All questions
Year in review
i Dynamic injunctions
While dealing with cases of digital piracy, Indian courts have adopted website-blocking injunctions to protect the rights of content creators. Dynamic injunctions specifically help in cases where an infringing website may reappear as a redirecting, mirror or alphanumeric website. A dynamic injunction requires the owner to notify the ISPs of additional domain names or URLs that provide access to the websites, which were the subject matter of the main injunction.
The procedure being adopted by courts in India is to permit the plaintiff to file a subsequent application, (i.e., after obtaining an interim order bringing on record additional URLs or mirror sites, among others).17 High courts have been permitting extension orders to be passed by the subordinate courts on receipt of such applications.
ii Intermediary guidelines
The Ministry of Electronics and Information Technology released the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules 2021. These rules replaced the Information Technology (Intermediaries Guidelines) Rules 2011.
These rules, among other things, distinguish between social media intermediaries18 and significant social media intermediaries19 based on the number of users, and place a much heavier burden on significant social media intermediaries for personal data protection. For instance, all social media intermediaries are now required to have a grievance redressal mechanism for users, conduct due diligence if they wish to seek refuge under safe harbour provisions and ensure the safety of users online.
Significant social media intermediaries, on the other hand, must institute additional due diligence mechanisms. These include the appointment of a chief compliance officer, who must be a resident of India and is responsible for ensuring compliance with laws, and a nodal contact person, who must also be a resident and available for coordination with law enforcement agencies. Significant social media intermediaries are also required to publish a monthly compliance report, which should include details of any complaints received and actions taken to address such complaints.
Several other restrictions and obligations include informing users periodically of privacy policy guidelines; the collection, retention and preservation of information; the technical configuration of computer resources; and the reporting of cyber security incidents, among other things.
iii Anti-enforcement injunction order
In the case of Interdigital Technology Corporation & Ors v. Xiaomi Corporation & Ors,20 the High Court of Delhi restrained Xiaomi from pursuing or enforcing the anti-suit injunction passed by the Wuhan Intermediate People’s Court, which directed Interdigital to withdraw or suspend the patent infringement proceedings in the Delhi suit.
After examining the contentions of the parties in the two proceedings, the High Court of Delhi observed that the Delhi suit primarily dealt with patent infringement while the Wuhan case related to setting off the global royalty rate of Interdigital’s global patent portfolio. Thus, the issues involved in the two proceedings were considered different. In fact, the relief sought by Interdigital in the Delhi suit did not even form part of the Wuhan case and the mere possibility of conflicting orders between two courts was not sufficient to impinge over the lawful jurisdiction of another court in a sovereign country.
Development and enforcement of such orders by courts in India assumes importance as, often, the use of patents and copyrighted work may transcend boundaries. Typically, commercial contracts relating to rights and obligations may not be jurisdiction specific. Thus, a ruling on the lawful exercise of jurisdiction by Indian courts may be perceived as a stepping stone for curbing the practice of forum shopping in technology and cyberspace-related cases.
iv Patentability of computer software
The bar on patenting under the statutory regime is in respect of ‘computer programs’ per se21 and not all inventions based on computer programs. In today’s digital world, when most inventions are based on computer programs, it would be retrograde to argue that such inventions are not patentable. It is rare to see a product not based on a computer program. Thus, the effect and extant of such programs in digital and electronic products would be crucial in determining the patentability test. Patent applications in these fields would have to be examined to see if they result in a ‘technical contribution’.22
There has also been rapid growth, advancement and innovation in the field of artificial intelligence (AI), blockchain technologies and other digital products. It would not be sensible to simply rule out these things as non-patentable inventions simply because they are based on computer programs. Such an interpretation may act as a roadblock in affording protection to owners and would open floodgates of litigation.
v AI as co-author of artwork
The copyright office in India has recognised and accorded recognition to AI-created work – a painting titled Suryast. This stands in stark contrast to the copyright office’s refusal to register an application wherein AI was named as the sole author.
This inclusion has paved the way for AI and its role in artistic work that can be subject to copyright. That said, the key issue to be addressed is the interpretation of the definition of ‘author’.
vi Right to be forgotten
Courts have been approached repeatedly for an assertion of the right to be forgotten. The premise of this assertion is that the image of the person concerned has been tarnished and the fact that the petitioner has suffered loss. While the courts have not accepted the generalised right to be forgotten, they have, in specific instances, granted interim relief.23 Taking an opposite view, the Madras High Court held that the right to be forgotten must be construed in light of access to open justice.24 In this case, the petitioner was an accused in a case and had been granted acquittal subsequently. The court opined that a redaction of judgment would not fall under the exception of open justice as several other pieces of material in respect of the petitioner were available in the public domain.
