Month: April 2022

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Blog Intellectual Property Law

The Himalaya Drug Company vs Sumit 2006

Delhi High Court

Judges: Justice Badar Durrez Ahmed

Applicable law: Copyright Act, 1957

Did you know: ‘Meta-Data’ is like a digital footprint, which allows a person to assess what tools and code have been used to develop a particular website

Where it all began:

  1. Drug Company is engaged in the manufacture and sale of Ayurvedic Medicinal preparations and was established in the trade in the year 1930. Realizing the potential of the Internet as a medium of information, the plaintiff registered its own domain name www.thehimalayadrugco.com’ on 10.6.1998 and developed a website under the said name.
  2. The most important feature of the website is the section titled “HIMALAYAS HERBS”. This section essentially consists of a database of a wide variety of medicinal herbs, arranged in alphabetical order.
  3. Such information is not only comprehensive but is also arranged in a manner that is visually appealing and easy to grasp. It was clear that Himalaya has expended considerable time, labour, skill and money in preparing this database of Ayurvedic Herbs that find mentioned on its website. Himalaya has claimed that the preparation of the database began sometime in June 1998 and took more than a year to complete.

Legal issue: Whether Sumit has infringed the copyright of Himalaya and if so what damages is Himalaya entitled to?

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Himalaya’s arguments: Himalaya noticed that Sumit was operating a website “http://ayurveda.virtualave.net” which reproduced Himalaya’s entire herbal data verbatim. The copying was to such an extent that even the grammatical or syntactical errors that appear on Himalaya’s website have been copied onto Sumit’s website. Moreover, the meta tag of the source code of Sumit’s website includes Himalaya’s trademark “Himalaya Drug Co.”

Sumit’s arguments: Sumit did not appear despite service and the case proceeded ex-parte

Judgment in the case:

  1. The Court held that Sumit had misappropriated the effort, skill and expense that had gone into the creation of Himalaya’s website. Therefore, Sumit had copied the entire herbal database of the plaintiff and had infringed the copyright of Himalaya.
  2. The plaintiff has also been able to demonstrate that the defendants have attempted to pass off its herbal database as and for that of the plaintiff’s and have also violated the “trade dress” rights that exist in respect of the plaintiff’s herbal database. The reason being that the plaintiff’s herbal database is unique and, therefore, any similar herbal database that appears on a different website is bound to create confusion by causing a consumer to associate the website with that of the plaintiff’s.
  3. Because Sumit did not appear in this case it was impossible to assess what kind of profits he had earned from the website and accordingly difficult to calculate damages. Thus the court calculated the costs involved in preparing and putting up the website. Those costs were 7.9 Lakhs and the court granted 7.9 Lakhs as compensatory damages and an additional 7.9 Lakhs as punitive/Exemplary damages.

Significance: The judgment is noteworthy because it has used a novel way of calculating damages and has awarded both compensatory as well as punitive damages.

 

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B.N. Firos vs. State of Kerala and Ors.

Supreme Court of India

Judges: Justice Ranjan Gogoi and Justice Mohan Shantanagoudar

Applicable law: Sections 2(k) and 17 of the Copyright Act, 1957 and Section 70 of the I.T. Act

Did you know: The government is empowered to declare any computer system as a protected system under the IT Act. Such declaration prohibits any person except the government to access such a computer system. This is to enable the government to protect critical IT infrastructure.

Effect of provisions: Section 2(k) defined a ‘Government Work’ and Section 17(d) vests the copyright of the government work in the government. Section 70 of the I.T. Act allows the government to declare any computer system as a ‘Protected System’ and access to such protected systems is barred to any other person except the government

Where it all began:

  1. The State of Kerala entered into an agreement to develop software for one-stop bill payment systems with the software giant Microsoft. Microsoft agreed to do so for free on a pilot basis and engaged a 3rd party M/s B.N. Firos for the development of the same
  2. After successful implementation State of Kerala sought to expand the project to all districts and an MOU was concluded between B.N. Firos and the state of Kerala.
  3. N. Firos alleged that the State of Kerala was transferring essential rights in the software to third parties and it was not allowed to do so.
  4. Both B.N.Firos and State of Kerala sought to be declared as exclusive owners of the copyright of the software.
  5. During the pendency of the dispute, State of Kerala issued a notification under Section 70 of the Information Technology Act declaring the software as a ‘Protected System’.
  6. N. Firos challenged the notification and held that the same was a violation of its rights as  the author of the software under Section 17 of the Copyright Act, 1957

B.N. Firos’s arguments: B.N. Firos argued that the copyright of the software vested exclusively with it and the notification was taking away its said rights

Kerala’s argument: The State of Kerala argued that the copyright of the software vested with the State government and in any case, it had the right to declare any computer system as a protected system

Issue: Whether any computer system could be declared as a ‘protected system’ under Section 70 of the I.T. Act, even in violation of the Copyright Act?

Judgment: The Hon’ble Supreme court held that:

  1. Only government works as defined in Section 2(k) of the Copyright Act could be declared as protected systems and only those systems can be protected which are very important for the functioning of the state.
  2. The power of the government to declare a computer system as a protected system was not unlimited and the provisions of IT Act and Copyright Act have to interpret harmoniously.
  3. As per the MOU signed between the State of Kerala and B.N. Firos the copyright of the software belonged to the State of Kerala.

Significance:  The Hon’ble Supreme Court has resolved the possible conflict between the rights of the owner of a computer system and the power of the government to declare such a system as a ‘protected system’ in the IT Act. It has in this way balanced the interests of the government in protecting critical computer infrastructure and those of individuals who design unique computer systems in collaboration with the government.

 

 

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Role of Precedent in the Development of Law and Society

Before analysing the role of precedent in the development of law and society, it is important to understand what constitutes a precedent. According to Gray, it “covers everything said or done which furnished a rule for subsequent practice”[1]. According to Keeton, it is a “judicial decision to which authority has in some measure been attached”.[2] In general words, precedent means a set pattern guiding future conduct. Judicial precedent, on the other hand, means the judgment of a Court of law which can be used as an authority for deciding a similar set of facts, by the lower courts, or the same court itself.

Where a court pronounces its decision, it contains in itself a principle. This principle creates a judicial precedent. The opinion in which the judge formulates his reasons for the decision is not the precedent, although such opinion plays an indispensable role in ascertaining the precedent, since only from the opinion can one discover what facts are regarded by the court as material. The application of the judicial precedent is governed by the different principles in different legal systems. These principles are called the ‘Doctrine of Precedent’.

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The concept of precedent originated from the doctrine of stare decisis which means to “abide by the decisions”[3]. This doctrine aims to bring certainty and conformity to the decisions of the court and to the law.

The judicial precedents are binding on the lower courts and the same court, unless-

  1. The same has been overruled by the higher court
  2. The same has been reversed by the higher court
  • The facts of the case seem to be different

Precedent plays an instrumental role in the development of law and society. It ensures equality and fairness by means of treating similar cases in a similar manner. This brings the certainty of law and upholds the confidence of the citizens in the justice delivery system. With respect to the judiciary, it acts as a guideline to decide future cases based on similar facts. It ensures that the lower courts adhere to the interpretation of the law by the superior court in line with the changing needs of the society (the Vishaka guidelines in India[4]).

Furthermore, it provides a binding nature to the principles evolved seldom by the judiciary, while discharging their functions as an interpreter of law (the binding nature of the doctrine of basic structure with respect to amending the Constitution[5]). Lastly, it saves time and increases the convenience of the court, as a question of law, once decided, is settled and the judges and the lawyers need not spend time and labour on reestablishing the same principle.

With respect to India, the Indian Constitution empowers the Apex Court to interpret the law. Such interpretation is binding on the lower courts. The judgement of the Supreme Court is a decision, for the litigants, however, for the nation, it is a declaratory law[6]. However, a judgement acts as a precedent only when it decides a question of law and not otherwise[7].

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The expression ‘all courts’ used under Article 141 infers that the Supreme Court is not bound by its own decisions, except that a smaller Bench of the Apex Court is bound by the decisions of a larger Bench and that of a Co-equal Bench.[8]

With respect to the significance of precedent, the court in Union of India v. Raghubir Singh,[9] held that-

“The doctrine of binding precedent has the merit of promoting a certainty and consistency in judicial decisions, and enables an organic development of the law, besides providing assurance to the individual as to the consequence of transactions forming part of daily affairs. And, therefore, the need for a clear and consistent enunciation of legal principle in the decisions of a Court.”[10]

 

 

[1] https://www.srdlawnotes.com/2015/11/precedent-meaning-definition.html

[2] Id.

[3]http://mja.gov.in/Site/Upload/GR/Title%20NO.149(As%20Per%20Workshop%20List%20title%20no149%20pdf).pdf (last visited Feb. 1, 2021).

[4] As provided in the case of Vishaka v. State of Rajasthan, (1997) 6 SCC 241.

[5] Kesavananda Bharati Sripadagalvaru & Ors. v. State of Kerala & Anr., AIR 1973 SC 1461.

[6] Ganga Sugar Co.. Ltd., Etc vs State Of U.P. & Others, AIR 1980 SC 286.

[7] State of Punjab v. Surinder Kumar, 1992 (1) SLR 335(SC).

[8] Indian Oil Corporation v. Municipal Corporation, AIR 1995 S.C. 1490.

[9] Union Of India & Anr v. Raghubir Singh, AIR 1989 SC 1933.

[10] Id.

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Right to be forgotten under General Data Protection Regulations

‘Right to be forgotten’ is the claim of an individual to have any data pertaining to him deleted, with no trace. The foundation of this right was laid by the European Court of Justice in its 2014 judgement in Google Spain SL v/s Agencia Española de Protección de Datos & Mario Costeja Gonzalez[1], wherein it held that European citizens have a right to request commercial search firms like Google to remove links to private information when asked, provided the information is no longer relevant[2]. This case set the precedent for the principle of the right to be forgotten under the General Data Protection Regulation (GDPR)[3] in the European Union.

Under the GDPR, the right to be forgotten has its basis in Recitals 65 and 66 as well as Article 15 and Article 17. Recital 65 iterates the right of a data subject to have his personal data erased when it is no longer necessary for the purpose for which it was collected. Therefore, the right to be forgotten is also known as the right to erasure in the EU[4].  On the other hand, Recital 66 talks about the obligation of the data controller who made the personal data public to take reasonable steps and technical measures to inform the data controllers processing such data about the request for erasure[5].

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Furthermore, Article 15 provides for the right to rectification or erasure of personal data or restriction of its processing[6]. This right to erasure is not absolute and can only be exercised in certain conditions. Article 17 obligates the data controller to fulfil the request of erasure without undue delay[7], if one of the following grounds is met[8]–

  1. The personal data is no longer necessary for the purpose for which it was collected or processed;
  2. Processing is based on consent and the data subject withdraws the same;
  • The data subject objects to the processing, and there is no overriding legitimate interest to continue the processing of data;
  1. Personal data has been processed unlawfully;
  2. Erasure is required to comply with a legal obligation; or
  3. Personal data has been collected to offer information society services to a child.

It is pertinent to note that the data controller can deny the exercise of the right to erasure if the processing of personal data is necessary for[9]–

  1. Exercising the right of freedom of expression and information;
  2. Complying with a legal obligation;
  • Public interest in the area of public health;
  1. Archiving purposes in the public interest, scientific research historical research or statistical purposes; or
  2. Establishment, exercise or defence of legal claims.

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Furthermore, the data controller can request a reasonable fee from the data subject for fulfilling his request of erasure[10].

[1] Google Spain SL v. Agencia Española de Protección de Datos & Mario Costeja Gonzalez, C‑131/12.

[2] EPIC.ORG, https://epic.org/privacy/right-to-be-forgotten/ (last visited Apr. 26, 2021).

[3] Regulation (EU) 2016/679.

[4] Id., recital 65.

[5] Supra note 46, recital 66.

[6] Supra note 46, art. 15(1)(e).

[7] Supra note 46, recital 59- A time period of one month.

[8] Supra note 46, art. 17(1).

[9] Supra note 46, art. 17(3).

[10] Supra note 46, art. 12(5)(a).