Constitutional Perspectives and Intellectual property rights

The Intriguing Psychology Behind Constitutional Perspectives and Intellectual Property Rights
Constitutional Perspectives and Intellectual property rights
Olivier Le Moal
1.

CHAPTER – I

SYNOPSIS

The “Intellectual Property Rights” calls for safeguarding the creations of mind, including inventions, literary, and artistic works, symbols, names and images and designs used in commerce.[1] They are like any other property right.[2] Conventionally, Intellectual Property is divided into two categories; Industrial Property and Copyright. Industrial Property is further divided into two categories; viz. Patents and Trademarks. They are shown in the figure hereinbelow:

[1]WIPO, What is Intellectual Property?, pg.2, available at:

< http://www.wipo.int/edocs/pubdocs/en/intproperty/450/wipo_pub_450.pdf >, accessed on : 03-11-2014.

[2] Ibid. at pg.3.

Sub-section (2) of Art. 27 of the UDHR clearly provides for the right to a person to safeguard his/her moral and material interests; which is the outcome of any scientific, literary and artistic works of which such person is the author.[3] The importance of Intellectual Property was first perceived in the case of Paris Convention For The Protection of Industrial Property (1883) and Berne Convention for the Protection of Literary and Artistic Works (1886).[4] In order to understand the “Constitutional Perspectives regarding the Intellectual Property Rights”, firstly, we have to understand the question as to what is a constitution? A constitution is a document which is regarded as:

(a) supreme law of the land,

(b) a framework of government and;

(c) a legitimate vehicle for granting and limiting the power of government officials.[5]

q Significance of Protection of Intellectual Property Rights:

There are several factors which require the State to protect, encourage and preserve the Intellectual Property. They are:

Ø The advancement of human race relies on the potentiality of Intellectual Property in order to create and discover new works in the areas of technology and culture.[6]

Ø The legal protection of new designs etc. promotes the commitment of additional resources for further innovation.[7]

Ø The protection and encouragement of Intellectual Property stimulates economic growth, creates new jobs and industries, and intensifies the quality and enjoyment of life.[8]

An systematic and balanced Intellectual Property system can help the countries to realize the prospects of Intellectual Property as a catalyst for economic, social and cultural development.[9]Also it can help to maintain an equitable position between the interests of innovators and the public at large, by furnishing an environment in which creativity and invention can flourish, for the betterment of all.[10]

This present research project is divided into six chapters. The researcher has tried to deal with each research question individually in separate chapters and the final chapter deals with the conclusion.

q Statement Of Problems:

Entry 49 List I of the VIIth Schedule of Indian Constitution empowers the Union to enact Laws relating to copyright, patents and trademarks. However, it does not recognize the concept of Traditional Knowledge, Biodiversity, Geographical Indications and others.[11] Also, both the Indian Constitution and the Indian Copyright Act are not clear about the purpose of Copyright Law. This gap can only be fulfilled by the interpretations of these laws by the Judiciary.[12]

Research Questions:

The researcher in dealing with the topic is going to deal with the following research questions which will suffice the object and purpose of the research. They are mentioned here-in-below:-

v What are the directives given under the Indian Constitution to be followed by the State regarding the protection of IPR?

v How does the State protects the authorship of the author of creative works?

v How does the fundamental right guaranteed under Art. 19 (1) (a) of the Indian Constitution ensures protection to the author with regard to his Intellectual Property Rights?

q Hypothesis:

In this research, the researcher shall proceed upon with the hypothesis that although the State has the responsibility regarding protection of the authorship of the creator of creative works; still it is the judiciary which plays a vital role in complementing the functions of the State and to bridge the vacuum created by the statues.

q Objectives of the Study:

The general objective of the research work is to study the constitutional perspectives of IPR and discuss :

a) The directives provided under the Constitution of India to the State with regard to the protection of authorship of the creator of innovative works.

b) The framework as to how the state protects such authorship of the creator of innovative works.

c) The role of Judiciary in this regard.

q Scope of the Study:

The researcher has focused purely on the constitutional perspectives regarding the Intellectual Property Rights and also the function and role of the State and the Judiciary in this regard.

q Research Methodology:

The methodology followed in this research will be purely doctrinal in nature. This research is purely based on the decisions of the apex court of various cases and the decision rendered in each particular case; therefore the researcher will be dealing mainly with the doctrinal material available w.r.t. the case laws and will do an extensive study on the abovementioned aspects. The research done by the researcher in this Project is of comparative and analytical nature.

The researcher will be taking the help of various primary sources such as the text of the Constitution of India Act, 1950; the rationale of the judges and their judicial interpretation etc. The secondary sources that the researcher will use are the various commentaries, journals, articles and papers relating to this particular case. The researcher will be making extensive use of both of such primary and secondary sources in this research.

q MODE OF CITATION:

A uniform mode of citation (Bluebook) has been followed throughout the course of this paper.

[3] UN, The Universal Declaration of Human Rights, available at:

< http://www.un.org/en/documents/udhr/index.shtml#a27 >, accessed on:03-11-2014.

[4] Article 19, Balancing the Right to Freedom of Expression and Intellectual Property Protection in the Digital Age, available at:< http://www.article19.org/data/files/medialibrary/3716/13-04-25-share-BACKGROUND-PAPER.pdf >, accessed on: 03-11-2014.

[5] OAH, The Constitution of the United States, What Is A Constitution, (Magazine of History) Vol. 3, No. 1, (Winter, 1988), pp. 41-51, available at: <http://www.jstor.org.ezproxy.nujs.ac.in/stable/pdfplus/10.2307/25162580.pdf>, accessed on : 03-11-2014.

[6] Supra, N. 1.

[7] Ibid.

[8] Id.

[9] Id.

[10] Id.

[11] National Law Relating to IPR And Traditional Knowledge, Chapter 5, pg. available at:

< http://shodhganga.inflibnet.ac.in/bitstream/10603/7175/9/09_chapter%205.pdf >, accessed on 03-11-2014.

[12] The Center For Internet And Society Bangalore, Right To Knowledge For Persons With Print Impairment: A proposal to Amend the Indian Copyright Regime, available at: <https://www.google.co.in/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&cad=rja&uact=8&sqi=2&ved=0CCIQFjAB&url=http%3A%2F%2Fcis-india.org%2Faccessibility%2Fpublications%2Fuploads%2FCase%2520for%2520Amendment%2520of%2520Copyright%2520Regime%2520in%2520India%2520November%252022-%25202009.pdf%2Fat_download%2Ffile&ei=1BVPVMG5N6K_mwXFi4CYBA&usg=AFQjCNHVQeGx_ACDvAdznHjRQDEHH7Yjjg&bvm=bv.77880786,d.dGY> , accessed on: 03-11-2014.

2.

CHAPTER-II THEORETICAL BACKGROUND AND THE JURISPRUDENCE OF INTELLECTUAL PROPERTY RIGHTS

A) Historical Background:

q Ancient Era:

IPR in India can be traced back since ancient times since Indian civilization is not only famous for its cultural aspects but also for technological know-how.[13]

§ Prevalence Of IPR After the Indus Valley Civilization:

There are several instances and proofs which provides that the activities of town planning, entertainment industries etc. were highly progressive after the Indus valley civilization.[14] Also, we know from the collection of various evidences from the past civilization, which states that the trademarks have also been used then to differentiate the products of the producers from one from another.[15]

§ IPR in Sangam Age:

The “Thirukural” contains lot of aspects relating to IPR. Many of the then Poets, Artisans, Technocrats, Physicians, Scientists etc. had been protected by the king through moral, legal and financial assistance. Also a lot of books has being complied during this era.[16]

§ IPR in Modern Period:

In India, during the reign of Lord Curzon, the British Empire is responsible for introducing, establishing, maintaining the framework of IPR and its development. This is because under his ruling, the first ever acts for Patents and Designs have been passed in India.[17]

§ Post Independence Era:

Ø Recognition Of IPR By Indian Constitution:

Constitution of India approves of mixed economy system. Under the preamble of the constitution, the framers recognize the economic liberty as one of the most important liberty. This has been warranted through property system. The term “property” in the Indian constitution is used a wider sense.[18]

At first, Right to property was regarded as the Fundamental Right, but now the right to property is being treated as a constitutional right provided under Art: 300A of Indian constitution which provides constitutional safeguards against unlawful deprivation of property.[19]

Art; 5 and Art; 253 are the provisions which are important in recognizing the international aspect of intellectual property. The former one provides the state to respect the international treaties and obligations and the later one empowers the parliament of India to enforce the treaties through law making process.[20]

Entry 49 List I of the VIIth Schedule of Indian Constitution empowers the Union to enact Laws relating to copyright, patents and trademarks. Also Entry 97 of List I of the VII th Schedule of Indian Constitution provides necessary powers to the central government to enact necessary laws by exercising its residuary powers.[21]

In the recent case a question was raised as to whether or not ‘intellectual property’ such as ‘clinical trial data’ would fall within the definition of ‘property’ as understood in Article 300 A.[22] It seemed there was enough authority to support the theory that ‘property’ as understood in Article 300A is wider than just ‘immovable property’. One such authority in the context of IPR, is evident from the judgment of the S.C. in the case of Entertainment Network India Limited (ENIL) v. Super Cassette Industries Ltd. (SCIL).[23]

Here the apex court held that:

The ownership of any copyright like any other property must be understood having regard to the principles inherent in Article 19(1)(g) read with Article 300A of the Constitution, apart from, the human rights on property. But, such right over property will be subject to reasonable restrictions. Under Article 300A of the Constitution, it may be subject to the conditions laid down therein, namely, it may be wholly or in part acquired in public interest and on payment of reasonable compensation.

The fact that the SC recognizes ‘copyright’ to fall within Article 300A is indicative that even ‘clinical trial data’, collected after extensive experimenting, should in all likelihood fall within the definition of ‘property’ as understood in Article 300A.[24]

B) Jurisprudence of IPR:

John Locks Labour Theory:

This theory states that human labour deserves certain proprietary rights.[25] According to John Locks, whoever labours deserves reward in the form of proprietary rights. Originally, labour theory did not point out whether the word “labour” means physical or mental labour. The opponents of the Intellectual Property argued that at the time when Locks propounded this theory, he might not have thought of mental labour. The proponents of Intellectual Property defended it by saying that his theory is generally applicable to property and proprietary rights and since this theory seems to have no reservations in its application, therefore it need not be restricted only to physical labour.[26]

Jeremy Bentham’s Utilitarian Theory:

This theory proposes that the maximum benefit to maximum number of the society should be guaranteed by the law in force. The regulation of IPR serves the purpose of being an promoter for creative work, which ultimately causes benefit to the society. The owner of the Intellectual Property is assumed to work on the subject matter of Intellectual Property and make it and its proceeds available to the public. Hence, the proceeds of mental labour or IPR ultimately reaches the public.[27] Since IPR are granted to the owner for a definite period of time after which such work the falls under the public domain and there could be no restrictions on the public usage of such work thereafter.[28] Further, IPR are protected only when such work are capable of Industrial Application. The objective of such application of any innovative work is to exploit the work commercially, market it and make it available to the public.[29] In this way IPR serves the purpose of maximum benefits of the maximum members of the society.[30]

Hegel’s Personality Theory:

This theory states that property is an extension of one’s own personality and it is the personality which blooms through the protection of one’s proprietary rights.[31] These proprietary rights could be either physical property rights or non-physical property rights such as IPR.[32] The opponents of this theory have argued that this theory doesn’t say anything specifically about Intellectual Property. However, the proponents of this theory argued that since there is nothing according to Hegel’s theory which would prohibit protecting and possessing property rights, therefore, there is nothing wrong to say that this theory is in support of protecting and promoting IPR.[33]

[13] Supra N.11.

[14] Ibid.

[15] Id.

[16] Id.

[17] Id.

[18] National Law Relating to IPR And Traditional Knowledge, Chapter 5, pg. available at:

< http://shodhganga.inflibnet.ac.in/bitstream/10603/7175/9/09_chapter%205.pdf >, accessed on 03-11-2014.

[19] Ibid.

[20] Id.

[21] Id.

[22] De-Coding Indian IP Law, Art. 300-A of the Constitution: A Constitutional Right to Data-Exclusivity, available at: < http://spicyip.com/2010/05/article-300a-of-constitution.html >, accessed on: 04-11-2014.

[23] 2008 (9) SCR 165.

[24] Ibid.

[25] Sreenivasulu N.S., Law Relating to Intellectual Property, (Partridge Publishers , 23 Dec. 2013) p.14.

[26] Ibid.

[27] Supra, N.25.

[28] Ibid.

[29] Id.

[30] Id.

[31] Id.

[32] Id.

[33] Id.

3.

CHAPTER – III DIRECTIVES GIVEN UNDER THE INDIAN CONSTITUTION TO BE FOLLOWED BY THE STATE REGARDING THE PROTECTION OF IPR

As per Article 51(c) of the Constitution of India, the State is under a constitutional directive to undertake to encourage respect for international law and treaty obligations with regard to the dealings of the organized peoples with one another.[34] Although, the directive principles of State Policy cannot be enforced in the Court of Law, still they hold importance regarding the governance of the Country.[35] The word ‘State’ has been defined under Article 12 of the Part III of the Indian Constitution relating to Fundamental Rights. Article 36- Art. 51 of the Part IV of the Indian Constitution which contains the Directive Principles of State Policy; is very wide and includes judicial and quasi-judicial authorities as well. Therefore, the courts in India are obliged to encourage to promote respect for international law and obligations under the international treaties.[36]

The constitutional review for respecting international treaties and conventions is also seen in the Article 253 which gives the authority to the Parliament to make law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other Country or Countries or any decision made at any international Conference, association or other body.[37] Also, under Article 246 read with Entry 14 of the List I of Schedule VII of the Constitution, the parliament is having authority to legislate with respect to the subject of entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries.[38] However, the international agreements entered into by the Union in exercise of its executive power under Article 73 which are not contrary to law are required to be acknowledged by the Municipal Courts.[39] In the case of Maganbhai v. Union of India,[40] for entering into treaty or in order to enforce it in India, it is not a Constitutional requirement that the executive should have the support of Parliamentary legislation.[41]The subject of Patents, Designs, Inventions, Copyright; Trade Marks and Merchandise Marks is assigned to the Parliament under Entry 49 of the Union List under the VII th Schedule of Indian Constitution for the purpose of legislation and for protecting and encouraging the Intellectual Property.[42]

[34] Gujrat HC, Articles, Constitutional Directives to respect treaty obligations, available at:

< http://gujarathighcourt.nic.in/articles/roleofjudicary.htm >, accessed on 05-11-2014.

[35] Ibid.

[36] Id. See also:< http://www.legalservicesindia.com/article/article/the-role-of-indian-judiciary-with-special-reference-to-global-ip-regime-797-1.html >

[37] Id.

[38] Id.

[39] Role of Indian Judiciary with Special Reference to Global IP Regime, available at: http://www.legalservicesindia.com/article/article/the-role-of-indian-judiciary-with-special-reference-to-global-ip-regime-797-1.html >, accessed on: 05-11-2014.

[40] AIR 1969 SC 783.

[41] Supra N. 34.

[42] Ibid.

4.

CHAPTER - IV PROTECTION AND PROMOTION OF THE STATE REGARDING THE IPR AND THE ROLE OF THE JUDICIARY IN THIS REGARD

It is the State which enact laws regarding the protection, promotion and enforcement of the IPR. To examine the liability of the State in Indian context, it would be proper to refer to Art. 300 (1) of the Indian Constitution, which states that the Government of India may sue or be sued by the name of Union and the Government of a State may sue or be sued by the name of the state.[43] Also, after the 44th Amendment, right to property has become a legal right which still provides that “no person should be deprived of his property saved by Authority of Law.”[44] The commercialised trading of franchising has made IPR licensing a widespread commercial practice and has resulted in maximum exploitation of such rights by the lawful proprietor/businessman.[45] Due to the globalization of the “World Economy” and acknowledgement of IPR as an important part of WTO, the issues governing contracts regarding IPR by way of assignments and licenses have obtained paramount importance.[46] Also, it was the TRIPS Agreement, which had provided adequate guidelines for the uniform protection of IPR by the member States.[47] In India, the laws passed by the Parliament, which govern IPR are as follows:

Ø The Patents Act, 1970 (as amended by The Patents Amendment Act, 2005),

Ø The Copyright Act, 1957,

Ø The Designs Act, 2000,

Ø The Trade Marks Act, 1999,

Ø The Geographical Indication of Goods (Registration & Protection) Act, 1999;

Ø The Semi–Conductor Integrated Circuit Layout Designs Act, 2000.[48]

§ The Patents Act, 1970:

Section 68 of this Act provides for the Statutory Rules regarding assignments and licencing of Patents. An assignment of a patent or of a share in a patent, a mortgage, licence or the creation of any other interest in a patent under the law is not valid unless;

i) It is in Writing and;

ii) The Agreement between the parties concerned is narrowed down to the form of a document enclosing all the terms and conditions governing their rights and obligations. Such Application for registration of such document should then be filed in the prescribed manner with the Controller within six months from the execution of the document or within such further period not exceeding six months in the aggregate as the Controller on application made in the prescribed manner may allow.[49]

§ The Copyright Act, 1957:

Section 18 of The Copyright Act,1957 recognizes the right of owner of Copyright in an existing or in a future work to assign the copyright, either wholly or partially.[50] The Copyright Act, 1957 recognizes two types of licencing:

a) Voluntary licence (Section 30 and 30A);

b) Compulsory licence (Section 31– 32B).[51]

a) Voluntary licence:

Section 30 of the Act authorizes the owner of a copyright to grant a licence in relation to any interest in the right. The only requirement is that the license should be in writing and should be signed by owner or his duly authorised agent.[52]

b) Compulsory licence

Copyright Board is authorized to grant compulsory licenses in the following cases[53]:

1) Where the work is withheld from public,[54]

2) Where the author is dead or unknown or cannot be traced or the owner of the copyright in such work cannot be found,[55]

3) To produce and publish translations,[56]

4) Where the copies of a literary, dramatic or scientific work are not available in India or such copies have not been put on sale in India for a period of six months, from the date of first publication of the edition, the Copyright Board has the power to grant a compulsory licence.[57]

§ The Designs Act, 2000:

Section 30 of the Act read with Rules 32, 33, 34 and 35 acknowledges the contracts relating to assignment of designs and provide procedure for the record of such assignment. The Copyright in the design is only protected if the same is statutorily recognized under the provisions of The Designs Act, 2000.[58]

§ The Trade Marks Act, 1999:

Section 37 of the Act acknowledges the power of Registered Proprietor to transfer his rights in a trade mark by way of assignment. The registered trade mark is assignable with or without the goodwill of the business concerned and in respect either of all the goods or services in respect of which the trademark is registered or of some of the goods or services. Under the current law, even an unregistered trade mark may be assigned with or without the goodwill of the business concerned.[59]

The Act lays down an detailed procedure for the record of such assignment. Any person acquiring a right in trade mark by way of assignment is bound to apply in the prescribed manner to the Registrar to register his title to claim benefits of being the subsequent registered proprietor thereof. If the assignment is not recorded by the Registrar, the assignee is not entitled to claim statutory rights conferred by the Act on the registered proprietor.[60]

§ The Geographical Indication of Goods (Registration and Protection) Act, 1999:

Section 24 of the Act prohibits any assignment, transmission, licensing, pledge, mortgage or any such other agreement of geographical indication.[61]

§ The Semiconductor Integrated Circuits Layout– Design Act, 2000:

Sec. 20 - Sec.23 of the Act lay down the provisions relating to assignment and transmission of a layout design. Section 20 confers power on the proprietor of a layout design to assign his right. An assignment of a registered layout–design can be made with or without the goodwill of the business. Also the Procedure relating to the Registration of assignment and transmission is provided by the Act.[62]

Role of Judiciary:

The Judiciary plays two distinct roles in relation to Intellection Property. They are:

a) Interpretation of various Statutes passed by the Legislature in this Regard;

b) Adjudication of matters relating to Intellectual Property.[63]

A) Case Law:

M/s Entertainment Network (India) Ltd. v. M/s Super Cassette Industries Ltd[64], the case involved challenging issues pertaining to the “scope” of compulsory licensing (CL) of sound recordings under Indian law. The case had its origins in complaints filed by several radio operators under Section 31 (1) (b) of the Copyright Act, 1957, before the Copyright Board praying for a compulsory license in relation to the “sound recordings” held by Phonographic Performance Ltd (PPL) as they were unable to negotiate a rate with PPL.[65]

The core issues which arose for consideration were[66]:

(i) Whether the Copyright Board has jurisdiction under Section 31(1) (b) of the Copyright Act, 1957 to direct the owner of a copyright in any Indian work or a registered copyright society to issue compulsory licences to broadcast such as works, where such work is available to the public through radio broadcast?

(ii) Whether in any event such a compulsory license can be issued to more than one complainant in the light of Section 31(2)?

(iii) What would be the relevant considerations which the Copyright Board must keep in view while deciding on;

(a) Whether to issue a compulsory license to a particular person; and

(b) The terms on which the compulsory license may be issued, including the compensation?

The Apex Court held,[67] that Board had the jurisdiction to entertain any application for grant of compulsory licence. To what extent the appellant has infringed the right of the respondent is a matter which may be taken into consideration by the Board. A suit was filed and injunction was granted. Apart from the fact that the appellant offered to take a license held negotiations with the respondents in the suit as soon as it came to know that Super Cassettes is not a member of PPL, it gave an undertaking. Each case must be considered on its own facts. However, they did not approve the manner in which the Board had dealt with the matter.[68] It has refused to examine the witnesses. It took up the matter on a day for hearing which was fixed for production of witnesses. Therefore, the Judges are of the opinion that the order of the Board should be set aside and the matter be sent to the Board again for the consideration of the matter afresh on merit.[69]

B) Case Law:

In Novartis AG v. Union of India[70], the petitioner filed the patent application before Chennai Patent Office related to drug name GLIVEC which was slightly a different version of their 1993 patent for ANTI - LEUKAEMIA drug. The then Assistant Controller of Patent and design, Chennai Patent Office rejected the application under section 3(d) of the Indian patent act 1970. Hence, the petitioner challenged the constitutionality of section 3(d) before Madras High Court.[71]

The applicant in the appeal contended on two issues:

  • Section 3(d) is unconstitutional as it violates the provision of the TRIPS agreement.

  • The Indian patent act doesn't define the term 'efficacy' and provides unguided power on the Patent Controller. Hence it is arbitrary, illogical and vague.[72]

In response to the above contention the court held that:

  • The WTO's Dispute Settlement provides the absolute remedy and a comprehensive dispute settlement mechanism for violation of TRIPS Agreement. Also, the SC upheld the observation of the Madras High Court regarding the sustainability of the Municipal Law over International Law in case there is a conflict between the two.[73]

  • The court also rejected the second contention that the provision is providing unguided power to the patent controller being arbitrary on the basis of the term 'efficacy' was undefined and therefore the court observed that the test of efficacy would depend upon the function, need or the objective of the product under consideration. Therefore, in the case of a medicine that claims to cure a disease, the test of efficacy can only be 'therapeutic efficacy.'[74] The Supreme Court thereby rejected the patent application filed by the petitioner.[75]

[43] Chakravarti Devaditya,Thadayani Karmayane,Chablani Varun,Nayak Alok, Abrogating Sovereign Immunity in Patent Infringement Cases in India: Retreating without Disgrace, available at: http://nopr.niscair.res.in/bitstream/123456789/12692/1/JIPR%2016(5)%20418-425.pdf >,accessed on 07-11-2014.

[44] Ibid.

[45]Singh Amarjit, AIPPI Report, Contracts Regarding IPR (Assignments and Licences) and Third Parties, available at:< https://www.aippi.org/download/commitees/190/GR190india.pdf >, accessed on: 07-11-2014.

[46] Ibid.

[47] Id.

[48] Id.

[49] Supra, N.45. More at: The power to grant compulsory license can be exercised by the Controller in order to secure the general purposes so as to make the Patented invention work on a commercial scale in the territory of India without undue delay and to the fullest extent that is reasonably practicable and that the interest of any person for the time being working or developing an invention in the territory of India under the protection of Patent are not unfairly prejudice. In settling the terms and conditions of a license, the controller is obliged to secure the rights of the patentee as to the royalty and other remunerations having regard to the nature of the invention and the expenditure incurred by the Patentee in making the invention or in developing it and obtaining a Patent and keeping it in force.

[50] Singh Amarjit, AIPPI Report, Contracts Regarding IPR (Assignments and Licences) and Third Parties, available at:< https://www.aippi.org/download/commitees/190/GR190india.pdf >, accessed on: 07-11-2014.

[51] Supra, N. 50.

[52] Ibid.

[53] Id.

[54] Sec. 31 of The Copyright Act, 1957.

[55] Infra, N. 51.

[56] Ibid.

[57] Id.

[58] Id.

[59] Singh Amarjit, AIPPI Report, Contracts Regarding IPR (Assignments and Licences) and Third Parties, available at:< https://www.aippi.org/download/commitees/190/GR190india.pdf >, accessed on: 07-11-2014.

[60] Ibid.

[61] Id.

[62] Id.

[63] Dr. Sudhir Ravindran, Intellectual Property Role of the Judiciary, available at: http://www.altacit.com/pdf/3-Intellectual%20Property%20Role%20of%20the%20Judiciary.pdf >, accessed on : 07-11-2014.

[64] 2008(9 )SCR165

[65] PPL is one of the two collecting societies in India (the other is IPRS: Indian Performing Rights Society, which is mainly a collecting society for underlying works in sound recordings). More at:

< http://lawandotherthings.blogspot.in/2008/06/indian-supreme-court-on-intellectual.html >, accessed on: 07-11-2014.

[66] Available at: <http://www.judis.nic.in/supremecourt/qrydisp.aspx?filename=31596 > accessed on: 07-11-2014.

[67] Supra, N. 65.

[68] The intention of the Parliament, it is trite, must be ascertained from the plain reading of the Section. The intention is to treat works, which have been “withheld from the public” differently from the “right to

broadcast”. The right to broadcast is a ephemeral right. It requires special treatment as it confers upon every person, who wishes to broadcast a work or the work recorded in a sound recording, the right to do so is either by entering into a voluntary agreement to obtain a licence on such terms which appear to be reasonable to him or when the term appears to be unreasonable to approach the Board. We wish the statute would have been clear and explicit. But only because it is not, the courts cannot fold its hands and express its helplessness. When such a complaint is made, it confers the jurisdiction upon the Board. It may ultimately allow or reject the complaint but it cannot be said that the complaint itself is not maintainable.

[69] Supra, N. 66.

[70] AIR 2013 SC 1311.

[71] Aayush Sharma, Section 3 (d) of Indian Patents Act, 1970:Significance and Interpretation, available at: http://www.mondaq.com/india/x/295378/Patent/SECTION+3D+OF+INDIAN+PATENTS+ACT+1970+SIGNIFICANCE accessed on: 07-11-2014.

[72] Ibid.

[73] Id.

[74] Id.

[75] Id.

5.

CHAPTER – V HOW DOES THE FUNDAMENTAL RIGHT GUARANTEED UNDER Art. 19 (1) (a) OF THE INDIAN CONSTITUTION ENSURES PROTECTION TO THE AUTHOR WITH REGARD TO HIS IPR?

According to Mark Bartholomev and John Tehranian in their article; is of view that that the lawmakers and the Judges must wilfully balance Intellectual Property rights with expressive freedoms.[76]

Art. 19 (1) (a) of the Indian Constitution guarantees to all citizens the right to freedom of speech and expression, which includes right to express one’s view and opinions at any issue through any medium for e.g. by writing, film, music, movie etc.[77] However this right is subject to reasonable restrictions by the state which can be applied by the State by its inaction.[78] It is important to note that the ambit of freedom of speech and expression under Art. 19 (1) (a) of the Indian Constitution has been expanded to include the Right to receive and dissemate information. Also, it does include the right to communicate and circulate information through any print, broadcast or electronic media.[79] The Judiciary has also opined (from time to time) that this right to communicate and receive information without interference is a crucial aspect of this right because a person cannot form an informed opinion or make an informed choice and effectively participate socially, politically or culturally without receipt of adequate information.[80]

The apex court in State of Uttar Pradesh v. Raj Narain,[81] held that Art. 19 (1) (a) of the Indian Constitution guarantees freedom of speech and expression to all citizens in addition to protecting the rights of the citizens to know the right to receive information regarding the matters of public concern.[82]

This position was reiterated by the Court in

Secy., Ministry of Information and Broadcasting, Govt. Of India v. Cricket Association of Bengal;[83] wherein it was held that Art. 19 (1) (a) includes the right to acquire and disseminate information.[84]

It was viewed that the state is under an obligation to ensure conditions in which the right to freedom of speech and expression can be effectively enjoyed by all citizens. Hence the citizens shall have conditions amicable for innovative thinking, expression and application which would lead to creative works and innovations by ensuring the necessary conditions for the citizens to enjoy the freedom of speech and expression. The resultant creative works and innovations could be encouraged.[85]

q Concept of TM Infringement:

Advertisement was discussed by quoting the definition of commercial advertisement as commercial advertisement is a form of commercial speech and expression and is protected under Art. 19 (1) (a) of the Indian Constitution.[86] But, commercial speech which is deceptive, unfair, misleading and untruthful is hit by Art. 19 (2) and so could be regulated by the state.

In Pepsi Co. Inc. And Ors. v. Hindustan Coca Cola Ltd.and another,[87] Pepsi filed a suit against Coca-Cola for wrongful use of their TM in a commercial where in a lead actor asks a kid to his favourite drink for which he says that he likes Pepsi.[88] Then, the lead actor asks the kid to tast the two samples of drinks after hiding their identity and questions the kid as to “Bachho Ko Kon Si Pasand Aayegi”? The kid points to one drink and says that children would prefer it because it is sweeter and says that he does not like that drink. He likes the taste of the other drink and says that it is a stronger drink and has to be consumed by grown ups. After the lead actor opens the lid off both the bottles, it is revealed that the bottle which the kid likes was “Thums-up” which the Kid likes and on the other had PAPPI written on it which was deceptively resembles Pepsi.[89]

Held: The court held Coca-Cola on the ground of disparagement and depreciating the goodwill of the Plaintiff’s products under TM and Copyright Act as the registered TM was being infringed by the us of a Globe Device on the word PAPPI which is deceptively resembling to the TM PEPSI.[90]

[76] Bartholomew Mark, Tehranian John, An Intersystemic View Of Intellectual Property and Free Speech, available at:< http://www.gwlr.org/wp-content/uploads/2013/01/Bartholomew_81_1.pdf >, accessed on: 05-11-2014.

[77] Dr. Sreenivasulu N.S., Somashekarappa, Freedom of Speech and Expression and the Issues of Intellectual Property and Copyright, pg. 1 (Manupatra), available at:

< http://manupatra.com/roundup/370/Articles/Freedom%20of%20Speech.pdf >, accessed on: 05-11-2014.

[78] Supra, N..

[79] Ibid.

[80] Id.

[81] A.I.R. 1975 S.C. 865.

[82] CIS Bangalore, Right to Knowledge for Persons with Print Impairment, A Proposal To Amend The Indian Copyright Regime ,available at: <https://www.google.co.in/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&cad=rja&uact=8&sqi=2&ved=0CCIQFjAB&url=http%3A%2F%2Fcis-india.org%2Faccessibility%2Fpublications%2Fuploads%2FCase%2520for%2520Amendment%2520of%2520Copyright%2520Regime%2520in%2520India%2520November%252022-%25202009.pdf%2Fat_download%2Ffile&ei=1BVPVMG5N6K_mwXFi4CYBA&usg=AFQjCNHVQeGx_ACDvAdznHjRQDEHH7Yjjg&bvm=bv.77880786,d.dGY>, accessed on: 09-11-2014.

[83] A.I.R. 1995 S.C. 1236.

[84] Infra, N. 82.

[85] Ibid.

[86] JBM and SSR, Comparative Advertisement And It’s Relation To Trademark Violation – An Analysis Of The Indian Statute Vol. 2 No. 6 June 13, available at: <http://borjournals.com/Research_papers/Jun_2013/1337M.pdf >, accessed on: 09-11-2014.

[87] 2003 (27) PTC 305.Del.

[88] Which was obvious from his lip movement as it was muted. More at: Supra, N.86.

[89] Ibid.

[90] JBM & SSR, Comparative Advertisement And It’s Relation To Trademark Violation – An Analysis Of The Indian Statute Vol. 2 No. 6 June 13, available at: <http://borjournals.com/Research_papers/Jun_2013/1337M.pdf >, accessed on: 09-11-2014.

6.

CHAPTER – VI CONCLUSION

The Indian Constitution provides a three-tier approach in relation to the IPR.

Firstly, it gives the authority to the Parliament to enact Laws in relation to Intellectual Property.

Secondly, it helps the Central Government to establish a framework of Regulations under such laws in order to enforce such laws relating to Intellectual Property.

Thirdly, Art. 300 of the Constitution provides legal right to the to the author(s) in order to sue the Government in case of breach of any IPR.

Though, the State is bound to make laws regarding the Intellectual Property still it’s the Judiciary which plays a pertinent role in giving the inherent meaning to the statutes passed by the legislature. Therefore, the researcher after going through several case laws can safely conclude that the Hypothesis has been proved.

There are several procedural hindrances regarding the compulsory licensing as well. For example, Natco Pharma applied for compulsory license application to allow it to manufacture Roche’s patented drug Erlonitib (its trade name is Tarceva) for export to Nepal. This case was then deviated to another relevant though procedural matter, when Natco Pharma filed an interlocutory petition asserting that patentees be disallowed to participate in compulsory license hearings that took place between the Patent Office and Natco. The petition was dismissed.[91]

[91] Padmanabha Ramanujam, One View of Compulsory Licensing: Comparative Perspectives From India and Canada, available at:

< http://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=1262&context=iplr >, accessed on : 09-11-2014. More: However, in March 2012, the Controller of Patents granted the first ever compulsory license in India to Natco.

7.

BIBLIOGRAPHY

Primary Sources

· The Constitution of India Act, 1950.

Secondary Sources

Articles

· WIPO, What is Intellectual Property?, pg.2, available at:

<http://www.wipo.int/edocs/pubdocs/en/intproperty/450/wipo_pub_450.pdf>, accessed on : 03-11-2014.

· UN, The Universal Declaration of Human Rights, available at:

< http://www.un.org/en/documents/udhr/index.shtml#a27 >, accessed on:03-11-2014.

· Article 19, Balancing the Right to Freedom of Expression and Intellectual Property Protection in the Digital Age, available at:

<http://www.article19.org/data/files/medialibrary/3716/13-04-25-share-BACKGROUND-PAPER.pdf >, accessed on: 03-11-2014.

· OAH, The Constitution of the United States, What Is A Constitution, (Magazine of History) Vol. 3, No. 1, (Winter, 1988), pp. 41-51, available at: <http://www.jstor.org.ezproxy.nujs.ac.in/stable/pdfplus/10.2307/25162580.pdf>, accessed on : 03-11-2014.

· The Center For Internet And Society Bangalore, Right To Knowledge For Persons With Print Impairment: A proposal to Amend the Indian Copyright Regime, available at:<https://www.google.co.in/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&cad=rja&uact=8&sqi=2&ved=0CCIQFjAB&url=http%3A%2F%2Fcis-india.org%2Faccessibility%2Fpublications%2Fuploads%2FCase%2520for%2520Amendment%2520of%2520Copyright%2520Regime%2520in%2520India%2520November%252022-%25202009.pdf%2Fat_download%2Ffile&ei=1BVPVMG5N6K_mwXFi4CYBA&usg=AFQjCNHVQeGx_ACDvAdznHjRQDEHH7Yjjg&bvm=bv.77880786,d.dGY> accessed on: 05-11-2014.

· Dr. Sreenivasulu N.S., Somashekarappa, Freedom of Speech and Expression and the Issues of Intellectual Property and Copyright, pg. 1 (Manupatra), available at:

<http://manupatra.com/roundup/370/Articles/Freedom%20of%20Speech.pdf>, accessed on: 05-11-2014.

· Bartholomew Mark, Tehranian John, An Intersystemic View Of Intellectual Property and Free Speech,availableat:<http://www.gwlr.org/wpcontent/uploads/2013/01/Bartholomew_81_1.pdf >, accessed on: 05-11-2014.

· National Law Relating to IPR And Traditional Knowledge, Chapter 5, pg. available at: < http://shodhganga.inflibnet.ac.in/bitstream/10603/7175/9/09_chapter%205.pdf >, accessed on 03-11-2014.

· De-Coding Indian IP Law, Art. 300-A of the Constitution: A Constitutional Right to Data-Exclusivity, available at: < http://spicyip.com/2010/05/article-300a-of-constitution.html >, accessed on: 04-11-2014.

· IP Watch, Inside Views: The Judgement in Novartis v. India: What the SC of India said?, available at: <http://www.ip-watch.org/2013/04/04/the-judgment-in-novartis-v-india-what-the-supreme-court-of-india-said/ >, accessed on 04-11-2014.

· JBM & SSR, Comparative Advertisement And It’s Relation To Trademark Violation – An Analysis Of The Indian Statute Vol. 2 No. 6 June 13, available at: <http://borjournals.com/Research_papers/Jun_2013/1337M.pdf>, accessed on: 05-11-2014.

· Gujrat HC, Articles, Constitutional Directives to respect treaty obligations, available at:

< http://gujarathighcourt.nic.in/articles/roleofjudicary.htm >, accessed on 07-11-2014.

· Padmanabha Ramanujam, One View of Compulsory Licensing: Comparative Perspectives From India and Canada, available at:

<http://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=1262&context=iplr>, accessed on : 09-11-2014. More: However, in March 2012, the Controller of Patents granted the first ever compulsory license in India to Natco.

· JBM & SSR, Comparative Advertisement And It’s Relation To Trademark Violation – An Analysis Of The Indian Statute Vol. 2 No. 6 June 13, available at: <http://borjournals.com/Research_papers/Jun_2013/1337M.pdf >, accessed on: 09-11-2014.

· CIS Bangalore, Right to Knowledge for Persons with Print Impairment, A Proposal To Amend The Indian Copyright Regime ,available at: <https://www.google.co.in/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&cad=rja&uact=8&sqi=2&ved=0CCIQFjAB&url=http%3A%2F%2Fcis-india.org%2Faccessibility%2Fpublications%2Fuploads%2FCase%2520for%2520Amendment%2520of%2520Copyright%2520Regime%2520in%2520India%2520November%252022-%25202009.pdf%2Fat_download%2Ffile&ei=1BVPVMG5N6K_mwXFi4CYBA&usg=AFQjCNHVQeGx_ACDvAdznHjRQDEHH7Yjjg&bvm=bv.77880786,d.dGY>, accessed on: 09-11-2014.

Related Stories

No stories found.
Lex Legacy Bloc
lexlegacybloc.com