The Rights of the Deceased: Moral Rights Incidental to Copyright Law
- Vanshika Agrawal
- 2024-04-25
Mediation in IPR disputes.
Introduction:
Mediation is one aspect of alternate dispute resolution mechanisms that have come to fare quite well in the current day and age. It’s a legally sanctioned dispute resolution mechanism that is less expensive, quicker, and more effective of a solution owing to its conversationalist and collaborative nature. Mediation as an alternative proposes more pros than cons as a dispute resolution mechanism, especially since it’s more focused on the parties with respect to its outcome, thereby facilitating the potential to create win-win situations for the parties involved, as against the black-and-white win-or-lose outcomes that are warranted as part of litigation.
Now when we talk specifically of disputes concerning Intellectual Property Rights, the litigation procedures that follow, tend to be prolonged and expensive, and in a sense, contribute to the already overworked courts’ workload spilling over, thereby tending to neglect the nuances and underlying business-oriented relations between the parties to said dispute. And it’s not as though Intellectual Property Rights is an aspect of the law to see a downslide in its functionalities any time soon, especially when we take into consideration the fact that we live in the digital and technologically advanced era wherein businesses are taking leaps forward within minutes. A private procedure like mediation, for dispute resolution, would be a step in just the right direction in this regard, keeping the matters away from the public glare and potential opportunities for further misuse, and avoiding the disruption of “commercial relations”.
Scope of Mediation in matters of Intellectual Property:
Almost every aspect of Intellectual Property Rights is something that can warrant a dispute to be resolved by having mediation opted for as the necessary intervention to have it all dealt with. We can have mediation settle matters such as basic copyright infringement, and additionally, the niche area of software disputes, wherein the mediator could be one with technical knowledge sufficient to gauge whether there did occur an infringement in said matter. Essentially, an alternative to litigation such as mediation would help protect the information that is to be kept private and away from the public glare to reiterate, thereby avoiding chances for any other misuse or infringement of the copyrighted matter. We also have commercial patent disputes that could come under the ambit of issues that can be dealt with via mediation. The mediator could again, be one who could discern the technical aspects of a patent, such as determination of its validity and whether or not it has been infringed upon in the first place. We can also have mediation seep into the arena of trademarks, particularly in matters of disputes of trade dress, trade secrets, and unfair competition. Such disputes would definitely benefit from a dispute resolution mechanism like mediation since the conversationalist nature would ensure that both parties have a say in formulating the terms of the solution such that both businesses could be kept away from commercial harm. And there’s always the ‘domain name’ arena for mediation, especially since there’s no definite national law for litigation-based processes for such disputes.
Precedential Setup for Mediation in matters of Intellectual Property:
We can assess a legal concept to be concrete and established once it is backed by both the statute, as well as practicality. All facets of law ought to adhere so, procedurally, as well as substantively. Mediation as a resolution mechanism for disputes of intellectual property rights was a novel concept until the landmark case of the Salem Advocates Bar Association. The extent to which mediation can be involved in the dealings of such cases was first witnessed and demarcated in this case, essentially. This and the Afcons Infrastructure Ltd. case led to the conception of Model Civil Procedure Mediation rules, adopted by the Supreme Court and High Courts across India’s territory, thereby having the country’s judicial establishment adept in the resolution of intellectual property-related disputes.
If we were to look at yet another landmark case in this regime, there comes the Bajaj Auto Ltd. case, which principally states the many benefits of opting for mediation as against litigation since the delay in discourse that such cases bring about are quite cost-aggravating, and since there is an established presence of an alternative resolution mechanism, i.e., mediation, which is cost-effective and more efficient so to speak with regard to outcomes. The emphasis on mediation as an effective solution to bridge disputes in relation to intellectual property is something that these early cases bring on.
The most prominent instance, however, of Courts inducing mediation as a resolution mechanism for disputes concerning intellectual property rights, is the Bawa Masala Co. case. Herein, mediation was suggestively proposed in lieu of the Civil Procedure Code, in order to attain an amicable solution as against the litigation-gained result of a lopsided result.
The principal outcome of such precedents:
Intellectual property rights disputes benefit from mediation. Simply speaking, most intellectual property disputes require some degree of technical knowledge, which a judge cannot at most junctures, find the liberty to get into. A mediator, on the other hand, can be one appointed on the basis of his technical expertise in the matter, or one adept in acquainting himself/herself with the knowledge necessary to take on the case. A solution can thus be achieved, keeping in mind, the various complexities that are entailed in these kinds of disputes. As was iterated above, mediation also helps protect the commercial relationships between the parties to the dispute, and this is mainly made visible in instances of “licensing agreements and their preservation”3.
It ought to be noted hereon, that the parties can opt for a mediation mid-way as well, or amid litigation proceedings. This is basically awarded as an alternative in instances of the litigation-led outcome not going down in a manner pictured by either of the parties or not benefitting either. This level of flexibility that is afforded to mediation is attributed to its functionality of a ‘common forum’ led proceeding, since a courtroom dramedy that cases usually tend to become, is undesirable especially since its jurisdiction varies on a territorial basis. And we talk specifically of territorial jurisdiction herein, since in the post-globalization stage of international trade and communication that we live in today, businesses tend to raise trans-national issues of intellectual property disputes which require settlements and there tends to be no better-suited alternative than mediation to deal with the same. Mediation is universal, in the sense that it supersedes territorial concerns.
Instances of mediation falling short of an apt dispute resolution mechanism for IPR:
It’s not as though mediation doesn’t fall short at times, especially since it is an industry as dynamic and volatile as intellectual property. The most eminent shortcoming of all is the fact that there is no public precedent established via mediation since the latter ensures the issue to be resolved on a private basis, which overall might not bode as well for India since the Indian legal setup does thrive on the precedential establishment.
The conversationalist approach also tends to be a long-drawn-out mechanism eventually, especially since the compromise sought via mediation entails the parties gauging the opposing parties’ strategies and thus, posing a risk of being outsmarted per se, to both parties while on trial. There’s also no constitutional safeguarding afforded to a mediation-led outcome so to speak and the mere reliance placed on ‘good faith’ with respect to disclosure of information in a mediation proceeding results in an arbitrary and unspecified means and consequent loophole in the dispute resolution process that is mediation.
International sanction and conclusion:
The World Intellectual Property Organization/WIPO came about in the year 1967 and was a UN-led initiative, which went on to set up a WIPO Arbitration and Mediation Centre in 19943. This center worked on a non-profit basis and essentially reiterates the above-mentioned fact that mediation in intellectual property disputes is an effective approach as it’s a cross-cultural and transnational facet. Mediation despite all of its above-mentioned shortcomings, does stand to be the most effective solution for intellectual property disputes, simply owing to its base functionality of being a quick, cost-effective, and efficient means of dispute resolution1.
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