courts are yet to get the hang of the rudiments of patent litigation such as construction of claims before battle lines are drawn, arbitration may prove to be much more conducive a forum for the level of sophistication that patent litigation demands and deserves.  

Of course, there are several “ifs” and “buts” to this proposal. For instance, if parties to the dispute are intransigent and there do not appear to exist “elements of a settlement which may be acceptable to the parties” (a requirement of Section 89 of the CPC before matters are referred for arbitration or mediation), I am not sure if the Court may still refer the matter for arbitration.

That said, in practice, Courts do not seem to put too much stock in this requirement of “elements of a settlement” between the parties. Matters are routinely and mechanically referred for arbitration or mediation. Without commenting on the propriety of doing so, if this practice of unilaterally referring matters to mediation and arbitration cells is here to stay, Courts might as well do the same for patent matters.

Having said that, patent litigation allows Courts to clarify certain aspects of the law and provide the Patent Office, applicants and practitioners some much required judicial guidance on standards and interpretational bottlenecks. Referring matters to arbitration might affect the evolution of a patent jurisprudence which is the dire need of the hour.

On too many issues of critical importance, there’s a herd mentality, with very few enlightened souls questioning the adoption of certain practices. Litigation, in more ways than one, helps in evaluating the legality and wisdom of such practices. 

The only issue with litigation (which is THE issue) is that it lacks speed and one can never be sure if the peculiarity of patent law and the dialectics of the business of innovation are understood by Courts.

Hoping that at least some of us would explore arbitration as an option to resolve disputes, I intend to write more on arbitration in general, and its application to IP disputes. Suggestions, material and comments are welcome!

Two Patents on the Same Invention- Is There a Way Out?

Most of our readers are aware of the patent dispute (C.S.(O.S.) 740 of 2006) between Hindustan Unilever and Eureka Forbes, where it has been reported that both entities have been granted patents by the Indian Patent Office on substantially the same invention.

This matter is listed for arguments on December 20, 2011 before the High Court of Delhi. The facts in brief are as follows:

1. HUL filed for a patent on a gravity-fed water purifier system in 2002 on which a patent 198316 was granted in 2006.

2. Eureka Forbes too filed an application for a patent, subsequent to the date of filing of HUL’s application. Eureka Forbes was however granted a patent prior to the grant of HUL's patent.

3. HUL alleged that Eureka Forbes’ product infringed its patent 198316, but the latter claimed that its product was covered by its own patented invention (which is probably different from HUL’s patented invention).

What recourse does HUL have? On what grounds can Eureka Forbes’ patent be revoked? Besides claiming that its patent is earlier in time thanks to Section 45 (which relates to the date of the patent) of the Patents Act, HUL may explore Section 64(1)(b) of the Act.

Section 64(1)(b) provides a ground under which a patent grant be challenged on the basis that it was granted on the application of a person who was not entitled to apply for a patent in the first place.

Which provision of the Act deals with entitlement to apply for a patent? Section 6. Under Section 6, only a “true and first inventor” or his assignee or the legal representative of either the inventor or the assignee may apply for a patent.

“True and first inventor” has been traditionally interpreted in India to mean “first to file” (I’d like to explore this assumption sometime). This means under Section 64(1)(b), a patent may be revoked on the ground that the person who applied for it was not the first to file for a patent on the invention. If this interpretation is tenable and reasonable, this ground is an easier way of resolving the dispute, subject to both inventions being construed as identical.

It appears Section 64(1)(b) does not have an identical counterpart in Sections 25(1) and (2) which deal with pre and post-grant oppositions. That said, Section 25(1)(c) and Section 25(2)(c) come very close to the above application of Section 64(1)(b).

On a different note, one wonders why there are marked differences in grounds available under Section 25 and Section 64.

Opinions and Corrections are Welcome!

Almost Famous

In the recent past, the Delhi High Court, seems to have been flocked by cases dealing with celebrity personalities. One such case that has caught my attention, and more so has begged me to put in some thought, is the judgment dealing with Arun Jaitley’s right to use his name as a domain name, viz., Mr. Arun Jaitley vs. Network Solutions Pvt. Ltd.

To be brief about the facts, Arun Jaitley, spokesman for one of India’s leading political parties, moved to get www.arunjaitey.com registered. Facing difficulty in doing so, he sent a letter addressing Network Solutions, LLC (the registrant as revealed by a whois.net search), to which a reply was received stating that the said domain name was already taken. 

An offer to purchase the said domain through Network solution’s Certified Offer Service was also made. However, on scouting around a bit, Mr. Jaitley discovered that the website was “Pending Deletion”, since it had not been renewed by the previous owner.

While I agree with the final outcome of the case, deciding that Arun Jaitley should be the rightful regstrant of the domain name, I am somewhat unconvinced by the manner in which the law of passing off was applied.

To cut a long story short, the judgment relies on decisions dealing in the applicability of trade mark law in the sphere of domain names, primarily keeping focus on Satyam Infoway Ltd. Vs. Sifynet Solutions Pvt. Ltd. To describe these decisions in the broad sense, these decisions apply trademark law to afford protection to domain names that were being infringed vide the use of deceptive URLs.

In my view, the application of these decisions to the case is somewhat flawed. As I read the judicially deliberated law protecting domain names, the law on trademarks is applied to domain names owing to the commercial nature facilitated by both. Where a domain name does not refer to a trade mark per se, I think the tennets of the Uniform Domain Name Resolution Policy should be relied upon, as against an extensive reliance on trade mark law, as in this decision.

As averred by his counsel, Arun Jaitley is a name that has acquired fame and reputation, as one of India’s most renowned lawyers. However, now that he is a full time politician, I wonder if he could still project his name to have a trade mark sort of status. In my view, the only reason to adopt a passing off sort of argument would be its judicially adopted straight jacket treatment vis-a-vis cyberlaw.

Further, while our law does recognize a common law right in a trade mark, however, from a reading of the Act, a name that acquires a trade mark status, whether under common law, or by registration based on acquired distinctiveness, the same must be used in relation to goods and services. 

Additionally, acquired distinctiveness is only a means to acquire a trademark registration, but the Act nowhere purports that every name, personality or term that has acquired a secondary significance to it, should necessarily be protected as a Trade Mark.

This case in my view is a case of false and misleading description, which per the Indian Trade Marks Act, does not cover individual personalities. This is a stark contrast to the Lanham Act, that covers the protection of personalities as well.

Further, I think this case makes one for a tortious claim of misrepresentation.

Although the law of passing off has its roots in the law of torts, and a case such as this could only be best described by using the term “passing off”, however, I strongly feel that in this instance, delinking from the law of trade marks, and the adoption of a direct tort related approach was necessitated.