Year: 2016

The access versus profit debate is a worldwide phenomenon in the pharmaceutical industry and India is no exception. In recent times however, India’s increasingly visible, pro-access stance has developed new teeth. In a spate of patent cases, the judiciary has made it clear that public interest is of prime importance and India will not tolerate the exploitation of its masses by drug giants looking to reap benefits. It was in this vein that the IPAB rendered its decision in Natco v. Bayer. Unfortunately however, the base created by the ruling remains weak at best. Not only does it fail to address crucial issues that could shape the future of Indian law in this area, but it also fails to consider the logical corollaries of its reasoning in some aspects. This note seeks to critically analyse the judgment in this light and explore the way forward. It argues that the decision’s overall interpretation of law, though sound in the factual matrix of this case, is problematic in the larger picture. The note concludes by outlining the possible effects of the decision on India’s pharma-patent regime and setting out the lessons to be learnt by the drug manufacturers.

The practice of granting patents to business methods is antithetical to the core concepts of intellectual property rights. Patent protection is afforded to novel creations which have industrial and technical application. A business method can be understood as an effective method of conducting commercial transactions. These methods are a result of business instinct and creativity. An external ‘patent’ incentive is not required to motivate the creation of such methods. Competition and first mover advantage are mechanisms that have ensured that novel business methods are created continuously. Moreover, such methods are purely transactional in nature, lacking in physical instantiation and hence not patent eligible. Despite the apparent clarity on the treatment of such subject matter, software, a gift of the Information Age, has confused our understanding of business methods. This confusion is evident in the leading US cases – State Street Bank Co. v. Signature Financial Group Inc. and In Re Bilski, where the court grappled over whether a business method executed through software could amount to a patentable ‘invention’. Even the Agreement on Trade-Related Aspects of Intellectual Property Rights (‘TRIPS’) does not address this ambiguity. In contrast, the Indian law, under § 3(k) of the Indian Patent Act, 1970, clearly excludes granting of patents to business methods. Despite this express exclusion, along with the Competition Act, 2002 and the Yahoo v. Controller of Patents decision, our empirical study shows that the Indian Patent Office still grants patent protection to business methods! The paper seeks to address these issues in detail and suggests that judicial decisions and legislative provisions be reconsidered so that the disparity between law and practice in India can be addressed in an expeditious manner.

The decision of the Bombay High Court in Vodafone’s challenge to a $1.7-billion tax notice served on the company related with the acquisition of majority stake in Hutchison Essar Limited has wide ramifications for large, cross-border transactions. The ruling states that the Income Tax Department has the jurisdiction to send notice to Vodafone to pay Rs 12,297 crore as tax liability for its 2007 Hutch- Vodafone deal. It based its ruling on the reason that Vodafone’s transaction with Hutchison Telecommunications International has a nexus with India which is enough to hold its payments subject to withholding tax under § 195 of the Income Tax Act, 1961. It is the aim of this article to analyze the ruling of the Court with regard to § 195. The article seeks to prove, firstly, how the Vodafone transaction did not have any nexus with India enough in the eyes of law to tax it under the Act. Subsequently, the authors will attempt to draw attention towards the much ignored test of nationality which should be utilized in interpreting § 195 and its provisions dealing with withholding tax on payments made to non-residents.

Many negotiators—as well as their clients—hold fast to the traditional, adversarial approach to negotiation as necessary to achieve maximum gains while avoiding exploitation by their opponent. This approach has been proven ineffective in many negotiation situations and may contribute to adverse effects to the psychological well-being of both the practitioner and the client. This paper advocates the application of therapeutic jurisprudence principles to the techniques of negotiation, much in line with the gradual evolution the field of negotiation has experienced towards minimizing adversarial methods. A therapeutic jurisprudence approach involves a more collaborative process integrating aspects of the social sciences to more effectively address the needs of the client, maximize the bargaining zone, and reduce inimical aspects of conflict resolution. This process attains greater overall gains and increased satisfaction with the process and results achieved. While many of the examples herein focus on the American legal system, the concept of therapeutic jurisprudence is a universal one which could offer significant benefits to any adversarial-based system, including that of India.

The National Identification Authority of India Bill (‘the Bill’) leaves many things unsaid. It has delegated most key areas relating to the institution of the system of unique identification (‘UID’) numbers (officially known as ‘aadhar’ numbers) to rules to be framed by the authority subsequently. Its definitions are almost all open-ended. Right from the public announcement of the project, to the drafting of the Bill, the furore over the introduction of this system of identification has only been growing. Those critical, as well as those in support of the project have based their opinions on the various hypothetical outcomes they believe this project could have on welfare schemes, privacy of individuals and indeed, the nature of governance in India. Such critiques are based on the ambiguities in the law and a suspicion that such ambiguity will prove to be particularly dangerous with respect to information privacy. In this context we will examine the exact contours of what this draft legislation does say, and the system of identification it envisions. Whether inevitable privacy concerns arising out of such a data collection excercise have been dealt with in a meaningful and comprehensive manner and furthermore, the manner in which the national security rationale has manifested itself in the project as well as the legislation.

Rent Control has been one of the foremost welfare measures that have survived in India. The governments of various countries have tried from time to time to make sure the laws are apt to meet the requirements. In the first decade of the 21st century, however, rent control has been seen as an obstacle to urban reforms. The paper takes a look at the extant legal regime and the proposed changes. It needs to be noted that the proposed reform was introduced in the form of the Model Rent Control Legislation in 1992, yet only five states have implemented the same. The only upside is that about ten states have proposed bills as of 2010. In the course of this paper we attempt to analyse as to what extent the proposed changes tackle the problems faced under the extant regime. Further, in light of the examples put forth by the existing states that have implemented new age laws, we seek to suggest improvements.

This paper discusses the problem of international child abduction by parents, a growing phenomenon owing to several reasons. It discusses the attempts made through the Hague Convention and points out the shortcomings of the Convention in dealing with the problem. It is argued that the ambiguity in and varying interpretations accorded to the treaty provisions, undue delays in enforcement of judgments and the limited acceptance of the Convention largely undermine the effectiveness of the Convention.

Tribunalisation has been accorded constitutional legitimacy by the courts in India. It has evolved from serving as an alternate institutional mechanism, to one that is integrated within the judicial framework. However, even in their supplemental roles, tribunals have been used as a tool by the executive to undermine judicial independence. It is in the background of such unfettered transfer of judicial power to quasi-judicial bodies, and the Copyright (Amendment) Act, 2012 that the paper examines the constitutionality of two specific tribunals, namely, the Copyright Board and the Intellectual Property Appellate Board. The two bodies are vested with judicial powers to effectively discharge their functions. Their competence is however undermined by their lack of independent and transparent mechanisms. The Copyright (Amendment) Act, 2012, while claiming to enhance the competence of the Copyright Board, seems to have done little to iron out the constitutional infirmities. In fact, its silence on specifications of stringent qualification requirements for the members of the Board and the issue of their tenure only seeks to increase the infirmities. The issue is further compounded by the fact that the Amendment seeks to vest the Board with unbridled powers. In order to ensure effective adjudication, the systemic overhaul of these infirmity ridden institutions is imperative. The law should strive towards structuring a transparent and an independent institution, as opposed to one with unbridled powers but no mechanism to control such power.

With enhanced access to cheaper communication technology, a large majority of the public has moved from being mere passive consumers to active creators and re-mixers of content. The Copyright (Amendment) Act of 2012 has also extended the ‘ fair dealing’ provision to all works. In this context, a crucial question that arises is what constitutes ‘ fair dealing’ of cinematograph films and sound recordings, especially in the context of ‘criticism
and review’. This paper examines the ambit of ‘criticism’ and the extent to which re-contextualised works such as parodies would be protected as a critique of the original. The provision for fair dealing is also analysed through the prism of the right to freedom of speech and expression. The possibility of conflict between the moral rights of the author of a work and the fair dealing provision is also explored. Through this paper, the author argues for a wider reading of the term ‘criticism’ along with the recognition of quotation rights, to ensure that the grant of the copyright does not become an unreasonable restriction on free speech and expression.

Libraries, especially those which are universally accessible and funded by the state, have been seen as important means to democratize access to knowledge, and have gained renewed relevance in the information age as agents through which the digital divide can be addressed, particularly in developing countries. India’s system of statutorily established libraries has seen considerable State attention since independence through policymaking,
legislation and financial investment through the successive Five Year Plans aimed at ameliorating infrastructure. Nevertheless, much still remains to be achieved. Creating the legal infrastructure as well as the technological edifice for an effective, sustainable and relevant system of public and national libraries, is crucial for ensuring that these institutions are capable of preserving and sharing content (whether it is books, art or audio and/or visual content) effectively. This paper examines the amended Indian Copyright Act, 1957 for its compatibility with the project of modernizing our libraries, and attempts to suggest how the vacuum should be filled in.