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November has passed. We stand on the cusp of bidding farewell to 2023 with just 10 days remaining! So, before 2023 turns into yesteryear, let’s see what the past Novembers on SpicyIP (2005 to present) have offered. As you may know, this is part of our monthly series “Sifting Through SpicyIP Pages.” So, we have already ventured through Junes, Julys, Augusts, Septembers, and Octobers and shared some stories like P.H. Kurian’s trail of transparency, Statements of Patent (Non-)Working, Corruption in IP Offices, the Serial Crisis in India, the Indian “Bayh Dole” Bill, etc. Missed anything? No worries, we got you! Just click on SpicyIP Flashbacks and you can find what we have found thus far while journeying through these months.
Without further ado, here’s what I found in Novembers:
Database Protection in India: Since Prof Basheer’s 2005 post about the inaccurate implication of the theft of data as copyright infringement, to 2023, not much seems to have changed. Although India now has the Digital Personal Data Protection Act 2023, it doesn’t provide IP protection to databases. The Indian courts have further clarified this issue. E.g. Spadika Jayaraj discussed a case where the Delhi High Court dismissed a suit by a media house accusing copyright infringement on its database of users. The issue has often arisen in the context of protecting confidential information through copyright law. E.g., see Prateek Surisetti’s post here and Niyati Prabhu’s post here. Analogously, Kartik Sharma and Aditya Singh analyzed the copyrightability of datasets against the backdrop of the controversy surrounding NSE’s issuance of C&D notices to many stock gaming applications. The meat of this matter is the standard of originality! For, the question of whether databases are copyrightable essentially hinges on their “originality.” Here, I would pinpoint Mihir Naniwadekar’s wonderful two-part post called “On ‘Prima Facie’ cases and ‘Originality’” (see also here), emphasizing that the Indian threshold of originality rests on “intellectual skill and judgment” (like that of Canadian CCH case). This standard falls between the USA’s “minimal creativity” and the “Sweat of the brow” standards. Speaking of this, Siddharth Sonkar’s detailed post on whether a sui generis protection of unoriginal databases reconciles access and incentive to actualize public good is worth poring over.
Changes after Setting Up of the Plant Variety Registry in India – Around 17 years ago in the same month, Prof Basheer shared the news of the setting up of the National Plant Variety Registry by the Protection of Plant Varieties and Farmers’ Rights Authority (PPV&FR). Two years later, Sumathi did a detailed post about her interview with Dr S Nagarajan, the then Chairperson of PPV&FR. As time passed, several developments happened on this front and there were brilliant posts on the blog, e.g. by Mrinalini Kochupillai, Prof. (Dr.) N.S. Gopalakrishnan, Shalini Bhutani, Dr. Deepa Kachroo Tiku, Mr. R.K. Trivedi, Mr. Essenese Obhan. The issue of Monsanto Bt. Cotton and Pepsico are must-mentions. Notably, the entity, Monsanto, no longer exists now as the same has been acquired by Bayer which dropped the name “Monsanto” and used the name “Bayer”.
One of the earliest posts on Monsanto was about opposition by the “No Patents on Seeds” coalition for a patent granted to Monsanto by EPO over a ‘closterovirus-resistant melon plant’. Notably, Monsanto’s matter had several layers including the State Governments seeking to regulate IP licensing fees, and the Indian seed companies who previously licensed technology from Monsanto, refusing to pay royalties to Monsanto. To get an overall picture, see Prashant’s post “The Rs. 400 crore war between Monsanto and Indian seed companies with threats of price control and compulsory licensing of patents.” He also discussed the ‘license of rights’ system for GM patents in light of “Licensing and Formats for GM Technology Agreements Guidelines, 2016” (see also). However, the Government later withdrew these guidelines. Here, the National Seed Association of India’s (NSAI) IP strategy against Monsanto and its examination vis a vis gene patents are worth highlighting. Interestingly, NSAI also wrote to the American Ambassador and called for stringent action against Monsanto. Though it’s another story that some called out NSAI’s for having a “Lopsided Take on Patenting of Biotech Innovation in Agriculture”. Meanwhile, there was a case where the Delhi High Court struck down Section 24(5) of the Plant Varieties Act which which allowed the registrar to issue interim directions against third-party abuse during the plant variety registration process. The Supreme Court later stayed this case, however.
Before ending this (seemingly unending) story, I’d highlight two more things that shouldn’t be missed at all: one, the series on the Sustainable Seed Innovations Project (SSI) (see SSI’s background) which received contributions from several notable scholars. Two, Prof. Basheer’s two larger-than-law type posts: The Seed(y) Saga and Pest Policy.
From Big-B Baritone to Anil Kapoor’s Jhakaas, the life of Personality rights: Since Shouvik’s 2010 post about Amitabh Bachhan’s concern over the use of his voice to sell Gutka (an addictive substance), we have come to a long way! Sounds “Jhakaas!” No? While there has always existed an arguable case for personality rights in India, the winning stakes have gotten higher and clearer over the years. Protection over Anil Kapoor’s “Jhakaas” in 2023 is a clear confirmation of that. Interestingly, before Bachchan’s issue, Suchita elaborated on the status of personality rights in India against the backdrop of claims of the wife of the late Steve Irwin. (see also Sourav Ganguly vs Tata Tea). In 2014, the Bombay High Court restrained the singer Mika Singh and the recording label OCP Music from publishing an advertisement that impinged Sonu’s personality rights. Similarly, the Madras High Court stayed the release of the film ‘Main Hoon Rajinikanth’. The issue of personality rights has involved notable figures like Late actress Sridevi, Late actor Sushant Singh Rajput, Gautam Gambhir, PV Sindhu, and Rajat Sharma, who have been on the list of people whose personality rights have been in question. Speaking of late movie stars, one may wonder about the posthumous enforcement of celebrity rights. If you are the one wondering this, then see Karishma Karthik’s two-part post examining the moral right of integrity and its potential as a tool in protecting the authors posthumously. Varsha Jhavar also penned a pertinent post discussing the case filed by the wife of the late Vempati Ravi Shankar, for the unauthorized uploading of his sound recordings on social media. Some more elaborative takes on this issue can be found in Inika Charles’ post on Brosnan’s ‘Pan’demonium, Kiran George’s post on the F.R.I.E.N.D.Z. cafes (see also), and Atharva Sontakke’s post on “63 not out”.
Although the essence of the matter remains consistent, as I said, the notable difference lies in celebrities now being able to assert these rights more confidently. Nonetheless, before this story ends, I’d recommend reading three posts, one Dilip Kumar Pickles and Parveen Babi Soap, about the Ecuador Trademark Registry’s decision on Gandhi Trademark opposition, Tattoo tussle.
10 years of Google Books Library Project: Recently, Google’s AI tool, Search Generative Experience (SGE), which generates summaries for select search queries using AI, has stirred dissatisfaction among publishers. Feels like history is repeating itself. No? Around a decade ago, Google was caught in some similar controversy over its Google Books Library Project where its use was held permissible under fair use. For those unaware, under the Google Books Library project, Google scanned over twenty million books, including copyrighted works. While it allowed the Users to search the electronic database, their access was limited to snippet-views. Researchers could conduct text and data mining (TDM) to analyze word frequencies and thematic changes etc., however. Fast forward to 10 years. While Indian courts haven’t had any specific case, there was some interesting discussion around the permissibility of TDM under Indian copyright against the backdrop of JNU Data Depot. See Viraj Ananth’s two-part post here and here to understand the concept of TDM and how it interplays with copyright law. For a more specific discussion, see Prof. Arul Scaria’s post and Swaroop Mamidipudi’s post arguing that TDM is permissible in India, whereas Prashant Reddy argued otherwise regarding the JNU Data depot instance (see also here). Relatedly, a demand for a separate TDM exception in India was also made in 2020 by a Group of Like-Minded [Indian] IP Teachers. Around the same time, the Ministry of Science and Technology also released the draft version, which sought to establish an open-access, an interoperable portal called the Indian Science and Technology Archive of Research (INDSTA) to support TDM. Read Swaraj and Praharsh’s post discussing this policy.
Aside from pondering the larger question of why no such case has emerged, there is a pressing need for deeper discussions on this matter, especially given the increasing discussion around the training of Artificial intelligence. I wonder whether India needs a “new” TDM exception or if we should read our current fair dealings broadly. If a “new” exception is deemed necessary, the focus shifts to its nature. Should it be expansive, permitting all TDM activities irrespective of commercial aspects, similar to the Japanese (non-enjoyment purposes) law? Or, a more restricted exception might be considered, allowing only non-commercial TDM activities. Alternatively, we can adopt a different approach refraining from regarding TDM as being an exception of copyright but treating it as beyond the scope of copyright.
Transparent (IP) law Making via Leaked Documents: In 2013, Swaraj penned a post about Wikileaks leaked copy of the consolidated IP negotiating chapter for the Trans-Pacific Partnership Agreement (TPP) (see also). Over the years, we have discussed several instances of such leaks and their impact on (international) law and policymaking. For context, see posts on the United Nations Climate Change Conference (COP15) held at Copenhagen, Anti-Counterfeiting Trade Agreement (ACTA) (see also here and here), stomach medicine “Gaviscon,” Regional Comprehensive Economic Partnership (RCEP) (See also here and here), International Telecommunication Regulations (ITRs), Indian IP Policy draft. Most recently, we witnessed the Leaked Draft of the IP Chapter of India UK FTA showing the undesirable TRIPS plus norms in the Negotiating Text and the leaking of the quad TRIPS waiver text.
Given the multitude of leaked drafts and ensuing discussions over the years, it’s worth reflecting on what Swaraj said over a decade ago: “Why is transparency such a difficult proposition nowadays? It seems to be constantly popping up as an issue in nearly any large bureaucratic process. There are only two possible answers of course – either a belief that true democracy (which requires information as a basis for choices) is untenable as a governing mechanism, or that democracy is undesirable to those “leaders” unwilling to conduct transparent proceedings.” While I am not sure if we have only two answers, I am sure that ‘tis high time we think through the question of transparency.
With this, I wrap Novembers’ sift. Next time, I’ll set out a new sift – a sift through the pages of “Decembers.” Needless to say, if there are any posts or events that have escaped my attention, please feel free to share them in the comments. Until then, see you next month!
