Poorna’s project explores how the structure of tangible property can be transposed to copyright to achieve a balance between ownership and user rights. At its core, Poorna’s research examines how private law principles enable better conceptualisation of copyright law. She will pursue an historical and comparative analysis of property and copyright law in various common law jurisdictions.
Poorna completed her DPhil at the Law Faculty at Oxford in 2017 on implied licences in copyright law supervised by Professor Graeme Dinwoodie. Over the last few years, Poorna has taught several core private law subjects such as Land Law, Contract Law and Tort Law at various colleges in Oxford and Copyright Law at the Law Faculty.
Poorna is affiliated to the Queen's College, Oxford as an Extraordinary Junior Research Fellow. She is also an Academic Member of the Oxford Intellectual Property Research Centre.
Poorna obtained her undergraduate law degree from National Law School of India University and her LLM from SOAS, University of London. Before embarking on her DPhil, Poorna practised intellectual property law in Hong Kong and was a litigator in India.
- It is often claimed that the UK has a ‘closed list’ of works protected by copyright. While the Copyright Designs and Patents Act, 1988 does categorise works to determine their eligibility for copyright protection, does the very existence of categories make the list closed? Does it not depend on how open-ended each category is, before a conclusion on its exhaustive nature can be drawn? This article examines these questions taking a closer look at the textual aspects of the CDPA and explores using interpretive techniques what it means to use the inherent flexibilities of the CDPA to their fullest extent within the statutory framework.A person infringes copyright if he exercises an exclusive right without the licence of the copyright owner. Copyright law in most jurisdictions also provides for statutory exceptions to balance competing interests addressing specific instances of permitted uses of copyright works to achieve specific policy objectives. US law also has broader and more flexible fair use provision. If a person’s actions are not covered by an express licence, by the statutory exceptions or by fair use provision, in common law countries it may be possible to imply a licence to cover these actions. In contrast to the rigidity of statutory exceptions, implied licences are characterised by their malleability to address more diverse circumstances as the need arises, achieving a fairer balance in allocation of interests. However, implication as a process is contentious and there are no established rules for implying a copyright licence. The uncertainty surrounding implying a copyright licence lies in not knowing the legitimate bases for implication and the extent to which the implied licence can extend under the given circumstances, resulting in courts not embracing implied licences as readily as they should. I argue that to allay the fears of uncertainty, one must address the process of implication itself, and make it more methodical and transparent. I draw inspiration from contract law, and in particular, the English common law rules of implication of a term into a contract, to guide the process of implying a copyright licence. Although much controversy also surrounds contractual rules of implication, contract law can inspire the legitimate bases for implication of a copyright licence. A term can be implied into a contract based on (a) the unexpressed joint intention of the parties to the contract; (b) a custom or usage in a particular trade; and (c) public policy to achieve broader objectives regardless of the intention of the parties. Applying these to copyright, a copyright licence can be implied based on (a) the unexpressed consent of the copyright owner ascertained from her conduct; (b) a custom or usage; and (c) public policy to achieve broader objectives. Having thus classified implied copyright licences based on the underlying justification for implication, at the next level certain frameworks can be developed under each basis for implication, in order to make the process of implication methodical and transparent, bringing certainty into the process of implication.DOI: 10.1007/s40319-018-0721-3This article explores how exhaustion and non-exhaustion of certain rights can be more coherently explained using the common law doctrine of implied licence. Exhaustion, as the name suggests, only focuses on the effect of the first sale or other transfer of ownership of the original or the copy of the work on the copyright owner, namely the consumption of the distribution right. Although the consumption is distinctly for the benefit of the transferee of the original or the copy, the provisions in the directives on exhaustion do not reveal the effect of exhaustion on these transferees, nor the policy justifications that drive such consumption. These provisions only provide simplistically that the distribution of goods exhausts, but the provision of services does not. This leads to certain misconceptions that exhaustion cannot occur if the copy of the work is not in a tangible medium and that for all provision of services authorisation is required. The doctrine of implied licence can help address these concerns. Instead of regarding exhaustion as a statutory phenomenon, reframing it as a licence implied by statute changes the focus from the right lost by the copyright owner to the permission gained by the transferee. Further, the doctrine of implied licence is sensitive to the justifications that drive the implication of the licence, addressing the question as to why exhaustion must occur. Therefore, a framework called the Implied Licence Framework for Exhaustion is proposed here, which not only offers a better explanation for exhaustion and nonexhaustion, but also dispels the misconceptions.In the copyright context, courts have applied proprietary estoppel to assess whether an implied bare copyright licence has become irrevocable. In doing so, courts have derived principles of proprietary estoppel developed in land law. However, in the land law context, in the last few decades, courts have moved towards a unified approach to proprietary estoppel, resulting in a loss of nuance. In particular, the acquiescence-strand of proprietary estoppel has fallen been neglected in this process of unification. This article argues that in order to do justice in copyright cases, the acquiescence-strand of proprietary estoppel must be resurrected, and the trend in land law towards a unified approach must be reversed, bringing more nuance into the assessment of proprietary estoppel in copyright cases.Copyright law takes a formalistic approach to fairness, especially in relation to the users’ rights. There is a presumption of fairness in the protection of the owners’ rights. In the circumstances where it is fairer for the users’ rights to be given effect to as opposed to the owner’s rights, this formalistic approach finds expression in most jurisdictions, in specifically crafted and narrowly defined statutory limitations and exceptions. Even if these exceptions have some open-endedness in the form of fair dealing provisions in most jurisdictions, there is an underlying mandate as to the circumstances within which the use should be found fair – such as research, review or criticism. Further, certain jurisdictions such as the EU declare in their laws that the list of statutory limitations and exceptions is a closed list. However, fairness may not always lie within the four corners of the express provisions of the limitations and exceptions. Fairness is far too dynamic to be captured within the statutory provisions or the legislative process, especially in the current technological milieu. In this vein, section 171(3) of the UK Copyright, Designs and Patents Act, 1988 had been enacted to preserve the open-ended powers of the common law judges to prevent or restrict copyright enforcement in public interest. An historical review of cases reveals that the judges have exercised this power to achieve a fair result where no other statutory limitation or exception could assist. Some commentators believe that the implementation in the UK of the Information Society Directive (2001/29) requiring the list of statutory limitations and exceptions to be a closed list has reduced the scope of s 171(3). This paper explores the scope of the common law powers under this provision, its legislative history, its survival since the enactment of the Information Society Directive and its potential role upon Brexit.Data is increasingly becoming the central focus of a vast number of businesses. Be it in the form of football fixtures, horse racing results or flight information, data of this kind share a common feature – data as such is unprotectable as intellectual property (outside the realm of trade secrets and confidential information). Nevertheless, businesses creating data or depending on existing data to produce value added products routinely employ contracts as part of their business model, to control access and use of data by the end users. Contractual terms are fashioned in such a way as to gain property-like protection over data. This raises on one hand, philosophical questions as to what it means to ‘own’ data, which looks at the issue from a propertisation point of view. There are on the other hand, more practical questions as to whether and to what extent control over the use of data can be exercised through a contract, which looks at the issue from a freedom of contract perspective.DOI: 10.3390/laws3030553Online copyright infringement is one of the toughest challenges the content industry has faced in the twenty first century. Article 8(3) of the Information Society Directive, implemented under section 97A of the UK Copyright, Designs and Patents Act, 1988, provides an injunctive remedy in response to such online infringement. Given the elusive nature of the website operators and the sheer number of their users, rights owners have turned to the Internet Service Providers (ISPs) to implement the injunctions granted under section 97A to block websites with infringing content. In their battle to keep pace with online infringers, the UK courts have permitted significant compromises to the procedures while granting these injunctive blocking orders. One of the pioneers in this line of cases in the UK is the Pirate Bay case (TPB case), which ruled as a matter of law that the procedure under Section 97A does not require the alleged infringers to be made parties to those proceedings. TPB case also marks the trend of the ISPs consenting to an order of injunction, and not defending the proceedings. This has resulted in the absence of any adverse party in the proceedings under section 97A. This threatens the basic tenets of procedural fairness and propriety, having adverse consequences on both the substantive and procedural aspects, evident in the cases that followed TPB case. This article examines the aspects of the judgment in TPB case that led to these procedural compromises, whether it had any basis in the pre-existing case law, what the nature of an injunction under section 97A is and how the subsequent line of cases have followed TPB case as a precedent. It further explores the adverse consequences of the procedural compromises and whether any safeguards are available against such compromises.ISBN: 2075-471XBollywood films are known for their songs, and in many cases Bollywood films are known because of the songs. It is not merely in Bollywood films that songs have a significant role, but also in the lives of myriad composers, lyricists, singers and so on, lending an opportunity for their creative expression in addition to serving as a means of livelihood. Ideally, it should be possible for composers to be able to earn an income by composing music for films, as well as by being a member of a collecting society in such a way as to maximize their returns. From the bundle of rights they have, the composers should be able to transact with both the producers and the collecting societies, but with rights that do not overlap. However, in reality the rights could get tangled in a legal quagmire between the collecting society and film producers, as each demands exclusivity. The article is an attempt to show how the rights of composers is meddled with by both the film producers and the collecting societies, leading to gross unfairness in the distribution of the returns from exploitation of their rights. To this end, the article examines the UK Court of Appeal decision in B4U Network (Europe) Limited v Performing Rights Society Limited, which upheld the rights of the collecting society, and compares it with the Indian Supreme Court decision in Indian Performing Rights Society v Eastern India Motion Pictures, where the rights of the film producers was upheld. This article then goes on to examine what it means to the composers if the film producers’ rights trump those of the collecting societies. The article also explores how the amendments introduced to the Indian Copyright Act in 2012 address the situation.In the ever-evolving information age, the right of communication to the public has struggled for a predictable interpretation under EU copyright law. Through the successive rulings of the CJEU, a body of law is beginning to emerge to interpret the right. Some of the findings of the CJEU have brought an uncomfortable overlap of right of communication to the public with the pre-existing right of public performance. Certain other findings such as the need for an active intervention by the user, the concept of "new public" and the need for an economic gain resulting from the communication have identified elements of the right not obvious from a plain reading of the provisions, although these findings have not been consistently applied. The purpose of this article is to unpack all these findings, and take a critical look at whether such findings are in tune with the jurisprudential basis of the right, and assess their impact on the national laws.
Land Law, Personal Property Law, Contract Law, Copyright Law and Intellectaul Property Law in general.
Options taughtContract, Land Law, Tort, Intellectual Property Law
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