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The inability of the Copyright system to effectively respond to the challenges posed by digitalization and the Internet

  • adj
  • March 1, 2021

Introduction:

The evolution of technology has been one of the most exceptional doings of the human mind. Digitalization has unlocked numerous gates for opportunities in various fields, be it communication, health or education. The most important aspect of this evolution is the Internet.

The Internet consists of all the information one may need, like books, music, news, as everything is  just a click. Though most of this information is available for free, there are some that require payment.. The Internet is like one big library but without any librarian, which poses a great threat for Copyright infringement as nobody keeps track of what information is being used on the internet and how it is being used.  Digitalization and the Internet have made it very handy to replicate and sell the work of a copyright proprietor without his permission, the detection of  which becomes difficult. This has posed a great threat to the right of the copyright proprietors or creators.

Challenges posed by Digitalization and The internet:

The Internet has been one of the significant dangers to copyright for quite some time now. The data accessible on the web has changing levels of copyright protection. The plethora of information attainable on the internet makes it hard to identify whether the work is a replication of protected work or not. There is a common misconception that the information retrieved via the internet on a public domain can be freely copied unless the information has been accessible by the government, or the term for copyright has terminated, or the holder of the copyright has given up his right.  Infringement of copyright on the internet can be done by downloading and uploading the copyrighted information on the Internet or by hot-linking which usually involves linking the hosting website of the image and displaying the image on another website.

The prime example of using copyrighted information is books and movies. Due to digitalization and the Internet, paperback books can now be converted into E- books and can be easily saved in millions of copies in a device smaller than a matchbox, However, because of the accessible nature of the Internet, people copy the book and upload it on the internet for people to read for free. This leads  not only to infringement of copyright but also deprives the authors of the monetary benefits they are to get out of their work.

The same goes with movies, there have been many instances in the past where the movie has been pirated before or after the release in theaters and has been made available on the internet for people to watch free of cost.

Preventive measures against Infringement of copyright on the Internet:

Some of the preventive measure which ensures the rights and interest of owner are mentioned below:

1.Digital watermarks

Watermark is planted on the original work of the author so that the unauthorized duplication of the work can be spotted. It is one of the easiest ways to shield the work of the creator as it helps the owner to track his work and prevent it from being copied.

2.Copy and Access control

There are many software that enable a creator to check on the illegal or free use of his work.

3.Blockchain Technology

It is a highly secure decentralized public ledger that is used to record the exchange between peers. In each transaction that occurs, the parties consent to encode the details into the block of digital data which is identified. Due to its unique function, it is known as an exceptional technology to resolve the problem of copyright on the Digital domain.

Conclusion

With digitalization, many opportunities have been created for the creators to showcase their work and creation but on the flip side of the coin, it has also raised many concerns about infringement of the copyrights. Although, several measures have been taken on both National and International levels to subside the infringement of copyrights on the digital domain. However, there is a lot that still needs to be done. At the national level, it is essential to create awareness among the people to prevent infringement by training the enforcement agencies and developing proper mechanisms whereas, at the International level, it should be ensured that provisions under treaties and conventions are being complied with.

 

 

Trade-Related Aspects of Intellectual Property Rights: A Viable Tool for the Enforcement of Benefit Sharing

  • adj
  • February 25, 2021

Introduction

For the past two decades, benefit-sharing has been a consistent topic of debate in international conferences, acquiring increasing importance in international law, the medical profession, and political philosophy. Although, despite this increasing significance the concept of benefit-sharing is not free from controversies regarding its definition and enforcement through different tools, e.g. TRIPS. Hence, this article aims at examining the definition and vital tools for the enforcement of benefit sharing.

What is Benefit Sharing?

Benefit-sharing finds its root in the Convention on Biological Diversity (CBD) (United Nations Convention on Biological Diversity, 1992) and Nagoya Protocol, 2011. It is an international public law system, the main objective of which is to equitably distribute benefits derived from genetic resources between the genetic resource users (such as biotech companies or universities) and the country that provides the genetic resources. For example, the latex of a tree from Calophyllum species, found in the Malaysian rainforest is used for the development of compounds called Calanolides, which is used as a potential treatment for HIV (type 1) and certain types of cancer by many pharmaceuticals companies. Therefore, the benefits arising from that compound are to be distributed fairly between the regulatory authorities of Malaysia and the pharmaceuticals companies.

Benefit-sharing includes sharing the results of research and development carried out on genetic resources. It may also involve monetary benefits if the product based on genetic resources is commercialized.

TRIPS: A tool for enforcement of Benefit Sharing? 

The main objective of CBD, along with the conservation of biodiversity and sustainable use of biological resources, is the enforcement of fair and equitable sharing of the benefits deriving from the utilization of genetic recourses. However, as directed by the terms of the TRIPS Agreement, granting of intellectual property rights over biological diversity has been the subject of a worldwide dispute. The role of Intellectual Property Right in the application of value sharing is unclear and there is a variation in the objectives of TRIPS agreement and CBD.

In fact, Article 16(5) of the CBD acknowledges that IPRs can have a negative impact on the application of provisions of CBD and therefore urges the parties to cooperate to ensure that IPRs are approving of CBD objectives and do not restrain those objectives.

Following are the necessary matters where TRIPS Agreement may and will impede the CBD:

  • Conflict of rationale, origins and overall foundation

There are evident distinctions in origins, rationale, and overall foundation of the CBD and the TRIPS Agreement. The CBD was established mainly because of the increasing concern over the quick loss of biodiversity all around the globe, to uphold the rights of local communities that preserve and develop the knowledge, to regulate the sharing of value arising from the conservation and sustainable use of biodiversity. On the other hand, TRIPS is based on commercial objectives that mainly profit strong private firms.

  • National sovereignty vs. IPR holders rights

CBD has enshrined the principle of national sovereignty in which countries are entitled to govern the access of biological resources and knowledge to foreigners, and to determine benefit-sharing arrangements. However, TRIPS allows foreign institutions to patent a country’s biological resources. TRIPS facilitates the implementation of conditions for misappropriation of ownership or rights over living organisms, knowledge and processes relating to the exploitation of biodiversity and developing countries’ sovereignty over their resources and over their right to exploit or use their resources, as well as to determine the arrangements for access and benefit-sharing, is undermined.

  • Community rights vs. Individual rights

It is recognized in the preamble of TRIPS that “intellectual property rights are private rights”. Patents grant the proprietor exclusive rights to prohibit the production, use, offering for sale, sale, or import of the patented product by third parties and prevent the use by third parties of the patented process. According to TRIPS, IPRs confer private ownership over the rights to produce, sell or use the product or use the process. This makes it an offense for others to do so, except with the permission of the owner, which is usually only granted upon license or royalty payment.

Therefore, IPRs have the impact of forbidding the free exchange of information as well as the use or production of knowledge items. This system of private and exclusive rights is in distinction with the conventional social and economic system in which local communities nurture, create, and use biodiversity.

  • Arrangements for Value & Benefit Sharing

CBD acknowledges states’ sovereign rights over their information and biodiversity. This helps the state to impose its rights over value-sharing agreements. Where the access is granted, it shall be on mutually agreed terms (Article 15.4), which shall be subject to prior informed consent      (Article 15.5) and it is also stated that countries providing the resources should participate in the scientific research( Article 15.6). On the other hand, in TRIPS, there is no requirement for the patent holder to share benefits with the state or populations in the countries of origin for claims relating to biological resources or to relevant information. Indeed, there is nothing that a country of origin can do to enforce its benefit-sharing rights recognized in the CBD if an individual or company were to obtain a patent in another country based on a biological resource or related information from the country of origin. Therefore, in accordance with TRIPS, there is nothing that can be done by the country of origin to ensure that there is no bio-piracy or that a remedy can be sought if it happens when the laws relating to patents, the administration of permits, or the courts of a particular country work in a context favorable to the issuance of such patents.

Conclusion

In the light of the information mentioned above, it can be concluded that to be a vital tool for the enforcement of Benefit Sharing, the TRIPS agreement has a long way to go as it puts profit of private firms, private rights, and commercialization over community rights, national sovereignty and sustainable use of biodiversity.

In the review of TRIPS, changes should be made to bring the scope of the exclusion of biological materials and processes in line with environmental and ethical considerations. There is a need to prevent bio piracy, and to interpret the possibility of sui generis for plant varieties to include the protection of traditional knowledge. Therefore, with these amendments TRIPS will be more in line with the spirit of the CBD and will not run counter to its objectives.

Ministry of Economy launches National Strategy for Intellectual Property

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  • February 20, 2021

Introduction

On the event of 50th anniversary of the Brazilian Patent and Trademark Office (BPTO), Carlos Da Costa, the Secretary from the special Secretariat for productivity, Employment (SEPEC) along with the special body of the Ministry of Economy (MoE) launched the National Strategy for Intellectual Property (ENPI) on 11th of December 2020.

BPTO

INPI- Brazilian Patent and Trademark Office (BPTO) was created in 1970. It functions as a subordinate to the Ministry of Development, Industry and Foreign Trade. The main aim of the body is to implement the rules modulating the Industrial Property while considering the technical, social, judicial and economic purposes. The institute also provides for various IP registrations in the country such as Patent and Trademark registration, industrial design registration, Geographical Indication registration etc.

ENAPID

The day also marked the culmination of the Academic Meeting on the Intellectual Property, Innovation and Development (ENAPID). The event was held online 9th  to 11th  December, 2020. It is regarded as one of the important events of Intellectual Property and innovation in Brazil. The theme for ENAPID 2020 was “INPI of the Future – INPI+ 50”.

During the course of the meeting, various strategic projects undertaken by the BPTO were discussed in detail. Followings are current projects undertaken by the BPTO:

  • The plan for tackling the issue of Patent Backlog
  • The IP Digital Plan, aiming at modifying BPTO services to electronic environments
  • The BPTO Business Programme,  aiming to advance the inception of new IP assets by the citizens of the country
  • The operationalization of the Madrid Protocol

National Strategy for Intellectual Property

The aim of ENPI is to establish an efficient and effective IP system throughout the country. The objective is to foster creativity and investment in innovation in order to increase the socioeconomic development and competitiveness in the country.

During the course of its enactment the main problems and challenges of IP in the country were identified and was scrutinized  into the seven lines of action on which the ENPI is based. They are the following-

  1. To increase competition and development
  2. Providing trainings and qualifications in IP
  3. Governance and institutional buildup
  4. Upgrading the laws
  5. Compliance and legal certainty
  6. Future vision and Intelligence ‘
  7. Introduction of Brazil into the IP Global World

Each line of action for the consist of various group acts which are aimed at attacking the issue of IP problems and challenges that the country is facing. In total of 210 actions are enacted in order to modify the IP system of the country.

The detailing of the activities proposed in the ENPI will be done as per the priorities identified by the public during the public consultation phase and with the government. Further it will be organized in the pioneer action plans which aim at guaranteed implementation and monitoring of the same. On the basis of the end results and suggestions necessary amendments and introductions would be inculcated in the new plan.

 

GIPI

The National Strategy for Intellectual Property (ENPI) is a result of one year of hard work contributed by a select group of bodies involved  in IP matters (GIPI).  It involved a contribution of more than 220 IP specialists along with 98 contributions of individuals during the public consultation phase. The project also witnessed a great amount of representation and support from the private sector which includes the Brazilian IP Association. The structure and constitution of the GIPI makes it a diverse community of people. The association is chaired by the special Secretary of the Ministry Of Economy, Carlos Da Costa, and comprises of 10 members from various ministries and administrative bodies in the country.

The main goal of ENPI as stated by the GIPI is to establish Brazil among the top countries in respect to protection of IP rights and enabling  80% of the national innovation companies to  protect their intellectual property.


The First Action Plan

The first action plan is estimated to be implemented during the first half of 2021 along with the launching of National Intellectual Property Portal.  Firstly the portal in its initial stage will gather   all the information about the ENPI, letting it process and monitor.  Later the portal will centralize all the Government information and links in relation to intellectual property.

 

 

Covishield Trademark Lawsuit: Court pronounced verdict on 30th January 2021

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  • February 8, 2021

Introduction
The legal dispute over the rightful owner of the trademark for the Covid – 19 ( Covishield) vaccine has gained the attention of the masses over the past few weeks. Cutis – Biotech is a pharmaceutical company which is located in Nanded, Maharashtra. Serum Institute of India(SII) is a world-renowned pharma company based in Pune.

Brief Facts
The suit was filed before the civil court, Pune on 4th January by the Cutis- Biotech seeking an injunction order against the use of the trademark for the Covid- 19 Vaccine by Serum Institute of India. The Serum Institute replied to the application of the injunction against the issue of trademark and the same was listed to be heard by the court on January 22, 2021. On 22nd January, the court had held that it would weigh arguments by both the parties and decide on 30th January.

Legal Issue
This issue came into being because of the alleged infringement of trademark by Serum Institute of India. Cutis- Biotech claimed that they are prior users of the brand Covishield and the use of the same brand name by serum institute would infringe their rights. This case fundamentally revolves around the concept of trademarks which is an integral part of intellectual property rights. Trademarks allow differentiating the goods and services of one company with the other. Trademark may be inclusive of variety in shape, colour or word. In this case, the trademark at dispute is the word ‘Covishield’. The ground for filing the present lawsuit was based on the claim that Cutis- biotech is the prior user of the brand and possess exclusive rights over the word. They further claimed that there can be confusion over the trademark.

SII Contentions
The Serum Institute had submitted its response to the suit and it put forth several contentions which would allow the court to decide on the matter. The SII submitted that the parties at a dispute over the trademark operate in the different category which does not create any kind of confusion in the minds of the consumer.
Further, the Counsel for SII submitted that the claim by the Cutis- Biotech of it being the prior user of the name at dispute Covishield does not hold as SII has applied for the trademark registration in June 2020 whereas Cutis – Biotech made the application in December 2020. The Counsel for SII submitted that the case must be dismissed by the court as the plaintiff did not reveal all the necessary information regarding the application made to the Trademark registry. Based on these contentions, the Counsel for SII claimed that it is SII who becomes the prior user of the trademark.

Plaintiff Contentions
The Counsel for the Plaintiff submitted arguments on the issue of product distinction. The Counsel submitted that there is no necessity for the products to be identical for the purposes of this case to address the issue of confusion over the brand name.

Who gets to keep Covishield- SII or Cutis – Biotech?
Based on the arguments advanced by both the parties, the court rejected the injunction application filed by the plaintiff. The court also made note of the fact that the plaintiff had not disclosed and effectively concealed crucial facts. Further, the court also noted that the plaintiff did not provide enough evidence to show that the use of the term Covishield by the Serum Institute would cause loss to the plaintiff. For these reasons the court dismissed the application and ruled in fovour of Serum Institute.
The plaintiff however intend to file an appeal challenging the order passed by the Pune Court in the High Court after examining the merits of the case. This case has seen one of the biggest pharmaceutical company getting tangled in the technicalities of intellectual property rights, however, owing to the discrepancies on part of the plaintiff SII retains the right to use the trademark.