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Trending: Call for Papers Volume 3 | Issue 2: International Journal of Advanced Legal Research [ISSN: 2582-7340]

Are NPOs a double-edged sword in the hands of Law?

Introduction

The Copy Right Act of 1957 has etched Section 55 within it, to provide civil remedies in case of violation of intellectual property rights. Section 55 stipulates that, when a copyright is infringed, “the owner of the copyright shall be entitled to all such remedies by way of injunction, damages, and accounts and otherwise as are or may be conferred by law for the infringement of a right”. Today’s advanced technology coupled with the various loopholes in law facilitates malefactors to hide behind their masks and catching them is often next to impossible without the help of a third party. One of the most fascinating interlocutory weapons used in the fight against the pirating of intellectual property rights is the Norwich Pharmacal Order. Even though, this weapon was built to aid plaintiffs in bringing the wrongdoers to justice, NPO is criticized by some legal scholars to be a double-edged sword that fights crime with crime. 

The origin of the Norwich Pharmacal Order can be traced back to the judgment granted in the year 1974 by the House of Lords for the case; Norwich Pharmacal Co. v Customs and Excise Commissioner. The patent rights of the appellants of the case were infringed by an anonymous group of people who manufactured and imported the unique chemical compound created by the appellants. Due to the anonymity of the wrongdoers, the appellants approached the Custom and Excise commission seeking the names of the importers but they refused to share the confidential information. In this historically important case in the field of IPR, the House of Lords ordered the Custom and Excise commission to produce the names and addresses of the culprits. Henceforth the Norwich Pharmacal Order has been used by common law countries as an interlocutory measure that commands a third party to disclose necessary information or documents to the plaintiff. 
Over time, the employment of the Norwich Pharmacal Order has evolved with the expansion of technology. Currently, the biggest targets against whom this weapon is deployed is the Internet service providers or the website and database hosts. Many users around the globe are maneuvering the internet which is a vast labyrinth as a decoy to perpetrate the transgression of intellectual property rights. The legal conundrum arises with the conflict instigated by the NPO between privacy, data protection, and safeguarding of the intellectual property rights. Some legal scholars argue that, while trying to remedy the IPR breach, the NPO stabs the justice system in the heart by violating the fundamental rights like privacy while infringing data protection rights. In the landmark case of Golden Eye (International) Limited v Telefonica UK Limited, his Lordship Arnold J noted that “The grant of the order sought will invade their privacy and impinge upon their data protection rights”.

Through this paper, I argue that the bringing in of privacy and data protection agendas is a red herring aimed at luring the court to move away from imparting justice. In the case EMI Records (Ireland) ltd v UPC Communications (Ireland), the Irish High Court held that “Criminals leave the private sphere when they infringe the rights of others or conspire in that respect”. The presiding judge, Charleton J stipulated that by upholding the privacy violation contention, the court will be endorsing the “mass copyright infringement”. In Golden Eye International Limited, the Court of appeal authorized the implementation of the Norwich Pharmacal Order. The House of Lords went on to say that the argument pertaining to the breach of privacy and data protection is merely harboring the transgressors of intellectual property rights.

The irony for the need for data protection in an online world is something that cannot be missed. Through platforms like the various social media sites, blogs, online chat rooms, and so forth, individuals furnish personal information for the world to see. This easily available data can be helpful in catching an offender via the internet service providers or any other third party for that matter. The question then arises, even if the user is protected from being recognized, is he or she right for infringing the copyright of another individual on the basis of the anonymity assured to them by the internet service providers? If the service providers do not corporate, these offenders will grow in number and cause large scale violations of intellectual property rights that can cause irreparable damage.

There are strict conditions that are laid down by the court which calls for the rightful application of the NPO. In order for a plaintiff to be granted an NPO, he or she has to provide and prove sufficient interest in the disputed matter. Another mandatory condition that needs to be adhered to is the need for the plaintiff to display before the court that there are no other means to acquire the necessary information. Moreover, the third-party should have information about the malefactors that can be crucial to deciding the case. By adhering to these conditions the court can ensure that the NPO does not violate the fundamentals of the legal system by only sanctioning it in needful legal situations. Hence NPOs are not a double-edged sword; instead, it’s a weapon to attain justice for the copyright proprietors.

References

1. Section 55, Indian Copyright Act 1957.
2. Hoffmann, Leonard. “Changing Perspectives on Civil Litigation.” The Modern Law Review, vol. 56, no. 3, 1993, pp. 297–306. JSTOR, www.jstor.org/stable/1096669
3. [1974] AC 133, 175B-C, per Lord Reid
4. Cripps, Yvonne. “Judicial Proceedings and Refusals to Disclose the Identity of Sources of Information.” The Cambridge Law Journal, vol. 43, no. 2, 1984, pp. 266–289. JSTOR, www.jstor.org/stable/4506652
5. Udwadia.M.Yazad. “Remedies in case of IPR Violation.” Intellectual Legal Solutions.
6. Hoy, Ruth. “The Intersection Between Data Protection and Trademark Rights: Balancing Fundamental Rights.” https://www.inta.org/wp-content/uploads/public-files/advocacy/committee-reports/81452413_2_UKMATTERSINTA-Data-Protection-Article.pdf
7. Golden Eye (International) Limited v Telefonica UK Limited [2012] EWHC 723, [119]
8. Ibid
9. EMI Records (Ireland) ltd v UPC Communications (Ireland) Ltd [2010] IEHC 377
10. Ibid
11. Supra Note 7
12. Bellamy, Jonathan. “PROFESSIONAL LIABILITY CLAIMS: NORWICH PHARMACAL PROCEEDINGS AND HUMAN RIGHTS.” http://www.39essex.com/docs/articles/Norwich_Pharmacal_Presentation_Paper_PNLA.pdf
13. Ibid Image Source -Elizabeth Sathish Jindal Global Law university, Delhi

Author: Elizabeth Sathish, Jindal Global Law University, Delhi.

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