Emerging Trends in Digital Copyright Law

Law being a response to social issues and challenges evolves itself in such a process. When it comes to the link between law and technology, the best example is Copyright. Any technology spawned copyright and its related industries and any new technology on the other hand, has raised a threat to copyright related industries. As a result, the industry has used all the new innovation to its benefit in terms of developing new ways to manipulate art, expanding markets, and growing profits[1].

Digital technology is the most recent development in the industry on a global scale. Digital media has had a significant impact on the creation, dissemination, and protection of copyright works. Manipulation, reproduction, and distribution of protected works have all become much simpler thanks to digitization. The digital Age, which is the symbol of the ongoing century, is witness to the Internet ushering in yet another period, and this crossroads is a watershed moment in the long and turbulent history of copyright in many ways. Blending, changing, mixing, and manipulating digital content is easy. By allowing for the low-cost production of perfect copies of copyrighted works, digital technology threatens to disrupt distribution processes and increase illicit use of copyrighted works[2].Thus, the Berne Convention’s beautifully structured, dogmatically properly characterized, and righteous image of copy-related and non-copy-related rights has been scrambled in certain ways by the Internet. Digital interactive transmission creates a hybrid way of making information obtainable to a wide number of people and allow them to access it whenever they want[3].

Digitization is one of the most important technical advancements in recent years. It refers to the process of converting works into a machine-readable format. The ability to record works in a binary format (a series of ones and zeros) in which they can be stored and transmitted is referred to as digitization. Different methods of digitization exist, but they all yield the same result: a binary code that can be replayed to recreate the original analogue experience. All tangible works, no matter how complex, can be digitally captured. As a result of digitization, all forms of subject matter can be made available to users in a standard format.

Not only did digitization change the format of works, but it also changed how they were used and distributed. Work was produced and circulated in the analogue world in the form of books or paintings. The human senses were able to detect these works. The law of copyright covered copyright works that were embedded in material form. It was the material representation of the concept that was covered, not the ideas that underpinned it. As a result, in the analogue world, reduction to material form became a condition for copyright protection. By comparison, digital works have been ‘dematerialized’ into an electronic or digital format. Traditional material formats do not contain them. Although the digital format of works can only be read or interpreted by computers, it can easily be converted into impulses that the human eye, ear, and mind can understand. Any analogue work that already exists can be turned into a digital data object. It is also very common to create new works in digital format because it is quick and easy. The transition from analogue to digital revolutionized not only the forms in which works can be made, but also how they can be used. Perhaps the most important result of digital technology is the ease with which it can be reproduced. Since the consistency of analogue copies degrades with each generation of copying, multigeneration copying has an inherent physical limitation. This acts as a deterrent to large-scale unlicensed copying. Digital copies, on the other hand, are perfect because they require bit-for-bit reproduction. This means that not only is any digital copy perfect in and of itself, but that perfect copies can be made from other copies indefinitely.

This is only possible by digital editing techniques, which allow for the alteration of sounds, the addition of color to black-and-white films, even the replacement of characters in films. Because of the ease at which digital works can be altered and mixed, a new type of work has emerged: multimedia works. As a consequence of new media, the delivery of works has shifted. Digital works, unlike analogue works, can be distributed via digital transmission instead of air, land, or sea transportation or microwave transmissions. Any type of work could be made available in digital form on an electronic network or series of networks that are accessible worldwide, thanks to digital transmission[4].

Traditionally, copyright has been concerned with public contact or dissemination in general. The transmission of works was restricted to one-to-one (such as telephone communication) or one-to-many (such as email) (like broadcasting). The transition of works to individuals is referred to as digital transmission. A copyright work can now be transmitted in digital form on a one-to-one, many-to-many, or all-to-all basis. Works may be sent from one person to another, from one person to a small group of people, or from one person to the general public. Since digital transmission is interactive, it no longer is restricted to one-way transmission. No broadcaster sends out works for public reception at the broadcaster’s discretion. Rather, works are saved on a “server” and can be accessed or used whenever the user wants. Aside from providing access to the works, the service provider may also be a spectator. The user becomes an active participant when he or she accesses, uses, or copies a work. By acting as a further publisher of the work, the reader could also become an unauthorized re-publisher. True contact became possible as a result of digital transmission. The advantages of digitization are numerous. Authors profit from digitization not only in terms of new ways to create works, but also in terms of more widespread and efficient delivery of their works via digital transmission. Technical innovation and development opportunities exist in the machine, television, cable, satellite, and telecommunications industries. Digital delivery also makes works, documents, and services accessible digitally in ways that are much more useful than conventional analogue formats for virtually anyone in the public. Despite these many benefits, digitization has proven to be a double-edged sword, as it has led to new and exciting ways of making and enjoying copyright works, as well as new ways of infringing on authors’ rights.

Authors’ economic and moral rights, as well as their compliance, are threatened by digitization. It also has the potential to disrupt the current balance between author and consumer rights. With the advent of the Internet and increased usage of the worldwide web, the possibilities of copyright infringement have grown exponentially. Free and convenient access to the web, as well as the ability to download, has generated new issues of copyright infringement. Digital technology has made it possible to take material from one site, change it, or simply reproduce it on another site, posing new problems for conventional interpretations of individual rights and security. A publisher can be anybody with a personal. It only takes a few mouse clicks to download, upload, save, convert, or create a derivative work. As a result, a regulation or process was required to allow writers to manipulate and manage their works in the digital format. The success of online global knowledge networks can be jeopardized if writers’ rights are not adequately secured.

Author: Rumela Mitra,   LLM from Amity Noida, intern at IIPRD. In case of any queries please contact/write back to us at aishani@khuranaandkhurana.com.

References:

[1]Mittal, R. (2006). From Printing Press to the Internet: The Stride of Copyright along with Technology, Intellectual Property and Technology Law Journal, 1, 21-46.

[2] Burgess, J. (1993). Internet Creates a Computer Culture of Remote Intimacy, The Washington Post, A1, A8.

[3]Ficsor, M. (2002). The Law of Copyright and the Internet. London, Oxford University Press

[4]Dixon, Allen N. & Self, Laurie C.,“Copyright Protection for Information Superhighway”, European Intellectual Property Review,pp. 465-493, 1994

Whether Reverse Engineering amounts to Misappropriation of Trade secrets?

What is Reverse Engineering?

During WWII and the Cold War, reverse engineering was often used. It’s often used by the military to clone other country’s technology, gadgets, or information, or parts of them, that have been captured by regular troops in the field or through intelligence operations. Discrete geometry has grown in prominence in vehicle design, engineering, and quality assurance in recent years, thanks to improved computing capacity, more processing memory, and high-speed contact or non-contact scanning devices.

So Reverse engineering is the practice of creating a geometric computer-aided design (CAD) model from measurements taken from an actual physical model using a contact or non-contact scanning technique. Reverse engineering was born out of a need to replace missing or burned-out parts for which no technological documentation was available. This might happen if the part was shipped without drawings or if the drawings were misplaced or destroyed. Not only for immediate repair but also to produce extra spares to support the component over a longer period of time, reengineering or reverse working certain parts may be a less costly solution than re-importing.

Is reverse engineering permissible under U.S. trade secret law?

Reverse engineering is generally permitted in the United States under federal trade secret legislation, the Defend Trade Secrets Act (DTSA). Misappropriating trade secrets is prohibited under the DTSA, which includes obtaining trade secrets by “improper means,” such as “theft, bribe, misrepresentation, violation or inducement of an obligation to preserve confidentiality or spying by electronic or other means”. The DTSA expressly states that reverse engineering is not an “improper means” in and of itself. Reverse engineering mixed with “improper means” would, however, violate the DTSA.

Position in India:

In India, there is no law or regulation governing the safety of trade secrets. Trade secret protection, on the other hand, is upheld by contract law equality principles or a common lawsuit for infringement of trust. As in Tata Motors Limited & And v State of Bengal,[1] the High Court of Kolkata relied on the definition of the term trade secrets which has been defined in Black’s Law Dictionary as:

“A formula, process, device, or other business information that is kept confidential to maintain an advantage over competitors; information including a formula, pattern, compilation, program, device, method, technique, or process-that (1) derives independent economic value, actual or potential, from not being generally known or readily ascertainable by others who can obtain economic value from its disclosure or use, and (2) is the subject of reasonable efforts, under the circumstances, to maintain its secrecy”.[2]

Furthermore, no law defines trade secret misappropriation; however, the illegal discovery of a trade secret as a result of a violation of contract or fraudulent actions may amount be considered as misappropriation of trade secrets. But to prove trade-secret misappropriation, one has to satisfy the three elements for a claim of protection of confidence, which was noted by Bombay High Court:

Firstly, it must be shown that the information itself is of a confidential nature. Secondly, it must be shown that it is communicated or imparted to the defendant under circumstances which cast an obligation of confidence on him. In other words, there is a relationship of confidence between the parties. Thirdly, it must be shown that the information shared is actually used or threatened to be used unauthorized by the Defendants, that is to say, without the license of the Plaintiff.[3]

Now, a “business secret” that is confidential in nature can refer to technical and operational knowledge that is not well available, and is capable of providing economic benefits to the owner of rights, is practicable, and that the owner of those rights has taken steps to keep secret. “Not known to the general public” is the essential constituent component. “Not known to the public,” according to the interpretations, suggests that workers in the relevant sector aren’t necessarily aware of or can’t readily obtain relevant knowledge. However, the following conditions cannot be labelled as “not known to the public”, implying that this fact is publicly available and does not represent trade secrets:

(i)For people in the relevant scientific or economic sector, the knowledge is common sense or business standard; (ii)The information is limited to a simple mix of scale, shape, products, and components that the general public can see after joining the market; (iii)The information has been made available by publications or other forms of media; (iv)Knowledge has been made public by public seminars, exhibits, and other means; (v)Other freely accessible sources can be used to access the information. According to the aforementioned conditions, obtaining trade secrets through formal channels through reverse engineering does not constitute misappropriation of trade secrets.


Reverse engineering is generally permitted and does not violate trade secret laws of its own. However, it is important to be mindful of contractual requirements and privileges arising from procurement, end-user license, and other agreements that may affect the extent of allowable reverse engineering. Furthermore, various jurisdictions could interpret reverse engineering provisions differently, which may impact lawsuits for trade secret misappropriation.

Author: Siddhesh Birajdar, a 3rd year student of University of Mumbai, intern at IIPRD. In case of any queries please contact/write back to us at aishani@khuranaandkhurana.com.

References:

[1]WP No. 1773 of 2008.

[2]Id.

[3]Beyond Dreams Entertainment Pvt Ltd & Ors vs Zee Entertainment Enterprises Ltd & Anr, Notice Of Motion (L) No. 785 Of 2015 In Suit (L) No. 251 Of 2015.

Youtube ‘Checks’: A New Era for Flagging and Yellow Zones?

Introduction

Copyright is an exclusive right which is vested on the original author or owner of the product. The original author receives exclusive rights to share his thoughts, allowing him to produce copies, publish, authorize, and otherwise use the literature, musical, or artistic work he made, whether in print, audio, or video medium, and benefit commercially from it. While copyright law tends to be straightforward in defending an original author’s rights, it is actually layered with several unanswered questions, leaving it vulnerable to assumptions.

Youtube has come a long way since the site’s first video was posted 15 years ago today. The platform, which began with the slogan “broadcast yourself,” has revolutionized independent video broadcasting while also providing a revenue stream. YouTube has since developed (or devolved) to host everything from pet videos to film to music videos. The platform famously has more than a billion users and adds upwards of 300 hours of new videos per minute.

Due to such monstrous activity and content sharing, comprising varied genres and types, it has been a persisting tussle between creators and subsisting copyright infringements. Since its inception, therefore, Youtube has been on its toes to adapt to shifting laws, policies and precedents set globally. Youtube bears liability because it offers a forum and therefore must ensure that copyrighted content is protected by stringent policies such as copyright strikes, Content ID,  Copyright Verification Programs and numerous other synergised strategies.

A month ago, it rolled out ‘Checks’ which scrutinises and checks the content for copyright infringement before it is uploaded. The following blog delves into this advancement, while glancing over the policies and measures in place.

Adapting and developing over the years

Copyright owners and YouTube itself constantly police videos for copyright infringements, and whether they detect something, not the tiniest thing, the repercussions will range off the copyright owner profiting from your video to your video being pulled down or your channel being blocked.

Youtube observes that using someone else’s content, without authority or permission, could result in a copyright violation. It has instilled a policy where the copyright owner can submit a take down request in case of any infringement, and if this is a valid request, the respective content will be removed from YouTube and the infringer will get a copyright strike. Subsequently, three copyright strikes can terminate ones’ your channel.

Alternatively, YouTube has a feature called Content ID that automatically checks videos against a database of copyrighted content and marks them if anything is detected. If anyone uploads a video that contains copyright-protected material, the party that owns the songs, movies, TV shows, video games, or other copyright-protected material can issue a Content ID claim. Depending on the actions specified by the copyright owner, a Content ID claim may result in a take down or revenue loss.

This is a problem since certain content owners can inadvertently violate copyright laws. YouTube recognizes that the mechanism is flawed, which is why they are experimenting with copyright tests during upload. Actual abuse is extremely rare among the millions of Content ID claims created each week, but YouTubers are increasingly facing Content ID claims. Furthermore, YouTube’s stance of not mediating conflicts, not sharing claimants’ contact information with content providers, and assuming claimants are right is ineffective for YouTubers.

Youtube has been trying to incorporate new methods to assist developers in navigating this allusive copyright minefield. YouTube’s systems were changed in 2019 to eliminate the financial opportunity for publishers to demand very brief and unintended music use, and the site introduced a new mechanism in January of last year that allows producers to instantly remove a claimed segment from their video clip. YouTube also launched new editing techniques such as “Mute Song,” “Replace Song,” and others to exclude manually asserted content in videos, resulting in the automated publication of the claim, along with the latest addition of Checks by the latter, which will be understood in the following section.

Commencement of the ‘Checks’ era

‘Checks’ inspects video and metadata before it is posted to the website. An improvement on the former scheme, in which content owners were only informed about unauthorized elements of their work after it had been submitted to the site, it employs the company’s Content ID algorithm to determine if the content is potentially infringing. This service was designed to discourage long-running copyright lawsuits from preventing content owners from profiting from their work. The service does not promise that a video will not be flagged for copyright infringement, but it claims to reduce the chances.

Before the video is released, the creators may fix any problems that arise. They’ll see specifics about the problem, such as the timecode and how it will affect the film. According to YouTube, the Checks mechanism seeks to reduce the number of videos with copyright claims or problems that limit ad placement. Checks would save developers the trouble of uploading videos as unlisted and see whether their exposure or monetization would be limited until they’re rendered public.

‘Checks’ allows videos to begin collecting money the moment they are posted, rather than going into a claim dispute, which would reduce a creator’s total advertising revenue. Creators will be able to challenge the assertion until it is published on YouTube by the following mechanism:

  • Since lawsuits take a few days to review, YouTubers have the option of either waiting until the conflict is resolved before posting or publishing the video while waiting for the final result. If it is determined during the litigation that the creator did not use copyrighted art, the ad money received during that time period is charged to the individual in question.
  • If the copyright holder is found to be accurate in the dispute, the ad revenue is instead billed to them.

Simply put, YouTube is making it easy for developers to identify and contest allegations ahead of time. It’s one of the company’s continuing attempts to help developers monetize their content as easily and efficiently as possible.

Conclusion

While this scheme is unlikely to solve the whole problem of copyright piracy, it is a significant step toward reducing the number of cases. And if the machine considers the material to be free of copyright infringement, the copyright owners have the right to flag it. However, it can assist developers with removing any proprietary data from their work in order to minimize the possibility of being blocked or demonetised, and once it is made accessible to everyone, it should help reduce the risk of creators’ identities being accidentally suspended.

Author: Kushagra Jain – a third year law student of Symbiosis Law School, Noida, intern at Khurana & Khurana, Advocates and IP Attorneys. In case of any queries please contact/write back to us at aishani@khuranaandkhurana.com.

Can Copyright Law Regulate Deep Fake?

Images, video, and audio that have been doctored are not new but what makes today’s deep fakes unique and alarming is how advanced digital falsification systems have been. We face a world in which no one knows what a threat to global democracy’s base is. Deep fake victims, on the other hand, are likely to be concerned with more immediate causes, such as the dangers of a fake clip featuring them doing or saying something that hurts their credibility.

Position in the United States

In the United States policymakers have proposed several options, including amending Section 230 of the Communications Decency Act, which says that platforms are not liable for content posted by their customers, and enacting legislation that will impose new liabilities for those who create or host deep fakes. However, there is currently no concrete legal solution to this issue. Meanwhile, several deep fake victims have employed a novel yet faulty strategy to combat the attacks by the use of copyright laws.

According to recent reports, YouTube removed the deep fake portraying Kardashian due to copyright violations. A significant amount of clips from an interview was included in the fake video. The media conglomerate which owns Vogue is likely to have lodged a copyright claim with YouTube. It should have used the basic YouTube copyright removal request process, which is based on the Digital Millennium Copyright Act’s legal requirements.

It’s easy to see why certain people would want to use an already-existing legal system to get deep fakes taken down. As there are no rules that directly tackle deep fakes, and social media site policies are unclear. Following the fake Nancy Pelosi video which got viral, tech companies responded in a variety of ways. The video was taken down by YouTube, though Facebook kept it live but added flags and pop-up alerts to warn users that it was most likely a fake. Copyright law, on the other hand, isn’t the answer to the proliferation of deep fakes. The high-profile deep fake instances we’ve seen so far tend to largely come under the “fair use” copyright infringement exemption. Fair use is a legal doctrine in the United States that permits any unlicensed use of content that would otherwise be covered by copyright.

We can look at four factors to see if a particular situation allows for fair use:[1] (1) purpose and character of the use, (2) nature of the copyrighted work, (3) amount and substantiality of the portion taken, and (4) effect of the use upon the potential market.

However, generally speaking, there’s a strong case to be made that most of the deep fakes would qualify as fair use. As deep fakes can meet the four-factor test and be protected under the principle of “transformative use.” As stated by the United States Supreme Court in the landmark decision of Campbell v. Acuff Rose,[2] when a copyrighted work is transformed into material with new expression, meaning, or message, this is known as transformative use.

Due to the current state of copyright laws in the United States, if deep fakes are taken down based on copyright infringement, it may obstruct one’s freedom of expression. The problem is that deep fakes developed for malicious reasons can also be covered under the transformative use principle. Because of the broad scope of the doctrine of fair use, this may be a risky outcome.

Can copyright law in India deal with a deep fake?

In India situation is that of fair dealing, as described by section 52 of the Copyright Act,[3] which contains an exhaustive description of what is not called copyright infringement. Since deep fakes are not included in this exemption, it is simpler to hold the developer liable. As the right to dignity is protected under Section 57(1) (b). A copyrighted work is protected from distortion, mutilation, and modification. Further for violations of exclusive rights, Sections 55 and 63 enforce civil and criminal liability.

It is suggested that deep fakes cannot be viewed only from the standpoint of property rights, since it has the active involvement of certain personal rights. The assertion of copyright infringement fails to defeat deceptive deep fakes in the United States and other countries with positions close to the fair use doctrine. Therefore it is more fitting for victims of malicious deep fakes to use grounds of privacy, data protection, and online abuse to tackle deep fake if it is not copyright infringement in that country.

Author:  Siddhesh Birajdar a 3rd year student of University of Mumbai, intern at Khurana & Khurana, Advocates and IP Attorneys.  In case of any queries please contact/write back to us at aishani@khuranaandkhurana.com.

References:

[1] Digital Millennium Copyright Act, 17 U.S. Code § 107.

[2] 510 U.S. 569, 92-1292, (1994).

[3] THE COPYRIGHT ACT, NO. 14 OF 1957, §52.

Patentability of Medical, Diagnostic, and Therapeutic Methods

It’s sometimes better to think about the things that cannot be patented to get a sense of the contours of patentability. Article 27.1 of the TRIPS Agreement states that patents must be available for the subject matter patentable “for any inventions, whether processes or products, in all technical fields”. Since products or processes used in the course of medical care do not ipso facto represent “methods of treatment,” the Agreement makes it clear that they are patentable in their own right.”

However, not everything made by man is patentable, according to each country’s patent laws; in most nations, certain subject matters are not patentable. Some countries, especially in the field of life sciences or medical treatment provide for exceptions in their domestic laws based on the provisions of TRIPS articles 27.2 and 27.3.

Patent law in India is governed by the Indian Patents Act of 1970.It was eventually amended between 1999 and 2005 to meet India’s international obligations towards TRIPS Agreement. TRIPS aims to eliminate potential obstacles to ‘free trade’ by setting global minimum IPR requirements. It mandates that member countries grant product patents to all technologies and microorganisms. It also allows non-compliance with WTO laws subject to punishment and harsh penalties, such as fines or sanctions.

Despite the protections and other flexibilities offered in the form of preferential treatment for emerging and least developed countries, most developing participants consider the TRIPS patentability spectrum to be much too wide. They claim that excessively strong IPR with expanded reach and period of protection is proving to be counterproductive to the TRIPS Agreement’s very object and intent, as stated in Article 7’s objectives. India like other developing countries has always maintained that ‘Patent rights should be exercised in a way that is consistent with the goals of reciprocal benefit for patent holders and users of patented medicines, as well as the balancing of rights and responsibilities.

Developing countries like India, choose a broad interpretation of eligibility exclusions to represent their national priorities. Patentability, in the case of developing countries such as India, refers to the idea of access to technology products as well as innovation and advances. The term “access” is most often associated with pharmaceuticals and public health.

The concept of exempting surgical, medical, and therapeutic methods from patentability is based on human rights values. A person’s constitutional right to life must be given priority. From the beginning, a person’s right to fair and proper treatment becomes a universal human right to every human being.

Are there any restrictions in the UK?

Patenting medical treatment methods is not allowed in the United Kingdom, allowing physicians to give the best possible service to patients without risk of infringing on patent rights. However, when a potential use for an existing drug is discovered, a patent can be secured using the so-called claim of “second medical use”. Even if the drug and the disease it is intended to treat were already established, a patent can be sought if a new and effective dosage arrangement is discovered.

Diagnostic methods can be protected as long as they do not have a step that is performed on the body.Like a procedure that includes in vitro testing of a blood sample for the presence of a biomarker, for example, is patentable as long as the step of taking the blood sample is omitted from the scope of protection.Further, those biotechnological inventions, such as those that use human embryos and those that depend on natural crossing and selection to produce plants and animals, are not protected by patents.

Position in India

Since the mode of the treatment interferes with human/animal life, the legislator has taken particular care to ensure that these inventions do not have exclusive commercial use. The method of treatment is not patentable except in the United States, Australia, and New Zealand. The exclusion of method of treatment from patent rights is found in Section 3(i) of the Indian Patent Act, 1970.The Indian Patent Act, 1970, states in section 3(i) that:

“any process for the medicinal, surgical, curative, prophylactic, diagnostic, therapeutic or other treatment of human beings or any process for a similar treatment of animals to render them free of disease or to increase their economic value or that of their products.”

However, the Indian Patent Act of 1970 does not prohibit the patenting of products used in treatment, whether they be medical instruments or pharmaceuticals.

Section 3(i) of the Patent Act, 1970 excludes any product intended for use in the medicinal, surgical, curative, prophylactic, diagnostic, or medicinal care of human or animal bodies. Therefore a medico-physical instrument used in treatment and surgery, as well as pharmaceuticals and medical kits, can be covered by patent law. When such devices are novel & the restriction on patenting methods of treatment has no impact on their patentability. Using a common product claim format, the device and pharmaceuticals can usually be claimed as such.

Indeed because of several political, technological, and social considerations, it is impractical to formulate a standard exclusion scheme in the patent system for medical, diagnostic, and therapeutic methods. However, a positive interpretation of an exclusion clause and integration of it into national public policy doctrines would at the very least put an end to major inconsistencies in this area.

Author:  Siddhesh Birajdar a 3rd year student of University of Mumbai, intern at Khurana & Khurana, Advocates and IP Attorneys.  In case of any queries please contact/write back to us at aishani@khuranaandkhurana.com.

Critical Analysis of Motor Vehicle Act, 2019

Abstract                                                                              

The paper critically evaluates the new Motor Vehicle Act and how it effects the people of India and their life. The paper also focuses on the amount of fine which has been proposed to be imposed under the law. How the new law will be able to reduce the number of accidents involving vehicles. It also addresses the issues of safety in online taxis and cabs. The punishment has been made more stringent for case involving voluntary negligence.

Introduction

Deaths due motor vehicle related accidents is increasing. The only way to help the deceased is by helping his/her family member by giving some amount of money in form of compensation. From the beginning (1956), the amount of money which is to be given as compensation is very volatile. In the year 1939 the motor vehicle got amended and any provisions and sections were added. Lot of new amendments were done by the parliament in the subsequent year and finally in the year 2019 the new law repealed the old one.

The Motor Vehicles Act, passed in the year 1988 by the Indian Parliament, controls practically all parts of street transport vehicles. It has arrangements for traffic guidelines, vehicle protection, enlistment of engine vehicles, controlling licenses and punishments. The Act came into force from 1 July 1989.

To make streets more secure, the Government of India in talks with state transport pastors thought of this Motor Vehicles (Amendment) Bill to makes changes to the Motor Vehicles Act, 1988. The Motor Vehicles (Amendment) Bill, 2017, was passed by the Lok Sabha on April 10, 2017.

Background

In August 2019, the Indian Parliament passed the Motor Vehicles (Amendment) Bill 2019, which rolled out critical improvements from the first Motor Vehicles Act of 1988. Since 1988, numerous things have changed, for example, the innovation utilized in vehicles, traffic thickness in the nation, and the idea of making transportation accessible. Consequently, changes in the Act were the need of immense importance. The new Act is forward-glancing in different edges, however its prosperity will rely upon its execution. The Union Minister for Road and Transport, Nitin Gadkari, said that the principle expectation behind the demonstration is to diminish street mishaps.

Some major changes

Some significant arrangements of the Act remember an expansion for the base remuneration for attempt at manslaughter cases as follows: (I) in the event of death, from Rs 25,000 to Rs 2,00,000 and (ii) If an accident involving of horrifying injury takes place, from Rs 12,500 to Rs 50,000 to street mishap exploited people. The Act has likewise set an obligatory protection for all street clients, refreshed the definition and insurance of good Samaritans, and has set orders for another transportation arrangement and Road Safety Board. Another significant arrangement of the Act is the reviewing of vehicles if an imperfection is found in the said vehicle that may harm nature, or the driver, or other street clients.

Fines and punishments

The most hard-hitting corrections made, nonetheless, are the proposed stringent punishments for traffic rule infringement. Indeed, even states which have begun executing it, for example, Gujarat have decreased it definitely under the new Act. A man from Gurgaon was fined Rs 23,000 for abusing different traffic rules, for example, Rs 5,000 for not creating a Registration Certificate (RC), Rs 5,000 for driving without a permit, Rs 10,000 for not having a contamination authentication, Rs 2,000 for outsider protection, and Rs 1,000 for driving without cap while riding a bike. Amusingly, the expense of the bike itself is just Rs 15,000 to 16,000.

Drawbacks

The previous Act fizzled out not only the grounds that it had less fines, but also due to its careless usage. Local Transport Officers have been discovered enjoying debasement, and an expansion in fines is said to have expanded the extent of defilements in RTOs and the traffic police. This is on the grounds that the expanded fines are high to such an extent, that residents are progressively prepared to give some cash to RTO officials or influence traffic police as opposed to getting a challan. Indeed, even state governments have not actualized the Act in real life and soul because of vote bank legislative issues. As of late, the Chief Minister of Maharashtra had asked traffic police from Pune to remiss their usage of head protector leads because of resistance from nearby MLAs. An expansion in fines doesn’t address this issue.

Throughout the years, there has been no critical eased up in mishaps. The Indian government’s figure remains at almost 465,000 street wounds a year. The number is probably going to be a lot higher given a few mishaps presumably go unreported. Of the ones recorded, 400 individuals pass on every day on India’s streets. The majority of the individuals who kick the bucket are powerless road users running from cyclists, bikers to people on foot. At that point there is street rage, which remains generally unaccounted for, yet is regularly activated by broken driving.

So as to decrease mortality from street mishaps, the administration needs to build up a plan for cashless treatment in the brilliant hour (the brilliant hour is the hour after the mishap, wherein if legitimate treatment is given, the odds of endurance are most elevated). Be that as it may, this doesn’t address the principle issue of crisis clinical consideration. Police methods after mishaps are lumbering and are organized over giving crisis care. The specialists in private medical clinics are hesitant to concede street mishap patients as they normally are in basic condition. Regularly, patients need to go from one medical clinic to other which removes the essential brilliant hour.

Safety issue with online taxis and cabs

Finance Minister Nirmala Sitharaman has expressed that recent college graduates wanting to utilize application-based taxi aggregators like Ola or Uber over purchasing individual vehicles are an explanation behind the stoppage in the car division. Despite the fact that the method of reasoning behind this involves banter, there is no preventing the developing use from claiming on the web worked taxis. In any case, there are different issues with online worked cabs, for example, security of ladies, outlandish costs and protection of travellers. Remembering this, the Motor Vehicles (Amendment) Act 2019 proposes to direct taxi aggregators and makes them consistent with the Information Technology Act 2000 which gives lawful acknowledgment to online exchange. To additionally build the utilization of online taxicabs, there is a requirement for the guideline of taxi tolls and the security of travellers. Taxi pooling ought to be elevated to lessen the blockage on streets.

The Motor Vehicles (Amendment) Act 2019 commands the focal government to build up a New Transport Policy in meeting with state governments. The Union government had thought of the National Urban Transport Policy in 2007, which concentrated on moving individuals instead of vehicles. However, very little has changed from that point forward. The New Transport Policy should concentrate on travel situated advancement, mass quick vehicle, and walker well-being.

Good Samaritans

The revised Act characterizes a decent Samaritan as a person who gives help to a fatality or mishap. As indicated by the Act, “the help may probably be in compliance with common decency, wilful, and without the desire for any prize. Such an individual won’t be subject for any thoughtful or criminal activity for any injury to or demise of a mishap unfortunate casualty caused because of their carelessness in giving help to the person in question.” But truly, the condition is extraordinary. Commonly, such people are bugged by police and face dangers from culprits of mishaps for which they go about as witnesses. Not many individuals think about these arrangements in the Act, and organizations must put forth attempts to expand familiarity with these rights as a piece of the usage of this Amendment. The best thing about general society would be that the individuals who approach and secure the harmed would not be compelled to uncover his/her personality to the police or the clinical work force. Prior, there used to be what whosoever has approached needs to tell the police/clinical faculty his personality however now according to the corrected law, the individual can’t be compelled to do as such. No considerate/criminal risk would be forced on such people.

Juveniles and the Law

Presently on criminal traffic offenses by adolescents, the watchmen or the proprietors of the vehicle would be considered capable except if they demonstrate that the offense was carried out without their insight or they attempted to forestall it. The Registration of the engine vehicle which is gotten will be dropped by the Authorities. The Juvenile who is found doing such acts infringing upon the law will at that point be attempted according to the Juvenile Justice Act.

Death and Hit and Run

After the popular Salman Khan instance of attempt at manslaughter, the whole situation of such cases changed as that case acquired an extraordinary change the recorded of such cases. The Government has vowed to give a pay of Rs. 2 lakhs or more to the casualty’s family. Where the present sum that is being given is an insignificant 25 thousand, parting with around multiple times the sum comes as a salvage of the destitute residents of India.

Trend

 A sharp increment in the vehicle populace has expanded the quantity of fatalities and wounds from street mishaps. In 2017, there were in excess of 147,913 street mishap related passings, up from 146,133 of every 2014. Among classes of vehicles, bikes represented practically 34% of complete street mishaps and 29% as far as fatalities, official information appeared. Plus, national thruways that include 2% of India’s complete street arrange, represented over 33% of mishap related passings in 2017. The ongoing changes in the engine vehicles law couldn’t have come at a progressively ideal time, with India being signatory to the Brasilia presentation on street security and resolving to divide the quantity of lethal street mishaps by 2020.

Conclusion The corrected demonstration is dynamic in different angles, yet not adequate to diminish the quantity of mishaps. Other than traffic rule infringement, potholes and harmed streets are the main sources of street mishaps in India. On endless lanes and expressways, the nation over, traffic signals are taken cover behind the trees, and traffic signs are either not present or not obviously unmistakable. Numerous arrangements of the Act have been designated to the legislature with no time period at the top of the priority list. Arrangements, for example, the foundation of a Road Safety Board and the advancement of a New Transport Policy are need of great importance. In any case, with no time period in the Act, these arrangements are probably not going to be executed at any point in the near future.

Author:  Shoaib Akhter, a student of GNLU, intern at Khurana & Khurana, Advocates and IP Attorneys.  In case of any queries please contact/write back to us at aishani@khuranaandkhurana.com.

Fluid Marks: The Emerging Non-Conventional Trademark and its Justification under Trademark Theories

Introduction

In COVID 19 pandemic, one could experience that numerous companies have been using designed versions of their original underlying trademarks to promote their products while spreading awareness about COVID 19. For instance, masks on “AMUL” girl & “STARBUCKS” mermaid promote the use of masks. Splits in yellow ‘M’ of “McDonald’s”, Space between the “AUDI” rings, letters of “COCACOLA”, and V & W of “VOLKSWAGEN” spread awareness about social distancing. Similarly, disconnected bridge of “HYUNDAI” logo promotes demise of handshake and use of elbow bump.These designed versions of original trademarks are popularly known as ‘Fluid marks’, which are the emerging non-conventional trademarks. This Article analyzes the ‘Fluid marks’and how well trademark justification theories hold them.

Fluid marks

‘Fluid marks’ are expansion of an original underlying mark. It incorporates continuously changing variations of the original mark i.e. an amalgamation of creative design elements and substantive characteristics of the underlying mark. Variation is not permanent, but for time being. Variant marks are designed in a manner that they correspond to underlying marks and identifies the same source that of underlying marks. 

Illustration-Search engine “Google” has been using “Google Doodle” keeping their word mark “Google” constant with variance in designs considering the special occasion.

Illustration-‘Fluid marks’ can also vary in word while keeping trade dress/design constant. The beverage company “Perrier” has kept his trade dress constant, but replaced “Perrier” with word of similar length end with “ier” i.e. “luckier”, “sexier”, “sassier”, “crazier,” “scarier”, “prettier”, “flirtier” and “riskier”.

Fluid marks is Conventional or Non-Conventional Marks

‘Fluid marks’ diverge from conventional trademarks because they frequently change, whereas later are static with which consumers get familiar and recognized them easily. Judiciary has recognized protection to trademark’s variants. However, neither any statute recognizes registration of all the ‘Fluid marks’in one application, nor any statute recognizes upgrading of underlying trademark into ‘Fluid marks’to incorporate unprecedented matters like of COVID-19. Unlike other non-conventional trademarks, ‘Fluid marks’ don’t face any problem in registration as ‘Fluid marks’ can be graphically presented. However, brand doesn’t prioritize registration of ‘Fluid marks’ as it is only for time being and registration through separate application would take time. Further, varying fluid marks might cause confusion and weaken/abandon the underlying mark. Therefore, fluid marks get protection generally through action of passing off and considered as non-conventional marks.

Trademark Theories & Fluid Marks

As the IP jurisprudence has not witness abundant disputes on the subject, we need to analyze whether the theories for justification of trademark protection hold the ‘Fluid marks’.

  • Source Identification Theory

This theory advocates the primary function of trademark i.e.to trace the owner or indicate the origin of goods through the distinctiveness of marks. This theory holds ‘Fluid marks’ well. ‘Fluid marks’ incorporates variant of original marks, which are designed in manners that they correspond to underlying marks and identifies the same source. However, source theory would hold fluid marks of large companies comparatively more tightly than small companies. The US Supreme court held that, plethora of materials can be protected as trademarks, and it is the source distinguishing ability rather than oncological status of color, shape, word that protect them as trademarks. The European Court also held that, proprietor can use different forms of mark than the registered trademark, if such variant marks did not alter the distinctive character of the registered mark. However, the distinctive characters of underlying mark in fluid marks grant them protection, but non-distinctive character in them allow infringe to pass them off and their protection depend upon likelihood of consumer’s confusion, otherwise it would penalize the honest user also.  

  • Quality Assurance Theory

This theory advocates uniform quality assurance by the mark holder in consideration of additional charge. This theory also holds ‘Fluid marks’ well. Brand in their variant marks doesn’t alter the distinctive character of their marks, so that consumers can relate themselves with it and quality assurance by brand persists despite the variance. Further, fluid marks mostly use by large companies possessing well-known marks whose qualities have been trusted by consumers over a period of time.

  • Search Cost Theory

This theory is an extension of source theory and advocates trademark’s monopoly in consideration of reduced search cost of consumers to opt a product by associating perpetual image with product’s source. This theory doesn’t hold fluid mark well. Fluid marks tilts the see-saw toward brands and disturbs the balance maintain by the theory, because brands get expanded protection and distort market force in their favor, whereas consumers incur extra search cost due to confusion created by trademark variance.

Conclusion

‘Fluid marks’is well planned branding strategy that advertises the products and increases their intrinsic value.Therefore, protection should be granted to such marks. Delhi high court in Proctor and Gamble v. Joy Creators,observed that, “It is not necessary that in order to constitute infringement, the impugned trademark should be an absolute replica of the registered trademark of the plaintiff. It will be sufficient if the plaintiff is able to show that the trademark adopted by the defendant resembles its trademark in a substantial degree, on account of extensive use of the main features found in his trademark”. However, no Indian case has been dealt exclusively on the subject yet. These marks are here to stay and more laws would be unfurled in upcoming days regarding grant of protection to such marks. It would be interesting to see how Indian Judiciary will approach it. 

Author: Sahil Kumar Purvey, am a Fourth-year law student pursuing B.A. LL.B. at Hidayatullah National Law University, Raipur, intern at Khurana & Khurana, Advocates and IP Attorneys.  In case of any queries please contact/write back to us at aishani@khuranaandkhurana.com.

Difference Between Return and Rejection of Plaint

The power of decisive jurisdiction of the Civil Courts to try all Civil suits is enumerated and recognized under Section 9 of the Code of Civil Procedure, 1908 (CPC). But this authority is subsidiary to the provisions of the Code itself; one of these limitations is stated under Order VII Rule 10. When a plaint is presented in a Court, it has the choices of accepting it or rejecting it or returning it to the plaintiff. The primary responsibility of a Court is to thoroughly scrutinise the plaint in order to determine whether it should be returned, or rejected and to decide, the dilemma of rejection, it is the duty the Court to take into consideration other materials too. The grounds for rejection of plaint are enumerated under Order 7 Rule 11 of the Code.1

[Image Source: Shutterstock]

Order 7 Rule 1 of CPC3 lays down the innards of a plaint and a pleader cannot afford to miss some of these contents. If such a mishap takes place on the part of the pleader then the court is authorized to reject the plaint and the plaintiff has to resubmit the plaint after making essential alterations. However, rejection is not the first option before the court. In the case of Raghwendra Sharan Singh vs Ram Prasanna Singh, 4 the cause of action had arisen when the affronted party challenged the gift deed after a time period of approximately 22 years from the date of the execution of the equivalent. For the situation, the affronted party had challenged the deed of gift with the accusations that the gift deed is a kitschy one subsequently not authoritative. The Hon’ble Apex Court, after hearing both the sides, in perspective on the realities of the case, held that the Law of Limitation unequivocally restricts this suit and the plaint should be dismissed under Order VII Rule 11 of CPC. Previously, in the case of Arivandanam v. T.V. Satyapal,5 it was held by the court that the purpose of the plaint has to be understood from its diction. If the plaint is infuriating and the court believes that it is filed with a spiteful intention to trouble the defendant and that there is absence of merit, it can be a lawful ground for rejection.

Author: Abhishek Bhattacharjee, a student of BA LL.B(H) from Amity Law School (Amity University Kolkata),   intern at Khurana & Khurana, Advocates and IP Attorneys.  In case of any queries please contact/write back to us at aishani@khuranaandkhurana.com.

References:

1 The Code of Civil Procedure, 1908 (Act 5 of 1908).

2 Ibid.

3 Ibid.

4 AIR 2019 SC 1430.

5 (1997) 4 SCC 467.

OTT Platform: Catch Me If You Can

Who would not have heard of OTT platforms, especially during this Lock down period. These were the lifeline, when the people were at home. Needless to say that, now the Centre, Supreme Court, and the advocates would seems really more exciting in filing petitions, sending notices, and demanding for the statutory provisions for the regulation of the content being broadcasted over these OTT platforms, such as Netflix, Amazon Prime Video, among many others.

[Image Source: exchange4media]

The issue which is lying before hand is that the OTT platform that has been shifted, through a notification, under the gambit of Information and Broadcasting Ministry, falls outside the scope of the regulatory framework of the Central Board of Film Certification. In simpler terms, it means that the shows released on these platforms don’t require to get certified by the Indian government.

Transfer Petition for transferring cases to SC for Regulating OTT Platforms:

Recently, many petitions were filed for the shows released on these platforms, namely Paatal Lok, Taandav, Mirzapur, among others on the ground that these web series is being offensive to specific communities and hurting their religious sentiments. Nevertheless, different High Courts dealing with these petitions have rejected, and refused to entertain the petitions on the ground that these cases doesn’t fall under their purview and is the work of the legislature.

While the multiple cases are still pending before the different High Court for the regulation of OTT platforms like Netflix, Disney Hotstar, and Prime Video; Central Government, recently on 11th Feb, 2021 filed a transfer petition, for transferring of cases pending before different High Courts to the Supreme Court.

This move was taken by the Central Government, after the announcement made by the Minister of Information and Broadcasting, Prakash Javadekar, that OTT guidelines are almost ready and will be notified soon. The Centre is trying hard to control and regulate the content streamed in OTT platforms, being outside the purview of Central Board of Film Certification under the Cinematograph Act.

Bouncing Petitions against OTT platform from One Court to Another:

Justice for Rights Foundation, an NGO was the first one to file a petition in Delhi HC, on Feb 9, 2019, praying to oblige the OTT platforms to seek license and regulate as per the Central Government. On which the Delhi HC held that these streaming platforms don’t require a license to operate and the Centre didn’t regulate such companies saying that it was a legislative exercise. In regard to this judgment, the NGO filed for a SLP (Special Leave Petition) under Article 136 of the Indian Constitution in SC. In December 2020, another petition was filed for the transfer of cases. On February 9, 2021, Justice S Abdul Nazeer and Justice Sanjiv Khanna tagged this matter with another petition filed by Justice for Rights Foundation, seeking to regulate OTT platforms.

In between, several other petitions were filed in different High Courts established in India, namely Karnataka HC, Punjab and Haryana HC, Allahabad HC, Madhya Pradesh HC till date in order to regulate the web series, OTT platforms and impose ban on certain series as well to which the courts dismissed and rejected all the petitions saying that the court doesn’t have the power to frame regulations in the nature of legislation, and even few refused to entertain the PIL in this regard.

Meanwhile, Supreme Court, issued notice on a PIL filed to ban Mirzapur 2 on the ground that it was harming the Indian Culture and showing the bad face of Mirzapur; and refused to provide interim protection from arrest to the actors and makers of the web series, Tandav, alleging that the show hurt the religious sentiments of Hindu and also.

Government & Self Regulatory Code:

The Internet and Mobile Association of India (IAMAI) released a code in January, 2019 in context with Universal Self Regulation Code for circulating the content online; wherein the code restricts the OTT platforms from showing contents banned by Indian Courts, contents disrespecting the national emblem, sexual acts by children, contents which promote violence against state or terrorism, and the contents which outrages religious sentiments. However, the government has not accepted the self regulatory proposal made by the OTT platforms.

Meanwhile, to abide by the laws and the regulation as per the Indian laws, IAMAI, in January 2021, announced for the adoption of a comprehensive toolkit, and the OTT platforms released their own code of conduct, on Feb 9, 2021,which forms the basis of self-regulation of their contents. IAMAI, on Feb 11, 2021, said in a statement that the code has also been adopted by all the OTT platforms.

Alternative Way, to Think of:

If you look over to the series of events took place, till date, then you would be able to figure out that since the beginning of 2019, several steps were taken in order to regulate OTT platforms. The point of consideration, here, is whether it is even necessary to regulate the OTT platforms when they, along with the actors, producers and others involved can be punished under the Indian Laws for the respective crimes they have committed. In case of broadcasting vulgar and legally restricted content, they can be punished under S.3, 4 and 7 of the Indecent Representation of Women (Prohibition) Act, 1986; or under S.292 to 294 in case of publicly portraying obscene acts.

Another argument would be as to why any platform in the country should be left autonomous, which doesn’t require any prior permission to display contents on their streaming platforms. Would it be justice to the programs released through other service providers which require the permission of Censorship Board to get released on any public platforms, theaters including Television? Is it an abuse of Article 19, i.e. freedom of speech and expression of Indian Constitution? Is the self regulatory code enough to regulate OTT platforms?

The most interesting and awaited judgment would be of the Supreme Court in response to the transfer petition filed by the Central Government.

Author: Raj Aryan, a BBA LL.B student from Lloyd Law College (Greater Noida),   intern at Khurana & Khurana, Advocates and IP Attorneys.  In case of any queries please contact/write back to us at aishani@khuranaandkhurana.com.

FTO Search: A Key to Commercial Viability

In the list of searches, another important part is the freedom to operate (FTO). The FTO is the search that helps the inventor to know the viability of the inventions concerning whether the invention is commercially safe to sell the product in any country and the selling will not infringe any third party patent. If in a country one needs to introduce a specific type of engine, the FTO search will help the inventor to know whether there is already an active patent in the market. This will help the inventor to know the possibility on a commercial basis. In this case, if there is any active patent in the market then there can be a risk of getting into litigation or ending up paying the damages and royalties. While if there is no such patent, then the inventor is free to move forward.

[Image Source: labsexplorer]

FTO vs. Patentability Search

The patentability search and the FTO seem to be quite similar but they vary in their nature. They are often confused by their scope of search but they differ. In the patentability search, the service will cover all the publications. Meaning thereby, the search will cover the entire prior art and even the non-patent literature. The main crux is to find any patent and literature which will affect the novelty of the said patent. The aim is to find that there is no such previous prior art concerning the patent and that is why everything is being visited to prove that the patent is novel.

On the other hand, the FTO search primarily focuses on the active patents which can affect the inventor to undergo commercial difficulty. The FTO search can sometimes also relate their search for pending patents but generally, the search is limited to the pending application only. This search primarily aims to understand that if the patent, in question, is being launched in the market, then whether there are any active patent which can affect the patent commercially.

FTO Analysis

FTO Search focuses on the claims and analyzes the search result in terms of commercial viability. The FTO search primarily concentrates on the claims and not on other aspects like that of specifications and drawing, since it is the claims which will decide the viability of the patent.  The FTO search can also be conducted which can involve those pending patent applications. Generally, the pending patent applications are not conducted since this does not provide an exact picture of how it can affect commercially.

The FTO always minimizes the risk of infringing the existing IP rights. If there has not been any such FTO done, the patent in question always has the risk to infringe the third party’s rights. The FTO must be done as compared to developing the new product and the expenditure being done in developing the new product. To keep the FTO search efficient and cost-effective, it is important to keep a couple of points in mind. Firstly, the search must be limited to the countries in which the inventor is intending to be commercially active. Reduction to key territories will be a good idea for conducting FTO. Secondly, the search must be limited to the key technical field in which the inventor tries to enforce their patents.

IPLF

It is very important to take the help of professionals who have the required expertise and experience in the field. The expertise should be cost-efficient and must have professionals from varied fields to conduct an efficient FTO search. 

IP and Legal Filings (IPLF), have a long-standing, acme, and enriching working experience in conducting FTO searches in several domains in fields including but not limited to Biotechnology, Biomedical, Healthcare, Mechanical, Chemical, Pharmaceuticals, Electrical, Electronics, Telecommunications, Metallurgy, Semiconductor, Software, to Information Technology. IPLF endeavors to conduct a robust patent search on a myriad of paid and free databases, with both local and global coverage. IPLF also conducts searches on country-specific regional databases to ensure that the product/technology does not face any legal impediment or a problem in a specific country. To provide the best efficiency, enhance the surety and accuracy of determining the legal status of the patent, the team do not only solely rely on the automatic databases, but also manually cross-verify the legal history on each country-specific database, which include but are not limited to databases such as DPMA register, KIPRIS, SIPO, USPTO, etc.

Author: Saransh Chaturvedi (an advocate) currently pursuing LLM from Rajiv Gandhi School of Intellectual Property Law (IIT Kharagpur).  In case of any queries please contact/write back to us at support@ipandlegalfilings.com.