Team 15

THE 13TH RAJ ANAND INTELLECTUAL PROPERTY MOOT

COURT COMPETITION, 2013

Before
T HE H ON BLE H IGH C OURT OF W OLLY

P LAINTIFF

S TATE OF V ALENEZIA
v.

D EFENDANT

S TATE OF T RASHEN

MEMORIAL for

THE

PLAINTIFF

STATE OF VALENEZIA

Table of Contents

TABLE OF CONTENTS

TABLE OF CONTENTS...................................................................................................................I
INDEX OF AUTHORITIES..............................................................................................................II
STATEMENT OF JURISDICTION................................................................................................... IV
STATEMENT OF FACTS................................................................................................................V
STATEMENT OF ISSUES.............................................................................................................. VI
SUMMARY OF ARGUMENTS.........................................................................................................1
ARGUMENTS ADVANCED............................................................................................................2
1.

That Healing Technique will be protected under IP regime...........................................2

1.1.

That Healing Technique fulfills the criteria of originality and ownership..............2

2.

That Copyright regime provides protection to Computer Programmes..........................3

3.

That Traditional Knowledge is protected in International Conventions.........................4

PRAYER.......................................................................................................................................6

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Index of Authorities

INDEX OF AUTHORITIES
CASES
Aggarwala Publishing House v. Board of High School and Intermediate Education, UP AIR
1957 ALL 9.............................................................................................................................9
Burlington Home Shopping Pvt. Ltd. v Rajnish Chibber & Another (1995) PTC 278...........11
Feist Publication, Inc v Rural Telephone Service Co., 499 US 640 (1991).............................11
Jagdish Prasad v. Parmeshwar Prasad AIR 1966 Pat 33............................................................9
Microsoft Corporation And Anr v. Mr. Ganesh Wakode CS(OS)--2243/2009.4
Microsoft Corporation and anr. v. Nimesh CS(OS)--1624/2010...4
University of London Press Ltd. v. Universal Tutorial Press Limited (1916) 2 Ch. 601...........9
Video Master v. Nishi Production (1998) 23 IPLR 388...........................................................10

STATUTES
Indian Copyright Act 1957.......................................................................................................10

BOOK AND TREATISES

VK Ahuja, Law relating to intellectual property right (1st ed. 2012) Lexis Nexis..................11

TREATIES, CONVENTIONS AND INTERNATIONAL INSTRUMENTS

The Berne Convention for the Protection of Literary and Artistic Works: 1886-1986 (London,
1987).......................................................................................................................................9
Convention on Biological Diversity.........................................................................................11
International Committee Economic Social Cultural Rights.....................................................11
United Nation Declaration on Rights of Indigenous People....................................................11
United Nation Human Right Declaration.................................................................................11

OTHER AUTHORITIES
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Index of Authorities

Intellectual Property and Traditional Knowledge, available at

http://www.wipo.int/export/sites/www/freepublications/en/tk/920/wipo_pub_920.pdf......12
Consolidated analysis of the legal protection of traditional cultural expression, available at
http://www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_5/wipo_grtkf_ic_5_3.pdf 9

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Statement of Jurisdiction

STATEMENT OF JURISDICTION

T HE P LA IN T I FF , S TATE

OF

V A LE NE ZIA ,

M E M O R I A L BE FO R E T HE

HE R E B Y HUM B LY S UB MI T T HI S

H ON B LE H IG H C OU RT

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OF

W O LLY .

6
Statement of Facts

STATEMENT OF FACTS

Valenezia is located in the Antarctic. Its citizens have become self-sufficient and developed a
unique and highly effective healing technique, understood only by its native, passed over to
future generation by word of mouth and later reduced to manuscripts. In 2015 Valenezia was
struck by a tsunami leaving millions homeless. In 2018 the cabinet ministers of Valenezia
decided to take steps for the preserving the culture and knowledge of the country and realized
that the country could only recoup through financial aid and assistance from other nations. A
Valenezian group of scientists had been working on Brain Computer Interface (BCI). The
Valenezian Government hired them, to further develop BCI and make a system by which
knowledge could be transferred into the human brain. All rights with respect to the technology
belonged to the Valenezian Government. A software CIPcracker was developed. This software
could digitalize a persons thoughts and re-feed them into the brain. CIPcracker further made it
possible to learn any skill or acquire knowledge and intelligence of another human being which
he has acquired or inherited. Using CIPcracker the Valenezian Scientists gathered the knowledge
and skills of the best healers and practitioners, which could be later transferred.
Trashen is disease affected due to a nuclear explosion that took place two decades ago. The
Valenezian Government approached Trashen to help them. Subsequently, Transfer of Personality,
Culture and Intelligence took place in return of financial aid for Valenezian citizens. In July,
2020 both nations entered into a PCI Agreement and by 2025 entire transfer process was
completed. With the help of technology transferred Trashen by 2028 was nearly a disease-free
nation. Later, it was found that Trashen people were infected with a new Spattergoitus virus,
which was not curable through the PCI technology. The virus spread to worldwide
approximately affecting 30,000 people. Trashen Government used PCI technology to formulate
new healing techniques and was successful. In 2030 Trashen began entering into bilateral
agreements other nations permitting them the use of techniques and earned huge profits. The
Valenezian Prime minister expressed his concern on the acts of Trashen as they were infringing
upon Intellectual Property Rights of Valenezia. In reply The Trashen government said that there
has been no violation of Intellectual property rights of Valenezians, hence this dispute has arisen.
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Statement of Issues

STATEMENT OF ISSUES

1. W HE T H E R

THE

P RE SE N T

INT E LLE C T UA L

PR OP E RTY

R E GI ME

A FFO R D S

FO O D PR O T E C T IO N TO T H E HE A LIN G T E C HNI QUE .

2. W HE T H E R

THE

T R A D IT I ON A L

KN O WLE DGE

HA S

BE E N

PR OV I DE D

P R O TE C T IO N U N D E R I N T E R NATIO NA L I NST R UME NT S .

3. W HE T H E R
P R O P E RTY

COMPUTER

SO FT WAR E

P R OTE C T E D

LAWS

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UNDE R

I NTE LLE C T UA L

Arguments Advanced

SUMMARY OF ARGUMENTS

1. That Healing Technique will be protected under IP regime.

The State of Valenezia submits that the healing technique is afforded protection under
contemporary IP regime, for it satisfies conditions for protection under copyright law.
There is no doubt that healing technique was reduced to manuscript and hence has
been fixated. The other two requirements of originality and ownership are also
satisfied in present case. Further, it is submitted that CIP cracker, software developed
by Dr. Baron but owned by Valenezia is also protected in IP laws.

2. That Traditional Knowledge is protected in International Conventions.

It is submitted that the healing technique form a part of traditional knowledge, which
has been acquired and developed by people of Valenezia over the years. In the light of
the legal convention on protection of indigenous rights and traditional knowledge,
petitioner submits that exploitation of PCI by Trashen to conduct research and
develop new technique found upon such traditional knowledge developed by
indigenous people of Valenezia is in violation of the above cross-border conventions.
3. That Copyright regime provides protection to Computer Programmes.
The copyright regime provides statutory protection to the computer software anf
programmes. It is submitted that copyright in content of CIP cracker and as well as
CIP cracker, both belong to state of Valenezia, hence any usage of both beyond the
agreed term causes the contravention of IP laws.

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Arguments Advanced

ARGUMENTS ADVANCED

1. THAT HEALING TECHNIQUE WILL BE PROTECTED UNDER IP REGIME.

The State of Valenezia submits that the healing technique is afforded protection under
contemporary IP regime, for it satisfies conditions for protection under copyright law.
There is no doubt that healing technique was reduced to manuscript and hence has been
fixated. The other two requirements of originality and ownership are also satisfied in
present case. Further, it is submitted that CIP cracker, software developed by Dr. Baron
but owned by Valenezia is also protected in IP laws.
1.1. That Healing Technique fulfills the criteria of originality and ownership.
1.1.1. Originality
It is submitted that Copyright protects only original works 1, and traditional literary works
also satisfy the requirement of originality. The term originality is not defined, and has
been left for determination on the courts in relation to particular cases. It is submitted that
originality does not mean same as novelty, it may be said that a work is original if there
is some degree of intellectual effort involved.2
It is submitted that originality requirement is satisfied in relation to contemporary forms
of TK, being new productions made by current generations of society and inspired by or
based upon pre-existing Indigenous or traditional designs.3 TCEs are sufficiently original

1
University of London Press Ltd. v. Universal Tutorial Press Limited (1916) 2 Ch. 601; Jagdish Prasad v.
Parmeshwar Prasad AIR 1966 Pat 33; Aggarwala Publishing House v. Board of High School and Intermediate
Education, UP AIR 1957 ALL 9
2
The Berne Convention for the Protection of Literary and Artistic Works: 1886-1986 (London, 1987)
3
Consolidated analysis of the legal protection of traditional cultural expression, available at
http://www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_5/wipo_grtkf_ic_5_3.pdf

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Arguments Advanced

to be protected as copyright works provided that some new expression, beyond merely
reproducing the traditional form or expression is added.
It is hence submitted that healing technique has developed over the years, and has been
constantly improved. It has been improved by current generation, and subsequently
transferred after collection of such knowledge form most skilled practitioner. Therefore,
healing technique satisfy originality.
i. Ownership
It is submitted that copyright can protect groups of creators as joint authors or employees.
In fact, today, it is quite common for more than one person to create a single copyright
work.4 In respect of contemporary tradition-based cultural expressions, there is almost
always an identifiable creator, or creators, and this requirement is generally met. It is
further submitted that such knowledge was transferred to state of Valenezia, which
became a soul owner of the healing technique. Therefore, such ownership was with
Valenezia.
It is submitted that where assignee of a copyright becomes entitled to any right comprised
in the copyright, he shall be treated as the owner of copyright in respect of those rights.
The assignor shall also be treated as the owner of the copyright in respect of unassigned
rights.5
Therefore, Valenezia submits that such ownership was vested with Valenezia, and hence
ownership component is satisfied.

4
Ibid
5
Video Master v. Nishi Production (1998) 23 IPLR 388

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Arguments Advanced

2. THAT COPYRIGHT REGIME PROVIDES PROTECTION TO COMPUTER PROGRAMMES.

It is stated that computer software is defined to mean a set of instructions expressed in
words, codes, schemes or in any other form including a machine readable medium
capable of causing a computer to perform particular task or achieve a particular result.6
It is further submitted that author in relation to any literary, dramatic, musical or artistic
work which is computer generated, the person who causes the work to be created.7
For copyright to subsist in computer software, the computer software must be original.8
In case of compilation, the originality is not on the material, but on the manner of
organization of the material since in some cases the material as such can enjoy separate
copyright protection.9
In a question, related to protection of computer databases the court held, the compilation
of addresses developed by any one by devoting time, money, labour and skill amounted to
a literary work.10 In United States, Supreme Court stated A factual compilation is
eligible for copyright if it features an original selection or arrangements of facts11
6
Section 2 (ffc) Indian Copyright Act 1957
7
Section 2 (d) Indian Copyright Act 1957
8
Microsoft Corporation And Anr v. Mr. Ganesh Wakode CS(OS)--2243/2009; Microsoft Corporation and anr. v.
Nimesh CS(OS)--1624/2010
9
VK Ahuja, Law relating to intellectual property right (1st ed. 2012) Lexis Nexis.
10
Burlington Home Shopping Pvt. Ltd. v Rajnish Chibber & Another (1995) PTC 278
11
Feist Publication, Inc v Rural Telephone Service Co., 499 US 640 (1991)

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Arguments Advanced

It is submitted that rights upon computer software and the knowledge vested in Velenazia,
since they were transferred to them by the developers. Therefore, copyright in content of
CIP cracker and as well as CIP cracker, both belong to state of Valenezia, hence any usage
of both beyond the agreed term amounts to the the contravention of contract and IP laws.

3. THAT

TRADITIONAL

KNOWLEDGE

IS

PROTECTED

IN

INTERNATIONAL

CONVENTIONS.
Valenezia submits that Article 27 of the UDHR12 and Article 15 of the ICESCR13 Rights
hold that everyone has the right to participate in the cultural life of the community and
protect moral interests resulting from their artistic production. Additionally, article 8(j) of
the 1992 CBD14 provides that nation states must respect, preserve, and maintain
traditional knowledge for the conservation and sustainable use of biological diversity and
promote their wider application with the approval and involvement of the holders of such
knowledge. Article 31 of UNDRIP15 extends a right upon indigenous peoples to maintain,
control, protect and develop their cultural heritage, traditional knowledge and traditional
cultural expressions, as well as the manifestations of their sciences, technologies and
cultures, including medicines, knowledge of the properties of fauna and flora, oral
traditions, literatures.
Indigenous people are further guaranteed a right to protect and control the use of
traditional knowledge upon their terms.
12
United Nation Human Right Declaration, art 27
13
International Committee Economic Social Cultural Rights, art 15
14
Convention on Biological Diversity, art 8 (j)
15
United Nation Declaration on Rights of Indigenous People, art 31

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Arguments Advanced

The common principles arising from these international rules are that the traditional
contributors to modern work ought to be guaranteed; that any benefits arising from the
use of the work that derive from their contribution ought to be apportioned fairly; and that
traditional custodians, at a minimum, ought to be acknowledged as the creators of the
contribution.16
It is submitted that the healing technique form a part of traditional knowledge, which has
been acquired and developed by people of Valenezia over the years. In the light of the
legal convention on protection of indigenous rights and traditional knowledge, petitioner
submits that exploitation of PCI by Trashen to conduct research and develop new
technique found upon such traditional knowledge developed by indigenous people of
Valenezia is in violation of the above cross-border conventions. Trashen contravened the
terms upon which transfer of traditional knowledge was agreed, and developed a new
technique without obtaining permission, or acknowledging people of Valenezia.

16
Intellectual Property and Traditional Knowledge, available at
http://www.wipo.int/export/sites/www/freepublications/en/tk/920/wipo_pub_920.pdf

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Prayer

PRAYER

In the light of the issues raised, arguments advanced and authorities cited, it is
humbly submitted that the Honble High Court be pleased to declare that:

1. The present intellectual property regime affords food protection to the healing
technique.

2. Traditional knowledge has been provided protection under international

instruments.

And any other order that the Court may deem fit to pass in the interests of justice,
equity and good conscience.

And for this act of kindness, the respondent shall duty bound forever pray.

Sd./(Counsel for the Plaintiff)

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