India: Delhi High Court restrains YouTube from displaying Offending Videos against Tata Sky

The cause of action in the instant case pertains to the interim injunction granted by the Delhi High Court on August 27, 2015, wherein the Honerable Court restrained the Respondents (YouTube, LLC) from using the Petitioners' (Tata Sky Ltd.) trade mark TATA SKY in any manner on their websites and also to remove any material which may be any trick or process to hack into the system of the Petitioner. By the impugned order, the Respondents were directed to remove the video clips "how to watch HD channels free in TATA SKY Trick" or "Hack tata sky for free exclusive" from the Respondent’s websites.

Apparently, pursuant to the aforesaid order, the Respondents have taken down from its website, the URLs of the aforesaid videos.

YouTube’s Prayer in the case

In the instant case, the Respondent was aggrieved and contended that YouTube LLC itself did not violate the trademark TATA SKY as it was not the publisher of any of the complained videos. In view of the said circumstances, the Respondent pleaded to the Court to vacate the injunction as far as YouTube LLC is concerned, however to continue 'John Doe' order issued by it against unknown offenders.

That the Petitioner erred in alleging trademark violation by the Respondent and was unclear about the kind of violation that had taken place.

YouTube’s defence

1. That being an intermediary under the Information Technology Act (IT Act) it is statutorily exempt under Section 79 from liability in respect of any third party video uploaded on the YouTube platform.
2. That impugned videos were created, uploaded and made available by third party users on YouTube and not by YouTube itself.
3. That under the provisions of the IT Act, an electronic record sent by an originator or even a person acting on his behalf, is attributed to the originator alone and not the platform provider.
4. The relief as prayed for, if allowed, would impose an unfair burden on YouTube to shift through and filter millions of videos available on YouTube belonging to third parties and decide whether such videos are infringing the trademark, copyright or other proprietary rights of the Petitioner. This would be contrary to the letter and spirit of Section 79 of the IT Act which requires an intermediary to be "content neutral" to any video/content uploaded on its website and simply follow a "notice and takedown" or a "receive and react" mechanism in relation to any complaint.

Contentions forwarded by Tata Sky

1. That YouTube LLC was obliged to act with promptitude once it was clear that the offending videos were illegal, inasmuch as that Tata Sky's STBs could be hacked into through simple steps.
2. The Petitioner made reference to the order of Supreme Court in the case of Sabu Mathew George v. Union of India2016 SC 681 in which it was observed that the intermediaries "cannot put anything that violates the laws of this country."
3. That the policy developed by the Respondent was inadequate to deal with the type of difficulty faced by Tata Sky.
4. That the Respondent, in spite of being aware of the illegal act as copyright violation failed to act promptly, thereby forcing the Petitioner to take a legal recourse.

Court’s Observations in the Case

1. That there could be complaints regarding some material on the website of YouTube which by their very nature require it to act immediately without insisting on the Complainant having to clearly demonstrate that the complaint falls within one or the other category that YouTube has identified for the purposes of acting on such complaints.
2. That when a specific instance of possible violation is drawn to its attention, its review team should view the content and take a call on whether it requires to be taken down.
3. That in the case, the Petitioner had specifically pointed out that the impugned act was violative of its rights and of broadcasters and was an offence under the IT Act. Thus, YouTube was obliged not to host content that violates any law for the time being in force.
4. To be fair to Mr Nigam, he did say that there are certain types of content, and he flagged child pornography as an instance, where YouTube would not get into the exercise of first 'categorising' the complaint before proceeding to take down the content. In other words, the very nature of the content would warrant immediate action even though the Complainant may not have correctly categorised the complaint. He further stated that every Court order is an occasion for YouTube to review its policy and strengthen it further.

That the injunction order was directed at it not because YouTube had violated any trademark of Tata Sky but because its website hosted the offending URLs which required to be taken down and it was for that purpose alone that YouTube was a necessary and proper party without whose compliance the injunction order would have not been able to be implemented.

India: Government offers local office to UN Intellectual Property Organization

India has formally requested the UN agency World Intellectual Property Organisation (hereinafter referred to as the ‘WIPO’) to open an office in the country and is ready to offer premises free of cost for this purpose, Commerce Minister Nirmala Sitharaman said on Friday.

India’s offer was conveyed by Sitharaman to WIPO Director General Francis Gurrey at a meeting here, an Indian commerce ministry statement said. The said statement can be found over here. WIPO, one of the 17 specialized agencies of the United Nations, promotes intellectual property (IP) throughout the world, and administers various multilateral treaties.

At the event, Sitharaman announced that a team would be set up to advice on how to further improve India’s ranking in the global index of countries in the sphere of innovations. India’s GII ranking has improved dramatically to 66, from 81 last year.

Earlier on Friday, August 19, 2016, Sitharaman and Gurrey attended an event to launch the Global Innovation Index (GII) 2016.

In his address, Gurrey lauded India’s efforts in innovation, particularly being a vast and diverse country, pointing out that the top ranked countries are mostly small, compact economies with much lesser complexities and issues.

NIDHI – A hundred crore programme to support start-ups in India

To provide financing support to startups, the Department of Science and Technology (hereinafter referred to as ‘DST’) has launched a Rs. 100 Crore programme called National Initiative for Developing and Harnessing Innovations (NIDHI). The programme is based on a multi-stage action plan, which is aimed at running a cluster of new schemes. All the schemes taken under this programme will benefit maximum number of technology based young startups. NIDHI’s main aim is providing help to startups across the country in terms of both funding and incubation support.

The key schemes taken under the programme include:

• NIDHI Prayas
• NIDHI Feed Support System
• NIDHI Centres for Excellence

Under NIDHI Prayas scheme, DST will set up 10 Prayas centres all along its incubators. These centres will work to address the gap between idea and creating a sample product for funding. To provide funding for early stage startups “NIDHI Feed Support” system will work. Whereas, to take excellent startup ideas at global level “NIDHI Centres of Excellence” is there.

So far DST has supported 100 technology focused incubators across the country and aims to help about 15-20 other incubators. It offers a seed incentive to every startup that is part of its incubators. In turn, incubator invests the same in the form of debt or equity in the companies.

The main stakeholders of NIDHI scheme include different Govt. and non Govt. departments, ministries of the central government, state governments, institutions, angel investors, VCs and many others who wants to a part of the growing Indian Startup ecosystem.

India: Government Contemplating a change of Financial Year

According to Section 2(41) of the Companies Act, 2013, (hereinafter referred to as the ‘New Act’) “financial year”, in relation to any company or body corporate, means the period ending on the 31st day of March every year, and where it has been incorporated on or after the 1st day of January of a year, the period ending on the 31st day of March of the following year, in respect whereof financial statement of the company or body corporate is made up, provided that on an application made by a company or body corporate, which is a holding company or a subsidiary of a company incorporated outside India and is required to follow a different financial year for consolidation of its accounts outside India, the Tribunal may, if it is satisfied, allow any period as its financial year.

Financial year followed by other countries 

The Financial year followed by The United States of America is from October 1 to September 30, while China follows the calendar year i.e. January 1 to December 31. Apart from India, countries that follow the April 1 to March 31 include the United Kingdom, New Zealand, Japan and Hong Kong, among others.

Change of the Financial Year in India

The government has constituted a committee headed by former chief economic advisor Shankar Acharya to study the pros and cons of adopting a new financial year. The other members of the committee includes former cabinet secretary Mr. KM Chandrasekhar, former finance secretary of Tamil Nadu Mr. PV Rajaraman and senior fellow at the Centre for Policy Research Mr. Rajiv Kumar.

The committee shall examine in detail the effect of the change in financial year on various sectors and shall submit its report by December 31, 2016.

Benefits and Drawbacks

Since most of the major developed countries around the world follow January to December, this proposed change would align India’s accounting system with the practice of other countries and also enable international data comparisons. This could also enable faster implementation of government policies and projects if they are taken up from the beginning of the calendar year.

However, according to Mr D S Rawat, Secretary General, Assocham India “In any case, different countries follow different financial years and there is no standard accounting practice for the world. So, change to any other calendar would not result into India aligning itself with the world. Besides, even within the domestic economy, there is no tangible reason for the unnecessary change for which the government has set up a committee to deliberate whether there is a need for a shift.”

The terms of reference (ToR) of the Committee are as under:

Examine the merits and demerits of various dates for the commencement of the financial year including the existing date, taking into account, inter-alia, the following:

The genesis of the current financial year and the studies made in the past on the desirability of change in financial year;

1. The suitability of the financial
2. year from the point of view of correct estimation of receipts and expenditure of Central and State Governments;
   1. the effect of the different
   2. agricultural crop periods;
   3. the relationship of financial year to the working season;
   4. impact on businesses;
   5. taxation systems and procedures;
   6. statistics and data collection;
   7. the convenience of the legislatures for transacting budget work; and
   8. other relevant matters.
3. In case a change in the financial year is recommended, the Committee may also work out the modalities for effecting the change. This would inter-alia include:
   1. appropriate timing of change;
   2. the determination of a transitional period;
   3. the change in tax laws during the transitional period;
   4. the amendments that may be required in various statutes; and
   5. changes in the coverage of the recommendations of the Finance Commission.

Check Your Rights Before You Sue

On August 08, 2016, the Madras High Court ruled in favour of the Defendant, Hindustan Unilever Ltd. by rejecting the plea made by the Plaintiff, M/s Cavinkare Pvt. Ltd. for permanent injunction against the Defendant for the infringement of their patent. In the present matter, the Madras High Court observed that there would be no use of applying Section 105 of the Patents Act, 1970 as no rights can be claimed on a patent whose duration has expired.

CASE SUMMARY

The suit was filed by M/s Cavinkare Pvt. Ltd., against Hindustan Unilever Ltd., wherein the Plaintiff pleaded that a permanent injunction be granted restraining the Defendant and their exclusive licensees from in any manner interfering with the plaintiff's legitimate right to make, use or sell the cosmetic composition for lightening skin comprising niacinamide, sunscreen and silicone compounds in India. The Defendants, meanwhile, prayed in their Written Statement that the Hon’ble Court declare that the making, use or sale of the cosmetic composition for lightening skin comprising niacinamide, sunscreen and silicone compounds as disclosed by the plaintiff would not constitute infringement of any of the claims of the Patent No.169917, which had expired in 2009.

The Defendant, Hindustan Unilever Ltd. had earlier instituted a suit against the Plaintiff, but the matter was subsequently settled on July 18, 2000. HUL filed a counter affidavit in this case stating that the patent in question had expired on March 21, 2009 after a period of 20 years, therefore, the injunction that is sought after by the Plaintiff is ill founded, as no person, under the facts and circumstances of this suit, can claim rights from an expired patent and enforce these rights against any other person. The Defendant further stated in their counter affidavit that it is not legally tenable for any party to provide a declaration of non-infringement with regards to an expired patent.

The Advocate representing the Plaintiff stated that there could not be any objection for granting the decree against the Defendant, restraining them from infringing the Patent No. 169917. The Advocate appearing on behalf of the Defendant claimed that in view of the submissions made in the counter affidavit, the suit is liable to be dismissed as there exists no cause that arose in favour of the Plaintiff and against the Defendant to file the said suit in the first place.

Thereafter, the Hon’ble Court observed that Section 105 of the Patents Act, 1970, which deals with the power of the Court to make a declaration as to non-infringement, would not be applicable to the case on hand since the Patent has expired.

HELD

The Hon’ble Court passed a decree stating that a declaration be passed stating that the subject matter of the Patent in question would no longer come under the purview of the Patents Act, 1970 and therefore, would result in the same subject matter entering the public domain and becoming free to use for every person. In view of this declaration, the prayer sought for permanent injunction by the Plaintiff against the Defendant would no longer survive, and therefore is rejected.

CONCLUDING REMARKS

This case exhibits a perfect example of how any person looking to institute a suit against any person should be aware of their rights before taking any action. The latin Maxim “ubi jus ibi remedium” contemplates that any person whose right is being infringed has a right to enforce the infringed right through any action before a court. The same would therefore mean that any person who does not possess any right to take any action against any other person in a Court of Law, he or she shall not be given any remedy with respect to the same.

The original judgment can be found here.

India: Revised Guidelines on Similar Biologics

In another effort towards a developing India and safe conduct of clinical trials, the Indian Government has announced another major initiative to help the biotech industry by formulating the revised guidelines for biosimilars that has become effective from August 15, 2016.

The new Biosimilar Policy, called the “Guidelines on Similar Biologics” is prepared by the Central Drugs Standard Control Organization (hereinafter referred to as ‘CDSCO’) and the Department of Biotechnology (hereinafter referred to as ‘DBT’), and it lays down the regulatory pathway for a Similar Biologic claiming to be Similar to an already authorized Reference Biologic.

A Similar Biologic product is that which is similar in terms of quality, safety and efficacy to an approved Reference Biological product based on comparability.

These guidelines address the regulatory pathway regarding manufacturing process and safety, efficacy and quality aspects for Similar Biologics. It also addresses the pre-market regulatory requirements including comparability exercise for quality, preclinical and clinical studies and post market regulatory requirements for Similar Biologics.

However, these guidelines are for the general guidance of all stakeholders and are not meant to substitute or rephrase the Rules made under The Drugs and Cosmetics Act, 1940 or any other relevant Acts and are subject to being in conformity with the Drugs and Cosmetics Act and Rules as may be amended from time to time.

Background

CDSCO is the national regulatory authority in India that evaluates safety, efficacy and quality of drugs in the country. DBT through its Review Committee on Genetic Manipulation (RCGM) is responsible for overseeing the development and preclinical evaluation of recombinant DNA derived products.

Presently, several organizations are actively engaged in manufacturing and marketing Similar Biologics in India. So far, these Similar Biologics were approved by RCGM and CDSCO using an abbreviated version of the pathway applicable to new drugs on a case by case basis. Since there are several such products under development in India, both regulatory agencies considered the need to publish a clear regulatory pathway outlining the requirements to ensure comparable safety, efficacy and quality of a Similar Biologic to the reference Biologic. Based on demonstration of similarity in the comparative assessment, a Similar Biologic may require reduced preclinical and clinical data package as part of submission for market authorization.

Highlights of the Revised Guidelines 

• A reference biologic, not marketed in India can be licensed in any ICH (International Council on Harmonization) country, i.e., EU, Japan, US, Canada and Switzerland;
• Primary and secondary endpoints to be safety and immunogenicity;
• Additional non-comparative immunogenicity studies not mandatory if immunogenicity has been evaluated in clinical studies;
• If a preapproval study includes more than 100 patients on proposed similar Biologic drug, then the number of patients in phase IV study can be reduced;
• Similar Biologics can only be developed against the Reference Biologic that has been approved using a complete data package in India;
• The guidelines are applicable on Similar Biologics to be developed in India or imported to India for marketing authorization;
• The Similar Biologics manufacturer to develop manufacturing process which yields a comparable quality product in terms of identity, purity and potency to the Reference Biologic;
• The data requirements for review of manufacturing process at preclinical submission stage, shall include a complete description of the manufacturing process and also its consequences on product characteristics.

The guidelines in detail can be accessed at http://dbtbiosafety.nic.in/ .

India: National Green Tribunal Directs Delhi University To Follow A Paperless Election Route

In a recent decision by the Nation Green Tribunal (hereinafter referred to as ‘NGT’) in the case of, Nithin Chandran vs. Union of India, the tribunal held that pasting of pamphlets/flyers within the campus during election time by students to be immensely harmful to the environment. While doing so the tribunal also directed all major varsities/colleges to fully implement the recommendation of the Lyngdoh Commission. 

The said order of the NGT came in pursuance to an application filed last year by a first year Delhi University law student, Nithin Chandran. He was appalled to see the scale in which paper was being wasted in the garb of campaigning/canvassing, and wanted the tribunal to ensure that environment friendly modes of campaigning and canvassing are adopted during the Delhi University Students Union (hereinafter referred to as ‘DUSU’) elections. The respondents in this matter did not have any serious objections to the granting of such relief.

The application also contained quotes from relevant paragraphs of the Lyngdoh Committee recommendations, a brief gist of which are reproduced hereunder:-

1. No candidate shall be permitted to make use of printed posters, printed pamphlets, or any other printed material for the purpose of canvassing. Candidates may only utilize handmade posters for the purpose of canvassing, provided that such hand-made posters are procured within the expenditure limit set out herein above.
2. Candidates may only utilize hand-made posters at certain places in the campus, which shall be notified in advance by the election commission/university authority.
3. No candidate shall, nor shall his/her supporters, deface or cause any destruction to any property of the university/college campus, for any purpose whatsoever, without the prior written permission of the college/university authorities. All candidates shall be held jointly and severally liable for any destruction /defacing of any university/college property.
4. All candidates shall be jointly responsible for ensuring the cleaning up of the polling area within 48 hours of the conclusion of the polling.

In accordance with the application filed by Mr. Chandran the NGT had passed an interim order in September of 2015 whereby it categorically restrained the DUSU “from pasting pamphlets etc. on the walls in the DU campus as well as on the public streets”.  The NGT in its latest order passed in July, observed “that the abuse of paper adds to the pollution load on the environment”.

While seriously limiting the freedom of students with respect to their activity during election time in colleges this order comes along with a few pragmatic steps that the tribunal recognizes which does not do away with the use of flyers/pamphlets altogether. It directed the respondents to jointly and severally implement the following steps:-

1. The University shall not allow use/pasting of posters/pamphlets everywhere within the campus and public streets by the students but only allow the candidates contesting elections or their pre-notified student agents to utilize handmade posters at certain notified places not exceeding two within each campus;
2. The University shall strictly enforce the Lyngdoh Commission recommendations and for that purpose frame rules or incorporate in the rules governing the students body elections stringent provisions, even to the extent of disqualifying the concerned contestants for implementation of the said Recommendations including these directions;
3. The University shall take steps to move towards paperless canvassing/campaigning in student elections in the manner aforesaid in accordance with law within two months.

The said order of the tribunal can be accessed over here.