Is DNS Redirection A Viable Solution For Preventing IP Violations?

Of late, use of information and communication technology (ICT) for protection and strengthening of intellectual property rights (IPRs) has come into picture. ICT is used not only in a preventive manner but also in a curative and retaliatory manner.

Few months before it was reported in media that an Indian company was paid by the film industry to get copyrighted works removed from the Internet. The company openly admitted launching of Denial of Service (DoS) attacks against torrent sites that refuse to comply with takedown notices.

However, the use of ICT for protection of IPRs must be done in a legal manner and that also to the extent justified by the situation. The adopted measures must produce legitimate and legalised disabling and reasonably destructive effects and they should never exceed the limits prescribed by various laws across the world.

Domain name system (DNS) is the latest battle field for IP protection seekers. Malware writers are using the DNS cache poisoning attacks to manipulate DNS services. On the other hand, IP holders are contemplating using DNS redirection for protecting their IP rights.

For instance, US government is planning to use DNS redirection by acting at the behest of a coalition of interests looking for ways to defeat online piracy of music, movies, and other intellectual property. The US government is taking this drastic step as a part of the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011 (PROTECT IP Act) in the Senate, and it's House counterpart, the "Stop Online Piracy Act (SOPA)."

These Acts/Bills would require DNS server operators in the US to replace the correct IP address for a website with an alternate address provided by the Attorney General's office, if the website was "infringing". The definition of infringing is distributing illegal copies, counterfeit goods or anti-DRM technology.

While the views of ICANN are still not available yet regulating and manipulating DNS redirection in this manner is not a viable option. There are better techno legal methods to achieve the task where a balance between IP holders and Internet users can be achieved. Let us see how developments take place in this regard.

Online Brand And Reputation Protection Got Nasty

What is common between online brand and reputation protection, intellectual property rights (IPRs) protection in an online environment and cyber attacks? For a dominant majority of people there is none. However, if you are a keen observer of recent trend of online brand and reputation management and protection, you would immediately realise there is a strong and direct relationship between them.

In an old case, E2-Labs filed a case against zone-h and zone-h was blocked in India. Arguments against and in favour of such blocking were given from time to time but the site is blocked in India till now.

Not very late it was reported in media that an Indian company was paid by the film industry to get copyrighted works removed from the Internet. The company openly admitted launching of Denial of Service (DoS) attacks against torrent sites that refuse to comply with takedown notices.

Recently, Reliance Entertainment, as a pre-emptive measure for movie Singham, obtained a John Doe order from the Delhi High Court, restraining the screening/distribution of the film on various platforms, including Internet. The court order was served upon various internet service providers (ISPs) in India who blocked access to such file sharing/torrent sites. This affected genuine torrent sites and torrent users as well.

Now there is a new trend in this regard. Industry players are now hiring crackers as brand protectors and reputation managers. None can doubt that a good review boosts the image of a brand of a company and a bad review can hurt its goodwill and brand. The companies are trying to suppress the bad and critical reviews by hiring the services of such crackers.

The modus operendi is very simple. The crackers have to make it sure that the critical online review is not available and accessible to the existing and prospective customers. Earlier this year, a cracker, promising his customers “reputation management” services, had embedded code into the website to prevent search engines from recognising certain postings. In some cases, website visitors were misdirected to a false message stating that the posting had been redacted.

The cracker was hired by reputation management companies that accepted thousands of dollars in monthly fees from their clients, promising that critical reviews about their businesses could be removed from search engine results or deleted from the Internet altogether.

Till now the “legality” of these online brand protection and reputation management activities is not free from blemish. It is high time to formulate norms, standards and regulatory framework for these brand protection and management services in India.

Political Declaration Of UN General Assembly On HIV/AIDS

The signing of Trade Related Aspects of Intellectual Property Rights Agreement (TRIPS Agreement) was a landmark development in the field of intellectual property rights (IPRs) for various signatories to the same. The TRIPS Agreement brought the “harmonisation” of IPRs regime world over and became an internationally acceptable standard regarding IPRs protection.

However, it was subsequently felt that “public health” aspect needs a less stringent IPRs regime. The Doha Declaration on the TRIPS Agreement and Public Health was adopted by World Trade Organisation (WTO) to meet the public health objective.

To further, strengthen this public health initiative, a Political Declaration was adopted in the UN General Assembly on 10th June 2011 on HIV/AIDS. This declaration, inter alia, recognised the importance of affordable medicines, including generics in scaling up access to affordable HIV treatment.

It mentions that protection and enforcement measures for intellectual property rights should be compliant with TRIPS Agreement and should be interpreted and implemented in a manner supportive of the right of Member States to protect public health and, in particular, to promote access to medicines for all.

However, the underlying principle of India’s negotiating strategy on issues relating to IPR is that commitments will have to be fully circumscribed by TRIPS and the present domestic legal framework for IPR in India.

Doha Declaration On The TRIPS Agreement And Public Health

The Doha Declaration on the TRIPS Agreement and Public Health was adopted by the World Trade Organisation (WTO) in the Fourth Session of Ministerial Conference on 14th November, 2001. The updated status of the same is available at the WTO site. It says:

1. We recognize the gravity of the public health problems afflicting many developing and least-developed countries, especially those resulting from HIV/AIDS, tuberculosis, malaria and other epidemics.

2. We stress the need for the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) to be part of the wider national and international action to address these problems.

3. We recognize that intellectual property protection is important for the development of new medicines. We also recognize the concerns about its effects on prices.

4. We agree that the TRIPS Agreement does not and should not prevent Members from taking measures to protect public health. Accordingly, while reiterating our commitment to the TRIPS Agreement, we affirm that the Agreement can and should be interpreted and implemented in a manner supportive of WTO Members' right to protect public health and, in particular, to promote access to medicines for all.

In this connection, we reaffirm the right of WTO Members to use, to the full, the provisions in the TRIPS Agreement, which provide flexibility for this purpose.

5. Accordingly and in the light of paragraph 4 above, while maintaining our commitments in the TRIPS Agreement, we recognize that these flexibilities include:

(a) In applying the customary rules of interpretation of public international law, each provision of the TRIPS Agreement shall be read in the light of the object and purpose of the Agreement as expressed, in particular, in its objectives and principles.

(b) Each Member has the right to grant compulsory licences and the freedom to determine the grounds upon which such licences are granted.

(c) Each Member has the right to determine what constitutes a national emergency or other circumstances of extreme urgency, it being understood that public health crises, including those relating to HIV/AIDS, tuberculosis, malaria and other epidemics, can represent a national emergency or other circumstances of extreme urgency.

(d) The effect of the provisions in the TRIPS Agreement that are relevant to the exhaustion of intellectual property rights is to leave each Member free to establish its own regime for such exhaustion without challenge, subject to the MFN and national treatment provisions of Articles 3 and 4.

6. We recognize that WTO Members with insufficient or no manufacturing capacities in the pharmaceutical sector could face difficulties in making effective use of compulsory licensing under the TRIPS Agreement. We instruct the Council for TRIPS to find an expeditious solution to this problem and to report to the General Council before the end of 2002.

7. We reaffirm the commitment of developed-country Members to provide incentives to their enterprises and institutions to promote and encourage technology transfer to least-developed country Members pursuant to Article 66.2. We also agree that the least-developed country Members will not be obliged, with respect to pharmaceutical products, to implement or apply Sections 5 and 7 of Part II of the TRIPS Agreement or to enforce rights provided for under these Sections until 1 January 2016, without prejudice to the right of least-developed country Members to seek other extensions of the transition periods as provided for in Article 66.1 of the TRIPS Agreement. We instruct the Council for TRIPS to take the necessary action to give effect to this pursuant to Article 66.1 of the TRIPS Agreement.

Border Enforcement Of Intellectual Property In The EU And Indian Goods

European Union (EU) has been actively working in the direction of improving Innovation and protection of Intellectual Property Rights (IPRs). EU has recently released a new IPR Strategy. Under this new IPR Strategy, EU proposes an ambitious programme until the end of 2012 that foresees actions in all the main IPRs. These include IPRs like Patents, Trademarks, Copyright and Related Rights and Geographical Indications.

Similarly, EU has also published a Green Paper on the Online Distribution of Audiovisual Works. In the framework of the IPR Strategy (Commission's communication "A Single Market for Intellectual Property Rights"), this paper aims to contribute to the development of a digital single market by launching a consultation on the opportunities and challenges of the online distribution of audiovisual works. All stakeholders are invited to participate in this consultation, which is open until November 2011.

Now EU is streamlining its border enforcement of IPRs, especially those pertaining to Indian goods meant for third countries destinations. In this regard, EU India expressed their desire to sign a Letter of Understanding (LOU) to fairly deal with Off Patent Generic Drug Consignments. Now a LOU has been signed between EU India in this regard.

According to the Understanding, so long as the EU and its Member States adhere to the principles contained in the Understanding with respect to generic drugs in transit through the EU, India has assured the EU that India will not request the establishment of a Dispute Settlement Panel at the WTO. With the exchange of these letters, India and the EU have reached, for the present, an informal settlement of this dispute. This would also result in a better border enforcement of IPRs in the EU.

In addition, EU agreed to India’s request for adoption of guidelines which would confirm the principles agreed to in the Understanding with a view to give greater and immediate legal certainty for producers and traders. EU also agreed to reflect the principles contained in the Understanding in its proposal for a new Regulation to replace Regulation 1383/2003.

India has taken note of the commitments offered by the EU. India has reiterated the core principle of the Understanding that the mere fact that medicines are in transit through EU territory, and that there is a patent title applicable to such medicines in the EU territory, does not in itself constitute enough grounds for customs authorities in any Member State to suspect that the medicines at stake infringe patent rights. However, a situation in which medicines are in transit through EU territory and there is adequate evidence that satisfies the customs authorities that there is a substantial likelihood of diversion of such medicines on to the EU market may constitute enough grounds for customs authorities to suspect that the medicines at stake infringe patent rights in the EU.

India initiated dispute settlement consultations on 11 May 2010 at the WTO with the EU on the issue of detention of Indian generic medicines while in transit through the EU. The dispute was triggered by the repeated instances of detentions/seizure at EU ports, particularly in the Netherlands, of Indian generic drugs destined for export to Latin American and other countries. The detentions were made by invoking the EC’s Regulation 1383/2003 which contains customs procedures for taking action against goods suspected of infringing IPRs. These detentions were made during the period October – December 2008 at Schiphol airport, Netherlands. The consignments were initially detained and later, either destroyed or returned to India or allowed to proceed to the destination.

The detentions by the customs authorities of these generic medicine consignments were in violation of the obligations of the EU and the Netherlands under Article V of GATT which enshrines freedom of transit of goods through the territory of each contracting party of GATT via the routes most convenient for international transit. The detentions were also inconsistent with the EU and its Member States’ obligations under Articles 41 and 42 of the TRIPS Agreement as these detentions created barriers to legitimate trade, led to abuse of the rights conferred on the owner of a patent, were unfair and inequitable, unnecessarily burdensome and complicated and created unwarranted delays.

Moreover, these detentions were inconsistent with certain fundamental obligations of the EU under Article 31 of the TRIPS Agreement read together with the provisions of the Decision of the General Council of August 30, 2003 on the Implementation of Paragraph 6 of the Doha Declaration on the Trips Agreement and Public Health to ensure access to medicines for members of the WTO (“Members”) with insufficient or no capacity in the pharmaceutical sector to enable them to address their public health problems.

India was joined by Brazil in this dispute; Brazil also filed a similar complaint against the EU before the Dispute Settlement Body of the WTO. India and Brazil jointly held two rounds of consultations with the EU on 7-8 July 2010 and 13-14 September 2010 in Geneva. During these consultations, EU acknowledged that some provisions of the EC Regulation 1383 were misinterpreted by the customs authorities while detaining the Indian generic drugs. EU showed willingness to resolve this dispute without resorting to the WTO dispute panel.

Now that has been done, it is time to proceed further towards the conclusion of EU India Foreign Trade Agreement.

India Abandons The Demand For Establishment Of Dispute Settlement Panel At WTO

European Union (EU) and India have confronted each other on the issue of Generic Drugs shipments in the past. Indian Generic Drug consignments have been confiscated by some European Countries customs authorities in the past for violation of Intellectual Property Rights (IPRs).

Reacting sharply, India and Brazil filed a case against the EU in the World Trade Organisation (WTO) protesting the action. India contented that such seizures were against the provisions of multilateral Trade Related Intellectual Property Rights Agreement (TRIPS Agreement), as the medicines were off-patent both in India and the country where they were being exported.

Even some unpleasant speculations like removal of India from Generalised Systems of Preferences (GSP) Scheme of EU, disagreements over TRIPS Plus provisions vis-à-vis IPRs, issues of Data Exclusivity, etc also surfaced. However, all these issues were amicable settled between India and EU.

The best shot came when EU India expressed their desire to sign a Letter of Understanding (LOU) to fairly deal with Off Patent Generic Drug Consignments. Now a LOU has been signed between EU India in this regard.

According to the Understanding, so long as the EU and its Member States adhere to the principles contained in the Understanding with respect to generic drugs in transit through the EU, India has assured the EU that India will not request the establishment of a Dispute Settlement Panel at the WTO. With the exchange of these letters, India and the EU have reached, for the present, an informal settlement of this dispute.

India would watch with interest EU’s further steps in implementing its commitments. India’s options to revive the dispute remain intact in case the EU does not abide by the core principles agreed to in the Understanding.

To Whom Radio Stations Must Pay Music Royalty?

Radio stations around the globe are using songs for their broadcasts and are willing to pay reasonable royalties in this regard. But the crucial question is when radio stations play copyrighted songs in India, to whom they are liable to pay royalties?

Is it the music company, the music composers and lyricists, Indian Performing Right Society Limited (IPRS) or Phonographic Performances Limited? This question recently came for determination before the Bombay High Court.

The Bombay High Court upheld the right of the music companies over a song recording. The order by Justice S J Vazifdar is a welcome relief for the radio stations, hotels and discotheques, etc of India that are playing copyrighted songs. Music composers and lyricists were demanding a separate royalty every time their music was played by these entities.

The Bombay High Court also ruled that IPRS is not entitled to claim or demand royalty or licence fees from a private FM channel for the recorded song and music it plays on its radio station. This means that the FM stations would now have to only deal with Phonographic Performances Limited for obtaining a licence to play the music.

The judge, however, clarified that the owners of the copyright-composers and lyricists-do not lose all their rights when they allow it to be recorded. "It does not prevent the owners of the copyright in the underlying musical and literary works from making any other sound recording embodying the same underlying work," said Justice Vazifdar.

The HC has stayed the judgment till October 31, 2011 and an appeal against the decision is very likely.