SpicyIP Announcements: NLSIR Public Law Symposium on "Adjudication of Socio-Economic Rights by the Indian Supreme Court"

SpicyIP is pleased to announce that the National Law School of India Review, the flagship journal of National Law School of India University, Bangalore will be organising the first NLSIR Public Law Symposium to be held on 10 December, 2011 at the National Law School campus. The theme of the symposium is "Adjudication of Socio-Economic Rights by the Indian Supreme Court", an issue which has seen significant legal developments in the recent past. The symposium will be attended by renowned legal luminaries including Justice Muralidhar, Mr. T. R. Andhyarujina, Mr. Shyam Diwan, Mr. Arun Kumar Thiruvengadam, Prof. U R Rai and Prof. B B Pandey amongst others.

The discussion will be divided into two sessions. In the first session (scheduled between 10.30 A.M.-12.30 P.M.) the panel will discuss the substantive adjudication of socio-economic rights undertaken by the Supreme Court concerning questions of the ever-widening ambit of Article 21 and the content of the new rights so evolved. The changing nature of the relationship between Part III and Part IV of the Constitution due to such expansion will form an important part of the session. The second session (scheduled between 1.30 P.M.-3.30 P.M.) will focus on the manner in which the Supreme Court has enforced these rights and consider the variety of procedural innovations employed for the same, including PILs and continuing mandamus.

The registration fee for the symposium is Rs. 500 for professionals. There is no registration fee for students. All those interested are requested to register their attendance at the following link: https://docs.google.com/spreadsheet/viewform?formkey=dEdkRTJua21BY2R5Snh1UWl1QXRCREE6MQ

For any further details regarding the symposium, please contact Krishnaprasad K.V. (Chief Editor, NLSIR) at            +91-9916589670       or Ashwita Ambast (Deputy Chief Editor, NLSIR) at             +91-9986478265       or email us at mail.nlsir@gmail.com.

Copyright Board crippled due to lack of quorum – APAA moves Delhi High Court

The Central Government has created yet another head-banging situation for lawyers appearing before the Copyright Board. The latest cause for this being the adjournment of the Copyright Board due to lack of quorum!  

Image from here.

The Copyright Board which was scheduled to hear matters on the 15th of November, 2011 was unable to do so because of the lack of quorum. As per the law, the Copyright Board requires three members to be sitting on the bench in order to conduct proceedings. However on the day of the hearing only the Chairperson Justice R.C. Chopra (Retd.) and Prof. Shiv Kumar (Acting Director of the ILI) had arrived for the hearing. The third member, Joint Secretary of the Law Ministry did not turn up at the scheduled time after which the Chairman ordered the Registrar to call him and find out whether he was coming or not. When the Registrar called up the Joint Secretary, he was informed that the Joint Secretary would not be able to make it for that particular hearing. This happened despite the fact that the dates of the hearing were fixed in consultation with the Joint Secretary. Apparently this has happened on three occasions before where the Joint Secretary and another member cancelled the hearings a day before they were scheduled to happen. All the above facts can be confirmed from this Order passed by Justice Chopra (retd.) on the 15th of November, 2011. 

We’ve also received information that the Asian Patent Attorneys Association (APAA), through its Indian representative Ms. Prathiba Singh, has filed a petition before the Delhi High Court against this appalling state of affairs. A Bench consisting of Justice Sikri and Justice Endlaw have taken cognizance of this matter and have asked the Additional Solicitor General (ASG) to give a reply by the 1st of December, 2011. That order is also available over here.  

This is not the first time that the functioning of the Copyright Board has been questioned before the Delhi High Court. Last year in W.P. No. 2516 of 2010 the Delhi High Court was so shocked with the state of affairs at the Copyright Board, it suo-moto issued notice to the Central Govt. It had appointed Ms. Prathiba Singh as amicus curia and literally forced the Central Government to give the Copyright Board some basic facilities. 

Then in January, 2011 the very constitutionality of the Copyright Board was challenged by SIMCA before the Madras High Court. A critical point raised in the petition was the fact that full time members of the Executive (i.e. Secretaries of the Central Government) were being appointed to a judicial body. The petition before the Madras High Court is literally crawling. 

When the term of the Copyright Board expired in April this year, the Ministry of HRD was required to appoint a whole new board and despite SIMCA’s petition before the Madras High Court it appointed the very same ex-officio members to the Copyright Board, the only welcome addition being Justice Chopra as the Chairperson. 

This happened despite the following recommendations of the Parliamentary Standing Committee examining Copyright Bill, 2010: “The Committee observes that the responsibilities of the Copyright Board, a very important statutory body assigned very crucial powers and functions, have increased manifold over the years. Not only this, in the light of changing global scenario with emerging areas coming under the Copyright Law, the need for strengthening the Copyright Board is being increasingly felt. It has to be a full time Board with inclusion of experts in specified areas related to Copyright law.” 

Why then does the Government continue to appoint Central Government bureaucrats and directors of national law schools as ex-officio members of the Copyright Board? Secretaries in Central Government Ministries have a full time job as is also the case with the Directors of the national law schools. How are they going to find time to sit on the Copyright Board? How difficult is it for the Central Government to appoint full-time members? The central government’s approach towards the Copyright Board is simply shocking and it does not appear that anything constructive is going to happen until the judiciary initiates contempt proceedings against the Central Government.

"Concept level rethinking" helps Virgin survive pre-grant from Jet

In a matter closely tracked by patent attorneys and the aviation sector for some years now, the Chennai Patent Office last week finally issued its decision on the opposition filed by Jet Airways and the UK-based Contour Airspace Ltd in favour of the patent applicant, i.e., Virgin Atlantic Airways.

You can download and read the 128-page decision here. This case, as you will gather, involves a complex series of events, including the filing of two oppositions, and a parallel re-examination proceeding. The patent application itself related to passenger seats for use in aircraft, among other things.

The patent office eventually decided in favour of Virgin, with a catchphrase of an observation that the invention involved "concept level rethinking". (I have never encountered this phrase in patent parlance before, but I am confident it will be enthusiastically taken up by patent attorneys across the country in future defences of patentability.)

While we have not as yet had an opportunity to study the decision in detail, by way of a quick snapshot of the timeline and issues involved:

• Application: Virgin filed a patent application in India via the National Phase in 2004 for a passenger seat and related claims.
• Opposition: In July 2007, by when the application came up for examination, Jet filed a pre-grant opposition (under section 25(1) of the Patents Act) on grounds that Virgin's application was anticipated and obvious.
• Amendment: Virgin also amended its application in the interim, in response to the First Examination Report issued by the Patent Office. This came up as an issue, in context of the closing phrase of section 25(1), i.e., "...but on no other ground and the Controller shall, if requested by such person for being heard, hear him and dispose of such representation..."
• The semantics of claim construction are tested here, pivoting around equivalence (or difference) between the terms “characterized by (in that)” and “wherein”. This debate (in the decision) also tests the quality of the manual of patent and procedure.
• A new citation was also introduced mid-way in the course of the hearings, requiring the IPO to adjudicate upon whether this was introduced in good faith or otherwise.
• The first pre-grant opposition (filed by Jet) was rejected, and the patent application was sent for re-examination under section 59(1), dealing with the amendment of application or specification.
• Meanwhile, the manual of patent office practice and procedure was finalised, and thereafter, in October 2010, a second pre-grant opposition was filed by Contour Airspace on grounds of anticipation and obviousness.
• A postal delay in the receipt of an "expert report" submitted by the second opponent invited a debate and an adjournment.
• The final of six hearings from March 2010 onwards was held on 12 October 2011, and the decision was signed dated 24 November 2011. Procedurally, it took 4 years and 4 months to come to this decision.
• Added subsequently: Over at IPKAT, corresponding UK decisions relating to the same family of patents were covered some months ago, which post you can read here. The decision itself, i.e., the Virgin Airlines' seat litigation ([2011] EWCA Civ 163 covering EP (UK) 1,495,908) can be read here. As Frequently Anon in the comments section points out, the UK decision has likely also played some part in the Indian decision (since both seem to reach the same conclusion). (Thanks FA for your pointer - I acknowledge I should have linked to this in my original posting).
  

More on the decision soon.

The bruising battle over the 'Orchid' trademark: From Bombay to Chennai

The hospitality services sector in India has always had its fair share of IP litigation. One of the more recent and most interesting cases revolves around the ‘Orchid’ trademark which is being litigated before no less than 3 forums – the Bombay High Court, the Intellectual Property Appellate Board (IPAB) and the Registrar of Trademarks at Chennai. (Image from here)

The litigation before all three forums were initiated by the Mumbai based, Kamat Hotels (India) Ltd. (KHI) against the Bangalore based Royal Orchid Hotels Ltd. (ROH) and is as set our below:

Sr. No.	Forum	Proceedings	Trademark involved	Outcome
1.	Bombay High Court (Justice Chandradchud) Order available over here.	Infringement and Passing-Off.	‘Orchid’ which was registered in Class 42 (service mark – hospitality etc.)	Interim order restraining ROH from starting any new hotel with the ‘Orchid’ name. Existing hotels continue to function.
2.	IPAB (Justice Sridevan & S. Usha) Order available over here.	Rectification petition on grounds of non-use.	‘Royal Orchid’ and ‘Royal Orchid Hotel’, registered in Class 16 (stationery used by ROH in its hotels.	Petition dismissed as pre-mature. Also ROH found to be prior-user of the ‘Orchid’ mark.
3.	Trade Marks Registry (Mrs. Kasturi – later arrested on corruption charges) Order available over here.	Opposition petition against pending trademark registration.	‘Royal Orchid’ and ‘Royal Orchid Hotel’ in Class 42.	Opposition petitions are allowed and ROH’s trademark applications are dismissed.

It’s impossible to get into the details of all the above litigation, so I’ll just focus on one aspect and that is the manner in which the same evidence was considered by three of the above judicial forums to arrive at completely different judgments. Before proceeding to this analysis let me first outline the basic factual dispute in all of these three cases:

(i)       The KHI group had started a hotel by the name ‘Orchid’ in 1997 and had applied for TMs in various classes for the ‘Orchid’ mark. The Class 42 application for the word ‘Orchid’ was made in 2004 when service marks were allowed for the first time and this registration was granted in the year 2007.

(ii)     The ROH group has claimed to be using the word ‘Orchid’ since 1990 for one of its banquet halls and the same has been advertised in 1990. As evidence of this fact the group filed several newsletters, correspondence from 1990 which referred to the ‘Orchid Banquet Halls’ at one of ROH’s hotel. In April 1996, the corporate predecessor of the ROH group obtained a confirmation, from the Registrar of Companies (ROC), on the availability of the term Royal Orchid Hotel Ltd. and the Board passed a resolution for change of name. This change of name was effected by the ROC in April 1997.

(iii)   The basic factual dispute in this case revolved around which of these parties was the prior use of the trademark because this factor was going to decide all of the above cases. A prior user of a trademark has very strong rights regardless of whether he has secured registration under the law. In this particular case ROH had alleged that the KHI group had started functioning only in September, 1997 as was evidenced by a print-out from KHI’s own website. KHI disputes this by saying that pre-launch marketing had started in January, 1997 itself and filed an affidavit of its accountant to this effect. In its defense ROH argued that it was prior user not only because of the newsletters, correspondence predating 1997 but also the fact that the company had renamed itself as Royal Orchid Hotel in April, 1997 i.e. 5 months before KHI started its first hotel named ‘Orchid’.

Interpretation of the above evidence by the three forums:

In its judgment the IPAB was of the opinion that the evidence filed by ROH did indeed prove that it was the prior user from the nineties. Kasturi on the other hand went on the exactly opposite tangent. I’ve extracted, below, portions of the orders passed by Justice Sridevan at the IPAB and Ms. Kasturi. Just see the shocking contrast in both orders after consideration of the same evidence:

(i) Justice Sridevan: “Unless, it is proved that these documents are got up for the purpose of this case, we cannot reject them.  We will see whether they are relevant.”

Mrs. Kasturi: “I have reason to doubt the authenticity and genuineness of the alleged documents of prior use furnished by the applicants which do not repose any confidence in me.” …… “It appears that the applicants have not come to this Tribunal with clean hands and do not deserve exercise of any discretion in their favour”. ….. “Thus on a thorough appreciation of the evidence adduced by the applicants in support of their claim there is no reliable and trustworthy document which could show use of the impugned mark prior to the opponent’s use of the trademark ORCHID.”

It boggles the mind as to how Kasturi comes to the conclusion that ROH’s documents are fake because as Justice Sridevan points out, it is necessary to prove that the document is not genuine and Kasturi’s order is completely silent on any such proof.

(ii) Justice Sridevan: “These documents prove that the respondent or their predecessors in interest or sister concerns used the word Orchid although only in connection with their Banquet Hall or services in 1992 long before the applicant established The Orchid Hotel, which is in 1997.  We are not examining whether the applicant’s user dates from January 1997 or September 1997.”

 “These documents cannot be disputed and therefore the resolution to change the name Royal Hotel Orchids Hotel Ltd is in 1996, before the alleged date of commencement of applicant’s business in January 1997.”

Mrs. Kasturi:”The applicants have not justified as to how and from where and why they adopted the impugned mark being similar to the opponent’s prior used trade mark.” “From the nature of the documents adduced by the opponents, it is evidentiary clear that the opponents are the first to adopt use the trade mark ORCHID.”  

Since Justice Sridevan accepted that the ROH’s documents were genuine it was only logical to infer from the documents that ROH was the prior use. Kasturi however refused to accept that ROH was the prior user because she refused to even accept as proof the documents filed by ROH.

The above comparison just shows how absolutely important it is to properly appreciate documentary evidence in order to resolve factual disputes. While Justice Sridevan does a decent job, Mrs. Kasturi does an absolutely ridiculous job in appreciating any of the above evidence.

Apart from the two orders it may also be interesting to examine the order of Justice Chandrachud of the Bombay High Court. Unlike the other two proceedings the proceedings before the Bombay High Court were for interim orders (i.e. an interim injunction) and not final orders. The three requirements to secure an ‘interim injunction’ are (i) a prima facie case (ii) balance of convenience and (iii) irreparable injury. Establishing a prima facie case requires a judge to ascertain, on the basis of documentary evidence, which party stands a better chance of winning at trial. In this particular case Justice Chandrachud concluded that there was a prima facie case of trademark infringement and also that the KMI group was the ‘prior user’. Surprisingly he conducts absolutely no analysis on how the conflicting marks would confuse the consumers.

Irrespective of 'confusion', this case is eventually going to be decided on the narrow point of ‘prior use’ and the facts and evidence on this evidence were keenly contested by both parties. In such cases where evidence is keenly contested the matter should be sent to trial. Justice Chandrachud however attempts to ascertain the basis of a prima facie case on the basis of keenly contested evidence. In the end the Royal Orchid group which was already running 11 hotels for over a decade has been ordered to stop using the name for its future hotels. What’s the hurry? Why not let the matter go to trial where both parties can cross-examine each other and settle the factual disputes?

In any case, Justice Chandrachud’s order has been appealed to a Division Bench. Similarly Kasturi’s order has also been appealed to the IPAB. And Justice Sridevan's order has been appealed to the Madras High Court. We’ll keep you posted on any future updates in this matter.    

Patent strategy: Filing a provisional patent application (specification)

Inventors often have many questions related to patent filing and some general ideas about patenting.  But the question that I am asked many times is about the procedure, costs and how/where to start.  I usually advise inventors to go for  provisional patent application (called as a provisional specification in India) first.  This post provides a basic overview of provisional applications, and lists out the pros and the cons.  It would be beneficial to inventors who are looking forward to take their first step in patents; and it would be beneficial to prospective patent agent exam takers at our patent office.

A provisional application is named as provisional because it is not complete and acts as a placeholder for a later complete specification.  Therefore, it is the first document that is filed at a patent office in relation to a prospective patent.  

It provides excellent benefits when compared to the costs.  An inventor gets some time (one year) from the date of filing the provisional specification to file a complete specification. The first benefit is the filing date of the provisional is accorded to the complete specification at the time of examination with respect to what was disclosed in the provisional.  The second benefit is in terms of costs.  Costs for a provisional are extremely low as compared to a non-provisional/complete specification.  The benefit is in terms of simplicity-an inventor can herself file the provisional application because it needs no claims.  A provisional application is proof that the inventor had the concept and idea at the time of filing of the provisional.  Inventors get an additional time (1 year) to work on the provisional application.  However, care should taken to ensure that the material is disclosed properly in the provisional application.  Inventors working alone, should ensure that they disclose their invention adequately in the provisional.  In case, relevant material is left out and the inventor later wants to include it in the complete specification, then she may not get the benefit of early filing with respect to the material left out.  

The first benefit is the most important: Because the provisional specification entitles an inventor to a filing date, the early filing by the inventor prevents any other related inventions from becoming prior art to the inventor's application. Simply put, this means that any application whether provisional or not, filed after the filing date of the provisional cannot be used as prior art against the invention disclosed in the provisional application.        

The second major benefit is in terms of costs.  The inventor has the option of filing a complete specification at a later date and can therefore defer costs.  A provisional application does not require any claims; there is generally no requirement of a prior art search or exhaustive and detailed drawings-hence the inventor can file the provisional application herself.  The time period of 12 months made available to inventor after filing the provisional may be used for  researching on the value of the application/patent, the market, discussion with investors and the like.  

Because there is almost no downside of filing a provisional application, it is strongly recommended.  In addition, the most recent amendments to the US patent laws, discussed here, actually encourage provisional application filing. 

"Creation of the WTO" videos

A very interesting set of video interviews with many of the people involved in and during the birth of the WTO have been compiled and put on a youtube channel available here. Prof Gabrielle Marceau initiated this project. As described on the channel,

"This project began as a tribute to Ambassador Paul Trân Van Thinh on the occasion of his 80th birthday. We set out to retrace, through interviews with friends and colleagues, Paul Trân's exceptional journey. Paul Trân, who served as Ambassador of Europe to the GATT, not only impacted those who worked alongside him, but played an instrumental role in the crucial GATT years that eventually gave birth to the World Trade Organization (WTO). While the individuals interviewed offer rich accounts of Paul Trân's work and the mark he left on Europe, they also share their thoughts and insights on the global vision that paved the way for today's WTO."

I've been skimming through several of them and found it very interesting to hear straight from the people involved in negotiations and deals around that time. Due to the large number of them, I haven't been able to go through all of them, but I did come across some interesting statements. It might not necessarily be new information, but hearing it straight from source does seem to remove any doubts. 

Michael Samuels served as Deputy United States Trade Representative and U.S. Ambassador to the GATT in Geneva (1985-89) talks about how the EC were not quite as supportive of the US's TRIPs views. Interestingly, he mentions that the EC ambassador probably built good relations with "US's obstacles India and Brazil" during this time. (minutes 8:45 - 12:17)

B.K Zutshi, Indian Ambassador, Permanent Representative to GATT and Uruguay Round Chief negotiator from 1989 to 1994 mentions TRIPS being the main cause of conflict between the north and south countries. I found minutes 6:00 - 13:44 to be the more interesting parts here.

There are several more videos there, many describing how the negotiations took place back then. If any of our readers come across more 'choice' pieces, please do share them in the comments section. 

Hat tip to the IELP blog. 

Our Hunt for New Talent

As mentioned in an earlier post, we're hunting for new talent at SpicyIP.

"Our lights have been dimming of late, and we need some bright sparks to join the SpicyIP team. Therefore, if you think you have what it takes to be a consistent blogger with a keen eye for IP issues and new/creative ways for thinking about them, please send us an email on ipchairnujs [at] gmail.com.

Please mention why you think you might be a good fit for the team, and attach some of your sample writings. And of course, do not forget to send us your resume. We prefer those with excellent writing skills, since none of us work on the blog full time and we just don't have the time to edit out bad English.

More importantly however, we prefer lasting lights to momentary meteors that blaze away for a short while and then fade---in short, consistency and regularity in posting high quality stuff is what we're looking for."

Unfortunately, we lost access to the email account mentioned above, owing to Google's two step verification process. Our sincere apologies to all those who sent in expressions of interest and never heard back from us.

Could you please forward your earlier email to this new account: spicyipjob [at] gmail.com? Also for those of you who are interested in joining our team, but have not yet written to us, please do so now. Thank you.

The Dewarists Television Show in Copyright Trouble?

The Dewarists, a television program produced by Star India, which follows musicians from different parts of the world, collaborating to produce original compositions, while travelling across India. has received critical acclaim from viewers since it was first broadcast a month or so ago. But like many television shows that exceed expectations and have surging popularity, it too has become immersed in a copyright dispute.

It is reported that the Delhi High Court has issued a notice to the producers of the show, Babble Fish as well as its chief sponsor, Bacardi for an alleged copyright violation.

It appears that the petitioner, Manish Kumar, a writer and musician, is alleging that he had conceptualised a television program with the same elements - national and international musicians, country-wide travel, original compositions, a recorded music video - incorporated into a single show in a format similar to 'The Dewarists'. His claim appears strong since he had posted his idea for the program on www.spiritofmusic.com with a time stamp of November 2009, a fairly long period before the actual broadcast of the show. Moreover, he claims to have registered the concept for the show with the Association of Motion Picture and TV Producers ("AMTPP") under the name 'Music Virasat', which roughly translates to 'Music Heritage', a possible indication that the show, as conceptualised by him, was created to demonstrate the cultures and traditions of India, through a documentary/travelouge involving international musicians. 

However, as with all such disputes, one has to be careful to consider the contracts entered into the parties, prior to the television show being broadcast, since they could very often determine the rights of parties in the case of a dispute and more fundementally, authorship and ownership questions. It is seen that the petitioner entered into an agreement with ETV for the production of the show but  had to abandon the programme due to the Telangana agitation. It was also submitted to Doordarshan and Channel V for consideration. Channel V, owned by Star India, had a meeting with the petitioner in June 2011, but nothing fruitul came out of the meeting and the discussions ended inconclusive. However, the program aired on October, 2011, without the knowledge of the petitioner. 

Th petitioner and the company he is represented by, Open Mind, have demanded that the telecast of the program be stayed. However, Justice Manmohan Singh refused to grant a stay order, stating that all damages and remedies shall be made after the matter is finally decided. He ordered the issue of a notice to be sent to Star India and asked the defendants to reply within 10 days. The matter is posted for hearing on December 19, 2011.

Our readers will remember our post on the Ra.One dispute where a similar petition was filed by a television producer and writer, alleging that he had discussed the script and idea for a film along the lines of Ra.One with the director, but was not credited when the film was finally released. Here too, the petitioner had registered the idea with the Film Writer's Association and had documents to prove the same. In that case, the Hon'ble Judges had found a prima-facie case of copyright violation, while passing an order for conditional film release as an interim arrangement, asking the producers to deposit Rs. One crore in the registry.

The main issue that emerges from these cases according to me is simple - the distinction between idea and expression in copyright law and whether the television/movie producers are merely drawing from the idea conceptualised by the petitioners in both the cases and executing them through their own  unique and creative expressions, in which case there is no copyright violation to speak of, or are they simply free-riding on the discussions with the petitioners and infringing copyright.

Note: We would like to thank Mr. S.K. Mohanty for bringing this case to our notice.

Finally, an Indian music composer gets sued for allegedly copying a foreign melody!

In a decision that is bound to have an impact on the creative faculties of Indian music composers, Justice Manmohan Singh of the Delhi High Court on the 21st of September, 2011 acting on a copyright infringement claim, filed by Canadian singer Loreena McKennitt, has passed an ex-parte interim injunction against Deepak Dev, an awarding-winning music composer from Kerala; and the producers & distributors of the Malyalam movie ‘Urmi’. The order however is restricted to the proposed release of the movie and the impugned song in the Tamil, Telugu, Hindi and English languages. The Court has not included in the terms of the injunction, the music which has already been released in the Malyalam version i.e. ‘Urmi’. 

Loreena McKennitt, (pictured on left, image from here) a Canadian singer, famous for her Celtic music has claimed that Dev’s composition – ‘Aaro Nee Aaro’ – in the hit Malyalam movie ‘Urumi’, has been directly lifted from two of her own compositions by the name ‘Caravanserai’ and ‘The Mummers’ Dance’. McKennitt appears to have an extremely strong prima facie case in her favour. All three songs are available on Youtube, over here, here and here. In fact if you have a look at the comments on this video and this video you can see some pretty scathing remarks against Deepak Dev by some of his fans who appear to be terribly disappointed with this promising young music composer. Sample some of these comments: 

(i) @piper42 thanks bro for pointing this out.i was turning to be a fan of deepak dev...not any more and; 

(ii) @manimanijacobjacob: I used to think of Deepak Dev in a respectable manner. But NOT ANY MORE. Do you think we malayalees are fools ? Do you think by advertising statements like "already been stated in various interviews", you can get away with it ? Sorry. I have NEVER ever seen nor heard a mention of Loreena McKennitt anywhere during the promotions, nor interviews, not just by Dev, but also it has never been mentioned by the producer of the movie, Prithviraj. Its straight STEALING, admit it. 

Apart from suing Dev (pictured right, image from here) for copyright infringement of her melodies, McKennitt is also suing for violation of her ‘moral rights’ or ‘special rights’ under Section 57 of the Copyright Act, 1957 which not only give her a right to attribution but also a right to protect her work against mutilation or distortion or synchronisation with particular visual images. If you see the picturization of the impugned song ‘Aaro Nee Aaro’, you’ll notice that it is slightly on the sensual side (depending on your idea of sensuality), while McKennitt’s original numbers are set to more sobering lyrics. 

On the lighter side, just to give you a simple analogy of the importance of moral rights and visual synchronisation: imagine somebody taking Kolaveri Di and syncing it with visuals of Mallika Sherawat gyrating to the original tune of Jalebi Bhai and just imagine how offended the composers of Kolaveri D would feel! Seriously though, music can be intensely personal to every composer and to take a melody out of context can and should attract the force of the law. 

This particular decision of the Delhi High Court is particularly welcome because for much too long Indian composers, especially the biggies, have been blatantly ripping off foreign melodies, without paying a dime or even attributing the same to the original composers. Save for a few exceptions, like when Karan Johar bought the rights to the ‘Pretty Woman’ song, for his movie ‘Kal Ho Na Ho’ the rest of the flock have rarely ever drawn the line between inspiration and plagiarism. In fact the situation is so bad in Bollywood that earlier this year Anu Malik had claimed that Pritam’s super-hit number ‘Character Dheela’ had been ripped off from his composition in ‘Mohabbat naam hai kiska’; when in fact Anu Malik’s number itself was ripped off from Bappi Lahiri’s hit number ‘Disco Dancer’, which in itself is ripped off from Modern Talking’s ‘Brother Louie’! We had blogged about that controversy over here. 

This decision of the Delhi High Court should hopefully shakeup the Bollywood music industry. Apart from music composers, entertainment lawyers should take adequate care while conducting a ‘due diligence’ on any music because the injunction in this present case is not only against Dev but also the producer of the movie, August Cinema (India) Pvt. Ltd and also the distributors Manorama Music and Moser Baer Entertainment Ltd. One man’s mistake can have a rippling effect through the entire industry especially since these days film music is exploited through multiple avenues. 

McKennitt and her co-plaintiffs were represented by Advocates Nikhil Krishnamurthy and Sai Krishna Rajagopal. The order is available over here on the website of the Delhi High Court.

Delhi HC dismisses Bayer's plea against Natco's CL

In a short order, the Delhi High Court dismissed, as withdrawn, a writ petition filed by Bayer against the publication of Natco's CL application by the Controller General of Patents. The same petition had been filed by Bayer before the Bombay High Court earlier this month. We blogged about it over here. The order of the Delhi High Court has been pasted before:

O R D E R

 16.11.2011

The petitioner impugns the order dated 11.08.2011 passed by the Controller of Patents, Patent Office, Mumbai in C.L.A. No.1 of 2011. It has been pointed out to learned senior counsel for the petitioner that  the impugned order merely records a prima facie view that a case under Section 84(1) of the Patents Act has been established. The petitioner is  still entitled to contest the said proceedings before the Controller of  Patents.

Learned senior counsel for the petitioner submits that before  arriving at the said prima facie view, the Controller of Customs has not  conducted any enquiry and not recorded ay evidence. It shall be open to  the petitioner to raise all such pleas before the Controller of Patents in answer to the notice. In view of the aforesaid, the petitioner wishes  to withdraw this petition. The petition is accordingly dismissed as  withdrawn.

 VIPIN SANGHI, J

Should T-Series challenge the constitutionality of the CCI?

A few weeks ago Shan had carried this interesting post on a complaint made by HT Media to the Competition Commission of India (CCI) against the Super Cassettes Industries Ltd (SCIL) a.k.a. T-Series. HT Media owns several radio stations, which want to play the music owned by SCIL and both parties are unable to agree on the rate of a reasonable royalty. 

The essence of the complaint, as reported by Mint (which is owned by HT Media), is that T-Series, which allegedly secures the rights to about 80%-90% of all new film music, is not following the 2% royalty ruling of the Copyright Board and is instead charging the same old rates of Rs. 660 per needle hour, which is 4 times higher than the 2% royalty rate. Usually in cases of ‘abuse of dominant position’, involving the withholding of an ‘essential facility’ such as intellectual property, the only remedy provided by a competition watchdog is a compulsory licence. Examples of this can be found in the E.U. cases of McGill or even the IMS case. In India the power to grant CLs very clearly vests in the Copyright Board because as explained in Shan’s earlier post, the Supreme Court has already held that demanding an abnormally high royalty rate is the equivalent of denial of licence and that the same could be grounds for requesting the Copyright Board to grant a licence. Moreover the issue of the Copyright Board is already sub-judice before the Delhi High Court. What exactly then is HT Media trying to achieve through this complaint to the CCI? 

I’m guessing that the only remedy thus available to HT Media, is the possibility of the CCI penalizing T-Series for the alleged abuse of its dominant position. In a trigger happy decision a few months ago, the CCI fined DLF Ltd. a sum of Rs. 600 crores for abuse of its dominant position It’s my guess that HT Media is hoping to use the threat of a similar penalty against T-Series to force it into a quick and easy settlement on a reasonable royalty rate. 

The Constitutionality of the CCI: Regardless of the end-result of this dispute, I would briefly like to discuss whether T-Series could and should challenge the constitutionality of the CCI in light of the NCLT judgment of the Supreme Court. 

Those of you familiar with the CCI’s history must already know that it has faced one constitutional challenge before the Supreme Court in the case of Brahm Dutt v. Union of India (2005). The petitioner, in that case, had challenged the appointment process for the CCI on the ground that it was a judicial body and that there had to be some form of judicial consultation during the appointment process. Although the Central Government opposed the petition, it eventually proposed an amendment to ensure judicial consultation during the appointment process. The Supreme Court eventually disposed the petition, keeping open all questions on constitutionality. 

Now although the CCI is not in blatant violation of the ‘Separation of Powers’ doctrine I do think there is a fit case to challenge the constitutionality of the minimum qualifications required to be appointed as a member of the CCI. 

As of now S. 8(2) of the Competition Act allows for persons with the following qualifications to be appointed to the CCI: “who has special knowledge of, and such professional experience of not less than fifteen years in, international trade, economics, business, commerce, law, finance, accountancy, management, industry, public affairs or competition matters, including competition law and policy, which in the opinion of the Central Government, may be useful to the Commission.” What does that mean in reality? In reality it means that the CCI is packed with ex-bureaucrats. Here’s a list of the CCI members and their experience in the Government: 

(i) Ashok Chawla, Chairperson of CCI: Former Finance Secretary, Government of India (IAS); 

(ii) H.C. Gupta, Member CCI: Former Coal Secretary, Government of India (IAS); 

(iii) R. Prasad, Member CCI: Former Chairperson of the Central Board of Direct Taxes, Government of India (IRS); 

(iv) S.N. Dhingra, Member CCI: Former Judge of the Delhi High Court; 

(v) Dr. Geeta Gouri, Member CCI: An economist (To be confirmed); 

(vi) Anurag Goel, Member CCI: Former Secretary, Ministry of Corporate Affairs, Government of India (IAS); 

(vii) M.L.Tayal, Member CCI: Principal Secretary to the Chief Minister of Haryana (IAS); 

As is obvious from above, at least 5 of the 7 members appointed to the CCI are ex-bureaucrats belonging to either the IAS or the IRS cadre. 

In its NCLT judgment, a Constitution Bench of the Supreme Court, apart from discussing the separation of power issues, also discussed the minimum qualifications to hold a judicial office. In pertinent part the Supreme Court held that judicial offices could be held only by advocates or judges who have the relevant experience in the practice of law. After all, the Constitution requires even District Judges to have at least 7 years of experience as an advocate. In pertinent part he Supreme Court stated the following: 

As far as the Technical Members are concerned, the officer should be of at least Secretary Level officer with known competence and integrity. Reducing the standards, or qualifications for appointment will result in loss of confidence in the Tribunals. We hasten to add that our intention is not to say that the persons of Joint Secretary level are not competent. Even persons of Under Secretary level may be competent to discharge the functions. There may be brilliant and competent people even working as Section Officers or Upper Division Clerks but that does not mean that they can be appointed as Members. Competence is different from experience, maturity and status required for the post. As, for example, for the post of a Judge of the High Court, 10 years' practice as an Advocate is prescribed. There may be Advocates who even with 4 or 5 years' experience, may be more brilliant than Advocates with 10 years' standing. Still, it is not competence alone but various other factors which make a person suitable. Therefore, when the legislature substitutes the Judges of the High Court with Members of the Tribunal, the standards applicable should be as nearly as equal in the case of High Court Judges. That means only Secretary Level officers (that is those who were Secretaries or Additional Secretaries) with specialized knowledge and skills can be appointed as Technical Members of the Tribunal. 

The Court then went on to say: 

There is an erroneous assumption that company law matters require certain specialized skills which are lacking in Judges. There is also an equally erroneous assumption that members of the civil services, (either a Group-A officer or Joint Secretary level civil servant who had never handled any company disputes) will have the judicial experience or expertise in company law to be appointed either as Judicial Member or Technical Member. 

And…… 

(i) Only Judges and Advocates can be considered for appointment as Judicial Members of the Tribunal. Only the High Court Judges, or Judges who have served in the rank of a District Judge for at least five years or a person who has practiced as a Lawyer for ten years can be considered for appointment as a Judicial Member. Persons who have held a Group A or equivalent post under the Central or State Government with experience in the Indian Company Law Service (Legal Branch) and Indian Legal Service (Grade-1) cannot be considered for appointment as judicial members as provided in sub-section 2(c) and (d) of Section 10FD. The expertise in Company Law service or Indian Legal service will at best enable them to be considered for appointment as technical members. 

And.....

The practice of having experts as Technical Members is suited to areas which require the assistance of professional experts, qualified in medicine, engineering, and architecture etc. 

The fact that the Competition Commission is a judicial body has already been conceded by the Central Government when it proposed before the Supreme Court an amendment to the appointment process for members of the CCI to ensure that there was judicial consultation. Now if the Government has conceded that the CCI is a judicial forum it should ensure that the forum is staffed with either lawyers or judges who have studied and practiced law or at the very least qualified with a LLB degree. How is an IAS officer qualified to decide a complex competition law issue? 

I don’t think competition law is an area which requires technical members, it requires judicial members. After all it’s all question of law. Any technical input that is required can be given by either through the Director General or through an expert witness. What’s the need for having technical people sitting on the bench? The legal definition of ‘anti-competitive’ and the economics definition of ‘anti- competitive’ need not be the same and thus the need for lawyers not accountants and economists as members of the CCI. 

If T-Series is looking at stalling proceedings before the CCI and also dragging HT Media through some expensive litigation before the Supreme Court it should file a writ petition challenging the constitutionality of the present qualification criteria for members of the CCI.