23 June 2015
After the new Narendra Modi led Government took over the governance in the year 2014, there has been considerable debate and expectation, nationally as well as internationally, with respect to a more refined and developed intellectual property rights ("IP") law regime in India.
Constitution of IPR Groups
Recently, the IP regime in India has undergone various significant developments with respect to laws and policies. Two of the most note-worthy developments are the constitution of the joint India - US working group on IPR and a national IPR Think Tank group set-up to draft a national IPR policy. Based on the findings and suggestions of these groups, IP law regime in India can soon witness some major changes.
Changes Expected on Laws Relating to Piracy and Trade Secrets, and Balance between IPR rights and Public Interests
At present, issues of piracy of films and software are being widely being debated in the government circle for enhanced IP protection. The above mentioned draft National IPR policy, also, particularly, mentions the importance of protecting trade secrets in India. Currently, trade secrets, although a recognized form of IP, are not protected by legislature in India and they continue to be enforced contractually or under common law. In addition, particularly in the area of pharmaceutical, the new government is working with a view to achieve a perfect balance between protecting the IPRs of the inventor/industry and the public interests at large.
Law in Karnataka amended to include "Digital Offenders"
The Government of Karnataka recently in the year 2014 amended the Karnataka Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Gamblers, Goondas, Immoral Traffic Offenders and Slum Grabbers and Video or Audio Pirates Act, 1985 to extend the scope of the Karnataka Goondas Act to include "Digital Offenders". Digital Offender includes a person who knowingly or deliberately violates, for commercial purposes, any copyright law in relation to any book, music, film, software, artistic or scientific, in a manner prejudicial to the maintenance of public order. The said Act was enacted to provide for preventive detention of video or audio pirates, amongst others, to prevent their dangerous activities prejudicial to the maintenance of public order.
Safeguarding Personality Rights; Protection and Enforcement Through Court SystemThe recent time also saw famous film actors like Rajinikanth and Sridevi attempting to safeguard their personality rights. While Rajinikanth successfully moved the Madras High Court for relief, Sridevi resorted to sending Ramgopal Varma a legal notice. Claims in India based on personality rights, image rights or celebrity rights have been on the rise in the recent past. Of late, the judicial position also seems to favor individuals, and is included to protect personality rights vis-a-vis those who try to take undue credit of the persona and reputation of a well known personality without his or her consent.
However, unlike other jurisdictions, India does not yet have any specific legislation to protect these rights, though the same is expected sooner or later.
The protection and enforcement of trademarks and copyrights through court system in India is also worthy of mention. Courts have been quick and proficient in examining the disputes/conflicting disputes and grant interim and/or permanent relief to protect IP rights, thereby giving lot of comfort to innovators and industries, right from retail brands in protecting their consumer brands to film production houses in protecting their copyright and broadcasting rights. In addition, though India has not yet enacted statutory provisions to address cyber squatting, several cyber squatting cases in the nature of the common law action of passing off have recently been decided in which the Indian courts have been inclined to protect domain names from any actual or possible misuse, recognizing it as a valuable corporate asset that is more than a simple internet address and one which is entitled to the equal protection as a trademark.
Interface Cases On Intellectual Property And Competition LawOn another important aspect, India has seen the beginning of the interface cases on intellectual property and competition law, very much similar to European countries and other developed nations. It therefore often becomes necessary to make an analysis of the jurisprudence in the EU as the EU Regulations and cases are clearer on issues of intellectual property and competition law, unlike Indian law. In the US, e.g., there are several cases of abuse of dominance and non-disclosure of patents to standard setting organizations. Indian is bound to follow tougher approaches to monopolization of relevant market and abuse of dominance. It is widely felt that the exhaustion of IP rights needs to be reiterated in domestic laws so that parallel import of technologies can take place without violating patent laws.
Policy Framework for Bharat domain name in Devanagari script
The International Domain Names (IDNs) Registry, in August 2013, instituted a policy framework to proliferate Bharat domain name written in Devanagari script in the internet space. In August, 2014, the National Internet Exchange of India ("NIXI") launched the Bharat domain name (written in Devanagari script).