Category Archives: Litigation

The Validity of Advance Sexual Consent

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The validity of ‘advance consent’ is an issue which is being determined by the Canadian judiciary. Advance consent has been held to be invalid only in recent times. Throughout history, advance consent was recognised by both law and society, the most visible example of which was the ‘advance consent’ which a wife granted her husband during the wedding ceremony, and which lasted till death (or, in more recent times, divorce) did them apart.

What is interesting though is that, this time around, the issue of advance consent has not arisen in the context of orthodox sexual practices but with reference to practices which many people would find anything but orthodox. The Canadian courts have been called upon to determine whether a woman who allegedly consented in advance to erotic strangulation also consented to being sodomised while unconscious.

There are several pertinent factors. Firstly, the woman’s story was not always entirely consistent. Secondly, there appears to have been a history of domestic violence involving the woman and her partner, and as such, the validity of any consent she gave, assuming that she did in fact give consent, may not be beyond question. Thirdly, even assuming that she did give consent for one act, it is unclear how consent for one specific act could metamorphose into consent for other acts as well. Finally, considering that consent in these circumstances cannot truly be considered to have been granted if it does not also include an opportunity to withdraw consent, it is unclear whether it would be possible to give consent at all for an act such as strangulation — after all when one is being strangled or is unconscious, the withdrawal of consent is not an option.

Clearly, therefore, to voluntarily engage in acts which leave one incapacitated would require the grant of advance consent. However, blanket recognition of advance consent presents problems in itself. There are, of course, the ‘standard’ issues which the recognition of advance consent has presented throughout history such as the non-recognition of acts such as marital rape as crimes. In addition to this, there are also echoes of that historical legacy which are heard today. This could be in the form of ‘non-consensual consent’ where women consent in advance to an activity, and consent to having their partners force them to engage in it later even if they don’t want to do so at that later time. Alternatively, it could be in the form of pseudo-legal documents such as ‘abuse contracts’ where women consent in advance to being abused.

There is little doubt that there are circumstances in which advance consent runs contrary to our current socio-legal ethos. However, if advance consent were to be considered to be entirely void, it would make it impossible to perform certain acts within consensual relationships, and could, in effect, regulate relationships between consenting adults ‘“ which, too, in today’s socio-legal and cultural climate would, inter alia, be considered to be an unacceptable violation of the right to privacy. As such, while the issue may seem to be relatively clear-cut at first glance, a closer look reveals that it is anything but clear. The recognition of advance consent could make women vulnerable to abuse. On the other hand, non-recognition of advance consent could make illegal certain acts between consenting adults which are of an essentially private nature, and in which the law would not generally interfere.

One solution would seem to be draw out lists of circumstances in which advance consent could and could not be recognised. However, this too presents its own problems: primarily, how would one determine to which set a particular case would belong. For example, if advance consent was given within a relationship marred by domestic violence, could it be considered to be ‘real’ and, consequently, valid? Or would the possibility that the advance consent was not voluntary make it void? It is unclear whether there is any way in which to differentiate between circumstances in which advance consent should or should not be recognised. Universal recognition could, however, adversely affect the safety of many, and universal non-recognition could adversely affect the freedom of some. Whether safety should supersede freedom, or freedom should supersede safety, is ultimately a value judgment which would manifest itself as a matter of policy.

(This post is by Nandita Saikia and was first published at LawMatters.in.)

Links via Feminist Legal Forum:

Ghost-writing, Plagiarism and Copyright

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Ghost writing is intriguing because it exists in a gray area. It is clearly a form of plagiarism, although it is supposedly plagiarism with the consent of the actual author (the ghost writer) of the work. Perhaps that makes it morally acceptable? In other words, does the consent of the actual author make it acceptable for the ostensible author (the person commissioning the work) to appropriate authorship of the work? It is, after all, a contractual relationship, in most cases, and one of the essential elements of a contract it be entered into voluntarily by the parties. Therefore, it could be argued, that if the actual author consented to having his work published as the work of the ostensible author, there can be no case of plagiarism really having occurred.

However, if one were to look at the contexts within which ghost-writing contracts are generally signed, it is apparent that as a general rule, the ghost-writer is a person whose socio-economic status is lower than that of the ostensible author. Whether or not there can be true consent in such circumstances is debatable. While there may be no coercion in the legal sense of the word which would invalidate any specific contract, the broader picture may clearly demonstrate that socio-economic constraints cause actual authors to consent to the publication of their work under the names of other persons. As such, it may be possible to consider ghost-writing contracts to be unethical despite being legal.

Further, leaving aside arrangements which involve concrete ghost-writing agreements, it is also pertinent to note that the line between editing and ghost-writing is sometimes extremely thin, as many editors would be able to attest to. This is because when “authors” produce badly written texts those texts may require not merely editing but re-writing before they are suitable for publication. In most cases, the editor would not even be credited as a joint author despite possibly having entirely written the final text. This is especially true if the ostensible author happens to be a well-known person, and the editor is not.

Another route through which an actual author may become a ghost writer is when he is a person working within an organisation, possibly as an assistant of a researcher, or at some other analogous lower-rung position (in comparison to the ostensible author). For example, describing the process through which a person could besome a ghost-writer, Debora Weber-Wulff says, ‘First an assistant prepares some material. Then something is written by an assistant and rewritten by the researcher before publishing. Then under the pressure to publish more and more and more a text gets passed through without change, but the true author is kept hidden, and the researcher does not even find anything wrong with this.’

As such, ghost-writing arrangements may not involve express contracts, and could well involve merely implicit consent, which consent may be forced. That is to say that the actual author may be required by circumstances to consent to the appropriation of his work by the ostensible author. Consent may not be voluntary, or for that matter, even exist. It may simply be assumed, and the actual author may not be in a position to complain about the loss of his right to be attributed for his work. In such circumstances, it is clear that there is no true consent, and thus, without the circumstances being changed, it is unlikely that it would be possible to consider ghost-writing to be above the board from either an ethical or legal point of view.

Coming back to express ghost-writing agreements though, leaving aside the issue of consent, it is unclear what their legal position would be under Indian law. This is because under the Copyright Act, the first owner of a copyrighted work is determined according to the provisions of Section 17. Although this Section contemplates works made for hire (or commissioned works), under Indian copyright law, the work-for-hire doctrine as it exists in Title 17 of the United States Code does not exist. In India, the person commissioning a work may become its first owner but the commissioner cannot become the ‘first author’.

Therefore, the actual author or the ghost writer would continue to be the author of the work. Under Section 57 of the Copyright Act, the author of a work has the right to be attributed as the author of his work. It is unclear whether an author may waive the right to attribution as contemplated by Section 57. Relying on the 2006 Centrotrade judgment of the Supreme Court, it may be argued that the right to attribution can be waived by an author since this judgement states: ‘A person may waive his right. Such waiver of right is permissible even in relation to a benefit conferred under the law. But it is trite that no right can be waived where public policy or public interest is involved.’

However, this judgement does not pertain to copyright, much less to Section 57 rights. As far as moral rights are concerned, it would be possible to argue that they cannot be waived, and that any supposed waiver of moral rights is invalid. The crux of the matter is that the question of the waiver of moral rights has not specifically been determined by an Indian court, and the statute is silent on the issue. As such, the possibility of the waiver of the moral right to attribution exists in an extremely gray area of copyright law. Should it transpire that the moral right of an author to attribution cannot be waived, it would appear that ghost-writing contracts would be ultra vires the Copyright Act, and thus be invalid under Indian law.

Leaving aside the question of validity of ghost-writing agreements, there is also the question of public perception. Ghost-writing could be considered to be fraud in the popular sense of the word since the intention of a ghost-writing arrangement is to blind the audience to the fact that the ghost-written work is not a work which has been written by its ostensible author. To some, that in itself, would make ghost-writing arrangements unethical, particularly considering that ghost-writing arrangements generally serve to increase the ‘prestige’ of the (usually “more powerful”) ostensible author by misappropriating the ‘prestige’ which should have been accorded to the actual author (who has comparatively less “power”).

(This article is by Nandita Saikia and was first published at LawMatters.in.)

Case Citation: Centrotrade Minerals and Metal. Inc. v. Hindustan Copper Limited; (2006) 11 SCC 245

Delhi High Court takes up the “No Cashless Facility” Health Insurance Issue

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One might conclude that if one bought a health insurance policy, and paid a higher premium in order to avail of the “cashless facility”, the said “cashless facility” would actually be made available to one. Such a conclusion, however, apparently proved to be erroneous in a number of cases, including one involving a cancer patient.

An Individual Policy Holder who bought an insurance policy from Oriental Insurance Co. Ltd. was told that the “cashless facility” which he had paid for would not be made available to him because he had bought his policy as an Individual (as opposed to having bought his policy through a company). It wasn’t entirely clear why this should have made a difference, given that he had paid a higher premium for the “cashless facility”, and that there appeared to be no reasonable ground for differentiation between a policy-holder who was an Individual Policy Holder and one who was a Corporate Policy Holder.

As a result of this ostensible discrimination, and of not being able to avail of a service for which he had paid, the Individual Policy Holder filed a Writ Petition before the Delhi High Court which came up for hearing on July 30, 2010, before Hon’ble Mr. Justice S. Muralidhar. The Hon’ble Court issued notices to the Insurance Regulatory and Development Authority, The Oriental Insurance Co. Ltd. and Genins India Ltd. (the Third Party Administrator) — the Writ Petition was maintainable as the IRDA falls within the scope of the definition of “State” in Article 12 of the Constitution, as does the insurance company which is a PSU.

Interim Injunctions and Patent Litigation

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Temporary or interim injunctions are orders to stop or prevent harm to disputed property in a suit. They remain in force till the suit is disposed of or until further orders are made by the court. The Patents Act itself does not deal with interim injunctions so their grant is governed by the Code of Civil Procedure. Under Order 39 of this Code, they may be granted under a number of circumstances. For example, they may be granted if the property is in danger of being wasted, damaged or alienated by any party to the suit. They may also be granted if a debtor threatens or intends to remove or dispose of his property to defraud his creditors, or if the defendant in a suit threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to the disputed  property. The harm to the property in question may be proved by affidavit or otherwise.

Contracts involving intellectual property often have clauses buried somewhere in their depths to the effect that:

ABCD acknowledges that in the event of a breach or, in the opinion of the Company, a threatened or possible or potential breach of the terms of Clause 6 (relating to the protection of Intellectual Property), the Company shall be entitled to injunctive relief (including interim injunctions) in addition to any other remedy including a claim for monetary damages. ABCD acknowledges and agrees that the Intellectual Property is valuable, unique, confidential and proprietary, and that disclosure of any Confidential Information in breach of this Agreement will result in irreparable injury to the Company.

In addition to this, there are also often clauses which specifically speak of companies’ rights to obtain interim injunctions “to maintain the status quo” while arbitration is in progress. And while that’s all very well when the alleged infringer has entered into a contractual relationship with the owner of the intellectual property, the fact of the matter is that alleged infringers rarely enter into such arrangements with the owners of intellectual property.

Unfortunately — or fortunately, depending on which side of the track you’re standing — the general understanding, in India, has been that Courts usually refuse to grant interim injunctions in patent litigation. Based on a not insignificant list of case law, this belief is hardly unjustified. [1] The basis for the belief, however, seems to be changing. The conditions required to be satisfied for the grant of an interim injunction remain unchanged. Firstly, there should be a prima facie case in favour of the patentee-plaintiff. In this context, that effectively means that the plaintiff must demonstrate that his patent is valid and that it has (at first glance) been infringed. Secondly, the patentee must show that the balance of convenience is in his favour, and finally, the patentee must demonstrate that he will suffer an irreparable loss should an interim injunction be refused.

In the case of Bajaj Auto Ltd. v. TVS Motor Company Ltd. [2008 (36) PTC 417 (Mad)], [2] the High Court of Madras granted an interim injunction to the plantiff, Bajaj Auto, in respect of a patent titled “An improved Internal combustion engine working on a four stroke principle”. And in another case — Mariappan v. A. R. Safiullah [2008 (38) PTC 341 (Mad.)] — the same High Court granted another inother interim injuction. In these cases, in considering whether the basic conditions for the grant of an interim injunction were satisfied, various factors were looked at. For example, the Court tackled the issue of whether the registration of a patent under the Patents Act would entitle it to be considered to be valid prima facie. Interpreting Section 13(4) of the Patents Act [3] — bearing in mind that Bajaj has argued for a ‘harmonious interpretation of Sections 13(4) and 48 (which lists the rights of patentees) of the Patents Act — the Court decided that the registration of a patent does not in itself create any presumption of validity although the Court did reaffirm the controversial and inexplicable ‘six-year rule’ — a rule according to which a patent should be presumed to be valid if it is more than six years old and has been used.

It may, however, be premature so say that there is now a trend allowing for the grant of interim injunctions in light of the case of F. Hoffmann la Roche Ltd., and Anr. v. Cipla Limited [2008 (37) PTC 71 (Del.)] in the Delhi High Court. Following the approach in the American Cyanamide case, the Roche v. Cipla case also, thankfully, diluted the six-year rule and treated pricing as one of the factors to be considered while deciding whether or not an interim injunction should be granted. In addition to this, the Delhi High Court also refused to grant an interim injunction to Braun to restrain Poly Medicure in the matter of B. Braun Melsungen AG & Ors. v. Rishi Baid & Ors. IA 1234/2008 in CS (OS) 186/2008. The court did, however, as had been done in the Bilcare matter, direct the alleged infringers to keep accounts of the manufacture and sale of the of the of the product whose patent they had been accused of infringing.

(This article is by Nandita Saikia and was first published at LawMatters.in.)

Footnotes:

1. Corruplast Ltd. v. George Harrison (Agencies) Ltd. [1978 RPC 761]; Standipack Pvt. Ltd. v. M/s Oswal Trading Co. Ltd. (2000, Delhi High Court); J. Mitra & Co. Pvt. Ltd. V. Kesar Medicaments: IA No. 11883/2006 in CS (OS) 2020/2006; Garware v. Mr. Kanoi (2006, Gujarat High Court); Bilcare Ltd v. Amartara Pvt. Ltd. [(2007) (34) PTC 419 (Del)]; Bilcare v. Associated Capsule (2007, Delhi High Court)

2. Reported as Patent Number 195904 online; appears to be:
Gazette: 25/12/04 
 Filing Date: 10/30/2003 
 Reference No.:  PCT/IN03/00348
Applicant: Bajaj Auto Ltd. T
itle:  Improved Internal Combustion Engine Working on Four Stroke Principle
 Class: Mech, G
 Convention: N
 S. No.: 80209

3. Section 13(4): The examination and investigations required under section 12 (examination of patent applications) and this section shall not be deemed in any way to warrant the validity of any patent, and no liability shall be incurred by the Central Government or any officer thereof by reason of, or in connection with, any such examination or investigation or any report or other proceedings consequent thereon.

Juveniles Defined: 2000 Law Applies

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A Juvenile Justice Act was passed in 1986. Fourteen years later, another Juvenile Justice Act was passed in 2000. Both of these Acts were meant to ensure that children who committed crimes were treated humanely and that they were given an adequate opportunity to reform themselves away from the influence of hardened criminals.

One of the main problems with the application of the criminal justice system to juveniles though has been that the two statutes of 1986 and 2000 both defined juveniles differently. Under the 1986 Act, juveniles were defined as those under the age of 16 while under the 2000 Act, juveniles were defined as those under the age of 18.

The result of this inconsistency was that all those who committed crimes when they were over the age of 16 and under the age of 18 between the years 1986 and 2000 wound up being treated like adults. Many of them are still undertrials today.

One such person, Hari Ram, approached the Supreme Court for relief. He had allegedly committed an offence at the age of 17 and was being treated as an adult. A bench of the Supreme Court comprising Justices Altamas Kabir and Cyriac Joseph allowed his plea to be treated as a juvenile and settled the inconsistency between the two statutes.

The Court, in the case of Hari Ram v State of Rajasthan, said that it was unacceptable to have two different definitions operate simultaneously. It said, “…all persons who were below the age of 18 years on the date of commission of the offence even prior to April 1, 2001 [the day the 2000 Act came into force] would be treated as juveniles even if the claim of juvenility was raised after they had attained the age of 18 years on or before the commencement of the Act and were undergoing sentence upon being convicted.”

Thus, the 2000 law has now, thankfully, unequivocally been given precedence over the 1986 Act. This should come as welcome news to all those who can now benefit from the definition of juveniles under the 2000 law.

More Protection to Women in Live-in Relationships

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Women in live-in relationships are supposed to receive the same protection as wives when it comes to domestic violence. Now,  it appears that that protection also applies to dowry.

Section 498 A of the Indian Penal Code has long been criticised by so-called men’s rights activists who claim that they are doing such things as ‘saving Indian families’, never mind that they’re doing so at the expense of the safety of Indian women. Section 498 A makes cruelty against women by their husbands and in-laws an offence.

So far, it has been possible for a man to avoid being brought under the ambit of this Section by simply not marrying the woman in question. The literal interpretation of the Section requires a wife to be treated cruelly for an offence to have been committed, and the logic was: where there is no wife, there can be no cruelty under the ambit of this Section of the law.

In Koppisetti Subbharao @ Subramaniam Vs. State of A.P., a Bench of the Supreme Court comprising Justices Arijit Pasayat and A K Ganguly changed this though. Justice Pasayat who wrote the judgment said that the would not allow a narrow interpretation to stand in the way of women’s rights.

In this case, a man named Koppisetti Subbharao had been accused of harassing his live-in partner for dowry. He defended himself saying that Section 498 A did not apply to him since (a) he was not married to his live-in partner and (b) he was married to someone else.

The Court was not impressed. It said that ‘the nomenclature “dowry” does not have any magical charm written over it. It is just a label given to a demand of money in relation to a marital relationship’. Drawing parallels with the law which recognises the legitimacy of children born of void and voidable marriages, it explained its stand asking: “Can a person who enters into a marital agreement be allowed to take shelter behind a smokescreen to contend that since there was no valid marriage, the question of dowry does not arise?”

Preferring a liberal construction of the law, the Court went on to explain why it had rejected a literal and technical interpretation saying: “Such legal niceties would destroy the purpose of the provisions. Such hairsplitting legalistic approach would encourage harassment of a woman over demand for money.”

This judgment seems to go a long way in saying that men can’t dodge either responsibility or liability to women they live with by simply not getting married to them.

Judgment: http://judis.nic.in/supremecourt/helddis3.aspx

The Pirates Flounder

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By Shyam Somanadh

Entertainment Industry Wins Pirate Bay Case, Loses $390 MN business opportunity

By now it is all over the place that Pirate Bay (or at least the four defendants) has lost its lawsuit regarding their enablement of piracy using the website. Neither will this ensure that piracy related to entertainment will come to an end, nor will this ensure that artists will find another way to monetize their efforts beyond what the entertainment industry can offer.

I have no quibble with the fact that piracy is bad, what I do have a problem with is the fact that on the one hand organizations like RIAA are only happy to sue the pants off file sharers, citing ever declining numbers in their businesses, while on the other, they refuse to see that not everyone who is using P2P has price point zero as the only acceptable price range.

At this very moment, Pirate Bay’s trackers are supporting over 22,387,439 seeders and leechers over IPv4, there is a much smaller number on their IPv6 network. That is a huge number of people who are actually acquiring content, concurrently. Well, to be precise, 22 million of them in one go. And we are not even counting the users on the other networks.

If the entertainment industry can see this only as an opportunity to sue 22 million people and get a dollar off each of them they deserve to die the painful death they are undergoing now. If they can see the 22 million as a live and kicking market, they deserve to live and live well.

For those who argue that piracy is free are sadly mistaken. Every download is paid for at some point in the chain. If you do that in your office, it is your company that foots the bill. If you do it at your home, you pay for it with your DSL/Cable bill. In effect, there is no ‘free’ in the equation here, there is already a value attached to it, even when you are leeching off a torrent. The only problem in the whole picture is that the ones who are getting paid are neither the content creators, nor it is the distributors who get paid.

So, who gets paid?

The telcos who sell you bandwidth and the connection are the ones who profit most by it. Even as sneaky as that can be, it is not their fault either that people use torrents and P2P to get their fix. The fact remains that there is no simple, sane and legitimate way to consume content at a reasonable price point at the moment. The entertainment industry has always refused to embrace innovation on that front. They should de-incentivize piracy, by working hard to make non-pirated content easily available.

Instead, what do they do? They spend their time trying to keep price levels at the highest possible points, trying to maximize their margins and holding on to the days of glory days of CD and cassette tape sales, than trying to open their eyes to the new reality that this will work in their favour only if they play for scale. The average person probably does not download more than 30 songs a month on the internet. Why is it not possible to address that need at a flat rate which would make it much easier for everyone to understand and legitimately participate in the process.

You don’t even need to convert the entire 22 million users connected to the Pirate Bay tracker to make this work. At even 25% conversion, that is 6.5 million users in a month. Those users shelling out $5 per month for 30 tracks, without DRM is worth about $32.5 million in monthly revenues and $390 million in annual revenues. I am playing easy with the numbers here, but my point is valid, there is a massive business opportunity here, which is getting ignored.

Even with DRM, Apple and the iTunes franchise has shown that people can and will pay for entertainment given the right experience and a useful price point. But really, why is Apple owning that space, with Amazon competing hard with them on that front? Why is the entertainment industry a no-show here, other than the rare moments when they shake themselves out of their stupor, and trying to up their margins per track sold?

Piracy is really no news. It has been there before the internet was created and it will continue to remain with us as long as we are around. What the entertainment industry needs to recognize is that they need to change their business models and the way they operate now. And every day they spend chasing these people in court with victories that result in a minor blip on the global piracy radar, is another day they are losing to save their own livelihoods.