Theoretical Underpinnings of Copyright and Design Laws Post-Krishika Lulla and Godrej Sara Lee: Decisions of the Supreme Court of India

Abstract

This Paper seeks to build upon the method and findings of ‘Theoretical Underpinnings of Copyright and Design Laws: Decisions of the Supreme Court of India’1 with a view to examine the theoretical underpinnings of copyright law post Krishika Lulla2 and design law post Godrej Sara Lee3 as discovered or constructed in the decisions of the Supreme Court of India (Supreme Court). An analysis of these decisions on copyright law reveals that: (i) validity of The Copyright Actor of any provisions of the Act was not a question in any of the decisions; (ii) constitutional validity of Rule 29 (4) of The Copyright Rules, 2013 was in question in one of the decisions in which the Supreme Court giving deference to the legislative wisdom reversed the decision of the High Court on the ground that the High Court has overreached its remit and has re-drafted the rule; (iii) both Labour and Utilitarian Theories, and not any other theory, have been simultaneously invoked by the Supreme Court; and (iv) on an average, the Court has decided 1.66 copyright cases in a year; or one copyright case in 251 days, or in 68 years. It appears that the Supreme Court was invoking both Labour and Utilitarian Theories mechanically without going into the clear differences between the two. It has been argued previously 4 that the Court should have applied judicially manageable standards to rigorously scrutinize the theoretical underpinnings of copyright law from all possible angles. This Paper reiterates this argument for nothing seems to have changed in the judicial approach when it comes to theoretical underpinnings of copyright law. An analysis of decisions on design law reveals that:(i) only one decision has been reported on design law and the Court has not gone into the question of theoretical underpinnings; (ii) in four decisions only there is a reference to The Designs Act but these decisions have not decided any question of design law; and (iii) on an average, the Court has decided .08design cases in a year; or one design case in 4,595 days, or 12.58 years.