Udta Punjab: Of Courts, Cuts, Copyrights and Conflicted Counsels

Prof. Shamnad Basheer

28 Jun 2016 11:56 AM GMT

  • Udta Punjab: Of Courts, Cuts, Copyrights and Conflicted Counsels

    Udta Punjab continues to soar at the box office. Thanks in no small part to the free publicity engineered by Pahlaj Nihalani and his “cutting” edge crew at the Central Board of Film Certification (CBFC).Close on the heels of our propensity to “ban” (books, beef and all else that allegedly offend our rather sensitive selves), the urge to “cut” has assumed rather...

    Udta Punjab continues to soar at the box office. Thanks in no small part to the free publicity engineered by Pahlaj Nihalani and his “cutting” edge crew at the Central Board of Film Certification (CBFC).

    Close on the heels of our propensity to “ban” (books, beef and all else that allegedly offend our rather sensitive selves), the urge to “cut” has assumed rather ravenous proportions in India. The respectable Rajan was heckled for refusing to cut interest rates (despite such refusal being the most sensible option to contain inflation). And the notorious Nihalani was nudged to noxiously cut the art (and perhaps even the truth) out of cinema!

    Thankfully, he failed and the movie won! For Udta Punjab garnered glowing reviews and raked in some serious moolah. This despite the fact that in the run up to the official launch of the movie, a number of web-links emerged, embedding illegal copies of the movie. Naturally enough, these scofflaw sites/links were dragged to the Mumbai high court, where producers prayed that they be removed forthwith.

    Wholesale Blocking vs Select Purging: The Patel Panacea

    The delectable Justice Patel (of the “cutting chai” fame) broke with tradition and ruled that one could not block websites wholesale under the guise of copyright infringement! Rather, in what will go down as one of the saner IP decisions in recent times, he held that the plaintiffs were only entitled to have the specific infringing links (or pages) purged, noting as below:

    “It is one thing to ask that links to a specific download of the film in question be taken down or rendered inaccessible. But to ask, as the Plaintiffs do, that an entire website be rendered is in itself unreasonable. The suggestion, implicit in the plaint, that all these 800 websites have only illicit content and that they have no permissible or legitimate content, is unwarranted and without disclosed basis.”

    A decision that no doubt strikes a fair balance between the interests of the IP owner and those of the website owner. But this is not the first time that a court has refused to grant a wholesale blocking injunction at the behest of copyright owners. The Madras High Court did so some years ago, as documented in this Medianama piece here.

    While lauding an otherwise excellent decision from the stable of the inimitable Patel, Vasundhara points to some drawbacks. For one, the judge appears to have relied on the plaintiffs’ assertion that more than 800 web links carried infringing content, without independently verifying them. This is a matter of serious concern, given how often IP plaintiffs (and defendants too) take courts for a ride. Unfortunately, in India, statements made to courts are about as worthy as excuses made by the best of us to our employers when we miss a day or two at the office. Worse still, courts take this transgression rather lightly, barring rare instances such as our (in)famous compulsory licensing case, where Justice Sridevan gave a nice rap on the knuckle to a lying Natco.

    Natco, Truth Telling and Defamation 

    And speaking of Natco, this wasn’t the first time that they tried to take our courts for a ride. An earlier instance was pointed out to me in this very blog, following which they dragged me to court alleging defamation and crying hoarse that I had sullied their good name. Friends and family flooded me with pity and commiseration, while foes watched the fun with much glee. A journo friend was most surprised, remarking: “You should be ashamed of yourself. They sued you for a mere 25 lakhs!”

    Come to think of it, I really wish they had sued for more—for we could have at least had the case continue in the High court. Rather than having it shunted out to the district court, pursuant to a change in law that mandated that all cases valued below Rs 1 crore were to be shifted to lower courts. 

    For those interested in tracking this case, we’ve uploaded important documents on this page here. Despite the case not progressing much even after 4 years of Natco having instituted suit, it did see a fair bit of drama. Around a year or so ago, the Delhi high court informally tasked senior counsel Anand Gover to try and work out a settlement between me and Natco. Unfortunately, this came to naught, as Rajeshwari Hariharan, Natco’s counsel did a last minute volte face and pushed for an injunction without appraising the court of the fact that settlement talks were still ongoing…prompting me to send a strongly worded letter to Anand Grover, taking issue with what I found to be egregiously unethical conduct.

    Conflicted Counsel?

    But then again, I found that Hariharan is no stranger to questionable conduct. She represented Gilead Sciences Inc. whilst at K&S and then promptly went ahead and represented 4 parties that opposed Gilead’s patent application for Sovaldi. K&S Partners (a leading Indian IP firm representing Gilead) then complained to the patent office, at which instance she grudgingly gave up these matters while casually remarking that : “I had already recused from this matter, regardless of whether I perceive such conflict at all”.

    Pray, if this is not “conflict”, then what is?

    Judicial Overload and John Doe’s: Court Commissioners vs Ex-Judges vs Law Students?

    Anyway, back to the issue at hand: Vasundhara’s contention that a judge cannot simply take the plaintiffs’ word for it appears a reasonable one. Particularly at the interim stage, where the grant of an injunction is often to the detriment of a defendant who might finally be found to be on the right side of the law: and yet have to suffer an injunction for several years on end!—as we’ve amply demonstrated in our I-3 series.

    Also in the online space, content uploaders and linkers often do not have the wherewithal to come to court and fight it out each time they are implicated.

    And yet at the same time, is it reasonable of us to expect an overworked and underpaid judge (hit with the pendency pressures and all that) to wade through all 800 links and ascertain infringement for himself/herself? What then is to be done? How are these competing concerns to be balanced out?

    Could the court appoint a commissioner to independently verify these links? After all, court commissioners are in superb supply and often appointed at lavish rates by courts to take stock of infringing IP material (pursuant to Anton Pillar orders and the like). A friend informs me of a recent IP case where more than 10 court commissioners were appointed at a fee or more than a lakh a day; a great gift for young lawyers who happen to wake up on the right side of their bed that day.

    But commissions also warrant some delay in determination. And “time” is often a key aspect of John Doe type disputes. In fact, it was this very “time” sensitivity (the “short shelf life” of IP) that led us to forcefully advocate before the Delhi high court several years ago on the need for a John Doe (or Ashok Kumar) order….. to help protect the copyright interests of the TV broadcaster who had but one month to go before the world cup football matches concluded. I speak of the Ten Sports case, a case in the evolution of which I had a not so insignificant role to play during my time at Anand and Anand, working under the tutelage of one of the most creative IP attorneys I’ve ever known, Pravin Anand. Unfortunately, given the monstrous proportions assumed by these John Doe type orders and the excesses committed in their name, I have removed all references to it from my resume (am sure to be visited with karmic retribution soon).

    Alternatively (and as a slight variant to commissioner proposal above), could we institute a system where Plaintiffs are made to authenticate their assertion of infringing links through an independent lawyer or third party? But then again, some would argue that despite more than 65 years of breaking free of colonial rule, “independence” is still in short supply these days! As one of the counsels in the Novartis case exclaimed when the court was requested by me (in my capacity as intervenor cum amicus) to appoint an independent scientific expert to ascertain a “chemical” fact: “There are no independent experts in India. All of them are sullied!”

    What of retired judges? Could they be appointed as independent third parties to authenticate such statements? Or law professors? Or even law students? (perhaps law clerks or interns might be most apt, given that they anyway assist the judge).

    But then again, are these species necessarily above board? In the end, our solution essentially boils down to: who do we trust the most? The courts? Lawyers? Politicians? The parliament? The man on the street?

    Trust in India: The Final Link?

    That we have a serious trust deficit in India is an understatement. Which perhaps helps explain why RBI Rajan got the kind of respect he did in India. As for Subramanian Swamy, the less said the better.

    But were I to factor him in as well into this rather long winded post (with several issues lumped and ‘linked’ together), I might run the risk of losing my reader altogether. Or perhaps not. For in this age of networks (social and antisocial), the discerning Descartes might well have said: “I link. Therefore I am”.

    Prof Shamnad BasheerShamnad Basheer is the Founder of IDIA, a movement to empower underprivileged communities through legal education.

    This Article is first published in SpicyIp. LiveLaw republishes it with the permission of the Author. Views are personal of the author and does not reflect LiveLaw’s views.

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