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Last Updated on August 17, 2021 by The Health Master
Copyright – An article (Part-1)
The interplay of D&C Act, 1940 and Copyright Act, 1957 in the case of ‘Counterfeit / Fake Drugs’
The problem of a counterfeit drug is omnipresent not in India but throughout the world. The Copyright Act, 1957 and Drugs and Cosmetics Act, 1940, both have relevant provisions to deal with such a situation.
Whenever we say counterfeit drug it also commands identical or nearly resembling label of the drug. In doing so the culprits completely take the same artistic getup, same colour combination, same brand name, and the same formulation so represent as a drug manufactured by the original manufacturer.
Where there is duplication of the label comes into the picture, the violation of Copyright is also attracted.
Label of the drug is artistic work
As far as the label is concerned the artwork of a label is covered under Copyright Act. The artwork of the label covers “the lettering style of brand name, the color combination and, overall get up of the label and its colour scheme.
The Copyright Act, 1957 vide section 14 provides for the exclusive right for the owner of the copyright to reproduce the work listed in the section. As per Section 13, the copyright subsists in artistic work.
Drug label is also a work of art. Section 63 provides for imprisonment for a term that shall not be less than six months, but which may extend to three years for infringement of copyright.
Police power to arrest in case of Fake / Counterfeit Drugs under Copyright Act
Section 64 gives power to the police to seize infringing copies. As per section 64 police can enter into the premises and conduct search and seizure. The police officer not below the rank of a sub-inspector has been given power under Section 64 to do the same.
Spurious Drug and Copyright Infringement
Section 17B defines spurious drugs and section 17 defines misbranded drugs. Section 17(c) considered it an offense if the name of the fictitious company is printed on the label.
Similarly, section 17B (b)(c)(e) considers the act of imitation or deception, fictitious name claiming, or misrepresenting the source of manufacture, as an act of offense.
Thus the act of counterfeit drug is necessarily related to reproducing the label of the drug which is nothing but infringing the copyright.
To be continued … Copyright – An article (Part-2)
The opinion of the author is personal and based upon his understanding. The author is an Advocate practicing before Supreme Court and Delhi High Court. Email. [email protected]. Web: www.macecorpn.com
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