Current Issue

 Volume 13 Issue 2
 

India's New IP Policy: A Bare Act - Shamnad Basheer & Pankhuri Agarwal.

Amidst much fanfare, the Indian government unleashed an Intellectual Property Rights (“IPR”) policy around two years ago. This paper aims at the first ever comprehensive assessment of this policy, its purported rationale and implications. It argues that the policy is a shoddily drafted and poorly conceptualised document, which is resting on empirically unproven intellectual property (“IP”) assumptions. It is more faith-based than fact-based and endorses a fairly formalistic view of IP, taking it to be an end in itself.

The paper goes on to demonstrate through the Carol Bacchi frame of “What’s the problem represented to be” (“WPR”) that the very rationale for the policy itself is unclear.

PDF – India’s New IP Policy: A Bare Act – Shamnad Basheer & Pankhuri Agarwal 

 

It's All About Principle: How Patent Trolling, Over Broad Patents, Evergreening, And Patent Shelving Represent A Departure From The Patent Clause And How To Return To The Principle Of The Patent Clause - Morgan L. Stringer

This article explores differing patent abuses that reflect how current patent law has swung drastically away from the Patent Clause of the U.S. Constitution. The purpose of the Patent Clause is to ensure that inventors are given a limited monopoly in order to encourage innovation, or to “progress the useful arts and sciences.” There are many forms of patent abuse, but this article will explore patent trolls, overbroad patents, evergreening, and patent shelving as forms of patent abuse that reflect a departure from the Constitutional principle of progress in patent law. Each of these patent abuses hinders progress, so according to the Patent Clause, Congress has the power to correct these abuses and must return to this Constitutional principle of progress. In addition, the Court must answer inconsistent or unanswered questions, where Congress has failed to do so. All of these patent abuses are related to one another, so solving one of these patent abuses will help prevent another patent abuse discussed. Furthermore, this article also proposes various solutions to decrease and prevent patent trolling, overbroad patents, evergreening, and patent shelving.

PDF – It’s All About Principle: How Patent Trolling, Over Broad Patents, Evergreening, And Patent Shelving Represent A Departure From The Patent Clause And How To Return To The Principle Of The Patent Clause – Morgan L. Stringer.

 

TRAI Tariff Orders- Effect on Broadcasting Sector - Ameet B. Naik

Tony Benn, the veteran British Labour politician, as the then Minister of Technology in 1968, made the statement in the context of journalism. However, in the current Indian current scenario, the quote measures true with respect to the entire broadcasting sector, with Telecom Regulatory Authority of India (TRAI) scampering to regulate the third
largest broadcasting market in the world. The article deals with the impact of the TRAI Tariff Orders passed from time to time to regulate the broadcasting sector. The author acknowledges TRAI’s competence to fixing tariff, as has been judicially held, but questions the extent to which the said power can be exercised, while taking into consideration the apparent conflict of the general statute establishing TRAI with the special enactment of Copyright Act, 1957, and also the apparent inconsistencies in delegated legislation of TRAI. The article is divided into three parts: first, the TRAI Act, 1997 and its Scheme, second, TRAI Tariff Orders, and third, the impact of the Tariff Order on the Broadcasting Sector and its conflict with the Copyright Act, 1957.

PDF – TRAI Tariff Orders- Effect on Broadcasting Sector – Ameet B. Naik

 

Zero Rating As The Demon And The Saviour: Rethinking Net Neutrality And Freedom Of Expression For The Global South - Smarika Kumar

Zero-rated mobile applications like Internet.org have been characterised both as a supposed exterminator of the digital divide and as a violation of net neutrality in developing countries like India. This serves to illustrate how net neutrality and bridging digital divide have been posited as goals in contradiction to each other. How this seeming contradiction is relevant to developing a more nuanced understanding of the freedom of speech and expression and of net neutrality is the subject of the present paper. Accordingly, the paper is divided into three broad sections: I begin by analysing how far different conceptions of freedom of speech and expression respond to private forms of clamping of speech. To do this, I invoke Jack Balkin’s theory of democratic culture and contextualise it against the jurisprudence on freedom of expression in contexts of private discrimination in India. I then illustrate how a negative interpretation of net neutrality is able to successfully address some of these forms of private discrimination. Thereafter, the second section begins by tracing the forms of private discrimination, which negative net neutrality is unable to address by delineating the different kinds of (lack of) internet access. It then maps these factors hindering internet access against two important aspects of freedom of speech and expression, viz. the principle of media diversity and the goal of expanding citizens’ access to media infrastructure, some aspects of which can be termed structural media access. In the third section of this paper, I argue that the delinking of the principles of media diversity and structural media access in law and policy debates hinders an inclusive response to all forms of private discrimination. Thereafter, through an examination of TRAI’s policy engagement with these issues, I argue that these principles need to be relinked for the development of a concept of net neutrality which comprehensively addresses the concerns of freedom of speech and expression for citizens in the global south.

PDF – Zero Rating As The Demon And The Saviour: Rethinking Net Neutrality And Freedom Of Expression For The Global South – Smarika Kumar