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ROLE OF JUDICIARY IN IPR DEVELOPMENT AND ADJUDICATION+
by Justice R.C. Lahoti*
Cite as : (2004) 8 SCC (J) 1
In my capacity as President of the Governing Council of this National Judicial Academy, I have the privilege of welcoming the judges of the High Courts in India and from SAARC countries (Maldives and Nepal) to this Round Table on "Role of Judiciary in IPR Development and Adjudication". I take this opportunity for introducing you to the National Judicial Academy and its activities, as also for emphasising the role of judiciary in global intellectual property rights regime.
The problems that hurt the justice system in India today are many and varied. Many of them are to be addressed by the governments, the legislatures and the society and require large resources and a strong political will. However, there are some challenges which need the attention of the judges, as they can be resolved to some extent within the resources that the judiciary now commands. Among them are problems which call for enhanced professional competence, improved methods of court management and higher levels of integrity and accountability. These are matters which the newly-established National Judicial Academy is attempting to address by way of continuing education for judges, upgradation of training curricula, methods and materials, research and dissemination of information on better methods of judicial administration and promotion of institutional capacity building for judicial reform in enlarging access to justice.
A few of the activities which have already been completed by the Academy so far are:
(i) A project on gender-justice sensitisation training for District Judges;
(ii) Advanced course on criminal justice administration;
(iii) National consultation on standardising curriculum for induction training of civil judges (junior division);
(iv) National consultation on training in gender issues for equal justice to women;
(v) Course on constitutional adjudication for Senior District Judges.
The Academy proposes to publish occasional papers—four of which have already been published—which are on: (a) judicial accountability; (b) contempt of court; (c) gender and judiciary; (d) risk management in judicial proceedings.
Apart from the twelve training courses during the coming year beginning with the High Court Judges' Round Table on IPR Adjudication from tomorrow, the Academy is embarking on a major research project on "Access to Justice" in seven different High Court jurisdictions. The idea is to identify the barriers or difficulties that vulnerable sections of society experience while seeking justice through courts in order to see what the courts can do to mitigate them and to enlarge their access wherever possible. The study may throw light on judicial reforms from within the judicial establishment and provide information on the functioning of the system vis-...-vis seekers of justice, in particular those who on account of ignorance and poverty or similar factors feel handicapped in having access to justice.
Yet another initiative in the service of the judiciary which NJA (National Judicial Academy) has undertaken is the setting up of Research Support Services Unit to respond to requests from members of the judiciary. When it is fully operational, any judge sitting anywhere in the country can fax or e-mail propositions or questions for legal research and reporting to the unit. The research team in NJA under the supervision of a retired judge will do the necessary research with the help of library resources including internet, draft appropriate memoranda and fax or e-mail it back to the judge within 48 hours. The idea is to give the most modern research services to every member of the subordinate judiciary particularly those located in remote places where library/internet services are not adequately available. The services will be absolutely free for judges.
The Academy is to publish an annual journal to be called Indian Jurist devoted to key issues in administration of justice. The first issue to be released on Law Day, 2004 would be devoted to judicial reform in all its aspects. It will be a reference volume on the subject for judges, lawyers, court administrators, policy-planners and others.
The Academy has plans to compile a State of Justice Report providing information on the court system and what the judiciary is doing to address the problems of delay, pendency and access. It is to be a document conveying to the nation the status of administration of justice and what needs to be done to strengthen it to perform better. The preparation of such a document requires the full cooperation of the High Courts and the Supreme Court. Depending on the response, the Academy would like to make it an annual activity.
Yet another activity of the Academy is arranging conferences and seminars for judicial officers and court administrators on issues of common concern.
All that the National Judicial Academy does, is in association with the State Judicial Academies and with a view to supplement their work. As such, a training and information network is being developed between SJAs and NJA which will be upgraded in course of time with electronic linkages and technological products. For example, the High Court Judges' Round Table on IPR is proposed to be filmed and copies supplied to all SJAs for their use. To give another example of this partnership, the Access to Justice Research Project is a joint venture with State Judicial Academies of the High Courts concerned where the research is organised. Frequent consultation meetings on common concerns and "training the trainers" workshop at NJA are other instances illustrative of this partnership.
This was just an overview of the various activities—current and incoming—of NJA. Now a little bit about this Round Table.
Intellectual Property Rights
Francis Bacon has said:
"The works of founders of States, law-givers, tyrant destroyers and heroes cover but narrow spaces, and endure but for little time, while the work of the inventor though of less pomp is felt everywhere and lasts forever."1
It is this work of the inventor which the laws relating to intellectual property seek to protect.
Intellectual property refers to property that has been created by one's intellect. It is the creation of the mind. Today, the expression "intellectual property" is used even more broadly, to refer to all creations of the human mind. There are several intellectual properties that are commercially very valuable and they are protected by different intellectual property rights.
What is worth copying is prima facie worth protecting. This is the genesis for the intellectual property rights. No person shall like to invest his time and resources into creating something unless he is assured of the use of it and in cases where monetary gains are involved he is assured that he shall have the exclusive right to make such gains.
Changes in IPR laws
We are spectators to a phenomenal change in how a sovereign exercises its legislative powers and reacts to international demands and obligations. The law-makers while introducing new laws and amending old ones are no more governed only by the need of our nation, especially in areas which have acquired an international colour. The law-makers today are influenced by the need to bring the laws in shape with the international conventions and agreements to which India is a party. The opening up of the domestic economy to the world is followed by a profound impact on our domestic laws.
Our legislatures are called upon to amend our laws in conformity with the international treaties. Under the World Trade Organisation obligations, each member-State is required to provide for a minimum level of protection of IPR embodied in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs). The recent changes in IPR laws reflect India's compliance with the obligation under the TRIPs Agreement. For example, the Copyright Act, 1957 has been amended to include computer program as literary work as required by Article 10 of the TRIPs Agreement. The Trade and Merchandise Marks Act, 1958 has been replaced with the Trade Marks Act, 1999 which includes protection of well-known marks, certification marks and collective marks. It now provides for registration of trade mark for services as well. This is in compliance with Article 16 of the TRIPs Agreement. Other recent legislations include the Geographical Indications of Goods (Registration and Protection) Act, 1999, the Designs Act, 2000 and the Protection of Plant Varieties and Farmers' Rights Act, 2001. The preceding five years have seen many new IPR enactments. With globalisation, liberalisation and privatisation, the ambit of IPR has grown multifold and its importance has amplified, having a profound impact on commercial interests.
Economic importance of IPR
Intellectual property is important for a common businessman. The country's economy is opening up. Industries of our country are going far and away into different countries to open up business. Foreign entrepreneurs are fast entering into domestic economy. We need to protect our businessmen. In recent times, one of the most valued asset a person has is the intellectual property. For example, for a businessman, it is his trade mark; for an author, copyright over his work; for a fabric manufacturer, his design; for our inventors, the patent; for our industrialists, their trade secrets. In every nook and corner of commercial world, big or small it might be, intellectual property has grown multifariously.
Duty of the courts
It is now the duty of the courts to march hand-in-hand with our law-makers. We, as members of the Indian judiciary, are to keep abreast of the laws and help the industry leap into the 21st century with the confidence that their intellectual property is secured. We, as Judges, are required to interpret the IPR laws and adjudicate upon the disputes between the parties on IPR issues. The more important and long-term issue is the one concerning interpretation of the new statutes. It is desirable that the interpretation of the IPR laws is uniform across the country. It is essential for the High Courts across the country to have due regard to the interpretation given by any other High Court as regard the same IPR of the same person, be it trade mark or patent or copyright. Consistency in the growth of judge-made law is too precious in the field of IPRs. An IPR judge cannot afford to be oblivious of developments elsewhere. While innovation is the privilege of any judge, too much of innovation by an uninformed judge may prove misadventure and a price too heavy to be paid by the development of IPRs.
Due regard to international law
The members of the Indian judiciary need to gear up with the changing phenomenon of the IPR world. They are to keep themselves abreast with the developing IPR international law and keep a positive bent of mind while interpreting the provisions of the amended IPR laws in India to bring them in harmony with the international conventions and most importantly, be able to contribute to the international community by their positivist approach and succinct interpretation.
We cannot contend ourselves with the knowledge of the national IPR laws alone but have also got to learn about the international conventions and agreements upon which the national laws are based and further, fairly acquaint ourselves with the interpretations given by different jurisdictions around the world with a view to reach a consensual interpretation.
Need for a balanced approach
Though in a case concerning an international convention, it is obviously desirable that decisions in different jurisdictions should, so far as possible, be kept in line with each other, yet, today many of us might find ourselves at a crossroad. There is the need of interpreting our laws in tune with the contemporary international law. At the same time, we cannot do away with the notion of protecting our economy and commercial world. We cannot, by our decisions, torch the fundamental commercial interests and rights of our citizens. In this context, one is reminded of the ringing words of Lord Steyn who, while interpreting Article 11 of the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (1968), stated:
"The primary search must be for an objective and independent interpretation capable of accommodating the needs of a diversity of national legal systems." (Baltic Insurance Group v. Jordan Grand Prix Ltd.2, All ER p. 294 g-h.)
India has its own elaborate educational infrastructure and a reservoir of knowledgeable talent. Over the decades especially in 1970's and 80's which was named as the "Brain Drain" has today the potential of becoming the "Brain Gain". The achievements and the exploitation of knowledgeable talent during information technology revolution has resulted in substantial economic gains. IP laws now form the backbone and are driving force in the protection and exploitation of this reservoir of new knowledge and ideas. Humanity constantly progresses in culture and the impact of judicial pronouncements in shaping the course of any nation's life cannot be denied.
The judiciary interprets IP statutes while adjudicating upon IP disputes. It is through the process of pronouncement and the interpretation of the laws involved therein that the judiciary leaves its imprint on the march of trade and commerce and consequently the nation's progress. A country having agreed to be a party to the TRIPs and to WTO regime is bound to legislate in harmony with the international agreements phasing out the pre-existing IP legislations. These new laws not only call for the change in the existing IP laws but also in many cases take up the need for setting up new and modernised institutions. Many IP laws are at times just rushed through without giving due weightage to the long-term implications of the new provisions. The judiciary would have an important role to play in interpreting these laws and in case of conflict striking a judicious balance between the interest of the nation and the demands of global justice.
One of the best examples highlighting the importance of interpretation of IP statutes is the case of Diamond v. Chakraborty3 decided in 1980 by the US Supreme Court. The Chakraborty case3 is still a leading case that divides many nations of the world over the interpretation of "Novelty" in respect of patents. In brief, the international test for the registration of patents is that of "Novelty or newness", "Useful" and "Non-obvious". However, the key lies in understanding what exactly is "New". The question before the US Supreme Court was, whether a discovery of an article that existed in nature but was yet unknown to mankind, would constitute to be something new? The matter came up as Dr. Chakraborty, an Indian scientist resident in the US and an employee of GE Inc. had developed a bacteria that could make crude oil soluble in water. This had great implications as it meant that whenever there was an oil spill in the ocean, the same could be prevented from causing harm/damage to the ecology of the ocean where the accident might have taken place. The bacteria was a living matter, developed from a natural source, and modified to perform a certain function. While adjudicating on the said matter, the US Supreme Court passed a judgment stating that patentability included anything under the sun that is made by man and live human-made micro-organism is patentable as it constitutes "manufacture" or "composition of matter" and so could be seen as "human-made inventions". Thus, Chief Justice Burger by a majority of 5:4 allowed the registration of patent and held that while laws of nature, physical phenomena and abstract ideas are not patentable, Dr. Chakraborty's claim was not to a hitherto unknown natural phenomenon but to a non-naturally occurring manufacture or composition of matter—a product of human ingenuity "having a distinctive name, character (and) use".
The implications of this decision would mean that today if any person extracts the herbal ingredient from the tulsi plant, that may have any feature attributable to human ingenuity and seeks to patent the same, it may be permissible. It may seem strange, but it is a true feature that needs to be realised no later than now.
There are four stages in the life cycle of any intellectual property: (i) creation, (ii) protection, (iii) utilisation, and (iv) enforcement.
Article 300-A of the Constitution of India guarantees that no person shall be deprived of property save by authority of law. This provision in reference to IP ensures the right of the inventor/author over his or her invention/work. The enforcement of contractual obligations under contracts dealing with IP tantamounts to creating the intellectual property. There are different forms of IP protection available in India:
1. Patent
2. Designs
3. Trade mark and service mark
4. Copyright
5. Plant varieties and plant breeder's rights (under consideration of Parliament)
6. Trade secrets (along with data protection)
7. Geographical indications
The judiciary will be called upon to protect the right once created. The exploiting of intellectual property may involve licensing and cross-licensing arrangements, assignments, transfer of property and so on. Legal implications arise out of such instances. Provisions of statutes like the Indian Contract Act, the Indian Stamp Act, the Transfer of Property Act and now the Securitisation Act are attracted in their applicability to the licensing arrangements. The provision of compulsory licensing has its own peculiarities. The judiciary would be faced with the challenge of striking a judicious balance between monopoly rights guaranteed under a patent and the social needs and commercial advancements. Enforcing the intellectual property is an important stage in the lifeline of an intellectual property. This stage prevents others from unauthorised use and exploitation of protected intellectual property during the period of the protection. Misappropriation and infringement of intellectual property is a crime and the statutes governing IP list out as to what constitutes an infringement. However, there is a serious need for sensitivity in handling such matters because there is a dearth of judicial precedents and lawyers may often have to cite foreign cases to explain, advance and support their respective submissions. This inflicts a huge amount of pressure on the court to consider the true context in which a foreign jurisdiction had passed its order and also to try and evaluate the appropriate extent of the action in respect of India.
The pressure on the judiciary is not only because of the lack of judicial precedents, but also because of the urgency that is shown by the parties in seeking relief. Corporations, individuals and the like come to the court seeking immediate remedy, while the court does have to look not only into the validity of the claim but also into the aspects like jurisdiction, international registrations of IP, market reports, etc. An IP case in court on account of high stakes and commercial sensitivity may be made to seem like a high-profile matter, but the need for careful adjudication is at its highest form and the court is not to be overtaken by what is being made to appear except the need for expeditious decision. Patent law assumes notable and immediate significance, akin to a threat before the judiciary in a sense, as the gestation time given to India with regards to compliance with patent terms under the TRIPs, expires on 31st December, 2004. After January 2005, patent law will allow the processing of product patents and many more other forms of inventions such as micro-organisms, genetic materials, etc. A case relating to such subject-matter will be having high stakes, a big dose of technical sciences and it is possible that twisted precedents from various countries are also pressed into service.
Piracy is developing in the business society as an evil and so is counterfeiting. Laws are there; the need is for a proactive and tactful judiciary to handle such issues with competence, promptness and firmness. The judiciary needs to have a wider vision which can comprehend the impact on the global economy vis-...-vis national economy. The issue has a singular significance in the context of India. India has found an ironical benefactor in its population. Over the years, the second most populous country of the world has considered its huge population as one of the impeding features in its growth. But today India is one of the youngest nations in the world. The average age of an Indian national is between 30-45 years. Almost 70% of Indian population is in its working age. With the demand for a global work force increasing day by day, India is also the largest supplier of knowledgeable workforce. The direct implication of this is that these very eligible people shall be the minds that will be used in the creation of the technology of tomorrow. Without the proper system to promote and protect creativity, this window of opportunity may soon close for India. IP provides jobs. It is a large contributor to the economy as well. The onus will come on the judiciary to uphold the effectiveness of any IP system and ensure that creation of IP along with enforcement IPRs is maintained effectively. Any slackness is likely to have an adverse effect on the culture associated with investment; job-creation opportunities and GDP growth. These are the few reasons why the National Initiative Against Piracy and Counterfeiting (NIAPC) under the umbrella of FICCI have felt concerned and taken the initiative in organising such a Round Table.
It is said that the road to achievement is always under construction. We have to keep working. I hope this Round Table would prove to be a milestone on the road to achievements for the judiciary. The Indian judiciary has to rise to the occasion as it has always done, and play the role that is expected from it.
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+ Inaugural Address delivered by Hon'ble Shri R.C. Lahoti, Chief Justice of India on 30th June, 2004 at 7.30 p.m. at Round Table organised by National Judicial Academy, Bhopal in association with FICCI, NIAPC.
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* The Hon'ble the Chief Justice of India.
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1 Quoted in Mainly on Patents, Felix Liebesny, Ed. (1972) at p. 1
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2 (1999) 2 AC 127 : (1999) 1 All ER 289 (HL)
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3 447 US 303 : 65 L Ed 2d 144 : (1980) 100 S. Ct. 2204 : 206 USPQ (BNA) 193
48 SUPREME COURT CASES (2004) 8 SCC (J)
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