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INTRODUCTIONTOCOPYRIGHT IN
INDIA
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Structure of the Presentation
Three parts
(1) Copyright in India
(2) Case Study: Copyrighting DNA
(3) Infringement of Copyright
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What is Copyright?
The exclusive right given by law fora certain term of years to an author,composer etc. (or his assignee) to
print, publish and sell copies of hisoriginal work
(Oxford English Dictionary)
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Why Copyright?
Fair Play: Reward creative efforts.Thou shall not steal
Exclusive rights for limitedtime N egative right:prevent copying/reproduction
Copyright is necessaryencourage dissemination ofcopyrighted works = public interest
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England & Wales
Indian copyright law similar toEngland & Wales. First Copyright Actin England (and the world)
1709 Statute of Anne.
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United States
First Act in 1790: did not protectforeign authors
Indigenous American literature
suffered
Today: Copyright Act 1976 one
of the major copyright laws inthe world
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The Copyright Act 1957
Indian Perspectives
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Copyright in India
First Act in 1914, followed by theCopyright Act 1957.
1957 Act: adopted many Englishprovisions, introduced new ideas and
concepts.
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Copyright Act 1957 MainFeatures
Valid from 21 January 1958
Created Copyright Office andCopyright Board
Introduced civil and criminalremedies against infringement
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Copyright Act 1957 MainFeatures (II)
Performing rights societies rights(for instance, music royalties)
Definition of categories in whichcopyright actually subsists
International copyright
Definition of infringement
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Copyright (Amendment) Act1983 and 1984
Objectives
Berne and Universal CopyrightConventions grant of compulsory
licences by developingcountries, publication by
deceased authors
1984 Act: discouragingand preventing widespread video
piracy.
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Copyright (Amendment) Act1992
Defined ambit of the CopyrightBoards powers
Introducing special
rights for performers
Assignment and licences ofcopyright
Rights of copyright owners03/01/13 12Introduction to copyrights
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Term of Copyright
Depends on nature of work/ownerof copyright and whether the workhas been published
Most works: 60 years
Broadcast Reproduction: 25 years
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About Fixation, Labour, Skilland Capital
The Nature of Copyright
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The Nature of Copyright
Statute-based, no registrationnecessary
Copyright = intellectual property
Combines different rights (literaryworks: the right to reproduce inhardback and paperback editions, theright of translation adaptation)
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Labour, Skill and Capital
It is the product of the labour,skill and capital of one manwhich must not be appropriated
by another. (- per Lord Atkinson,Macmillan v CooperAIR 1924 PC 75)
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Its All About the Idea: Or isntIt?
Copyright in form or expression, notin idea:There is nothing in the notion of copyrightto prevent a second person from producing
an
identical result...
(Gregory Committee
Report, 1952, para 9)
Copyright only in material formprinciple of fixation
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What Copyright Protects
Original Literary, Dramatic, Musicaland Artistic Works
Cinematograph Films
Sound Recordings
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Literary Works
Novels, poems, short stories
Books on any subject
Computer programmes,tables, computer
databases
Song lyrics
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Computer Software
Includes
Programme Manuals
Punched Cards Magnetic Tapes/Discs
Computer printouts
Computer programmes
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Work in the biotech industry involvingcopyrightable subject matter:
Modification of genes of plants, animalsTo identify causes of diseases
To make assays for the testing of variousdiseases
Manufacture of vaccines
Spotlight on Copyright forthe Biotech industry
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DNA and Copyright
1980s/1990s: scholars proposed thatbiotechnology work =copyrightable
Copyright as alternative to patentlaw
Diamond v Chakraborty: 447 US 303
(living organisms patentable) Practical problems prevented grants
Computer industry successfullylobbied for amendment of 1976Co ri ht Act03/01/13 22Introduction to copyrights
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Arguments againstcopyrighting of DNA
Facts lack originality
Doctrine of merger and non-equivalence of DNA/computerprogrammes
Utilitarian prohibitions
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Arguments for Protection
Copyright Subject Matter
Analogybetween Literary Worksand computer programmes
DNA as a Compilation
Sweat of the Brow Doctrine
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Copyright Subject Matter
The work concerned has to be
Original
Work of authorship
Fixed
In the United States, Congressintended a
wide reading of the term literaryworks
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na ogy e ween erary
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na ogy e ween eraryWorks and Computer
Programmes Genetic Sequences are strings of
symbols of the nucleotides of DNA
DNA sequence containing coded
genetic information for the synthesisof particular protein = application
programme of a computer
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DNA as a Compilation
Combining various elements of DNAconstitutes a compilation: involvesassembling of pre-existing materials
Selection and arrangement ofsequence elements are
copyrightable
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Sweat of the BrowDoctrine
Originalityin the labour expendedin the collection and assembly ofdata: adaptable to DNA sequences
Researchers spend
considerable time and effort
to discern the sequence of a gene:they should have copyright due tohard work
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Why Patents Dont (Always)Work
Patents confer monopolies and excludecompetitors from conducting research
Can offer rewards disproportionate to risk:Genentech Incs Patent[1989] RPC 147, CA
Public interest would be injured if everycorporation could patent anytime, anywhere.Without them, corporations may lack incentiveto conduct research
No guarantee for independent researchers thattheir efforts will pay off
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Copyright and Related Rightsto the Rescue?
Despite conferral of a monopoly,usually another option available:Copyright could be an option in
cases without inventiveness
Advantage of copyright system: no
ban on creation of genomes, merelyroyalties; licensing schemes can beregulated.
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Sequence = Original LiteraryWork?
S. 3 of Copyright, Design andPatents Act 1988 defines literarywork
Includes a) table or compilation andb) computer programme
DNA sequence could be literary workas well: created by human mind,written
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Telegraph Code Cases
Based on these, there is copyright inseemingly arbitrary instances ofletters
Anderson & Co v Lieber Code Co[1917] 2 KB 469
Ager v Peninsular and Oriental
Steam Navigation Co.(1884) 26Ch D 637
Ager v Collingridge(1886) 2 TLR291
Ex ress News a ers lc v 03/01/13 32Introduction to copyrights
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Originality
Work may be original, even ifderived from previous material,provided further independent skill,
useful labour, knowledge orjudgment have been bestowed on itscreation
Even if nature of subject matter canlead competent author with onesolution: Walter v Lane [1900] AC
53903/01/13 33Introduction to copyrights
I f i t f C i ht i
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Infringement of Copyright inMolecular Sequences
CDPA 1988, s. 16: copyright ownerwith exclusive right to copy the work
16(3): infringement by copying work
as a whole or any substantial part Infringement cannot take place outside
UK or when a legal copy has been
purchased from which one adopts ascissor/paste approach: Warne & Co vSeebohm (1888) 39 Ch. D. 73
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I f i t i Ch i l
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Infringement in ChemicalForm?
S. 178 of the CDPA 1988: writingdefined as any form of notation orcode, whether by hand or otherwise
and regardless of the method bywhich, or the medium in on which, itis recorded
No understanding by the humanmind required:Apple ComputerInc v Computer Edge Pty Ltd[1984] FSR 496
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Infringing Copyright
Thing in question has to derive fromoriginal literary work
What is required is the reproductionof a substantial part of what isoriginal in the copyrighted work:Warwick Film Productions Ltd v
Eisinger1 Ch 508, Ladbroke vWilliam Hill (Football) Ltd[1964]1 WLR 273, per Lord Pearson
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Indian position - Eastern bookCompany case
This case relates to compilation ofSupreme Court judgements
Test for originality
The middle path approach adopted forDerivative works
Sweat of the Brow Vs. Modicum ofcreativity
U.K. approach (Ladbroke) Vs. U.S.A.(Feist)
India follows the Canadian approach
CCH Canada03/01/13 37Introduction to copyrights
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Case laws on Copyright
There is no reported case on thecopyrightability of biotech subjectmatter
There is one case currently pendingwith respect to plant varieties on thebasis of copyright and trade
secrecy/confidential information
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Case laws
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Case laws
J. Mitra Company Pvt. Ltd. Vs. Span Diagnostics
CS (OS) No. 2020/2006 - Judgment dated 22.02.2008passed by Ld. Single Judge of Delhi High Court, Honble Mr.Justice Sanjay Kishan Kaul
J. Mitra developed a highly qualitative fourth generation
Hepatitis C diagnostic kit which enable the disease to be diagnosed within 10-15 days
after the virus enters the human body J. Mitra had applied for a patent on this product before the
Indian Patent Office as far back as in 2000
The Patent disclosed an invention which comprised of aspecific set of antigens used in specific proportions and thedevice built in a unique manner
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Case laws
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Case laws
J. Mitra Company Pvt. Ltd. Vs. Span
Diagnostics (Contd..)
Span Diagnostics copied the HCV Tridot product
Span had initially opposed the grant of patent and thepatent office in India had rejected the objections and hadgranted the patent to J. Mitra in 2006
After the grant of the patent, J. Mitra filed a case againstSpan Diagnostic seeking injunction against themanufacture of Signal HCV which was the copied deviceof Span Argued that antigens are commonly known andthe methodology is nothing but protein sequences
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Case laws
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J. Mitra Company Pvt. Ltd. Vs. Span Diagnostics
(Contd..) Vide judgment dated 22.02.2008, Honble Mr. Justice Sanjay
Kishan Kaul of the Delhi High Court has held that: Sufficient documents were filed showing the research
conducted byJ. Mitra.
The international preliminary examination report issuedby the PCT Office does not have a bearing on the validityof the patent. The validity patent has to be examined by
the court considering the merits of the case.That the defendant showed no research or development
towards its infringing product
Case laws
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Case laws
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J. Mitra Company Pvt. Ltd. Vs. Span Diagnostics
(Contd..)That the defendant had not been able to show that it had
developed the product or had applied for the approval ofthe product prior to the patent application of J. Mitra.
That J. Mitras patent was an invention and none of theearlier U.S. patents relied upon by the defendant Spanwere identical to J. Mitras product
The other products shown by the defendant are differenttypes of tests and not the Rapid fourth generation test
device as patented by J. Mitra Evaluation of W.H.O. reveals 98.9% specificity and 100%
sensitivity of J. Mitras product
Case laws
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Case laws
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J. Mitra Company Pvt. Ltd. Vs. Span Diagnostics
(Contd..)The only difference between the plaintiffs and
defendants device was that J. Mitras device had threedots and Spans device had two dots
The life of a patent being limited in nature i.e. in thiscase only till 2020, it is necessary to protect the patentand restrain Span
Case laws
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When (Copy)right becomeswrong
Infringement of Copyright
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Statutory Definition
Copyright Act 1957, s. 51
Infringement: exercising rights of thecopyright owner
Making, distributing, exhibiting andimporting infringing copies of thework
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Factors Determining
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Factors DeterminingInfringement
CopyingCausal ConnectionSubconscious Copying
IndirectCopying
Substantial TakingUnaltered copying
Extent of defendants alterationCharacter of Plaintiffs and Defendants
worksNature and Extent of Plaintiffs Effort
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General Principles
R.C Anand v Delux Films(1) No copyright in an idea.
Violation of copyright confined to form,manner and arrangement, as wellas expression of idea by the author
(2) Where same idea developed in
different manner, similaritieshappen. Court to rule on whethersimilarities are merely substantial orfundamental
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General Principles (2)
(3) Safest Test: Does the reader/
spectator/viewer have the
opinion/get the unshakeable
impression that the second work isa copy of the original? (the viewertest)
(4) Same theme, differentpresentation
Completely new work, no infringement
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General Principles (3)
(5) Where there are only incidentalsimilarities, there is no copyrightinfringement
(6) Copyright infringement = piracy
it must be clearly proven
(7) Very difficult to proveviolation of copyright of
stage play by a film
producer: the viewer test is
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Strengthening Copyright,Enhancing the Reach of the Law
Remedies for Copyright
Infringement
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Remedies
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Civil Remedies
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Civil Remedies (2)
InjunctionOnly effective remedyCourt has to weigh the
damage to the plaintiff if theinjunction is not granted, asopposed to the damage to thedefendant if it is
Interlocutory injunction is thepreferred methodfor preventinginfringement, sometimes an ex parteinjunction
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Criminal Remedies
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C i i l R di
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Criminal Remedies Copyright Act 1957, s.64
empowers the Police (any officer notbelow the rank of sub-inspector) toseize infringing copies without
warrant Police Raids (Power ofsearch,
seizure & arrestwithout a warrant)
Fines (min. 50,000-200,000 INR) Imprisonment (6 months to 3
years)
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Pros and Cons of Civil
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Pros and Cons of CivilRemedies
PROS
Judicial determination of rights
Likelihood of damages award
Less vulnerable to a challenge
Commissioners seizure orders moreeffective
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Pros and Cons of Civil
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Pros and Cons of CivilRemedies (2)
CONS
Delays Trial, Appeal Stages
Damages not usually awarded
No severe punishment for violation
of rights
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Pros and Cons of Criminal
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Pros and Cons of CriminalRemedies
PROS Quick remedy
Greater opportunity to quickly
counteract violation, with arrest actingas a deterrent
CONS
Chances of seizure of goods low
Difficulty in coordinating with the police
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Conclusion
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Conclusion
Protection for DNA and proteinsequences is in the nascent stageglobally and in India;
A tilt exists towards patenting;
Copyright may be a viable option butthere are problems with establishing
priority etc.,
A strong copyright registrationmechanism is needed if the biotech
industry is to adopting Copyright03/01/13 59Introduction to copyrights
Conclusion
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Conclusion
Requires complete overhauling of theCopyright offices
At present most copyrightable works are notregistered
Even copyright registrations where thetraditional examination and oppositionprocedures are not followed, take timesometimes even 3 years to get registered
For biotech industry, a vibrant and robustcopyright registration regime, is necessary
Priority would be difficult to establish.
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Yahoo Sued by Indian Music Company
for Copyright Infringment
By John Ribeiro, IDG NewsThe Delhi High Court in India passed aninterim injunction on Friday that prohibits
Yahoo Video from streaming copyrightcontent from Indian music company, SuperCassettes Industries, according to the lawyer
representing the Indian company in thiscase. The court, after finding a prima-faciecase, also issued a notice to Yahoo and itsIndian subsidiary.
The music company, which uses the brand T-Series, is seeking
http://www.pcworld.com/author/John-Ribeirohttp://www.idgnews.net/http://www.idgnews.net/http://www.pcworld.com/author/John-Ribeiro -
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a permanent injunction and damages for the allegeddissemination and display of its copyrighted content on YahooVideo.
Yahoo will not comment on the case as the matter is before acourt, a company spokeswoman said.Super Cassettes Industries last year sued YouTube,owned byGoogle, for similar reasons. It obtained an interim restraining
order on YouTube in that case too, though the case has notbeen finally disposed.A "cease and desist" notice regarding the streaming of thecopyright content was served on Yahoo and its Indiansubsidiary in late February, Super Cassettes Industries' lawyerRahul Ajatshatru said Monday. Yahoo did not remove thecontent identified in the notice, and instead asked the Indiancompany to follow procedures laid down by Yahoo for reportingmisuse of copyright content, Ajatshatru said. Yahoo ignored a
second notice sent by the Indian company in March.
http://www.pcworld.com/article/id,139366/article.html?tk=rel_newshttp://www.pcworld.com/article/id,139366/article.html?tk=rel_news -
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Thanx
Prof.K.ANBUDURAIB.E.,M.S.
(ByResearch).,M.B.A.,Ph.D.,PGDip.IP
R.,
Email:[email protected]