#statutory licensing service statutory licensing company intellectual property rights statutory licensing india statutory licensing for owner

[sathyaminternational]

Statutory Licensing In India for Intellectual property rights

The existing recently amended Copyright laws relating to the statutory licensing and to determine how far these amended laws have been successful in balancing the rights of the broadcasters and Copyright owners. https://www.sathyaminternational.com/statutory-licencing/

[kashishipr]

Although the law of copyright is a well-established field, there are a handful of innovative and new sub-categories that come up for consideration now and then before the legislature and judiciary. Due to an ever-changing, quickly developing society, new areas grow and become predominant enough to create unanticipated issues, which the law catches up with then. One such incredibly notable example is that of tattoos. Tattoos have become exceedingly common, and their continuous widespread growth has brought attention to the relevant legal implications. The person who is wearing the art is not the one who created it. While people often adorn themselves with jewelry, wearing a tattoo is different from wearing a bracelet or ring. Jewelry is easily removed, while a tattoo is a permanent and fixed mark on the skin. In recent times, tattoo artists have brought lawsuits alleging Copyright Infringement of their works. However, the law on the copyrightability of tattoos remains unsettled due to the lawsuits being either settled out of court or dismissed.

Statutory Framework

Copyright Law grants protection to original works of authorship fixed in any tangible medium of expression. For understanding whether tattoos are copyrightable, the statutory basis of the copyright law needs to be understood.

Fixation Requirement

The first requirement of copyrightable subject matter is fixation, which requires a work of authorship to be ‘fixed’ in any tangible medium of expression. The medium in which the work is fixed is irrelevant as the copyright law was intended to encompass a broad scope of mediums of expression from paintings on canvas to software to architectural works.

Originality Requirement

Copyright can only be granted to original works of authorship. Generally, it is understood that the level of creativity required is low. (In the US, Feist vs. Rural established this position). Thus, it can be said that tattoos are original works of authorship that are fixed in a tangible medium of expression, i.e., the skin here.

Ownership Rights

Usually, the right of ownership rests with the creator of the work. Most experts agree that a tattoo artist offers his or her client an implied license to display the copyrighted work, but that license does not necessarily include all of the rights afforded under copyright laws. The client may not have the right to make reproductions or derivatives of the tattoo without the artist’s permission. This position is prevalent largely in the US.

In the United Kingdom, if the person is getting a tattoo that is not his or her original design, the ownership would lie with the tattoo designer with no provision of ‘fair use’ to rely upon.

In India, the first owner of the copyright is the author of the work (in this case, the tattoo artist). The Indian Copyright Office showed its approval for recognition of copyright on tattoos when it granted a Copyright Registration to Shahrukh Khan for a tattoo, which he sported in one of his films, thus showing that the person getting the tattoo can also be the owner of the copyright.

However, a crucial question that comes up in regards to ownership is, what about the works that are made for hire? In the case of tattoos, the consumer ‘hires’ the services of the tattoo artist to create the work for him or her. Sometimes, the design may be the customer’s design, and other times, it could be a result of joint inputs by the tattoo artist and the customer, and sometimes it is simply the tattoo artist’s design. These scenarios make it very difficult to answer questions about ownership. The law regarding ownership of tattoos is not definite primarily because there is no statute or judgment to seek guidance.

In defence of the tattoo artists’ rights to obtain the copyright, it may be said that like painters, they, too, create art and have a right to copyright the same to retain their originality. Also, as in the case of art collectors, the tattoo bearer may only own the piece of art, and the copyright may still rest with the tattoo artist, and royalty may be paid to the artist for replication, further sale, or incorporation of this piece of art on various mediums. It can be argued that if you design the tattoo yourself, then you own the copyright, as the artist simply tattooed your design onto your skin. However, if you commission a tattoo artist to create a custom design for you using your ideas, the copyright ownership is unclear. It would likely be joint ownership based on previous cases relating to other types of art.

Tattoos and Copyright Infringement

Based on current legislation, some tattoos could infringe on copyright. Usually, the copyright holder must prove that the copied work harms the work’s value or potential market. A tattoo artist who inks a cartoon character onto a client without obtaining permission from the original illustrator may be infringing by affecting the potential market of the character. The illustrator could sell drawings to tattoo parlours for use on clients. On the other hand, the client is less likely to be considered infringing since his display of the work is usually not for profit and, in most cases, would not affect the work’s value or market.

The issue of the copyrightable nature of tattoos gained attention because of the movie Hangover Part II in 2011. One of the characters of the movie had a replica of the famous Mike Tyson face tattoo. The tattoo artist had already registered the design with the US Copyright Office and hence, sued Warner Bros. for copyright infringement. Although no decision was ultimately passed in this case, in her comments, Judge Perry supported the rights of the tattoo artist and stated that a tattoo could be subject to copyright if it is an original work of authorship. She also refused to accept Warner Bros’ strong contention claiming the use of tattoos as a parody. According to her, the tattoo depicted a replica and thus couldn’t be called a parody just because it got featured in a comic film.

Though it may fall in the category of fair use in the case of private users, the usage becomes commercial when replicated by a company or when the design is worn by a celebrity, and thus, may lead to infringement.

Licensing of Tattoos

Copyright ownership in works can be transferred in whole or in part. In a tattooing context, a tattoo artist may grant a client the right to display his or her copyrighted design, but not the right to reproduce or the right to adapt the design. Licensing of one right does not inherently grant the client the ability to exercise any other right of Copyright Protection.

Concluding Thoughts

The law regarding tattoos and their copyright is still ambiguous. To date, all the high-profile cases regarding the issue have been settled out of court, implying initiating the conversation but leaving everybody without any definite conclusion.

In a time where Intellectual Property Rights (IPRs) are getting recognized; and artists are given due credit for their work, there is no reason to exclude tattoo artists from enjoying the benefit of these acts. Many tattoo artists are getting their original works registered, but due to the lack of specific legal guidelines, the extent of their implementation remains questionable. Copyright law should reward tattoo artists for unique and original designs. Eventually, the goal of the Intellectual Property (IP) law is to promote the progress of science and arts. Of course, as with all other artists, the tattoo ought to meet the originality requirement to qualify for Copyright Protection. Many tattoo artists use original designs for their clients instead of reproducing an already existing image, as copying is discouraged and frowned upon in the tattooing industry by other tattoo artists. These artists believe in furthering their creative designs. If the artist created these designs through ink on paper rather than ink on skin, one would have little doubt that the work warrants copyright protection and that the artist is entitled to rights under the law. So, should the tattoo artist’s choice of medium bar him or her from enjoying the rights that usually attach to the original works of authorship? Well, clearly not. The cases of Warner Bros. and Shahrukh Khan being granted copyright in tattoos are undoubtedly a step forward in recognition of tattoos as copyrightable property. However, some issues that still need clarity are the ownership of tattoos and the enforceability of rights once they are granted. It could either be that tattoo artists are granted royalties for each picture, endorsement, social media coverage, etc., or the customers could enter into contracts that assign copyright ownership assigned to them every time they get a new tattoo. With the popularity of tattoos, the courts are bound to address these issues with more clarity in the coming times. ✅  For view source: https://bit.ly/37mWTvq

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[loyallogic]

Process and Benefits of Trademark Licensing in India

This article is written by Swati K, pursuing a Diploma in Intellectual Property, Media and Entertainment Laws from Lawsikho.com. Here she discusses “Process and Benefits of Trademark Licensing in India”.

What is Trademark?

The definition of a Trademark is provided in Sec- 2 (1) (zb) of the Trademarks Act, 1999. According to it, a Trademark is-

A mark (Sec- 2(m))

Capable of being represented graphically, and

 Capable of differentiating the goods and services of one person from those of others, and

 Includes shape of goods, their appearance, their packaging and combination of colors.

A trademark has rights in the law according to it being registered or not registered. A trademark is used to refer to both goods and services. For services it also is addressed as a Service Mark.

A Trade Mark shall have distinct characteristics. If a trademark looks similar to any other trademark it can cause confusion in the minds of the consumers or the public.  The similarity in a trademark can lead to unfair trade practices.

What is Trademark License?

The term “Licensing of TM” has not been defined in the Trademarks Act, 1999.

A License in general is the permission given to someone to do an act.

Trademark License simply means the permission granted by the owner of the trademark to a third person. Such a license is granted in consideration of a Royalty.

Who can grant a TM License?

The holder/proprietor of the registered Trademark can grant the trademark license. It would be right to mention here that under the Indian Law both registered and unregistered can be transferred. The transfer of a Trade Mark can either be by means of a license or an assignment.

A license to a registered Trade Mark in India can be of two kinds- A simple license agreement which is with respect to permissive use and A Registered User wherein the license agreement is registered with the Registrar of Trade Marks. In this license certain rights accrue to the licensee as per statute.

To whom is the TM License Granted?

It can be granted to any person or a third party whom the trademark holder wishes to exploit or use the trademark.

Why is a TM  License Granted? 

A trademark license is granted to legally permit a third party to make use of the Registered Trademark. It is a common practice by foreign companies, the tech companies, in particular to provide TM License in other countries so that their trademark can be exploited in those countries.

For e.g. – an owner of a brand can grant a license to another person to use his trademark in the course of trade for both goods and services.

The granting of the TM License is not a sale. Licensing only transfers the right to use the trademark while the ownership of the trademark rests with the proprietor himself. The rights granted are limited rights w.r.t. time and can range from right to uses the trademark, sell the products etc. The TM License can be an exclusive or non – exclusive one.

Click Above

The statutory provision under Section 48 of the TM Act stipulates that a person other than the registered proprietor of a trademark may be registered as a registered user. Therefore the use of the registered trademark can be permitted by the provisions of this act but for this, the necessary conditions must be fulfilled by both the parties.

What are the Requisites of a TM License Agreement?

The agreement shall implement quality checks and controls on the goods and services for which it is being granted. This would prevent the reputation of the trademark from being destroyed or maligned. This necessary clause shall be always added in the agreement.

The territory for which the license is being granted.

The term of the license.

Consideration for which it is being granted.

Termination clause

Indemnification clause (in case any loss occurs).

Process for Registration of a Trademark License 

Section 49 of the Trademarks Act, 1999 defines a Registered User as a person who is for the time being registered under sec- 49.

Here the Registered User is the Licensee.

Section 2(1)(r) of the act defines permitted use of a Trademark. It means the use of a trademark by-

1. by a registered user of the trademark in relation to goods or services

with which he is connected in the course of trade: and

in respect of which in the trademark remains registered for the time being -: and

for which he is registered as a registered user and

which complies with any conditions or limitation to which the registration of  the registered user is subject: or

2. ii) by a person other than the registered proprietor and registered user in relation to goods or services

with which he is connected in the course of trade and

in respect of which the trademark remains registered for the time being: and

by consent of such registered proprietor in a written agreement and

which complies with any conditions or limitation to which such user is subject and to which the registration of the trademark is subject”

The registration of a TM license agreement is not mandatory under the law. But registration always comes to the rescue as it forms a record/ evidence in possible future disputes.  In the case of Himalaya Drug Co. Pvt. Ltd., Bangalore v. Arya Aushadhi Pharmaceutical Works, Indore, the Court ruled that if a company fails to prove that it is a registered user then the suit is liable to be dismissed. It is therefore always good to register the TM License with the Trade Mark Office. Only a Registered owner/ Proprietor of the Trade Mark is competent to launch proceedings for the trademark infringement as per the Trademarks Act, 1999. If a User is not registered under the act then he cannot maintain the suit under the Act.

Therefore, to register the trademark license

The agreement shall be in writing;

The owner of the TM and the proposed user should together apply for registration (sec- 49) to the Registrar of the Trademarks jointly;

The application is to be made in Form TM-U;

An affidavit authenticated-  by the proprietor of the TM including the details of the license mentioning the following-

Relationship between the parties

Duration of the use

Goods/services for which it is applicable

Shall be provided with the application in Form TM- U.

5. The government fee of Rs- 4500 for each mark shall be paid.

The use of a registered trademark can be permitted to a registered user as per the provisions of the Act and for that purpose, the registered owner of the Trade Mark has to enter into an agreement with the proposed registered user.

The application for registration shall be made within 6 months from the date of formation of the agreement between the parties. The Trademark Office (TMO) will then register the user if it finds everything satisfactory. The user will then become a “Registered User” of the trademark.

The TMO will publish it in the Journal and send an intimation to both the trademark owner and the other registered users of the same trademark. In case, the TMO is not satisfied with the contents of the application, a hearing can be appointed where the parties can together correct the deficiencies.

What are the benefits of a TM License?

  Monetary Benefit– Both the parties are monetarily benefitted as the TM is widely exploited for profit and royalty is paid to the owner. The Licensor, who couldn’t exploit his trademark, say, due to lack of resources or visibility, can now make use of the licensee’s resources by granting him the license and make more profits. The licensee also gets his share in the profits.

Expansion of business of the TM owner– The business of the trade-mark owner expands and its outreach spreads to different territories. The business no longer confines itself to a particular area, rather, the licensee/s can use their distributor skills for business expansion.

Expansion of trademark’s brand recognition– The TM as a brand becomes a known one in territories it was prior unknown. The licensee can use his resources to advertise extensively.

Increase in trademark’s Popularity– As the TM reaches a larger no. of people/consumers, it becomes popular and well known. This helps in more profit through increased sales as well as helps in further licensing of the Trademark.

Distribution/ Reduction of Workload– The Licensee in a way becomes a partner of the Licensor. The Licensor’s workload is reduced and he need not worry about the quality of the goods and services as the licensee is equally responsible for maintaining the quality of the goods he creates using the trademark.

  Under what conditions can a TM License be cancelled?

Cancellation can be permitted in the following circumstances-

If the agreement terms are breached or violated;

If the mark is used for purposes other than stipulated in the agreement;

If the mark is used to cause confusion in the minds of people/consumers;

If either party fails to disclose material facts crucial to the agreement;

 If any of the party misrepresents or commits fraud.

The TMO notifies to other registered users who can be affected by such cancellation of the TM License and also to the TM owner. The official fee for cancellation is Rs- 4500 per mark.

References

1 KRISHAN KESHAV, INTELLECTUAL PROPERTY LAWS 266-68, 57-58 (4TH ed. 2016).

Himalaya Drug Co. Pvt. Ltd., Bangalore v. Arya Aushadhi Pharmaceutical Works, Indore AIR 1999 MP 110

TRADEMARK LICENSING IN INDIA, Selvam and Selvam, https://selvams.com/kb/in/trademarks/trademark-licensing-in-india/

The Trademarks Act, 1999, No. 47 Acts of Parliament, 1999 (India).

5. Licensing of Trademark in India, (June 7, 2018), Vakilnol.com, https://www.vakilno1.com/legal-news/licensing-of-trade-marks-in-india.html

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[bananaipindia]

Lauren Conrad Sued Over Infringing Photograph, Russian Internet Firm Sues Twitch, Court Orders USD 1 Billion Penalty for Cox Communications and more

New Post has been published on https://www.bananaip.com/ip-news-center/lauren-conrad-sued-over-infringing-photograph-russian-internet-firm-sues-twitch-court-orders-usd-1-billion-penalty-for-cox-communications-and-more/

Lauren Conrad Sued Over Infringing Photograph, Russian Internet Firm Sues Twitch, Court Orders USD 1 Billion Penalty for Cox Communications and more

Lauren Conrad Sued Over Infringing Photograph; Russian Internet Firm Sues Twitch; Court Orders USD 1 Billion Penalty for Cox Communications; Copyright Infringement Lawsuit Filed Against Makers of Music Documentaries; MJ’s Estate Settles Copyright Infringement Lawsuit Against Disney; Crackdown on Bombay Pubs Playing Copyrighted Songs Without Licence and more.

Entertainment Law News

Lauren Conrad Sued Over Infringing Photograph

Reality TV star Lauren Conrad has recently been sued by a photographer named Jason Cook, who claims that Conrad used his picture on her blog, without his permission. Cook has stated that, in article written about yoga teacher Jessamyn Stanley, which was later posted on Conrad’s blog, the latter used a photograph of Stanley that was taken by him. Further, Conrad did not make the effort to get the required license to use this photo, which is necessary, since the photo has already been granted a copyright by the US Copyright Office.

The TV star has blatantly infringed the photographer’s copyright and according to Cook such an infringement is “willful, intentional, and purposeful, in disregard of and indifference” to his rights.” Further, the photographer has stated that he will be seeking damages, an account of profits and in addition to relief the court deems just and proper.

Russian Internet Firm Sues Twitch

Rambler Group, which is Russia’s third-largest internet service provider (ISP), has sued Twitch, the Amazon owned streaming platform, for 180bn roubles (2.1bn Pounds) due to the pirated broadcasts of the English Premier League games. Rambler had bought the exclusive digital distribution rights for the English Premier League this year, for three seasons. The Russian ISP stated that Twitch has allegedly violated its exclusive broadcasting rights more than 36,000 times between August and November. According to Rambler’s terms and conditions, “users cannot share content without permission from the copyright owners, including films, television programmes and sports matches.”

Twitch’s lawyer has denied the allegations, stating that “only provides users with access to the platform and is unable to change the content posted by users, or track possible violations”. Considering that Russia is the third-largest user of Twitch, the streaming service took all the necessary precautions to avoid any violations, prior to receiving any notice from Rambler. This case was heard by the Moscow City Court this month. The Court has ordered a temporary suspension of English Premier League streams on Twitch pending the outcome.

Court Orders USD 1 Billion Penalty for Cox Communications 

In a case decided by the District Court jury, Cox Communications, the American Company that provides telecom and other services, has now been ordered to pay a penalty amounting to USD 1 billion in a copyright infringement case. This dispute is the result of an ongoing struggle that music publishers and music record companies have been facing for a long time now, with regard to pirated content.  Since the last couple of years, record labels have been suing Internet Service Providers (ISP) for not removing music pirates from their services, however, after the order granted in the present matter, the record labels seemed to have scored a win.

Cox Communications was held liable for piracy infringement of more than 10,000 musical works, and was ordered to pay damages to Sony Music, Universal Music Group, Warner Music Group and EMI. With this win the recording industry has proved that “a jury will buy its argument that an ISP should be held liable for failing to kick a music pirate off its network.”  The American Company, has stated that it will appeal this decision. This lawsuit is not a first of its kind for Cox Communications, as previously telecom company was ordered to pay USD 25 million in a copyright infringement matter filed by BMG, the German music company. BMG filed the lawsuit only after Cox Communications ignored repeated copyright infringement warnings from the copyright enforcement company Rightscorp, following which the decision was granted in favour of BMG. “This decision was later reversed on appeal, but prior to the retrial Cox Communications paid out a settlement to BMG.”

Such copyright infringement lawsuits have been filed against other ISP’s as well, and the order granted in the present matter gives hope to the recording companies that the rulings granted in those lawsuits will also be similar.

Infringement Lawsuit Filed Against Makers of Music Documentaries

A new lawsuit recently filed in the U.S. District Court for the Southern District of New York carries accusations of copyright infringement against the producers of documentaries centred on rock bands such as ABBA, Nirvana, Lynyrd Skynyrd and the Red Hot Chili Peppers. The defendants include Coda Publishing, Vision Films and director Robert Carruthers.

The plaintiff companies, including Universal Music Group, Polygram, and ABKCO Music & Records, that own the rights to the songs, described the documentaries made on artists such as The Rolling Stones, U2 and Elton John as “nothing more than a delivery system for intentionally infringed materials.”

The plaintiffs are seeking a declaration that the defendants wilfully infringed copyrights, an order to destroy all copies of the films, as well as statutory damages of up to USD 150,000 per infraction or actual damages plus any profits the defendants made from the films.

 MJ’s Estate Settles Copyright Infringement Lawsuit Against Disney

In 2018, Michael Jackson’s estate had sued Disney in the Western Division of the U.S. District Court for the Central District of California, alleging that a documentary, The Last Days of Michael Jackson, was broadcast without the estate’s consent to use the singer’s songs and imagery.

In its complaint, the estate noted the irony of Disney’s copyright infringement, given that its “zeal to protect its own intellectual property from infringements, real or imagined, often knows no bounds.” Consequently, the estate stated they were “genuinely shocked.” While Disney took the defence of the fair use doctrine, it removed certain imagery from the film a few days before its broadcast.

The trial that was scheduled to begin this month has been dismissed by court upon a formal request by Jackson’s estate post a settlement between the two parties. Thus far, neither party has commented on the settlement. Jackson’s estate may now expect to face fresh lawsuits under a new California law that gives victims of child sex abuse additional time to file claims.

Crackdown on Bombay Pubs Playing Copyrighted Songs Without License

Bombay High Court had passed an order restraining over 600 hotels, restaurants and pubs from playing copyrighted music during New Year’s Eve celebrations without having licence to play them for any commercial purpose. The petitioners, Phonographic Performance Limited (PPL) and Novex, own public performance rights of songs. It remains disputed as to whether assignees like PPL and Novex have the right to collect royalties.

The Madras High Court had also put in place similar restraints upon a petition by Indian Performing Right Society Limited, the only registered copyright society under the Indian Copyright Act.

  Authored and compiled by  Neharika Vhatkar (Associate, BananaIP Counsels) and Tanvi  Chaturvedi (Legal Intern)

The Entertainment Law News Bulletin is brought to you jointly by the Entertainment Law and Consulting/Strategy Divisions of BananaIP Counsels, a Top IP Firm in India. If you have any questions, or need any clarifications, please write to contact@bananaip.com  with the subject: Entertainment Law News.

Disclaimer: Please note that the news bulletin has been put together from different sources, primary and secondary, and BananaIP’s reporters may not have verified all the news published in the bulletin. You may write to contact@bananaip.com  for corrections and take down.

[globalpatentfilings]

The Interplay Between the Intellectual property Law and Competition Laws

Introduction

The most important role that is played by any law in this world of free markets is the laws of intellectual property. They act as a survival kit in a highly competitive market by ensuring that the owner’s right of the intellectual property are not being infringed to his prejudice by another party. The exclusive enjoyment of rights is conferred upon the rightful owner[.  Therefore, a huge deal of attention is being given to IP Laws and along with it, an another niche filed of law which is gaining strong foothold in the gamut of laws that affect this technologically advanced contemporary world  is competition laws. Historically speaking, these two fields of law have emerged as two separate systems but they share the common goal with different perspectives. On one hand, IP Laws deal with the promotion of innovation by providing exclusive rights over invention. On the other hand, competition laws promote efficiency in the market and prevent market distortions.  It leads us to the general perception that there is an inherent tension between the two laws which is quite evident from the fact that in the recent past across jurisdiction, there is a rise in the number of case pertaining to the matters of intellectual property related competition cases.

The article will address the nexus between the two laws and will conclude by reflecting on the lack of sufficient provision in the Competition Act, 2002 to deal with the interplay between IP Law and Competition laws.

IP v. Competition Law

Ever since the Statues of Monopolies was enacted in England in the year 1624, the tension between the IP and completion laws have existed because the prohibited monopolies but allowed patent monopolies. Companies are not allowed to maintain a monopoly over the market however they can monopolise their technologies for any specific period of time. The Competition Act of India seeks to prohibit anti-competitive agreements, prohibit the abuse of dominant position by organisations and to regulate mergers. The act prohibits an enterprise to enter into an agreement in respect of production, supply distribution or control of goods  or provision of services, which is likely to cause an adverse effect on competition within India but at the same time it bestows a blanket exception on IPR[4]. However, section 4 of the act provides with sufficient conditions for interfering in intellectual property matters in cases of abuse of dominant positions. The courts have held that CC has the jurisdiction to deal with competition cases involving IPR. In the case of FICCI Multiplex Association of India v United Producers Distribution Forum, the question was whether c copyright holder can enjoy his right when it effects the competition in the market. The court held that the copyright is a statutory right under the Copyright Act, 1957 and not an absolute right and the IP laws do not have a total overriding effect on the competition laws. The European Courts of Justice and US Supreme court have held that the aim of IPR is to ensure innovation in all areas and furtherance of commercial interest is only secondary[. The CCI has the authority to punish IPR holders who abuse their dominant position under Section 27 of the Competition Act, 2002.

Furthermore, the concept of complementary goals of intellectual property and competition law system is used to make laws on licensing. In the case of Entertainment Network (India) Limited v Super Cassette Industries Ltd, Supreme court held that the rights of copyright owner to exercise monopoly or to charge royalty through issue of license is not absolute. Overpricing of any patented product is not really against the provisions of the competition Act but has close links to the refusal to license. In the case of Singhania & Partners LLP v Microsoft Corporation[, Indian competition authorities failed to see  the abuse of dominant position, tying agreements and other anti-competitive charges by Microsoft.

Conclusion Competition law acts against the abusive monopoly rights whereas IPR rewards the inventor by providing him with a monopoly right for a limited period of time. IPR goes against the principle of competition law to enhance market conditions by more choices. However, Competition laws can play an active role in checking the abuse of rights granted by IPR. These two laws are neither conflicting nor competing in nature but they are complementary to each other. Therefore, CCI should adopt specific guidelines to deal with cases that involves both the provisions of IPR and competition laws. To avoid of concentration of undertakings in IPR rich companies, merger guidelines should be strictly implemented. Furthermore, using of license to eliminate competition for improper benefits must be brought under the horizon of abuse of IPRs .

Author: Shambhavi Sinha, LL.B.(Hons.) Symbiosis Law School, Pune , Legal Intern at Global Patent Filing. In case of any queries please visit our site:-https://www.globalpatentfiling.com/

[atozservices]

Why is Copyright Registration Important for Businesses?

Every business before moving ahead with the service, need to get register legally. The best is to connect with the legal consulting company for copyright registration India online. The legal rights and authority of an owner on its property or business are referred to as copyright. In other words, copyright law gives power to the creators to protect their work or product from getting duplicated or forged in an unauthorized manner. Through the copyright act without the legalities or permission of the owner of the product, the entity cannot be possessed or duplicated by anyone.

It is one of the valuable intellectual property (IP) rights given to the owner belonging to all the types of businesses, no matter if it is modern or traditional. It is only given or formulated to the original creations and the creators of a particular product.

What is Business Copyright?

While some people tend to think that copyright is just settled for the movies, books, lyrics, photographs, and others, there is more to a law that they tend to ignore. When copyright law comes to business industries and corporate world, it gets referred to as concealing of letters, legal documents, articles, spreadsheets, graphic designs, computer coding and programs, emails, and more.  

Copyright act mainly covers both the publish as well as the unpublished works of the creators so that it won’t get circulated among the public. Copyright is a vital part or process of a business house or company to protect their creations and products from getting copied.

Copyright, in other sense, acts like a weapon protecting the infringement that can be caused by competitors and rival businesses.

Benefits of Registration:

There are several benefits of using copyright business India online service-

Ability to sue: A registered     copyright work makes you prone to many additional protections that     unregistered work could not provide. If in case you get to know about any     infringement caused by a competitive company with your product, then after     registration, you can sue the opposition or accused in a legal lawsuit     demanding charges.

Your Competitors and Clients Informed- After     registration of the product or work to your name, your clients and     competitors will know that your business is legal and the work initially     belongs to you. Even if someone unknowingly duplicates or take your action     in their name, they cannot keep hold of it as it legally belongs to     you. 

Statutory damages: Copyright     registration demands full protection to your entity and work, making you     liable for demanding compensation or alimony for any damage done to the     product and even for any statutory damages. It safeguards your business     property against damage loss. 

Ability to license: It helps in     a secure transfer of copyright materials, making it liable to you and your     company. You can license your business and properties for a better     way. 

 Copyright registration in India online for the business service and products is quite essential and affordable, which in return grants you numerous advantages for your company in the corporate market. If you stay away from the copyright registration and issues, this might hamper your work and company, making your product easy to tamper with and cheapening its value to degrading rates. Adding copyright legalities in your business is like a small investment made by you to protect your company for any damage.  It is best to connect with the right consultant who can help you with the process of copyright registration in India online for your business. 

[marymosley]

Patent Misuse in Cyber Space

With the rapid technological advancements being made and the virtual world that we are all slowly adapting to, e-commerce sites have been flourishing like never before. With this, the importance of Intellectual Property Rights too have gained importance. The virtual space makes it difficult to detect and protect the Intellectual Property Rights granted to an individual. As it is extremely easy for a cyber criminal to hack and access the data of a person, online intellectual property infringements occur more than the offline ones. The main advantage for the cyber-criminal in this that despite hacking into accounts and accessing the data to misuse it, the anonymity of the offender remains intact and thus there are negligible chances of him getting caught. The icing on the cake is that though there are laws in India addressing cyber-crimes, they are not efficient and stringent enough.

There are various kinds of Intellectual Property Rights such as:

–        Copyrights

–        Trademark

–        Performers rights

–        Database rights

–        Patent

Advantages of Intellectual Property Rights:

–        Exclusive rights are granted to the original creator of the work

–        As exclusive rights are granted to the owner, work can be shared instead of keeping it confidential

–        Aids in both financial and social development

Intellectual Property Rights in Cyber space:

To safeguard and ensure the safety of the businesses that are being carried out in the online medium, the Intellectual Property Rights must be taken care of and protected. It is important to create and ensure an effective property management as well as a protection mechanism. It is the duty of the Intellectual Property Right owner to ensure that no mala fide acts done by the offender to ensure the safety and protection of the content.

  There are various types of infringements such as Hyper linking, Framing, Meta tags, Copyright violation, spamming, etc.

The Patent law grants the security and protection of the original content and the inventions made by the authors which is in the form of computer effect which thus falls in the ambit of the cyber jurisdiction. The Patent Act of 1970 provides for the punishment for the unauthorised access and use of patents of other original workers. It penalises this Act and provides for the punishment for up to a period of two years. As per the Section 118, it also penalises for the contravention of secrecy provisions in the field of Intellectual Property Rights. Section 120 of the Patent Law Act punishes for the unauthorised claim into patent rights of an individual with a fine of one lakh rupees.

The main attempt in this field is to protect the original work and the content created by the original worker. A number of treaties such as Trade Related Aspects of Intellectual Property Rights (TRIPS) were accepted at the Berne Convention which provides for the protection and safeguard of original artistic and literary works. Other such treaties are the Deposit of International Designs, the Patent Cooperation Treaty and the WIPO Copyright treaty.

As the vulnerability is high in the cyberspace, it is of utmost importance to make this space safe and secure. A few strategies that could be adopted to ensure this are as follows:

–        Create a safe and secure cyber ecosystem

–        Open standards must be encouraged

–        The Regulatory Framework must be strengthened

–        Mechanisms of IT security must be created

–        More number of E-governance services

–        The core critical information structure must be protected

  Intellectual Property Rights in IT based technologies:

There are a few Information Technology Products that are safeguarded as Intellectual Property such as databases, software, hardware and web processes such as e-commerce websites, e-commerce websites with domain names, cyber contracts, trademarks and patents.

    Patents in Information Technology:

Any kinds of practical application in the computer device is known to be patentable. Not all soft wares are patentable but devices like pacemakers are very much patentable. A particular computer program is authorised for patenting only when it contributes to an art. If this program enhances the speed and the efficiency of the existing program, it has the eligibility to get a patent for the same program. A few software patents are as follows:

–        Program algorithms

–        Program language translations

–        Menu arrangements

–        OS functions

–        Editing functions and interface features

–        Display presentations

The United States of America has recognised the patents for businesses like online stock trading, gambling, e-commerce, etc.

What is non-patentable?

Soft wares are basically a form of intangible properties that are safeguarded by copyrights and not patents, as in the case of literary and artistic works. Programming languages are treated as any basic languages like English, French, etc are also not patentable but are protected under the copyright law. Many countries have been debating regarding this to make even the software programming languages to be protected under the patent law as the patent law provides for a larger protection. The computer programmes and languages are not considered as a new invention as they only solve a mathematical or a computer related problem and thus is not used in any practical application and field.

Difference between a patent and a copyright?

The protection granted by a patent is much stronger as compared to the protection granted under the copyright act. The patent law safeguards the whole concept with which the invention has been made whereas the copyright safeguards the overall outcome of the invention and the concept. In the programming languages, if any program code has the same function of another, the patent law is said to be violated. Patents have a longer process that includes filing whereas a copyright is effective immediately after they are given the publication right.

In India, the patent once granted is valid only for a period of 14 years whereas the copyright once granted is effective for as long as the original creator lives as well as another 60 years. The patent is known to give a stronger protection to the programming language and it is known to violate the patent if a similar program is made and not the copyright law. Patents are known to be statutory and are thus protected by the Government body that comes within that particular jurisdiction. On the other side, copyrights are known to be a universal right.

Software patent law in India

There is no specific provision pertaining to the protection of software in the Indian Patent Law.[1]The Indian Patent Office does not follow any guidelines with regards to the computer software. As the computer coding programmes and languages are not patentable, depending on the functioning of the particular programme, it may be granted the patent. India has taken a step forward in granting registration for patents.

Cyber laws

India has enacted various legislations such as the Information Technology Act, 2000 which issues various guidelines pertaining to the activities that could be carried out in the cyberspace. As per the cyber laws in India, the Intellectual Properties may be used by anyone strictly only for research purposes, and this does not mean that the researcher can use the exact same work. He must give the credits and references to the original author.

Cyber Crime

A cyber crime is given under the Information Technology Act, 2000 as any unauthorised access into the computer system or network to cause disruption of the data stored and misuse it. The cyber criminal may choose to cause damage to the network by introducing computer contaminants into the software, by hacking into the system. The provisions of the said Act attempt at penalising each cyber offence committed. The punishment differs from case to case depending on the crime committed as well as the facts and circumstances of the case.

      Patent misuse:

It is an illegal behaviour committed by the owner of the patent rights. It is an affirmative defence which is recognises the fact that it is possible that the owner of the patent to abuse the exclusive patent right granted to him.[2]

When a patent misuse has been constituted, the patent would be deemed useless. It constitutes an illegal behaviour where the patent owner may constitute a patent misuse: The patent owner may either violate the antitrust laws or improperly widen the scope of the patent with an ill intention to derive profits out of the same. The patent in dispute must be held unenforceable until the dispute has been resolved between the two parties.[3]

For instance, a patent misuse is said to be constituted when the original patent holder tries to expand his product with the particular patent by entering into other licensing agreements. This is the intentional misuse of a patent by the original creator himself.

  Patent misuse in the technology industry:

It is extremely easy for technological products to overlap with another similar product which basically constitutes a technological patent infringement or misuse. Following are a few famous cases:

–        The Amazon company made an attempt in adopting the one-click patent.

–        Microsoft and Google resolved a patent issue for over five years regarding the X-Box gaming console as well as the smartphones of the brand name – Motorola.

A few landmark cases pertaining to the misuse and infringement of patent are as follows.

–        The famous case of O’Reilly V. Morse concluded that mere copying of the idea does not constitute the misuse of the patent. Patent misuse is said to be constituted only when the copied idea is executed.

–        In the case of Manufacturing Company V. Convertible Top Replacement Company, it was held that a clear distinction must be made between the repairing of a patented product as well as the reconstruction of a patented product.

–        The famous case of KSR V. Teleflex held that for any inventions made that have an obvious concept, there must not be any patent right. It was said that the patent rights must be given only to innovative inventions.

–        The case of Alice Corporation V. CLS Bank held that a few inventions and ideas are too vague and abstract to be given the patent right.[4]

  Apple V. Samsung:

A very famous case in the field of patent infringement is the case of Apple V. Samsung that went on for about 7 years.[5] The dispute revolved around allegations made by Apple that Samsung has copied the phone design, similar features like tapping on the screen to zoom as well as the similarities in the layout of the home screen. The dispute was resolved in the Court of Law in the United States of America. More than 50 patent dispute cases had been filed by the two parties in various countries across the globe such as Italy, Japan, England, France, etc.

In 2010, Apple had sent a notice to Samsung to be aware of copying and creating a similar software and filed a suit in 2011. Samsung denied the accusations by saying that Apple copied the patents of Samsung, but the jury has favoured Apple by asking them to pay a sum of around 1 billion dollars. In the revision trial when the Jury finally said that there has been a mutual patent infringement that has been constituted by both the parties, the companies came into a mutual agreement to drop all the patent infringement cases that had been filed. 16 smartphones that were in the dispute of patent infringement were not available in the market during the trials of the suit. Finally, in 2018, the Supreme Court rejected the plea saying that the patent infringement has occurred but not of the entire device but only a part of it. Samsung was ordered to pay around 540 billion dollars to Apple as compensatory charged for copying of features.

Various guidelines have been issued in various Conventions such as the Berne Convention, OECD Convention on Data Protection, the WIPO Performance and Phonograms treaty, etc. to ensure that the Intellectual Property Rights are safeguarded and not misused even on the wide online platforms. As the world is swiftly adapting to the cyber space and living in a virtual world, the rights of an individual too must be protected with utmost care as it is very easy to fall prey to the cyber-crimes owing to the advantages that the cyber offender has as his identity remains anonymous. The legislations that we have now are not efficient enough and this can be clearly understood with the enormously increasing cyber-crimes on a daily basis.

  [1] Patents, IP India, (August 3, 2020, 9:12 AM) http://www.ipindia.nic.in/patents.htm

[2] Patent Misuse, IP Watchdog, (August 4, 2020, 2:21 AM) https://www.ipwatchdog.com/tag/patent-misuse/

[3] Patent Misuse, Defend a patent, (August 3, 2020, 4:11 PM) https://patent.laws.com/defend-a-patent/patent-misuse

[4] Famous patent infringement cases, UP Counsel, (August 4, 2020, 2:11 AM) https://www.upcounsel.com/famous-patent-infringement-cases

[5] Samsung V. Apple, Forbes, (August 3, 2020, 7:33 AM)  https://www.forbes.com/sites/forbesdigitalcovers/2020/03/13/samsung-vs-apple-inside-the-brutal-war-for-smartphone-dominance/#679e85554142

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Small Business Registration Guidelines & Procedures to Start a Business in India for Beginners

Small business registration is the first step of initiating any type of business. However, the most important consideration is selecting the right form of organization. In India, you can form 8 types of business organizations. Those are:

1. Sole Proprietorship Company

2. One Person Company

3. Limited Liability Partnership

4. Private Limited Company

5. Public Limited Company

6. Non-Banking Financial Corporation

7. Joint Hindu Family Business

8. And Co-operative Organization

Related: 8 Forms of Business Organization in India | How to Choose | Basic Guide

However, each and every entity have specific advantages and limitations. Choose a proprietorship firm as a service providing start-up. Choose a partnership firm when you have partners and all want to continue their jobs in other companies. And want to just test their business ideas. You can go to a Private Limited Company when you want to start a long term business.

And your idea is already tested as a trial and looking for the funding. Furthermore, when your small business registration budget is less than 10000 go for LLP. However, with this entity, you can enjoy all the company features with ROC. Finally, you can form OPC, when you are a single owner and want to enjoy the corporate features. In conclusion, this is the most crucial step in small business registration for new entrepreneurs.

   Step-By-Step Process of Small Business Registration

 ·         Obtain Digital Signature

This is the first step. You can use the digital signature in India for various online transactions. It includes Income Tax E-Filing, Company or LLP Incorporation, Filing Annual Return, E-Tenders, etc. There are three types of digital signatures. However, you will need to apply for Class II. Read More…

·         Obtain director Identification Number (DIN)

This is a simple one day process. In addition, you can apply for DIN online. PAN number is mandatory for Indian citizen and Passport is mandatory for foreign national. You can get a provisional DIN number immediately.

·         Secure Your Company Name

In the form of INC-29, you have the option of giving a single name for your company. However, you can check before if there is already an entity with the same name.

·         Craft Memorandum and Articles of Association

You will need to attach the Memorandum of Association (MoA) and Articles of Association (AoA) with the INC-29. However, it is a very important internal document. Thus you need to pay keen attention to crafting this document. Some of the important aspects are the Main Object, Share Participation, Authorized Capital, Registered Office, etc.

·         File INC-29 & Get the Incorporation Letter

This is a one-day procedure. However, you will need to attach several documents. Ensure that you have all the documents ready. Any sort of error leads to a resubmission of this form. In addition, the filing of the single INC-29 form will grant you the incorporation certificate from the ROC.

·         Obtain Permanent Account Number

Obtain a Permanent Account Number (PAN) from an authorized franchise or agent appointed by the National Securities Depository Ltd. (NSDL) or the Unit Trust of India (UTI) Investors Services Ltd., as outsourced by the Income Tax Department (National).

   ·         Open a Current Account

Now you can open a current account in the bank. Furthermore, it is important to get other licenses from different authorities. However, choose a nearby bank. And choose account type carefully. Read More…

·         Obtain MSME Udyog Aadhaar Registration

This is a simple process of getting SSI or MSME registration. Furthermore, you can apply it online now. This one page Udyog Aadhaar Memorandum is an initiative of MSME Ministry Govt. of India. In addition, the objective is to simplify the registration process for entrepreneurs and promoting ease of doing business. Read More…

·         Obtain TAN Number

First of all, this is important for Tax payment. However, you can obtain this from the Assessing Office of Income Tax Department of your state.

 ·         Obtain Shops & Establishments Act License

Every shop and the establishment comes under the Act within 30 days of commencement of work, whether or not it has employees. In addition, this is mandatory for societies, charitable trusts, printing establishments and much more. Read More…

·         Obtain GST Registration

GST stands for Goods and Service Tax. After the approval of “The constitution amendment bill for Goods and Service Tax” (GST) in the/ Parliament Session, every existing and new business needs to get the GST registration immediately. Basically, the GST has replaced the current indirect taxes levied by state and center. Read More…

·         Obtain Professional Tax Registration

This is mandatory for all types of business entities. However, the yearly tax rate is different. This registration is mandatory within 30 days of employing staff in a business. In addition, if you have employees in more than one state, you must the Registration in each state.

     ·         Register with Employee’s Provident Fund

This is applicable to establishments employing 20 or more persons and engaged in industry notified under Section 6 of Act. However, there are some different rates for different specific industries.

·         Register With Employees’ State Insurance Corporation

ESIC stands for ‘Employees State Insurance Corporation’.  In addition, the scheme provides monetary and medical benefits to Employees. This benefit includes sickness, maternity, and employment injury and to make provisions for related matters. However, this is a statutory responsibility of the employers of the factory or any establishment under Section 2-A. Read more…

·         Obtain IEC Code

IEC stands for the “Importer Exporter Code”. This is a 10 digit number. For any sort of foreign trading, you must obtain this license. However, you can apply to the nearest Regional Authority of Directorate General Foreign Trade.

·         Register With Custom Duty

The Central Board of Excise & Customs (CBEC) is the apex body for customs matters. Central Board of Excise and Customs (CBEC) is a part of the Department of Revenue under the Ministry of Finance, Government of India. However, check whether your business needs this or not.

·         NOC from Pollution Control Board

First of all, check whether you need a NOC from the PCB. Furthermore, there are three types of permission. They are Red, Orange and Green type. In addition, you must apply for ‘Consent to Establish’ first. Finally, you will get ‘Consent to Operate’.

·         Obtain FSSAI Registration

This is a mandatory license for food start-ups. Furthermore, it includes restaurants, food franchise outlets, bakery, canteen, food processing unit, cafeteria, and even small kitchens. Food Safety and Standards Authority of India (FSSAI), Ministry of Family Health & Welfare, Government of India is responsible for this license. Read More…

    ·         Apply For AGMARK

The AGMARK is a specific type of certification in India. And it implies on the agricultural products. The term AGMARK was introduced by joining the words ‘Ag’ to mean agriculture and ‘mark’ for a certification mark. This term was introduced originally in the bill presented in the parliament of India for the Agricultural Produce (Grading and Marking) Act. Read More…

·         Obtain Intellectual Property Registration

You can protect your company or product brand name. In addition, you can protect any innovative product from duplicating it. In India, intellectual property rights including trademark and patent are controlled by the Controller General of Patents Designs and Trademarks.

Keep in mind that these are standard procedures and are applicable in most cities in India. However, in some cities, there are some additional (or lack of) processes that you will have to find out. Definitely, we will update this article on small business registration, as we get more information about the same. We provide all types of business registration and tax compliance consultation in India at most affordable prices.

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10-point Checklist For Due Diligence For Sale Of Business

Robust economies constantly see high-value transactions involving the sale and purchase of large business entities. These deals require comprehensive planning on the part of both parties because of the huge amount of money involved. Due diligence is a mandatory activity carried out by both sides to identify potential problems or liabilities. A seller conducts due diligence for sale of business in order to prepare for all inquiries that a buyer will make for closing the deal. A buyer is not only concerned with the financial and legal due diligence but also wants information about human resources, client-base, and competitors of the target organization. Numerous agencies like top due diligence firms in India are providing professional services to foreign investors looking to get a foothold in a fast-growing economy. Let’s take a look at a due diligence checklist that a business owner looking to sell his/her enterprise can use as a guide.

1. Build A Professional Team

The deal needs expert handling and therefore a professional team including lawyers, chartered accountants, and financial planners must be built. The team must also have the top management executives involved in running the company and taking important business decisions. This group will study all aspects of the deal and identify potential issues right at the beginning so that no problems arise in the future. Engaging legal and financial experts from outside the organization will also be beneficial as they will take an unbiased look at the whole business.

2. Get An Independent And Accurate Valuation Of Business

A business valuation is a long process which takes several months to complete. It is a very critical part of any due diligence for investors and most transactions are not realized successfully because the parties do not agree on the final price. Every business owner selling a company wants a good price while every buyer looks to make the acquisition at a reasonable rate. It is essential that the seller engage an independent appraiser who will take the correct approach to conduct an accurate valuation of the business.

3. Ensure Financial Documents Are In Order

One of the primary concerns of a buyer is that the financial condition of the organization is along expected lines. Selling parties must maintain necessary documents like audited financial statements, balance sheets, cash flow statements, credit reports, and profit/loss statements. All documents related to tax compliance whether in local or foreign jurisdictions including all tax returns must also be updated and maintained by the seller. Some other important papers that a buyer may ask for are ownership documents of various assets owned by the target company and details of any loans or credit arrangements.

4. Take Care Of Legal Issues

People conducting due diligence for sale of business must also resolve all legal issues related to the enterprise. It is a very vital part of due diligence procedures as pending matters can affect the valuation of the enterprise if not the whole transaction. They must also ensure that the necessary licenses and permits required for running various operations are valid.

5. Make An Inventory Of All Products And Assets

Create an inventory of all products as well as assets whether physical or otherwise owned by the company. This is an extensive work and requires precision as any item if left out will affect the final valuation. Sellers must conduct the process right till the end so that a precise figure for every item on the list is arrived at which will help in accurate valuation.

6. Secure All Intellectual Property Rights

Intellectual property assets are extremely valuable and sellers must ensure that documentation establishing their rightful ownership of such assets are maintained properly. It will also be sensible to resolve any disputes surrounding IP assets before moving ahead with the deal. Moreover, if the owner does not want to make any such asset a part of the transaction, he/she must make it clear right at the beginning to the buyer.

7. Compile Information Related To Business Operations

A buyer will want to know in detail about every aspect of the target company including how its operations are run. The seller must be well-prepared for such queries and compile information related to various business processes, the tools being used for executing them and how the production and delivery system works.

8. Gather Data Related To Human Resources

Human resources or the employees are an integral part of the organization and the buying party will be interested in the information related to them. Collect data about the number of people directly or indirectly employed by the company and the costs involved in paying their compensation and benefits. In addition to this, the employee turnover figures must also be provided for each year.

9. Compose Client List And Marketing Information

Composing a list of clients with all relevant details will also be sensible as the buyer may ask for such information. Sellers must also compile information related to the marketing of the business. They must collect all the surveys conducted by the organization along with market research reports. It is also necessary for them to list all the promotional campaigns (with costs) that are underway in addition to an inventory of all physical marketing materials.

10. Organize All Industry-specific Information

The buyer will be interested in if any technological advancements or other conditions like environmental regulations will affect the target organization in the future. It will be pertinent if the seller conducts such appraisals and provides all industry-specific information to the buying party. This will be helpful in communicating the profitability of the deal to the acquiring organization.

Conclusion

Due diligence for sale of business is a vital activity that sellers must conduct with the help of professionals so that they get an accurate valuation of their enterprise, and close the transaction successfully.

Author Bio:

Seema Mehra is a Chartered Accountant at Ashok Maheshwary & Associates,one of the top accounting firms in India that provides statutory audit in india in a convenient manner. She is a professional writer and loves to share Financial related topics.

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Infosys joins open source network to share intellectual property with cos

India’s second largest IT career firm Infosys on Tuesday have become a network member of Open Invention Community (OIN), becoming a member of international corporations inclusive of Google, IBM and Toyota to percentage intellectual belongings on Linux programs advanced among organizations. OIN is the biggest open supply software network with 2,000 members.

                                          Source Network

New Property Malaysia

With more clients of Infosys in banking and different sectors throughout the one-of-a-kind international locations the usage of open supply to develop many patron-focused applications, the company believes open supply software program is critical.

The OIN lets in Infosys to get entry to the highbrow property from different groups through a sourced pool and without paying a royalty price. The Indian IT services firms are moving their enterprise toward digital generation offerings and platforms like open supply as a result of increasing demand from customers for the pay-as-you-use model.

One of the US-based totally banks that outsource services to Indian corporations like TCS, Cognizant recently said it’s miles experimenting many purchase applications on open source and DevOps platforms alongside the mainframe ecosystem. The open source additionally helped it shop cost.

“Open supply software program has become the primary engine of innovation, and have to now be viewed as the important thing constructing a block of all cutting-edge corporation architectures. Innovation in areas like cloud computing, big records, artificial intelligence, DevOps and present day internet frameworks are all happening within the open supply surroundings, and the adoption of that technology in organizations is cashing in on the muse of Linux that agency IT departments have already invested in. Infosys is actively taking open supply, and open source primarily based merchandise, to all our employer clients,” stated Navin Budhiraja, head of structure & technology, Infosys.

“We’re pleased to have a foremost worldwide IT offerings company, like Infosys, be part of the OIN network,” stated Keith Bergelt, leader govt of OIN. “We consider that those who look to the corporation for proposal, each in and out of doors of India, will see the knowledge it has established by helping patent non-aggression in Linux and adjoining open source technology.”

The intellectual belongings Audit

One conventional definition of a highbrow assets audit is “a cataloging of an organization’s intellectual assets property.” it’s far required for a company to meet its due-diligence requirements for mergers, acquisitions, or other transfers. These days, businesses see an intellectual belongings audit now not best as a balance sheet for intangible property however additionally, greater importantly, as a self-assessment that the enterprise continuously and continuously engages in to determine the fee of its very own belongings, decide how to fine capitalize on that property, and preserve abreast of the changing values of its property in the face of the ever-converting economic and criminal ecosphere.

Who has to Behavior and intellectual belongings Audit?

“highbrow belongings audit” is possibly something of a misnomer. It suggests that the audit is a trifling counting up of assets, and the individual engaging in the audit simply adds up the highbrow belongings located within the corporation and reviews the value. Not anything can be further from the truth. An highbrow assets audit is an inherently criminal assignment , and ought to therefore be accomplished via a group together with as a minimum an lawyer with expertise in the regulation of intellectual property, both in-house or outdoor recommend, or by way of the in-residence personnel of the organization, if they have enough information of the agency’s intellectual property to carry out the activities required for a highbrow property audit of the corporation. An intellectual property audit isn’t always an accounting characteristic. The highbrow assets audit is an evaluation of the felony popularity and price of an agency’s highbrow assets, especially concentrated on the one’s regions wherein the advertising and marketing and management dream of the corporation and the present safety of the employer’s highbrow assets are somehow no longer properly idea to every other. The lawyer or attorneys and other crew members (the crew might encompass the highbrow belongings lawyer and as a minimum one representative from each of the control, advertising and marketing and technology regions; due to the inherent legal significance of the intellectual property audit, at the least one member of the crew should be a highbrow property lawyer) selected to carry out the audit have to consequently have some understanding with the corporation’s era, the advertising and control goals of the company, and feature some familiarity with what is concerned in highbrow assets safety: prosecution of the registration software, upkeep of the belongings, and on through defense of the intellectual belongings via litigation and the appellate system.

An intellectual property audit isn’t always an accounting characteristic. The highbrow assets audit is an evaluation of the felony popularity and price of an agency’s highbrow assets, especially concentrated on the one’s regions wherein the advertising and marketing and management dream of the corporation and the present safety of the employer’s highbrow assets are somehow no longer properly idea to every other.

The lawyer or attorneys and other crew members (the crew might encompass the highbrow belongings lawyer and as a minimum one representative from each of the control, advertising and marketing and technology regions; due to the inherent legal significance of the intellectual property audit, at the least one member of the crew should be a highbrow property lawyer) selected to carry out the audit have to consequently have some understanding with the corporation’s era, the advertising and control goals of the company, and feature some familiarity with what is concerned in highbrow assets safety: prosecution of the registration software, upkeep of the belongings, and on through defense of the intellectual belongings via litigation and the appellate system.

When to Behavior a highbrow property Audit

Local Area Network

While should an agency take into account accomplishing a highbrow property audit? attorney Leslie J. Lott has recognized numerous appropriate times in the life of an organization for highbrow property audits; on this subsection, I borrow closely from her listing and remark.

A highbrow property audit has to be executed Whilst an organization units up intellectual assets license or licensing program, and on a normal basis thereafter. This is important whether or not the employer is the licensor or the licensee.

If the enterprise licenses its intellectual property to others, it should of path truly personal the intellectual belongings that it is licensing. also, there should be no current licenses that might interfere with the proposed new license. If the enterprise is the licensee, acquiring the intellectual belongings rights of every other, the audit determines that the scope and extent of the license to be received are ok for its functions.

Giant Exchange in regulation

A Massive Trade in the case or statutory law may additionally require a corporation to re-examine its highbrow assets. One such Trade in statutory regulation came about While Congress exceeded the federal anti-dilution statute. This change within the law significantly impacts the evaluation of the ability legal responsibility of an employer for infringement of the emblems of others and additionally affects the evaluation of whether or now not others are infringing the company’s rights.

4 examples of case regulation which arouse the want for an highbrow property audit are the Qualitex case (which offers the protection of coloration as an indicator), the Sony case (which deals with the query of whether a device that may be used for copyright infringement is itself an infringement of copyright), the Festo case (which deals with the Doctrine of Equivalents in patent prosecution), and the KSR case (which deals with the concept of obviousness in patent law).

Economic Transactions Involving intellectual belongings

Monetary transactions Concerning intellectual belongings might consist of loans, public services, private placements, or some other transaction which immediately includes a corporation’s intellectual property, or in which the intellectual belongings of the agency is or may be Sizeable.

New Consumer software or Policy

The Source SPS

A business enterprise should Behavior and highbrow assets audit in reference to new programs or rules, which include an aggressive overseas filing application, new advertising technique or path, growth of a product line or offerings, company reorganization, or another company Exchange that would have an effect on the interplay between the company’s intellectual property and the market.

[marymosley]

Broadcaster’s Rights over Intellectual Property

Introduction-

The past three decades, have seen a tremendous growth in the media and broadcasting industry. A lot of credit for the same has to be allocated to the latest technological advancements, the age of the internet, and increasing talent been showcased by creators. Gone are the days, when the broadcasting and media houses had to scavenge through a large pool of people to select the right face, now, they are simply spoilt for choice. With the advent of social media, almost everyone gets inspired, and decides to share their original works on public platforms. However, when such works are shared amongst the general public, questions regarding originality, and accountability arise. Along with that, counterfeiting, and blatantly copying of original works of others are also problems which crop up. These problems leave the media industry often crippled, and if not dealt with properly, may even lead to their downfall. Hence, it is important to understand what are the rights which the media houses being a broadcaster have over the intellectual property of their contributors, and how can they be enforced.

What is broadcasting, and who is a broadcaster?

As per the Merriam Webster Dictionary, to broadcast means, “to send out or transmit something, such as a program by means of radio or television or by streaming over the internet.”[1] In India broadcasting is managed by the Ministry of Information and Broadcasting, which is liable for controlling all substance to be communicated on private satellite TV stations and transmitted through digital TV systems.

According to the Berne Convention[2], broadcasting means, “emission by wireless means, for members of the public.” As per the Copyrights Act 1957[3], a broadcast means, “any communication to the public either by means of any wireless diffusion, or by wire, and also includes a re-broadcast.” However, what is nowhere defined is the concept of ‘broadcasting organisation.’ With the kind of advanced technology that everyone has these days, through mediums of smart phones, tablets, and computer devices, anyone can be a broadcaster by uploading, livestreaming, downloading, recording, their own content. Therefore, it becomes difficult to differentiate between an individual copyright holder broadcasting his own work, and a broadcasting organisation, broadcasting the copyrighted works of others acquired through a statutory license. Hence, based only on the definition of ‘broadcast’, following would be considered as broadcasters-

·       Individual copyright holder, broadcasting his own works

·       Government broadcasting companies (E.g. Doordarshan, All India Radio, etc.)

·       Private broadcasting companies (E.g. Zee Entertainment, Dish TV, etc)

·       Internet broadcasting companies (E.g. Alt Balaji, Netflix.in, Youtube.com)

What are the rights of the broadcasters?

Primarily, it is the Copyrights Act of 1957 which speaks about the rights of the broadcasting organisations. Generally, it is the author or the other owner of the copyright, who can authorise the performances or presentations of his copyrighted work on a public platform. The Copyrights Act was amended first in 1994[4] and later in 2012[5] to extend the scope of rights which were available with the broadcasting organisations. Essentially, what the broadcasting organisations have is a special kind of right. They do not have a right over the copyrighted material, but have neighbouring rights over that broadcast in itself. Section 37 of the Copyrights Act deals with the rights of broadcasting organisations. Usually, this special right subsists for about 25 years from the beginning of the calendar year next following the year in which the broadcast is made.

Broadcaster’s right to statutory licensing (Section 31D)-

Through the 2012 Amendment, Section 31D was introduced. This section allows the broadcasting organisation to broadcast already published works. But this has to be done subject to certain conditions prescribed within the section –

a)     The broadcasting organisation has to give prior notice to the copyright owner in a prescribed manner indicating its clear intention to broadcast such work, stating the duration and jurisdiction of such broadcast.

b)    The broadcasting organisation has to pay royalty at the rate decided by the Copyright Board.

c)     Royalties may include an advanced payment to the owners of the copyright.

d)    Names of the authors have to be clearly announced and shown during the broadcast.

e)     Except for technical alteration, and shortening of the work, no other alteration can be made without the consent of the copyright owners.

However, while a case is in dispute, the Court is not empowered to direct the deposition of a sum with the Court to grant the Broadcasting Organisations a right to exploit the copyrighted works to gain a commercial advantage, till the case is decided, as that would amount to grant of compulsory license, which is outside the Court’s purview.[6]

Section 31D was challenged to be unconstitutional in the case of Super Cassettes Industries Limited vs. Union of India[7], wherein it was argued that the section gives unfettered powers to the broadcasting organisation to obtain a statutory license, whereas, the same power does not rest with the copyright holder. However, the court after careful analysis, found no meaning in declaring the section to be unconstitutional, and stated that, these provisions have been included within the Copyrights Act to have balance of power, by letting the music labels to collaborate with the broadcasting organisations by obtaining licenses, to make copyrighted works available to the general public.

Various representations were made in front of the Ministry of Commerce and Industry, indicating that internet broadcasting companies should also be brought within the purview of Section 31D of the Copyrights Act. Therefore, the Ministry of Commerce and Industry after careful examination, stated that since the section allows any broadcasting organisation desirous of communicating to the public to obtain statutory license, it is not restricted only to radio and TV broadcasting organisations, and would include all kinds of broadcasters, including internet broadcasters. Therefore, through an Official Memorandum published on 2016, the government brought the internet companies into the ambit of Copyrights Act. Later the validity of this Circular was challenged at the Bombay High Court, in the case of Tips Industries Limited Ltd. Vs. Wynk Music Limited. and another. In this case, Tips Industries Limited was the copyright owner of about 25,000 sound recordings. Wynk Music Limited, which is an online music streaming application, had sought a contractual license from Tips for its online streaming services. When it came to renewal of the said license, due to some internal qualms, the deal could not materialise, after which Tips Industries Limited issued a cease and desist notice to Wynk for immediate deactivation and removal of their content from Wynk’s online platform. In reply to that notice, Wynk took support of Section 31D of the Copyrights Act and the 2016 Official Memorandum, and held that they were a broadcasting organisation by virtue of this section, and therefore they were entitled to a statutory licence thereunder. While dealing with this case, the Bombay High Court stated that Wynk cannot be allowed to continue using the sound recordings of Tips Industries Limited without their authorisation. Wynk would not be allowed to gain any commercial advantage out of this failed deal, without the permission of Tips. Court noted that the Official Memorandum is in contrast to the Government’s own stand on the matter taken in the report of the Standing Committee on Copyright and Related Rights, negotiation the proposed broadcaster’s treaty by WIPO. Hence, this judgement overruled the Circular, and thus excluded internet broadcasting organisations from the ambit of the Act. This way, the copyright owners now are placed at an equal footing with the broadcasting organisations, whereby, in absence of any valid agreement between the two, the case would always be decided in favour of the former.

Reproduction of Broadcast versus Re-broadcast-

Broadcast reproduction and re-broadcast, are both essentially rights which the broadcasting organisations hold. Section 37 of the Copyright Act gives the broadcasting organisations an exclusive right called as broadcast reproduction right. As per this right, the broadcasting organisations have a right to reproduce the broadcast for a period of 25 years from the year next following in which the broadcast was first made. Hence, this implies the following timeline-

·       Creation of a copyrighted work by an individual

·       Obtainment of statutory license by broadcasting organisation under Section 31D

·       Broadcasting the work obtained through such a licence by the broadcasting organisation

·       Reproduction of such broadcast by the broadcasting organisation

Since the Copyright Act does not mention what exactly amounts to reproduction, the definition given by Rome Convention[8] can be looked at, which says that ‘reproduction of a broadcast means making copies of the work or copies of such broadcast.’

As per the definition of broadcast within the Copyrights Act, a re-broadcast is included within the definition of a broadcast. However as per Section 37, any person other than the broadcasting organisation or other licensed holder, if re-broadcasts the broadcast made by the broadcasting organisation, such an act would be considered as infringement of the broadcast reproduction right of the broadcasting organisation. Hence, the following timeline can be established-

·       Creation of a copyrighted work by an individual

·       Obtainment of statutory license over such copyrighted work by a broadcasting organisation under Section 31D

·       Broadcasting the copyrighted work by the broadcasting organisation

·       Re-broadcasting of the broadcast made by the broadcasting organisation without the permission of the broadcasting organisation or the copyright owner

Therefore, we can see that, if a re-broadcast is done by the broadcasting organisation itself, it is not considered illegal, but if the same act is done by any other person who is unauthorised, the same amounts to infringement. As per the Rome Convention, re-broadcast means ‘simultaneous broadcasting of a signal belonging to some other broadcasting organisation.’

Exclusive rights of Broadcasting Organisations-

The Courts in India while deciding cases of reproduction and re-broadcasting have kept the concept of public interest in mind. In the case of Star India Private Ltd. vs. Piyush Agarwal and others[9], Star India Private Limited had a statutory license of broadcasting the cricket matches organised by the Board of Control for Cricket in India (BCCI), for 72 hours from the actual cricket match taking place. BCCI on its own was in the habit of collecting certain information released by its viewers and fan base, such as ball by ball or a minute by minute score updates and match alerts, which it circulated amongst its viewers through mobile messaging services. Therefore, Star India filed a suit against BCCI for infringement of its exclusive rights. However, the court distinguished between the kind of information which is disseminated by Star India and BCCI. The court held that since match information and updates are essential facts which the public should know, BCCI cannot be prevented from disseminating such information. But, due to the agreement between Star India and BCCI, the court allowed BCCI only to broadcast such information after a time lag of 15 minutes from the actual broadcast. However, the court also specified the kind of information which BCCI can broadcast, and limited the same only to mobile messaging alerts, and mentioned that the original audio or visual recording cannot be used.

A similar stand was taken by the Delhi High Court in the case of New Delhi Television Ltd. vs. ICC Development International and another[10], wherein the court held that dissemination of information such as match updates is essential from the point of view of public interest, and hence the same can be done by other individuals or organisations who do not have an exclusive statutory license. But if they want to use such information, and footage from the matches in future, they would have to enter into statutory agreements either with ICC, or the broadcasting organisation which has been assigned the broadcasting and reproduction rights.

Hence, through these judgements, the courts have tried to dilute the exclusive rights approach which the Copyrights Act portrays in consonance with the WIPO regulations. Although the broadcasting organisations have a statutory license to broadcast the copyrighted works of others, it has to be kept in mind that the author’s autonomy can also not be thrown out of the window. The author is and always would be the first owner of the copyright, and would have an opportunity to display his ownership over such copyrighted work, by entering into other licensed agreements with organisations other than a single broadcasting organisation, unless of course the terms of the agreement with the first broadcasting organisation explicitly provides for grant of exclusive rights.

Further, a step ahead in preventing monopoly over sharing of information, the Broadcasting Signals Mandatory Sharing (with Prasar Bharati) Act of 2007[11] was passed by the Parliament. In pursuance of this Act all private broadcasters were required to share live television and radio feed with Doordarshan and All India Radio for events which had national importance. Doordarshan, was not allowed to showcase its own advertisements, and the broadcast was to be made after a time lapse of a few minutes.

Infringement of Broadcaster’s Rights-

The rights of the broadcasting organisations are said to be infringed, if any unauthorised person without proper approval from the broadcasting organisation does the following acts (Section 37)-

a)     Re-broadcast of the original broadcast

b)    Play the broadcast in public for payment of any charges

c)     Make a sound or video recording of the broadcast

d)    Reproduction of the recording mentioned in point (c)

e)     Sale or giving on rent or making an offer for sale of the recording mentioned in point (c)

In matters of the above acts, the broadcasting organisations have the following rights in terms of remedies against infringements-

·       Civil remedies- Infringement, damages, costs, accounts

·       Seizure of infringing copies

·       Penal provisions- Imprisonment and fine

However, Section 39 also speaks of certain acts which are not considered infringement of the broadcaster’s rights-

a)     Making a recording for private purposes, or for the purpose of teaching or research

b)    Use for reporting of current events or news

c)     Making necessary adaptations or modifications which do not amount to infringement of copyright

d)    Such acts which are mentioned under Section 52 of the act, being-

·       Making of recordings and copies by the broadcasting organisation using its own facilities, and for the work for which it has right to broadcast, and using that recording for archival purpose

·       Use of such recorded material for bona fired religious purpose or official ceremony held by the Central or the State Government (religious purpose also includes marriage procession and other social festivities during marriage)

These acts are considered as fair usage of the copyrighted material, and does do not amount to infringement.

Conclusion-

The entertainment and media broadcasting industry, is growing at a rapid pace, and is venturing into newer spaces every now and then. As this happens, newer challenges emerge which are a direct consequence of the rapid growth. The Courts in India, have always tried their level best to uphold the freedom of speech and expression of the content creators, and create a space where the copyright owners not only get acknowledgement for their works, but also have the opportunity to gain commercial advantage out of the same. While doing so, the courts have also tried to do a balancing act, by trying to benefit the broadcasting organisations, and thereby ensuring greater flow of information amongst the public, and also upholding the public interest by making certain broadcasts mandatory. Where, on one hand the courts have upheld the exclusive licensing agreements entered into by the broadcasting organisations, and on the other, they have tried to frame acts such as the Broadcasting Signals Mandatory Sharing Act for the benefit of the general strata. The exclusive rights approach, although seems against the interests of the copyright owners, would not necessarily be so, as that would mean streamlined broadcasting by just one broadcasting organisation, and allowing that organisation to protect the individuality and exclusivity of the copyrighted work. Since the broadcasting organisations have greater resources for enforcing the rights over such broadcast, they are in a better position of negotiability, and protection of the copyrighted work of the author. Naturally, if there is any mischief on part of the broadcasting organisations, either in terms of the royalty paid, or in terms of any other attributions, the doors of the courts are always open for the copyright owners.

[1] Merriam Webster Online Dictionary, (Jul. 13, 11:43 PM), https://www.merriam-webster.com/dictionary/broadcast.

[2] The Berne Convention for the Protection of Literary and Artistic Works, 1887, 828 U.N.T.S. 221.

[3] The Copyright Act, 1992, No. 14 of 1957, Acts of Parliament, 1957 (India).

[4] The Copyright (Amendment Act, 1994, No. 37, Acts of Parliament, 1994 (India).

[5] The Copyright (Amendment Act, 2012, No. 27, Acts of Parliament, 2012 (India).

[6] Music Choice India Pvt. Ltd. vs. Phonographic Performance, (2010) 1 BOM. LR. 470 (India).

[7] Super Cassettes Industries Limited vs. Union of India, (2010) S.C.C. 1652 (India).

[8] Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (adopted 26 October 1961, w.e.f. 18 May 1964) 496 UNTS 43.

[9] Star India Private Ltd. vs. Piyush Agarwal and others, (2012) S.C.C. 5691 (India).

[10] New Delhi Television Ltd. vs. ICC Development International and another, (2012) CS (OS) No. 2416/2012.

[11] Broadcasting Signals Mandatory Sharing (with Prasar Bharati) Act, No. 11 of 2017, Acts of Parliament (India).

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