Journey Through “Aprils” on SpicyIP (2005 – Present)
lokesh vyas
As I said in the “Marchs” post, here’s the April sift and 11th post of our Sifting through SpicyIP pages series. Previously, we have journeyed through the SpicyIP’s pages from June to March, which you can take a quick glance through this SpicyIP Flashbacks. Let’s get into what Aprils offered on SpicyIP:
Juggling around Jurisdiction issues: “Where do I file my case?” is a fundamental question in legal disputes, as jurisdiction determines the proper court for initiating a case. Traveling through memory lane, Mihir Naniwadekar’s 2009 two-part post on Jurisdiction caught my attention, see here Part I and Part II. Mihir explores the principle of ‘forum non conveniens’ in domestic law—a concept typically applied in international contexts. This discussion is crucial, as Mihir notes, “given the expansions in jurisdiction under certain legislations which allow the plaintiff a choice to file a suit in his place of residence, contrary to the Code of Civil Procedure which mandates filing suits at the defendant’s residence.” (See also this follow-up post).
Over two decades, we’ve seen captivating discussions on jurisdiction. Early debates include the Banyan Tree case Banyan Tree case, questioning if accessing a website in Delhi suffices for the Delhi court’s jurisdiction (it doesn’t, as follow-up developments clarify). Other landmark cases like IPRS v. Sanjay Dalia on the confounding interplay between the provisions of CPC and the Copyright Act concerning jurisdiction (see also here) and Urooj Ahmed v. Maya Appliances, holding applicability of the copyright act provisions to design for jurisdiction add some interesting layers to the discussion.
Thinking of some other piquing and thematic posts, what comes to my mind are Prashant’s post examining “Does Section 62 of the Copyright Act, 1957 apply to foreign copyright owners?”, Mathews’ case study on the Jurisdiction in a composite suit, Devika’s post on Jurisdiction in E-Commerce IP Disputes, and Thomas’ intriguing “SC Nationalises Copyright and TM Enforcement…Well, somewhat” ” (see Part 1 and Part II), Ritvik M Kulkarni’s two-part exploration of jurisdiction post-IPRS v. Sanjay Dalia (see Part II here) is also noteworthy. Speaking of the jurisdiction jam, the Delhi Court ruling that Presence On Online Portals’ is Sufficient to Grant Jurisdiction comes to mind. On this front, SpicyIP has had some terrific posts, e.g., see Divij’s 2-part jurisprudential post on online transactions (see part II here) and Eashan Ghosh’s follow-up post on the topic with some suggestions. Talking of jurisdiction issues, one shouldn’t miss mentioning forum shopping, which refers to the problematic practice where litigants choose to file their lawsuits in a jurisdiction that they believe will be most favorable to their case, as covered here, here, here, and here.
That’s all from my end on this, however, before you go to the next story, don’t miss Kevin Preji’s discussion on the Jurisdiction Vacuum Post-IPAB and Vishno’s post on Writ Jurisdiction against Orders from the IPO.
Parallel importation: Parsing SpicyIP’s past pages, I chanced upon Prof. Mrinalini Kochupillai’s post pondering upon the questions of Parallel importation within the context of CIPLA’s plan to establish a manufacturing unit in Uganda. Equally interesting was Prof. Basheer’s post on Bangladesh as a New Business Opportunity for Indian Generics. These posts made me check the previous discussion on the topic, which is a lot. Let’s sift it quickly. First thing first, what’s this thing called ‘parallel importation’? Put simply, in the realm of patents, parallel import involves purchasing patented products in one country and importing them into another country exploiting price differences between markets. Expectedly, it raises numerous legal questions and implications across various fields of IP law.
Some of the earliest posts on the issues include Prof. Basheer’s 2005 post discussing CIPLA’s call to manufacture Tamiflu and the case involving L’Oreal and MyDollarStore. Section 107A(b) of the Patent Act has frequently been a focal point, as seen in Prof. Basheer’s detailed posts here and here. For some interesting contrary stands, see these posts here, here, and here. However, like many shades of grey, implications on Parallel Imports are huge and not limited to patent law, affecting copyright and trademark laws as well. For those interested in copyright-centric debates, solid posts can be found here, here, and here. Anupriya’s post on the relevance of the parallel importation of books in India in the age of Kindle and e-books is worth reading on this front. Here, the story of the Unexpected Dumping of Section 2(m)–a potent yet unrealized copyright law provision legalizing parallel import – is worth telling. Pertinent posts on this point are, by Amlan Mohanty’s here, and Prof. Basheer here, and here. And now, on the trademark law discussion, see here, and here. More recently, the discussion popped up during the COVID-19 Remdesivir Shortage.
As we go ahead, one thing becomes clear: the stakes in parallel imports are high. For it deeply affects access to affordable medication and education. At the least, the show dialogue must go on, each conversation shedding more light, and each step toward a better engagement.
Treading the “Technology transfer” train: Sumathi’s 2008 post on a technology transfer dispute concerning the Indo-US FutureGen project was my motivation behind this story. As I delved deeper, I realised this topic surprisingly received less attention on the blog. However, let me share what I found, and you, please feel free to chip in what you know but what I missed.
So … some of the initial posts on the topic were written in the context of the Indian “Bayh Dole” Bill (see July post for more), the Indian Innovation Act (see September post for more), and Climate Change, e.g., see here, here, and this post on WIPO Green). Technology transfer, being a core IP issue, inevitably touches on economic aspects like royalties, which have been a persistent concern. Several posts by Shouvik (see also here), Mathews, and Balu tackled this issue. And speaking of royalties, worth reading is Prashant’s post on the Council for Scientific & Industrial Research’s (CSIR) U-Turn on disclosure of royalties earned through patent licensing. (Sidenote: one needs to ask, as Prashant did, Why is it so difficult for CSIR to be ‘transparent’?). Recently, the issue surfaced in the context of the Draft Model Guidelines on the implementation of the IPR Policy for Academic Institutions and the Indian Government’s approval for the Haffkine Institute to manufacture Covaxin through technology transfer.
Okay, that was about this story. But let me remind you again, that the issue of technology transfer is a complex web of legal, economic, and ethical challenges. But our journey through the past, will help us pave the path (so I hope!) for a better understanding of the issue for future generations.
The ubiquity of Rare disease: In 2014, Thomas penned a post discussing the Delhi High Court’s bold move to provide free Enzyme Replacement Treatment to a child suffering from Gaucher disease, despite the eye-watering cost of 6-7 lakhs per month back then (and likely even more now!). The court, brushing aside the State’s whines about insufficient funds, underscored that the right to health is a ‘core obligation’ under Article 21. The story piqued my IP interests but also peeved my human sensibilities. Intrigued, I dove into SpicyIP’s coverage, only to find only four posts on the topic over two decades. 🙁 I wondered – This gap led me to ponder: why are these treatments so costly? Are these diseases truly that rare? Here, my attention diverged a bit from rare diseases to How India’s IP Laws Prevent the poor from Living Healthy Lives. Balaji’s post, aptly titled: Patently Unjust, served as a great resource. This journey also brought me back to Swaraj’s three-part series “Framing Debates on IP & Health,” which I highly recommend. See, Part I, Part II, and Part III.
Returning to the rare disease topic, as Thomas wrote in his post titled “Rare Diseases and Innovation,” rare diseases aren’t actually rare when you consider the number of patients collectively affected. (Of course, what qualifies as “rare” qualitatively depends on various factors, especially who defines the rarity.) Interestingly, India, a developing country, has a higher number of rare disease patients compared to the USA or Europe. This might explain the lack of incentive to develop treatment (?). My gut, grounded in neo-liberal thinking, says “Yes” but my inner self hopes for “No.” Currently, as the website of the Indian Organization for Rare Diseases shows there are around 100 million.
Since Thomas’s 2014 post, there have been positive developments. Swaraj’s 2021 post discussed these against the backdrop of the Delhi High Court’s Master Arnesh Shaw vs UOI. Varsha Jhavar and Surbhi Nautiyal’s two-part post further presented a nuanced discussion offering a comprehensive understanding of the policy changes, their implementation, and the remaining challenges. See their ideas, in Part I and Part II.
Anyway, rare diseases and IP law are a dramatic interplay of legal rights, human suffering, and systemic challenges. The struggle continues, but each step forward brings a glimmer of hope for millions affected by these so-called ‘rare’ diseases. We hope.
Life of Intermediary Liability: I read Amlan Mohanty’s 2012 post claiming that Indian Intermediary Liability Law Requires a Thorough Makeover. Reading the post, I thought of doing a sift-ish check on the topic. But what is an intermediary liability in the first place? So … intermediaries like Facebook and YouTube enjoy a certain level of immunity from liability for the content hosted on their platforms. But … this immunity, popularly known as the safe harbor, is contingent on the degree of control they exercise over the content. Here, the knowledge about infringing content is crucial in determining liability. The upshot is that Holding intermediaries accountable for everything they host would stifle free expression, as they would be dissuaded from hosting content freely. Okay, that’s the context. Now let me share some key posts on this.
Some initial detailed posts on the issue are, here, here, and here, where the discussion mainly revolved around whether intermediaries would be exempted from any liability under the IT Act. In essence, these posts discussed whether liability under copyright and patent laws prevents intermediaries from claiming safe harbor. To understand this, one needs to appreciate the interplay between Sections 79 and 81 of the IT Act, 2000. And a solid go-to post for this question is Amlan’s two-part post here, and here. For an overview, see this post called The Fault in our Intermediary Liability Laws and this 2018 one, comparatively (US vs India) discussing the Developments in ISP Liability on Copyright Infringement. Speaking of this topic, I cannot miss Shreya Singal v. Union of India, which was discussed on the blog in two parts, here and here.
The question of knowledge—whether the intermediary is aware of the infringing content—poses a tricky challenge, see here, and the telegram controversy, here and here. Another pertinent post offers some recommendations. The definition of who qualifies as an intermediary is another contentious issue, as the posts by Prashant and Priyanka suggest. A particularly interesting question once arose: do TikTok’s claims of ownership or exclusivity over certain content affect its status as an intermediary eligible for exemptions under Section 79? The Delhi High Court’s examination of intermediary liability for trademark infringement, here, here, and here adds another layer to the discourse. One may wonder why not filter content. Well, that’s not as simple, for more, see Simrat Kaur’s discussion on the consequences of requiring internet intermediaries to automatically filter out copyright-infringing content. Another key point on this topic is the notice and takedown system, whose, perils and pitfalls were handled nicely by Divij.
That wraps up my coverage. Did I forget anything? Very likely, yes. Please let me know through comments. Stay tuned for the next and final sift: SpicyIP’s Mays’ pages. Until then, see you!
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