Author Name:   aniket1

In the era of science and technology there have been some evolutionary changes globally specially in the arena of intellectual property laws. This essay is regarding the dynamic role of Indian judiciary with special reference to global IP regime. ..

The Role of Indian Judiciary with Special Reference to Global IP Regime

Intellectual Property pertains to invention/creation/innovation of any artistic, literary, scientific creation, concept etc. by human intellect. Intellectual property rights refer to rights vested by the state to the inventor or creator. IPR is a strong tool, to protect investments, time, money, effort and the like invested by the inventor/creator of an Intellectual Property, since it grants the inventor/creator an exclusive right for a certain period of time for use of his invention/creation. Thus IPR, in a way, aids the economic development of a country by promoting healthy competition and encouraging industrial development and economic growth. Lately due to globalization, easy accessibility to information, technology, development of innovative models of business and shrinking of trade barriers by formation of groups and associations of countries like EU, SAARC, NAFTA, G-8 etc. intellectual property has acquired a trans-boundary effect making it increasingly vulnerable to infringement. India being the member of WIPO strictly follows the parameters for the protection of IPRs. The TRIPs Agreement, which entered into force on January 1, 1995, is administered by the WTO, and covers seven categories of IPRs. These are: (1) Trademarks, (2) Copyright and Related Rights, (3) Geographical Indications, (4) Industrial Designs, (5) Layout of Integrated Circuits, (6) Trade Secrets, and (7) Parents (Including micro organism and plant variety protection). The principal objective of the TRIPs Agreement is to strengthen and harmonies the IPRs standards among all the signatory countries.

India acquires some excellent educational infrastructure which is endowed with scientific & artistic talent. The exploitation of the same during Information Technology Revolution resulted in substantial economic gains. IP laws are compulsive force in the protection of these new innovative knowledge and ideas. The answer to the question as to whether the judiciary should have in-depth knowledge of IP can be mentioned by the below stated quotes:
 
“The Courts… decisions often shape the course of our nations life…” 1 The same was said by the leading international jurist Archibald Cox in his book ‘The Court and the Constitution’. The role of an independent judiciary is one of the democratic pillars of our Indian constitution. The judicial decisions sets precedence and therefore it is important that the judiciary be acquainted with the laws and its implications. Thus it is imperative that the judiciary have in-depth knowledge of IP.

“Mankind constantly progresses in culture… Only when based on this foundation can the requirement of the law be recognized as the requirements of the advancing culture which law is to serve; and only in this way can the true aim of the law be known for what it is” 2Sir C.K. Allen in his book “Law in the Making” states the need for the judiciary to lay a strong foundation. This foundation can be achieved in the field of IP by the judiciary having in-depth knowledge of IP 3.

The significance of Indian Judiciary in a democratic apparatus for protection of personal and proprietary rights can hardly be neglected. The primary function of Judiciary is to provide legal remedies against violation of personal and property rights of the persons.

            The intellectual property rights for their effectuality depend upon the rapid speed with which they can be enforced by the courts. The statutory provisions provide only a small and indefinite direction as regards the nature of remedies and the procedure for safeguarding them, leaving a large extent of free play within the province of judges.

            Infringement of intellectual property rights is a tortuous intrusion of property. The common law developed several heads of liability constituting the economic or corporeal torts. The general characteristics are that the defendant must be acting deliberately or recklessly and the plaintiff must suffer or be about to suffer damage; and that they will not apply if some ground of justification is open to the defendant”. Before statutory provisions in respect of these rights were enacted the remedy was award of damages by the common law courts, and, remedy by way of injunction was developed by the equity courts.

           Intellectual property is incipient property when demonstrated in a legally recognizable way. Property right was, till the deletion of Article 19(1)(f) of the Constitution of India, a fundamental right for citizens, but now under Article 300-A it is separately notified as a Constitutional right ensuring that no person can be deprived of his property except by the authority of law.      

Indian Judicial System With Reference To IPR
India has a highly formulated judicial system with the Supreme Court having plenary powers (Article 142) to make any order for accomplishing complete justice in any cause or matter and a mandate in the Constitution, to all authorities, Civil and Judicial, in the territory of India to act in aid of the Supreme Court. The scope of Writ Jurisdiction of the High Court’s (Article 226) is wiser than traditionally understood and the judiciary is separate and independent of the executive to ensure impartiality in administration of justice. The judiciary has a key role to play in this flourishing democracy and avoid arbitrary executive action. The higher judiciary has been empowered to pronounce upon the legislative competence of the law making bodies and the validity of a legal provision. The ambit of judicial review recognized in the higher judiciary in India is the broadest and most extensive known to any democratic apparatus in the world.4
            The Civil Courts have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred (Section 9 of CPC). The exclusion of jurisdiction of a Civil Court to entertain civil causes is not readily derived and there is a presumptuousness in favor of the jurisdiction of a Civil Court. Foreign nationals may also bring suit in any court as if they were citizens of India (Section 83 of Code of Civil Procedure). Therefore, in respect of infringement of any property rights including intellectual property rights any aggrieved person can refer to remedies available under the Indian law in any court which has jurisdiction in the matter. Aliens and Foreign Corporation can invoke the principle of equality before the law enshrined in Article 14 of the Constitution of India which applies to ‘any person’ and is not limited to citizens. This should satisfy any doubts in the International Community about the safeguard of the legitimate interests of their nationals who may have to seek redresses in this country, of their grievances against violation of their legal rights.
 
Constitutional Directive To Honour Treaties
According to Article 51(c) of the Indian constitution which reads, the State is beneath a constitutional directive to endeavor and to foster respect for international law and treaty obligations in the dealings of the organized peoples with one another. Though the directive principles of State Policy cannot be enforced in the subordinate Courts, they are nevertheless fundamental in the governance of the Country. The definition of ‘State’ given in Article 12 for part III of the Constitution pertaining to Fundamental Rights and incorporated in Article 36 for Part IV which contains the Directive Principles of State Policy; is very extensive and includes judicial and quasi-judicial authorities also. Therefore, the courts in India are obliged to Endeavour to foster respect for international law and responsibilities under the international treaties.5
            The constitutional objective to abide by international law including international treaties and conventions is also mentioned in Article 253 which, notwithstanding the distribution of legislative powers between the Federal Union and the States, endows the Parliament to make law for the whole or any part of the territory of India for enforcing any treaty, agreement or convention with any other Country or Countries or any decision made at any international Conference, association or other body. The Parliament is vested with powers under article 246 entry 14 of the Union List of subjects on which it can legislate contained in Schedule VII of the Constitution. It is empowered to legislate with respect to the subject of entering into treaties and agreements with foreign countries and implementation of treaties, agreements and conventions with foreign countries. Although, barring treaties which demand legislation to be made, the international agreements entered into by the Union in exercise of its executive powers under Article 73 which are not adverse to law are required to be recognized by the Municipal Courts. For entering into treaty or enforcing it in India, it is not a Constitutional requisite that the executive should be backed by Parliamentary legislation. The subject of Patents, inventions and designs; copyright; trademarks and merchandise marks is assigned to the Parliament under entry 49 of the Union List for the purpose of legislation.
 
Interpretation Of Statutes And Treaties By Indian Courts
While in interpretation of a statute, the Indian courts would go, so far as its language permits, construe it so as not to be inconsistent with the comity of nations or the established rules of International law. If the terms of the legislation are not clear and are reasonably subject to more than one meaning,  the international agreements or conventions on the points become relevant, for, there is a prima facie presumption that Parliament does not propose to act in breach of International law, including therein particular treaty obligations; and if one of the meanings which can reasonably be attributed to the legislation is consonant with the treaty obligations and the other is not, the meaning which is consistent  is to be preferred. Where an international agreement is incorporated in an Indian Statute, the statute should be construed with a view to attain uniformity in the different jurisdictions in which the agreement operates.6 This is the approach of Indian courts while dealing with the issues relating to intellectual property rights which is justified by the Constitutional directive to the State to encourage respect for International law and treaty obligations (Article 51).
            
In exceptional cases, such as a treaty furnishing money to a foreign power which must be withdrawn from the Consolidated Fund of India a treaty affecting the justifiable rights of a citizen  or the imposition of a tax which can be done only by legislation, it is competent for the executive to enter into treaties binding on India. Whenever the treaties envisage enactment or change municipal laws the Courts will not be in a position to directly implement the treaty provision until it gets incorporated in the municipal law. Therefore, while it would be obligatory on the part of the State under the International law to make provisions in its laws as agreed to under a treaty, the obligation cannot be enforced in a municipal court. However, where the municipal law on the subject is not in any way inconsistent with the treaty obligations undertaken by the Executive, while implementing the municipal law, that aspect will assume great significance and its implementation will be done by the municipal courts in advancement of the fulfillment of the obligations undertaken by the Executive which do not require to be followed up by any legislative actions.
 
Indian Judiciary Equipped To Tackle International IPR Cases
Indian judiciary is well equipped to handle International cases relating to Intellectual Property Rights (IPR), as a plethora of changes have been introduced in the existing laws here as per the Berne Convention and TRIPS (Trade-Related Aspects of Intellectual Property Rights) agreement. The Judiciary has always played a proactive role in the protection of Intellectual Property Rights and has invented and extended general principles to cover such cases. The Courts have extended its concept of cause of action in IPR cases and have not gone by traditional concept of the place of residence of the defendants. The courts have dealt cases even by deviating the general principle laid down under Section 20 of CPC extended flexibility in jurisdiction. The concept of trans-border reputation was introduced for the first time in the Apple Computer case where the court held that though the trade mark apple was not in use in India; it had a reputation in India in relation to computers as information had flown in through various sources. Delhi High Court has more than 75 per cent share of total IPR cases filed and the lawyers have the knowledge of the latest amendments of the IPR laws. IPR cases are expeditiously tried and disposed of by courts within three months. India has taken multifarious steps to strengthen the protection given to IP; there has been an amendment in the legislative enactments to give effect to the International Conventions and Treaties to which India is a signatory.

The Patents Acts, 1970 went through various amendments to incorporate India’s obligation under the TRIPS agreement. The agreement mandated allowing mail-box applications are a pre requisite for enforcement of the product patent regime. The most controversial aspect of the TRIPS agreement was to grant product patent to food and pharmaceutical products which was changed by the 2005 amendment. As per the TRIPS agreement, India enacted the Trade Marks Act, 1999 to ensure protection to many well known International marks. Protection of Plant Varieties and Farmers Right Act, 2001 was introduced to facilitate the growth of seed industry. Geographical Indications of Goods (registration and Protection)Act, 1999 and Semi-conductor Integrated Circuit Layout Design Act, were also some of the legislations introduced in the country to comply with the TRIPS agreement. The administrative machinery to enforce the IPRs in India has also been equipped and there has been an increase in anti-piracy measures. Special cells have been set up, training program for the police to conduct raids against counterfeit products have been set up.  The role of Indian Judiciary and other government agencies to create awareness and better enforcement of IPRs should be appreciated. Though huge strides have been taken in respect of IP Laws, some attention is needed in the areas of non conventional trademarks like sound marks, smell marks etc, which have gained recognition abroad.  In India there is a need to increase awareness of IPRs. There is a direct link between economic growth and IP Scenario in a country. In September 2007 World Intellectual Property Organization’s Japan office conducted a survey in Six Asian Countries - China, India, Japan, Malaysia, the Republic of Korea and Vietnam, which gave positive results. It said strengthening of a company’s IP portfolio helps in wealth creation and increased awareness in brand and products. When granting injunction to Pharma companies in the cases of some life saving drugs, the court has to hold the interest of the public at large. Quoting the former US presidentAbraham Lincoln’s words  ‘whenever there is a conflict between human rights and property rights, human rights must prevail’7. According to business tycoon Bill Gates ‘Intellectual property has the shelf life of a banana’ which eventually seems to be correct.

Conclusion
There is tremendous need of specialized and tactful judiciary, which can deal with intellectual property rights issues with appropriateness keeping the national interest in mind and ensure effectiveness of enforcement system. Rights holder should be encouraged to participate in enforcement actions. The quantum of damages awarded by the court should be such that they not only compensate the right holder for the losses suffered, but should also act as a deterrent for infringers form engaging in illegal activities. Infringers can also be directed to take disciplinal advertising to indemnify the loss caused to the good will of the right holders. India is renowned for its highly mature and developed legal system firmly imbedded in rule of law and the approach of judiciary in safeguarding the basic human rights and the impressiveness of law is amply reflected in the decisions of the Supreme Court and the High Courts. The courts have loured upon arbitrary actions of the administrative authorities or unfair and arbitrary approach of the authorities in their decision making process. There is judicial imperativeness on following the principles of natural justice and fair play by the authorities who make orders that may have an adverse impact on the rights of a person. As a safeguard against arbitrariness, the authorities are required to make valid orders and their decisions are necessitated to be communicated to the concerned parties. Indian Judiciary has secured independence against any arm twisting by outside forces. The role that the Indian Judiciary can play in safeguarding the legally recognized rights including the intellectual property rights can put to begrudge any enlightened judicial system of any developed country. The fairness of the procedures reflected in Indian statutes and recognition of equal rights even to aliens by virtue of Article 14 as their fundamental rights should generate ample confidence in our legal system to encourage the entrepreneurs to be sure of the protection of their intellectual property rights which are recognized by the domestic laws. The judiciary can play vital role in protection of private and other rights which will eventually depend upon the perceptions of those who have to struggle and acquire it. It is therefore essentiality that they thoroughly realize the nature of the rights recognized by law, the need for their protection and the steps required to be taken in case of urgent matters. The Judicial Academy is established for providing periodic grooming and refreshers which can keep the decision maker abreast of the requirements of time and situations and be aware of the significant role that they have to play.
 
At last but not the least in the words of honorable Justice Sanjay Kishan Kaul-
‘Though there should be laws to protect the hard work and effort of the inventor, we must not forget that the purpose of IP laws is not to create a monopoly or only to benefit a few individuals or corporations, but to benefit the society as a whole by giving them access to new choices, products, inventions and literature etc.’ 8
From the above statement it can be concluded that that role of judiciary in context with global intellectual property regime is complex as it has to counterbalance rights of individuals or corporations with that to benefit of the society at large.
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References
1. The Court and the Constitution - Archibald Cox, Houghton Mifflin Co; (August 1987)
2. Law In the Making - Sir C.K. Allen, 7th Edn., 1964
3. Dr. Sudhir Ravindran, Intellectual Property Rights Role of the Judiciary,CEO Altacit global
4. R.K. ABHICHANDANI, Role of Judiciary in the Effective Protection of Intellectual Property Rights, Judge, High court of Gujarat 
5. Ibid
6. Ibid
7. "The Great Emancipator" and sixteenth President of the United States.
8.  American Entrepreneur and Founder of Microsoft Co., b.1955
9. SANJAY KISHAN KAUL, Speaking at a function organized by the Confederation of Indian Industry (CII) to mark the World  Intellectual Property Day, Justice , Delhi High court   on 26/4/2009.

The  author can be reached at: aniketpandey@legalserviceindia.com

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