Category Archives: Copyright

TATTOOS AS INTELLECTUAL PROPERTY- AN INDIAN PERSPECTIVE

INTRODUCTION:

Tim Parks in his book[1] wrote “You will only have copyright in a society that places a very high value on the individual, the individual intellect, the products of individual intellect.” In an overtly aware society like ours, there is no doubt that we not only value but are also more aware of our rights. In addition to our awareness, there is something else that is more peculiar about present times – our curiosity and our need to keep evolving with time. With this constant need for metamorphosis, our technology and art forms also are changing at a rapid scale, leading to the foundation and formation of various industries emerging from them including the Tattoo industry. This body graphics phenomenon, while may seem to have gained popularity very recently, has its roots inked all the way back in CA. 8000 BP where a ‘moustache’ was found tattooed on the upper lip of the South American Chinchorro mummy[2]. With the tattoo industry growing to become a $1 Billion industry[3], the legal framework to regulate this industry seeks evolution as well. With tattoos, the questions that need to be put to rest seem quite fundamental, beginning with – Do we have adequate laws and the legal framework to regulate and enforce the rights relating to tattoos? Are tattoos artistic enough to be copyrightable at all? If yes, who owns the rights? What is the extent of these rights? How do we enforce them?

This article tries to explore the answers to these questions while making an attempt to understand tattoo related jurisprudence across the world in comparison with current legal framework in India and its possible interpretations.

TATTOO – A COPYRIGHTABLE WORK?

Since copyrights are rights granted to artistic forms of expression on tangible mediums, tattoos ought to qualify, for copyright protection. Unlike in U.S. where the applicable statute[4] requires the “pictorial, graphic and sculptural” copyrightable work to be “original works of authorship fixed on a tangible medium of expression”, Indian law does not explicitly specify the need for tangible medium of expression. However, owing to the permanent nature of the tattoos and the human body being the “tangible medium of expression”, the reservations against tattoo not being copyrightable work, by definition, should be ruled out.  As if to prove Indian Copyright Office’s validation of tattoos as copyrightable works, the Indian Copyright Office, in 2011, granted Shahrukh Khan a copyright registration for his tattoo[5]. While there has not been a copyright infringement case for tattoos as yet in India, the news of the Warner Bros. making use of an unauthorized tattoo in their movie Hangover 2 in 2011 and then, being sued by the tattoo artist from Missouri[6] made quite a stir and has had the legal community thinking of the ramification of making the tattoos a copyrightable commodity. Though the case was discreetly settled, the million dollar question is still being debated as to who shall reap the benefits of the tattoo and can the standard injunctive damages apply, as they apply for paintings, books or other works of art.

To understand the applicability of copyrights to tattoos, one must recognize that it is only original and custom made tattoos that are the subject of this discussion. Standard tattoo in catalogues or on the walls of parlours are not to be considered thereto. Of all the ingredients, originality is the principal ingredient, without which a copyright does not exist. Having said that, the efforts made by the tattoo artists in inculcating the imagination of the tattoo bearer are worth marvelling about, it must be understood that if the copyrights of a tattoo are to remain in the possession of the tattoo artist, the rights to exploit the copyrighted ‘piece of art’ also rests with them. Among the various other rights of the copyright holder mentioned in the Indian Copyright Act, 1957, Section 14(c) (ii) specifies that the copyright holder has the right to communicate the piece of work to the public. It must be noted that this provision relating to the communication of the artistic work to the public speaks of ‘artistic work’ only implying that tattoo artist is entitled rights only of the “artistic work” i.e. the tattoo bearer’s body that has been imprinted with the tattoo while allowing the artist to restrict the replications of the artistic work in any other medium under Section 14. Thus, one may imagine the way in which a copyright holder, in this case the tattoo artist may incorporate the above mentioned right, considering that the ‘work of art’ which is to be communicated to the public is actually on somebody else’s body, unless the tattoo artist has tattooed himself. In other words, it may mean that the tattoo artist has the right to control and regulate the tattoo bearer’s activities which, by all means, violates the very right to freedoms promised to us by Art.19 and Art.21 of the Indian Constitution, to say the least. Another argument in the favour of the tattoo bearers holding the authorship rights is that the tattoo artist is a hired employee, in which case, S.17(c) of the Indian Copyright Act, 1957 may be interpreted as the tattoo bearer being a quasi-employer of the tattoo artist, is the first owner of the copyright, in the absence of a contract between the two. In practice, most tattoo artists, too, believe that once the customer pays for the tattoo, he owns the tattoo and all the rights that come with it.

In the 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 merely own the piece of art and the copyrights of the designs may still rest with the tattoo artist and certain amount of royalty may be reimbursed to the artist for replication or incorporation of this piece of art on various mediums such as video games, as in case of THQ Inc.[7], where the gaming company was sued by Mr. Conduit’s tattoo artist for illegally and wrongfully using the mixed martial artist’s tattoo in the game. Taking a leaf from so many cases of tattoo artist’s suing gaming[8] and entertainment companies[9], and also having burnt its fingers once[10], EA Games played it safe by taking permission from the tattoo artists of the respective sportsmen before using their work in their new NFL 15[11].

TRADEMARKING TATTOOS :

Quintessentially, the function of a trademark is to distinguish one’s services or goods from the others selling or providing similar goods or services. So when one gets a trademark or logo tattooed on himself or herself, given the aforesaid logic, the chances of them intending to confuse any member of the public of being the originator of any particular goods or service are rare. However, in some organizations, employees are encouraged to get tattoos of the organization’s logos or taglines[12].

On the other hand, in some cases, one might end up welcoming a cease and desist notice for tattooing a trademark without prior permission, like in the case of a coffee shop owner in New York who was slapped with a cease and desist notice for infringing the trademark “I ♥ NY” for tattooing “I [coffee cup] NY” on his knuckles. [13] The coffee shop owner, in this case, to avoid litigation, settled and agreed to certain terms of the said rightful owner that included restrictions on having his tattooed knuckles photographed and censoring of the cafe’s logo, which happened to be the tattooed knuckle, from the window pane of his coffee shop. While it is essential to note here that not only was there no direct trademark infringement but also the coffee shop owner had not copied the design of the logo as it is. He had introduced the image of a coffee mug instead of the “♥” which could be proved as distinctive form of expression and could have stood his ground pointing the difference in the tattoo design from the allegedly infringed logo. Having said that, like the idiom “every coin has two sides”, every legal argument can be fought from both the sides as well, making this jurisprudence ever so interesting.

CONCLUSION:

There seems to be crystal clarity, with the Warner Bros. case[14] verdict and Shahrukh Khan’s tattoo[15] being granted copyright registration, that tattoos are indeed copyrightable property. The variable in the equation, however, is the extent of the rights that are to be granted to the parties and its enforceability. While the moral rights like endorsing the tattoos in the name of the tattoo artists and giving them their credits when they are due, are undoubtedly implicit, the debate that needs to be put to rest is the statutory rights that are to be bestowed on either party.

Another question that needs the legal community’s immediate attention is the enforceability of these rights once they are granted. In order to protect and execute these rights, we are in need of a strong precedent that will define the limit the extent of injunctive relief that may be sought by the copyright holders without violating the infringer’s fundamental rights. With a Catch-22 situation before us and no binding precedent to break this deadlock, one can see only two definite possibilities – either the tattoo artists are granted their much earned and awaited royalties for every picture, endorsement, and social media coverage given to their art, or the conscious tattoo bearers is to carry fresh, newly drafted contracts for their tattoo artists to have their rights assigned to them every time they enter a tattoo parlour!

Author: Amruta Mahuli, Legal Associate at Khurana & Khurana, Advocates and IP Attorneys. Can be reached at mumbai@khuranaandkhurana.com.

References :

[1] Where I’m Reading From: The Changing World of Books

[2] https://www.researchgate.net/profile/Aaron_Deter-Wolf/publication/275023614_The_Material_Culture_and_Middle_Stone_Age_Origins_of_Ancient_Tattooing/links/552ecd7f0cf2d495071a90b1/The-Material-Culture-and-Middle-Stone-Age-Origins-of-Ancient-Tattooing.pdf?origin=publication_detail

[3] https://www.ibisworld.com/industry-trends/specialized-market-research-reports/consumer-goods-services/personal/tattoo-artists.html

[4] 17 U.S. Code § 102

[5] http://archive.indianexpress.com/news/srk-registers-don-2-tattoo-in-his-name/817871/

[6]  S. Victor Whitmill Vs. Warner Bros., Civil Action No. 4:11-cv-752

[7]  Christopher Escobedo v. THQ Inc., Case No.: 2:12-cv- 02470-JAT, U.S. District Court, District of Arizona (Phoenix)

[8] Solid Oak Sketches, Llc V. 2k Games, Inc., U.S. District Southern District Of New York, No. 16-00724.; http://mitchellhamline.edu/wp-content/uploads/sites/37/2015/11/2-Copyrighting-Tattoos-Artist-vs.-Client-in-the-Battle-of-the-Wai.pdf

[9] Reed v. Nike, Inc, No. 05-CV-198 BR (D. Or. Feb. 10, 2005); http://www.brinksgilson.com/files/190.pdfl; Ibid. 5

[10]  Stephen Allen v. Electronic Arts Inc. et al., Case No.: 5:12-cv-03172, in the U.S. District Court for the Western District of Louisiana.

[11] http://www.barstoolsports.com/dmv/ea-sports-got-permission-from-colin-kaepernicks-tattoo-artists-to-use-his-ink-in-madden-15/;

[12] http://newsfeed.time.com/2013/05/02/employees-get-tattoo-of-company-logo-for-pay-raise/; http://www.bbc.com/news/business-28207945

[13] http://theconversation.com/who-owns-your-tattoo-maybe-not-you-56050

[14] Ibid. 4

[15] Ibid. 3

Advertisements

Legitimacy of IPRS and PPL

What is a Copyright Society?

The collective administration of copyright by a society is a concept where management and protection of copyright in several works are undertaken by the said society of authors and other owners of such works.

In India, a copyright society is registered under Section 33 of the Copyright Act, 1957. Such a society is formed by authors and other copyright owners which may include licensing entities by virtue of assignment from the original author. The business of issuing or granting license in respect of literary, dramatic, musical and artistic works incorporated in cinematograph films or sound recordings shall be carried out only through a copyright society duly registered under this Act. Ordinarily, only one society is registered to do business in respect of the same class of work.

The minimum membership required for the registration of a copyright society is seven. On registration, a copyright society stays in existence for 5 years[i], after which it must apply for renewal. The functions of a copyright society include prescribing a license fee in accordance to its “Scheme of Tariffs” as decided by the members of the society. Under the Copyright Rules, 2013, every society must publish its tariff scheme on a regular basis. The society also decides how the collected fees shall be distributed among the members of the society.

 

What are IPRS and PPL?

The Indian Performing Right Society (IPRS) and Phonographic Performance Limited (PPL) were Copyright societies registered under Section 33 of the Copyright Act, 1957.

IPRS came into existence on 23rd August, 1969 to administer and issue license for usage of all performing rights associated with composition and lyrics and got registered as a copyright society in 1996.

The Indian Phonographic Industry (IPI), the association of phonogram producers was established in 1936. Subsequently, it decided to form a specialised body to administer the public performance and broadcasting rights, and so Phonographic Performance Limited (PPL) came into being in 1941 and just like IPRS, it also got registered itself as a copyright society under the Copyright Act, 1957.

Controversy involving the legitimacy of IPRS and PPL

In 2012, the Copyright Act was amended and a series of changes were incorporated. Following the amendment, string of litigation, unfolding of facts and judgements came to the notice.

The said amendment was made in Section 33 of the Act wherein subsection 3A was inserted, the proviso to which stated “every copyright society already registered before the coming into force of the copyright (amendment) Act, 2012 shall get itself registered under this chapter within a period of one year from the date of commencement of the Copyright (Amendment) Act, 2012”, and came into force on the 21st of June, 2012.

Both IPRS and PPL applied for re-registration on 8th May, 2013 and 10th May, 2013 respectively which was only a month prior to the expiration of the granted period for re-registration. However, IPRS in a letter dated 2nd June, 2014 and PPL in a letter dated 20th May, 2014 expressed their intent to withdraw their application for re-registration. Thus, due to failure to re-register IPRS and PPL, the earlier copyright societies were automatically disqualified to operate as Copyright societies under Section 33 of the Indian Copyright Act.

Now, both the entities operate as Private Limited Companies, registered under the Companies Act.

Such aforesaid actions by IPRS and PPL could have ensued due to the amendments brought about in 2012. It may be pertinent to note that authors of copyrighted works usually assign their rights in favour of IPRS or PPL for the licensing of said rights. The amendment in 2012 resulted in the change whereby “owners of the right” in Section 33 was substituted by “authors and other owners of right”. Therefore, as per Sections 33(4) and 33(5), the Central Government by virtue of the amendment could intervene in the administration of the said copyright society if the affairs of such society were being conducted contrary to the interests of the authors of the copyrighted works.

Moreover, by virtue of the amendment, an author of a copyrighted work shall have the right to withdraw the exclusive authorisation given to the copyright society to administer any right in a work without prejudice to the rights of the said society under any contract. Further, Section 35 has been amended to provide that every copyright society shall have a governing body with such number of persons elected from among the members of the society consisting of equal number of authors and owners of work for the purpose of the administration of the society. Section 35(4) provides that all members of a copyright society shall enjoy equal membership rights and there shall be no discrimination between authors and owners of rights in the distribution of royalties.

IPRS v. Union of India and Ors. & Hasan Kamal v. Union of India

(Writ Petition no. 2384/2014 with 2236/2014)

There were several complaints keeping IPRS in limelight for irregularities which  ranged from non-distribution of royalties, illegal sub-licensing of royalties, illegal transfer of mechanical rights and ring-tones royalties to another copyright society- PPL and lastly, forging signatures and misrepresentation to the Ministry of HRD. All these acts were violative of Sections 33-35 of the Copyright Act, 1957. Taking cognizance of such complaints, the government proceeded to pass an order to appoint an Enquiry Officer to make necessary enquiries into alleged complaints and to give suggestions to improve the administration of IPRS, thereby Justice Shri Mukul Mudgal was appointed. Post that, IPRS moved the High Court of Bombay and argued that  Rule 50 of Copyright Rules, 2013 provides for the appointment of an office above the rank of Deputy Secretary to the Government of India for the purposes of this enquiry and contended that the appointment of a former Chief Justice of the Punjab and Haryana High Court was not in compliance with the provisions of the Act. However, later in September 2014, the Justice resigned from the post of Enquiry officer as he did not want his qualifications to be a subject matter of litigation.

It further contended that since it failed to re-register itself as a copyright society as per the amendment, the order was inapplicable since it was made on the assumption that IPRS was still functioning as a ‘copyright society’. The High Court dismissed IPRS’s contention and said that if such contentions were to be accepted, “it would be adding premium to dishonesty” since it was a registered society from 1996 to 2013. In this regard, the Court stated;

“We do not think that the Legislature intended such an absurd result. We are, therefore, clearly of the view that the Central Government had jurisdiction to form a prima facie opinion that an enquiry is required to be conducted into the affairs of the petitioner society in respect of the alleged violations of the Act and the Rules”

IPRS moved the Supreme Court of India by a Special Leave Petition which was dismissed.

Whether IPRS and PPL can be construed as Copyright Societies or not?

The question as to whether IPRS and PPL are to operate as copyright societies is important as Section 33 of Copyright Act permits only a registered copyright society or an authorised agent to carry out the business of issuing and granting licenses. Both IPRS and PPL have publicly stated that they are not registered copyright societies and even the Ludhiana High Court ruled that IPRS was not a registered society in 2013.

Interplay between Section 30 and Section 33

Section 30 of the Act provides that “the owner of the copyright in any existing work or the prospective owner of the copyright in any future work may grant any interest in the right by licence in writing signed by him or by his duly authorised agent”

Thus, Section 30 provides for granting the license by agents on behalf of the owner. In the current scenario, the two entities, IPRS and PPL, claim to function as agents of their members and thus grant license in the name of the agent.

Section 33 of the Act provides “No person or association of persons shall carry on the business of issuing or granting licences in respect of any work in which copyright subsists or in respect of any other rights conferred by this Act except under or in accordance with the registration granted under sub-section (3)”

IPRS’ and PPL’s claim of functioning under Section 30 is overlapped by Section 33.  It needs to be reiterated that for the purpose of issuing or granting license, the entity needs to be a copyright society registered  under the Indian Copyright Act but IPRS and PPL maintain that they are not copyright societies and hence don’t come under the ambit of Copyright Act. Despite this, IPRS and PPL have repeatedly acted otherwise. In 2014, the IPRS filed a suit at the Delhi High Court where it verified that it was a copyright society, completely contradicting itself. In the same year, in other two cases — namely, IPRS v. Goodwin Jewellers and ors. – CS(OS)871/2014, and IPRS v. Black and White Media India and ors. – CS(OS)1274/2014, it approached the Delhi High Court as a copyright society, successfully managing to get the court to rule in its favour thereby digging its own grave.

Leopold Café Stores v. Novex Communications Pvt. Ltd.

Citation Order in Notice Motion No. 1451 of 2014 in Suit (L) NO. 603 OF 2014

In this case Hon’ble Bombay HC observed that “every agent also ‘carries on business’, but that is the business of agency, with the agent functioning as such, i.e., clearly indicating that it is acting on behalf of another, one who holds the copyright. This is the only manner in which both Section 33 and Section 30 can be harmonized. An absolute bar even on an agency, invoking Section 33, would undoubtedly run afoul of the plain language of Section 30 and render the words “or by his duly authorised agent” entirely otiose.”

“In order to qualify an agent, it is necessary for the agent to disclose that it is acting for and on behalf of the copyright owner in all the relevant documents.” Thus, license granted by IPRS and PPL can be only in the name of copyright holder and not itself.

On 14th August 2015, the Central Government announced the appointment of Y.P.C. Dangey, retired joint secretary and legal adviser of the Department of Legal Affairs in the Ministry of Law and Justice as Inquiry Officer to look into the inconsistencies and irregularities by IPRS and PPL all throughout its existence and submit a report. Further, IPRS was unsuccessfull in moving a writ petition regarding Dangey’s appointment against Union of India.

Chitra Jagjit Singh vs. The Indian Performing Rights Society 

Citation – MANU/DE/0917/2016)

In 2016, Delhi High Court restrained IPRS from granting any license in respect of the works of Jagjit Singh and also from recovering license fee from any third party in respect of the works, though it continued to collect license fee irrespective of the order. This case is landmark in the sense that for the first time court considered that IPRS is not competent in issuing license and collecting license fee, in furtherance of the decision of the court in the case of Novex Communications which was unclear on the standing of unregistered societies. The Hon’ble Court held that IPRS cannot claim to function as a company when it is issuing licenses in the capacity of a copyright society and hence, cannot issue licenses without being registered as such under the Copyright Act.

Recent Development

While Enquiry Commission’s report is still awaited, there has been a positive development as IPRS appointed Javed Akhtar – a noted poet, lyricist, scriptwriter as their chairman and Achille Foler – copyright administrator as a permanent advisor of the board.

Javed Akhtar on his appointment stated that it’s a “new chapter” and “writers, composers and publishers have risen above the past conflicts and have a taken a pledge to work together for the enhancement of Indian Music Industry’s reach and prosperity.”

Another positive step was taken by IPRS as it held the Extraordinary General Meeting on the 9th February 2017 which aimed to replace the Articles of Association. Moreover it was reported that the revamped IPRS has adopted a new working constitution which is fully in sync with the amended Copyright Act. The primary objective being, rightful royalty flow to the right’s owners, while simplifying the license procedure for the end users.

Authors- Himani Kohli and Pratik Das, Legal Intern at Khurana & Khurana, Advocates and IP Attorneys and can be reached at info@khuranaandkhurana.com

 

[i] Section 33 (3A) of the Copyright Act, 1957, inserted by Copyright (Amendment) Act, 2012

IPOS chief chairs UN copyright committee

Mr. Daren Tang, Chief Executive, Intellectual Property Office of Singapore (IPOS), assumed the Chairmanship of the World Intellectual Property Organisation (WIPO)[1] Standing Committee on Copyright and Related Rights (SCCR), at its 34th Session in Geneva. As Chair, he will help steer the SCCR’s discussions on developments to the global copyright regime through his two-year stint.

The SCCR includes representatives from all 189 WIPO member states as well as the Berne Union. It is a platform for members to exchange insights and experiences on copyright matters, initiate international collaborations and facilitate international copyright agreements. An example of an outcome arising from SCCR discussions is the Marrakesh Treaty which facilitates access to published works for visually impaired or print disabled persons. WIPO, or the World Intellectual Property Organisation, is a specialised UN agency.[2]

Reportedly[3], the SCCR is currently discussing the scope of copyright protections (e.g. the limits and exceptions) with a focus on (i) educational activities, (ii) libraries and archives, and (iii) persons with disabilities (beyond Marrakesh Treaty). Another issue currently under review by the SCCR is the international protection of broadcasting organisations.

A 2014 WIPO[4] study found that copyright industries contributed an average 5.2 per cent to national gross domestic product (GDP) across 42 nations, and 5.3 per cent to national employment, the IPOS statement said. In Singapore, copyright industries contributed 6.2 per cent to both GDP and national employment, it added.

It is the first time a Singaporean has been elected to chair this Standing Committee at WIPO.

Chief Executive of IPOS, Mr. Daren Tang, said, “I am humbled and honoured to be supporting the SCCR’s work as its Chair. On behalf of the committee, we would like to thank the current Chair – Mr. Martin Moscoso Villacorta of Peru – for his contributions to the global copyright system. Together with all WIPO Member States, we will continue our efforts to help make a difference, and develop a vibrant and robust global copyright system that fosters creativity and drives economic growth.”[5]

Director General of WIPO, Dr. Francis Gurry, said, “WIPO welcomes the election of Singapore’s Daren Tang as Chair of WIPO’s Standing Committee on Copyright and Related Rights. Mr. Tang brings extensive experience in IP policy making, as a key player in developing Singapore to become a global IP hub in Asia. I am confident his leadership will advance the SCCR’s work during his tenure.”[6]

About the Author :Abin T. Sam, Jr. Patent Associate at Khurana & Khurana, Advocates and IP Attorneys. Can be reached at abhijeet@khuranaandkhurana.com

REFERENCES

[1] WIPO is a UN agency whose mission is to lead the development of a balanced and effective international IP system that enables innovation and creativity for the benefit for all. More information can be found from their website (www.wipo.int/about-wipo/en).

[2] IPOS. “Chief Executive of IPOS elected as Chairman of United Nations Committee on Copyright”. ipos.gov.sg. https://www.ipos.gov.sg/MediaEvents/Readnews/tabid/873/articleid/383/category/Press%20Releases/parentId/80/year/2017/Default.aspx. (accessed 18th May, 2017)

[3] Standing Committee on Copyright and Related Rights,Thirty Fourth Session. http://www.wipo.int/meetings/en/details.jsp?meeting_id=42296 (accessed 30th May 2017)

[4]  www.wipo.int/export/sites/www/copyright/en/performance/pdf/economic_contribution_analysis_2014.pdf

[5] Karekar, Rupali. “Ipos chief chairs UN copyright committee”. straitstimes.com. http://www.straitstimes.com/business/ipos-chief-chairs-un-copyright-committee. (accessed 18th May, 2017)

[6] Karekar, Rupali. “Ipos chief chairs UN copyright committee”. straitstimes.com. http://www.straitstimes.com/business/ipos-chief-chairs-un-copyright-committee. (accessed 18th May, 2017)

Digital Rights Management & Its Interaction with Net Neutrality

The online platform offers ample opportunity for infringement of copyrights and it is but natural for copyright holders to react apprehensively and clamor for absolute regulation of the digital copyright market. However, the virtual world is a whole different ball game where standard rules fail to achieve the desired objective. Therefore, a mechanism was developed to counter unauthorized use and give more control to the copyright holder over the categories accessible and the type of usage and modification allowed, called Digital Rights Management (DRM). It was proposed through the WIPO Internet treaties of WIPO Cooperation Treaty (WCT) and WIPO Performers and Phonograms Treaty (WPPT) to provide a flexible and globally enforceable mechanism of governing digital copyrights.

Functioning

DRM works on the format of a pre-existing contractual relationship where the copyright holder controls the usage of the work even after it has been accessed by the user. It controls the number of copies that can be made, specifies the modifications allowed and how much of the work can be accessed, after its sale to the user.[1] DRMs are a business management model based on a contractual relationship, and serve the interests of the creator or the facilitator of digital content.  They can range from mere content copy regulation to full-fledged management schemes regulating each action in the transaction, all in an encrypted fashion. The material to be accessed can be decrypted through special knowledge which may be acquired by performing certain authorized actions. Some mechanisms supervise and regulate the number of copies that can be made.[2] The machine readable information coded in Rights Expression Languages (REL) is used to control permissions which restrict access and use for certain periods and for certain users as well as influence the quality of the work accessible.[3] DRMs are widely used in e-books, video games, computer software, mobiles etc., and work quite well. However, this mechanism is not suitable for all digital platforms as will be delineated in the following pages.

DRM Provisions in Indian Copyright Act

The Copyright Amendment Act, 2012 incorporated certain DRM provisions in consonance with the WIPO Cooperation Treaty (WCT) and WIPO Performers and Phonograms Treaty (WPPT). India had consistently resisted becoming a contracting party to these TRIPS treaties, however, the incorporation of digital regulatory provisions indicates an alteration of position. Section 65A and 65B comprise the DRM provisions, the former dealing with protection against circumvention of technological measures and the latter with protection of rights management information. Clause 2(a) of section 65A also specifies that nothing in the provision shall prevent the doing of anything referred to therein for the purpose that is not expressly prohibited by the Copyright Act, 2012. Apart from this, the provision also exempts circumvention of technological measures for the purpose of certain activities like encryption research, lawful investigation, security testing of a computer system or a computer network with the authorization of the owner, protection of privacy and measures necessary in the interest of national security.[4] The Indian copyright law permits circumvention with the help of third parties provided certain procedural conditions are satisfied. However, section 65A provides for a criminal penalty of imprisonment for 2 years and a fine, for violation of this provision, which is a rather worrisome development.[5]

DRM and low Net Neutrality: the Unholy Alliance

An adverse impact on fair use is the least of the complications that DRM causes. In retrospect, analyzing the impact of its operation in the US and the EU is proof enough of its draconian and anti-progressive nature. Although the provisions in the Indian Copyright Act are not draconian in nature, DRM has the potential to turn the clock back on any society in which it operates. DRM makes generally legal things illegal, as a consequence of which innocent downloaders – who are free-loaders at best – are prosecuted under laws meant for pirates while the real threat continue to operate. Although India has not adopted such overly stringent enforcement mechanisms, the inclusion of DRM provisions in the Indian Copyright Act has not been founded on any rational basis.[6]Therefore, even a minimalist approach as adopted by India is not in our best interests. This discussion is intimately connected to the recent debates on net neutrality which is another regulatory initiative attempted at price differentiation among different classes of consumers using the internet for various different purposes. This would create inequality among consumers and only serve to benefit telecommunication companies who are lobbying for this initiative. The Free Basics initiative by Facebook which was aggressively advertised was actually against the principle of net neutrality as it sought to provide “certain basic internet services for free”. The problem with such differentiation is not only that there is no clarity as to what these basic services mean, whether they will be uniform across all service providers and is it appropriate for telecom companies to determine what will be available to whom, but there is also a danger of arbitrary decision-making which will ultimately adversely affect the users. This coupled with DRM would make fine potion for a user rights disaster, making a mockery out the whole system of IPR and competition law.

About the Author: Akriti Dhagga, Intern, at Khurana and Khurana Advocates and IP Attorneys

[1]Tarun Krishnakumar and Kaustav Saha, ‘India’s New Copyright Law: The Good, The Bad and the DRM’ 10 JIPR (December 2012).

[2] Arul George Scaria, ‘Does India Need Digital Rights Management Provisions or Better Digital Business Management Strategies?’ JIPR (September 2012) vol 17 pg 467.

[3]Sacha Wunsch-Vincent, ‘The economics of copyright and the internet: Moving to an empirical assessment relevant in the digital age’ Economic Research Working Paper No.9, WIPO Economics and Statistics Series, (July 2013).

[4]Indian Copyright Act, S 65A (2)(b) to 65A (2)(g)(1957).

[5] Arul George Scaria, ‘Does India Need Digital Rights Management Provisions or Better Digital Business Management Strategies?’17 JIPR 464, 463-477 (September 2012).

[6] Charles Bailey, ‘Strong Copyright + DRM + Weak Net Neutrality = Digital Dystopia’ Information Technology and Libraries 116-139 (September 2006).

Khurana & Khurana expands footprint in South East Asia

With business models over the world turning more idea-driven, Intellectual Property Rights (IPRs) are now one of the most valuable assets for any economy. With a significant increase in IPR related activities, South East Asia is developing as a key market for IP Protection and initiating Enforcement actions. Khurana & Khurana, Advocates and IP Attorneys (K&K) one of the leading IP and Commercial law firms in India is committed to provide high quality consistent End-to-End Legal Services in IP and Corporate Legal Matters, and with a belief that success comes only when one has a long-term perspective and high level of client orientation, we are expanding our footprints in South Asian countries (Bangladesh, Vietnam, Myanmar, Nepal) with our strong associations with an objective of being a single-point of contact for IP Prosecution Matters in South-East Asia.

 1 2

 3 4

About K&K

Khurana & Khurana, Advocates and IP Attorneys (K&K) is more than a full-service Intellectual Property and Commercial Law firm.  K&K was formed with a very firm focus on providing end-to-end IP Prosecution/ Litigation and Commercial Law services in a manner that is Corporate Centric and follows stringent delivery practices that are consistent and are above-defined quality standards. K&K works closely with its sister concern IIPRD, both of which supplement each other in order to provide end-to-end IP Legal, Offshored IP Support, and Commercialization/Licensing services to over 3000 Corporates.

Our team of over 95 professionals spread across 6 Offices in India having high level of technical and legal competence, gives us the right competitive edge and positioning, as a law firm focused on creating immense IP value for our clients. K&K, through its experienced and qualified team of Attorneys/Practitioners, across Technology and Legal Domains, gives a rare synergy of legal opinion, out-of-box thinking for the protection of ideas/IP’s and entrepreneurial spirits to its client base. K&K is strongly ranked and recommended by Chambers and Partners, IAM, MIP, Legal 500, Asia IP, among other like agencies, and is an active member of INTA, APAA, AIPLA, LES, and AIPPI.

India’s time to delve into IP laws

Shireen Shukla, legal intern at Kkurana & Khurana, probes the recent International IP Index report, released by U.S. Chamber of Commerce, where India stood at 43rd position, out of 45 countries.

On 8th February, 2017 U.S. Chamber of Commerce released its 5th annual International IP Index, “The Roots of Innovation,” rating 45 world economies on patents, trademarks, copyright, trade secrets, enforcement, and international treaties with the aim to provide both, an IP report card for the world and a guidebook for policymakers seeking to bolster economic growth and innovation.

It is an undeniable fact that protection of intellectual property serves dual role in the economic growth of a country. Where on one hand it promotes innovation by providing legal protection of inventions, on the other it may retard catch-up and learning by restricting the diffusion of innovations. Therefore a sounder IPR protection in a country encourages technology development and technology transfer from developed to least developed countries. Countries that would demonstrate a commitment to IP laws will only reap rewards.

Often we have seen that major companies and brands invest their money or open their outlets in another country only after seeing the soundness of their IP laws. This proves the role of IP laws and enforceability on the GDP of a country.

GIPC is leading a worldwide effort to champion intellectual property rights as vital to creating jobs, saving lives, advancing global economic growth, and generating breakthrough solutions to global challenges  (Reddy, 2017). The Index ranked the IP systems of 45 countries. Where on one hand United States was ranked number 1, India and Pakistan were ranked 43 and 44 respectively.

Image Source: U.S. Chamber International IP Index: http://www.theglobalipcenter.com/ipindex2017-chart/#

 

Some major facts from the IP Index:

  • A pack of global IP leaders emerged among the 2017 Index rankings, with the U.S., UK, Japan, and EU economies, ranked more closely together than ever.
  • Canada signed the Comprehensive Economic and Trade Agreement (CETA), which raised the bar for life sciences IP protection.
  • Russia introduced new forced localization measures.
  • Japan’s score increased by 10% due to ratification of TPP and accession to the Index treaties.
  • South Korea passed amendments to the Patent Law.
  • Uncertainty around software patentability, Section 3(d) of the Patent Law, and High Court copyright decisions in India continue to present challenges.
  • Indonesia’s Patent Law included a heightened efficacy requirement and outlawed second use claims.
  • South Africa introduced new local procurement policies.
  • UAE created a specialized IPR Court.
  • Indian government issued the National Intellectual Property Rights Policy in 2016.

India announced the much-awaited National IPR Policy in May 2016. This act proved to be a positive attitude to foster the IP laws in India. The Policy is a boon for the IP industry as it provides constructive ways and methods to improve IP administration. The policy has enumerated the importance to educate Indian businesses about IP rights.

The Policy makers realizing the real issue in hand, addressed a number of important gaps in India’s national IP environment, which included the need for stronger enforcement of existing IP rights through the building of new state-level IP cells and investing more resources in existing enforcement agencies; reducing processing times for patent and trademark applications; as well as the need for introducing a legislative framework for the protection of trade secrets

Major developments and landmark judgments in Intellectual property laws since 2015:

  • The Delhi high court on 7 October 2015, barred Mumbai-based Glenmark Pharmaceuticals Ltd from selling, distributing, marketing or exporting its anti-diabetes drugs Zita and Zita-Met,as they tentatively infringed the patent of US-based pharmaceuticals company Merck Sharp and Dohme Corp.
  • In March, 2016, the Delhi High court in the case of Ericcson v. CCI for the first time ever, considered at how IP law interfaced with competition law. It allowed Competition Commission of India (CCI) to continue its investigation into anti-competitive practices by Ericsson regarding use of its SEP’s by other companies such as Micromax and Intex.
  • National IPR Policy in 2016, released last year is entirely compliant with the WTO’s agreement on TRIPS.
  • Examination time for trademarks has been reduced from 13 months to 8 months in the 2016 policy.
  • Bombay HC passed a series of judgments cases (Phantm Films pvt, Ltd. v. CBFC & Anr; Eros International Media Ltd. & Another v. Bharat Sanchar Nigam Ltd.) laid down a strict agenda for the grant of John Doe orders leading to path breaking shift in the John Doe jurisprudence in India. The above-mentioned judgments are focused on balancing the interests of not just copyright holders but also the Internet users and innocent third party providers.
  • The judgment by Bombay HC in Eros v. Telemax, is a pioneer that unwrapped the scope of arbitration of IP disputes arising out of licensing and other commercial transactions.
  • In December 2016, the Delhi High Court in the case of Agri Biotech v. Registrar of Plant Varieties declared section 24(5) of the Plant Varieties Act unconstitutional. The court giving a momentous judgment stated that the section violates Article 14 as it gives unchecked powers to the Registrar. The registrar is not required to be from a legal background in order to grant interim relief to a breeder against any abusive third party act during the period its registration application is pending.This lead to arbitrary use of powers by the registrar.

Beside the above-mentioned developments and progressions, PM Narendra Modi’s “Make in India” initiative also aims to promoting foreign direct investment and implementing intellectual property rights. In these initiatives, the government has decided to improve the intellectual property rights for the benefit of innovators and creators by modernizing infrastructure, and using state of the art technology.

One of the most recent and effective change brought in the trademark rules was on 6th march 2017, where the number of trademark forms have been reduced from 74 to 8 with an aim of simplifying the process of trade mark applications. The new rules promote e-filling of the trademark applications. The fee for online filing of the application is 10 per cent lower than that of the physical filing.

Steps India can take to strengthen its IPR laws:

  • India should implement speedy examination and registration procedures.
  • It should take effective steps to achieve the target of one month (as stated in IPR policy 2016).
  • The number of patent examiners and trademark offices should be increased to improve efficiency and disposal speed.
  • Section 3(d) of India’s Patent Act 1970, relating to restrictions on patenting incremental changes should be amended. Norms relating ever greening should also be revised.
  • A new and revised IPR laws and policies should be implemented so as to make it compatible with IPR laws of WIPO, TRIPS and other major dominant countries like US & UK

Every fiscal year, enormous time and money is being invested on R&D to improve the existing status of the Intellectual property laws in India, to bring it at par with the IP laws of US. We hope by following the above guidelines and following the National IPR Policy, India’s position improves in the next International IP Index 2017.

References :

  1. Prashant Reddy, The Press Release Journalism Around the GIPC IP Index, February 13, 2017, < https://spicyip.com/2017/02/the-press-release-journalism-around-the-gipc-ip-index.html&gt; Last accessed: 28th February 2017
  2. Merck Sharp And Dohme Corporation. v. Glenmark Pharmaceutical, FAO (OS) 190/2013, C.M. APPL. 5755/2013, 466/2014 & 467/2014, (Delhi High Court) (20.03.2015)
  3. Telefonaktiebolaget LM Ericsson v. Competition Commission of India, W.P.(C) 464/2014 & CM Nos.911/2014 & 915/2014, (Delhi High Court) (30.03.2016)
  4. Phantom Films Pvt. Ltd. v. The Central Board of Film Certification, W.P.(L) 1529 /2016, (Bombay High Court) (13.06.2016)
  5. Eros International Media Limited v. Bharat Sanchar Nigam Limited, C.S. No.620 /2016 & O.A.Nos.763 to 765/2016 (Madras High Court) (25.10.2016)
  6. Eros International Media Limited v. Telemax Links India Pvt. Ltd., Suit no. 331 /2013, (Bombay High Court) ((12.04.2016)
  7. Prabhat Agri Biotech Ltd. v. Registrar of Plant Varities, W.P.(C) 250/2009, (Delhi High Court) (02.12.2016)

 

The Mickey Mouse Debate

Mickey Mouse has always been synonymous with Disney, and has served as their ultimate mascot.Disney Corporation has always been protective of its creations and has ensured that their copyrights and their beloved mascot, Mickey Mouse, never fall into the public domain.  Every time the first Mickey Mouse copyright is set to expire, Disney springs into action to extend the copyright term.

The debate of copyright term duration is a long standing one. Initially, US copyright law provided for a copyright term which lasted for a period of fourteen years from the date of publication. This term could be renewed for an additional fourteen years if the author was still alive at the expiry of the first term. In 1831, the Copyright Act was amended and the term was extended from fourteen years to 28 years, which could be renewed for an additional 14 years.

In 1976 the copyright act went through major changes when the first Mickey Mouse copyright was set to expire. The amendment extended the term of copyright for works copyrighted before 1978 to life of the author plus fifty years after the author’s demise and 75 years for works of Corporate.

With only 5 years left on Mickey Mouse’s copyright term in 1998, Congress again changed the duration with the Copyright Term Extension Act, 1998 (CTEA) providing retroactive extension of the copyright term.It extended the term of protection to life of the author plus 70 years, and for works of corporate authorship to 120 years after creation or 95 years after publication, whichever endpoint is earlier. According to the Act works made in 1923 or afterward will not enter the public domain till 2019 or afterward, depending on the date of production. Disney’s Mickey Mouse is set to expire on 2023 and the debate on extension is set to begin again.

The Debate

So why is there so much debate about how long creative work can be protected by copyright? Copyright provides duality of purpose which is fundamentally at odds with each other. One purpose of copyright is to educate the public culturally by disseminating cultural knowledge. The other purpose is to foster creativity by allowing authors to reap benefits from works for a limited period thus encouraging them to create more works. It is in this battle that the debate for duration of copyright finds place.

The longest debate on duration of term with respect to copyright laws is in the US. Both proponents and opponents of extension have put put forth several arguments in favour of their stand, and this debate is set to resume soon, with the effect of the CTEA expiring at the end of 2018 and the first Mickey Mouse copyright entering the public domain in 2023.

Proponents of extension have maintained that the purpose of copyright is to promote creativity and art by allowing monopoly to the creators, thus giving them an incentive to create more. According to them, by giving exclusive rights to the creator for a limited time, both the author and the public benefit. The purpose of granting exclusive rights to authors isn’t so that they recoup their initial investment, but to let them earn substantial amounts so that they can create more works. In order to achieve this, copyright term must be for a considerable period.

Proponents of extension also argue that if works fall into the public domain they will go unused. If owners know that a particular copyright is going to lapse into the public domain, they would be unwilling to utilize it further, or create derivative works, and the public could lose out.

Another argument put forth by proponents of extension is that due to increase in life expectancy and longevity of business, copyright term must also be extended.Also, with better technology, the lifespan of a created work has become virtually infinite. This means that works can be exploited longer. Therefore, proponents of extension argue that unless copyright term is extended it to match the longevity of owners, and the longevity of the work itself, it no longer becomes an incentive for authors to create more work.

Copyright is as an extension of the creator’s persona. If it gets distorted or tarnished due to lack of protection, creators are discouraged from creating more works, potentially damaging their reputation. This also means that creators will be unwilling to disseminate quality copies of work if they are soon to fall in the public domain and risk being tarnished. This would mean that the public would lose out on culturally rich works.

Opponents of extension argue that authors have always known that their works would fall into the public domain, but this has never deterred them from creating new works. Further, extension of copyright stifles creativity as another person cannot build upon the works of the owner if it has not entered the public domain. Getting permission and licenses deters new creators from building on already existing works. This means the public would miss out on better works.

Opponents also argue that the increase in life expectancy argument is invalid as copyrights are protected for the lifetime of the author. Hence, if the life expectancy has increased it means that the copyright term will automatically increase as well.

When it comes to business entities owning copyrights, longevity of the creator is irrelevant. The opponents of extension have argued that copyrights are borrowed rights from the sovereign. Copyright is not an inherent, but a statutory, right given by the sovereign. However, irrespective of copyright being a statutory right, it needs to foster creativity. When business concerns know that copyright term is limited to a shorter duration, they are discouraged from investing further or creating derivative works. For example, when concerns like Disney know that their copyright over Mickey Mouse is set to expire soon, they would stop creating further derivative works, such as theme parks, products, animated works etc,.

In 2003, a study proved that the last two major copyright changes before CTEA, the Copyright Act of 1976 and the 1988 Berne Convention, had significant effects on copyright registrations.Yet another study, conducted in 2006, proved that countries that extended the terms of copyright from the author’s life plus fifty years to the author’s life plus seventy years anytime between 1991 and 2002, saw a significant increase in movie production.This clearly shows that copyright extension is in the best interest of creativity.

The Indian Scenario

The media and entertainment industry in India is still in its nascent stage. Copyright protection under the Indian Copyright Act is for a period of 60 years from death of the author. In 2008 Yash Raj and FICCI approached the HRD Ministry to extend the copyright term to 95 years like in the CTEA.The ministry welcomed film producers’ recommendations in extension of copyright term for the Copyright Amendment Act, 2010. While Parliament may not have agreed to extending the term of a copyright to 95 years like in the US, they did amend the law dealing with copyright term of films. The amendment has allowed joint authorship of the producer and the principal director for a film. Thanks to the amendment, a principal director will have a copyright protected for 70 years, as opposed to the producer who has only 60 years. This has effectively increased the term of protection for movies from 60 years to 70 years. The momentum for increasing copyright term is just starting and India will soon get to see similar debates as faced by CTEA in the US.

About the Author : Nadine Kolliyil, an intern at Khurana & Khurana, Advocates and IP Attorneys looks into the debate surrounding copyright extension in the US, and Bollywood’s attempt to extend copyright term.

References:

Simplified account of Copyright Registration in India

This article is intended with covering the basic FAQs about Copyright registration in India. For the sake of better focusing, format of questions and answers has been adopted.

  1. What is Copyright?

Copyright is a right given by the law to creators of literary, dramatic, musical and artistic works and producers of cinematograph films and sound recordings. It is important to note that Copyright does not protect the ideas but protects the expression of the ideas.

  1. What kind of works can be protected by Copyright?

The Copyright Act, 1957 protects original literary, dramatic, musical and artistic works and cinematograph films and sound recordings from unauthorized uses.

  1. What kind of works cannot be protected by Copyright?

Ideas, procedures, methods of operation or mathematical concepts as such, titles, or names, short word combinations, slogans, short phrases, methods, plots or factual information are not protected by Copyright.

  1. Who can file for Copyright registration?

Any individual who is an author or rights owner or assignee or legal heir can file application for copyright of a work.

  1. Where can applications for Copyright be filed?

Applications can be filed both online and through Physical mode. Physical applications have to be directed to:

Copyright Division.

Department Of Industrial Policy & Promotion,

Ministry of Commerce and Industry;

G-30 Super Market August Kranti Bhawan

Bhikaji Kama Palace

New Delhi- 110066

For e-filing, instructions available at http://copyright.gov.in/UserRegistration/frmLoginPage.aspx may be referred.

  1. Can both the unpublished and published works be protected by Copyright?

Yes

  1. Is quality of work important for Copyright registration?

It is the originality of the work that is mandatory for the registration and not the quality of the work.

  1. What is the procedure for Copyright Registration in India?

After application has been filed and diary number has been allocated, applicant has to wait for a mandatory period of 30 days to check if any objection is filed in the Copyright office against applicant’s claim that particular work is created by him. If such objection is filed it may take another one month time to decide as to whether the work could be registered by the Registrar of Copyrights after giving an opportunity of hearing the matter from both the parties. If no objection is filed then application goes for scrutiny from the examiners. If any discrepancy is found the applicant is given 30 days time to remove the same. Therefore, it may take 2 to 3 months time for registration of any work in the normal course.

copyright_blog

Source: http://copyright.gov.in/ 

  1. What kind works of website can be protected through Copyright?

A web-site contains several works such as literary works, artistic works (photographs etc.), sound recordings, video clips, cinematograph films and broadcastings and computer software too. Separate applications have to be filed for registration of all these works.

  1. Whether computer Software or Computer Programme can be registered?

Yes. Computer Software or programme can be registered as a ‘literary work’. As per Section 2 (o) of the Copyright Act, 1957 “literary work” includes computer programmes, tables and compilations, including computer databases. ‘Source Code’ has also to be supplied along with the application for registration of copyright for software products.

  1. What kinds of right are granted to Copyright owner?

Copyright owner has two types of rights related to his work:

Economic Rights: Economic rights include for example right of reproduction, right of performance, right of broadcasting and right of communication which are derived from right of performance, rights of translation and adaptation.

Moral Rights: These are the rights that allow owner to maintain his image. These rights allow author to claim authorship of the work and to restrain or claim damages in respect of any distortion, mutilation, modification or other act in relation to the said work which is done even after the expiration of the term of copyright if such distortion, mutilation, modification or other act would be prejudicial to his honour or reputation. It’s important to note that moral rights remain with original creator even after whole or in part assignment of the work.

  1. What is the term of Protection granted by Copyright?

Term of the protection depends on the type of work. Generally, it’s until the expiration of the 50th year after the author’s death. In case of anonymous work, it’s until 50th year after the work has been lawfully made available to the public. In case of pseudonymous work, it’s until 50th year after the work has been lawfully made available to the public, but if author leaves no doubt about the identity or reveals the identity of his or her work, the general rule applies. In case of Audiovisual (cinematographic) works, it’s 50 years after the making available of the work to the public (“release”) or if such event did not take place, then from the creation of the work. In case of applied art and photographic works, it’s 25 years from the creation of the work.

  1. Is India member of the international treaties related to Copyright?

Except, WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT), India is a member of most of the important international conventions governing the area of copyright law, including the Berne Convention of 1886, the Universal Copyright Convention of 1951, the Rome Convention of 1961 and the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS).

  1. Which sections of the Act define what is and what is not infringement of Copyright?

Section 51 of the Act deals with the provisions related to infringement of the Copyright. Section 52 of the Act provides a detailed list of acts that do not constitute infringement. Owner of the copyright can seek criminal and civil remedies against accused infringer.

Reference:

copyright.gov.in/frmfaq.aspx

Amazon improves foothold in India: signs content licensing deal with T-series

E-commerce is growing widespread day by day in Indian market. It has become a current day reality from a buzzword, transformed the way business is done, transformed the way people transact and more specifically, has totally transformed the game for the Indian economy. Nowadays online market space is available for almost everything; you just think of something in your mind and can easily get without leaving your place. It has covered almost everything: tours, travels, entertainment, movies, hotel reservation, matrimonial services, recruitment services, banking services, electronic gadgets, fashion accessories, medicines, medical devices, groceries and the list goes on.

Indian retail sector has taken a great leap due to the growing popularity of e-commerce. Offering attractive and convenient shopping option has widened owing to acceptance and preference of only online shopping as a safe shopping medium. In more simple words it is now possible doing shopping for anything from anywhere at any time with online market space, that too, with ease of your own comfort and leisure. Be it your workstation or home or wherever, you can shop for the anything you want without even worrying about the closure or opening time of the market, and within the prescribed time period you will receive in your hands. Rising Internet access, increasing usage of smartphones and the preference of cashless transaction, being integral players, have facilitated e-commerce to propagate and flourish in each and every part of our country.

Growth and success emanates competition, which is getting intensified with major online retail players day by day. Over a year ago, Snapdeal and Flipkart were the two major players, and then Amazon India has overtaken Snapdeal’s market. Two horse race between Flipkart and Snapdeal, has now transformed in to two horse race again, but, between Flipkart and Amazon, replacing Snapdeal.

Reportedly, Snapdeal’s market share dropped to 14% from 19% a year ago while Amazon’s gained from 14% to 24% in the same period and Flipkart remains the leader despite a fall in market share to 37% from 43%.:

untitled

Flipkart and Amazon are struggling high to win in the game of capturing Indian market share and to sustain that position.Both companies are developing various plans and strategies, like offering best discounted deals, announcing financial investments, acquiring major players in retail sectors, joining hands with big brands and signing licensing deal and agreements to have the batter coverage of the market. In the verge of the same Amazon has signed a long term content licensing deal with T-Series for its prime video services, which has not been launched yet, for pleasing the commitment of providing value added services to members . As a result of this deal, Amazon prime members would be able to enjoy the best of the Bollywood movies by T-Series within a few weeks of their theatrical release.Seventeen under production films by T-Series, which include Raabta, Chef, Tum Bin 2, Wajah Tum Hoetc. will be showcased to the members of prime video before their premier on TV. Previously Amazon has also signed almost similar type of pacts with Dharma Production, Vishesh Films and Excel Entertainment. Amazon is trying their level best to win their customers/members whole heartedly, fulfilling all of their need and interest. Indeed, Amazon is continuously improving its foothold in the Indian market to grab the position of leader in e-retail sector

But as we have seen historically, in internet business sector, there often remains single dominant leader like Facebook and Google in social networks and search engines respectively. Whereas, here it looks like oligopoly with two strong competitors Flipkart and Amazon; one is of home origin and another of American origin.

Battle is going on. Let’s wait and watch, who will takes all market? And we as customer enjoy their favours and offers.

About the Author: Dr. Komal Tomar, Sr. Licensing Associate at IIPRD and Khurana & Khurana, Advocates and IP Attorneys and can be reached at: commercialization@iiprd.com

References:

  1. http://economictimes.indiatimes.com/small-biz/startups/snapdeal-slips-against-its-two-main-rivals-flipkart-amazon-can-it-get-its-mojo-back/articleshow/54705032.cms
  2. http://economictimes.indiatimes.com/tech/internet/amazon-inks-content-licensing-deal-with-t-series/articleshow/54566544.cms
  3. http://tech.economictimes.indiatimes.com/news/internet/amazon-signs-up-dharma-productions-for-prime-video-push/54524365
  4. http://economictimes.indiatimes.com/small-biz/startups/amazon-signs-content-deal-with-vishesh-films/articleshow/54398306.cms
  5. http://economictimes.indiatimes.com/industry/media/entertainment/amazon-signs-up-excel-entertainment-to-ensure-enough-takers-for-prime-service-in-india/articleshow/53548913.cms

Wanna play Music commercially? Pay the Royalities first!

This may sound difficult given that commercial places in India have taken right to play the music as their inherent one. Situation may change soon after two recent judgements of Hon’ble Delhi HC. First one was delivered by JUSTICE S. MURALIDHAR on August 12, 2016 and second one was delivered by JUSTICE V. KAMESWAR RAO on September 30, 2016. Interestingly in both the cases, Indian Singers’ Rights Association (ISRA) was involved as plaintiff. In both the decisions, applicant court gave decision in favour of plaintiff and asked defendant to pay royalties to the plaintiff.

Basic information on ISRA, laws relating performance rights have been discussed below:

ISRA is the first Copyright Society to be registered by the Central Government after the 2012 amendments to the Copyright Act. According to its official website, M/s. Lata Mangeshkar, Usha Mangeshkar, Suresh Wadkar, Gurdaas Mann, Pankaj Udhas, Alka Yagnik, Kumar Sanu, Abhijeet Bhattacharya, Sonu Nigam & Sanjay Tandon with support from M/s. Asha Bhosle, Shaan, Kunal Ganjawala, Sunidhi Chauhan, Mahalaxmi Iyer and others formed the ISRA (Indian Singers’ Rights Association). ISRA was incorporated as a Company Limited by Guarantee under the Companies Act, 1956 on 3rd May, 2013. Thereafter, ISRA filed for Registration as a Copyright Society as per Section 33 of the Copyright Act and received its Certificate of Registration from the Central Government on 14th June, 2013. ISRA is independent of The Indian Performing Right Society (IPRS) and PPL (Phonographic Performance Ltd.). IPRS looks after the interests & Royalties of Composers/Lyricists. PPL looks after the interests & Royalties of Music Labels. ISRA looks after the interests & Royalties of Singers. The Copyright (amendment) Act, 2012 came into effect from 21st June, 2012. The amendments were historic in a way that they amended the provision regarding “Performers” to protect their interests in line with India’s international commitments. “Performer’s Right” in India after the amendment is in harmony with Article 14 of the TRIPS Agreement as also is compatible with Articles 5 to 10 of the WIPO Performances and Phonograms Treaty (WPPT). The Performers’ Rights subsist for 50 years from the beginning of the calendar year next following the year in which the performance is made. Section 38A and section 38B respectively provide for economic rights and moral rights over the performance.

According to section 38 A, the Performer’s Right are an exclusive right to do or authorize the doing of any of the following acts in respect of the performance or any substantial part thereof:

1) to make a sound recording or a visual recording of the performance;

2) to reproduce the performance in any material form including the storing of it in any medium by electronic or any other means;

3) to issue copies of the performance to the public not being copies already in circulation;

4) to communicate the performance to the public;

5) to sell or give the performance on commercial rental or offer for sale or for commercial rental any copy of the recording and;

6) to broadcast or communicate the performance to the public except where the performance is already a broadcast.

The “Performers Right” runs parallel to Rights of Composers/Songwriters, Producers & Music Companies. It’s interesting to note that Performer can assign his copyright but cannot assign or waive the right to receive royalties for the utilization of such performance in any form other than for the communication to the public of the performance along with the film in a cinema hall. The performer can assign the right to receive royalties to either his Legal Heir or a Copyright Society for collection and distribution. This cannot be even circumvented by contract to the contrary.

ISRA soon after its creation decided the amount of royalty that has to be paid to the performer. Different Tarrif schemes such as applicable to radio broadcasting, broadcasting over satellite/ TV channel can be accessed at http://isracopyright.com/tariff_scheme.php .

After these judgements, rights of singers are clearly established and commercial establishments will have to change long continued practices of playing the music without paying royalties to singers.

Kudos ISRA.