In India, of late, much emphasis is being given by the Government of India (GoI) to Intellectual Property (IP) awareness particularly amongst higher educational  institutions such as technology institutes. The reason for such emphasis is heightened now more than ever before considering the recent pandemic and the need for Indian businesses and institutions to innovate, invest in research, and develop means of production (of goods and services) indigenously. This in turn results in IP generation. Towards promotion of IP awareness, GoI, through the Ministry of Education, has time and again stepped in and led various initiatives, the latest of which  is ‘KAPILA’ Kalam Program for Intellectual Property Literacy and Awareness launched in October 2020. 

One could argue that IP literacy and awareness at higher educational institutions like undergraduate and graduate level is perhaps more useful than at elementary or high-school level, but the changing times of an internet and tech savvy generation nudge us to give more thought to promoting IP awareness and education in schools as well. Accordingly, the author is of the view that it is imperative that IP awareness programs be carried out at even school level  such that the larger mission of protecting one’s own work and respecting the work of others is picked up at an early impressionable age. In trying to achieve this, GoI may look at unique ways adopted by various other countries including United States, Switzerland, Singapore, Denmark etc. to inculcate IP awareness as part of school curriculum. The National Intellectual Property Offices in each of these countries have taken up various initiatives focused at raising IP awareness right from the primary school level. Sensitizing primary school students by creative ways is a doable task. One way could be by integrating knowledge of IP within different subjects and curriculum throughout all educational levels. Others may include dissemination of knowledge on copyrights, brands,  designs etc., through skits, plays, musicals, art, craft, writing contests and workshops.

Currently, it can be seen that there are some initiatives that the GoI is taking towards educating school children, but most of the government initiatives are patent oriented and promote sensitizing relevant groups with respect to their rights and knowledge in the sphere of patents. While the direct correlation between patents and innovation cannot be overruled, it is important that awareness and education of other IPs such as Brands (Trademarks), Copyrights, Designs, etc.  be also promoted in adequate measure. 

The need to educate and sensitize children early on such that they are alive to counterfeit (of toys, pharmaceuticals, etc.) or piracy (of games/movies, etc.) as well as are encouraged to innovate and invent should be the driver of policies in new age India.  

[1] https://government.economictimes.indiatimes.com/news/education/national-ip-literacy-initiative-will-be-taken-up-soon-education-ministrys-cio/77648014

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

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The Kris Gopalkrishnan Committee, in July 2020, suggested a framework for regulation of Non-Personal Data (‘NPD’) vide its Report on NPD Governance Framework (the ‘Report’). Pursuant to comments/suggestions from public thereto, a revised Report was released in December 2020 inviting suggestions/feedback till January 31, 2020.

Some of the notable changes/additions in the revised Report include addressing the interface between regulation of NPD and the Personal Data Protection (‘PDP’) Bill. The Report clarifies that mixed datasets comprising of both personal data and NPD will be governed by the PDP Bill. It suggests deleting Sections 91(3) and 93(x) of the PDP Bill which deal with a regulatory framework covering even NPD with a view “to ensure that the two frameworks are mutually exclusive…”. Further to the recommendation that consent should be obtained for anonymisation/use of personal data, the Report suggests that the Data Custodians should give notice and offer an option to the Data Principals – (i) to opt out of anonymization; or (ii) revoke consent (where personal data is to yet to be anonymized). It clarifies that cases concerning re-identification of NPD will strictly fall within the purview of the PDB Bill.  

 The Report defines ‘Data trustee’ as “…Government…or a non-profit Private organization…responsible for the creation, maintenance, data-sharing of High-value Datasets…”. It defines High Value Dataset (HVD) as “…a dataset that is beneficial to the community at large and shared as a public good…” and proposes mechanisms for creation and sharing of HVD which, inter alia, includes creation of an Innovation Advisory Body. Further, it specifies parameters for gauging the threshold limit to be set for mandatory registration of Data Businesses (viz. organizations meeting a threshold of data collection/processal) as gross revenue, number of consumers/households/devices handled and % of revenues from consumer information. It specifies that registration as ‘Data Businesses’ below the set threshold limit will be voluntary. It lists purposes for data sharing as sovereign (viz. for national security, legal etc.), public good (viz. research, innovation etc.) and business purposes. With respect to mandatory data sharing, it states “Outside of a Public Good purpose, private entity to private entity mandatory data sharing is not considered…”. It further specifies that NPD which likely to violate privacy or involves trade secrets/proprietary information will not be included for sharing.

The Report also, inter alia, analyses NPD framework from the perspective of Property Law, Copyright Law, Trade Secrets Law, IT Act, 2000, Competition law and the Indian Constitution.

The Report of Committee can be accessed here: https://static.mygov.in/rest/s3fs-public/mygov_160922880751553221.pdf

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

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As COVID-19 swept the world, the consequent mandatory health protections, such as nationwide lockdown and social distancing resulted in traditional court system and physical hearings coming  to a halt. As a result, the legal profession was forced to adapt to  the technology-enabled virtual courts, which arrived much sooner than expected.

The Trade Marks Office (“TM Office”) also adapting to this novel situation, notified that it will commence show-cause hearings in  trademark matters through video conferencing.[1] However, the TM Office has not made these virtual hearings mandatory and  has provided that only those matters will be listed  wherein applicants or their authorised agents have consented (via email to the TM Office) to attend hearings through video conferencing.

The concept of virtual hearings is not new and was introduced by the Trade Marks Rules, 2017 with the objective of expediting the registration process. As a matter of fact, the TM Office even in the past has conducted virtual hearings , but it never attracted the attention of practitioners much . However, currently, with the pandemic radically changing the state of affairs, virtual hearings  in trademark matters is a much appreciated move. The same is reckoned to not only provide relief to cases drastically distressed by an absolute lockdown,  but also help in clearing  the backlog at the TM Office.

 Notably, at present, the TM Office has only specified that  virtual hearings  will be held in  show-cause matters. However, it should be taken into consideration that remote and virtual functioning is the new way of the world’s working and it is here to stay. Given the state of backlog in the contested/opposition matters at the TM Office, it is imperative that introducing a policy for conducting virtual hearings  in opposition matters as well be considered. We are seeing a total shift in outlook and approach at all levels, with the Supreme Court, the High Courts, and other judicial bodies attending to contested cases through virtual mode on a day-to-day basis. In light of this, the TM Office should also consider going fully virtual viz. even in contested/opposition matters. .

As the TM Office will likely continue its operations virtually for the time being, enabling attendance to opposition matters through virtual mode will only be a step  forward  and may very well be appreciated by practitioners and as well as the concerned parties. As of now, the TM Office continues to conduct virtual hearings in show-cause matters, however it will be interesting to see as and when the TM Office commences attending to contested matters virtually.

[1] Trade Marks Registry Public Notice dated August 26, 2020, < http://ipindia.nic.in/writereaddata/Portal/News/707_1_Public_Notice_TLA.pdf>, last accessed on December 30, 2020.

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

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The Ministry of Electronics and Information Technology (MeitY), in November 2020, released the draft Data Centre Policy (“the Policy”) for evolution of Data Centres infrastructure within India, necessitated by the data localization provisions of the Data Protection Bill. The Policy emphasizes its vision to “Make India a Global Data Centre hub, promote investment in the sector, propel digital economy growth, enable provisioning of trusted hosting infrastructure to fulfil the growing demand of the country and facilitate state of the art service delivery to citizens.”

The Policy outlines strategies for growth of Data Centre Sector (DCS). It proposes that an “Infrastructure Status” be attributed to DCS such that it avails benefits of long-term credit from lenders at easier terms. It suggests having Data Centre Incentivization Scheme (DCIS) which will, inter alia, specify fiscal and non-fiscal incentives for DCS. It further proposes setting up of specific zones called Data Centre parks (viz. secure Data Zones to serve the high needs of storage, networking and provision of a wide range of data-related services) with necessary infrastructure such as electricity, water etc.

To create a favorable ecosystem for better operation of DCS, the Policy lists key focus areas which include provision of better infrastructure such as quality, uninterrupted and long-term power supply, setting up power generation units at the Data Centre Parks, using renewable energy etc. It indicates that MeitY along with the Department of Telecommunications would facilitate robust and cost-effective connectivity backhaul by providing utility corridors for Optical Fibre Cables, dark fibre etc. It suggests enabling a Dial Before You Dig Policy to “allow easy access to information about the underlying network infrastructure” and improving international connectivity which “will be a key driver for global players…for their Data Centre investments”. It further proposes having a single window clearance system for setting up Data Centres and declaration of Data Centres as ‘Essential Service’ under The Essential Services Maintenance Act, 1968 for enabling continued services. It emphasizes on creation of a separate category code for Data Centres buildings in the National Building Code, 2016.

The Policy proposes setting up of Data Centre Economic Zones comprising Hyper-scale Data Centers, Cloud Service Providers, IT companies, R&D units etc. It outlines an institutional mechanism for governance wherein it is proposed that the following bodies be set up: Inter-Ministerial Empowered Committee (IMEC), a decision-making body in the DCS, Data Centre Facilitation Unit under IMEC to oversee implementation of various measures and initiatives and Data Centre Industry Council to act as an interface between DCS and the Government.

The draft Policy can be accessed at: https://www.meity.gov.in/writereaddata/files/Draft%20Data%20Centre%20Policy%20-%2003112020_v5.5.pdf

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

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In the wake of the global health crisis caused by COVID-19, India and South Africa have made a joint proposal to the World Trade Organization (WTO) Council for Trade-Related Aspects of Intellectual Property Rights (TRIPS). The Proposal seeks that the Council recommend waiver from implementation, application and enforcement of Sections 1, 4, 5 and 7 of Part II the TRIPS Agreement in relation to “prevention, containment or treatment of COVID-19”.

The Proposal has been made in view of the growing number of positive cases, rising death toll, continual impact of preventive measures such as distancing practices on economic activities and healthcare facilities, and the claimed disproportionate impact of all the above on developing and least developed countries. It views unimpeded access to affordable healthcare treatments and facilities, including, but not limited to essentials such as diagnostic kits, ventilators and possible vaccines, as an effective step towards managing the universally growing needs. Towards this, it hypothesizes Intellectual Property Rights as possibly impeding the above aim, and therefore proposes waiver of the aforementioned provisions in respect of “prevention, containment or treatment of COVID-19” for an indeterminate period, with a provision for annual review by the General Council.

The Proposal specifically recognizes that the treatments, equipment and know-how required to combat the crisis are covered by multiple IPR regimes, and are not necessarily:

(i) limited to ‘production of pharmaceutical products’ as currently covered under Article 31bis of the Agreement; or

(ii) accessible to countries that do not meet the standards required under the provision.

The Proposal is under discussion by the TRIPS Council, and was last tabled on October 16, 2020, where Eswatini and Kenya came forward as co-sponsors, and various other developing and least developed members such as Bangladesh, Sri Lanka, Nepal, Egypt, Tanzania on behalf of the African Group, Nicaragua, Honduras, etc. came in support of it. As of the last session, it also had significant opposition from vastly developed members including the European Union, United States of America, Norway, the United Kingdom, etc. The Council has not yet arrived at a decision on the Proposal, which will likely be discussed in further sessions.

The Joint Proposal can be accessed here: https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=q:/IP/C/W669.pdf&Open=True

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

Copyright: ALG India Law Offices LLP.