Category Archives: Uncategorized

Websites Blocking Laws And Practices In India And Entertainment Industry Of India

Websites Blocking Laws And Practices In India And Entertainment Industry Of IndiaIndian cyberspace is passing through a revolutionary phase. On the one hand we are witnessing an increase in entrepreneurship activities in technology fields whereas on the other hand we are facing problems that India never visualised in the past. The biggest challenge before India is to ensure a techno legal framework that can accommodate techno legal issues and challenges thrown by Indian cyberspace.  The Information Technology Act, 2000 (IT Act 2000) is clearly missing the fineness of a techno legal regime that has been avoided by Indian Parliament for so long due to lack of techno legal expertise. Even Indian courts like High Courts and Supreme Court is not capable of managing techno legal issues and wrong decisions can be found very frequently for technology related issues in India. These include decisions regarding cyber law due diligence (pdf) and Internet intermediary liability law in India. We at Perry4Law Organisation (P4LO) strongly recommend that the Internet intermediary liability law of India must be suitable amended and clarified by Indian government as soon as possible.

However, the worst decisions, especially from various High Courts in India, pertain to copyright violation in the cyberspace in India. Although the IT Act 2000 and Indian Copyright Act, 1957 both confer a long arm jurisdiction (pdf) upon Indian courts yet Indian courts have wrongly applied this principle. The entertainment industry of India has waged a war against many foreign websites and High Courts of India have favoured them in an unreasonable manner.  This has happened because judges of these High Courts were not aware how technology and Internet operates. They simply granted a blanket blocking of the websites alleged to be blocked by the movie production houses and entertainment industry of India. The worst part is that the websites blocked by such judicial orders were neither represented nor there was a timeline specified by such blocking orders of High Courts. The net result was a life time blocking of such websites in India even if the film or movie in question has long become non profitable.

Indian government has to be blamed equally in this regard as it failed to take appropriate action in this regard. Everything has been left to the Judiciary to take care of.  As a result websites blocking in India has become a judicial act rather a quasi-judicial act that even Indian government was required to take care of.  Till now we do not have a techno legal IPR policy in India that can take care of these issues.

It is clear that both High Courts of India and Central Government were parties to and responsible the wrong decisions pronounced by these High Courts. However, the worst part is that both High Courts and Indian government have also ignored the cyber crimes committed while protecting the copyright and intellectual property rights (IPRs) of movie producers and entertainment industry of India. After movie producers failed to get the desirable results through technological means like DNS redirection, they started doing illegal acts in the form of using distributed denial of service attacks (DDoS) to take down copyright violating websites, using DNS cache poisoning attacks to manipulate DNS services, etc. Most of these activities are illegal to perform yet the entertainment and media industry is hiring professionals to do the same. This can make them liable for civil and criminal actions yet no action was taken by Indian government against those engaging in such illegal activities and also those who hired their services. Brand protection and copyright protection in India must be performed in a legal and authorised manner. Unfortunately, this is not happening in India as on date.

Even States in India are fighting among themselves regarding their copyright. As per media reports, Telangana today said it filed a case with Cyber Crime cell against Andhra Pradesh alleging it has indulged in “plagiarism” by copying their web designs and data formats that were submitted to the Ministry of Commerce.

Fortunately, we have at least One High Court Judge who has understood the implications of blanket John Doe orders. In Balaji Motion Pictures Ltd. & Anr v. Bharat Sanchar Nigam Ltd. & Ors., Suit (L) No. 694 Of 2016, Justice Gautam Patel of Bombay High Court has refused to grant a blanket injunction against the entire website as opposed to the infringing link carrying page alone. The learned Judge has also provided for a sunset clause so that the injunction does not operate indefinitely. This is a sensible and pro active approach and we at Perry4Law Organisation (P4LO) welcome this decision. We also strongly recommend that movie producers and entertainment industry of India must now stress upon genuine, law abiding and proper techno legal measures to safeguard their interests as days of blanket ban would be over very soon.

A continuous vigil in the cyberspace over a long period of time can bring better results than a knee jerk reaction and blanked John Doe order. But this requires patience, selection of proper techno legal partner and obviously expenses as well. But in the long run, every single rupee spent on brand management and online copyright protection is worth spending.

Analysis Of Proposed Trade Marks Rules 2015 Of India By Perry4Law

Analysis Of Proposed Trade Marks Rules 2015 Of India By Perry4LawTrademark is an integral part of brand management policy of any organisation. Most of the startups and entrepreneurs are not aware about the importance of a brand name and trademark. They seldom apply for trademark registration though it is one of the most significant requirement in the long term. Trademark registration in India is governed by the Trade Marks Act, 1999 of India.

Trade mark law of India has been changed from time to time. New rules have also been introduced from time to time. In one such move, the Ministry of Commerce and Industry, Department of Industrial Policy and Promotion, has issued the Draft Trade Marks Rules, 2015 (PDF) for public consultations on 17th November 2015. An analysis of the proposed Trade Marks Rules 2015 Of India (PDF) has been provided by Perry4Law Organisation (P4LO) and Perry4Law Law Firm.

Readers of our blogs can accessed this analysis from the above mentioned link. However, some of the significant proposed rules are as follows:

(1) The forms relating to trademarks have been significantly reduced. This would help in reducing the unnecessary documentation and their conversion into electronic format.

(2) The filing fees have been doubled with little correlation with the proposed trademark services. There seems to be no direct relationship between the increased fees and the nature and quality of services proposed to be offered by the trademark registry.

(3) Time bound performance on the part of trademark registry is missing from the proposed rules.

(4) The proposed rules have not given emphasis upon e-delivery of trademark services in India. This would be a serious jolt to the Digital India project of Indian government that is already suffering from many shortcomings and weaknesses.

(5) Fees concessions for e-filings have been suggested by the proposed rules. This is an indirect method to force the stakeholders to adopt e-filing instead of paper filing. However, Indian government needs to spread awareness about e-filing along with providing better e-filing facilities.

(6) Well known trademarks have again been recognised by the proposed rules. However, there is an urgent need to draft suitable guidelines to deal with well known trademarks in India.

(7) More stringent requirements have been prescribed for establishing prior use by the trademark applicants.

(8) Provisions for expeditious disposal of applications with additional fees has been retained. However, expeditious disposal of trademark applications must be the norm irrespective of the fact of additional payment of fees. The same is missing as on date.

We hope our readers would find this update useful.

IPR Helpdesk Of India

IPR Helpdesk Of IndiaThe IPR Helpdesk of India is a techno legal initiative of Perry4Law Organisation (P4LO) and Perry4Law’s Techno Legal Base (PTLB). IPR Helpdesk was launched in the year 2007 when it celebrated the renowned World IP Day of World Intellectual Property Organisation (WIPO).

Some of the public awareness initiatives of IPR Helpdesk of India include celebration of WIPO Week-2007(Please read here1 and here2 in this regard), providing of Intellectual Property Rights Trends in India-2007, celebration of World IP Day 2008 Of WIPO as WIPO Week- 2008, celebration of World IP Day 2009 Of WIPO, suggestions on proposed rulemaking by United State Copyright office for Section 1201 exemptions to prohibition against circumvention of technological measures protecting copyrighted works, etc.

Perry4Law Organisation has also provided its suggestions to both national and international governments on various IPR related fields. For instance, Perry4Law has provided its suggestions to U.S. Copyright Office on Small Claims (PDF) and Orphan Works (PDF). Similarly, the Discussion Paper on E-commerce in India (PDF) by Department of Industrial Policy and Promotion (DIPP) has also cited Perry4Law Organisation’s research works and articles while discussing the legal framework of e-commerce in India.

The IPR Helpdesk of India has been rejuvenated by Perry4Law Organisation and PTLB in the year 2014. It main objective is to spread public awareness about IPR issues in general and their techno legal aspects in particular. It is the exclusive techno legal IPR Helpdesk of India that has been operating for almost a decade.

Please see the IPR Helpdesk of India for the Twitter updates and other relevant IPR related information. We hope various stakeholders would find this initiative of P4LO and PTLB useful.

Proposed US Rulemaking For Section 1201 Exemptions To Prohibition Against Circumvention of Technological Measures Protecting Copyrighted Works

Proposed US Rulemaking For Section 1201 Exemptions To Prohibition Against Circumvention of Technological Measures Protecting Copyrighted WorksDigital rights management systems (DRMS) are widely used across the globe to protect copyrighted works from unauthorised access and copying. Anti piracy and copyright infringement has become a major challenge for copyright holders and the enforcement agencies. Digital rights management systems (DRMS) have been introduced as part of the solution to the problem of online copyright violations.

Intellectual property rights (IPRs) issues in digital era are very complicated and require a different set of legal and regulatory framework. Their effective protection requires both technological and legal measures. We at Perry4Law organisation, Perry4Law Law Firm and PTLB believe that India needs a techno legal framework to deal with online legal issues.

Indian government is in the process of formulating the national IPR Policy of India and the same maybe released very soon. In fact, the first draft (PDF) of the policy has already been issued by IPR think tank constituted in this regard. We believe that the IPR policy must keep in mind the technology issues as well that have not been properly addressed by Indian government so far.

IPR Helpdesk of Perry4Law and PTLB has been actively engaged in spreading IPR awareness at national and international level for many years. In this work we are discussing the United State’s proposed rulemaking for Section 1201 exemptions to prohibition against circumvention of technological measures protecting copyrighted works. Those who are interested in reading about US Copyright law can also read the Compendium of U.S. Copyright Office Practices, Third Edition in this regard.

The successful rulemaking would allow the Librarian of Congress, upon the recommendation of the Register of Copyrights, to exempt certain classes of works from the prohibition against circumvention of technological measures that control access to copyrighted works. The ultimate goal of the proceeding is to determine whether there are particular classes of works as to which users are, or are likely to be, adversely affected in their ability to make non infringing uses due to the prohibition on circumvention of access controls. When such classes are identified, the Librarian publishes a rule exempting the classes from the prohibition against circumvention for the succeeding three-year period.

On December 12, 2014, the Office issued a Notice of Proposed Rulemaking (“NPRM”) initiating three rounds of public comment on the proposed classes including submission of documentary and multimedia evidence. Persons wishing to address proposed exemptions should carefully review the Notice of Inquiry to familiarise themselves with the substantive legal and evidentiary standards for the granting of an exemption under section 1201(a) (1). Stakeholders can submit their comments from time to time as per the requirements of the rulemaking.

The first round of public comment closes on February 6, 2015, and is limited to submissions from the proponents (i.e., those parties who proposed exemptions during the petition phase) and other members of the public who support the adoption of a proposed exemption, as well as any members of the public who neither support nor oppose an exemption but seek only to share pertinent information about a specific proposal. Any associated documentary and/or multimedia evidence must also be submitted by this date.

The second round of public comment closes on March 27, 2015, and will be limited to members of the public who oppose an exemption. Opponents should present the full legal and evidentiary basis for their opposition.  Any associated documentary and/or multimedia evidence must also be submitted by this date.

The third round of public comment closes on May 1, 2015, and will be limited to proponents and supporters of particular proposals, and those who neither support nor oppose a proposal, in either case who seek to reply to points made in the earlier rounds of comments. Reply comments should not raise new matters, but instead be limited to addressing arguments and evidence presented by others. Any associated documentary and/or multimedia evidence must also be submitted by this date.

The U.S. Copyright Office has categorised the proposals for exemptions received in response to its September 17, 2014 Notice (PDF) into twenty-seven proposed classes (PDF) of exemptions for further consideration. Commenters are required to provide separate submissions for each proposed class during each stage of the public comment period. Although a single comment may not encompass more than one proposed class, the same party may submit comments on multiple classes.

The Office is accepting comments in two ways. First, commenters who wish to provide a full legal and evidentiary basis for their position may submit comments in a long form format. Such comments should be limited to no more than 25 pages in length (which may be single-spaced but should be in at least 12-point type), not including any documentary evidence. To assist participants, the Office has provided a recommended long comment form (doc).

Second, for those commenters who wish to briefly express general support for or opposition to a proposed exemption, the Office is providing a recommended short comment form (doc). Short comments should be limited to no more than one page (which may be single-spaced but should be in at least 12-point type).

Comments and associated documentary evidence (but not multimedia evidence) should be uploaded as a single combined file via the comment submission page. Commenters submitting long form comments may also separately submit multimedia evidence. Multimedia evidence must be submitted separately via U.S. mail or hand delivered to the Office, on specified digital media, in an approved file format and labeled as described in the NPRM. Commenters should carefully review the NPRM for more detailed information concerning the recommended format and content of submissions, including documentary and multimedia evidence.

To meet accessibility standards, all comments and associated documentary evidence must be uploaded in a single file in either the Portable Document File (PDF) format that contains searchable, accessible text (not an image); Microsoft Word; WordPerfect; Rich Text Format (RTF); or ASCII text file format (not a scanned document). The maximum file size is 6 megabytes (MB). The name of the submitter (and organisation) should appear on both the form below and the face of the comment. Commenters should use the “Browse/Choose File” button on the form below to attach the comment file to the form and then to submit the completed form to the Office.  If a commenter cannot meet a particular submission requirement, the commenter should contact the Office at 202-707-8350 for special instructions.

The Office intends to post the written comments and documentary evidence on its website in the form in which they are received. Parties should keep in mind that any private, confidential, or personally identifiable information appearing in their comment will be accessible to the public.

We would list all our comments and suggestions in this regard at this place so that a comprehensive coverage of this issue by us is possible. This would also help in consolidation of our comments and suggestions so that various stakeholders can use the same in the best possible manner.

Regulation Of Trafficking In Fraudulent Medicine By UNODC

Regulation Of Trafficking In Fraudulent Medicine By UNODCCounterfeiting medicines are serious health hazard and they should be strictly regulated world over. At the same time there should be a clear definition and regulatory framework to identify, locate and seize counterfeiting medicines and those manufacturing and dealing with the same. While doing so care must be taken to differentiate between counterfeiting medicines and generic drugs and medicines.

United Nations Office on Drugs and Crime (UNODC) has been dealing with counterfeiting drugs and fraudulent medicines for long. UNODC has been working in the direction of curbing trafficking in fraudulent medicines (PDF) and the resolution 20-6 of UNODC on countering fraudulent medicines and their trafficking (PDF) shows the commitment of UNODC in this regard. UNODC’s technical meeting of experts on the trafficking in fraudulent medicine (PDF) has already been convened in this regard.

In 2012, the WHO Resolution on Substandard, Spurious, Falsely-Labelled, Falsified-Counterfeit Medical Products on 130th Session 2012 (PDF) was passed. The resolution decided to establish a new Member State mechanism for international collaboration among Member States, from a public health perspective, excluding trade and intellectual property considerations, regarding “substandard/spurious/falsely-labelled/falsified/counterfeit medical products”.

The WHO resolution was the result of confiscation of Indian off-patent generic drug consignments by some European countries customs authorities for violation of intellectual property rights (IPRs). Reacting to confiscation, India and Brazil filed a case against the EU in the World Trade Organisation (WTO) protesting the action.

India and EU also decided to sign a Letter of Understanding and as per the understanding, none of the customs authorities in the 27-nation EU bloc would confiscate any drug dispatch meant for third country destinations like Latin America or Africa. In exchange India assured that it would not file any WTO dispute in this regard at WTO. In addition, EU also agreed to India’s request for adoption of guidelines which would confirm the principles agreed to in the Understanding with a view to give greater and immediate legal certainty for producers and traders. EU also agreed to reflect the principles contained in the Understanding in its proposal for a new Regulation to replace Regulation 1383/2003.

However, the latest development at UNODC resulting in involving IPRs issues in the fraudulent medicines has complicated the scenario further. India led BRICS has strongly opposed this move of UNODC. Let us see how the matter would be resolved at the international level.

US India IPR Rift Lessens Ahead Of Obama’s Visit

US India IPR Rift Lessens Ahead Of Obama’s VisitUnited States (US) is persistently criticising India for its allegedly poor intellectual property rights (IPRs) protection and enforcement. Despite the contrary stand of US, India has been managing its IPRs regime very effectively and as per international norms. Nevertheless US has been consistent in putting India under the “Priority Watch List (PWL)” category in its Special 301 Reports from time to time. It was also declared that a proposed legislation would target companies using stolen IPRs of US.

However, India has its own shares of problems when it comes to IPRs protection and management by US and US companies. There is no doubt that US needs to change its policy towards foreign IPRs violations as well. Many online service providers (OSPs) and companies in US are not complying with laws of other jurisdictions like India and are not complying with DMCA requirements. They cannot hide behind conflict of laws in cyberspace for long and US needs to address this issue as well while agitating against India.

Recently the WTO dispute between US and India regarding certain hot-rolled carbon steel flat products from India was decided by WTO. It was a mixed decision where both US and India gained in some aspects and lost in others. Meanwhile, India decided to formulate the IPR Policy of India to address national and international concerns. It would be a good idea to include technology issues of IPRs in the proposed IPRs policy of India as well.

In the USTR 2014 Special 301 Report to Congress (PDF) US maintained that India deserves to be kept under the PWL category. However, ahead of President Obama’s visit, US has softened its stand in this regard. After a special review, US is now satisfied with the efforts of India in the direction of IPRs protection and enforcement.

The US Trade Representative (USTR) believes that India has made useful commitments in recent months, including institutionalizing high-level engagement on IP issues, to pursue a specific work program and to deepen cooperation and information exchange with the US on IP related issues under the US India Trade Policy Forum. The USTR has also announced closure of the out-of-cycle review of India’s trade and intellectual property rights practices, noting the progress made in recent months.

We at Perry4Law and Perry4Law’s Techno Legal Base (PTLB) welcome this move of US. This is a good step in the right direction and it would help in strengthening of India US ties further. Let us see what the proposed national IPRs policy of India would suggest in this regard.

WTO Dispute Regarding Countervailing Measures On Certain Hot-Rolled Carbon Steel Flat Products From India- Dispute DS436

WTO Dispute Regarding Countervailing Measures On Certain Hot-Rolled Carbon Steel Flat Products From India- Dispute DS436India and United States (U.S.) were pursuing a dispute before the World Trade Organisation (WTO) pertaining to certain hot-rolled carbon steel flat products exported from India to U.S. The final report of the Appellate Body has been released on 8th December 2014. Please see the document United States – Countervailing Measures on Certain Hot-Rolled Carbon Steel Flat Products from India – AB-2014-7 -Report of the Appellate Body (PDF) for more details. A summary of the same is available as WTO Summary of the Dispute Settlement of Dispute No DS436 between India and US (PDF).

This decision is a mixed one where India prevailed over U.S. on few issues while U.S. prevailed over India on others. Nevertheless it is a big relief for Indian steel exporters who were facing uncertainties till now. IPR Helpdesk of Perry4Law and PTLB is providing the crux of this decision in this work for the larger benefit of all stakeholders.

The key findings and conclusions of the Appellate Body are:

For the reasons set out in this Report, the Appellate Body:

(a) With respect to the Panel’s findings regarding the term “public body” under Article 1.1(a)(1) of the SCM Agreement:

(i) Reverses the Panel’s finding, in paragraphs 7.89 and 8.3.c.i of the Panel Report, rejecting India’s claim that the USDOC’s determination that the NMDC is a public body is inconsistent with Article 1.1(a)(1) of the SCM Agreement; and

(ii) Completes the legal analysis and finds that the USDOC’s determination that the NMDC is a public body is inconsistent with Article 1.1(a)(1) of the SCM Agreement;

(b) With respect to the Panel’s findings regarding financial contribution under Article 1.1(a)(1)(i) and (iii) of the SCM Agreement:

(i) Upholds the Panel’s finding, in paragraphs 7.241 and 8.3.d.i of the Panel Report, rejecting India’s claim that the USDOC’s determination that the GOI provided goods through the grant of mining rights for iron ore and coal is inconsistent with Article 1.1(a)(1)(iii) of the SCM Agreement; and

(ii) Upholds the Panel’s finding, in paragraphs 7.297 and 8.3.e.ii(1) of the Panel Report, rejecting India’s claim that the USDOC’s determination that the SDF Managing Committee provided direct transfers of funds is inconsistent with Article 1.1(a)(1)(i) of the SCM Agreement;

(c) With respect to the Panel’s “as such” findings regarding benefit under Article 14(d) of the SCM Agreement:

(i) Upholds the Panel’s finding, in paragraph 7.35 of the Panel Report, rejecting India’s claim that the US benchmarking mechanism is inconsistent with Article 14(d) of the SCM Agreement because it fails to require investigating authorities to assess the adequacy of remuneration from the perspective of the government provider before assessing whether a benefit has been conferred on the recipient;

(ii) Upholds, albeit for different reasons, the Panel’s finding, in paragraph 7.46 of the Panel Report, rejecting India’s claim that the US benchmarking mechanism is inconsistent “as such” with Article 14(d) of the SCM Agreement because it excludes the use of government prices as benchmarks;

(iii) Upholds the Panel’s finding, in paragraph 7.52 of the Panel Report, rejecting India’s claim that the use of “world market prices” as Tier II benchmarks provided for in Section 351.511(a)(2)(ii) of the US Regulations is inconsistent “as such” with Article 14(d) of the SCM Agreement; and

(iv) upholds, albeit for different reasons, the Panel’s finding, in paragraph 7.63 of the Panel Report, rejecting India’s claim that the mandatory use of “as delivered” benchmarks provided for in Section 351.511(a)(2)(iv) of the US Regulations is inconsistent “as such” with Article 14(d) of the SCM Agreement;

(d) With respect to the Panel’s “as applied” findings regarding benefit under Article 14 of the SCM Agreement:

(i) Declares moot and of no legal effect the Panel’s alternative findings, in paragraphs 7.160-7.165 of the Panel Report, on the ex post rationales put forward by the United States to justify the USDOC’s failure to consider certain domestic pricing information in assessing whether the NMDC provided iron ore for less than adequate remuneration;

(ii) Reverses the Panel’s findings, in paragraphs 7.189 and 7.192 of the Panel Report, rejecting India’s claims that the USDOC’s exclusion of the NMDC’s export prices in determining a Tier II benchmark is inconsistent with Article 14(d) and the chapeau of Article 14 of the SCM Agreement; and completes the legal analysis and finds that the USDOC’s exclusion of such prices is inconsistent with Article 14(d) and the chapeau of Article 14 of the SCM Agreement;

(iii) Reverses the Panel’s findings, in paragraphs 7.183 and 7.185 of the Panel Report, rejecting India’s claim that the USDOC’s use of “as delivered” prices from Australia and Brazil in assessing whether the NMDC provided iron ore for less than adequate remuneration is inconsistent with Article 14(d) of the SCM Agreement; and completes the legal analysis and finds that the USDOC’s use of such prices is inconsistent with Article 14(d) of the SCM Agreement;

(iv) Upholds the Panel’s finding, in paragraph 7.260 of the Panel Report, rejecting India’s claim that the USDOC’s construction of government prices for iron ore and coal is inconsistent with Articles 1.1(b) and 14(d) of the SCM Agreement; and

(v) Reverses the Panel’s finding, in paragraph 7.313 of the Panel Report, rejecting India’s claim as it relates to the USDOC’s determination that loans provided under the SDF conferred a benefit within the meaning of Articles 1.1(b) and 14(b) of the SCM Agreement, and finds that it is unable to complete the legal analysis;

(e) With respect to the Panel’s findings regarding specificity under Article 2.1(c) of the SCM Agreement:

(i) Upholds the Panel’s finding, in paragraph 7.135 of the Panel Report, that there was no obligation on the USDOC to establish that only a “limited number” within the set of “certain enterprises” actually used the subsidy programme;

(ii) Upholds the Panel’s finding, in paragraph 7.126 of the Panel Report, rejecting India’s argument that specificity must be established on the basis of discrimination in favour of “certain enterprises” against a broader category of other, similarly situated entities; and

(iii) Upholds the Panel’s finding, in paragraph 7.133 of the Panel Report, rejecting India’s argument that, if the inherent characteristics of the subsidized good limit the possible use of the subsidy to a certain industry, the subsidy will not be specific unless access to this subsidy is further limited to a subset of this industry;

(f) With respect to the Panel’s findings regarding the use of “facts available” under Article 12.7 of the SCM Agreement:

(i) Modifies the Panel’s interpretation of Article 12.7 of the SCM Agreement, in Section 7.7.5.1 of the Panel Report, and finds that Article 12.7 requires an investigating authority to use facts available that reasonably replace the missing necessary information with a view to arriving at an accurate determination, and that this also includes an evaluation of available evidence;

(ii) Finds that the Panel failed to comply with its duty under Article 11 of the DSU to make an objective assessment of the matter before it, and therefore reverses the Panel’s finding, in paragraphs 7.445 and 8.3.h of the Panel Report, that India failed to establish a prima facie case that Section 1677e(b) of the US Statute and Section 351.308(a)-(c) of the US Regulations are inconsistent “as such” with Article 12.7 of the SCM Agreement; and completes the legal analysis and finds that India has not established that Section 1677e(b) of the US Statute and Section 351.308(a)-(c) of the US Regulations are inconsistent “as such” with Article 12.7 of the SCM Agreement; and

(iii) Upholds the Panel’s finding, in paragraph 7.450 of the Panel Report, that India failed to establish a prima facie case of inconsistency with Article 12.7 of the SCM Agreement;

(g) With respect to the Panel’s findings regarding the USDOC’s examination of new subsidy allegations in administrative reviews:

(i) Upholds the Panel’s finding, in paragraphs 7.508 and 8.3.j of the Panel Report,  rejecting India’s claims that the USDOC’s examination of new subsidy allegations in administrative reviews related to the imports at issue is inconsistent with Articles 11.1, 13.1, 21.1, and 21.2 of the SCM Agreement; and

(ii) Reverses the Panel’s finding, in paragraphs 7.508 and 8.3.j of the Panel Report,  rejecting India’s claims that the USDOC’s examination of new subsidy allegations in administrative reviews related to the imports at issue is inconsistent with Articles 22.1 and 22.2 of the SCM Agreement, and finds that it is unable to complete the legal analysis in this regard;

(h) With respect to the Panel’s findings regarding “cross-cumulation” under Article 15.3 and Articles 15.1, 15.2, 15.4, and 15.5 of the SCM Agreement:

(i) Finds that the Panel did not err in finding that Article 15.3 and Articles 15.1, 15.2, 15.4, and 15.5 of the SCM Agreement do not authorize investigating authorities to assess cumulatively the effects of imports that are not subject to simultaneous countervailing duty investigations with the effects of imports that are subject to countervailing duty investigations; and

(ii) Finds that the Panel failed to comply with its duty under Article 11 of the DSU to make an objective assessment of the matter before it, and therefore reverses the Panel’s findings, in paragraphs 7.356, 7.369, 8.2.c, and 8.2.d of the Panel Report, that Section 1677(7)(G) of the US Statute is inconsistent “as such” with Article 15.3 and Articles 15.1, 15.2, 15.4, and 15.5 of the SCM Agreement; and completes the legal analysis and finds that Section 1677(7)(G)(iii) is inconsistent “as such” with Article 15.3 and Articles 15.1, 15.2, 15.4, and 15.5 of the SCM Agreement;

(i) Except for the findings in paragraphs 5.1.f.ii and 5.1.h.ii above, otherwise rejects all of India’s claims that the Panel failed to make an objective assessment of the matter before it, and therefore acted inconsistently with Article 11 of the DSU; and

(j) With respect to the Panel’s findings identified in paragraphs 5.1.c and 5.1.g above, rejects India’s claims that the Panel failed to provide a basic rationale for its findings, and therefore acted inconsistently with Article 12.7 of the DSU.

5.2. The Appellate Body recommends that the DSB request the United States to bring its measures found in this Report, and in the Panel Report as modified by this Report, to be inconsistent with its obligations under the SCM Agreement into conformity with that Agreement.

National IPR Policy Of India Needs To Be Techno Legal In Nature

National IPR Policy Of India Needs To Be Techno Legal In NatureThe Department of Industrial Policy and Promotion (DIPP) has been engaged in formulating the national IPR policy of India. It has already constituted an IPR Think Tank in this regard that would help DIPP in proper understanding and implementation of IPR related issues in India. Public comments were also invited by the DIPP and the last date for submission of the comments was 30-11-2014. As that date is over and the comments must have already been provided by the public, the Think Tank must be busy in formulating the national IPR policy of India.

We at Perry4Law and Perry4Law’s Techno Legal Base (PTLB) welcome this move of Indian government and we wish and hope that the IPR policy of India would be released very soon.

India has already been managing effectively her IPR related laws and obligations in conformity with international treaties and conventions. At the same time India is also maintaining a balance between the constitutional protections and her international treaty obligations. Despite contrary claims, Indian patent law is in conformity with her international obligations. India is not at all obliged to adhere to TRIPS plus provisions and her current IPRs laws are not only well written but are also adequately enforced.

However, information and communication technology (ICT) has introduced many unique and complex issues before the Indian government. The proposed national IPR policy of India may cover these issues as well. However, these challenges cannot be effectively tackled unless the proposed national IPR policy of India is techno legal in nature i.e. a policy that can take care of both technological and legal issues simultaneously.

India is presently struggling to deal with technological issues of IPRs in general and techno legal issues in particular. This may be counterproductive in the long term as India has embraced policy initiatives like Digital India and Internet of Things (IoT) (PDF). Conflict of laws in cyberspace has made the enforcement of IPRs really tough especially when online infringements are involved. Internet intermediary liability and cyber law due diligence (PDF) issues are also not properly addressed in India so far.

There is also a need to ensure that innovation must be adequately represented by skilled IPRs professionals. For instance, right now only patent agents are allowed to file patent applications besides the applicant in person. There is a need to allow lawyers to file patents applications as well as that would increase the scope and numbers of patents applications in India.

Further, the legal analysis of SP.Chockalingam v Controller of Patents & Anr and its legal consequences are still not clear. The judgment gives an interpretation that lawyers can act as a patent agents while dealing with patents related issues at the registry. This is logical as well as a lawyer who can represent her client for the most serious matters should not be disallowed to act as patent agent/attorney at the patent office. Lawyers can already appear on behalf of patent applicants in tribunals and courts and there is no sense in prohibiting them from appearing before the Controller/Patent Office. We believe that a positive clarification in this regard by the Indian government would be really helpful as that would help in facilitating the creation and recognition of more IPRs by various stakeholders through lawyers.

The proposed IPR policy must also ensure that applications are disposed of in a time bound and transparent manner. Applicants must be encouraged to use online filing system of the Patent/Trademark/Copyright offices. This would automate the process of filing and processing of various IPRs applications and would save time and energy of various stakeholders.

IPRs dispute resolution is another area that requires innovative and out of the box solutions. For instance, issues like small claims (PDF), orphan works (PDF), minor IPRs issues and disputes, etc can be effectively resolved through methods of online dispute resolution (ODR) and e-courts.  This would also help in effective implementation of National Litigation Policy of India (NLPI) as many disputes would be resolved out of the court itself.

Perry4Law and PTLB hope that the proposed national IPR policy of India would be comprehensive enough to cover techno legal issues as well as mentioned above.

Indian Supreme Court Asks Centre And ICMR To Produce Documents Granting Licences To Merck Sharpe And GlaxoSmithKline

Indian Supreme Court Asks Centre And ICMR To Produce Documents Granting Licences To Merck Sharpe And GlaxoSmithKlineHealthcare industry of India is witnessing many ups and downs. Indian government and pharmaceutical companies are trying their level best to mange healthcare related issues in India but there are more shortcomings than achievements till now.  For instance, health, food and medicine related legal compliances in India are not followed by various healthcare stakeholders. Similarly, dietary and health supplement, functional food and nutraceutical legal and regulatory compliances in India are also missing.

One area of great concern is the clinical trail of new drugs and pharmaceuticals in India that is not done in strict and legal manner. The Supreme Court of India has even asked Indian government to monitor and regulate all clinical trials of experimental drugs in India.

Clinical establishments operating in India are required to comply with the requirements of the Clinical Establishments (Registration and Regulation) Act 2010 (PDF) and the Clinical Establishments (Central Government) Rules 2012 (PDF). Further, Recommendations on Electronic Medical Records Standards in India (PDF) have also been prescribed that have to be followed and complied with by Indian clinics and healthcare professionals of India. An e-health authority of India is also in pipeline to implement electronic health record (EHR) standards in India and managing other related aspects.

Similarly, areas of e-health, m-health, telemedicine, etc can be undertaken only subject to techno legal compliances. Presently the healthcare industry and healthcare entrepreneurs of India are acting more on the side of violation than compliances. Even the m-health service providers in India are violating Indian laws. The Competition Commission of India (CCI) may also examine patent settlements that are being negotiated between foreign brand-name drug makers and domestic generic companies.

In a related legal development, the Supreme Court on Tuesday asked the Centre and Indian Council of Medical Research (ICMR) to produce files relating to grant of licences to pharmaceutical companies Merck Sharpe and GlaxoSmithKline. These licences allowed Merck Sharpe and GlaxoSmithKline to conduct clinical trials of two vaccines upon minor girls that is claimed to be capable of preventing cervical cancer.

Supreme Court has been hearing a Public Interest Litigation (PIL) to quash licensing of two vaccines for cervical cancer treatment on the ground that approval for their use was done without adequate research on safety.  It has been alleged that the Drugs Controller issued licences for the vaccines without adequate research on safety as directed by the parliamentary standing committee on health.  The Centre has also been asked to place before the Supreme Court the report of the House panel which had criticised the manner in which the vaccines were introduced in India. It also wants to know what action the government has taken subsequent to the report placed before Parliament in August last year.

CCI May Scrutinise Patent Settlements Between International Drugs Manufacturers And Indian Generic Drugs Producers

CCI May Scrutinise Patent Settlements Between International Drugs Manufacturers And Indian Generic Drugs ProducersThe corporate compliance requirements have drastically changed after the introduction of Indian Companies Act, 2013. Similarly, regulatory framework pertaining to companies operating in India has also been changed. For instance, foreign companies and e-commerce portals would be required to register in India and comply with Indian laws as per changed regulations applicable in India.

Drugs and pharmaceutical industry of India is also witnessing the impact of changed regulatory environment both in Indian market and foreign markets. The generic pharmaceutical companies of India are also passing through tough phase. However, the generic drugs industry of India is also giving sleepless nights to foreign pharmaceutical companies who are finding it difficult to compete with the economies of generics drugs.

As a truce, international drug manufacturers are entering into negotiations and settlements with the generic drug manufactures across the world, including India. However, not all settlements are genuine and in many cases these settlements are unreasonable means to stifle domestic competition that results in higher prices for the drugs in the concerned country.  This is clearly an unfair practice and anti competition and anti trade in nature.

It has been reported that the Competition Commission of India (CCI) may examine patent settlements that are being negotiated between foreign brand-name drug makers and domestic generic companies. In these arrangements, a brand-name drug maker reaches a settlement with a generic rival in exchange for ending patent litigation and launching a copycat medicine at a future date. Many have raised the concerns that such deals would restrict access to affordable medicines in India.

CCI is scrutinising the deals between Tarceva lung cancer drug made by Roche and a deal with Cipla and the settlement between Glenmark Pharmaceuticals and Merck concerning the Januvia diabetes pill. In Federal Trade Commission v. Actavis, inc., Et Al. No. 12–416. 570 U. S. (2013) (PDF) the U.S. Supreme Court adjudicated upon a similar complaint of the U.S. Federal Trade Commission (FTC).

CCI also plans to probe the market impact of injunctions that were obtained over the past year by Novartis and Merck against a dozen domestic drug makers, which were prevented from selling copies of diabetes drugs.