NISCAIR Online Periodicals Repository Community: Journal of Intellectual Property Rights (JIPR)

Entertainment Network v Super Cassette Industries: Compulsory Licensing in the Copyright Demystified

Title: Entertainment Network v Super Cassette Industries: Compulsory Licensing in the Copyright Demystified

Authors: Singh, Himanshu Raman; Singh, Preetesh Raman

Abstract: Compulsory licences are exceptions to the exclusive rights of the copyright holders. If monopolistic conduct or exclusionary conduct of the licensor is observed, then it will create anti-competition in the market and kill potential. If these copyright holders by the exercise of their right refuse to communicate or withhold their work from public then it will affect public interest. India is a developing country, her economic, social and educational developments have to be accelerated and not retarded. Public interest cannot be put on stake just for the profit of one person. The Supreme Court’s decision in Entertainment Network (India) Ltd v Super Cassette Industries Ltd¹ can be rendered as an epoch-making case in the field of intellectual property. The case became all the more important as it involved wide ranging issues like interpretation of Section 31 of the Copyright Act and the purposive interpretation placed on it treading on a thin line balancing the public interest with commercial interest. The radio industry in India is one of the booming sectors. Out of 139 music companies around 69 are private radio stations.² This paper reviews and critiques the decision in the case alongwith the law prevailing in other countries. This paper makes two important contributions bringing aspect of compulsory licences to the fore and providing step by step discussion on the above judgment. The paper also highlights anxiety of the industry and further suggests the way out of this.

Page(s): 201-211

Forward-Looking Valuation of Strategic Patent Portfolios Under Structural Uncertainty

Title: Forward-Looking Valuation of Strategic Patent Portfolios Under Structural Uncertainty

Authors: Collan, Mikael; Kyläheiko, Kalevi

Abstract: Strategic patent portfolios are intangible assets that technology oriented companies hold to secure their competitive advantage in the future. Traditionally, valuation of forward-looking strategic patent portfolios is more an art than a science, nevertheless, they play an important role in the future competitive advantage positioning of high-tech oriented companies.
This paper discusses forward-looking strategic patent portfolios and presents some new ideas on how numerical valuation methods could be used in framing the valuation of these portfolios. The basis on which the forward-looking far away from exploitation strategic patent portfolios are valued is crucially different from the valuation of ‘in production’ patents or already existing licensable IPRs, since future strategic patents must be based on vague information with structural uncertainty about the future. The authors show how flexible tools and analysis using the pay-off method can be used to solve these complex problems faced by companies; and illustrate the same using a numerical example.

Page(s): 230-241

Reputation Building to Reduce Risk of IP Litigation and Infringement Allegation

Title: Reputation Building to Reduce Risk of IP Litigation and Infringement Allegation

Authors: Qinghai, Li; Sizong, Wu; Chen, Shouming; Junzhe, Ji

Abstract: This paper explores why Chinese firms are easily subject to litigation and accusation of IP infringement, and how they can reduce these associated risks. The finding suggests that the negative reputation of IP abuses, penetration in high value-added area in terms of branding and R&D, entry in developed countries with sophisticated products, and passive response to litigation and allegation, are important reasons. Accordingly, a framework is proposed to stress well-intended reputation building for avoidance of litigation and allegation. Three strategies are recommended to build reputation: getting technology and IP with joint venture and acquisition, getting technology and IP with R&D and patent application, and toughness against litigation. Five Chinese case firms are used to illustrate these strategies. It seems to be the first study to incorporate reputation into IP defensive strategies, and therefore has great implications for firms from emerging economies which attempt to upgrade from labour-intensive to R&D and brand intensive enterprises.

Page(s): 259-271

TRIPS Agreement and Public Health: The Post Doha Crises

Title: TRIPS Agreement and Public Health: The Post Doha Crises

Authors: Agitha, T G

Abstract: Though the Doha Declaration on TRIPS Agreement and Public Health has clarified that public health has predominance over private commercial interests, the victory of public health over trade interests appears to be momentary. The big pharmaceutical industries and the developed countries, using trade sanctions, effectively prevented developing countries from making full use of the flexibilities in the TRIPS Agreement procured by the Doha Declaration. Ultimately free trade agreements are made use of by developed countries to impose TRIPS plus obligations on developing countries. These developments once again ascertain that trade forum has its limits in protecting public health interests against trade interests.

Page(s): 287-293