The Copyright is vested with the Music Companies

The Bombay high court in a landmark judgment has upheld the right of the music companies over a song recording (Click here to view the judgment).  Bombay high court on Monday ruled in favour of the Music Broadcast Pvt Ltd seeking a declaration that the Indian Performing Right Society (IPRS) was not entitled to demand and receive any licence fee or royalty for broadcast of sound recordings on its FM radio stations. The order by Justice S J Vazifdar is a huge relief to FM radio stations and others who play recorded songs, including hotels and discotheques. The FM radio stations that were paying separately to both music producers and copyright societies such as the Indian Performing Rights Society, which administer rights of lyricists, music composers, will now be required to pay only to the music producers — the owners of the sound recording.

Senior advocate Navroz Seervai and advocate Sandeep Marne who represented IPRS argued that once a song is recorded the composers and lyricists do not lose their copyright over the work. They claimed that the owners of the song are only paid to make a sound recording.  They submitted that that while interpreting the provisions the  Court must keep in mind that a sound recording is only a derivative work being derived from the musical and literary work. The musical and literary works are the original works.  The creator of the original musical and literary work ought therefore to be given precedence over the owner of the copyright in a sound recording and the owner of the sound recording must again approach the owner of the underlying works for a licence and pay the royalty if he wants to communicate it to the public by broadcast.

Senior advocate Virendra Tulzapurkar who represented the plaintiff, opposed this argument saying that as the works of the lyricists and music composers are incorporated in a sound recording made by music companies, it is these companies who exclusively own the copyright over such recordings. The IPRS can claim royalty only when the song is performed live or another song is recorded, or the original song is remixed.

The court held that once the author of a lyric or a musical work parts with his copyright by authorising the producer of a sound recording in respect of his work and thereby to have his work incorporated or recorded in the sound recording, the producer of the sound recording acquires copyright, which gives him the exclusive rights.

Justice Vazifdar said, “once the author of a lyric or a musical work parts with a portion of his copyright by authorising the producer of a sound recording to make a sound recording in respect of his work and thereby to have his work incorporated or recorded in a sound recording, the producer of the sound recording acquires by virtue of section 14(1)(e) of the Act, a copyright which gives him the exclusive right stipulated in section 14(1)(e) which includes the right to communicate the sound recording to the public.  A distinct copyright comes to vest in the sound recording as a whole.  I see no reason why if this is the case for cinematograph films, it is not so in respect of a sound recording.” The court also rejected the argument that the music companies are only given the right to make CDs and cassettes and they would have to pay copyright fees if they broadcast the songs, for example through radio.

The Delhi High Court today in Indian Performing Right Society Limited v. Mr. Aditya Pandey and Anr.; CS(OS) 1185/2006 and/or Phonographic Performance Limited and Ors. v. CRI Events Private Limited and Ors. CS(OS) 1996/2009 has given a decision in similar lines.

The Copyright Laws of the U.S. and U.K. provides for the protection of rights of composers and song-writers using the concept of ‘needle-drop’. That is synch royalty becomes payable every time the needle drops on a record player in a public performance. The French copyright law also provides necessary amount of protection for the author. So in a way we can say that the judgement of the Bombay High Court and the Delhi High Court is not in tune with the international approach towards recognising the rights of the author.

The IPRS will most probably challenge the decisions especially when people like veteran lyricist Javed Akhtar are fighting hard to protect the rights of the authors and composers. 

Patenting the Blueprint of Life

“The response of the Hungarian physicist Leo Szilard to my cold spring harbour talk on the double helix was less academic. His question was, “Can you patent it?”...But then as now patents were given only for useful inventions and at the time no one could conceive of a practical use of DNA. Perhaps then, Szilard suggested, we should copyright it.”

-James D. Watson, DNA: The Secret of Life (2003)

Genetics has been identified as one of the technologies most significant to the developing countries. In the past two decades scientists have unravelled the entire genetic sequence of hundreds a organisms including a representative human. This eventually resulted in a stampede of the commercial firms to the US, European and other patent offices around the world to stake claims on the ownership of DNA.

It goes without saying that patented items should amount to an invention. Therefore, opponents of genetic patenting often argue that, legally, genes are not inventions, but discoveries. Though the UNESCO General Assembly adopted a Universal Declaration on the Human Genome and Human Rights, in 1997 which categorically states that no part of the human being can be subject to profit in its natural state, scientists have been able to isolate and purify genes. The UNESCO Declaration does not dispute the existing patenting of isolated sequences. This raises a question whether such modified genes be considered as patentable? This leads us to explore the legal facets of genetic patenting.

Living organisms were not patentable as life forms were considered a “product of nature” and not a human invention. The non-patentable status of living organisms changed with the 1980 landmark United States Supreme Court case Diamond v. Chakrabarty. The court decided in a narrow 5-4 decision that a strain of bacteria that had been modified by the insertion of new genes was patentable because it was not naturally occurring and was modified. This was a defining moment in advance of Genetic Patenting

The components of life forms that are patentable and patented under existing patent laws are:

o   An invention regarding plants or animals if the implementation of the invention is not limited to a particular species of plant or breed of animal.

o   Microbiological procedures and the products of such a procedure.

o   An isolated or synthesized part of the human body even if it is identical with the natural part.

o   A gene found in the body that is speculated to have a particular function is not an invention but a discovery and hence not patentable. But if function of the gene is studied and it is isolated from its normal environment in which it functions and give it a new task by making alterations in it as a medicinal product or a diagnostic instrument, it is an invention that can be protected by a patent. The industrial use of a gene sequence must be clearly stated in a patent application, if it is a subject matter for an invention.

The patentability of genes and other nucleic acid sequences is justified on the ground that they have been subject to gene sequencing, a microbiological or nonbiological process, which is itself a standard process which is patentable. So, nucleic acid sequence itself and its function are actually patented.

The International Approach

Patenting of genes is permitted in many countries around the globe including, United States, Japan, Germany, and France. In U.S As per law, in order to receive a patent on a gene sequence, the patent application must satisfy the requirements of novelty, utility, and non-obviousness.

The landmark decision by the U.S. Supreme Court in Diamond v. Chakrabarthy laid down the law on patenting in 1980.  In this case, Chakrabarty sought a patent for a genetically engineered bacterium that could break down oil and thus help to clean oil spills. The basic question facing the court was whether living organisms can be patented. The court ruled that genetically modified organisms will be considered living matter. Prior to 1980, life forms were considered a part of nature and were not patentable. However, in this case, the Supreme Court granted patenting of human-made, genetically engineered bacterium which is capable of breaking down multiple components of crude oil. This decision by the US Supreme Court heralded a new era in which living organisms could be patented. Amgen Inc. v. Chugai Pharmaceutical Co. became the second case to confirm the patentability of living organisms. In this case, the United States court confirmed that isolated genes should be considered in patent law like other chemical compounds

American courts usually uphold the patentability of genes if an inventor isolates and purifies the substance, given that it meets other patentability criteria. As well, it appears that adding commercial or therapeutic value to an isolated and purified naturally occurring substance increases its patentability. About about 3,000 to 5,000 patents on human genes have been granted in the United States. At first blush it seems odd to patent a gene, which is why the practice has been controversial since it began nearly three decades ago.

In general, raw products of nature are not patentable. DNA products usually become patentable when they have been isolated, purified, or modified to produce a unique form not found in nature. The Unites States Patent Office (USPTO) has 3 years to issue a patent. In Europe, the timeframe is 18 months. The USPTO is adopting a similar system. Patents are good for 20 years from filing date. Most DNA-related patents are issued by the USPTO, the European Patent Office, or the Japanese Patent Office.

The Indian Approach

In 1995, India joined the World Trade Organization (WTO) and automatically became a signatory to the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

The Indian Patent Act excludes a definition for micro organism thus not clarifying whether human genes, such as DNA, may be patented. Therefore, the term microorganism needs to be defined. A number of jurisdictions considered the issue, allowing for the opportunity to examine their precedents in search of a variable definition. Europe, the United States, and Japan hold well-developed patent laws regarding genes, providing an available review. Like Article 27.3(b) of TRIPS, sections 3(j) of the Indian Patent Act provides that: 3(j) : plants and animals in whole or any part thereof other than micro organisms but including seeds, varieties and species and essentially biological processes for production or propagation of plants and animals. The Act excludes plants and animals, in whole or any part thereof, including seeds, varieties, species, and biological processes for production or propagation of plants and animals, but not including microorganisms, from the list of patentable inventions.

India debated the patentability of microorganisms until the judgement of the Calcutta High Court, in Dimminaco AG v. Controller of Patents. This case supports microorganisms as patentable subject matter. Here the Court held that the law did not bar the processes ending in the creation of a living thing. The world community generally accepts the landmark Indian judgment as in consonance with world patent practice. Hence, it can be safely concluded that microorganisms are patentable subject matters in India as long as they meet the patentability criteria.

Coming to Genetic Patents or DNA Patenting, the word gene or DNA does not appear anywhere in the Indian Patent Act nor there is any special directive issued by GOI for according legal protection to Biotechnology related inventions. The only reference for the same can be found in the Examination Manual Chapter 8 which deals with Examination and Grant of Patent applications.

In Manual of Patent Office Practice and Procedure as modified on March 22, 2011,  Chapter 8 which deals about Examination & Grant, Under the head Unity of Invention it is said that Independent claims of different categories may relate to a single inventive concept. For example: In case of a genetically modified Gene Sequence/ Amino Acid Sequence claims may be directed to a Gene sequence / Amino Acid sequence, a method of expressing the sequence, an antibody against that protein / sequence, a kit containing such antibody / sequence.

The manual is not a binding document as it is not issued under any provisions of the Patent Act, but serves as an informal written guidance for the Examiners at the Patent office.

Concerns and Solutions

Patenting of genes clearly continues to be the most controversial of all kinds of patenting. Research scientists who work in public institutions often are troubled by the concept of intellectual property because their norms tell them that science will advance more rapidly if researchers enjoy free access to knowledge. By contrast, the law of intellectual property rests on an assumption that, without exclusive rights, no one will be willing to invest in research and development.  Numerous ethical and legal arguments discourage patenting of genes. Some experts hold that patenting of genes offends morality and that, in any case, genes do not qualify, legally, for patenting. Another argument against genetic patenting is that ownership of genes by one party may discourage investment in research on the same gene by another party. Genetic patents may also result in a situation private laboratories may be unable to offer diagnostic tests due to costly licence and royalty fees. It might also result in high production costs which may pass on to the consumer, thereby making genetic drugs and tests unaffordable and inaccessible. As the genetic research is in its nascent stage, granting patents to fragmented genes ultimately limits access to genetic information for further research. Patents are meant to "promote the progress of science," but patents on human genes arguably do the opposite. Genetic patenting has both positives and negatives. It can be summarised as follows.

Advantages of Genetic Patents:

o   Researchers are rewarded for their discoveries and this will be beneficial for further research.

o   Attracts investors to invest in research and development.

o   Duplication of effort can be prevented.

o   Research is forced into new, unexplored areas.

o   Reduction of Secrecy which eventually results in advancement of research

Disadvantages of Genetic Patents:

o   Will result in monopolising of research and development.

o   Limits Access to Genetic information and further research.

o   The possibilities of Genetic information are still unexplored to a large extent.

o   The costs associated with diagnostics and therapeutics is likely to go up which can squarely affect the common man as well.

o   Lenient rules may lead to frivolous patenting and ever greening of the inventions.

o   Such patents make important products more expensive and less accessible.

The Patents Act allows compulsory licence to be granted when the reasonable requirements of the public with respect to the patented invention have not been satisfied or when the patented invention is not available to the public at a reasonably affordable price. Provisions of the Competition Act, 2002 can be invoked when an enterprise abuses its dominant position in the market. India should soon adopt guidelines similar to those of the USPTO, ensuring a strict vigilance of the utility criteria, preventing frivolous patenting. There are genes with unknown functions and this will help in preventing patenting of genes with unknown functions.

India being a developing country, the Government should ensure that a balance is created between public access to the pharmaceutical inventions and innovations with that of an incentive driven system of patent protection that would ensure continuing investment in such fields. A comprehensive Patent Act which ensures that both public interest and patent holders will go a long way in this exercise.

Well, if you want to know more on DNA Patenting all I want to say as of now is D.N.A~ Do Not Ask. ;)

Supreme Court issues notice to ban tinted glass in cars and other vehicles

The Supreme Court on Monday issued notices to the Centre asking why the use of tinted glass in cars and other vehicles should not be completely banned. The notice was sent by a bench headed by Justice S H Kapadia.

Petitioner Avishek Goenka who brought up the PIL, through advocate Shiv Sagar Tiwari said most crimes, including sexual assault on women, were committed by offenders who used cars with tinted glasses to evade public gaze and conceal their identity. Such glasses make it virtually impossible for the police as well as public to identify the offender or to notice the crime.

The Delhi HC in 2007 had lifted the ban of usage of tinted glasses. Previously, the traffic police have been clamping the Clause 100 of the Central Motor Vehicles Rule and fined Rs.100 only under Section 177 of the Motor Vehicles Act. Earlier in 2006, a division bench of the Delhi High Court headed by Justice Mukundakam Sharma had directed the Government to amend the Motor Vehicles Act making it more stringent for the offenders who have vehicles with tinted glass or dark films on the windows and had also asked the Delhi Police to frame guidelines to punish the owners of the vehicles having tinted glass or dark films beyond the permissible limits.

Clause 100 of the Central Motor Vehicles Rule says,

Safety glass.—(1) The glass of windscreens and the windows of every motor vehicle [other than agricultural tractors] shall be of safety glass:  Provided that in the case of three-wheelers and vehicles with hood and side covers, the windows may be of [acrylic or plastic transparent sheet.]

Explanation.—For the purpose of this rule,—

(i) "safety glass" means glass

[conforming to the specifications of the Bureau of Indian Standards or any International Standards [* * *]] and so manufactured  or treated that if fractured, it does not fly or break into fragments capable of causing severe cuts;

(ii)  any windscreen or window at the front of the vehicle, the inner surface of which is at an angle [more than thirty degrees] to the longitudinal axis of the vehicle shall be deemed to face to the front.

[(2) The glass of the windscreen and rear window of every motor vehicle shall be such and shall be maintained in such a condition that the visual transmission of light is not less than 70%. The glasses used for side windows are such and shall be maintained in such condition that the visual transmission of light is not less than 50%, and shall conform to Indian Standards  [IS: 2553— Part 2—1992];

[(3) The glass of the front windscreen of every motor vehicle [other than two wheelers and agricultural tractors] manufactured after three years from the coming into force of the Central Motor Vehicles (Amendment) Rules,  1993 shall be made of  laminated safety glass:

 [Provided that on and from three months after the commencement of the Central Motor Vehicles (Amendment) Rules, 1999, the glass of the front windscreen of every motor vehicle other than two-wheelers and agricultural tractors shall be made of  laminated safety glass conforming to the Indian Standards IS: 2553—Part 2—1992.]

Explanation.—For the purpose of these sub-rules "laminated safety glass" shall mean two or more pieces of glass held together by an intervening layer or layers of plastic  materials. The laminated safety glass will crack and break under sufficient impact, but  the pieces of the glass tend to adhere to the plastic material and do not fly, and if a hole is produced, the edges would be less jagged than they would be in the case of an ordinary glass.

 [(3-A) The glass of the front windscreen of a construction equipment vehicle manufactured after 3 years from the date of commencement of the Central Motor Vehicles (Sixth Amendment) Rules, 2000 shall be made of laminated safety glass.] 

(4) Notwithstanding anything contained in this rule if the Central Government is of the opinion that it is necessary and expedient to do so in public interest, it may, by order published in the Official Gazette, exempt  [any motor vehicle including construction equipment vehicle] for use by any person, from the provisions of this rule]

The Central Motor Vehicle Rules, 1989 provides that glasses of windscreen and rear windows of vehicles should have a visual light transmission of 70% and for side windows it should be 50%. Whoever contravened this provision was fined under Section 177 which is the general provision for punishment of offence under the Motor Vehicles Act and the fine extended up to Rs. 100 for the first offence and up to Rs. 300 for subsequent offence.

Rapes and molestations that happen during night will be unfazed by this change and the question as to whether this will be a futile exercise  has to be time tested.