Articles

A careful consideration of the fundamentals of the mind’s creative processes shows us that arriving at an intellectual property (IP) is effectively like issuing a ‘share’ in IP’s business of exploiting knowledge and information. In consonance with Mr. Buffet’s philosophy that price of a company’s share should not be considered indicative of the value of the company, the process of creating an IP is not an appropriate indicator of the value of the IP. Therefore, an IP’s true value is determined by the quality of knowledge or information embodied in a creative work or an invention itself and not necessarily by the process utilized to arrive at it. It is also more accurate policy-wise to base protection of an IP upon the value of the creation or invention rather than on the process used to arrive at that IP

Electronic storage of medical records has exposed individuals to the risk of identification at various stages of data collection and data processing. Two options are available to data-miners: to either anonymise information that poses a risk of identification or make such information available to physicians alone. The second option is no longer feasible in a world where the physician-patient relationship is complicated by the presence of other stakeholders, such as insurers and pharmaceutical manufacturers. Finding the proverbial middle path is the only solution to the ethical dilemma posed by the appropriation of patient information for marketing purposes. This paper presents an overview of various data protection regimes, followed by an analysis of the Indian position on data privacy. After the enactment of the 2011 regulations on the processing of personal information under the Information Technology Act, 2000, there is hope that corporations operating in India will comply with international best practices for the fair and lawful processing of personal data.

The essence of any democratic system is the healthy functioning of political parties and, consequently, free and fair elections. Conducting fair elections requires not only a legal framework and a transparent electoral process, but an institutional structure regulating campaign finance which adequately ensures that governance caters to the welfare of general public and not special interests. This is true not only for India but for any other democratic country as well. This paper recognises the far reaching impact of campaign financing on future governance after elections. It argues that most of the vices prevalent in current campaign finance system of India can be dealt with by doing away with expenditure limits and by introducing contribution limits in its place. However, without transparency in conduct of the political parties and their candidates, these measures will not have much positive impact. Transparency, through the full disclosure of campaign financing policies and practices, provides the ability to verify that no malpractice has occurred and that regulatory frameworks are being effectively implemented. This paper, therefore, simultaneously argues for a systematic change in electoral law to promote transparency in the financing of election campaigns in India.

This paper critically examines moot court as a pedagogic tool to introduce law students to judicial processes. The purpose is to evaluate whether mooting, as a non-mandatory part of legal education in India, is successful in creating a cadre of competent and creative lawyers in the Bar. There are two inquiries which inform this endeavour—first, the normative structure of moot courts and the inherent limitations of it; second, the experiential flaws of mooting in the Indian context. Since mooting reinforces the rigours of adversarialism in the Indian legal education and subsequently in the judicial working, this aspect is queried to demonstrate the difficulties in embracing the moot court paradigm uncritically. Whilst a lot of Western literature has been helpful in theorising on the structure and purposes of moot courts, there are suitable connections and comparisons made with the pan-Asian approach and the Indian counterpart. Though the theoretical and functional limitations of mooting are explored particularly in the Indian perspective, the lessons can be instructive in other contexts as well—especially those jurisdictions which battle to create a system of practical legal education through mooting which is both enriching for law students and at the same time, worthwhile by itself

In a momentous development, the Indian Copyright Act, 1957, was amended to introduce one of the most progressive provisions ever in the history of global copyright law. These amendments seek to foster access to copyrighted works for the disabled by providing for the conversion and distribution of copyrighted works without the risk of copyright infringement. It is important to appreciate that these amendments did not emerge overnight. Rather, they were the culmination of more than a decade of advocacy, by a group of dedicated campaigners drawn from a diverse set of stakeholders, including leaders of the disability community, civil society activists and the academia. This paper provides a ringside view of the evolution and progress of the campaign, with its final culmination in the amendment. It tracks the advocacy effort through the lens of ‘new social movements’, and focuses on the need to bring together different stakeholders with complementary skills to achieve shared goals of public interest. Additionally, this paper reflects upon the scope of the amendment, the current international efforts to secure a global treaty on this count and India’s role in shaping it.
The authors of this paper were an integral part of the advocacy campaign and worked extensively with several others to secure the introduction of this critical amendment. Unfortunately upon completion of this paper, we lost the most committed campaigner of all, Rahul Cherian. This paper is dedicated to his memory and the boundless passion and enthusiasm with which he brought so many of us together in his quest for creating a better world for the disabled. Over the last few years, Rahul worked tirelessly to champion the cause of the disabled in India and achieved commendable progress on several fronts. However, the copyright amendment will rate as his crowning glory, given the rather difficult political terrain that had to be traversed. Rahul is to be credited for providing a fresh fillip to the advocacy campaign and mediating differences between a diverse set of people with different skill sets, ideologies and expectations and ensuring that they worked together as ‘one’ team with a common goal.

Madhya Pradesh has gained its fair share of media attention of late owing to the unethical drug trials being conducted on mentally challenged patients and children in the ‘heart of Incredible India’. In the wake of these trials, the Swasthya Adhikar Manch, an Indore based NGO, has filed a public interest petition in the Supreme Court. The Court has issued notice to the Central Government and the Government of Madhya Pradesh and though the matter has been listed for hearing on a future date, the legal limbo surrounding clinical trials needs immediate and serious consideration. According to the public interest petitions, 1727 people have died during drug trials between 2007 and 2010. Art. 21 of the Constitution does not allow for the deprivation of life and personal liberty, except according to the procedure established by law. In the absence of any binding law to regulate clinical trials, one would question the safeguards conferred to protect the rights of the subjects of these clinical trials, who are more often than not, the impoverished strata of the Indian society.

This paper will explore in suitable depth, §65A which has introduced anticircumvention provisions into the Indian copyright law. It will begin with an introduction into the relevant terminology and scope of DRMs, TPMs and RMIs, and the typical issues associated with the introduction of anti-circumvention laws. After identifying and examining these issues, this paper will undertake a legal analysis of the problematic phrases in §65A, namely, ‘effective’, ‘purpose not expressly prohibited’, ‘intention’ etc; and examine whether the Copyright (Amendment) Act, 2012 suitably addresses the issues that typically arise from the introduction of anti-circumvention laws. Next, the liability regime itself and the wisdom in introducing criminal penalties as opposed to civil statutory damages (paid to copyright owners) are discussed. This is followed by examining the politics associated with the Amendment including the lack of any international obligation to enact the same. Further, pressure groups and representations made by different stakeholders in the Standing Committee Report are given due consideration to understand the differing interests at stake. Finally, the paper undertakes an analysis of whether the balancing act sought to be achieved between industry and consumer interests has been realised through this Amendment

It is a widely acknowledged reality that the Supreme Court today faces a crisis in the form of a severely over-burdened docket. This paper argues that, while the existence of the problem is well known, its genesis, underlying causes and broader impact are significantly misunderstood. It is in that sense that the crisis remains an unseen one. A core claim of the paper is that the burden on the Court is neither a historical inevitability nor primarily a resource-centric problem. Rather, it is the product of conscious choices made over a period of time by judges of the Court, choices which were shaped and constrained in significant ways by other important factors, but which nonetheless remained conscious choices. This trend is deeply troubling for many reasons, and calls for an urgent exploration of possible models for reform.

Europe has to face the triple challenge of sovereign solvency, liquidity problems and the repercussions of the banking crisis. The Euro zone is pressurised into taking more decisive action on the institutional deficiencies of the European Monetary Union. This paper reviews the European trajectory from makeshift to more comprehensive strategies with resecue mechanisms for countries in distress, including an assessment of the role of the European Central Bank and the conflicting interests of the Member States. A section on the Spanish Recapitalisation Schemes of 2012 and the EU’s policies on recapitalising banks demonstrates the interface between the sovereign debt and banking crises.

This paper looks at the institution of the independent director as a corporate governance tool, and assesses its effectiveness in the Indian context. This analysis assumes significance in light of the fact that the independent director, i.e., a company director who has no ties with the company’s management, emerged in the US against a completely different backdrop, and to tackle a completely different problem than what afflicts Indian listed companies. The problem that the independent director was conceived to tackle in the US is the agency problem between the management and the shareholders resulting from a dispersed shareholding pattern. However the corporate setting in India is marked by the presence of a controlling shareholder, and hence the major corporate governance problem is the conflict between the majority shareholders (who often control the management) and the minority shareholders. This paper finds that while the institution might not have been conceived with this problem in mind, it can nonetheless be adapted sufficiently. The purpose of this paper is to examine whether this adaptation has taken place, and if not what further steps are required at the regulatory or legislative level. In this context, I have made a number of suggestions which I hope will make the independent director a more effective tool.