Author: Advocate Anil Kumar Mehrotra | Allahabad High Court
INTRODUCTION
Let me start by saying that what do we understand by the term constitution; it is nothing but a blueprint of all the other laws. So, while we contour other laws it is always very necessary to get back to the basic law from where all the other Acts stems. This helps in understanding the principles on which our other Acts are to be made, and helps us in framing it. Now, the theme of the paper can simply be said a proximity between the constitution and the Intellectual Property Rights (IPR). It is very remarkable to understand this interface between the constitutional law and IPR and then how the recognition of court with respect to these rights by the judiciary, shows actually a very diverse perspective. The paper would look into the importance of freedom of speech and expression and an overview of the copyright act. Further a relationship which could be drawn between freedom of expression and IPR, and with that in mind that paper would take dip into some of the ancillary issue in relation to this.
There is no doubt that Freedom of speech and expression is one of the utmost important rights and that is something which underlines the basis of any democratic country. There is no polity which can work in Isolation with freedom of speech and expression. It serves many purpose firstly, it helps an individual to speak the truth about the polity and helps the public to make a reasonable choice.[1] Secondly, it brings the confidence in government, since you are not curbing the individual right to speak.[2] Thirdly, it bridges a gap between a social change needs to be brought in and the acceptance of the same from the society.[3]
Therefore, we always see that Freedom of speech and expression which finds its place in most of the International convention and our Constitution is an integral part of any democratic setup.[4] Indian constitution talks about the Liberty which has got a widen horizon to include this freedom of speech and expression. It could also be extended to give a person a protection of what he says and right that no one shall copy him against his will. Before, taking a dip into the interface between the IPR and constitution, now let’s turn our attention to look at an overview of copyright Act.
Copyright is a property right given to an author for his original and novel work in any tangible form, which gives the proprietor right over that property so as to use it any form. They have authority to reproduce or not produce it or give somebody else the right to reproduce.[5] Thus this right includes a wide range of expression running from literary to artistic work.[6] Thus a person who has a copyright over that property gives him the right to use that property in the way it warrants.[7] The only exception being that fair use of that material is allowed. Therefore, we understand that copyright is an expression and it could be inferred that its protection stems from the Freedom of speech and expression. and this is something which the researcher will go through the course of this paper. Recently, with the advent of media law which also stems from Article 19 of the Indian Constitution, there is seems to be a new artery over the protection of the IPR and constitution.
Interface between IPR and Freedom of Speech and Expression
As, we have already seen that there is definitely nexus between freedom of speech and copyright. Now before elaborating on it let us see that how the timeline of both the aspects has been quite close to each other. Then we will move to the understanding of both these laws and there nexus.
Development of Freedom of speech & expression Juxtaposes with IPR
The copyright law saw its development through with the different method of expression. At the time of the invention of printing machine we saw a lot of development in the concept of freedom of speech and expression.[8] It was thought that this freedom of expression is of no good use if they don’t have the right of publication.[9] But, with publication came piracy and that was the mischief which required an attention. SO, now the pirated copies of the book were being sold, so we needed a law which needs to curb that. The ultimate goal of every democratic setup is that no idea should be left un-heard.[10] However, that is not the only aim; the thing is that one should promote that individual to come up with an idea. The fascinating part is that with the increasing horizon of Article 19 we saw the gradual awareness of copyright Act. The patent law also saw its development during the same time. It is just a food for thought the more we understood the concept of liberty, we gain more clarity on the freedom of expression and from there we saw is that real growth in Intellectual property rights.
The aim of the IPR is to maintain the individual right with that of the public, with that in mind the copyright law came into existence. The point here was simple it was canvassing the importance of giving recognition to person over his work. The reason apart from getting an appreciation over the work is that you get an inspiration to right more be more creative and novel with your writings. As the author will be aware that there writing are now something which reflects them so they will try to come up with something better, and in addition to that there is always a monetary benefit.
Therefore, with the beginning of different medium of publication running from printing, film, music, cinema and other, the way of expression has been changed and what we see is that in the same line the copyright also extend to these mediums.[11] The Indian copyright at earlier used to be governed by the British legislation, however post independence things started to change with India being a signatory to international convention.[12] In addition to that UDHR and ICESR also talks about the protection of artistic right.[13] Further all of those international treaties canvassed for Freedom of expression and we have seen that both laws have their growth at the same time frame.[14]
Nexus between IPR and Freedom of Expression
It need not be further focused that there is nexus between both the concepts, however what needs to be comprehend here to what length this relationship extends. The US constitution first amendment talks about the Freedom of speech and the court has said that the purpose is that all the idea should be preserved and there should not be any monopoly.[15] This give the citizen vigor to express their views, which is been protected by the Freedom of speech and the manner in which it is to be protected is been governed by the copyright. The US constitution expressly points out for the protection of artistic, literary and scientific work.[16]
There is no doubt that copyright law is nothing but an extension of the Right of freedom of speech and expression, if a person expresses something in the form of an artistic work, then that work become its property and then it warrants for protection under Article 300-A, which is been ensured by copyright Act.[17] The copyright gives the author right to take out an economic benefit over his piece of work. It has been argued by many that copyright is imposing a restriction on freedom of speech because it is not allowing the express something, just because it has already been expresses
The term expression cannot be restricted to mean only with respect to work covered under copy right Act. Expression in its horizon includes the technological invention, scientific innovation, and any design. All these innovations are the way in which the scientist expresses themselves and there is an evident need to protect it, which is been ensured by Patent Act. When we understand that all these law stems from a fundamental right, it gives us an impression that there is strict need for protection to the originator of the work. Otherwise the world has seen many instances where the original inventor is not been given the royalty of his work.
The copyright protection is given on the expression of ideas rather than on the ideas itself, because it is an expression of ideas, which makes it a tangible property and that warrant for protection. It has been argued by many that the copyright law plays a dual characteristic where on the one hand it canvasses for the freedom of expression; on the other hand it is also imposing a restriction, because it is not allowing the other to express something just because it has already been articulated earlier.[18] However, it cannot be seen as an imposition on freedom to express, since the freedom is to express their ideas and not copy that of other. Because the basis of law is “Though shall not steal”.[19]
Under the Act, it won’t be violation of copyright work if it is been produced under the ambit of “fair use”. However, Article 19 calls for reasonable restriction under which a restriction can be imposed for the purpose of ‘morality’. When we look into the concept of “fair use” we understand that it is line with the reasonable restriction of Article 19.[20] So, we see here that how the freedom of expression has also enshrined in it the concept of fair use.
Recognition of Intellectual Property Rights under the Constitution
The researcher at this juncture would like to throw some light on how the recognition of Copyright and IPR has been followed under our constitution, by the court. This recognition of the IPR rights from other constitutional provision makes it an organic law like the constitution.
The Judicial Approach
The researcher under this would like to point a case of Entertainment Network India Ltd. (ENIL) v. Super Cassette Industries Ltd[21]. But before going taking a dip into that case, it is important to turn our attention to under the definition of the copyright and Patent. Both of these Act, gives the owner of the holder of this intellectual property an exclusive right over that property and the owner has the right to transfer this right it to anyone it want.[22] Therefore, it is a kind of a contractual right and from this logic the court has went ahead in the ENIL case. The court opined that:-
“The freedom to contract is the foundation of economic activity and an essential aspect of several Constitutional rights including the freedom to carry on trade or guaranteed under Article 19(1)(g) and the right to property under Article 300A of the Constitution of India.”[23]
It is important to note here that the court has not brought the IPR under the Freedom of expression, according to the researcher this could be because Freedom of expression horizon is wider. All these Acts have put certain limitations on the owner of the Intellectual property, which would be very hard to be justified if these rights would owe their origin to the Article 19(1) (a). Moreover, the court also took into its ambit Article 300(A), which kind restricts the right, because it is a legal right.[24] The reason is that in India is a socialistic right and sometimes these rights gives too much power in the hand on the owner of the property, which makes it difficult for the state in administration of the state. Therefore, the clause like compulsory licensing, where the government takes the property in the interest of the public owe their origin from this clause. The court in other cases also has said that these are to be kept wide, however in case of public interest certain restriction could be imposed.[25] Therefore, we see that how smartly the court has justified the various provisions of the various Intellectual properties Act and has also left scope for their further development.
The Clinical Trial Data
It is very important to understand at this juncture to understand that with the acceptance of the nexus between the constitution and IP rights. There are two things which can be inferred one is that the apart from the Act, the court has recognized other provisions which call for the putting the limitation on the IPR. On the other hand this also has led to the understanding of the intellectual property to a new zenith.
At this juncture the researcher would like to point take a dip into the other issue whether the clinical trial data, can be given a separate Intellectual property. It shall be understood that most of the work of pharmaceutical industry is based on the Research and Development, and there is plethora of Data which they collect. [26] With time the new medicines owe its origin to other chemicals, therefore the amalgamation of the trials can lead to new medicines.[27] The data collected for the earlier chemicals, needs some protection because it had been used in future course.[28] There is a lot of money is also been spent in the R&D of that work.[29] There is also one major implication of the Data Trial, it is that if the generic industry comes up for the approval of the medicine with slight change in the procedure and relying on the data of the pre-clinical trial of the patent medicine now they cannot do.[30] Therefore, it will delay the entrance of the generic industry. This in particular could be little harmful for the country, but then again on Article 300 A, polity can put limitation, under the ambit of the public interest.
Therefore, there has always been a huge hue and cry for the protection of these Data. It is understood, to be the extension of the patent, however it is not. [31] Article 39.3 of the TRIPS agreement, talked about the protection of the clinical Trial Data.[32] Though, it has been argued by the various scholars that, what this provision requires is that there shall be the protection to be provided to all this data, but the company need not be given the exclusive rights. However, one thing is acceptable which is that this data should fall in the ambit of property under Article 300 A, as understood in the ENIL case. Therefore, clinical protection is something which needs to be given.
The other provisions
The other provision which gives the power to the union to enact laws in respect to IP rights under the constitution are under Entry 49 of List I of Schedule VII. Article 51 A (h) talks about the development of the scientific temper, and as has been mentioned before one of the objective of the IP regime, in this case say for giving the patent it promotes the scientific fraternity for the promotion of new invention. In the word of out Late Prime Minister Jawahar Lal Nehru, it is a process through which you challenge the present notion and try to bring in the new evidence by doing trials to disapprove the earlier notion and bring the change.[33] The other facet of the scientific temper is that it has to develop the society morally.[34] This is something which is been reflected in the IPR provisions and i.e. the promotion of the science. The other provision which also calls for IPR protection is Article 48 of the Constitution which calls for Agriculture and animal husbandry on scientific lines.[35] Therefore, we see that the IPR protection is something which can be gathered from our constitution itself.
Contouring the IPR provisions in Light of the Constitution
The researcher has already pointed out that what is the importance of the project, because the recognition of helps us understand the various steps which is been taken by the polity and the judiciary, under the ambit of the constitution. At this juncture, the researcher would like to look into the some of the quandaries of IPR and the approach of judiciary in resolving it juxtaposes to the constitution of India. To understand this researcher would like to point out the Novartis AG v. Union of India[36] (Novartis).
Novartis case and its nexus with the Constitution
It is important to understand some of the important aspect the India is a developing country, so where on the one hand it promotes for liberalization and entry of the private sector and development of its market. By that it means that the promotion of better R&D and new inventions, however on the other India is a socialistic country and that means that a special care for the need to be taken, because they are three problems which an Indian citizen has to face one is that of affordability, availability, accessibility. Therefore public health is a very important function which needs to be performed by the state.[37] Moreover, the apex court in their judgment has interpreted Right to Life under Article 21 of the constitution which includes right to health and medical care.[38]
At this juncture let us turn out attention to the Novartis case, wherein the constitutionality of section 3(d) of the Indian patent Act, 1970 was challenged.[39] This was a case of a drug named Glivec, a critical drug used for the treatment of leukaemiaon. Now, there is another drug which is a modified version of the earlier drug, on that a patent was being filed saying that it has an enhanced efficiency.[40] The patent was rejected and the case came up before the apex court. Firstly, section 3(d) of the 1970 Patent Act was challenged as being unconstitutional under Article 14, on the ground that it is arbitrary, illogical and vague.[41] The court said that it is not arbitrary or vague and it has been incorporated for a special purpose so as to prevent ever greening of patent and that is something which is in consonance with the TRIPS agreement.[42] Secondly, the court rejected the argument that it has increased the efficiency of the drug.
At this juncture it shall be noted that it is only an ostensible reason which has been given by the court, we need to go beyond the boundaries and understand the real reason, for that we need to comprehend the Madras High Court judgment. It was pointed out that the reason why section 3 (d) is because of the ever greening of patent and the purpose is to ensure that the purpose of the state which is to maintain the public health. Without going into the profundity of the judgement, there seems to be little doubt that this judgment owe its origin from the constitution, which imposes a duty on the state to ensure that the people get the medicine at the reasonable price. The drug was of a Lakh per month and the generic drug was nine-tenth less than the original and if that drug would have been rendered illegal because of the grant of patent. So, the impact of it could easily being imagined. Therefore, we see here that how there has been a nexus been drawn between the paten Act and the constitution so as to shape the IP rights.
Constitutional Rights and copyrights Law
The researcher at this juncture would like to deal with two things firstly, the copyright amendment under the line of the constitutional provision, and secondly, what are the inherent limitation which can be contoured because of these provisions.
Effect of constitutional provision under copyright Act
The copyright brought an amendment under which an adaption of the work in a format designed for those disable people who has a visual impairment. It has been said by many scholars that it is against the constitution since it discriminates against those who can read Braille and those who cannot.[43] It has been argued by many scholars that it is against the Article 14 and Article 21 which calls for equal treatment and juxtaposes to that every shall have right to access to all the materials in there formats they want. However, because of the impairment certain class of people devoid of that knowledge.[44] Though the amendment has increased the scope of those people who are having disability, however there still seems to be a need to for enhancing the provision n light of the constitutional provision.
Inherited Limitations
One of the inherent limitations which the researcher would like to mention here is that of in case of Rape Victims. It is necessary to keep the name of the victims anonyms so as to ensure that no harm is been caused to them as they are already facing a lot of problem in the society. Media rights which can be extended to copyright, comes also with certain limitations i.e. what they are reporting should not harm the person concerned.[45] Therefore, in line with that only the IP rights have inherent limitations when it comes in nexus with public interest.
Conclusion
On the raison d’être of the above discussions, is that it discloses the in and out of the Intellectual property right juxtaposes to the constitution. The meticulous study lets us understand that intellectual property has evolved manifold over the progression of time due to the late advances in the continuous procedure of globalization. However, in amid of all that there has been constitutional provision to contour it.
Freedom of speech and expression is the basis of any developed government, it is one of those rights you have being born on this earth and the only thing which the state does is that it puts restriction on those rights. Therefore, copyright is an extension of the former rights therefore that being inherent rights so is that copyright. Other Intellectual property rights also are like the extension of the freedom of expression therefore, all those rights are also inherent rights of the originator. These rights promote the originator of the intellectual property to come up with a good work and that is the duty of the state because it helps in the economy of the state.
The court has taken to breed this IPR law from Article 19 (g) by pointing out that it is a contractual right. According to the researcher the reason which can be attributed for this step by the court is that Freedom of expression has a wider horizon and that would have created a greater quandary in shaping the IPR provisions. When we talk about copyright law it is only the expression of ideas which has the copyright protection, however when we talk about the ambit of Freedom of speech it might argue about the protection of ideas, as what amounts to expression is something which is a matter of moot.
Article 300 A of the constitution talks about the property and the court has said that in that property includes Intellectual property, and from there it can be argued to bring in the ambit of IPR clinical trial data. However certain limitation can be called for in the public interest.
In summary the interplay in the constitution and the Intellectual property rights has a played a major role in the jurisprudence of comprehending this law. Though the IP rights have been there for now more than two decades, however the recognition of it in today’s time is more than ever. IP rights stems from the constitution which makes it an organic law like constitution and give a breathing space for the development. One should always remember that it is not called Intellectual property Law but Intellectual property Rights and the shaping of it should be done having an holistic approach keeping in mind the constitutional mandate.
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[1] The law of Lexicon (3rd edn, 2012) Vol. 3, P.1143
[2] ibid
[3] ibid
[4] Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR), Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR), The Indian Constitution, 1950; and other various International Human Rights Organ.
[5] The Indian Copyright Act, 1957, S 14. It deals with the meaning of “copyright” and provides that it is an “exclusive right” A copyright owner has exclusive right : (i) to copy the work; (ii) to issue copies of the work to the public; (iii) to rent or lend the work to the public; (iv) to perform, show or play the work in public; (v) to broadcast the work or include it in a cable programme; (vi) to make an adaptation of the work or do any of the above in relation to an adaptation.
[6] Madhavi G Divan, “Copyright” in Facets of Media Law(Eastern Book Company, Lucknow 2006) 9
[7] The Indian Copyright Act, 1957, S 51. It identifies the varieties of acts, which infringes copyright and other rights of the owner created by the Act. Accordingly copyright of a work shall be infringed when any person without a proper licence from the owner : (a) does anything, the exclusive right to do which is conferred upon the owner by the Act; (b) permits to use any place for the performance of a copyrighted work in public for profit, unless he was not aware or had no reasonable grounds for believing that such performance would be an infringement of copyright ; (c) makes infringing copies for sale or hire. or selling or letting them for hire; (d) distributes infringing copies either for the purposes of trade or to such an extent as to affect prejudicially, the owner of copyright; (e) by way of trade exhibits in public; (f) imports infringing copies, except for the private and domestic use of the importer.
[8] Dr. Sreenivasulu N.S.& Somashekarappa Freedom of Speech & Expression and the Issues of Intellectual Property and Copyright
<http://manupatra.com/roundup/370/Articles/Freedom%20of%20Speech.pdf>
[9] Romesh Thappar vs The State of Madras AIR 1950 SC124
[10] W.R. Cornish. Intellectual Property, (Universal Law Publishing Co. New Delhi 2001)21
[11] ibid
[12] The Berne Convention for protection of Literacy and Artistic Works (Paris Act, 1971) and UDHR.
[13] UDHR art 27; Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author; International Covenant on Economic and Social Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICESR), art 15,To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author
[14] It is to be noted that the copyright law had continuous amendment with the latest of that being in 2010 in the same manner the scope of Article 19 has been developed over the period of time.
[15] Associated Press v. U.S. 326 US 1
[16] The United States Constitution, 1789; art 1, sec 8.
[17] Prashant Reddy, ‘Article 300A of the Constitution: A constitutional right to ‘data exclusivity’?’(De-Coding Indian Intellectual Property Law, Spicy IP May 1 2010) < http://spicyip.com/2010/05/article-300a-of-constitution.html> accessed 1 November 2015
[18] VK Ahuja, Intellectual Property Rights in India (Volume 1, Lexis Nexis, Butterworths Wadhwa, 2009)
[19] ibid
[20] The Indian Copyright Act, 1957, S 52; This section calls for the concept of “Fair use”
[21] CIVIL APPEAL NO. (2005) 5114
[22] The Indian Copyright Act, 1957, S 14
[23] Entertainment Network India Ltd. (ENIL) v. Super Cassette Industries Ltd CIVIL APPEAL NO. 5114 (2005)
[24] Reddy (n 17)
[25] Penguin Books Limited v. India Book distributors and ors 1985] AIR 29(DEL); R.G. Annand v. Delux. [1978]AIR 16131(SC)
[26] Animesh Sharma, ‘Data Exclusivity With Regard To Clinical Data’(2007) 3 ILJT 82
[27] Ibid.
[28] K. Satyanarayana, S. Srivastava &N.K. Ganguly, ‘Data protection issues in India’ (2006) Indian J Med Res 723
[29] G. Lee Skillington, ‘The Protection of Test and Other Data Required by Article 39(3) of TRIPS’ [2003] 1 (8) NW.J. INT’LL. & BUS
[30] Satyanarayana (n 28)
[31] Sharma (n 26)
[32] Agreement on Trade-Related Aspects of Intellectual Property Rights (15 April 1994), art 39.3; “Members, when requiring, as a condition of approving the marketing of pharmaceutical or of agricultural chemical products which utilize new chemical entities, the submission of undisclosed test or other data, the origination of which involves a considerable effort, shall protect such data against unfair commercial use. In addition, Members shall protect such data against disclosure, except where necessary to protect the public or unless steps are taken to ensure that the data are protected against unfair commercial use.”
[33] Jawaharlal Nehru, the discovery of India (Penguin India; New edition, 2008) 152: “[What is needed] is the scientific approach, the adventurous and yet critical temper of science, the search for truth and new knowledge, the refusal to accept anything without testing and trial, the capacity to change previous conclusions in the face of new evidence, the reliance on observed fact and not on pre-conceived theory, the hard discipline of the mind—all this is necessary, not merely for the application of science but for life itself and the solution of its many problems.”
[34] Mahanti Subodh, ‘A Perspective on Scientific Temper in India’ (2013) 1 JST
[35] The Constitution of India 1950, art 48
[36] Civil Appeal No. (2013) 2706-2716
[37] The Constitution of India 1950, art 38 and 39.
[38] Consumer Education and Research Centre v. Union of India AIR 1995 SC 922.
[39] The Indian Patent Act, 1970 sec 3(d):- the mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance or the mere discovery of any new property or new use for a known substance or of the mere use of a known process, machine or apparatus unless such known process results in a new product or employs at least one new reactant.
[40] Novartis AG v. Union of India Civil Appeal No. (2013) 2706-2716
[41] ibid
[42] ibid
[43] N.S. Sreenivasulu Law Relating to Intellectual Property( Partridge 2013) 432
[44] Somashekarappa (n 8)
[45] Madhavi G Divan, “Copyright” in Facets of Media Law(Eastern Book Company, Lucknow 2006)9
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