Patent Hypocrisy: Are We Turning Civil Suits into Criminal Trials?

Sometimes I wonder if it is worth applying for a patent in India. I mean, of what use is a right when you can’t enforce it even when you are supported by the letter of the law? 

Why should anyone apply for a patent in India, when at the end of the day, it is rendered a worthless piece of bauble? Because enforcing it seems to weigh on our conscience thanks to some misplaced sense of righteousness.

Do innovators or creators of wealth or right holders always deserve to be approached with circumspection? If yes, why do we seem to have one approach for the sanctity of copyrights of music composers and lyricists (whose claims sometimes are not even grounded in law), and an entirely different yardstick for the rights of patentees (even when the letter of the law does not advocate perpetual suspicion of patentees)?

I am not denying the absence of presumptive validity nor am I denying that no patent grant can ever be fool-proof. But let’s also realize that if there is a mechanism for grant of rights, it exists under the premise that someone deserves an incentive for his or her efforts. Shouldn’t we acknowledge this when we discuss the dialectics of patent litigation?

The point that I think I am trying to make, is that slowly we are veering towards a trend where undue burden is placed on the patentee, without taking into account the dynamics of the technology industry. Patent litigation, if it remains oblivious to the rate of obsolescence of a certain technology, is not being true to the very intent behind its inception.  

The most critical and fatal real-time consequence of this unhealthy trend is lowering the standard of proof or burden that a defendant is expected to discharge before the Court, combined with an unrealistic and super-herculean burden on the patentee. 

I don’t see how this is different from a criminal trial where the prosecution is expected to prove its case beyond all reasonable doubt, and the accused can afford to stay mum and be acquitted if the prosecution fails to match up to the standard. The patentee is always in the dock despite being the plaintiff and all that the defendant has to do is satisfy the measly burden cast on him in the name of "credible challenge". 

"Credible challenge to the validity of a patent” cannot be morphed into a backdoor solution to deny remedy to a patentee. Even in the absence of presumptive validity, the defendant ought to address the Court on merits, instead of mouthing inanities such as “recentness” or “absence of presumptive validity”, which have now become standard prejudice points and are firmly entrenching themselves in the judicial vein with each passing day.

This unsavoury trend along with the absence of patent courts which are adequately equipped to appreciate the peculiar needs of patent law, and the business of innovation, practically make for decent arguments against applying for a patent in India. 

The system of patents was brought in as an alternative to hoarding knowledge as trade secrets; but if enforceability issues cripple right holders, why should not innovators want to go back to trade secrets as a way of protecting their legitimate interests?

My apologies if this sounds like a rant, but I think someone has to play the Dirty Harry and ask a few politically incorrect questions, and throw hypocritical populism into the wheelie bin. 

Of Music and Lyrics- Mumbai HC sounds the drum!!!

The much awaited judgment from Mumbai High Court has finally been pronounced-awaited not so much because the issue has national prominence, but more so, because the subject matter concerns one of India’s most widely shared passions...running a close second to Cricket- Film Music!!!

A few months back, many may recall, noted members of the film fraternity came out with their views on their right to royalties, vis-à-vis broadcast of sound recordings consisting of their underlying works, namely lyrics and music. The Mumbai High court has put the matter to some rest, in the Judgment pronounced in Music Broadcast Pvt. Ltd. V. Indian Performing Rights Society (IPRS), on Monday July 25, 2011.

To give a brief overview of the case, the issue centered around whether IPRS was entitled, and Music Broadcast Pvt. Ltd., in turn, obligated to pay royalties to the members of the IPRS, for broadcast of recordings containing their (IPRS members’) underlying works. 

For the uninitiated, Music Broadcast Pvt. Ltd. carries on the business of establishing, operating and maintaining FM Radio broadcasting stations in various cities of India. IPRS, on the other hand, is a non-profit organization, registered as a Copyright Society under Section 33 of the Copyright Act, 1957. 

The Society undertakes to issue Licenses to users of music and collect Royalties from them, for and on behalf of its Members i.e. the Authors, the Composers and the Publishers of Music, and distribute this Royalty amongst them after deducting its administrative costs.

The Court while deciding this case, in my humble opinion, has given Copyright a very holistic approach. While the Court looked at Copyright as how it (again IMHO) must be envisioned, i.e. as a bundle of rights, it made multifarious references to noted international authors, and also commented on the non-applicability of several precedents to the case at hand. 

 In resolving the issue, the Court also pointed out that the Phonographic Performances Ltd., another Copyright Society established under S. 33 of the Copyright Act, is the only body entitled to collect royalties for the broadcast of sound recordings.

To me, the most impactful statement(s) putting the whole controversy to rest were in Para 59, on Pages 72 and 73. The extract I refer to reads:

“Thus, once the author of a lyric or a musical work parts with a portion of his copyright by authorising the producer of a sound recording to make a sound recording in respect of his work and thereby to have his work incorporated or recorded in a sound recording, the producer of the sound recording acquires by virtue of section 14(1)(e) of the Act, a copyright which gives him the exclusive right stipulated in section 14(1)(e) which includes the right to communicate the sound recording to the public. A distinct copyright comes to vest in the sound recording as a whole.”

From the start of the issue, I was of a similar opinion as echoed in the extract - I interpret the judgment to treat copyright as a bundle of rights that may be separated into various strands. Further, as the Court also notes, the manner in which Section 14 of the Copyright Act outlines the various constituents while explaining the “meaning of copyright”, the provision clearly distinguishes rights in a literary work from a musical work, and the two from rights in a sound recording.

Although the judgment does not state, yet to me, it appears that apart from seperability of the various types of works and the rights that constitute the copyright bundle for each of these, the Court somewhere at the back of its mind also had the economic rationale in mind. 

What I intend to state, and as I see (and probably would also advocate), is that while a sound recording is made, one part of their right, has been exhausted - i.e. the right to adapt or make a derivative sound recording of their work.

Having said so, of course, these exceptionally talented people are also sufficiently remunerated at the time they contract for their work to be used in a sound recording. Granted that this may not be a typical work for hire, yet if they desire to be compensated for the future use and benefits accruing from something that involves (or is based on) an underlying work on which they hold a copyright, the same should be a matter for contractual negotiation and not of royalty collection from a copyright society, with whom they do not have the capacity to deal. 

The reason I term them incapacitated to do so, is not their stature, or, standing, but simply because as mere authors of a literary or musical work, they are not holders of copyright in the sound recording.

As I shall read the 108 page decision another time, I am almost certain that many more points, views and contradictions shall come to mind. In the meanwhile, I hope that our readers shall have a lot more to say, rebut and in Sai’s words- refute! Until then… Let the Music Play!!!

Some reflections- of Harry Potter, Infringement and Fair Use..

Sai’s Harry Potter post and his cursory reference to derivative works, albeit in a different context, brought to my mind instantly Warner Bros. Entertainment Inc v. RDR Books, or the Harry Potter Lexicon case, as we commonly refer to at Law School.

The case, dwelling on derivative works, infringement and the defense of fair use, looks at whether creation of a lexicon for the multifarious terms for the Harry Potter series, amounts to infringement of the right to make derivative works. While the court ruled in favour of J.K. Rowling, it also undertook an extensive fair use analysis.

Talking of derivative works reminds me of a movie called Hari Puttar, that came to the Indian cinemas about two plus years back. Warner Brothers being vigilant watchers of their intellectual property, moved for an injunction. However, they failed before the Indian courts to secure an interim injunction. Warner Bros. Entertainment Inc. v. Harinder Kohli and Ors. (Could someone please throw light on the fate of the proceedings??? I lost track soon after!)

The two right owners, in two different jurisdictions, chose to enforce their rights albeit with different strategies. While the Lexicon case had a pure copyright approach, the Hari Puttar case seemed to take the route of trademark rights being infringed.

As I was thinking about these cases in tandem, to me it seemed like Warner Bros. may have taken up such different arguments on purpose.

Undoubtedly in a copyright infringement case, fair use, a judicially developed doctrine in the US would be argued- and was very vehemently argued in the Lexicon case. The doctrine as many of you would be familiar, involves consideration of:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

India, on the other hand, has a statutorily defined framework for “Certain acts not amounting to infringement”, which we consider to be our fair use related provisions. In this view, is it possible that the fact that statutory exclusions are more susceptible to be strictly enforced, have dettered Warner Bros. from instituting a Copyright action in India? Perhaps… and also may be perhaps they wanted to allege only similarity in the titles and not the content of the subject matter itself. In this scenario, a trademark action seems to have better suited their case.

However, the question that ticks in my mind is, will something like S. 52 in the Copyright Act, 1957 always be more strictly interpreted? The answer probably is kind of obvious, however, when I think of this in greater depth, I am reminded of what J. Bhatt has to say in Chancellor Masters and Scholars of the Univ. of Oxford v. Narendra Publishing House and Ors , at Para 33:

“Fair use provisions, then must be interpreted so as to strike a balance between the exclusive rights granted to the copyright holder, and the often competing interest of enriching the public domain. Section 52 therefore cannot be interpreted to stifle creativity, and the same time must discourage blatant plagiarism. It, therefore, must receive a liberal construction in harmony with the objectives of copyright law. Section 52 of the Act only details the broad heads, use under which would not amount to infringement. Resort, must, therefore be made to the principles enunciated by the courts to identify fair use."

This to me seems to tilt the coin against towards giving fair use a broader, rather judicially crafted interpretation, as against a pure application of statutory provisions. And to me, it appears rightly so - pertinently with the advent of technology, social media as well as the varied forms of derivative works coming of age.

I welcome the take from our readers on this line of fuzzy thought!!

Commercial Disparagement: Harbhajan Singh v. United Breweries

Thanks to an advertisement that’s got the entire country talking, Mahendra Singh Dhoni, the captain of the World Cup-winning Indian team finds himself at the centre of a potential commercial disparagement controversy. The advert is for McDowell Platinum No.1 Soda, a product from the Vijay Mallya-owned United Breweries.

Here’s the link to the original Seagram’s advertisement. Here’s the link to the controversial advertisement which pokes fun at Seagram’s Royal Stag’s caption “Have I made it Large?”. The ad also seems to have drawn flak for making fun of a particular community and for mocking Indian cricket team’s bowling powerhouse Harbhajan Singh.

Harbhajan Singh’s mother has apparently sent a legal notice to Vijay Mallya. The notice demands a public apology from the UB group for hurting the sentiments of the community and for making fun of Harbhajan Singh’s father, who apparently is no more.

On the issue of commercial disparagement, I have written earlier on the Rin v. Tide controversy elsewhere. In this case, I think there are quite a few other issues involved which could obscure commercial disparagement. For instance, the fact that this fracas pits two Indian sporting superstars against each other could hog more print and mind space than the very products they endorse.

Also, the fact that the ad could be construed as hurting the sentiments of a community could give the issue an altogether different twist, which is possibly inflammatory. For all his vaunted reputation of being the iceman, I really don’t know what was going in Mahendra Singh Dhoni’s head when he decided to go ahead with this ad.

Dhoni is known for being an extremely humble and grounded leader who leads by example and insists on team unity. He is the last person one would have expected this ad from. Let’s see where this controversy heads. We’ll keep our readers posted on the issue.

Making Movies Out of Books: Lessons for Technology Litigation

This weekend, I watched the final movie in the Harry Potter franchise, and what a treat that was! The movie buff in me was thoroughly satisfied because the movie was a fitting finale to a decade-long glorious cinematic saga. 

One of my take-aways from the last 4 movies under the stewardship of David Yates is that he has largely managed to satisfy the monumental expectations of ardent, and at times, fanatical lovers of the Harry Potter books. 

No wonder Deathly Hallows 2 has already raked in USD 168.6 million over the weekend trumping the weekend earnings of the Dark Knight.

This, for me, is a major achievement because it involves making a clear screenplay out of the book, which captures on screen almost every identifiable aspect of the characters, and the chain of events set out in each instalment of the novel. 

All this needs to be done within a span of 150-160 minutes at best. Making a 2-hour movie out of an eight-hundred page “page turner” is no mean task because this means every page has something important and relevant.

The thought that crossed my mind as I watched the movie was “how different is the business of making a movie out of a voluminous book from technology litigation, specifically patent litigation?”

In patent litigation too, litigators are typically faced with the unenviable task of explaining the novelty and non-obviousness of an invention to a largely technologically-untrained audience in a limited time. Glossing over the nuances of the invention would mean opening oneself to obviousness challenges in the Courtroom, and delving deep into the invention, if at all you have the time, means lulling the audience into a deep slumber! A textbook Catch 22 situation I say!

But then, nothing is impossible and there is a job that needs to be done. So how does one draw lessons from David Yates’ commendable handling of the last four movies? I think the first and foremost thing that Yates must have done is spend several hours trying to understand the characters and their arcs as the story moves from one book to another. In patent litigation, I think this translates to thoroughly understanding the prior art, and the evolution of the technology.

Yates must have spent considerable time talking to Rowling. This means the patent litigator too must spend a lot of time with the inventor.

The next thing that Yates must have done is to identify the most important and integral aspects of each book- basically editing the book to make a legible coherent screenplay out of it. For the patent litigator, this means identifying the inventive step of the invention and culling out those portions of the specification which add meaning to the inventive step as claimed in the claims.

Then Yates must have mulled over presenting the characters and portraying the events in a manner which the audience can relate to in some way or the other. For the patent litigator, this means thinking of simpler examples and illustrations which aid him as he explains the invention to the Court without flooding the arguments with a lot of technical jargon.

Despite the increasing dose of darkness in the books, Yates peppers the screenplay with enough humour to break the tension as the movie moves on the screen. The litigator too must use polite humour, if necessary self-deprecatory humour, wherever possible to avoid giving the impression that he understands the technology much better than anyone in the Courtroom. Self-effacing humour is always seen as a sign of humility (at least outward humility...).

Once the invention has been explained, the antagonist in the story, namely, the defendant, must be introduced. It is important to explain the defendant’s position and motives before establishing infringement because, for the audience to understand the seriousness of the antagonist’s calculated assault, it needs to know the reasons for and benefits from the assault.

Also, if there is a history of treading on people’s rights, that needs to be brought to the Court’s attention. Never under estimate the power of prejudice because we all know how well it works to the detriment of right owners frequently...

Once the antagonist/defendant’s motives have been explained and the stage is set for the deed, the doing of the deed must be explained in vivid detail. This is not for titillation, but to give the audience a peek into the antagonist’s warped thought process and his inner workings. The clearer the explanation of the deed and its motivations, the better is the chance of securing a higher damages figure (of course, this applies only to those jurisdictions where there is a damages culture; India isn’t one of them today).

The climax is what lingers in the audience’s mind once it leaves the hall; the climax is what the audience mulls and sleeps over. The climax is the cinematic “last word” (the “last laugh” of course is the judgment). And in litigation terms, it translates to the rebuttal to the defendant’s counter arguments. The rebuttals must be crisper and pithier than the original submissions, and for this the original submissions themselves must have laid a good foundation to build on.

Conclusion

Basically, the patent litigator must think of himself as someone who is making a movie out of a voluminous book where every page has its relevance. He must know every page of the book like the back of his hand, and must also know the pulse of his audience.

If he is fortunate enough to get a patient hearing from his audience, that’s half the battle won. But in the event the audience isn’t a willing one, he will need all his story-telling skills by his side to engage the audience’s attention throughout the movie. This calls for extensive preparation, and absolute anathema for an invincibility complex.

Anyways, I’ll zip it here because one of the cardinal rules of story-telling is to know when the audience is losing interest.

Jurisdictional Hues of Comparative Advertising

Watching television and comparing styles, rip offs and advertisements in particular can be pretty amusing. To add, a fantastic Trademark teacher helps build bridges, and rationalize many a time the whys and whats of multifarious issues that involve cultural, legal and market related aspects.

For anyone who has seen a fair amount of US and Indian advertisements, would first realize, how blatantly brands practice comparative advertising in the US. How clearly they name competitors, talk about how they are better and also have such clear disclaimers regarding side effects, possible allergies, side effects and other aspects to “beware” of.

The rule of Buyer BEWARE which governs US Consumer Protection laws extrapolates fairly well to the ambit of comparative advertising as well.

One of the reasons that Comparative advertising in the US is openly comparative, is that the Lanham act sufficiently provides for such a scope. While blatant claims can be made, companies are expected to make only true and scientifically proven claims- lest they be charged of False and Misleading advertising, under the Lanham Act. In addition, while Puffing is acceptable, it is Literal Falsehood that is disallowed!

To add, the reason that the US is very forthcoming in its Comparative advertising practices is that the Federal Trade Commission (FTC) monitors advertising and requires companies to maintain on file, proof for the claims they make. The other pertinent bit to note is that rights to a Trademark are governed by Use in Commerce, which also in certain cases preempts federally registered marks to trump over common law marks.

The EU on the other hand seems to condemn comparative advertisement in toto. If one were to look at similar claims made both in EU and US in case of a certain perfume related advertisement (Chanel I think) the outcome in the two jurisdictions were completely opposite. The EU disallowed such a claim, while the US Courts allowed a claim stating that since the claim was only one of likeness and not a claim to being exactly the same was sufficient to escape liability under §43(a)(1)(B) of the Lanham Act governing False and Misleading advertising.

India seems to have an interesting positioning on the subject - towing a very fine line between the European and US practices- Use of superlatives being allowed, similar trade dress being allowed, but disallowance of the flagarant use of competition’s identity or reference to his claims may be made- the stronger, sharper, faster Horlicks campaign related cases affirming this stance in Indian Jurisprudence.

How I see some semblance and parity in the practices is by looking at the jurisprudential rationale governing the various schemes. While all three jurisdictions attach a sufficiently strong Property notion to trademarks in general, their perspective on treatment varies when it comes to comparative advertisements.

The US seems to look at comparative ads from a consumer friendly perspective. The Use in Commerce requirement governing TM practices along with the above cited provisions makes it evident. This is also perhaps why Art 1 Section 8, Clause 8 does not have a place for Trademarks. Even when it comes to Bankruptcy law and treatment of Trademarks and related assets therein- the treatment appears different, owing to consumer interests coming into play.

The EU on the other hand, as I see, seems to have great respect for IP as a pure property, thanks to its constant propagation of the Lockean Labour and Hegelean Personality Justification theory. In my eyes while both of these overlap in their law, it seems that the EU in the multitude of IP regimes comes about enforcing this theory very forcefully.

The Indian law on the other hand in towing a fine line between the two regimes - to me appears to be finding a balancing of interests in an attempt to not adopt an extremist approach. If I were to opine as to what is the correct approach, I am of the each one to itself stand… since each of the jurisdictional practices, at least prima facie, seem to be in tandem with a rationale that each of these countries have adopted.

The take away from this is that as many an amateur would consider “intellectual property” as international property, the same is in fact not. Even the marketing folks working on global ad campaigns will sooner or later need to understand the nuances of trademark law in everything they do. And as lawyers, while we will play Priest, Counsel and Teacher, the roles must be played with utmost caution and consideration to the subject matter and jurisdiction dealt with.

****

While I appear to be going round and round in circles, I warn our readers that this is what I shall often do, dwelling on aspects which often may appear to be unrelated or even inconsequential to the issues in practice, but continue to intrigue or at times even simply amuse me!!! I welcome the brick bats along the way…

Guest Post: Legitimate Rights of a Copyright (and trade mark) Owner

We bring to you a pithy guest post on Section 62 of the Copyright Act from Sneha Jain, an associate from a leading NCR-based law firm. In this post, it is submitted that Section 62 allows even a non-copyright owner to institute a proceeding for infringement under the Act so long he has an actionable interest. Without further ado, below is Sneha’s take on the issue.

Legitimate Rights of a Copyright (and trade mark) Owner

Why is an IP owner’s cause always a politically incorrect one? Why is any interpretation of the law which protects the legitimate interest of IP owners projected in poor light? Is it probably because we are yet to come out of our socialist mind-set or is it because we think making money is an evil thing?

One of our primary duties as people who encourage public discourse in a niche area such as IP law is to present  honest views, regardless of their political correctness so long as they are supported by legislative intent as reflected in the statute.

My statements above may appear harsh to many but the reason for my harshness is the unending and legislatively unsubstantiated debate on the interpretation of Sec. 62 of the Copyright Act, 1957 (and the identical Sec. 134 of the Trade Marks Act, 1999).

Until now, the raging issue regarding Section 62 was whether the place where the plaintiff “carries on business” should also be the place where the “cause of action” has arisen in order for him to successfully claim jurisdiction under this section. In other words, whether the element of cause of action under the Code of Civil Procedure, 1908 (CPC) should be read into S.62 to avoid it being “misused” by “Money Powers” allegedly resulting in forum shopping?

Thankfully, this controversy has been put to rest by the Supreme Court’s decision in Exphar SA & Anr. v. Eupharma Lab. Ltd. & Anr (2004) where the court categorically held that “S.62 prescribes an additional ground for attracting the jurisdiction of a court over and above the ‘normal’ grounds as laid down in S.20 of the CPC.” 


While the Delhi High Court (Archie Comic Publications Inc. v. Purple Creation) continues to interpret this section without considering the Apex Court's ruling, the Madras High Court (Wipro Ltd. & Anr. v. Oushadha Chandrika Ayurvedic) has put to rest the issue following the Supreme Court’s unequivocal pronouncement of the law of the land.

But now, a new and totally unnecessary controversy seems to have riddled this section – who can institute a suit for copyright infringement under Sec. 62? Some believe that since it is the owner of copyright (which includes the exclusive licensee) who is entitled to remedies as per Sec.55 of the Copyright Act, it is the owner of copyright/exclusive licensee alone who is entitled to institute a suit under Sec. 62. 

According to this school of thought, since the owner of copyright is a foreign entity which has no Indian base, it has no place to “carry on business”, and therefore cannot invoke Section 62.  

Sec. 62 has been held to be a self-contained code so far as the jurisdiction in relation to matters arising under the Copyright Act is concerned (Ritiki Limited v. Pramod Kumar). Consequently, the question of who can claim the benefit of Sec. 62 can be answered by reference to the provision itself. For ease of reference:

62. Jurisdiction of court over matters arising under this Chapter. –

(1) Every suit or other civil proceeding arising under this Chapter in respect of the infringement of copyright in any work or the infringement of any other right conferred by this Act shall be instituted in the district court having jurisdiction. 

(2) For the purpose of sub-section (1), a "district court having jurisdiction" shall, notwithstanding anything contained in the Code of Civil Procedure, 1908, or any other law for the time being in force, include a district court within the local limits of whose jurisdiction, at the time of the institution of the suit or other proceeding, the person instituting the suit or other proceeding or, where there are more than one such persons, any of them actually and voluntarily resides or carries on business or personally works for gain.

A clear, open-eyed, sensible reading of Sec. 62 tells us that it does not refer to the owner of copyright AT ALL! The phrase used is “the person instituting the suit” as opposed to “the owner of copyright”. This implies that Sec. 62 does not restrict the right to institute legal proceedings for copyright infringement to the owner of copyright alone. The “person instituting the suit” may be an agent so authorised by the owner of copyright to institute infringement proceedings.

This interpretation finds support in the case of Phonographic Performance Limited v. Lizard Lounge & Ors.(Delhi HC, 2008) where the rights of a Copyright Society to institute a suit in its own name, for infringement of copyright of its members, was questioned before the Division Bench of the Delhi High Court. 

The Single Judge had concluded that the provisions of Sec. 55 of the Copyright Act confers the right for seeking a remedy against infringement only by the owner of copyright, the expression “owner of copyright” having been defined in Section 54 to include an exclusive licensee. Thus, since a Copyright Society is not an exclusive licensee, it was held not to have a right to institute legal proceedings.

Reversing this decision, the Division Bench stated –

“if we were to accept the reasoning of the learned single Judge, it would imply that the principles of agency as contained under the Indian Contract Act, 1872 have to be given a go-bye. The Copyright Society is an agent appointed under the agreement by the owner of the Copyright and specific powers have been conferred on the agent to institute legal proceedings. The said Act does not contain any provision prohibiting the institution of legal proceedings in derogation to the general law of agency. The author being the first owner of Copyright under Section 17 of the said Act can certainly appoint an agent to institute legal proceedings.”

Moreover, S.62 gives absolutely no importance to the geographical location of the owner of copyright while determining jurisdiction.  For the purposes of jurisdiction under Sec. 62, it is the geographical location of “the person instituting the suit or other proceeding” which matters. 

Consequently, even if the owner of copyright is a foreign entity and has no base in India, its geographical location is irrelevant and it is the Indian subsidiary’s place of business (i.e. the place of business of the person instituting the suit) that is essential to determine jurisdiction. 

The Supreme Court in Exphar has clarified this in beautifully articulated words as follows:

“The appellant No. 2 (who had a manufacturing contract with appellant No. 1, the owner of copyright) is certainly ‘a person instituting the suit’. The Division Bench went beyond the express words of the statute and negatived the jurisdiction of the Court because it found that the appellant No. 2 had not claimed ownership of the copyright of the trade mark, infringement of which was claimed in the suit. The appellant No. 2 may not be entitled to the relief claimed in the suit but that is no reason for holding that it was not a person who had instituted the suit within the meaning of Section 62(2) of the Act.” (emphasis added)

Thus, it is clear that the Supreme Court has laid to rest, both the controversies surrounding Sec. 62 – (a) Sec. 62 Copyright Act cannot be circumscribed by reference to Sec. 20 CPC, and (b) jurisdiction is to be determined not by reference to the place of business of the owner of copyright, but by reference to the place of business of the “person instituting the suit”.

I thank Sai Deepak for sharing his views on the issue with me.